RECENT AMENDMENTS TO KENYA’S LEGISLATION REGARDING JUVENILES IN CONFLICT WITH THE LAW

Authored by: Gloria Mihigo Kokugonza

ABSTRACT

Many times, we hear of how children have been infringed of their rights rather than of how children have infringed the law. After a careful look at children’s cases in Kenya, it is evident that children can find themselves in a tight spot with the law. This paper looks into a child offender and the implications of the law towards them. 

INTRODUCTION

Although children are granted legal safeguards due to their status as minors, they can still find themselves in conflict with the law. In certain instances, their actions can be severe, as exemplified by the tragic James Bulger case. [1] Children can be innocent lawbreakers, but does it mean we put them behind bars? No! Children need more protection than punishment. In the James Bulger case, a two year old was murdered by two boys of 10 ½ years each. The nature of the murder was indeed very cruel. The result of this case was that the two boys were detained during Her Majesty's pleasure. 

This paper delves into the legal provisions relating to children in conflict with the law at the international level and in Kenya. It further looks at the conflicting provisions of law in Kenya and what that implies. 

Age of Criminal Responsibility

At the international level, it is required of state parties to promote enactment of laws specifically applicable to children accused of having violated penal law and in particular the establishment of a minimum age below which children shall be presumed not to have the capacity to violate penal law. [2]

The age of criminal responsibility for minors should not be too low of an age taking into consideration the emotional and mental maturity of the minors. [3] The international view on the matter of age of criminal responsibility and more specifically the Minimum Age of Criminal Responsibility (MACR) has been put at the age of 12 years. A MACR below 12 years is not acceptable at an international level. [4] The Committee also urges state parties not to lower the age of twelve as the MACR. [5]

Current Position of the Law Regarding Juveniles in Conflict with the Law

In Kenya, two legislations used to address the issue of the age of criminal responsibility of minors. They are the Penal Code [6] and the Children Act but until recently, only the Children Act. [7] Section 14 of the Penal Code provides:

(1) A person under the age of eight years is not criminally responsible for any act or omission.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

The High Court in the case of Republic v EM, [8] made a distinction of the provisions of that section. The court found that in section 14(2), there is a rebuttable presumption. This means the court must determine if the child understood the difference between right and wrong. On the other hand, in section 14(3), there is an irrebuttable presumption, meaning that the court does not need to determine if the child knew right from wrong. The difference is that one can be argued against, while the other cannot.

While the penal code used to conclusively address the issue of a minor’s liability; it is important to note that the common law doctrine of translate lex posterior derogat priori which translates to "a later law repeals an earlier law" takes effect by virtue that Kenya is a common law country. This doctrine means that a newer law repeals a conflicting older law. By prioritizing the most recent legislation, legal systems maintain relevance and adaptability to changing societal needs and values. Consequently, at the enactment of the Children Act, the conflicting provisions in relation to the criminal liability of children are now governed by the Act and not the Penal code as was previously. In the case of R v NAS, [9] Aburili J made an interpretation of section 221 of the Children's Act which provides: 

(1) A person under the age of twelve years shall not be criminally responsible for any act or omission.

(2) A child who commits an offense while under the age of fourteen years shall be presumed not to be capable of differentiating between right and wrong, unless the Court is satisfied on evidence to the contrary.

She pointed out that Section 2 as read together with section 221 of the Act provide an unquestionable presumption that children under the age of 12 years are not criminally responsible for committing or omitting to do anything in law. Inferring from the same, subsection 2, when read in full, brings out a rebuttable presumption: that a child of 14 is presumed not to be capable of committing a crime except in the case where there is evidence to the contrary. The court will therefore not entertain the argument that a child who is between 12 and 14 years of age did commit a crime except where evidence is provided. 

A good example of the application of law of a rebuttable presumption is the case of R v ANN. [10] In this case the minor offender aged 12 years as of 7th March 2019 was charged with manslaughter contrary to section 202 and 205 of the Penal Code. The defense counsel cited the section 221(2) of the Children Act that provides a rebuttable presumption for children in conflict with the law under fourteen years of age. The minor was sentenced to a noncustodial sentence for two years. Another alternative however would have been that after being found guilty to be discharged under section 35(1) of the Penal Code. [11]

In the NAS case, Aburili J. took into consideration the provisions of section 4 of the Children Act:

4 (1) This Act shall prevail in the case of any inconsistency between this Act and any other legislation on children matters.

(2) Despite subsection (1), a provision in another legislation on children matters may prevail if it offers a greater benefit in law to a child.

(3) A judicial or administrative institution or any person making an interpretation as to conflict of any provision or laws shall have regard to the best interests of a child.

As was observed in the aforementioned case, provisions of the Children Act are the most recent legislative enactments. They clash with section 14 of the Penal Code, which establishes a rebuttable presumption of criminal responsibility for children under 12. Consequently, the provisions of the Act take precedence since they not only constitute the most recent legislation but also prioritize the child's best interests, aligning with the rationale for increasing the age of criminal responsibility in accordance with the UNCRC. The minor NAS was therefore not held criminally responsible for the murder and the charges were quashed. 

CONCLUSION

From the foregoing and applying the principle of implicit repeal, it is evident that the conflicting provisions are to be governed by the latter law which is the Children Act as opposed to the Penal Code in matters in relation to the criminal liability of a minor.

REFERENCES

1. R v NAS [2024] eKLR (Hereinafter referred to as NAS), para 20-22

2. United Nations Convention on Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 44 (UNCRC) art 40(3)

3. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985, rule 4

4. UN Committee on the Rights of the Child, General Comment no.10 (2007) CRC/C/GC/10 paragraph 32 

5. Ibid, paragraph 33

6. CAP 63 Laws of Kenya

7. No. 29 of 2022. Hereinafter referred to as The Act

8. [2015] eKLR

9. Ibid 1

10. [2024] KEHC 2591 (KLR).

11. Section 239(1) of the Children Act, CAP 141 Laws of Kenya