Exposing minors to justice system has the potential of destroying their future as repeated contacts may turn them into hardcore criminals, a High Court Judge has warned.
Chairperson to Special Task Force on Children Matters under auspices of National Council on Administration of Justice Lady Justice Teresia Matheka indicated that a significant proportion of children who have had a brush with the law were victims of poverty, poor upbringing and had experienced neglect, exploitation by adult crime syndicates, and social, psychological and economic hardships.
Justice Matheka who sits at the High-Court in Nakuru urged the society to allow minors who had served stints at juvenile institutions and correctional facilities have an opportunity for social reintegration once they are released from borstal institutions.
Minors, she stated need and have a right to proper care, guidance, protection to ensure that they neither break the law nor get into conflict with the justice system.
In an exclusive interview, at the Nakuru Law Courts, Lady Justice Matheka observed that exposing children to the criminal justice system shifted responsibility from adults who are accountable for safeguarding them.
The High Court Judge called on Parliament to expedite the passing of the State-backed Children Bill, 2021 which proposes to increase the age of criminal liability to 12 years.
Currently, the age of criminal responsibility is eight (8) years, according to the Kenyan Penal Code Act 63. While this is a young age, the court must conclude that the child at the time of committing the crime understood that what they were doing was against the law.
If they were unaware, then they cannot be sued and eventually held responsible. This rule is limited to children above eight years but below 12 years old.
Justice Matheka affirmed that Kenya’s current age of criminal responsibility was too low, went against the letter and spirit of child rights and provides an escape route for adult offenders to abuse and coerce children to commit crimes.
She added “The Committee on Experts-African Charter on the Welfare of the Children which Kenya has ratified recommends criminal liability at 12 years .Children should not be held criminally responsible when they do not have the maturity to engage in the judicial proceedings or the ability to properly understand the criminal nature of their behaviour,”
Ms Matheka observed that Kenya is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), which is a commitment to doing everything possible to ensure children grow up within a protective and secure environment.
The High Court Judge urged guardians, teachers, religious leaders, local administrators and law enforcement personnel to explore and understand the underlying reasons of how and why children commit crimes.
Justice Matheka noted “Minors in crime are yearning for protection through provision of an enabling environment for wholesome growth and development and not further victimisation and punitive ‘justice’. They basically need a second chance at life to reform and rehabilitate,”
According to her, the criminal liability age contradicts other legislation which puts the legal age to enter marriage, legal contracts and employment in Kenya at 18.
The Children Bill, 2021 sponsored by Majority Leader Amos Kimunya also proposes that anyone using online platforms to lure children to crimes like prostitution and drug abuse risks a Sh2 million fine or 10 years in jail or both under a proposed law.
Justice Matheka said the Children Bill, 2021 aims to boost protection by targeting online predators who seek to lure children to online crimes that include bullying, stalking, harassment and solicitation.
The proposed law further increases responsibility on parents and guardians by making it a crime for them to allow their mobile phones and computers to be used in exposing children to online-based abuse.
The Bill comes at a time of heightened worry that enhanced access to social media and online platforms has exposed minors to lewd content.
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