CHAPTER ONE

EVALUATING THE PROTECTION OF CHILDREN IN CONFLICT WITH THE LAW: A KENYAN CASE

ABSTRACT.

This research paper centers on protecting and upholding the fundamental rights and freedoms of children who have been deprived of their liberty.The purpose of recognizing and protecting human rights and fundamental freedoms is actually to preserve the dignity of individuals, as it is clear that human rights and fundamental freedoms as provided for in the constitution of Kenya 2010 belong to each individual and are not granted by the state. It is the responsibility of every government to protect the rights of its citizens. However, children in conflict with the law are more susceptible to violations of their rights while in detention, either in police cells, prisons or authorized detention centers they mostly suffer from acts of state representatives especially when subjecting children to physical, psychological or other examinations for the purposes of gathering evidence, some of this assessment processes are highly demeaning and invasive forms of secondary systemic abuse. This violations often occur behind closed doors and thus difficult to notice despite the constitutional and the human rights law guaranteeing their rights.

The research therefore seeks to examine what rights do children in conflict with the law have under international law generally and also within the regional human rights law. It will also seek to find out whether these international human rights instruments are given effect domestically and if yes, it will go ahead to answer the question how? Of interest too will be to establish if there are challenges in realizing these rights and how our municipal laws have tried to grapple with the issue of protecting the rights of children in conflict with the law. Most importantly, I will also wish to suggest alternative ways of dealing with this group of children apart from the normal juvenile justice system which has proved to be traumatizing. These are the main issues I wish to tackle with a view of making recommendations for better protection of the rights of this group of children.

1.1 GENERAL INTRODUCTION

The paper seeks to address the problem of abuse of the rights of children in conflict with the law; historically children have had few constitutional rights of their own when pitted against the state or their parents because both of the latter are presumed to be more capable of deciding what is in the child’s best interest. From the constitutional concept of power donation to the state we deduce that it is the responsibility of every government to protect the fundamental rights and freedoms of its citizenry.The purpose of recognizing and protecting human rights and fundamental freedom is to preserve the dignity of individuals and communities, promote social justice and the realization of the potential of all human beings. Article 19(3)(a) of the supreme law of Kenya 2010 is an all inclusive article as far as human rights and fundamental freedoms are concerned. It seeks to cover every individual with the umbrella of rights and fundamental freedoms complying and having a direct link with article 27 (4) of the same document providing that the state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, duress, language or birth. Furthermore, the government is under an obligation to see to it that the rule of law and justice prevails at all times, it is of essence and of great significance to note that children are the greatest resource of a country and thus need protection. Article 53 (1) d of the constitution adds its voice on this school of thought bringing out its importance. However, there are the unwanted children of the system when in conflict with the law they are more often than not direct victims of abuse by officials in the criminal justice system as well as the inmates, but more broadly they are neglected due to government failure to provide protection for them despite the fact that there are clear international standards setting out how they should be treated. These violations always happen (behind) closed doors and society being primarily concerned with keeping offenders locked up rather than about their conditions and human rights being respected, the cries of these children to be treated with dignity and worth go unnoticed. It is now clear that the officers in the juvenile trial system are failing to use the knowledge available to them in properly dealing with the children in conflict with the law and as a result, the fundamental human rights are contravened.

Furthermore, the paper seeks to explore ways and avenues on how possibly it can be ensured that children rights as human beings are not abused merely because they are in the class of the vulnerable. Every person has got inherent dignity and carries with him the right to get it respected and protected. It will also suggest possible reforms to the law regime to ensure its consistency with both regional and international human rights instruments to which Kenya is a signatory as well as the new constitution of Kenya 2010 .There is a need to review Kenyan laws dealing with children and specifically come up with detailed provisions that seek to address the issue of children in conflict with the law and how to help them when they find themselves on the wrong ends of the law. This is in an attempt to put them in line with the requirements of the new constitution of Kenya 2010 especially to safeguard against possible human rights violations. Chapter four of the constitution of Kenya 2010 provides for the bill of rights that should be enjoyed by all persons without discrimination. Going by the provisions of Article 21(1), it is obligatory for the state and every state organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. Under article 21(4), the state has the duty to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms. Article 25 of the constitution provides for the fundamental rights and freedoms that may not be limited, of interest is the freedom from inhuman or degrading treatment or punishment.

