By Liz Amandla
I remember during my judicial attachment, a minor aged 17 years was put in custody while his case awaited trial. The young boy was not put in a juvenile prison. Rather, he was detained in an adult prison for a whole year until his case was up for trial. This is just one scenario that happened two years ago and I can already see two violations of the law from this. Since 2015, there have been many other cases of minors sharing jail cells which have caught the attention of the media and other child related organizations.
Children who commit offences under the law are not criminals but children in conflict with the law. Their cases are heard in the Children’s Court, which is a branch of the High Court. These cases are always given priority to be heard expeditiously, upon which if found guilty they are sentenced and convicted to serve in juvenile prisons. However, this has not been happening in many cases as these minors have been forced to share jail cells with adults; a finding that has shocked many concerned and has left the minors reeling in the ordeals they’ve faced.
According to Boniface Mwangi, sharing a jail cell with adults is horrifying. He himself has been arrested quite the number of times as a minor. He is the perfect example of a minor who shared a cell with adults. He narrated to Nation Media that minors were forced to do all the dirty work in every sense of the word dirty; they did all the cleaning of the cells including cleaning off human waste. I’m sure there was no kind of sanitation that was observed. Worst of all, these children are molested and no one seems to care or show the slightest concern. All this happens especially for those in police custody awaiting trial.
A sombre case of defilement was reported on 30th September 2017 in a police cell in Murang’a that caught the attention of one Ms Enricah Dulo, a human rights lawyer based in Nairobi. She wants the girl who was allegedly raped by a police officer in the cell to sue the State. The story goes that the girl had been arrested on a Friday and detained as her case would be tried on Monday. The alleged rape was done on Saturday within the adult cells that the girl was detained in. This case could have gone unreported were it not for a male detainee who saw the suspected police officer come out of the enclosure and dispose of a condom he allegedly used on the roof.
Statistics show that every year in the past five years, about 1900 children aged 17 years and below have been convicted of various offences in Kenya. In 2015, the number stood at 2733 while in 2016, the provisional figure stands at 1976 according to the Economic Survey 2017. There has been a decrease in the number of convicts in these last two years. What do these numbers tell us?
These statistics, I believe, are the basis for which a 42 member team from three agencies conduct an 18 month survey in 18 counties and compile a report titled Criminal Justice System in Kenya: An Audit. According this report, the various ways in which minors are treated in the hands of the police are brought to light. The report further highlighted that there were significant delays appertaining to matters relating to child offenders in 2015. The reason for this as Mrs. Esther Bett puts it, is that the court bears the responsibility to ascertain the age of the child in question. Children have no IDs and therefore in the event a birth certificate is not available, it gets harder for the children who are in their teens.
It is also interesting to point out that in matters that concern children alone are heard in the Children’s Court, which later refers them to children’s homes. On the other hand, where a child is co-accused with an adult, the case is heard in the subordinate courts and the children. This is probably the reason why they end up in adult cells in police custody.
One of the recommendations that would assist end this crisis is to have police stations and the courts with children’s cells. This will be crucial as it will prevent molestation of minors and other defilement cases that may arise. Another recommendation is to make police officers proactive in identifying children in police cells and transfer them to children cells with immediate effect. This will only be possible once the said cells are actually in existence.
The Children’s Act was not enacted in vain. It is meant to protect all children, regardless of their current status. The survival and best interests of the child as portrayed by section 4 of the Act gives the Government responsibility to ensure that this is done. This is to mean that children in conflict with the law and in police custody must be detained in children cells to ensure their survival. This is a primary consideration under the Act.
Liz Amandla is a Legal Policy Writer with Mtoto News
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