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.