legal guardian, children are subjected to brief hearings on their cases whereby they may be deprived of their liberty and committed for years to juvenile correctional institutions known as approved schools or borstal institutions. Under Kenyan law, children 14 years old and above may also be committed to regular adult prisons, although this practice is admittedly rare. For some, police will simply mete out their own form of summary justice in the form of a beating, and release the children from jail without their ever going to court.

The primary law in Kenya concerning children in conflict with the law is the Children and Young Persons Act (CYPA). The CYPA establishes juvenile courts for the purpose of hearing all charges against persons under eighteen years of age, except in cases where children are charged jointly with adults (these cases are heard in regular adult courts). The jurisdiction of juvenile courts extend to both criminal matters and to non-criminal "protection or discipline" matters.

Juvenile courts must sit in a different building or on different days or at different times from regular courts for adults, and are closed to the public. However, only one separate juvenile court exists in all of Kenya, in Nairobi. The rest of Kenya’s juvenilecourts are in fact regular courts that process children’s cases on an ad hoc basis. In practice, the special protections accorded to children under the CYPA are often disregarded, as children are often tried in regular adult courts without cognizance of the fact that they are children.

Sixteen out of 40 children interviewed by Human Rights Watch, and who had been brought to court, said their trials took place in regular courts for adults mixed with adult cases.

Whether in regular courts or in juvenile courts, proceedings are rushed and do not allow

children fair opportunities to be heard. Confused and frightened in court, children often do not understand the nature of the legal proceedings or the dispositions of their cases. Translation is not always available for children who need it. None of the 40 children interviewed by Human Rights Watch had been represented by legal or other counsel, and only five said that they had family members present in court.

Even in Kenya’s single juvenile court, due respect is not paid to the rights of the child and to the rights of the child as accused. In the juvenile court in Nairobi, where Human Rights Watch observed proceedings for two days, the atmosphere of the court room was intimidating and frightening for children, as well as extremely rushed, with not more than a few minutes spent on each child’s case. Children were visibly frightened, sometimes breaking down into tears and responding inaudibly to the stern questioning of the presiding magistrate. None of the 94 children processed on those days were represented by legal or other counsel and only a few had family members present in the court room.

The juvenile magistrate did, however, make efforts to explain to the children what was happening to them, indicating where they were being sent, what correctional measures he was ordering, or what date they would reappear in court. In contrast, children who had been processed in regular adult courts, ad hoc juvenile courts, told Human Rights that they were not informed at all of the status of their cases, were confused about the nature and purpose of the proceedings, and were unaware of the disposition of their cases.

Pending final adjudication and disposition of their cases, street children are committed by courts to temporary detention in juvenile remand homes (for children 15 years and younger) or to adult remand prisons (for children at least 14 years old) where they may languish for indefinite periods of time, usually between several weeks and months, and sometimes even years.

There are 11 juvenile remand homes (under the administration of the Children’s Department) in Kenya, with a reported capacity of 2500 children. No efforts are made to separate children by severity of their offenses, or to separate children accused or convicted of criminal offenses, from children in need of protection or discipline.Conditions in juvenile remand homes vary but they generally suffer from common problems of run-down facilities, inadequate supplies of water and inoperative sanitary installations, inadequate and dirty bedding materials, the frequent use of corporal punishment and no provisions whatsoever for the recreational and educational needs of children.

Children spend their days locked into their dorms, except when allowed outside for eating or working. Nairobi juvenile remand home, in particular, suffered from severe overcrowding, with children sleeping two to a bed. Human Rights Watch found conditions to be particularly disturbing in adult remand prisons. Unlike juvenile remand homes, remand prisons are under the administration of the Prisons Department. Children there face serious problems of overcrowding, unsanitary conditions, hunger, and physical abuse far worse than in juvenile remand homes. Although children are supposed to be kept separate from adults. Where practicable, children are often commingled with adults. Boys detained in remand

prisons reported they slept on the floor, without bedding, endured extreme physical abuse, including sexual harassment, usually by older inmates and sometimes by prison guards.

There are no limits under Kenyan law on the period within which an accused must be tried and receive judgement, nor are there limits on the duration of remand detention, even for children. Fully aware of the often lengthy periods of remand which follow a plea of Anot guilty,children sometimes plead guilty to criminal charges because they know the remand period is likely to be shorter. Six out of 40 children interviewed by Human Rights Watch, who had been brought to court, said they pled guilty to criminal charges because they wished to avoid a lengthy period of remand detention.