Historically, children charged with crimes in Kenya were treated in the same way as adult offenders it was a common thing for children to be arrested and detained in prison for long periods of time waiting for trials. Kenya is a signatory to the international convention that seeks to protect the rights of children, however, the situation for children in conflict with the law, especially those in detention centres has not changed a lot for the better. They continue to suffer from cruel inhuman and degrading treatment and punishment at times due to the high incidence of police brutality and inadequate statute or procedure dealing with children charged with offences. However, a lot of effort is being made by the government by trying to foster the reform of the juvenile justice system and protecting both the rights of these children on one hand and that of the public on the other hand, to ensure compliance with both the constitutional and international obligations.

1.2 BACKGROUND TO THE STUDY

Historically, children have had few constitutional rights of their own when pitted against the state or their parents because both of the later are presumed to be more capable of deciding what is in the child’s best interest. A closer study of the repealed constitution of Kenya reveals that it lacked specific provisions relating to the protection of children in all spheres. Similarly, the new constitution has just an article which addresses the plight of children, generally, and those in conflict with the law. Not long ago children charged with crimes in Kenya were treated in the same manner and way as adult offenders. It was common for children to be arrested and detained in prison for long periods of time awaiting trial. In terms of statute, it is very evident that we have had legislations in the area of child protection; for instance, the Guardianship of Infants Act, the Adoption Act, the Children and Young Persons Act and most recently, the Children Act which has repealed all the above statutes. None of these legislations deals solely with the issue of protection of children in conflict with the law.

The Children Act brings together in one law all requirements of guardianship, fostering and adoption, custody and maintenance, care and protection, the role of parents and the government in promoting and protecting the rights of the child and juvenile justice.The act is a great improvement in the promotion and protection of the rights of the child. However, there are still several issues that it has not solved inter-alia corporal punishment and the minimum age for criminal responsibility.

As regards international human rights law, Kenya is party to the international and regional instruments protecting the rights of children including those in conflict with the law; for instance, the Convention on the Rights of a Child and the ACRWC.However, the situation for children in conflict with the law especially those in detention has not changed a lot for the better. They continue to suffer from cruel, inhumane and degrading treatment and punishment sometimes due to high incidence of police brutality and inadequate legislation to ensure their protection.

It is for this historical as well as the developments in this area that Kenya is chosen as a comparison to assess the level of compliance with international obligation as a country in democratic transition.

1.3 STATEMENT OF THE RESEARCH PROBLEM

It is the aspiration of all Kenyans for a government based on the essential values with an emphasis on human rights, equality, freedom, democracy, social justice and the rule of law. It thus goes without saying that the government has got an obligation to protect the national values as listed under article 10(2) b of the constitution. Of interest being the human rights and fundamental freedoms and to ensure that at all time the rule of law and justice prevails. However, bearing in mind that children are in the class of the vulnerable they are more susceptible to abuses and violations of their fundamental rights. They are mostly discriminated against on the basis of their genderand they face inhumane treatment from the agents of the state as well as the inmates. It becomes almost impossible to detect such contravention of their rights as they occur indoors. To add insult to the injury our legal framework focuses very much on locking up offenders rather than about their rights being protected and respected. Thus the cries of these children to be treated with dignity and worth goes unnoticed despite the international and constitutional obligations which requires them to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour. Article 53(1)f requires that children should not be detained except in circumstances where it’s the only option and even when detention is effected, it should be for the shortest appropriate period of time and separate from adults and in conditions that take into account the child’s sex and age.

The issue or rather the problem is first to examine what rights do children in conflict with the law have under international law, the municipal laws, and the African human rights system with special emphasis on the rights of children deprived of their liberty. Secondly, to suggest other options that are available in dealing with children in conflict with the law apart from the normal detention and the usual juvenile trial system, which is sometimes very intimidating and traumatizing to the children involved. Thirdly and lastly, to examine how these international instruments are granted effect domestically and whether there are challenges encountered in realizing these rights. These are the main issues that this work wishes to deal with using Kenya as a reference point with a view of doing recommendations for better protection of the rights of this particular group of children.

1.4 RESEARCH QUESTIONS

The study seeks to answer the following questions;

What rights do children in conflict with the law have under international law, generally, and also within the regional human rights law?

How are these international human rights instruments given effect domestically?

What are the challenges that we face in realizing these rights?

How do our municipal laws address the issue of protection of children in conflict with the law? Are they adequate?

What is the level of compliance with the international law standards as set out by the convention on the rights of a child (CRC) and the African charter on the rights and welfare of the child (ACRWC)?

