PART I:
1. INTRODUCTION.
The
Juvenile Justice System should be delivered within a comprehensive framework of
social justice that most of all contributes to the protection of the children
and their well being but at the same time maintaining a peaceful order in the
society procedurally. The juvenile justice system should follow a different set
of procedure which is the substance of various statutes touching on the child[1].
From local statutes to international conventions, the children are supposed to
subject to a different set of procedure whenever they are in conflict with the
law as opposed to the procedure adopted for the adults. These procedure are
special so as to enable the justice system to achieve the overall objective of
the Juvenile Justice System, that is, to ensure the promotion of the well being
of the child as well as the physical, moral and psychological growth of the
child pursuant to Article 17(3) of the African Charter
on The Rights and welfare of The Child (ACRWC).[2]
However
the situation of the juvenile justice procedure in Kenya is that which is aimed
at severely punishing the children offenders and in most cases, this procedure
have ended up harming the children and molding them in to
hardcore criminals instead of reforming them. A research done by the
Save the Child Foundation[3] showed
that up to 85% of the children who go through the Kenyan juvenile
system do not deserve to be exposed to the criminal justice system and consequently
more harm than good is done to them.
With
the enactment of the children Act, Kenya is still at an infant stage in
practically following and upholding the various procedure enshrined in the
children Act as well as other statutes and charters that provide such
procedures in delivery o justice to children offenders. The situation in Kenya
is characterized by:
(i) Children
unfriendly institutions of justice.
(ii) Unskilled
personnel in children matters.
(iii) Institutional
care emphasis as the mode of disposal of cases which doesn’t boost the physical
and moral development of the child.
(iv) Blatant
violation of children offender right as enshrined in the 5th schedule
to the children Act.
PART
II
2. BACK
GROUND OF THE RESEARCH.
A
visit to Migori G.K Prison, the remand section on 27/6/2013 revealed a lot of
procedural injustices which are being slapped to the children offenders. A
discussion with the children remandees from Migori G.K prison, Manga Children’s
Home and the Migori and Kehancha judicial staff revealed a lot of unprocedural
justice practices which are in to total contravention of the law and the rights
of these children offenders as enshrined in the Children Act, UNCRC and ARCWC.
It
was a matter of interest as to what could have warranted the children, some as
young as 12 years old, into the institutions in such a squalid condition.
The
research therefore focuses on the various procedural injustices that are being
practiced by the institutions of the justices system; give a comparison of what
is experience in other parts of the country as well as other parts of the
world. The research also aims at giving recommendations as to how this menace
can be efficiently reduced.
2.1. THE
LEGAL BACKGROUND.
The
various procedures that are aimed at protecting the rights of the children in
conflict with the law have been enshrined in several statutes, both national
and international charters and conventions.
In
Kenya, the various statutes that aim to protect these rights are:
v The children Act.
v The Borstal Institutions
Act.
v The Penal Code
Internationally,
the charters and conventions which aim at protecting these rights are:
v The United
Nations Children Rights Conventions (UNCRC).
v The African
Charter on the Rights and Welfare of the child (ACRWC).
v The Beijing
Rules (United Nations Standard Minimum Rules For The Administration of Juvenile
Justice)
There
are also other Non governmental institutions which have come out with the aim
of helping achieve the requisite procedural justice to the children. These
organizations include:
v The
CRADLE: The Children Foundation
v Child Welfare
Society of Kenya (1955).
v Undugu Society
of Kenya (1973).
v African
Network for the Prevention and Protection against Child Abuse and Neglect
(ANPPCAN).
v Save The Child
Organization.
2.2. HISTORICAL
BACKGROUND.
The
protection of the juvenile from the undue processes can be traced back to Ordinance
No. 12 of 1955 which aimed at preventing cruelty and neglect of
children. This ordinance was later followed by the establishment of the Kenya
National Council for social Services (KNCSS) in 1964. The KNCSS was to
co-ordinate among other things, the protection program for the children youth
rights. Later in the early 1990s, the District Advisory Committees(DACs) were
established through a presidential decree and the main aim of the Committees
was to enhance the coordination of the child welfare
activities within the districts.
