WHY AM I HERE?
By Elizabeth Njambi and Julu Okadia
“Hello, I work at Wakilisha Initiative. My colleagues and I just want to talk to you, to find out more about your case and well-being… Let’s start with, why are you here?” This is a question well known to several boys at Kamiti Youth Correction and Training Centre (“YCTC”) when they first interact with officials and advocates from Wakilisha Initiative. In early 2018, E. Njambi had the privilege to volunteer at a data collection exercise at YCTC. For some reason, despite being told that she was heading to Kamiti YCTC, the Kamiti had not quite sank in until she got there and saw the high double walls of the Maximum Prison. Oh my God. I’m at Kamiti! For any Kenyan, Kamiti resonates with doom. It is the place they take the worst criminals. The kind of place you never want to go to. One could only imagine how much more traumatic it must be for a child to be in such an environment albeit less tense compared to the Maximum-Security Prison and the Medium-Security Prison. Indeed, the YCTC is indeed inside Kamiti, but a good distance from the Main Maximum and Medium Prisons. It has more of a school set up, as opposed to a correctional facility. Surprisingly, right next to it, is the Kamae Girls’ Borstal Institution. Notably, the wardens/ officers are friendly to both outsiders and the very boys remanded at the facility.. This tone in their reception has to a considerable extent permitted one to be at ease in listening to the narrations by the Juveniles.
Most of these narrations would be prompted by the question, “why are you here?”. Ordinarily, the answers would be more or less the same and one would think they had rehearsed them, but that is the reality of their lives. Most Juveniles at YCTC are from poor families and a good number reside in the slums. Considerably, some were homeless while others had run away from home for various reasons. Majority of these Juveniles do not understand the charges against them while those who do would, barely give more than two statements worth of a brief. They do not understand the significance of witness statements, their right to be availed with such statements or their right to legal representation; among other rights. Few have had or have advocates and in some instances these Juveniles have little or no faith in their advocates because they feel that these advocates have too many cases and looked overwhelmed However, some have positive engagements with their advocates despite a lack of proper understanding of the charges against them but nonetheless hopeful that their advocates are handling their matters well enough due to the open and constant communication with these advocates.
As you get to interact more with these Juveniles, a question emerges, “Why am I here?” . By this you realise that children in conflict with the law are largely neglected. They were and are a forgotten lot in society and whenever discussed, they would be labelled as criminals; thieves and “delinquents”. Yet, we must continue engaging this lot, which had it had a different upbringing, could have very well been ‘in’ the roundtables of Juvenile Justice and not ‘on’ the agenda to these roundtables. . As such, in our initial interactions with them, we must keep asking ourselves, “what impact does our engagement with them have in their lives and this question should drive us to make the difference we desire.
For E. Njambi, it was research and collaborations with organizations that engage in conversations on matters Juvenile Justice such as the HiiL Innovative Justice Challenge. Later on, she founded Wakili.sha Initiave so as to create a solution to the lack of legal representation for children in conflict with the law by providing a platform where Juveniles can meet Advocates who offer services on Pro Bono basis.
For J. Okadia, in seeking to make a difference, it was a resolution to take up Juvenile matters Pro Bono. Wakili.sha Initiative ensures that Advocates are introduced to unrepresented children, who are then teamed up with Law student-volunteers to assist with research and court attendance. This ensures that advocates are able to run their legal practices while promoting access to justice for the most vulnerable members of society.
The initiative further runs a mentorship program and talent development sessions at Kamiti YCTC to aid in reintegration and reduce recidivism. Further, Wakili.sha promotes public awareness and advocacy through social media, training forums and virtual webinars. Taking a further step to fill the informational gap with regard to juvenile justice in Kenya, Wakili.sha shall be launching a Juvenile Justice Resource Hub this Children Rights Month (November 2020) and a podcast come 2021!
