By Jared Juma
A lot of ink has been spilt about the criteria used by the courts to determine the best interest of the child in matters brought before them. There exists no standard definition of what a child’s “best interests” are. The phrase generally refers to the deliberations that courts undertake when deciding the type of services, actions, and orders that best serve a child.
Best interest determinations are generally made by considering a number of factors related to the child’s and the parent or caregiver’s circumstances, and capacity to parent, with the child’s ultimate safety and well being as the paramount concern. This is a fact well buttressed in Article 53 of the Constitution of Kenya.
It is, however, more prevalent in cases where a dispute in custody of a child arises. What, however, motivates this piece is how to look at a child’s best interest in the case where the minor is in conflict with the law.
Two case laws suffice. One, a minor is expelled by a school in Nairobi for taking biscuit laced with marijuana – Nairobi High Court Petition 84 of 2014. The other is a case of two minors who allegedly engaged in a consensual sex against the provision of the Sexual Offences Act – Eldoret High Court Petition 6 of 2013.
The case in Eldoret arose from conviction by a Magistrates Court sitting as a court of first instance, Criminal Case 1901 of 2013, where a 16-year-old boy was accused of intentionally and unlawfully causing his genital organ to penetrate the genital organ of a 16-year-old girl contrary to Section 8 (1) and Section 11 (1) of the Sexual Offences Act.
Section 8 (1) of the Sexual Offences Act reads thus: “A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement”, while Section 11 (1) of the same Act provides thus, “Any person who commits an indecent act with a child is guilty of the offences of committing an indecent act with a child and is liable, upon conviction, to imprisonment for a term of not less than ten years.”
The charge was read and explained to the boy to enable him understand the case. He tried to mitigate by saying that the girl was his girlfriend and that the impugned action took place in their (his father’s) house. He was in essence saying that the action was consensual. The court would hear none of it. He was convicted and sentenced to ten years at the Eldoret Juvenile remand facility. No reason was given as to why the girl was never tried since she too took part in the impugned action.
Instead of going into an appeal at the High Court, he preferred, through his lawyer, to file a constitutional petition to challenge the constitutionality of Sections 8 and 11 of the Sexual Offences Act used to convict him in so far as it discriminates against boys contrary to Article 27 of the Constitution. The desired result of his approach was to have the original conviction to be set aside.
In this case, the court went to great lengths to consider various aspects of constitutional interpretation. It also took into account a wide range of issues and provisions and, textually, it would be difficult to fault the decision. It is further noted that the court explained itself and took into consideration different approaches to constitutional interpretation and explained why it was of the view that this was not a proper case to apply the purposive interpretation of the constitution in view of the clear language applied in Articles 27 and 53 of the Constitution.
Legal paradox
But that is just how far my agreement goes. Contextually and conceptually, the decision flies in the face of the clear constitutional principles, especially taking into account the nature of the case that was before court.
It is rather paradoxical that whereas the court quite rightly established that there was a basis for the boy to complain about the girl being left out by the Magistrates Court, and never found sufficient reasoning as to why the girl complained after what was a consensual activity, the High Court Judge in Eldoret, Justice Fred Ochieng’, filled that vacuum of evidence with his reasoning hence condemning the boy to a ten year jail term:
“Based on the facts of this case, as alluded to by the learned Director of Public Prosecution, the Petitioner did not lodge any complaint against the girl with whom they had had consensual sexual activity. Therefore, that is the reason that has been proffered for not having also brought charges against the girl. Whilst that may or may not be the reason which consciously led the prosecution to decide to only charge the petitioner, I still think that it cannot be a complete answer. My said thoughts are based on the fact that if two minors were genuinely, freely and consciously engaging in consensual sexual activity, it would be unlikely that either of them would thereafter lodge a complaint against the other, in respect to an act that they had consented to. A complaint against the other person connotes some element of coercion or deceit employed by the party complained against. In those circumstances, the activity would not have been wholly consensual…”
This was the major handicap and turning point in the decision. I call it a major handicap because right from the beginning of the said judgment, the learned judge had observed that the petitioner was minor and could not of his own, institute legal proceedings. He therefore preferred to institute them through his lawyer. The converse interpretation is also that the girl, also being a minor, could not have raised the legal complaints in person and was assisted by the parents or a guardian (or best friend). So on what basis did the Judge expect the boy to lodge a complaint against the girl? Was the Judge citing the failure to be on the boy’s parents? Most likely!