The
children services were formerly under the Ministry of Gender, Children and
Social Development which later established the Department of Children Services
(DCS) which had offices at the National, Provincial and District levels, the
DCS were headed by children officers of various ranks whose main function is to
ensure the protection of children rights.
In
2003, the National Council for Children Services was established pursuant to section
31(1) of the Children Act[4].
The ratification of the United Nations Convention on the Rights of the Children
(UNCRC) by the Kenyan government[5] led
to the formation of the task force under the Kenya Law Reform
Commission with the view of domesticating the document. The task force, headed
by the High Court judge, was to review and harmonize all the laws relating
to the child and give a feedback on the situation of the rights of
the children in Kenya. It was recommendation of his task force that a new
statute be enacted which shall draw from all the 65 statutes touching on the
child[6].
It was after this that children Act of 2003 was enacted after the
initial rejection if the 1995 draft bill which
was argued to be anti-child draft.
It
was after the enactment of the children Act that Kenya has witnessed
commendable steps in the fight for the protection of the rights of the child in
terms of procedural Justice.
PART III
3. UNPROCEDURAL
PRACTICES AGAINST THE CHILDREN OFFENDERS .
3.1. Unlawful arrests.
The
procedure for arresting a child is well set in Section
18(1) as read with Rule 4 of the Fifth schedule of
the Children Act. This has however been a mere paper
requirement which has been put in practice. Rule 4[7] provide
that where a child is apprehended on suspicion of having committed
an offence, he should be charged in a court of law as soon as
possible and no child should be detained for more than 24hrs. Similarly the
parents and the children officers should be informed immediately a child is
apprehended and they should be present when the child is interviewed or making
statements.
However
the converse of the rule has been the order of the day. The parents aren’t
informed by the police wherever their children are
apprehended. Most juveniles are arrested and locked up in the police cells,
charged in court and their cases administered on without the parents or the
children officer in-charge being informed.
The
children are being subjected to coercion, intimidation and undue
threats by the police wherever they are taken up to make
their statements at the police station. Their parents aren’t called to
witness the taking of the statements.
Similarly,
the children are locked up for unnecessary and unlawful
hours. In the criminal case of R vs Fredrick Ouma Odhiambo[8] ,
a 17 year old was charged with the offence of stealing contrary to Section
275 of the Penal Code. The subject was held in custody for three days
contrary to the 24 hour rule established under Rule 4 of the schedule to the
children Act. This shows a clear violation of the right to a speedy trial
enshrined in the Fifth Schedule[9]
3.2. Contravention of the
principle of proportionality.
The
general principle that the justice system should be that
which affordable as set out in Rule 5.1 (ii) of the Beijing Rules[10] and
Article….. of the Constitution of Kenya has been blatantly violated.
This is in terms of bond/bail. Children are slapped with heavy bond
terms which are at all not proportionate to the offence they
have committed as well as their social status. This has made the
subjects to be held in the remand homes unnecessarily since they
can’t raise the bond slapped on them.
Similarly
, whenever they have been found guilty, the fines or sentences given to
them have in most cases been unproportional
to the offence they committed. This is caused majorly by probation
reports which in most cases are compiled and made in the offices without
actually doing a ground investigation on the subject’s background.
In
the criminal case of R vs Reagan Odhiambo[11],
the subject was charged jointly with an adult for the offence of
Housebreaking contrary to section 304(1) of the Penal Code. Despite the fact
that the subject was remanded at Manga children home, he was held up for an
unnecessary long time, that is, 8 months contrary to the 6 months provided for
in the law. The case was also later disposed off with a commitment to a borstal
institution for three years sentence being slapped on the subject. This clearly
shows an unproportionate in the nature of the offence versus the sentence
awarded taking into account that the same court had given the same sentence to
cases of subjects charged with defilement[12] and
manslaughter[13].
It was only fair that the subject herein be awarded a lesser sentence.
3.3. Harsh
disposition measures.
It
is a general principle of the law that in cases involving the child, even when
found guilty, imprisonment should be the last resort. The court should ensure
that all other dispositions methods are exhausted before the subjecting the
child to a borstal institution.
However,
this has not been the case, The courts are always in a
hurry to finish up the cases and in turn harshly
dispose off the cases involving the children offenders.
Cases which involve offences such as attempted house breaking which has
been stated above[14] have
seen the subject serve up to 3 years in borstal institutions.
