Perils of child offenders in a criminal justice system that ignores them

December 10 is International Human Rights Day, dedicated to commemorating the Universal Declaration on Human Rights. It is an opportunity to examine how governments have honoured their obligations to protect and promote human rights. One of the best lenses to conduct such examination is from the rubric of the juvenile justice system.

Childhood is a stage in human development where all persons are susceptible to deviant behaviour, but some by providence and pronounced guidance are not caught in the intricate yet intimidating web of criminal justice system. It is true when it is considered that children are likely to be offenders because the range of their behaviour that would constitute offence is wide in comparison to behaviour by adults. This poignant fact then requires concerted efforts by actors in a criminal justice system to invest towards ensuring children within its environment are well rounded and grounded individuals.

Against this background, this article focuses on the key aspects of the Kenyan Juvenile Justice system. Kenya is a state party to the United Nations Convention on the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child. Kenya is obligated by these laws to inter-alia guarantee its juvenile justice system is effective, fair, just and humane, and ensure all actors in the system take into account the best-interest of juvenile offenders so that all decisions by these actors are proportionate to the circumstances of the juveniles, and that they do not accrue adverse consequences to juveniles.

Progressive provisions
Commendably, Kenya is one of the first countries to enact a specific law in respect of children, The Children’s Act 2001. The Act replicates progressive provisions in the CRC and the Charter, whose aim is to safeguard children’s rights.

Section 186 of the Act guarantee children offenders the right to fair trial. The right includes legal assistance provided by government and speedy conclusion of cases. This right is elaborated in the Child Offenders Rules within the fifth schedule of the Act that unequivocally provides that cases involving child offenders ought to be handled expeditiously and without unnecessary delay (Rule 12(1). Of relevance are the following Rules that explicitly stipulate thus: The Children’s Court shall complete cases of child offenders within 3 months after they have taken pleas, failure to which those cases case shall be dismissed (Rule 12(2); children shall not be remanded for more than 6 months whenever they are being tried by courts superior to Children’s Court, and if in remand after 6 months, have a right to bail (Rule 12(3); and where children are being tried by courts superior to Children’s Court, the case shall be completed within 12 months from the time they took plea, failure to which the case shall be dismissed (Rule 12(4).

Section 190 of the Children’s Act imposes restrictions on punishment that courts may impose on a child offender. In subsection (1), it states that no child shall be imprisoned, and in subsection (2) that no child shall be sentenced to death.

Section 191 of the Act stipulates the methods a court may use to deal with a child offender whose guilt has been established. These include discharge, probation, committal of offender under care of a fit person, suitable rehabilitation for offenders aged 10-15 years, order to pay fine or compensation, committal to borstal institutions for offenders aged 16 years and above, counselling, placement under educational or vocational institution, and community service.

In a positive trajectory, the 2010 Constitution has a specific provision on children. Article 53 affirms that children’s best interests are of paramount importance in all matters regarding children. The Article proscribes detention of children unless it is as a last resort, in which case it should be for the shortest period of time and the detained children ought not to be held in same facilities as adults. The aim of this Article is to ensure that child offenders continue to receive parental care, have access to education and are not criminally contaminated by adult offenders when in custody.

Challenges  
In the context of this positive legal milieu, one would expect that Kenya’s juvenile justice system is functioning exceptionally well and has evolved rich jurisprudence that advances children’s best interests. However, the system is dogged by vast challenges that inevitably violate pertinent Constitutional and Children’s Act provisions.

First, there are few designated Children’s Courts to determine children’s cases. As a result, children cases are heard in ordinary courts and have to contend with other cases for earliest hearing dates in the courts’ overscheduled master dairies. A prime example of this is the situation in Nairobi County where children’s cases have to compete for dates at Kibera, Makadara and Milimani Law Courts, which are forever busy, such that hearing happen later than six months from date children are apprehended – this is outside the timeframe envisaged in Rule 12 of the Child Offenders Rules.

Second, given the adversarial nature of Kenya’s justice system, it follows that access to legal aid is an indispensible need in children cases. Section 77 of the Children’s Act gives courts the discretion to order unrepresented child offenders to be provided with legal representation during court proceedings. However, there is no national legal aid scheme because the Kenyan government has been very deliberate in its effort to put one in place, and the Law Society of Kenya has not taken up the mantle to address this massive need.

Confronted with this situation, judicial officers presiding over cases wherein child offenders are unrepresented request lawyers in their courts to provide legal aid to unrepresented juvenile offenders on pro-bono basis. Often lawyers take up these cases to maintain bar-bench camaraderie. Ruefully, some of these pro-bono lawyers do not provide sterling services to their child clients as they fail to appear in court and seek unnecessary adjournments, delaying conclusion of cases.

