Examining Kenya’s Diversion Policy 2019: reforming the diversion criteria to align with the Children Act 2022 and include a broader range of cases for diversion

Abstract

The Diversion Policy 2019 guarantees the promotion of Diversion in the juvenile justice system. However, in many cases diversion is limited by the same policy because it grants prosecutors discretion to grant or deny diversion in cases of petty offences and felony offences which essentially leads to more children being excluded from benefitting from diversion which defeats the purpose of diversion. This policy contravenes section 227 (2)(c) of the children act 2022 which affords diversion to each child offender with the exception being when it comes to capital offences. Through the theory of restorative justice, this study through a restorative lens will show that there is a prevailing cost in limiting diversion in cases of petty offences and felony offences in the juvenile justice system. Through a comparative study with New Zeeland the study will suggests a way forward by promoting a broader context of diversion which is in line with the Children Act 2022.The study recommends amending clause 2.8 of the ODPP Diversion Guidelines which will make diversion broader by ensuring children who have committed petty offences and felonies to automatically be viable for diversion without any discretion from the prosecutors.