THE HISTORICAL CONTEXT OF KENYA’S JUVENILE JUSTICE
From the 1960s until the 1990s, most African juvenile justice systems mirrored the juvenile justice philosophies that informed the legal systems of their colonizing countries (Alemika and Chukwuma 2001). Juvenile justice systems in most of Africa in the period before the CRC in 1990 reflected debates about the influence of “welfarist,” “back to justice/just deserts,” or “crime control” theories. Thus, examples from Kenya (South Consulting 1999), Nigeria (Owasanoye and Wernham 2004), Uganda (Parry Williams 1993), and Zimbabwe (Kaseke 1998) (all former British colonies) reveal that colonially inherited juvenile justice laws tended to mirror the philosophy of their British counterpart with a strong emphasis on welfarist-oriented provisions. Welfarist-oriented juvenile justice laws were not the norm in all African countries. In the context of countries such as Namibia, juvenile justice law encompassed the major features of what may be described as a “justice model” informed by a theory of “just deserts” (Schulz and Hamutenya 2004).
For Kenya and other former British colonies, the legal architecture that anchored juvenile justice remained “welfarist” on paper despite changes in British juvenile justice, including the end of the dual child care and crime jurisdiction of the family proceedings court and the ushering in of a just deserts approach allied with crime control through the Crime and Disorder Act adopted at the end of the twentieth century. For Kenya, the perceived benign and “rehabilitative” notions of the juvenile justice system mirrored what was recorded in the 1940s in the US context or earlier in the UK. One study discusses:
... [T]he Kenyan conceptualization of the criminal justice process for children is generally a benign one, focusing on ‘rehabilitation’ and ‘education’ rather than on punishment. This is seen in the fact that even the current law [Children and Young Persons Act, 1969] does not use the terms ‘conviction’ and ‘sentence’. Imprisonment is rarely used and children do not get criminal records. These features indicate a leaning toward welfarism in the criminal justice system for children. The danger in this is that in reality the system may be far less benign than it seems on paper. Children are not sent to prisons but alternatives to imprisonment may also be damaging. . (South Consulting 1999)
The fact that the earlier laws applying in countries such as Kenya were enacted before the recognition of children’s rights under international law meant that children’s rights ideology was not part of the juvenile justice theoretical debate in Africa before the CRC was adopted in 1989. Since the CRC’s adoption, the concept of children’s rights has developed to usher in a significant prism in which children are viewed to have “rights” of their own. This counters the concept of “welfarism” in which children could be viewed or treated as objects of intervention. Under the CRC the concept of children’s rights impacts all issues concerning children including juvenile justice (Van Bueren 1995). The convention’s provisions in Article 37 and Article 40 specifically speak to the subject of juvenile justice. In the African context the influence of children’s rights is furthered through the African Children’s Charter, whose provisions on juvenile justice (under Article 17) applies to all persons under the age of 18. It is a subject of debate whether the CRC, the African Children’s Charter, and other related international instruments can be viewed as providing a new philosophical frame for juvenile justice with an emphasis on children’s rights (beyond welfarism or justice theories).
With an entirely novel emphasis on children’s autonomy, these normative frameworks provide, at the very least, a standard within which to examine whether children’s rights have had an impact on juvenile justice systems across countries around the world that are parties to these treaties and legally bound to implement their provisions (Doek 2002). Six features can be discerned from the CRC which usher in a new normative standard for juvenile justice (Sloth Nielsen 2001):
- (a) The establishment of separate laws, institutions, and procedures applicable to children accused or alleged of committing crimes
- (b) The setting of a minimum age of criminal capacity
- (c) The principle of detention as a last resort and for the shortest period of time
- (d) The desirability of diversion as a binding obligation on State Parties to the CRC
- (e) The extent to which procedural guarantees under the CRC and related international instruments, such as the UN Beijing Rules on the Administration of Juvenile Justice, are accommodated in a juvenile justice framework
- (f) The limitation of certain sentences and need for alternative dispositions at the sentencing stage
Article 40 (1) of the CRC also refers to reintegration as the primary objective of the juvenile justice system and the need for the child to assume a constructive role in the society. These have been said to hint at a more restorative justice approach (Skelton 1996). Thus, State Parties should consider the need for community-based approaches to crime that offer opportunities for the juvenile justice system to communicate denunciation of wrongdoing while establishing in a young offender a sense of empathy with the victim and connectedness to the family and community.