The backdrop to the effort by Wakilisha is the appreciation that without legal counsel, a layman may not effectively defend himself. This notwithstanding, legal services are quite expensive, making it difficult for the poor to access them. However, Article 50 of the Constitution of Kenya guarantees the right to a fair hearing while Article 48 provides for the right to access to justice. Despite these Constitutional guarantees, which are also echoed in the Legal Aid Act and the Children Act, 80% of children in conflict with the law face charges in court without legal representation. There are several NGOs in Kenya providing free legal services but most of the legal aid services involving children relate to family matters on maintenance and child neglect; or cases involving child victims. Though such services are necessary and commendable, there is little focus on children in conflict with the law. Adding salt to injury, State-provided public defenders are often unable to provide their best services due to limitations in resources such as time and money.
By labelling children in conflict with the law as “hopeless delinquents”, we effect a great disservice to them by failing to recognize the impact of their upbringing on their lives. Children from poor backgrounds and slum-dwellings are often exposed to crime at a young age. This, compounded with the need to fend for themselves at a young age, leads many children into various forms of crime. Instead of disregarding them as reject members of society, we should in fact recognize that they are victims of an unjust world.
The UN Committee on the Rights of the Child has stated that children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. Furthermore, in all matters concerning children, including those in conflict with the law, the best interest of the child must be considered and upheld. In the juvenile justice system, this is ensured by the right to be held separately from adults, the right to legal representation and the right to be held in custody only as a last resort; among other rights. It is also in a child’s best interest that rehabilitative, as opposed to punitive, justice methods are sought.
The gap as noted above can be addressed by having more Advocates take up representation of Juveniles. To many a Advocates, the ideals of the profession are on billable hours and the idea that there is a child who calls up for free legal services doesn’t quite fit the narrative that most advocates would adopt. With entities such as Wakili.sha, one gets a sense to which advocates should adopt a varied narrative, a narrative that appreciates the existence of children in conflict with the law who are not going to make our billable hours’ target.
As Advocates, it is imperative that we get involved in Juvenile Justice. One of the grounds by which Advocates should be driven to be involved is the belief that the Rule of Law is better appreciated when advocates are at the forefront. The commencement point for any advocate in advancing a Juvenile’s case should be on Article 28 of the Constitution which advocates for Human Dignity and children in conflict with the law are no exception. In any event, Juvenile Justice has shifted from the doctrine of parens patriae and rehabilitation of children in conflict with the law to welfarism and child justice aimed at reintegration of offending children back to society.
However, despite these changes, in the course of proceedings in Juvenile Courts, one notes that the various Magistrates and Judges do not appreciate the precarious position that Juveniles find themselves in. This is in total disregard to Article 53 of the Constitution which advocates for the Best Interest of the child as well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) which apply in Kenya by virtue of Article 2 (5) and 2(6) of the Constitution. As an Advocate, one should endeavour to appreciate these provisions in the course of his/her work representing Juveniles. Advocates are vital in this regard as it is important that the provisions of the law are pointed out to the Magistrates and Judges. Unfortunately, advocates representing the prosecution have compounded to the challenges Juveniles face in the administration of justice in their matters as most prosecutors do not differentiate the criminal matters and matters involving children in conflict with the law.
The attitude fronted by most of the Magistrates, Judges (who were all advocates prior to these positions),Prosecutors and some Defence Advocates that juvenile matters are nothing short of the ordinary criminal cases betray the oath sworn to uphold justice. The justice contemplated is based on Equity to appreciate each and every person’s circumstances including the circumstances that juveniles find themselves in. As such, the journey towards a fair and proper juvenile justice regime in Kenya cannot be complete without involving advocates who are ready and willing to take up Juvenile matters.
To anyone reading this, advocates et al., we leave you with this: There are 15,000 advocates in Kenya serving a population of over 53 million Kenyans. A recent report by the Kenya National Bureau of Statistics (“KNBS”), UNICEF Kenya, and UN WOMEN Kenya showed that “7 million or 42% of children under 18 live in monetarily poor households” and “Nearly 1 in 3 children live in households lacking the minimum of nationally agreed financial resources and are deprived of a minimum of 3 or more basic needs and services.” Children are our future. They are vulnerable members of society in need of care and protection. So, why are you here?