Assessing Kenya’s legal framework with regards to the best interest of the child principle

Abstract

The research discusses the situation concerning the handling of children in conflict with the law in Kenya and applies the principle of the Best Interest of the Child. Although Kenya has the Constitution of Kenya and international instruments such as the United Nations Convention on the Rights of the Child (UNCRC), the application of this principle is far from adequate. Ratified by Kenya, the UNCRC requires that the welfare of children be a primary consideration in all matters that affect them. Kenyan laws, however, including the Penal Code, barely consider their special needs as children and instead treat child offenders with similar procedures and penalties as adults. The dissertation identifies diversion as a way that can fill a gap in the judicial system by integrating the use of rehabilitation of children and their reintegration into society. Diversion aims at decreasing stigmatization of child offenders, offering support services to child offenders, and deterring recidivism, thus serving the best interest of the child for children in conflict with the law. The Children Act, 2022, allows courts to use discretionary measures in relation to diversion. There are, however, inconsistencies in its application, which defeats its effectiveness. This dissertation identifies challenges within Kenya's juvenile justice system, assesses the shortfalls of existing legal frameworks, and calls for reforms that focus on restorative approaches to justice, which promote both children's rights and their well-being.