1.5 HYPOTHESIS.

The research presumes that there have been efforts in Kenya to enact laws to realize the protection of rights of children in conflict with the law in line with our international obligations but they are not adequate

Where the law exists, the mechanisms for protection are not effective

Due to the inadequacies in the laws and the system generally, the rights of children in conflict with the law are overlooked with a touch of impunity.

1.6 RESEARCH OBJECTIVES

The objective of the research is to analyze the laws put in place in Kenya aiming at protection of children in conflict with the law in accordance with their international obligations secondly it wishes to look into the challenges of addressing the issue at hand, and as a way of recommendations and conclusion suggest ways to better protect the rights of these class of children.

1.7 RESEARCH METHODOLOGY

For viable conclusions and recommendations, the following methods will be employed to carry out the research. There will be secondary methods like data analysis of documented reports and discussion papers by various local and international commissions as well as human right scholars. There also will be a review of authoritative decisions in these areas both in Kenya and in other jurisdictions.

The sources relied upon will be both primary and secondary. These will include relevant statutes, human rights textbooks, instruments on human rights and publications, case law(both Kenyan and foreign where applicable) and internet sources.

1.8 CHAPTER BREAKDOWN

I wish to have four substantive chapters for this research considering the time set by the university exam body for this particular research paper. The first chapter is basically an introduction. The chapter tries to give the basis and structure of the research which includes a general overview of the problem in Kenya.

The second chapter will seek to compare the rights of children deprived of their liberty as provided for in the municipal laws vis a vis the minimum standards set out in the CRC and the ACRWC. It will subsequently discuss the following issues; the application of international law in Kenya, the role of the courts in children proceedings, the constitutional protection of the rights of children in conflict with the law, state`s obligation and enforcement mechanisms in Kenya, other statutes that seek to protect the rights of children in conflict with the law, other methods available in dealing with children in conflict with the law other than the normal juvenile trial system and detention which is sometimes very traumatizing and intimidating. Definition of a child,minimum age of criminal responsibility, detention as a last resort, best interest of a child, role and responsibility of parents, special criminal procedures, challenges of implementing the laws, separate laws or statutes for children in conflict with the law, the sentencing provisions, lack of adequate facilities for children and lack of adequate trained personnel to deal with children in conflict with the law, resource allocation , poor coordination and implementation mechanisms.

The third chapter intends to explore the relevant international and African normative framework that protects the rights of children in conflict with the law and the obligations of states towards those children. However, the main focus will be the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).

The fourth chapter will conclude and make recommendations on how best to implement the laws and who should be the role players in ensuring that the rights of these children are well protected.

CHAPTER TWO

PROTECTION OF CHILDREN IN CONFLICT WITH THE LAW IN KENYA

2.1 The application and status of international law in Kenya

The relationship between international law and the Kenyan domestic law is provided for in articles 2(5) and 2(6) of the new constitution of Kenya 2010,Article 2(6) is rather conditional it expressly provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the constitution .In simple terms, article 2(6) seeks to explain that international agreements can only be binding to the state after they have been approved by the national assembly and have been acceded to, in other words after ratification , we presume that the international instrument has been enacted (domesticated) into municipal law.

General rules which may have acquired the force of law include the principles of sovereign equality of states; territorial integrity; customary international law; puncta sun savanda Kenya is a party to a number of treaties, also qualifying as valid norms in the newly structured legal system.

The new constitution envisages these provisions as regards the application of international law in Kenya, however, what remains unclear is whether the new constitution provides for a dualist or monist dispensation, for most of common wealth Africa the concept of dualism thrives, under dualism treaties are not counted as part of municipal law until transformation or incorporation has occurred as illustrated by article 2(6), article 2(5) On the contrary is a general provision with no restrictions at all. The contradiction between the two articles 2(5) and 2(6) is what forms the basis of the unclarity that exists on the question of whether the Kenyan constitution provides for a monist or dualist dispensation.