Had the court taken this major viewpoint further and considered it in light of other constitutional provisions and major international instruments that Kenya is party to, the decision would undoubtedly have been different and the jurisprudence on the best interest of the child would have been more progressive in view of the provisions of Article 53 of the Constitution.
The Judge seemed on this matter not to have called the girl to even give a slight comment on the matter so as to be properly convinced that the complaint was borne out of pressure from parents or not, in a case to prove whether the consent was genuine or not. While the procedure at the petition does not compel a court to do that, we need not be blind to the fact that a court of law is not a robot. A court can on its own motion summon the girl if such summon would shed more light into what are gray areas in evidence.
It would have even been important to find out the overall psychological effect of jailing the boy out of the acts they engaged in consensually. The learned judge restricted himself to procedure, which in my humble opinion, amounted to going purely technical with a matter of a minor.
It is granted that the English law is conservative. Conservatism, however, is too often a welcome excuse for minds that are loath to adapt themselves to fast changing conditions. Justice Fred Ochieng’, with due respect, refused to take judicial notice that the number of adolescents engaging in consensual sexual activity is on the rise.
Generally, it is undesirable to dismiss an application or a suit that seeks enforcement of a constitutional or fundamental right of a minor on a technicality without interrogating the matter on its merit. The court should instead have conducted a detailed examination of the material presented by the petitioner before making a decision whether to dismiss the petition or not.
Had the court considered the application and subsumed its own thinking as response to the gray areas, perhaps it would have come to a different conclusion. In retrospect, it is important to note that a minor cannot consent.
The Court of Appeal in the case of Rashid Odhiambo Aloggoh & 245 others vs Haco Industries Limited held that it was undesirable for the High Court to summarily dismiss a petition (or any application) that seeks the enforcement of fundamental rights. In essence, the Court of Appeal meant that the Court ought to first join the issues to prove the facts on which the alleged contravention was based before determining whether the material facts amount to infringement of a fundamental right or not. It is argued here that had the court taken the approach advanced herein, the question that would have been formulated for determination would have been different from the rather simplistic question of whether or not a citizen is entitled to seek enforcement of Article 27.
A clear case of contrast is the Nairobi High Court Petition 84 of 2014. This matter concerned RCK (a child, 17, suing through her mother, vs KSI, the Respondent School) who was expelled from the school that offers both the North American High School Diploma as well as the International Baccalaureate (IB) Diploma courses. RCK joined the School on August 6, 2008. She was in Grade 12, which was her final year of high school. She was expected to complete her education in May 2014 and thereafter, if successful, proceed to university.
However, on January 14, 2014, RCK proceeded to the washroom with her friend in readiness for a school trip after her father dropped her off. In the bathroom, her classmate informed her that she had a brownie which contained marijuana, also referred to as “weed”. RCK took a bite of the biscuit. Her classmate consumed the greater part of it. After they left the washroom, a teacher, SR who was in the washroom at the material time and overheard and recognised their voices soon confronted them. The evidence found the girl being expelled, thus rise to the petition against the School.
At the hearing of the matter, Justice David Majanja looked at the material evidence before the court and indeed found that the girl had violated a school rule, a violation that went deep into committing an offence against the laws of Kenya, but he still found in the best interest of the child considering that the girl was just about to finish her high school.
Taking all the circumstances, he declined to grant the petitioner’s prayers, one of which required the court to quash the expulsion and reinstate the girl in school immediately. In view of what the school had stated that it was able to consider, he made the orders that set aside the order of expulsion and substituted it with a suspension on terms that would allow the girl to do the exams from home and, if successful, proceed to university.
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