Cherono Tongoi: What you need to know about the age of criminal responsibility in Kenya

Have you ever wondered why children are subjected to criminal proceedings and sanctions despite being under the age of 18 years? This is what you have to know concerning the age of criminal responsibility.

To be held criminally responsible in Kenya, one has to have attained the age of criminal responsibility at the time of committing the act/making the omissions, which amount to an offence under the laws of Kenya.

Although not defined in the Penal Code, criminal responsibility is the mental capacity of a child to commit crimes for which they may be prosecuted and found guilty. Further, the age of criminal responsibility is the age from which a person is considered to have the capacity to distinguish right from wrong and therefore bear the responsibility for their criminal acts.

In assessing the criminal responsibility of a child, courts have considered factors such as the level of education of the child, cognitive ability, domestic and environmental circumstances, age and maturity of the child, nature and seriousness of the alleged offence, the impact of the offence on any victim, and the interests of the community.

Two aspects come to the forefront when the criminal responsibility of a child is discussed.

In order to understand the concept of the age of criminal responsibility, we look into two aspects. The first is incapability to do evil (doli incapax) – this is the age at which a child is deemed as having no mental capacity to commit a crime and thus not criminally responsible.

The second is doli capax – this is the age at which it is appropriate to consider a child liable to prosecution and sanctions for criminal acts or omissions.

In determining the criminal responsibility of children, therefore, of great consideration is the shift in mental capacity. During the tender years, a child is considered incapable of knowing what a crime is so as to commit one, and as they grow, they transition into an age in which they are considered capable of having the knowledge and capable of handling the consequences of committing a crime.

The age of criminal responsibility in Kenya is interpreted in three categories under Section 14 of the Penal Code.

Under Section 14(1), persons under 8 years old are not criminally responsible for any act or omission. The threshold for those older than 8 years but not 12 years old is different, such that the aspect of proof of capacity is introduced as under Section 14(2).

Under this category, to be held criminally liable, there is a need to prove that the child was aware that he ought not to commit the act or make the omission.

The final category under Section 14(3) is with regards to carnal knowledge. A male child below 12 years is presumed incapable of having carnal knowledge. This provision shields male children under the age of 12 years from criminal responsibility of a carnal nature, which means a male of over 13 years can face charges for sexual offences.

The High Court in Republic v EM held that from the wording of the Penal Code, Section 14(2) raises a rebuttable presumption and as such the court has a duty to assess and determine whether the child in question had the capacity to know right from wrong. On the contrary, Section 14(3) is an irrebuttable presumption as the provision does not leave room for proof of capacity of knowledge or otherwise.

The acts are silent on the age of carnal knowledge for female children. The age of consent remains 18 years.

Cherono Tongoi is an advocate of the High Court of Kenya. Email: gtongoi30@gmail.com.