Renowned Kenyan lawyer Danstan Omari has shed light on a crucial aspect of the justice system—the treatment of children under 18 who come into conflict with the law. In an episode of “What is the Law”, Omari breaks down the legal framework protecting minors and clarifies why children cannot be imprisoned in Kenya, no matter the crime they commit.
His explanation provides a timely reminder that Kenya’s laws are built around the best interests of the child, ensuring that minors are treated with compassion, understanding, and rehabilitation rather than punishment.
The Legal Foundation: Constitution and the Children Act, 2022
The Constitution of Kenya, 2010, and the Children Act, 2022, form the bedrock of child protection laws in the justice system.
According to Article 53(1)(f) of the Constitution:
“Every child has the right not to be detained except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time and separate from adults.”
This means that imprisonment of children under 18 is not only discouraged but constitutionally restricted. Instead, children must be rehabilitated through child-specific facilities, such as remand homes and rehabilitation schools, not adult prisons.
The Children Act, 2022, further strengthens this protection by defining the rights and responsibilities of children in conflict with the law and establishing clear procedures for handling juvenile offenders.
Children Below 12: Cannot Be Prosecuted
One of the most critical points Lawyer Omari highlighted is the age of criminal responsibility.
Under Section 221 of the Children Act, 2022,
Children below 12 years cannot be prosecuted or held criminally liable for any offense.
This is because the law presumes that such children lack the mental capacity to distinguish between right and wrong. Therefore, when a child below 12 commits an act that would otherwise be an offense, the state responds through social welfare mechanisms, not criminal prosecution.
Instead of facing court, such children are often referred to Children’s Officers, psychologists, or social workers for counseling, guidance, or placement in child care institutions.
Children Aged 12–13: Conditional Responsibility
Children between 12 and 13 years occupy a special category under Kenyan law.
Omari explains that while these minors may be prosecuted, it is only if it can be proven beyond a reasonable doubt that they understood their actions were wrong at the time of committing the act.
This is a safeguard meant to ensure that immaturity, ignorance, or developmental limitations do not lead to unfair criminalization of children. Courts must assess the child’s mental maturity, upbringing, and intent before determining culpability.
Children Between 14–17: Subject to Juvenile Justice
Children aged 14 to 17 years can be held legally responsible for their actions, but still enjoy special protections under the Constitution and the Children Act.
Even when found guilty of an offense, they cannot be imprisoned in adult facilities. Instead, the law provides for:
- Rehabilitation schools, not prisons
- Counseling and mentorship programs
- Community service orders
- Probation or supervision
- Diversion programs (alternatives to prosecution)
These measures are based on the principle that children can be reformed and should not be exposed to the harsh realities of prison life that could lead to deeper criminal behavior.
Why Prison Is Not an Option for Children Under 18
Omari emphasizes that sending children under 18 to prison violates multiple legal and human rights standards.
Prisons are designed for adults and are often harsh, overcrowded, and unsafe for minors. Exposure to adult inmates can lead to:
- Psychological trauma
- Physical and sexual abuse
- Loss of education opportunities
- Increased risk of reoffending (recidivism)
Kenya’s justice system, therefore, prioritizes correction over punishment. The goal is to reintegrate the child into society as a productive and law-abiding citizen, not to stigmatize or destroy their future.
The Principle of “Best Interests of the Child”
Every decision involving a child—whether in arrest, trial, or rehabilitation—must be guided by the principle of the best interests of the child.
This principle, enshrined in both Kenya’s Constitution and international treaties like the UN Convention on the Rights of the Child (CRC), mandates that the child’s welfare, dignity, and future development take priority over retribution or punishment.
Lawyer Omari explains that this principle ensures that children are treated as children first and offenders second, recognizing their potential for change and rehabilitation.
What Happens When a Child Breaks the Law?
When a child is accused of committing an offense, the process is very different from that of an adult.
- Arrest: The child must be handled by officers trained in child protection. Handcuffs or force are discouraged.
- Detention: Detention should only occur if absolutely necessary and must be separate from adult suspects.
- Court: Children’s cases are heard in Children’s Courts, which are less intimidating and focused on welfare.
- Sentencing: Instead of prison, courts issue orders such as rehabilitation, probation, counseling, or community service.
- Aftercare: Children are monitored by probation officers or social workers to ensure they are successfully reintegrated into society.
International Standards and Kenya’s Commitment
Kenya is a signatory to several international treaties that protect children, including:
- The United Nations Convention on the Rights of the Child (CRC)
- The African Charter on the Rights and Welfare of the Child
These instruments require that detention of children be a last resort and that rehabilitation, education, and reintegration take precedence over punishment.
Kenya’s Children Act, 2022, aligns perfectly with these standards, reflecting the country’s commitment to child-centered justice.
Conclusion
As Lawyer Danstan Omari explains, the reason children under 18 cannot be sent to prison is rooted in Kenya’s commitment to protecting the rights, dignity, and future of every child.
The law recognizes that children are still developing—physically, mentally, and emotionally—and that the justice system’s role is to guide and correct, not to punish or destroy.
In a world where juvenile delinquency is rising, Kenya’s approach serves as a reminder that compassion and rehabilitation are the true markers of justice for children.
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