Inside ODPP's revolutionary program turning teen prison sentences into rehabilitation journeys
Milimani Law Courts in Nairobi on July 22, 2020. Judge Chitembwe sparked debate by freeing a teen boy jailed for impregnating his teenage girlfriend in 2018. The ODPP responded with a new policy in 2019 offering rehabilitation instead of jail for consensual teen relationships.
What you need to know:
- A controversial High Court ruling in 2018, that overturned a 15-year sentence for a 16-year-old boy who had impregnated his slightly older girlfriend, highlighted the need for reform in handling teen relationship cases.
- In 2019, the ODPP introduced a diversion policy that offers rehabilitation instead of prosecution for qualifying cases involving minors in consensual relationships, known as 'Romeo and Juliet' cases.
Former High Court Judge Said Juma Chitembwe became infamous for overturning a harsh 15-year sentence for a minor convicted of defiling his underage girlfriend.
At the time, both were teenagers, with the girl being a year older and admitting in court to their romantic relationship that was aimed towards marriage. The girl's parents discovered the relationship when they learned she was three months pregnant with the 16-year-old boy's child.
In his ruling, Mr Chitembwe stated that the magistrate had made a mistake in the conviction since the girl expressed intentions of marriage, suggesting she acted with an adult mindset. “The girl was already talking of getting married... Only adults get married,” he asserted.
This ruling occurred in 2018, prior to the launch of the Office of the Director of Public Prosecutions (ODPP) diversion policy, which now offers alternatives to prosecution for cases involving minors in 'Romeo and Juliet' cases.
Had this case reached the ODPP under the new guidelines implemented in 2019, both the boy and girl would have undergone a restoration and rehabilitation process rather than face criminal charges. Under this policy, minors involved in consensual relationships can learn from their experiences while ensuring the welfare of the pregnant girl is prioritised.
Linda Ndambiri, the head of the children’s division and anti-female genital mutilation unit at the ODPP, explained that diversion is the first consideration for such cases, designed to prevent undue harm to young offenders. However, not all minors qualify. The age difference must be narrow, and evidence must support a conviction if taken to court.
Ndambiri outlined, “When the files are brought to us, we assess if the criteria for diversion are met... If the girl confirms the relationship, we can consider diversion.”
For age considerations, cases where the boy is underage and the age gap is minimal—like between 15 and 17 years old—are eligible for diversion. In contrast, relationships with significant age disparities, such as a 17-year-old with a 10-year-old, would proceed to prosecution.
Both parties in a qualifying case sign diversion agreements, and with assistance from the Department of Children’s Services (DCS), they may receive counselling or protection. The DCS checks in periodically but does not disrupt their lives, instead inviting them to the office for progress assessments.
The duration of the diversion program varies based on the needs of the offender, the seriousness of the offence, and conditions set by authorities. If the terms are violated, the diversion program is terminated, and prosecution can resume.
Ndambiri emphasised the need for robust programs to support children undergoing diversion, collaborating with civil society to offer vocational training as necessary.
