Kenyan children have scored a big win following the signing of the Children Bill 2021 into law by President Uhuru Kenyatta.
The new law which now replaces the Children Act 2001, is a huge reprieve for Kenyan children who come in conflict with the law.
To begin with, the new law has raised the age of criminal responsibility from the current 8 years to 12 years.
“A person under the age of twelve years shall not be criminally responsible for any act or omission and that a child who commits an offence 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,” states Clause 221 of the law.
The new law also states that children accused of committing minor offenses, will not be taken through the court’s system, rather, they will be diverted to community-based systems.
For cases that are not minor, the law states that the Chief Justice may designate children’s courts in counties and subcounties and appoint a magistrate to preside over the cases in which a child is a victim or complainant.
“The Children’s Court shall have a setting that is friendly to the children who are before it,” states Clause 92.
A Children’s Court, however, has no jurisdiction to try a child for murder.
It further provides that all children coming into conflict with the law will be provided with free legal aid to enable them to navigate through the justice system.
“Clause 64 provides for the establishment of child protection units by the Inspector-General in every police station for the purposes of providing, on a temporary basis, a safe and non-threatening environment for children in conflict with the law,” the law reads.
In addition, children with disability will now be accorded medical treatment, special care, education and training free of charge.
Clause 142 of the law defines a child in need of care and protection as one who lives in difficult circumstances and needs to be protected from all kinds of abuse and neglect.
It also defines a child living on or off the streets as one to be protected by the new law.
Another big score for children is the establishment of a Child Welfare Fund to cater for the needs of children in distress.
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“Clause 56 provides that Parliament shall appropriate monies for the National Council for Children Services. Other sources of funding for the council includes grants, gifts, donations or other endowments given to the Council.”
The law also introduces a new concept of kinship adoption.
Under this concept, relatives wishing to adopt children related to them will be able to do it in a much cheaper, faster way that devoid of legal technicalities.
The law also recognises “Kafaalah”, the taking in of a child who is deprived of parental or family care and protection by a person professing the Islamic faith who is capable of looking after a child in accordance with this Act.
The process of amending the Children Act 2001 was necessitated by the need to align it to the 2010 Constitution, the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, and other relevant international instruments relating to children.
The amendment also sought to address emerging issues affecting children in Kenya and gaps identified during the implementation of the Children Act 2001.
Some of the emerging issues are; radicalization, online abuse, deinstitutionalisation, intersex children, inheritance and diversion for children in conflict with the law.