Third, delays in concluding cases involving child offenders raise the following solemn concerns. What is the best means of rehabilitating offenders who, at the time of committing offence, were minors and are 18 years at the time of sentencing? What form of restitution should be accorded to such offenders where courts err in sentencing them, resulting into dire consequences to the offenders – incarceration and death sentences? In the event such offenders successfully appeal against erroneous sentences, how can they be successfully reintegrated into society bearing in mind the stigmatisation and victimisation the society at large casts upon convicted persons?

The Kenyan justice system continues to grapple with these concerns that remain unresolved. In the case of “Mwata Mwachinga Mwazige v Republic [2014] e KLR”, the appellant was a minor when he was charged with the offence of murder, and at the time of sentencing he was over 18 years. The trial court sentenced him to death. At the time, he successfully appealed against this sentence as he had been in custody for 6 years. In the case of “Joseph Kirubi Kamau v Republic [2012] eKLR”, the appellant was a minor when he charged with the offence of defilement, and at the time of sentencing he was already 18 years. The trial court sentenced him to 20 years imprisonment. He, as well, successfully appealed against this sentence as he had been in custody for 2 years.

While it is a relief that in these cases appellate courts quashed the sentences imposed by the trial courts, one cannot help but wonder how the appellants picked up the pieces of their lives after their time in custody. Of particular significance is under what conditions the appellants were held in custody pending appeal and the impact the custodial experience had on them as young adults.

The Mwazige and Kamau cases bring into focus the specific philosophical intention of the criminal justice system, and how to attain a delicate balance of these intentions: whether it is rehabilitation or desert, assistance vs repression and punishment, reaction according to the merits of an individual case vs reaction according to the protection of society in general, deterrence vs individual incapacitation. The case of “Denis Kirui Cheruiyot v Republic [2014] eKLR” demonstrates the overwhelming need for courts to strike this balance.

In this case, the appellant was 15 years old when he was charged with murder. It was alleged that he was drunk when he committed the offence. The trial court [erred in law] sentenced him to life imprisonment [rather than deal with him as per the methods stipulated in Section 191 of the Children’s Act]. At the time of lodging his appeal, the appellant had been in custody for five years. The appellate court acknowledged this error in law, but, regrettably, neither inquired the conditions under which the appellant had been in custody, nor whether the custodial sentence induced remorsefulness in the appellant so as to release him or impose appropriate sentence.

In the words of the court, “The appellant has spent 5 years serving a life sentence; we do not however know whether that sentence was done as per the provisions of the Children Act or the Penal Code under which he was sentenced… due to the gravity of the offence, and the current age of the appellant, he cannot be released to the society without being brought to terms with the consequences of his action or omissions by a custodial sentence.”

Fourth, in the absence of a diversion programme, a significant proportion of children, particularly boys, are plunged into the intimidating criminal justice system. In this regard, children’s organisations remain deeply concerned that boys are increasingly being apprehended and charged for the offence of defilement under the Sexual Offences Act for having “consensual” sex with their teenage girlfriends.

Important considerations
The need to generally make our juvenile justice system efficacious cannot be gainsaid. The judicious words of Frederick Douglass, an African American social reformer, “it is easier to build strong children than to repair strong men,” ring true and ought to impel us to urgently address these aforementioned challenges.

One step in the right direction would be to incorporate diversion in the juvenile justice system. The programme would provide an appropriate means of dealing with children offenders in a viable, fitting and constructive manner outside the formal justice system.

There is already strong recognition by the courts for a need of diversion programme. In the “C.K.W v. Attorney General & Another [2014] e KLR” wherein the sixteen-year-old petitioner alleged discrimination because he had been charged under for the offence of defilement under Sections 8(1) and 8(4) of Sexual Offences Act while the complainant, another sixteen-year-old had not been charged for defiling him, the court noted, “I send out a challenge to professionals in matters of children psychology and in the overall wellness of children to conduct appropriate studies in Kenya, with a view to ascertaining if there are mechanisms and procedures which could be put in place to offer protection to children whilst simultaneously being proportionate to both the circumstances of the child and the offence.’’

It would also be imperative for the government to establish a national legal aid scheme and diversion programmes expeditiously. To usher these in, Parliament ought to enact the Legal Aid and the Child Justice Bills, and allocate adequate resources for the implementation of the Bills.

Lastly, the Judiciary needs to create more specific children-designated courts and work with concerted effort with other justice actors so that these cases are heard and concluded within the timeframes of Rule 12 of the Child Offenders Rules. It should also consciously establish jurisprudence that addresses the aforementioned concerns.