A radical proposal to increase the age of criminal responsibility is among the recommendations made by a task force under the Judiciary, which was formed to look into ways of improving the justice system for children.
It has been proposed as an urgent measure that the age of criminal responsibility should increase from eight to 12.
Currently, the age of criminal responsibility is low. The Children Act 2001 makes a child as young as eight criminally culpable. This has resulted in children as young as nine to 12 years languishing in child holding institutions.
Other recommendations are contained in the Children Bill, which has already been presented to the Labour Cabinet Secretary. It introduces, among others, diversion mechanisms that redirect children from the judicial process to community–based structures.
“This not only unclogs the court system, but also minimises the adverse consequences of subjecting children to the criminal justice system. Diversion promotes restorative justice approaches such as restitution and reconciliation,” reads the report by the National Council on the Administration of Justice (NCAJ).
The NCAJ special task force on children’s matters, chaired by Court of Appeal judge Martha Koome, was formed in 2016 to look into issues affecting children and come up with appropriate remedies to be implemented by the state, and other actors in child welfare programmes.
They sampled the counties of Nyandarua, Kisumu, Kilifi, Nairobi, Makueni, Narok, Bungoma, and Garissa.
In their report, to be launched on November 20, the task force discovered that because of lack of age assessment during trial, it is not unusual to find individuals over 18 years being held in children’s facilities and the children below 12 years committed to probation hostels.
“An additional concern is the commitment of children to adult institutions, which is not only contrary to the law, but also fails to take into account their particular needs and rights,” reads the report.
Children older than four are separated from mothers serving jail terms. There is no provision for the care of such children by the state.
Child-friendly infrastructure that caters for the needs of all children, including children with disabilities, girls, boys, and those that are intersex, is largely lacking in child holding institutions.
“We recommend the refurbishment of the institutions holding children as appropriate to ensure that they are child-friendly, modern and cater to all children in the justice system,” the report says.
It also says the right to education is an inalienable right and should be provided to all children irrespective of who they are and where they are.
“We strongly urge the Department of Children’s Services together with the Ministry of Education to ensure every child in the justice system is able to access quality, age-appropriate and relevant education like their peers who are not incarcerated,” reads the report.
The heavy workloads of the judges contribute to the backlogs, suggesting staffing gaps in the Judiciary.
“It has made children’s cases take too long to be concluded, and by the time the matter is determined, some are already adults,” reads the report.
The task force has recommended that the Judiciary should mark the National Children’s Service month each November, and periodic mini service weeks in all courts in the country to ensure finalisation of children’s matters with the same urgency as other matters, such as election petitions.
The use of the off-while colour files in all court registries for easy identification of all children’s cases is proposed.
Analysis of police records reveals that the bulk of pending cases in Kenyan courts relating to children between 2016 and 2018 are sexual offences, which accounted for 69.48 per cent of all pending cases involving children in the eight counties sampled.
A majority of the cases reported to the police over the three years under consideration, are ‘Romeo and Juliet’ cases. Common in this category are cases both the complainant and the accused were below 18.
‘Romeo and Juliet’ cases involve non-violent sexual relationships between two minors or one minor and an adult, where the age difference is three years or less between the two.
Some of the minors caught up in sexual offences could not appreciate the offences they committed. When asked what offence they committed, the majority respond that “Tulifanya tabia mbaya (we did bad manners)”, implying they had sex, yet they still profess their love for each other, with the girl sneaking to visit her confined boyfriend and bringing with her ‘mandazi’ (doughnuts).
The courts have lately been referring such child offenders to rehabilitation or reducing their sentences, depending on the circumstances of the case.
There is no budget line in the National Police Service to provide bed sheets, toilet paper and other basic amenities in the Child Protection Units (CPUs). There are also no funds in the police stations to maintain CPU structures, or even meet the operating costs.
The non-provision of packed lunch for the children while they are in police custody or in court appeared to be a general issue of concern.
“We urge that Parliament increases budgetary allocations for children in all the justice agencies to ensure high-quality services are provided and sustained,” reads the report.
Most police stations do not have personnel trained in handling children in ways that are friendly and responsive to their needs.
It has been noted with concern that when the police are transferred to a new duty station, their training in children matters is not considered in the assignment of responsibilities.
This weakens capacity development programmes and demotivates officers who are passionate about handling children matters.
“We recommend officers vested in children’s matters, when transferred to other stations, continue to handle children’s matters to also save on resources,” report.
The Inspector General of Police has also been urged to ensure children are separated from adults by rolling-out CPUs in police stations.
The Directorate of Public Prosecutions, the Judiciary, the Law Society of Kenya, and civil society organisations remain a challenge at both national and county levels. There is also weak multi-sectoral and interministerial coordination.
The multi-agency units need to ensure accountability and information sharing within the sector to prevent child abuse by duty bearers and embezzlement as well as wastage of funds.