1. Volume1,Issue7•July-September201631
Hackers gain access and control
over the website of another per-
son or organization, change the
content of website in order to fulfill
a political objective or for money.
The Kenya Police service and
Central Bank of Kenya websites
have been hacked in the past and
their content changed by mali-
cious hackers.
The internet therefore is a hotbed
of myriad crimes. The question
however, is whether Kenya has
the capacity to detect or otherwise
prevent a cyber crime. The law that
governs cyber laws in Kenya is
the Information and Communica-
tion Act Cap 411A albeit vaguely
considering the complexity of the
nature of cyber crimes globally.
It is the opinion of this author that
due seriousness was not applied
when drafting CAP 411A because
only a small part of the Act deals
with cyber crimes (Part VIA). It is
a flagrant display of ignorance as
to the damage these crimes pose
to individuals and society at large.
An example is the slammer virus
back in 2003 that blocked Seat-
tle’s 911 services in the US and
forced airlines to cancel flights.
The virus multiplied in seconds
and took over 1 Billion$ to repair
damages. To this day there are
remnants of the 13 year old vi-
rus globally. In 2012 hackers ac-
cessed and disrupted the Iranian
nuclear plant almost causing over-
heating of the nuclear rods that
would have exploded and killed
thousands.
These are just but a few exam-
ples of devastating attacks that
have been successfully launched
against society, there are many
more out there and Kenya cannot
ignore the present and real dan-
ger that faces all computer and
internet users.
To quote one of our own cyber
security experts, ‘There are two
types of users be it individual or
organizations, those that know
they are being hacked, and those
that are being hacked’. This grim
statement by the CEO of STHX
Consultancies, a Kenyan cyber
securities firm, is not in any way
shape or form alarmist, it is a rep-
resentation of the reality on the
ground.
He has seen all forms of breach-
es in our country, and posits that
much more needs to be done
soon to get our guard up.
Mr. Kibuna is an Advocate of the
High Court of Kenya
Child Law
By Sally Ngugi
T
he Kenyan juvenile justice
system is key in addressing
and dealing with child and
youth offenders. It addresses
this mandate through combined
efforts of its main stakeholders
namely the police, court and cor-
rectional institutions.
If the court finds that a juvenile has
a case to answer and the court is
satisfied as to his/her guilt, the
court may deal with the case in
one or more of the following ways:
(a) By making a probation order
against the offender under the
provisions of the Probation of Of-
fenders Act (Cap. 64);
(b) By committing the offender to
the care of a fit person, whether a
relative or not, or a charitable chil-
dren’s institution willing to under-
take his care;
(c) If the offender is above ten
years and under 15 years of age,
by ordering him/her to be sent to
a rehabilitation school suitable to
his/her needs and attainments;
(d)In the case of a child who has
attained the age of 16 years deal-
ing with him/her, in accordance
with any Act which provides for
the establishment and regulation
of borstal institutions;
(e) By ordering him/her to be
placed in an educational institu-
tion or a vocational training pro-
gramme;
(f) By ordering him/her to be
placed in a probation hostel under
provisions of the Probation of Of-
fenders Act (Cap. 64);
(g) By making a community ser-
vice order.
It should be noted that no child
offender shall be subjected to cor-
poral punishment
Article 53 of the Constitution pro-
vides that every child has a right
not to be detained, except as a
measure of last resort, and when
detained, to be held for the short-
est appropriate period of time;
and separate from adults and in
conditions that take account of the
child’s sex and age.
Among the challenges with re-
gards to children in conflict with
the law is the access to justice.
The Children Act Sec 77. (1)
Provides that “Where a child is
brought before a court in proceed-
ings under this Act or any other
written law, the court may, where
the child is unrepresented, order
that the child be granted legal rep-
resentation”.
Legal Representation
However adequate legal repre-
sentation especially for the chil-
dren that cannot afford an advo-
cate is a major issue. The current
practice is that where a minor has
no legal representation, the case
will be repeatedly mentioned
until a pro bono advocate or a
nongovernmental organization
offers legal aid. This results to a
minor being held in remand cus-
tody for over the statutory period
of three months. Organizations
Such as the CRADLE, National
Legal Aid and Awareness Pro-
gramme(NALEAP) among others,
give legal representation but the
number of children in need super-
sedes the capabilities of this insti-
tutions leading to delay in access
to justice until legal representation
is granted. Hopefully the enact-
ment of the Legal Aid Act 2016
whose objective is to provide an
affordable, accessible sustainable
credible and accountable legal
aid service at the state expense in
accordance with the constitution,
will help curb this.
Extended Remand
Another notable challenge is that
children are being remanded for
long periods due to the delay or
failure of witnesses to attend court
thereby leading to injustice
More male children and youth
are found to be in contact with
the justice system as compared
to their female counterparts. The
minimum age of criminal responsi-
bility of child offenders is eight (8)
years. The nature of offences vary
from defilement, robbery with vio-
lence, burglary and theft among
others.
It should be noted that the criminal
justice system in Kenya is mostly
punitive as opposed to being re-
storative. All children and youth
offenders who get arrested by the
police are charged in the court
of law and will undergo a full trial
process regardless of the offence,
whether minor or grave. There is
need to have judicial, legislative
and policy reforms that focuses on
restorative justice with the aim of
avoiding future offences. The re-
forms should ensure that the best
interest of the child should be par-
amount as noted in Article 53(2) of
the Constitution. All stakeholders
should be involved and should
be further rained on handling and
dealing with children and youth
matters in a sensitive way.
Children in conflict with the law are
in need of psychosocial support.
In most instances there is a history
of physical or and sexual violence.
This should be incorporated in
probation and after care services
department while enforcing their
mandate in carrying out court or-
ders and promotion of harmonious
and peaceful co-existence be-
tween the child offender and the
victim or/and community through
reconciliation and participation in
crime prevention initiatives. The
department of child services also
plays a key role in ensuring that
the children become responsible
adults through safeguarding their
rights and welfare and ensuring
the implementation of relevant
policies, coordination and delivery
of services.
Ms. Ngugi is a lawyer.
Children in conflict with the law
More male children
and youth are found
to be in contact with
the justice system
as compared to their
female counterparts.
The minimum age of
criminal responsibility
of child offenders is eight
(8) years.