Resolution of Conflicts Involving Children An Evaluation of Nakuru Law Courts in Kenya

ABSTRACT 

In Kenya the enactment of the Children Act in 2001 was a milestone step towards resolution of Children-related disputes. The Children’s Act that was passed into law in March 2001 has several objectives. They include making provision for parental responsibility; adoption; fostering; maintenance and custody; guardianship; care and protection of children; to make provision or administration of children’s institutions and to give effect to the principles of the United Nations convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). In effect, it covers almost all areas one is likely to come into conflict situations involving children. The establishment of the Children’s court in particular took the whole issue of resolving children-related disputes to a new level. However while the objectives of the legislation were noble, the best interest of the child is yet to be addressed, at least from the perspective of judicial implementation of the Act. This research sought to evaluate the extent to which the courts have been effective in protecting children in conflict situations. The study concentrated in Nakuru Law courts which have both a High court and Magistrates Courts legally mandated to handle children cases. Nakuru was chosen as it represents both urban and rural set up and covers a wide geographical area. The researcher adopted a case study design and used both purposive and random sampling methods. Structured questionnaires were prepared and distributed to the respondents comprising ofjudicial employees, advocates and other members of the public attending the Nakuru Children courts. In a nutshell, the findings show among other things that the legislation is inadequate, with 87.2% of the respondents pointing out parental responsibility to be the most difficult area. The study also reveals that the court xiv forum. It is necessary to be flexible when addressing serious family problems and also to uphold legal principles. This unfortunately presents a unique challenge to children’s courts and more so with regard to child protection. Generally, the approach to justice for youth differs from one jurisdiction to another. For instance, some states to adopt a welfare approach where offending children are directed to social services while others have a justice model whose aim is to punish children for their crimes through the criminal justice system. In other cases both approaches are combined; this happens in Sweden where the children with a high age of criminal responsibility are directed to social services while those above this age are prosecuted in an adult court (Goldson, 1999). In the US the youth court system directs children to be tried by the adult court. In Kenya, the legal framework supports Juvenile Courts although such courts are not really separate as Nairobi and Mombasa are the only cities that has a Juvenile Court presently. In the rest of the country, ordinary courts are turned into courts for children; Nyeri for example has two days in the week dedicated to children matters at the court. The current treatment of children in conflict with the law has oflen been reported to infringe upon the rights of children. Children’s courts are necessary in providing a legal framework for child protection intervention. Additionally it is through this court that children can be held accountable for their conduct by society and parents can also be accountable for raising children.

TABLE OF CONTENTS

DECLARATION I

APPROVAL II

DEDICATION III

A CKNOWLEDGEMENTS IV

TABLE OF CONTENTS V

LIST OF TABLES IX

ACRONYMS XI

DEFINITIONS XII

STA TUTES XII

CASES XIV

ABSTRACT XVI

CHAPTER ONE

INTRODUCTION

1.0 Background Information 1

1.1 Historical Background 1

1 .2Conceptual Background 2

1.3 Contextual Background 3

1.4 Statement ofthe Problem 6

1.5 Research Objectives 6

1.6 Research Questions 7

1.7 Scope ofthe Study 7

1.8 Significance ofthe Study 8

CHAPTER TWO

LITERATURE REVIEW

2.0 Introduction 9

2.1 Theoretical Review 11

2.2 Conceptual Framework 12

2.3 Legislative Provisions 12

2.4 The Courts 15

2.5 Supporting Infrastructure 16

CHAPTER THREE

METHODOLOGY

3.0 Research Design 20

3.1 Research Population 20

3.2 Sample and Sampling Procedure 20

3.3 Sample Size Calculation 20

3.4 Instruments 21

3.5 Data Analysis 22

3.6 Validity and Reliability ofthe Instruments 23

3. 7 Ethical Considerations 23

3.8 Limitations ofthe Study 23

CHAPTER FOUR

SUMMARY OF STUDY

4.0 Introduction 25

4.1 Respondent’s Details 25

4.2 Gender ofthe Respondents 25

4.3 Capacity ofthe Respondents 25

4.4 Legislation 26

4.5 Procedure in Court 28

4.6 Institutions Receiving Children 31

4.7 Court Layout and Environment 38

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.0 Introduction 45

5.1 Summary of Findings 45

5.2 Discussion 48

5.3 Recommendations 49

References 53

APPENDICES

Questionnaire 55

Observation Form 60

Time Plan 62

Budget 63

Letter ofIntroduction 65