Using justice to safeguard children's well-being

June 16, 2020

On June 16, 1976, nearly ten thousand black pupils from different schools across Soweto (South Africa) marched for more than half a mile. They were protesting against the poor quality of education they were accorded and demanding that they are taught in their vernacular languages. While their intention was to improve the education provided to African children in South Africa, the government of the day responded in a brutal attack, culminating in more than a hundred deaths and scores of injuries. In commemoration of the Soweto Youth Uprising, the then Organisation of the African Union (OAU), designated June 16 as the ‘Day of the African Child’, for the deliberation on the opportunities and challenges that hamper optimum attainment of children’s rights in Africa.

This year’s theme, ‘Access to Child-Friendly Justice System’, asks of judicial systems across the continent to prioritize the best interest of the child. That is to say that there should be a justice system that has the interests of the child at its core, as opposed to being parent or guardian- centric. An example of this is a recent ruling on a custody case in Kenya involving a ten-year-old girl.  In his orders, the principal magistrate presiding over the matter gave full physical custody of the child to her mother, who had been absent for nine years. The child, however, objected the court’s decision, her physical resistance a clear demonstration of her point of view. The court’s ruling has brought it under sharp criticism over its consideration of the best interest of the child.

Equally, parties are opting for out-of-court settlements especially in situations where families are involved. Steeped in cultural norms and the need for ‘communal coexistence’, many cases, particularly in rural areas across Kenya, are routinely dealt with during ‘vikao vya wazee’. While these mechanisms portend a great opportunity for augmenting access to justice, they are often ineffective and imbalanced, with minors often receiving the short end of the stick. For instance, some parents opt to settle for a small token in the event where their underage daughters are raped and impregnated. This practice is often enforced where perpetrators are known to the victim either as family or friends with the main aim of preserving familial, friendship, or societal ties as opposed to reinstating the child’s dignity. In fact, the child’s views are rarely taken into account and their role is solely to obey the decisions made, either through goodwill or societal pressure. This leaves many of the victims suffering from mental and emotional distress, and unwarranted and shame.

The decision to go the traditional justice system way is often premised on the fact that the formal systems like courts are expensive, involve complex procedures and legal technicalities, are located in major urban areas that are out of reach for most rural families, and are not expeditious. The fact that the decisions of these ‘courts’ are backed and enforced by local law enforcement makes them more binding and legitimate.  

The important question thus is how can the justice system in Kenya – formal and traditional – be more responsive to the plight of children? The use of child and adolescent-friendly techniques, including sensitive investigation techniques, a guarantee of privacy and where need be, re-training of state officers – the police, judicial staff, caseworkers, and probation officers. This could be in form of an overhaul of the training curriculum for law enforcement and judicial officers, to include child psychology and communication techniques.

The key actors [community elders] in the traditional justice system should be trained on children’s rights issues, including how to incorporate the interests and well-being of children in their pronunciation of justice. Equally, there is a need for enhanced awareness among traditional judicial actors on the effects of their rulings on victims, particularly children’s emotional and mental wellbeing instead of overly relying on communities’ overall wellbeing.