Laws to Improve Child Justice
By Constance Ndeleko
What is the idle age for a child to be arraigned in a juvenile court?
Well sometimes it is a bit difficult and disturbing to talk about some topics especially when it’s matters in relation to children. Today we look unto the right of a child in a juvenile court.
Different countries have different terms of how they define who a child is, some take it that so long as you are below the age of 18 years then you are a child but other have lowered the age up to 16,17 or even 15 years. It is a bit confusing and even still in progress to define age limit of a child universally.
Do we have an outstanding children rights in a liable working juvenile justice system in Kenya?
What do you think should the minimum age for a child to be punished under criminal offence?
In Kenya at least we are a bit up front on the definition of a child in our constitution. However, having defined the age limit at 18 years we still have some challenges with our judicial system when it comes to juvenile court and the laws that define or govern it.
Many questions run into our minds when you hear a child is arraigned in court of any offence and it gives you a step back to re-think. Should a child be punished of a capital offence, serve a jail term, sentenced to death or be held in for life imprisonment?
We know no one is above the law and anyone who doesn’t adhere to rules /laws and regulations of a state should face the law regardless. But with a child, and in this term I mean the one who is under the age of 18 years, what happens to them?
Yes, they are arraigned in a juvenile court for hearings and substantial evidence is given according to the offence charged with. When you break the law there’s always a punishment for each and every offence one commits and same applies to a child under the age of 18 years.
Mostly the judges gives the ruling depending on the offence committed by the plaintiff and we tend to think it is ok because the law states so but in real sense:
- Should a child be sentenced to death?
This is still a debatable question in the world whether a child should be given a death penalty or not. And since the age is still a factor in many nations on vivid description of a child’s age limit it still gives a mixed reaction and responses depending on their terms.
In Kenya we don’t sentence children to a death penalty as per the UN CRC report and for my own self I tend to believe there is always a room for change thus they should be given a second chance to right the wrong since taking someone’s life especially a child will always be susceptible. I don’t think it is right because they are still minors and perhaps when they committed the offence they were not in right state of minds or perhaps it was out of self-defense .it is hard to sometimes gauge when a child is saying the truth or not and may be let’s leave it for the judges to pass the ruling though still I won’t advocate for a death penalty for a child regardless of the offence committed.
However, the International Human Rights Standard, and especially the UN CRC, set the “prohibition of the offence death penalty for crimes committed by persons under the age of 18 at the time of the offence as opposed to prohibiting executing children.
When should a justice system determine that the child should serve a jail term, life imprisonment or life sentence and perhaps a hearing or parole?
Perhaps the justice system should reflex on the rules and the laws governing the juvenile justice system to ensure that every child gets to have a fair hearing and representation. Even the universal law standards should try to compromise on some of them because they are a bit harsh on a child. Giving life imprisonment to a child tends to crash a child’s life where they won’t be able to have the chance to improve and right the wrong and the opportunity to change to be a better person.
“Life imprisonment makes it difficult to achieve the aims of juvenile justice and therefore strongly recommends the abolishment of all forms life imprisonment in case of offences committed by persons under age of 18. Life imprisonment and lengthy sentence were qualified by Special Rapporteur on Torture as grossly disproportionate and therefore cruel, inhuman or degrading when imposed on child. Life imprisonment imposed on children that does not exclude parole is still a form of inhuman sentencing through which a person is liable to be detained for the rest of his or her natural life and judge has the discretion power to decide on the possibility and momentum of release.”
Just as any other human being a child has the right to fair hearing and representation at court whether the family can afford a good lawyer or the state lawyer. They should have a total representation whereby they get to give evidence and have witnesses in support of the charge they were arraigned in court for.
It is the duty of every state to guarantee that they receive adequate support and confirm at least they have necessities even in the juvenile detention center. This brings us to the question.
Does the Kenyan government offer adequate support to a child in juvenile?
Do they have rehabilitation facilities to assist them regain their stability on moral rights or therapy sessions to ensure they don‘t mess up their lives on guilt of crime committed and the blame they tend to suffocate themselves with?
As any other child they are entitled to good education system, good health care hoping that there’s a program to ensure each one of them has NHIF card, good food and they are well looked after even though in this case they have committed crimes that should be punished.
Punishment should not mean that they should be deprived of their liberty because this is the future generation we are building and we should give them necessary sustenance to safeguard their growth on knowing wrong and right and how they should face different challenges in that violence is not the key solution of solving misunderstanding or conflicts.
According to UPR report, in July 2014 states “there are measures: juvenile sentence and juvenile sanction that entered into force where juvenile sentence is intended to be alternative to an immediate custodial sentence and in certain cases to community punishment. This measure is imposed by the court and it requires the consent and participation of the minor. The juvenile sanction is intended to be used in less serious criminal cases”
However, Kenya has actively engaged in campaigns and measures towards a general abolition of death penalty which it cannot also be replaced with life sentence without parole.
Perhaps instead of punishment they deserve protection, reforms and rehabilitation through specific measures and a more restorative justice could possibly contribute in the long term decreasing the number of children facing abuse in detention. It will prevent the need to deal with negative impact of deprivation of liberty on children. Each child should receive a fair trial, right to appeal, the right interpreter, legal assistance, protection from compulsory self-incrimination and right to an atmosphere of understanding. This is the right of the child to be notified promptly and directly of the charges, right to remain silent, right to the presence of parent or guardian. (UN CRC.)
HAS HE OR SHE WRONGED? YES, AND DOES HE OR SHE DESERVE TO BE PUNISHED, THE ANSWER IS STILL YES. BUT HOW DO WE DIFFERENTIATE A PUNISHMENT DESERVING FOR A CHILD AND AN ADULT? DOES IT MEAN THAT THE ONLY WAY TO CORRECT A WRONG IS BY SENDING HIM OR HER TO JUVE? WE ALL GET THE SAYINGS SPARE THE ROD SPOIL THE CHILD BUT DOES THE ROD ALWAYS MEAN A CANE, NOT NECESSARILY, SAME GOES TO SENDING HIM/HER TO JUVE. ITS NOT THE ONLY PLACE TO DISCIPLINE AN INDISCIPLINEDSPEAK UP TO ENSURE A SECOND CHANCE FOR A CHILD IN JUVENILE.
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