By LILLIAN ALUANGA-DELVAUX

Mr Samuel Kamau was only 16 years old in 2002 when he faced trial for attempted robbery with violence. He was convicted and sentenced to death.

Stunned by the verdict, Kamau’s family appealed. He got a reprieve when the Appeal Court overturned the conviction and death sentence.  The court ruled that Kamau was a child and could not, according to the Children’s Act 2001, be sentenced to death even if he was found guilty.

In 2004, 17-year-old Emmanuel Masinde also found himself in the dock, charged with arson and assault, causing actual bodily harm. He was convicted on his own plea of guilt, and sentenced to three years and eight months for the two offences. He later appealed claiming he had been “tricked” into pleading guilty by a stepbrother on the assumption that he would be forgiven by the court.

On examining the case, appellate judges found the magistrate who heard it failed to establish Masinde’s age and they overturned the verdict. These two cases highlight the manner in which blind justice is pushing children into a prison system meant for adults.

Investigations by The Standard On Saturday have revealed many cases concerning children that have been mishandled, causing much suffering.

While capital offences like murder and robbery with violence are less common among children in conflict with the law, theft, assault, truancy (missing school) and incorrigibility (persistent misbehaviour making reform by parental control impossible or unlikely) are rife.

The failure of the system that punishes such crimes means some of those committing these ‘minor’ offences are lost in a penal system that turns them into hardcore criminals.

There are usually no efforts to separate children by severity of their offences, usually due to congestion in institutions for child offenders. In remand homes, for instance, those in need of discipline and protection may be in the same facility as a child guilty of violent offences. Young offenders may also be incarcerated alongside adult prisoners.

Challenges

During a recent visit to King’orani Prison in Coast region, the Power of Mercy Advisory Committee was alarmed to find that “at least half” of the 300 prisoners in the adult facility were minors. While prison sources say more than 80 per cent of inmates countrywide are youths (under 35), and 50 per cent are under 25, there are no figures on those who are under 18.

Ms Florence Mueni, a probation officer in charge of juvenile justice at the Department of Probations and Aftercare Services, acknowledges there are challenges in the way children are handled in the justice system. She says there are even cases where innocent children have been pushed into the penal system.

They either go to detention/remand centres or approved schools, or into a borstal (youth prison). Those who are about to turn 18 years are sometimes sent to adult prisons. Mueni recalls the case of a 13-year-old boy, who was framed by a relative and found himself in the custody system.

“The child had been arrested and was on probation over allegations of theft,” she says. “Further investigations, however, revealed he was an orphan and that at the heart of the claims was a plan by his uncle to ensure he was ‘locked up’ so that he could inherit property left by the boy’s father.”

As at December last year, there were more than 2,000 juveniles serving probation orders across the country. While the number may appear ‘small’, probation officers say it has nearly tripled in the past ten years, and excludes children in rehabilitation centres, borstal institutions and others like the Kamiti Youth Corrective Centre.

South Rift ranks highest with 456 cases of juveniles on probation, followed by Western (326) and the North Rift (323). Central (309), Coast (281) and Eastern (238) follow, while Nyanza (196) and North Eastern (98) rank lowest.

There are at least 11 juvenile remand homes (under the administration of the Children’s Department) with at least 2,500 children. It is also estimated that over 50 per cent of convicted prisoners are aged between 16 and 25 years.

Ms Joan Ireri, a programme manager on access to justice at The Cradle, The Children Foundation, says the types of ‘sentences’ handed to children, largely depend on the nature and gravity of offence committed. Words like ‘conviction’ and ‘sentence’ are, according to the Children Act, not to be used on a child dealt with by the Children’s Court.

According to Section 191, child offenders may be discharged, handed probation orders, ordered to pay a fine, placed under the care of a qualified counsellor or be committed into the care of a fit person like a relative or charitable institution willing to undertake his care. Other options include being sent to probation hostels, get placed in an educational institution or vocational training programme or adhere to community service orders.

Probation hostels are proposed where circumstances in the child’s home environment would hinder rehabilitation. There are currently five such hostels countrywide in Eldoret, Mombasa, Nakuru and Nairobi. Due to ‘rising demand,’ a new one, for girls, is under construction in Siaya County.

“If an offender is aged between 10 and 15 they may be sent to a rehabilitation school,” says Ireri, a lawyer. “Those above 16 years may be sent to a borstal institution (youth prison).” No child under the age of 10 years can legally be sent to a rehabilitation school or jailed for any offence, she adds.

“In some jurisdictions, Anti-Social Behavior Orders (ASBOs )are imposed (to deal with youth offences),” she says. “These are imposed on people who engage in harmful or distressing conduct. ASBOs target problem youths by restricting their freedom and criminalising their behavior. This is common in the United Kingdom, Ireland and the United States. Curfew orders may also be made restricting children to their homes and property during nighttime.”

Ireri adds that most children in custody don’t get the basic protections they are entitled to under law when being questioned by the police. This is risky because innocent suspects, especially young and impressionable ones, often admit to crimes they didn’t commit during interrogation.

Many parents, she says, are misled by police who tell them their children don’t need to have a lawyer present when being questioned.

“The truth is that anything the child says can be used against him in court proceedings,” she says. Retaining a juvenile defence lawyer can ensure police file lesser charges or suggest rehabilitation for the child.