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Advocate Juliet O. Nyang’ai discusses the link between of juvenile delinquency and crime and the subscribed law in apprehending a minor who commits a ‘’crime’’


Raging fires have been reported in schools and this is not the raging fire to study but incidents of delinquency. The country is awave with cases of unrest in institutions of learning where students are torching down schools in seditious protests. Adversely affected are schools in Nyanza region. The reasons cited by pupils for the delinquent behavior include; administration highhandedness, transfer of teachers, limited freedom. This worrying trend saw more than ten schools close in a week and on the Tuesday of 10th July 2018 alone, four (4) school fires were reported thus surging the number of schools to twenty two (22).

The question that arises is whether the “suspects’’ or culprits are criminally culpable? Juvenile justice is the area of criminal law which is applicable to persons not old enough to be held responsible for criminal acts. In most jurisdictions including Kenya, the age of criminal culpability is Eighteen (18)years and the prime purpose of a juvenile justice system is rehabilitation as opposed to punishment. The decision to send a child to a rehabilitation center is at the discretion of the Judge. Process calls out that before a child is sent to a rehabilitation school, it is mandatory that a parent obtains a committal order.

Going down the records of history, it was the year 2001 late March when Kenyans woke up to tragic news that students had died in a dormitory fire in Kyanguli High School. The total number of fatal casualties was sixty seven, one of the country’s biggest fire death toll to date. What was more astounding was the cause of fire. Police investigations established that a group of students led by one Felix Mambo “purposely” started the fire before escaping the school precincts.

Felix Mambo although being a teenager was charged with 67 accounts of murder alongside his co-accused Davies Onyango. Both were students at Kyanguli High School. Just like the current ongoing unrest and torching of schools, the Kyanguli High School case was also premeditated. Among some of the reasons cited for such conduct included; strict administration, congestion in dormitories and bad food. But are these grounds enough to warrant criminal acts by students? Arson, Malicious Damage of Property and Murder are considered criminal acts as by law.

In the recent high school unrests and criminal acts by students, The Director of Criminal Investigations has warned students about engaging any criminal acts and he says that there is a possibility of prosecution. He has gone on to say that the same shall be automatically reflected on their Police Clearance Certificate when the said students seek to apply for one.

It is noteworthy that indisputable age of criminal responsibility in Kenya is eight (8) years. Section 14 of the Penal Code deals with criminal responsibility in relation with immature age and clearly states that a person under the age of eight years is not criminally responsible for any act or omission. The rioting delinquents should thus be made aware of the consequences of their actions and at no point should they commit criminal acts with flawed reasoning that they shall go scot free.

The Cabinet Secretary for Education, Amina Ali has reiterated that those students found to have committed criminal acts shall be prosecuted and there shall be dire consequences such as inclusion of their bad conduct in the school leaving certificates and a policy of not recommending such characters for scholarships plus denial of admission to Kenyan Public Universities. The Permanent Secretary, Belio Kipsang has publically warned that such culprits shall be treated no different from criminals. Is the stance of the leaders too harsh?

To say the least, morally what the students are permeating by criminal conduct of touching schools, destroying property and putting the lives of others in danger is wrong. Legally, any person below the age of Eighteen (18) should be tried as an adult but that does exempt one from criminal responsibility. Article 53 of the Constitution of Kenya, 2010 prohibits the detainment of children except as a measure of last resort and where detained , to be held – for the shortest appropriate period of time, separate from adults and in conditions that take account of the child’s sex and age.

Errant and rioting students who commit criminal acts should be made aware that they shall be held criminally responsible and can and should go through juvenile justice as proscribed. Unlawful acts by minors cannot be condoned just because they have been committed by minors as encouraging delinquency can be equated to breeding of societal criminals. There is a direct link between student delinquency and crime and we can correctly infer that undermining the acts of children offenders is directly catalyzing adult crime.

Reputable Criminal Litigation Advocate, Cliff Ombeta emphasizes that there is a subscribed law which ought be followed and even in meting out punishment, the law stipulates that a child’s best interest are of paramount important in every matter concerning the child. He goes further to recapitulate that the prime objective of Juvenile Justice is deterrence and rehabilitation and not essentially punishment. In conclusion, Juvenile Justice does exist and in no way should minors committing offences fallaciously think they can get away with crime. Whether the deterrence measures being flouted by the Cabinet Secretary Education or the Director of Criminal Investigations are sanctioned and actually implemented is something to be followed.

Ms J.O. Nyang’ai is an Advocate of the High Court and Principal Partner at Juliet Nyangai & Company Advocates. She can be reached at nyangaij@jncadvocates.com Twitter Handle @nyangaij

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