Even cases
which involve status offenders which should be diverted have
seen the subjects serve harsh terms in the children institutions.
This is a blatant violation of the law.
3.4. Unlawful detention and remand.
Under
rule 4 of the fifth schedule, it is provided that the
children should be held separately from adults in remand.
In fact, they should be held in children homes. The
reverse is true in most courts. Most children are remanded with
adults at the remand homes.
Some
of these children are directly referred to G.K prisons remand
homes by the court oblivious of requirements of the children Act.
Similarly, the
children aren’t taken for age assessment before any
detention action to enable the court to take the appropriate action.
This
is a complete violation of the general rule that detention should be
a matter of the last resort when it comes to the cases involving the children.
Similarly it is provided that no child shall be detained
for more than 6 months. The child must compulsorily
be released on bond. However, in Kenyan courts, the children can
detain in remand homes with adults and for a period exceeding 6
months.
In
the case of R vs Martin Otieno Oyier[15],
the subject had been charged with the offence of manslaughter contrary to
section 202 as read with section 205 of the Penal Code. The subject was
detained in the police cells for a total of 2 months before being charged in
court. This was an uttermost violation of the subject’s right to a faster
trial. Similarly, the case took a total of 5 years to be completed. This was
done by the court in total awareness of the provisions well set out in the
Children Act[16] as
to the mode of detention of a child and the period for detention. This is a
clear infringement on the clear procedure set out for the detention of a child.
This
mode of remanding children with the adult offenders was also witnessed in the
following cases:
1. R vs
Dennis Odhiambo ( remanded at Migori GK prison)
2. R
vs Jackob Otieno Otieno ( remanded at Migori GK prison)
3. R
vs Daniel Ochieng & another ( remanded at Migori GK prison)
4. R
vs Kevin Okinyi SSeko ( remanded at Migori GK prison)
3.5. Cases are heard in penal courts
instead of children courts.
All
across the country, very many courts have no section for children cases and
consequently, the cases end up being heard in the penal
courts where both adults and children are mixed together regardless
of their vulnerability. This is in total violation of the provisions of
the Beijing Rules[17] that
the privacy of the child is a matter of high priority and therefore the
children right to privacy is infringed whenever they are mixed in the same
court with the adults.
3.6. Violation of the
children right bail.
The
children Act under Rule 10 of The Fifth Schedule[18]provides
that a child should not be remanded for more than 6 months. However, the
children are held up for longer periods and without any
valid reason. In the aforementioned case of R Vs Martin Oyier[19], the subject
was held in custody for more than 2 years. The law provides that
after being held up in custody for more than 6
months the child should be compulsorily is released on bond. This
was even done after the precedence set out by Justice K. J Rawal in the case of
Republic Vs O where she stated: “The Act[20] was
enacted to make specific provisions in respect of children who, in
my humble view, must be considered as a special class of the
society………………….. There’s no reason at all why a child should not be
released on bail even on free bond.” This
shows that the subject’s right to bail was just deliberately infringed by the
institution which ought to have guarded it.
3.7. Violation of right to
information.
Every person
and every child has aright to legal information and
the children should be afforded all the available and
proper b legal advice with regards to their cases.
The
children are however harassed in the courts and no
necessary explanations made to them. For example, their
right to appeal in the high court as been enshrined in rule 9 of
the fifth schedule[21] is
seldom explained to them. This has led to a continued prejudice against
the children .
Similarly,
in most cases, the children are always not given the
advice with regards to the consequences of pleading
guilty. This has made the children to unnecessarily be subjected to
undue pressure which makes them to plead guild unaware of the consequences of
such plea. In the aforementioned case of R vs Fredrick Ouma Odhiambo[22],
there were no records of any explanation that was made to the child as regards
the consequences of pleading guilty even after him(the subject) pleading
guilty. This means that the right to information that is guaranteed to the
child was violated and the procedure as to how a plea of guilty should be
recorded was highly contravened
3.8. Conviction without
probation reports.
The
law requires that no child should be sentenced without probation report being delivered on
the offence. A copy of the probation report is
to be supplied to the subject. However, in most cases, the
probation reports are delivered to the court and a
sentence is delivered without the child being made privy
to the contents of the report. This is in total disregard to the law since the
child should be given time and opportunity to get to
know and respond to the contents of the probation report.
