Legal Clinic: How does the law treat children involved in crime?

Hello Wakili,

One notes you advise readers on legal - matters: is a 'minor' in law treated in the same way as an adult when it comes to grave crimes murder, misdemeanour? Who takes custody of children in cases of annulments of marriages i. e. criterion adopted by courts? Can at the outset’ infants (those of tender age) seek redress for wrongs done? Can a minor inherit property? What about juvenile delinquency; can youths be rehabilitated.
Please enlighten me on these pertinent issues.
Yours faithfully,
Alnashir D Walji

Hi Walji,
The issues you have raised are comparative legal concepts that separate adults from minors, with a constant in between that children stand a higher risk of being harmed. Such dichotomy is mirrored in the Age of Majority Act (Cap 33 of the Laws of Kenya) at Section 5 (1) which states as follows: where, under the provisions of any written law in force at the date of commencement of this Act, other than the Kenya Citizenship Act (Cap. 170), the expression “minor”, “infant” or “full age” is used to refer to any different age, such expression shall be read and construed as a reference to the age of eighteen years. This is anchored in Article 260 of the Constitution that provides the difference between adults and minors, as follows, an adult means an individual who has attained the age of eighteen years. The child therefore is the direct opposite.
It follows, therefore, that the law assumes a safeguarding mode when contemplating and addressing offences, alongside the punishment of minors. The law qualifies punishment less harshly because of minors’ incapacity to form the criminal mind, legally known as mensrea. The law allocates and demands more rational behaviour and responsibility regarding decision making to adults. This means, their threshold for culpability is higher, subjective and stricter in its construction and purpose. Details of culpability on children who conflict the law is found in the Penal Code, which is written to correspond to the Children’s Act and Article 53 of the Constitution.
Section 14 (1) of the Penal Code provides that any child below the eight years is unable to form the criminal mind. Further, at Section 14 (2), for any child above the age of eight but below 12 years, who allegedly commits a crime, it is the prosecution’s burden to proof that such a child, at the time of the act or inaction, had the capacity to know their action or inaction would lead to an offense or constitute a crime. Their capacity to differentiate wrong and right becomes a fundamental principle of allocating blame. On matters sexual and gender-based violence, it is provided at Section 14 (3), that a male person under the age of twelve (12) is incapable of having carnal knowledge. This is the law currently but the reality could be different. 

Can seek redress

Rights and welfare of children are foundational and mandatory in spouses’ decisions whether married or not.

Article 53 (1-e) of the Constitution gives children a right to equal parental responsibility. Where an annulment is imminent, which in the strictest sense of law is referred to as divorce, there is a presumption that children must not suffer from the accruing and manifesting differences between a feuding couple. Every settlement or court order must, as directed at Article 53 (2) of the Constitution consider the best interest of children involved. Such interests include matters of custody and maintenance. Child custody at Section 81 of the Children’s Act, means so much of the parental rights and duties as related to the possession of the child, while section 83 offers considerations by the court to award custody orders which include: best interests of the child: age of the child; wishes of the child: wishes of the parents of the child: financial capacities of the parents and fitness to care amongst others. Using the aforementioned criteria, the courts have tended to grant actual or physical custody to mothers in the cases of young children, and especially females. This can be countered by allegations of unfitness of the mother to act and react as one.
Infants can seek redress through representation. Remember, Article 22 (1) and 22 (2) of the Constitution gives any person, either on their own accord or on behalf of others powers to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights is denied, threatened, or violated. In the same spirit of legal protection and supported by Section 29 (1-a) of the Law of Succession Act, every child, as a primary dependant has a right to inheritance. Lastly, yes, youth and what the society considers as delinquents have a right to be rehabilitated. The juvenile justice system has been directed by the policy on Diversion alongside the Sentencing Guidelines (2016) to consider non-custodial sentences, including alternatives to restitutive avenues. A child remains a child in the eyes of the law, and at no time will they receive similar treatment as adults. Their legal capacity to make objective decisions is never for sale to the wittiest of litigious minds. While the law treats every person, who seeks justice claims equally irrespective of their age, gender, race, social or economic status, as anticipated at Article 27 of the Constitution, the flaws of it are done by man. 

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Eric Mukoya has over 17 years’ of working in Kenya and abroad within the social justice sector. Eric currently works for the non-profit human Undugu Society of Kenya as the Executive Director.