Under the Kenyan Children’s Act children arrested for committing crimes must be brought by the police before a children’s court. The act also provides that in general and non-capital offences, before a plea is taken, and pending trial, children should be released on police bail or on the basis of recognizance of their parents and guardians. Further, statutory provisions appear to restrict the use of pretrial detention. The constitution’s Article 53 (1) (f) prohibits detention for children, except as a last resort, to be restricted for the shortest period of time. It also provides that in the event of detention, children should be held separate from adults and in conditions that take the child’s sex and age into account. However, in the absence of system-wide pretrial diversion programs and procedures, these provisions have remained more theoretical than reality.

There is no specialized police force dedicated to deal with juvenile crime in Kenya. Spurred in part by the child rights ethos of the Children’s Act of 2001, the government established child-friendly child protection units staffed by dedicated and specially trained officers equipped with child-friendly holding facilities in a few police stations. However, because of inadequate public resources allocated for the police and the criminal justice system, these units are few and far between, thus limiting their impact. As of 2013 there were only 14 such units in police stations countrywide, constituting less than 10 % of the total number of police stations. With limited child-specific dedicated facilities, the risk of mixing children with adults in pretrial detention is high.

A major issue in Kenya is that most children arrested are usually in need of care and protection; they are usually living on the streets (Ennew 1994). Previous studies have indicated that up to 80-85 %> of the children arrested and placed in pretrial detention in Kenya are children in need of care and protection rather than children accused or suspected of committing crimes (Odongo 2004). An overwhelming number of street children are usually arrested by the police for no reason other than that they are in “need of care and protection”—a term used in past and current Kenyan law dealing with child care and protection. This is exacerbated by the reality that until 1997 (when parliament repealed the Vagrancy Act which had criminalized “vagrancy” or homelessness), street children were deemed to be criminals merely by the fact of their status: that they were on the streets. Detailing the types of abuses and harassment of street children by Kenyan police, Human Rights Human Rights Watch (1997: 52-53) has previously observed that “street children are apprehended and beaten by police, held in lock ups usually with adult criminal offenders, and processed in regular courts.”

The culture and attitude of law enforcement authorities in which street children are harshly treated and considered criminals has endured because of a number of factors, including the entrenched nature of this practice. In its consideration of Kenya’s record in implementing the CRC in 2007, the UN Committee acknowledged the vulnerability of street children to arbitrary arrest and treatment and urged Kenya to “make sure that street children are not systematically treated as children in conflict with the law.” It further called on Kenya to “identify and address the root causes of children living in the streets and develop a comprehensive strategy to address the large number of street children, with the aims of reducing and preventing this situation.”

The Kenyan government’s broad response has involved an emphasis on economic growth in addition to experimental welfare programs aimed at addressing the vulnerability of families and children to poverty. Broader socioeconomic changes in Kenya have impacted the socioeconomic welfare of families. These include rapid urbanization and the continued deterioration of the family because of deaths from the pandemic of HIV/AIDS among other factors. Due to high levels of poverty (with nearly half of the population considered to be living below the poverty line according to agencies such as the World Bank), thousands of children live, work, and fend for themselves begging for food and money in urban streets. One of the key government programs, implemented since 2004, involves the granting of limited forms of social cash transfers to targeted households considered poor with orphans or vulnerable children—explicitly defined as persons under the age of 18 and not receiving benefits from another program (Odongo 2012). Another program, implemented since 2005, is the Street Family Rehabilitation Trust Fund, which seeks to rehabilitate children working and living on the streets by providing affected children with special protection, education, health care, and psychosocial support. The government estimates that 8820 children, out of which over 800 were reintegrated into their families, benefited from the program between 2005 and 2010. The success of these kinds of programs is qualified to the extent that there remain thousands of children living in and off the streets in part because of the deep-rooted impact of rampant poverty and other factors impacting the socioeconomic welfare of families.

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