Listen to thisKenya is set for reform in the field of juvenile justice as a comprehensive Children's Bill is expected to be debated in parliament this year. Ann Skelton recently led a project identification mission on juvenile justice in Kenya, at the request of the Royal Netherlands Embassy in Nairobi. In this article she highlights some of the findings of the mission.
Background
The mission to Nairobi coincided with COMESA – a commercial trade
gathering of Eastern and Southern African States. For this special
occasion, many street children had been rounded up and were in custody
The juvenile remand home at Kabete, designed for 80, was housing 360
children (the usual population being 250 children). It has no running
water or sanitation, and no programmes. Ironically, to impress the
foreign delegates at COMESA, the Kenyan government had put up a special
fountain in Nairobi. Water for visitors to look at, but none for
children in the remand home to wash with!
The context
Juvenile crime in Kenya is firmly rooted in poverty. 80% of children
appearing before the juvenile court are street children, some arrested
for committing crimes, and some taken in to be 'processed' by the care
and protection system. Free and compulsory education, once provided for
Kenyan children, is no longer a reality, and this is seen to be a major
cause of children conflicting with the law.
The Kenyan criminal justice process for children (both in current and
future law) is mostly benign, focusing on “rehabilitation" and “education" rather than on punishment. Even the current law does not use
the terms “conviction" and “sentence", imprisonment is rarely used, and
children do not get criminal records. These features indicate a leaning
towards welfarism, the danger being that in reality the system may be
far less benign than it seems. Children are not sent to prisons “but
the alternatives to imprisonment may be equally damaging.
Although the care and protection system is conceptually separate from the criminal justice system, in practice the two systems have begun to merge. In Nairobi both groups of children are picked up off the streets by police and held in police cells. At court they are kept together in the same holding cells, and share the benches in the courtroom. Children from either group might be remanded temporarily back to the police cells, or might be sent to the Juvenile Remand Home. Once there, no distinction is made between the two groups of children. The experience of all the children is one which traumatises and hardens them.
While the new Children Bill states that in residential facilities children in need of care and protection will be separated from children accused of crimes, Kenyans believe that this will be difficult to achieve in practice without significant reorganisation and expenditure.
Arrest or apprehension
There is no specialisation within the police regarding arrested
children. Commonly, the majority of children are held in police cells
for the 48 hours between arrest and the first appearance in court.
Rarely do police contact parents or guardians during the first 48 hours
after the arrest to inform them about the first court appearance.
Unnecessary delays occur because the court then postpones the matter for
a few days, sending children back to the police cells, so that they can “point out" their parents.
Court
At court, children in need of care and protection and children accused
of crimes are treated similarly. Although the officers of the court may
see the distinction between the different groups of children, it is
unlikely that the children themselves would be able to discern this
difference.
Kenya does not have a separate professional prosecution service criminal cases are presented by police prosecutors. Those prosecuting and investigating juvenile cases are often junior members of the force.
People in Kenya working in the child rights field are concerned about the length of time elapsing between first appearance and conclusion of cases. There are no official time limits (although Bill will change this), and with over-crowded court rolls, cases tend to drag on. This is particularly worrying where children are being held in the Juvenile Remand Home, or where those 15 years and older are held together with adults in adult remand centres awaiting trial.
Legal representation of children is rare, and there is currently no state-paid legal aid system. The new Children Bill does seem to offer some assistance to children who cannot afford lawyers, although how extensive this will be and how it will be funded remains to be seen. People working in the field are sceptical about the likelihood of a fully-fledged legal aid system for children. On the positive side, an NGO called Children Legal Action Network (CLAN) sees the legal representation of children as an important cause, and some lawyers in private practice have already embarked upon such work.
Positive factors
Kenya has a sound legislative framework for the administration of youth
justice. Currently several different laws have to be read
simultaneously, but this will be improved by the introduction of the
Children Bill, which is also more compatible with the Convention on the
Rights of Children and other international instruments. The legal
framework supports Juvenile Courts, although such courts are not really “separate" – Nairobi is the only place in Kenya where a completely
separate court sits as a juvenile court at present.
Another favourable aspect is that imprisonment is rarely used, and will disappear altogether under the new law. In addition, children do not get criminal records, which eases their reintegration as productive members of society. The prevalence of serious or violent crime amongst Kenyan children is very low. A difficulty, though, is that poverty-related crimes (the majority) are amongst the most difficult to prevent without broad socio-economic reform. However, it is far easier to build and maintain a child-friendly juvenile justice system if there is tolerance towards children in society, which exists in Kenya. Also, Kenya has a range of committed individuals (in both government and non-government circles) who are determined to see improvements in juvenile justice. Interviewees were very open to discussing challenges, and a desire for change and improvement was evident.
This feature: Reprinted from Article 40, a publication of the Children's Rights Project of the Community Law Centre at the University of the Western Cape.
