An analysis of penal law objectives in child abuse cases: a comparison of the Kenyan and Canadian experiences
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Date
2016
Authors
Muthusi, Evans Musau
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
The main objective of this paper is to assess the veracity of penal law objectives in child abuse
cases in Kenya. The Children's Act under Section 2 looks at child abuse as consisting physical,
sexual, psychological and mental injury. The research endeavours to cover the various forms of
child abuse covered by various pieces of legislation, which are sexual abuse, child physical abuse
and child trafficking and exploitation. The area is of interest due to a significant rise in child abuse
incidences in the country over the years. One of the objectives of laws is to bring about social order
in its purest form with an end to avoid conflict. As such to maintain this order the characteristic
response of Kenyan legislate:·" to these atrocities was to pass laws that gave unlimited judicial
discretion in sentencing and also severe deterrent punishments. From collected data over a span of
10 years since the enforcement of key legislations, the trend of child abuse crimes across the board
have increased in conviction rates, prosecutions and arrests. The question then is whether the
objective of the laws is responsible for this inefficiency. To figure out the whether a nexus exists
thejurisdiction of Canada was used as a comparative study. The Canadian criminal system, based
on Common law, is similar to that of Kenya. The similarity of judicial systems and similar child
protection laws provided a proper specimen to analyse whether a nexus exists. The sentencing
objectives in child abuse cases however is based on a mixture of retribution and deterrence
tempered by mandatory minimum sentence . Across the board it was seen .that the cases of child
abuse either diminished or maintained the same number due to effective investigations,
implementation of mandatory minimum sentences and less judicial discretion in sentencing.
Therefore, the Kenyan experience can be remedied through introduction of mandatory minimums
of penalties. This removes discretion of the judiciary and as such aligns the purpose of the laws.
Strengthening of child abuse investigations by the Kenya Police Service. This goes to
improvement of infrastructure and reduction of bureaucracy. Setting up of proper reporting
mechanisms to ensure an associated effort to ensure prosecution of crimes. This goes to the front
of accessibility to proper authorities and access to justice.
Description
A Dissertation submitted in partial fulfillment of the Bachelor of Laws
Degree
Keywords
Child Abuse, Law, Canada, Kenya