Kenyan law places the highest value on the best interests of children in all matters concerning them. This article focuses on the legal framework surrounding the custody and detention of children in Kenya, emphasizing the importance of their well-being and safeguarding their rights.
Paramount Importance of the Child’s Best Interests
- Constitutional Emphasis: The Constitution of Kenya (CoK) underscores the paramount importance of a child’s best interests in every matter related to them Art. 53(2), CoK.
- Limited Detention: In accordance with Article 49(1)(f) of the Constitution of Kenya 2010 and rule 4(1) of the Child Offenders Rules, Schedule 5 of the Children Act (commonly referred to as ‘Child Offenders Rules’, a child should not be held for more than twenty-four hours without the leave of the court. This provision is aimed at ensuring that the rights of the child are protected from arbitrary or prolonged detention DMO & Another v R High Court at Nairobi High Court Petition No. 397 of 2012).
- Last Resort Principle: Consistent with Article 53(1)(f) of the Constitution, a child should not be detained unless compelling reasons necessitate it, and detention should always be regarded as a measure of last resort. The law emphasizes that any detention should be for the shortest possible duration art. 53(1)(f), CoK; CMK v R High Court at Kisii Criminal Appeal No. 27 of 2013).
Ensuring Adequate Protections
- Parental and Guardian Notification: If a child is held in police custody, it is a legal requirement to ensure that the parents or guardians of the child and the Department of Children’s Services have been informed r. 4(2), Child Offenders Rules.
- Detention Conditions: When the court is handling cases involving detained children, it has a duty to inquire about the conditions of detention. The court must be satisfied that children are held separately from adults and that the detention conditions are appropriate for their age and gender Art. 53(1)(f)(ii), CoK; Child Offenders Rules, r. 6; s. 18(3), Children Act).
By placing the best interests of the child at the forefront, Kenyan law ensures that children in custody are treated with care and respect, and their rights are diligently protected. This legal framework reflects a commitment to safeguarding the well-being of children, making their welfare a top priority in any legal process.
