New justice system to spare child offenders prison terms

Kenya’s juvenile criminal justice system could be up for radical changes to serve the needs of children who commit crimes.

The key change could involve what is being called the Child Offending Teams (Cots), a diversion concept in which young offenders’ cases are heard outside the court system.

Experts say this would lead to a drastic reduction in the number of children, especially those with special needs, now in jails. Complete with a work plan, the concept was unveiled at a recent workshop in Nairobi, attended by key stakeholders in the criminal justice system for young offenders.

The purpose of the workshop was to have various agencies forge a coordinated response to the problem of special needs of children caught in crime.

Philemon Foundation

Those at the workshop included Prisons, the Police, the Directorate of Children’s Services and the Justice and Constitutional Affairs ministry as well as NGOs Clan and the Philemon Foundation.

Home Affairs permanent secretary Ludeki Chweya said the system would spare remanded children the negative exposure to hardcore criminals. Jails, Dr Chweya said, were “a very recent institution in society” and child offenders could be handled outside.

The problem of child offenders is not unique to Kenya, as the chief trainer at the workshop, Prof Andy Bilson, told the Nation. The sociologist from the University of Central Lancashire, UK, who has trained groups in more than 30 countries, said all of them were struggling with the problem.

“If the children are treated the wrong way, we get bad outcomes for them and for ourselves,” said Prof Bilson, who has been selling the concept that child offenders “should receive the treatment they deserve, which is not punishment”.

The plight of children with special needs, who break the law, is a key issue to be addressed by this diversion concept.

Ms Lynette Okwara, assistant director of probation, says these are children with physical and mental disabilities, health problems including HIV, substance abusers, and the poor. There is no system in place to provide what Ms Okwara describes as “flowing” information on child offenders, of whom her department has at least 4,000 in its records.

The result is that special needs children suffer in correctional facilities because the probation officer and other service providers may not have the information the police have on them.

“No single agency can address the problems of a special needs offender,” Ms Okwara says. Addressing the needs of such a child should start with a psychiatrist’s report. According to her, the child’s mental health should be assessed before going to court.

Because of the difficult circumstances they live in, the child offender’s health, including HIV status, should be determined. This is because provisions of anti-retrovirals would be interrupted unless the Prisons authorities are informed of the need.

Social workers, too, are important cogs in the Cots wheel. They should help determine where to place the child, rather than lock them up. Dr Chweya, who roots for diverting children to where their needs will best be met, believes that courts are no panacea to social problems like poverty that land children in crime.

“There is no need to take a poor person to court when you know they will not get justice. That is purely punitive, because they cannot afford legal counsel.” The PS says that penal institutions are replete with people who should be out. “How do you ask a jobless person to pay a Sh5,000 fine?” he asked, adding that such a person should only be warned.

But Dr Chweya’s proposal can only work in concert with partners qualified to address the children’s different needs.

Ms Okwara concurs: “Children need specialists; they need everybody.” In the past, she says, everybody has worked in isolation. What is needed is a multi-agency referral system to provide quality services to child offenders, right from arrest.

The aim of the workshop was, therefore, to develop a tool to assess the child’s needs, so that a magistrate handling a child’s case, for instance, would understand his special problem and refer him to a specialist.

Many adolescents go through a defiant phase. A child with a hyperactivity defiant disorder (HDD) should be referred to a psychiatrist instead of the magistrate. “We need not clog children’s homes and borstal institutions with children,” Ms Okwara says, proposing “diversion” instead.

Diverting an HDD child to a psychiatrist might even determine that the child’s condition is genetic. Locking up children also exposes them to sexual abuse.

Even in penal institutions, the child still needs treatment, making referral services paramount. The director of programmes in charge of rehabilitation in the Prisons Department, Ms Mary Khaemba, told the Nation that children arrived in jail with only the committal warrant, when ideally, they should come with referral notes.

This way, Prisons Department, which lacks skills for identifying special needs children, would find it easier to handle them.

“We have mentally challenged children whose problems have not been addressed. They are treated just like any other child prisoner,” Ms Khaemba says.

She mentioned a mentally retarded child who defiled another child and ended up in jail. “How do you help him not to repeat it when there’s no mention that he is mentally retarded?” she poses. Such knowledge, in fact, could have served as a mitigating factor in court to spare the child imprisonment.

Young offenders are feeding the pool of adult offenders, with 700 children aged 15 to 18 years, serving terms at Shikusa (in Western Province) and Shimo la Tewa (Coast) borstal institutions and the Kamiti Youth Correctional Centre.

They have been jailed for serious offences such as murder, theft, burglary, arson, rape and defilement. By the time they are freed, most of them are above 22 years and often become deeply entrenched in crime due to negative exposure.

Dr Chweya wants a rethink of the court system and especially its leaning towards imposing fines, which, he says, should be commensurate with the ability of the accused to pay. He asks the police: “Why take the child to court when you know he’ll not get justice, because he can’t even afford legal counsel?”

The permanent secretary is concerned that rehabilitation of child offenders is going on in a policy vacuum. If the diversion proposal becomes policy, children will spend a night in a police cell only as a last resort, he says.

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