What legal and child protection measures can be taken when a person accused of defiling a child is released on bail, and the child survivor continues to feel unsafe in the same community?
In Kenya, the law is designed to favour children, but this does not mean the same law is hostile to others. The conversation must begin by affirming the principle in Article 27(1) of the Constitution, which guarantees every person equality before the law, including equal enjoyment of its protections and benefits. An accused person, therefore, is entitled to the rights and privileges of the law like any other citizen.
However, recognition must be given to the fact that certain alleged offences may require restrictions, especially where a failure to impose limits threatens both the pathways to justice and justice itself as an outcome. Under Article 49(1)(g), an arrested person has the right to bail or bond on reasonable terms pending a charge or trial, unless compelling reasons justify its denial.
At the same time, every child, whether in conflict or contact with the law must be treated with care, respect, and dignity, in line with Article 53(2), which enshrines the best interest principle in all matters concerning juveniles.
According to Equality Now, every year, more than 400 million children worldwide are exposed to child sexual exploitation and abuse.
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While courts and police station commanders may release a suspect on bail or bond, questions inevitably arise in cases of defilement and similar offences regarding whether such a release is appropriate when the safety of the child survivor is at stake. Balancing the survivor’s protection with the accused’s right to liberty is essential to ensure justice is not compromised, and fair trial principles are upheld.
A fair trial itself flows from the principle that one is innocent until proven guilty, whether the accused is a child or an adult. Article 50 of the Constitution entrenches this principle by emphasising several critical tenets, including the right to a public trial before a constitutional court, the right to have the trial begin and conclude without unreasonable delay, and the right to be informed in advance of and have reasonable access to the prosecution's evidence.
These rights are not merely theoretical; in Anthony Mutuku Mutua vs. Republic (2020), the High Court found that a trial was unfair because the accused was not furnished with witness statements, thereby undermining his ability to mount a proper defence.
While the rights of accused persons must be safeguarded, the Children’s Act of 2022 provides elaborate safeguards for children, recognising that their safety within the criminal justice system requires differentiated but equal responsibility.
In cases where a child is the survivor, the prosecution bears the duty of ensuring not only that the child is safe, but also that they remain available for proceedings until justice is delivered.
The Prosecutors’ Guide to Children in the Criminal Justice System is explicit on handling such fragile matters, strictly prohibiting plea bargaining, out-of-court settlements, and alternative dispute resolution in sexual offences involving child survivors. Section 3.1.1 requires prosecutors to open a Protection and Care file for every child in contact with the law to assess their needs and seek court applications that safeguard their safety, privacy, and access to psychological support.
Furthermore, prosecutors must consult Children’s Officers to determine whether the child qualifies as being in need of care and protection under Section 119 of the Children’s Act, which may lead to placement in a safe environment.
Beyond these statutory measures, courts can deploy additional mechanisms to protect child survivors, such as expediting hearings to minimise opportunities for interference and imposing strict bail conditions or restraining orders that prohibit the accused from approaching the child or their family, with any breaches leading to immediate bail cancellation.
Records from the DCI show over 60 defilement cases have been recorded in Nakuru in the past eight months.
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Courts may also rely on a child’s testimony without corroboration, provided its credibility is tested, thereby reducing unnecessary exposure of the child to the accused. Under the Prosecutors’ Guide, courts must ensure that child victims and witnesses are shielded from intimidation before, during, and after trial.
Given the high risk of victimisation, it is often advisable to place such children under the custody of the Witness Protection Agency to secure their safety and ensure they can testify without fear. Ultimately, Article 53 of the Constitution not only guarantees every child protection from abuse and neglect, but also empowers courts and child-focused institutions to prioritise safety over the bail freedoms of alleged perpetrators.
The balance between protecting the rights of accused persons and safeguarding the welfare of child survivors is delicate, but it is one that the Constitution, the Children’s Act, and prosecutorial guidelines collectively strive to maintain, ensuring that the vulnerable are protected, fair trial rights are respected, and the integrity of the criminal justice system is preserved.
