The best interests of the child offender in the context of detention as a measure of last resort : a comparative analysis of legal developments in South Africa, Kenya and Zimbabwe

Abstract

This article explores the interaction between the best interests of the child and the child’s right not to be detained except as a measure of last resort. It examines the normative framework governing the scope and functions of the best interests of the child under international law and the nexus between the concept of the best interests of the child and the right not to be detained except as a measure of last resort. Using legal developments in the juvenile justice systems in South Africa, Kenya and Zimbabwe, the article demonstrates that all these countries have protected both the best interests of the child and detention as a measure of last resort in their national constitutions and, in some instances, legislation. Judges in the three jurisdictions are generally sensitive to the child rights concerned, although South African judges appear to be a step ahead of those in the other two countries. Kenyan courts appear to be following the South African example and have outlawed certain practices. The approach of Zimbabwean judges is not uniform. It is argued that Zimbabwean courts should learn from South Africa and Kenya to ensure the promotion of the best interests of the child offender and protection from arbitrary detention.