The nexus between the best interests of the child and detention of children in conflict with the law

Abstract

The principle of the best interests of the child is a universally recognised
norm of the Convention on the Rights of the Child (CRC). While there is no
consensus on the definition of this principle, various soft law documents,
academic literature, and judgments demonstrate its centrality in both private
and public spheres. The Children Act of 2022 provides a detailed articulation
of this principle, facilitating its application in the Kenyan context. This paper
examines the Kenyan and international legal and normative framework on
the detention of children in the child justice system. It explores the nexus
between the detention of children in conflict with the law and the principle
of the best interests of the child. The authors contend that the detention of
children in conflict with the law should be guided by the principle of the
best interests of the child, as enshrined in Article 53(2) of the Constitution
of Kenya, 2010 and international law. It reaffirms the position, adopted
by courts of law, that there should be a limit to the institutionalisation of
children in Kenya. The authors further advocate diversionary measures to
judicial proceedings, such as family group conferencing, as suitable options.