The original rule for the principle of (dualism) was laid down in the case of Okunda v Republic (1970) EA 512. In this case, the high court limited the sources of law in the country to those listed in the judicature act,a similar decision was arrived at in the case of Pattni & Another v Republic (2001) EKLR 262, In this case, the court held that these instruments much as they could be of persuasive value, were not binding in Kenya save for where they could be incorporated into the constitution or other written laws, in reaching the decision the court made reference to the International covenant on civil and political rights(CCPR),the universal declaration of human rights(UDHR) and the African charter on human and people’s rights(African Charter)

M Kiwinda Mbondenyi and J Osogo Ambani in their book` The new constitutional law of Kenya –principles, governance and human rights’ do note that three verifying questions have been suggested to test the extent to which international human rights norms have been domesticated in African states; first whether international human rights norms are part of domestic law; second, where such norms feature in the hierarchy of the municipal national legal order, in case they are applicable and third, whether domestic courts apply them in their decisions, the two cases discussed above do suggest that before the new constitutional dispensation international instruments did not form part of Kenya’s legal order. Norms enacted outside Kenya first had to go through either the process of incorporation or transformation to have legal effect municipally. This could be illustrated by the transformation of the convention on the rights of the child (CRC) and the African charter on the rights and welfare of the child into Kenyan law In this regard, the Children Act is:

An Act of parliament to give effect to the principles of the convention on the rights of the child and the African charter on the rights and welfare of the child and for connected purpose

As much as evidence in form of case law in Kenya suggests that international law generally did not have legal influence, the Kenyan courts could not help it, but to refer to them in some selected cases for instance the court of appeal in Mary Rono v Jane Rono stated that` international law could be referred to even in the absence of an implementing legislation provided there arises no conflict with any other existing state law’ in another decision with a similar holding Re The Estate of Lerionka Ole Ntutu (Deceased) Justice Rawal took the trouble of explaining that the decision arrived at by his brother Justice Waki in Rono v Rono was inevitable owing to principle 7 of the Bangalore principles on the domestic application of international human rights Norms, in the same breath Nyamu and Ibrahim JJ in RM v AG stated that international law could be applied where there was no conflict with national laws.

The new constitutional dispensation tends to tilt the balance from the dualist nature to the monist one, however, it does not define the place of international law within the hierarchy of norms that constitute the legal system but only expresses the supremacy of the constitution above all other laws in article 2(1) and 2(4) these means that the laws are harmonised, the theory of harmonization hence provides the best theoretical and practical explanation for the application of international law in Kenya.

As a concluding remark in this discussion the harmonization theory is an upgrade of the monist theory where we assume that international law is part of national law and ipso facto does not require transformation or incorporation for utilization in the domestic courts the theory is careful to clarify that neither international law nor municipal law has clear cut supremacy over the other this is where we are as a state, owing to the new constitution’s article 2(5) and 2(6).As discussed above before the enactment of the 2010 constitution, international law was applied restrictively,but with the new constitution in place we now have created an avenue to apply it without restrictions since international law now forms part of the national law by dint of articles 2(5) and 2(6), with the free application of international law in Kenya, we can now be able to make good use of the convention on the rights of a child(CRC) and the African charter on the rights and welfare of a child (ACRWC) in protecting children in conflict with the law.

It is therefore submitted that pursuant to article 2(5) and 2(6) of the Kenyan constitution, provisions of the CRC and the ACRWC can be relied on by the courts when interpreting the bill of rights therefore, where constitutional rights of children deprived of their liberty are violated, the courts can seek guidance from these international instruments to interpret those rights.

Therefore the CRC and the ACRWC binds Kenya, including other binding and non binding international law. Similarly when interpreting statutory legislation affecting rights of children deprived of their liberty, the courts must adopt interpretations that are consistent with the CRC, ACRWC and other relevant instruments.

The place of international law in the hierarchy of valid norms under the 2010 Constitution; the question of which takes precedence in case of a conflict

This part of the research has the modest object of addressing the issue of which law ought to take precedence when there is a conflict between the provisions of international law and municipal law, the theoretical issue is normally presented as a clash between dualism(or pluralism) and monism. Both these schools of thought assume that there is a common field in which the international and municipal legal orders can operate simultaneously in regard to the same subject-matter, and the problem then is, who is to be master?

The general rule as regards this issue is that international obligations not incorporated into municipal law have no legal force, in the case of Okunda v Republic a superior court of record held that international law is not a source of law in Kenya, which position is still being upheld by courts of law, as demonstrated in a fairly recent jurisprudence, Pattni & Another v Republic where the high court again established that international norms, much as they could be of persuasive value are not binding in Kenya save for where they are incorporated into the constitution or other written laws.

Consequently international law may not have been invoked directly before courts of law as they have yet to be transformed into internal laws or administrative regulation to have a binding effect. At best what the courts do is to make reference to these international instruments and standards,in Amanya Wafula, Ndungi Githuku & Another v Republicone of the few cases where the courts of law have made reference to the African Charter on Human and Peoples’ Rights (African Charter) and the International Covenant on Civil and Political Rights (ICCPR), the judicial tribunal still gave credence to the claw back clause in section 80 of the repealed Constitution which requires domestication of international human rights instruments and standards before their municipal application, similarly in referring to international law the court in Rono v Rono stated that international law would apply as long as there arose no conflict with domestic laws, a similar decision was rendered in Re Lerionka ole Ntutu where Rawal j stated that international law could be applied where it does not conflict with national laws.

