FAST TRACKING THE WHEELS OF JUSTICE FOR CHILDREN

By Caroline Mtai

It is estimated over 10,000 children in Kenya go through the justice system annually as either witnesses or accused. While the Kenyan law is clear that children court matter should be dealt with within 6 months, many child related cases drug on for many years. This has resulted children being in remand homes for more than a year, hence not enjoying several rights as a child, including right to education, right to play and right of association.

 

Origin of the Children’s Service Week

Milimani Children’s Court is widely considered the model children’s court in Kenya and East Africa. However, despite its outstanding record in applying the best interest principle, the court faced problems that led to delay in cases. The biggest problem being lack of pro bono lawyers to represent children charged with criminal offences. Failure of police to avail files or bond witnesses was also a leading cause of delay. Non availability of doctors also largely contributed to the delay.

It is for this reason that the United States Department of Justice, through the American Embassy in Nairobi, in conjunction with Milimani Children’s Court Users committee decided to hold a service week to help in clearing of backlog of children’s cases. Among the strategies was to employ the use of plea bargaining as a means of disposing off cases expeditiously.

The Service week ran between the 12th and 15th of April 2016 when all the six magistrates courts sat and employed the use of 12 stenographers (two in each court), a total of 17 legal aid advocates and 10 prosecutors participated in the exercise. By the end of the week, a total of 137 cases had been handled of which 63 were concluded. Out of the 63, 8 were concluded by way of plea agreements.

The National Service Week

The success of April 2016 Service week at the Milimani Children’s Court left a lasting impact on the operations at the Children’s court which went on to handle matters in an expeditious manner leading to great reduction in the time initially taken from the commencement to conclusion of children’s cases. This is because the awareness raised during the service week created a sense of urgency in all children’s matters among duty bearers.

It is for this reason that the National Council of Administration of Justice (NCAJ) task force on Children’s matters agreed to attempt a National service week in order to give all children in conflict within the country an opportunity to have their matters determined expeditiously. The challenges in other parts of the country varied from lack of specialized courts to unavailability of legal aid lawyers among a myriad of other challenges. The same strategies employed during the pilot project were maintained.

The objectives of the National Service Week were derived largely from the challenges faced at the very busy Makadara law courts which processed both child and adult offenders. The obvious challenge was the difficulty in distinguishing adults from children as in many cases, it was impossible to tell them apart. Especially where older looking children were concerned. The use of a distinctly colored file jacket for children’s cases was therefore introduced to enhance visibility of children in the justice system. The use of a separate register for children was also encouraged.

The objective of the national service week can therefore was to;

  • Enhance visibility of children in the juvenile justice system by promoting the use of a distinct conspicuously colored file jackets in children’s matters to ensure that children benefit from child friendly justice as provided for by the Children’s Act.
  • Give children in conflict an opportunity for expeditious disposition of their cases.
  • Come up with a national inventory of children’s cases.
  • Promote the use of plea bargaining in suitable cases as a means of speedy conclusion of cases.
  • Identify the unique challenges faced at different court stations when dealing with children’s matters and bring it to the attention of the NCAJ Task Force on Children’s Matters.

During the National Service week held between the 14th and 18th November 2016, over 6,000 children cases were heard all over Kenya, ensuring thousands of children get justice and removed from Remand homes and safe houses.

The Special Regional Service Week

A decision to have this proposed service week was made during the recent NCAJ Taskforce on Children’s matters retreat at Naivasha. The theme of the Service week remains the same i.e. Fast Track to Justice albeit some changes in the strategy. Whereas the national service week ran simultaneously in all court stations, the regional service week will run in succession through a series of weeks beginning with Kitale from the 18th to 21st of April 2017 followed by Shanzu from 24th to 28th of April.

The stations identified for the exercise are;

  • Kitale
  • Shanzu
  • Lodwar
  • Kilgoris
  • Narok
  • Bungoma

During this time, the identified courts will sit to hear children’s matters exclusively. Matters will be dealt with expeditiously in the following ways;

  • Hearings, where all witnesses are expected to attend and testify without fail.
  • Parties are encouraged to consider plea bargaining as a means of speedy disposition in suitable cases (Section 137A-O of the CPC).
  • In cases where children are victims/witnesses, priority shall be given to them to ensure that they get an early chance to testify.
  • Volunteer Lawyers will take up children’s cases on pro bono basis.

Caroline Mtai is a Child Prosecutor with Department of Public Prosecution In Kenya, she is passionate about child justice. You can follow her on twitter and FaceBook @CarolMtai

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