Right to representation and fair trial: Place of the child

By Dennis Ndiritu

The rights of the child had been forgotten for long, until the promulgation of the Constitution of Kenya 2010. This dispensation provides that every child has the right to a name and nationality from birth, free and compulsory basic education, basic nutrition, shelter and healthcare, protection from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour, parental care and protection. This includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. Children are not to be detained, except as a measure of last resort. When detained, they are to be held for the shortest appropriate period, separate from adults and in conditions that take account of the child’s sex and age. Further, the Constitution stipulates that a child’s best interests are of paramount importance in every matter concerning the child.

The promulgation of the Constitution of Kenya 2010 broadened the rights of accused persons, by providing them with inter alia the right to a fair trial, which includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly. Here, “every person” should be construed to include a child offender.

The court of appeal in the case of David Njoroge Macharia v Republic recognised a categorical right to counsel at state expense for all capital offenders but the jurisprudence regarding who should be afforded counsel at state expense is still unsettled. While only a narrow category of individuals is granted a right to counsel at state expense under this decision, the case is instructive in defining what circumstances constitute “substantial injustice.” It also leaves an open question as to whether there are other groups of accused persons for whom counsel at state expense is categorically required. While the court’s opinion in David Njoroge Macharia considered the rights-protective and institution-protective roles of defence counsel, its conclusion that capital defendants were entitled to state-funded counsel was based primarily in international law.

Whereas the Constitution provides that an accused person has a right to a fair hearing, which includes the right to be represented by an advocate, and to be informed of this right promptly, child offenders are rarely informed of this right as is the case with the right to have an advocate assigned to them by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly, thus injustice on child offenders.

The Children’s Act contains numerous provisions that safeguard the rights and interests of children. While acknowledging the considerable effort that has been made in repealing archaic laws that governed children’s issues, there is still a long way to go if aspirations of children in the Act are to be realised. Such include the existence of other contradicting laws, such as The Child Offenders Rules under the Fifth Schedule of the Act, which applies to the proceedings with respect to children who are charged with an offence. Under those Rules, a child charged with murder or manslaughter or other grave crime is not entitled to bail. It further provides that the child can only be detained for six months, after which the child should be released on bail. This is in sharp contrast from the provisions of the Constitution of Kenya 2010, which provides that every accused person has a right to bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons to act or decide otherwise.

Further, by failing to create a legal services department, The National Council for Children Services established in Part 5 of the Children’s Act with the mandate of allocating funds for legal aid, fails to create an enabling environment for the realisation and effective implementation of the Children’s Act. In addition, Rule 4(3) of the child offender rules provides an obligation on the government to set up and facilitate legal assistance to children who are unable to access such assistance, meant to be realised immediately in the best interests of the child, an area still not effectively implemented.

In conclusion, it is evident that the protections in the Children’s Act are presumably not available to child offenders and, despite this abrogation of its duty, the government is yet to acknowledge any steps being taken to redress the infringement of the rights of child offenders and the violation of their right to representation and fair hearing.  ^

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