In
other extreme cases, the children are convicted without a
probation report being delivered at all.
3.9. Undue harassment by
the prosecution.
In
most cases, the subjects are being unduly influenced by
the prosecutions case. This is done as t the court remain
silent and watch as the children are unduly influenced
to their ( child) detriment.
The
prosecution continually delays the production of witness statements and
the documents that they wish to rely on. This is to the
disadvantage of the child who may even conduct
the whole trial without even knowing the contents
of the witness statements and exhibits. The court doesn’t
even take time to explain to the subject the importance of being
privy to witness statements and exhibits. This negatively affects
the case of the subject.
Similarly,
in most cases, with a view of frustrating the subject, the
prosecution often asks for adjournments as well as make request
to amend the charges and this is meant to tire up the child so
as to give in the case.
In
the aforementioned case of R vs Martin Otieno Oyier, the subject always made
complaints to the court that he was being unduly harassed by the police at the
police cells where he was being held. The prosecution also took a long time (2
years) after the commencement of the trials to provide the subject with the
witness statements. This was to the disadvantage of the subject’s case and also
negatively affected the administration of justice in this particular case.
3.10. Non observance to gender
sensitivity.
The
children should be treated with care with respect to gender lines.
Female subjects should be at all times under the
care of female police and judiciary staff and vice versa. However,
in most cases , the gender sensitivity isn’t put in to question
whenever the children are brought within the justice system. The female
subjects are interrogated by male officer and vice versa. Female subjects are
arraigned before male magistrates even when in the same
court there’s female magistrate who can deal with the case. This may
make the subjects feel shy and conceal certain vital information which may help
in the delivery of justice.
PATRT IV
4. COMPARISON
WITH OTHER JURISDICTION.
The
menace o f undue procedure being employed on the
children offender is a countrywide phenomenon and all
across the other courts in Kenya, there have been a negative reports as to the
justice delivered to the children. This is experienced from the
courts of all jurisdiction all Kenya.
4.1. Similarities
4.1.1. The
denial of bail to children offenders
The
denial of bail to the child offenders has been a common phenomenon in the Kenya
courts. In appeal case R vs O, Rawal J.
remarked that: “The Act was enacted to make specific
provisions in respect of children who, in my humble view, must be
considered as a special class of the society… There’s no reason at
all why the child should not be released on bail even on
free bond. I direct, in the premises that the accused be released on free bond.” This
was after the child offender, who was accused of murder, was denied
bail by the trial court b simply because the offence was a
capital offence. The child, in fact had been held up in custody for more than 6
months.
4.1.2. Long
detention of subjects
The
most common of all injustice that is widespread is the child being
held for hours exceeding 24 hours. The police unnecessarily detain
the subjects without informing the parents of the child or
even seeking the leave of the court. In the of R v. Edga
Lizaria[23],
a child had been held up in police cells for 8 months before
being produced in court. The judge remarked: “ at the end of the
day, it is the duty of the courts to enforce the provisions of the
constitution or statutes, otherwise, there would be no reason for
having those provisions in the first place. In this appeal, the
police violated the constitutional rights of the
minor…………………when he was detained for 8 months ; the appeal must
succeed on that ground alone.”
However, there
are other commendable efforts and plans that have been adopted in
other jurisdiction across the world-these include:
4.2. Differences
4.2.1. The
set up of children ombudsman in Norway and U.S.A .
An
ombudsman is lightly translated in to a commissioner of rights. I n
Norway and U.S.A, an office of Children Ombudsman has been
established to ensure that all case of children rights
violation are dealt with and appropriate measures are
taken. This improved step towards ensuring that no child is
victimized on grounds of his status as a child. In these countries, the
children ombudsman is tasked with the duty of ensuring that
among other tings that the right of the children offenders
isn’t violated at any stage of the juvenile justice system.
4.2.2. Diversion
initiative in South Africa and Sweden.
This
is an initiative that has even been tried in the country but has been in vain.
