Application Of The Best Interest Principle To The Criminal Justice Juvenile System: A Review Of Emerging Case Law

Roselyne Mukuhi Mugo, (LLB – senior student) University of Nairobi

Abstract

This paper sought to highlight specific instances of sexual offences cases that led to the failure of the realization of the best interest of the child due to the judicial ambivalence that encompasses this principle. The paper accentuated the predominantly sensitive issue in the criminal process on the dilemma of upholding the welfare of the child and giving due justice to an accused person. This issue is heightened due to the absence of what exactly constitutes the best interests of children who are involved in the Criminal Court Trial procedure due to the silence that envelopes this internationally recognized principle. The study used data from already decided court cases and purposively sampled children’s courts in Malindi and Nairobi. The key informants comprised magistrates and lawyers with data collected through interviews and observations. The study examined various sexual offences cases in the Criminal Justice System against certain parameters that were used in scoring the best interest of the child, whereby children were either juvenile delinquents or the victims. It found the whole court trial procedures to be inadequate in providing for the best interests of the children involved. The study makes policy, administrative and legislative recommendations and provides a draft of the guidelines that can be stated to cater for the best interests of the child in the Criminal Justice side. Its overarching emphasis is to signal practices that are embedded in the criminal justice system that need to be reconsidered and to call for the establishment of better laws.

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