In Re the matter of Ziporrah Wambui Mathara a bankruptcy cause no 19 of 2010 Koome J, stated that all international instruments ratified in Kenya are part of our municipal laws vide Article 2(6) of the Constitution on the other side of the coin the court was explaining that all other international instruments not ratified in Kenya are not part of our municipal laws thus cannot be applied, and for that reason the court found it to be proper and in order to apply Article 11 of the international convention of civil and political rights, similarly justice Nicholas Ombijo in the case of the international commission of jurists Kenya chapter v the Attorney General and another stated that since the Rome statute had been ratified by Kenya it was obvious that it now formed part of the Kenyan law vide Article 2(6) of the constitution and for that reason Kenya had an obligation to perform its international obligations under the said Rome statute which includes arresting the sitting president of the republic of Sudan Mohammed Al Bashir against whom arrest warrants had been issued by the international criminal court(ICC) in case he steps foot on Kenyan soil.

To that extent, I can then comfortably argue that the application of international law in Kenya does depend on the aspect of ratification, any international instrument not ratified by Kenya is just a persuasive kind of legislation and courts are not bound to apply it as it was held in Okunda v Republic (1970)EA 512. Ratification of international law Makes the international instrument to acquire domestic law status and thus can be applied by the Kenyan courts comfortably, in case of a conflict between the municipal law and the international law, the court will have to consider several factors in identifying the law which has to apply, among the factors to consider is, one whether the international instrument has been ratified in Kenya, a factor which has been considered intensively in all the case law discussed above, and secondly if the international instrument protects the human rights of any of the concerned party to an extent of which overlooking the international instrument will cause a breach of that parties rights as it was held in Wambui mathara’s case.

It is therefore submitted that for any international instrument to apply in Kenya ratification of that instrument into Kenyan law is a must, the implication of this particular condition or rather requirement is that municipal laws are superior to international laws and for us to apply them freely the way we do apply municipal laws then it is imperative that we domesticate the international instrument for it to be on the same standards with the municipal laws

It therefore means that in case of a conflict between municipal laws and international laws then municipal laws would take pre-eminence or rather will be master over the international law if it is not domesticated in Kenya, and even if it is acceded to it can only be used as reference but the general rule is that Kenyan courts are not bound to apply international laws we put more emphasis on our municipal laws than the international law.

2.2 The protection of the rights in the Kenyan constitution

Constitutions in most cases will be judged on how effectively they secure fundamental human rights and liberties inter-alia the rights of children in conflict with the law. So crucial are the human rights that in Kenya’s context the problems of the bill of rights in the repealed constitution was a prominent reason why the people opted for a constitutional review in the first place, the chapter on the bill of rights was replete with limitations littered with `claw-back’ clauses that often defeated the whole essence of having the chapter on the bill of rights.

As regards the protection of children in conflict with the law, chapter five of the repealed constitution did not expressly encompass other fairly important genres of rights inter-alia children rights, and rights of persons with disabilities, social economic rights were conspicuously absent .However, the bill of rights under the 2010 constitution is envisioned to have an all round applicationencompassing all the genres of rights Including the rights childrengenerally and those in conflict with the law, persons with disabilities, youth, marginalized groups and older members of the society.

The rights of children under the 2010 constitution of Kenya can be divided into two major groups namely the general and specific rights , Article 53 deals specifically with the rights of children including those deprived of their liberty. The article can be said to be reflecting the whole essence of the CRC. It also states that the best interest of the child are of paramount importance in every matter concerning the child, this echoes one of the most important principles of the CRC and the ACRWC which must be the guiding principle of any decision in respect of children deprived of their liberty .In the Fitzpatrick case it was emphasized that the best interest rule should not be given exhaustive content, the standard should be flexible in order to cater for the needs of specific children circumstances.

The constitution provides that every child has the right to basic nutrition, shelter and health care to be protected from abuse neglect harmful cultural practices all forms of violence, inhuman treatment and punishment and hazardous or exploitative labour. The provision relating to basic nutrition prohibits poor nutrition of children at any period of time including when deprived of their liberty.

The constitution also provides that children in conflict with the law must not be detained except as a me