Diversion of the status offenders is an is an
initiative where the children case that can be effectively
dealt with at other institutional levels e.g. family level, clan level e.t.c.
are diverted back to such institutions instead of being registered in the
courts. In these countries, there’s a clear framework and a threshold to
meet before a juvenile case is instituted in the courts. The
cases which haven’t met the threshold are diverted from the courts. This helps
reduce these cases of children rights violation.
PART
V
5. EFFORTS
BY THE CONCERNED INSTITUTION TO REFORM
There
has been commendable efforts displayed by the institutions directly in touch
with the procedural justice system menace to reform and these reforms include:
5.1. The judiciary
5.1.1.
Establishment of children’s court . The judicially has expanded the
network of the children’s court country wide and almost
each court right now has a section reserved for the
children. This shall ensure that the requirement as to an expedite
justice to the children is met. The court deals specifically with the children
hence the subjects will not be victimized as witnessed when they are in the
same court with the adults and consequently their vulnerability is put to
check.
5.1.2. Training
of the judges –
The judges and magistrates are being given special supplemental training by the
judicially as regards th3 handling of children cases. They are taught on the
need to implement the provisions of the children’s act and to unsure that they
deliver justice in a manner that promotes the welfare of the child offender.
5.2. The police
The
police reform has brought a wave of change with regards to the procedure they
employ in dealing with the children. In most stations presently, there’s a desk
specifically reserved for the cases involving a child. This shall help minimize
any prejudice and any endue victimization of the child offender.
These
desks are also manned by qualified police and of both genders so as to ensure
that there’s no discrimination or harassment based on the gender of the child.
PART
VI
6. RECOMMENDATIONS
With
regards to the various rights violations that have been listed above, the
following recommendations can be drawn:
i) Institutional
reforms and training
The
current wave of reforms carried out in the judiciary as well as the police department
should be enhanced and also oriented towards improving the justice delivery to
the child. The police department which has posted the highest degree of
harassment to the children offenders should be reformed and any police officer
with a history of having molested or harassed a child to be subjected to the
appropriate disciplinary actions.
Similarly,
the judicial staff should also be given a special training with regards to how
to interpret issues pertaining to the child. The judiciary should also be
trained on the need of having detention and imprisonment as measures of last
resort when handling the children cases. The judges and magistrates should also
be equipped with the skills that will help them make decisions that would help
promote the well being of the subjects rather than harm them
ii) Creation
of more juvenile institutions
At
present, Kenya still lacks adequate children institutions. In fact this is what
has caused the frustration where children are mixed with the adults in these
squalid institutions. There are few children courts, children remand homes and
borstal institutions.
For
example, the Manga Children home in Nyamira serves a total of three counties,
that is, Migori Homa-Bay and Kisii counties. This means that it is serving over
15 courts. This clearly shows that it is overwhelmed by the mass number of the
juveniles it hold. Similarly, the Shikusa Borstal Institution serves the whole
of Nyanza and Western Block of Kenya. That is roughly more than 25 courts being
served by this institution. This paints the juvenile institutions to be
extremely overwhelmed by the number of children they are to serve. The only
cure is establishment of more juvenile institutions since if the matter goes
unaddressed, the procedural injustices to the child shall automatically
resurface.
iii) Implementation
of the diversion programme.
The
diversion scheme should be fully implemented to ensure the reduction of the
cases that are reported in the court and also to minimize the number of the
juveniles who come into contact with the justice system. This shall obviously
reduce the cases of violation of the children offender rights
iv) Encouragement
of the advocates to provide pro-bono services to the children
Because
of their vulnerability, the children should be accorded legal representation.
However, due to their financial incapability, they are unable to afford the
legal fees. The government should therefore put in place a mechanism that
will encourage the advocates to provide pro-bono services to the
children offenders so as to enable them get the best out of the justice system
v) Empowerment
of the county children offices
The
current state of the county children offices is characterized by the few
personnel, inadequate funds, larger territorial jurisdiction and lack of
adequate facilities. These factors have made it a near impracticable to
effectively man their areas of duty and to effectively ensure the
implementation of the Children Act by the concerned institutions. That means
that they can’t properly champion the rights of the children offenders.
These
children offices should therefore be empowered by the government by
providing them with adequate funds, hiring of more personnel and improvement of
their facilities. This shall help them effectively carry out their duties
No comments:
Post a Comment