Enlivening the Paramountcy of the ‘Best Interests of the Child’ Principle: Kenya’s Supreme Court Judgment

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On 8 September 2023, the Supreme Court of Kenya rendered an epoch-making decision in the Muturi case.

The Court reversed the decisions of two lower courts that had elevated public interest above the ‘best interests of the child’ principle. Unlike the lower courts that adopted a superficial handoff approach, showing excessive deference to the media houses and the state on what constitutes public interest, the Supreme Court deployed the best interests principle to redefine the open justice principle in cases involving children accused of criminal offences.

In sum, the Court held that there are moments when the public interest must bow to the welfare of the child, and this was such a moment.  In so doing, the court ensured that the best interests of the child were at the centre of the dispute resolution and not at the periphery.

Context of the Muturi case

Almost 10 years ago, the appellants who were minors and in a secondary school were presented before a magistrate to face arson-related charges. The respondents (media houses) took photos of the minors and published various stories revealing the full identities of the minors.

Aggrieved by the publication, the appellants suing as the next friend of and on behalf of the minors approached the High Court asking the Court to find that the Respondents violated the right to privacy and best interests of the children.

The court held that although the law protects minors from unwarranted publicity, the same is not absolute and can be limited. Secondly, it found that the publication was in the public interest and thus the appellants could not claim that their rights were violated. Thirdly, the publications were factual without malice. Finally, the appellants did not prove any loss that they suffered from the publication.

Dissatisfied with this decision, the appellants approached the Court of Appeal which upheld the High Court’s decision. Undeterred, the appellants approached the Supreme Court.

While reversing the findings of the Lower Courts, the apex court held that the former erred in ‘raising the status of public interest over the protection and the best interest of the children without properly subjecting the limitation to Article 24 of the Constitution’.

Secondly, the respondents could have run their stories without disclosing the children’s identities. Finally, a court must ‘vindicate and affirm the significance of the violated rights even though’ a petitioner has not presented evidence to demonstrate the loss suffered due to the violation.

Exceptions to the open justice principle

The open justice principle is founded on the premise that “publicity is the very soul of justice.” This means that justice should be administered openly and in the full glare of the public.

The principle guards a democracy from the vagaries of secret courts. The open justice principle in Kenya is enshrined in Article 50 of the Constitution of Kenya which calls for a public hearing, Article 33 of the Constitution of Kenya which provides for the freedom of expression, and Article 34 of the Constitution of Kenya which provides for the freedom of the media.

While appreciating the import of the open justice principle, the Supreme Court eloquently noted that there are exceptions which must be held away from the public glare. The court justified the exception by holding that children are vulnerable members of society and there must accordingly be an effort to prevent further harm to them, even if they have to be processed through the criminal justice system.

“The decision reminds judges that every law must be interpreted and developed in a manner that favours advancing the welfare and interests of the children.”

The court further held that the media can publish stories but that there is no harm if they publish the stories without exposing the children's identities.

Although the court did not express the point at length, there is a fundamental point being made: the apex court calls upon actors to appreciate that the publication of identities of children facing criminal charges amounts to double punishment.

The first punishment happens when the court sentences the child offender, while the second punishment is permanent. A child will face stigmatisation from the general public and even future employers. The Supreme Court is simply reminding us of the adage: once named, it is very difficult to undo the damage. The second form of punishment is disproportionate and amounts to permanent condemnation of the child.

The paramountcy of the “best interests” principle

The Constitution of Kenya adopts the language of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child in recognising that ‘a child’s best interests are of paramount importance in every matter concerning the child.’ The Supreme Court joined the Committee on the Rights of the Child and South Africa’s Constitutional Court in appreciating that the best interest principle is both a guiding principle and a right on its own.

The court noted that this principle must apply to all aspects of disputes involving children reiterating its earlier finding that the principle must be given ‘a flexible and an adaptable meaning’ depending on an individual circumstance. The principle calls for a child-sensitive approach which requires children to be seen as developing beings who are capable of change and need continual nurturing.

In balancing this principle with the public interest that lies in keeping the public informed, the court noted that ‘Again, due to children’s vulnerability on account of their age, their cases cannot be used as pawns to deter others from committing crimes, they ought to be guided, counseled and taught good behaviour and how to steer clear from acts that may bring them into conflict with the law.’

The finding is commendable on several fronts. But most important is the appreciation by the court that the best interest principle requires that the welfare of children must be ‘an extremely important consideration, when ranked against any other competing considerations’.

Put in the words of Former South African judge, Justice Cameron “the child’s interests are ‘more important than anything else’, but not that everything else is unimportant”.

Secondly, although, there is a public interest in informing the public about the happenings in Court as well as the State’s measures in combating crime, courts must distinguish public interest from what is interesting to the public. Media houses often prioritise their own private interests in ensuring that their publications receive the highest viewership. To realise this goal, they publish content that is appealing to the public including photos and other identifying information of children. Guided by the best interests of the child trump, the Supreme Court struck a proper balance by instructing the media houses to publish their stories without including children’s identities.

Vindicating human rights through remedies

Importantly, the Supreme Court held that there is a difference between violations founded on tort and human rights violations. Whereas violations in the former require a plaintiff to provide evidence of loss, a violation of constitutional rights founded on public law is different.

Once a petitioner establishes a violation of a right, the court must vindicate the violated right even though the petitioner has not presented evidence of any loss. In this case, however, the Supreme Court could not award monetary damages to the petitioners because the petitioners failed to include such a prayer in their pleadings before the apex courts. This is because of the time honoured principle that parties are bound by their pleadings and a court of law cannot go beyond the pleadings of the parties.

This is a welcome finding from the Supreme Court. It appreciates the important nature of remedies in public law. Remedies in constitutional litigation go beyond the interests of the parties and are meant to safeguard the Constitution and the Bill of Rights.

Conclusion

The decision is a meaningful addition to children's rights jurisprudence, especially involving children facing criminal charges. The decision reminds judges that every law must be interpreted and developed in a manner that favours advancing the welfare and interests of the children.

The best interest principle emerges as one of the stars of Kenya’s nascent constitution and serves as a constitutional injunction requiring courts to respect and promote children's rights. The decision offers a constant reminder that in publishing stories, the media is required to do so through the prism of the Bill of Rights and must take into consideration the paramountcy of the best interest of the child.