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Raging fires have been reported in schools and this is not the raging fire to study but incidents of delinquency. Students are torching schools in seditious protests and the adversely affected are schools in the Nyanza region. The reasons cited by students for the delinquent behaviour include administration highhandedness, transfer of teachers and limited freedom. This worrying trend has resulted in about 60 schools being burnt, and most of them closing.

The question that arises is whether the “suspects’’ or culprits are criminally culpable. Juvenile justice is the area of criminal law that 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 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 centre is at the discretion of the judge. Before a child is sent to a rehabilitation school, it is mandatory that a parent obtains a committal order.

Looking at Kenya’s history, in March 2001, Kenyans woke up to tragic news when at least 67 students of Kyanguli High School perished in a dormitory fire, 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 from the school precincts.

Mambo, although being a teenager, was charged with 67 accounts of murder alongside his co-accused and schoolmate Davies Onyango. 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 crime, the Director of Criminal Investigations has warned students against engaging any criminal acts and said there is a possibility of prosecution. He has added that the crimes will automatically reflect on their police clearance certificate.

It is noteworthy that indisputable age of criminal responsibility in Kenya is eight years. Section 14 of the Penal Code deals with criminal responsibility in relation with immature age and clearly states 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.

Education CS Amina Mohamed has reiterated that culprits will 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 any Kenyan public university. Basic Education PS Belio Kipsang has publically warned such culprits will be treated no different from any other criminals.

Is this position too harsh?

To say the least, morally, torching schools, destroying property and putting the lives of others in danger is wrong. Legally, any person below the age of 18 should not be tried as an adult but that does exempt one from criminal responsibility. Article 53 of the Constitution 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 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 that ought be followed and even in meting out punishment, the law stipulates that a child’s best interest are of paramount important. He goes further to recapitulate that the prime objective of Juvenile Justice is deterrence and rehabilitation, 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. The deterrence measures being flouted by CS Amina or DCI George Konoti should be sanctioned and actually implemented.


This Article appeared in the Star Newspaper on the 28th July, 2018.


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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