After a guilty plea is entered, a probation officer is assigned to the case and usually issues a pre-sentencing report within a period of two to four weeks. Upon the admission of guilt, magistrates sometimes even decide sentences on the spot, without the preparation of a presentencing report.

From remand, children may be committed by courts to approved schools (if the child is 15

years old or younger), borstal institutions (for boys at least 15 years old) or adult prisons (if the child is at least 14 years old). Although a wide range of alternatives to custodial treatment are provided for under the Children and Young Persons Act, magistrates still tend to overuse institutionalization as a remedial measure for children. Out of 40 children interviewed by Human Rights Watch who had appeared in court, 22 were ordered to be deprived of their liberty as punishment: 12 were committed to approved schools; three were committed to borstal institutions, and seven were committed to adult prisons. Out of the other 18 children, five were ordered to be repatriated back to their families in their home villages, one was released with a fine, two were caned and released,9 and six were awaiting sentence.

Conditions in Kenya’s eleven approved schools (under the administration of the Children’s Department) are generally better than in juvenile remand. A principal criticism of approved schools, however, is that children from many different backgrounds, diverse ages, and for different reasons, are mixed together; serious offenders might negatively influence other children who are there simply because they are homeless, abandoned or orphaned. Although approved schools are supposedly aimed at educating and rehabilitating children for return to society, the school’sreputation for being little more than a children’s prison makes it difficult for children to find employment and acceptance when they are released. Children do receive basic education and/or vocational training, although the quality of that education has been much criticized by non-governmental organizations. It is of concern that there is no

schooling available in approved schools for girls beyond Standard 8 level. In contrast, boys in

approved schools have the option of transferring to a special approved school for boys who wish to study beyond standard eight and receive a high school education.

Kenya’s two borstal institutions, Shimolatewa and Shikusa, for boys aged 15 years and above, are under the administration of the Prisons Department. The environment in borstals is noticeably penal and punitive, in comparison with the institutions under the administration of the Children’s Department.

Borstals are located on larger prison grounds, in close proximity to adult prisons, and are staffed by prison officers who are accustomed to dealing with security for adults. Although separated from adults, boys see and pass adult prisoners while out working in the fields or on the common roads of the prison compound. Boys are provided with one uniform only, upon admission to the borstal. Items such as soap, towels, toothpaste, and underwear are not provided. Boys in Shimolatewa complained that running water is not available and that only prefects are allowed to bathe regularly. Food is limited in quantity and poor in quality, resulting in some boys reportedly trading sexual favors for more food.

Most boys receive no academic education at all and are assigned to work teams where they perform hard labor around the prison grounds, and train in tailoring, carpentry, sign writing, brick making, and agricultural work. A very small number are placed in a Aschool sectiofor standards seven and eight only. According to boys interviewed by Human Rights Watch who had been released from the borstals, out of about 300 boys in each borstal, only between 20 and 30 were allowed to study in the school section; the rest worked.

Under Kenyan law, children as young as 14 may also be sentenced to adult prisons by juvenile courts or transferred to adult prisons from approved schools and borstal institutions. As no borstal institutions exist for girls, and admission to approved schools is limited to children under the age of 15, older girls are thus often committed directly to women’s prison. When a child is committed to adult prison, the warrant of committal should clearly identify the child as a minor and, where practicablethe child should be confined separately from adults and should not be allowed to associate with adult prisoners.11 In practice, however, this rarely happens.

Conditions in Kenyan prisons are known to be at times life threatening, with severe

overcrowding, inadequate water, poor diet, substandard bedding, and deficient health care as the norm. In the year 2000, the country's prisons reportedly held two to three times their estimated combined capacity of 15,000 inmates and, according to the Kenyan government, 658 prisoners died in jails during the first 10 months of the year. No children should ever be placed into institutions where such substandard conditions are the norm.

In 1996, Human Rights Watch interviewed six adolescents (five girls and one boy) who had

been sentenced to adult prisons. All reported that they were commingled with adults. They slept on prison floors, and spent their days laboring under the hot sun on prison farms. All children complained of hunger, and reported that they received no education whatsoever or opportunities for recreation. It is important to note that in all six cases, the children appear to have been tried in regular courts for adults, rather than in Nairobi’s juvenile court or in specially convened ad hoc courts for children. Police and magistrates need to make diligent efforts to ascertain the ages of young persons appearing before them, to ensure that children are properly identified and dealt with as children, and not as adults.

