Sentencing of child offenders who turn eighteen at the time of or prior to sentencing in Kenya
Anyangu, Andere Tracey
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Recognition that a young person does not magically gain full maturity and all the attributes of adulthood when they turn 18 is increasingly widespread within the criminal justice system. Courts in many jurisdictions worldwide have affirmed this when considering whether a certain sentence can be applied to a child offender who has turned 18 during proceedings. The England and Wales Court of Appeal has posited that reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. The Western Cape High Court has also confirmed that there is no arbitrary end to childhood for children who have committed offences before they attained the age of adulthood, and are still being processed through the criminal justice system when they turn 18. As per these courts, the youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has turned 18. Following this, this study discusses the concerns that arise when it comes to sentencing child offenders who turn 18 before or at the time of sentencing in the Kenyan context. These include whether such offenders will no longer be eligible for the special protections afforded to child offenders, and whether they will be facing adult sentences. Other concerns are on how such offenders should be restituted where courts make a mistake sentencing them; and what can be done to ensure that such offenders are reintegrated back into society if they are able to successfully appeal against sentences derived from a mistake. In doing so, this study adopts the principle of best interests of a child and uses mainly case law to look into the approach that courts in Kenya should adopt when imposing sentences on child offenders who turn 18 during proceedings. The reason for this is that there is limited scholarly work on this matter and the law does not speak on it. Ultimately, the study concludes by giving recommendations to all duty bearers to respect, protect and fulfil the rights of children when fashioning an appropriate sentence for child offenders who turn 18 during proceedings. The recommendations include minimizing system delays by dealing with cases involving children in a timely manner and putting the best interests of the child first by considering how the sentence will influence the course of their development as young adults.