Global Scrutiny on Juvenile Justice

A legislative amendment by the New South Wales (NSW) government in Australia, introduced on Tuesday, 18 November 2025, has ignited a fierce debate on children's rights and criminal responsibility. The new bill alters the application of *doli incapax*, a long-standing legal principle that presumes children aged 10 to 13 are incapable of forming criminal intent. This move is seen by critics as a loophole that could lead to higher rates of child incarceration, prompting a closer look at how different legal systems, including Kenya's, balance child welfare with accountability.

The NSW 'Loophole' Explained

The core of the controversy lies in a new provision that allows prosecutors to rebut the *doli incapax* presumption if they can prove "beyond reasonable doubt that the child knew... their conduct was seriously wrong". Crucially, the law permits a court to make this determination based on the circumstances of the crime alone, "without or despite" other evidence of the child's intellectual or moral development. This change was prompted by data showing a dramatic fall in conviction rates for this age group, from 76% in 2015-16 to just 16% in 2022-23, following a 2016 High Court decision that strengthened the requirements for rebutting *doli incapax*.

Associate Professor John Kasinathan, a forensic psychiatrist at the University of New South Wales, heavily criticised the amendment, stating that ignoring a child's intellectual and moral development is contrary to the very essence of the *doli incapax* principle. The government, however, argues the reform addresses a gap where some children engage in risky behaviour without facing intervention or support.

Kenya's Progressive Path on Child Justice

The developments in Australia stand in contrast to Kenya's recent legal reforms. With the passage of the Children Act of 2022, Kenya significantly raised its age of criminal responsibility. Under the new law, a child under the age of 12 cannot be held criminally responsible for any act or omission. This was a substantial increase from the previous age of eight, as stipulated in the Penal Code.

Furthermore, the Kenyan law retains a form of the *doli incapax* presumption for children between 12 and 14 years old. For this age group, the law presumes they are incapable of differentiating right from wrong unless the prosecution can prove otherwise to the court. This approach aligns with recommendations from the UN Committee on the Rights of the Child, which has advocated for a minimum age of criminal responsibility of 14 years.

East African Regional Context

Kenya's neighbours in the East African Community have also established legal frameworks for juvenile justice. In Uganda, the Children (Amendment) Act of 2016 sets the minimum age of criminal responsibility at 12 years. In Tanzania, the Law of the Child Act of 2009 established a separate juvenile justice system, including juvenile courts, to handle cases involving children in conflict with the law, reflecting a regional trend towards specialised child justice.

A Divergence in Philosophy

The NSW amendment suggests a move towards a more punitive approach, focusing on the act of the crime itself rather than the developmental capacity of the child. Critics, like the Justice and Equity Centre in NSW, argue this will push more children into the justice system and ignore expert advice favouring diversionary programs. In contrast, Kenya's 2022 Act emphasizes diverting children who commit minor offences away from the formal court system and towards community-based solutions.

The international standard, as guided by the UN Convention on the Rights of the Child, encourages dealing with child offenders without resorting to judicial proceedings wherever possible and using detention only as a last resort. The debate sparked by the NSW law highlights a critical global conversation: whether the primary goal of juvenile justice should be punitive or rehabilitative. As Kenya implements its newer, more welfare-focused laws, the outcomes in NSW will serve as a crucial case study on the impact of lowering the threshold for criminalizing children.