In contravention of international juvenile justice standards, Kenyan law continues to authorize corporal punishment of children by judicial authorities and within correctional institutions . In all correctional institution, girls and boys complained uniformly of corporal punishment by staff, and physical abuse by other boys and, where commingled with adults, by adult prisoners. In approved schools, canings, deprivation of home leave, and labor are used as punishments. Punishments in borstal institutions were found to be particularly cruel and severe. Boys reported the use of hard labor (digging), solitary confinement in dark and wet isolation rooms, reductions in diet, and public floggings.

On a positive note, the Kenyan government is currently considering much needed reform of a

number of laws relevant to children, including the Children and Young Persons Act, through the passage of a proposed Children Bill. The Children Bill contains some significant proposed reforms concerning the treatment of children within the justice system, including the abolition of corporal punishment as a judicial remedy, and the placing of time limits on the periods children spend in remand detention or awaiting adjudication of their cases.

However, the problems concerning children’s treatment in large part have had little to do with the content of the existing laws, but rather on their enforcement. Although the Children and Young Persons Act provides for a wide range of alternatives for children accused of

criminal offenses or in need of protection or discipline, local authorities, police, and magistrates continue to lock children away in large numbers under conditions that do little to rehabilitate them or to provide children with an education. Training and greater support is needed for all law enforcement actors, as well as those supervising children’s care, if laws protecting children are to have any meaning. Greater resources, too, should be dedicated towards meeting children’s needs.

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Street children, juvenile justice and corporal punishment in schools

· Local authorities, the Children’s Department, and police, together should cease the practice of rounding up street children, detaining them in remand centers, and committing them without due process to institutions for their care.

· Develop guidelines for police on the proper use of regular and lethal force, including in dealing with children, and train all police (including police reserve officers, administration police, city askaris, and CID police) to ensure that such guidelines are enforced. (Current law contains guidelines on the use of firearms only.)

· Ensure that police and magistrates make diligent efforts to properly identify young persons as children and determine their age, to ensure that children are accorded the special protections they are entitled to before the law; including separation from adults in detention, and the right to appear in special juvenile courts, rather than in regular courts.

· Devote resources for the training of magistrates on how to handle children=s cases and establish additional permanent juvenile courts in Kenya (at the moment only one exists, in Nairobi). At present, children’s cases are often heard in ad hoc juvenile courts where magistrates have little experience or training on how to handle children’s cases.

· Ensure that the Children Bill (the bill which seeks to reform, among other laws, the Children and Young Persons Act) clearly separates criminal from Aprotection or discipline cases@ for children, and that children receive all due process protections required by international law when deprivation of liberty is at issue.

· Eliminate from all existing laws and regulations all provisions authorizing corporal punishment, reduction in diet, and solitary confinement as punishment for children in courts, regular schools, correctional institutions and other institutions for their care. Train all caretakers of children, including school teachers, on the use of alternative methods of teaching and disciplining children.

· Remove borstal institutions from the administration of the Prisons Department, and place under the administration under the Children=s Department.

· Existing laws should be amended to ensure that no one under 18 years be sent to an adult prison.

· Ensure that all children deprived of their liberty receive an education suited to their needs and abilities, and designed to prepare them for return to society. For girls deprived of their liberty in approved schools, provide access to secondary level education, as is provided for boys. For boys in borstal institutions, primary level education should be provided for all boys, not just for boys in Standards 7 and 8.

· Ensure that government officials who work with children are specially educated and trained on how to handle children's cases. Law enforcement personnel, the judiciary (and officers associated with juvenile court proceedings, children's officers and probation officers), and staff at correctional institutions should be sensitized to the special needs and rights of children.

· All relevant government departments (including the Police Department, the Children's Department, the Prisons Department, the Attorney General's Office, and the Ministry of Education) should initiate prompt investigations into allegations of abuse of children by police, institutional staff, and teachers, and should undertake disciplinary or criminal proceedings where appropriate to ensure accountability of all for their actions.

· The new volunteer children’s officers should be adequately oriented to "care and protection" activities to ensure protection for all children in difficult circumstances who may be in need of it. District commissioners should be responsible for ensuring that the work of district health, social service and education officers include attention to AIDS-affected children.

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