33100-nyi_45-1 Sheet No. 148 Side A 03/18/2013 11:08:48 R R R R R R R R R R R R R ...... 318 TATE ...... 314 S TATE HAT ...... 313 S T * ...... 320 ...... 303 ...... 309 XPENSE ONFLICT WITH THE OUNSEL AT ONSTITUTIONAL E C ENYA ECOGNIZE C C OUNSEL AT ASILCZUK K R ...... 321 C TATE 291 S AVE A ...... 318 K. W IGHT TO H HOULD ...... 295 HILDREN IN NTRODUCTION R IGHT TO I S C ...... 325 HILDREN IN R ...... 303 STATE EXPENSE STATE ADALYN ENYA C OUNSEL AT M OURT K HILDREN C ENYA C C ...... 291 K IGHTS OF ...... 333 R The Capacity of Accused Children To Adequately The Capacity of Accused Children To Defend Themselves The Right to Counsel as Part of a Comprehensive Juvenile Justice System Delivering Legal Aid Despite Resource Constraints Domestic Sources of the Rights of Children in Domestic Sources of in Kenya Conflict with the Law of the Rights of Children in International Sources in Kenya Conflict with the Law The Severity of Charges Against Children The Complexity of Cases Against Children HY THE ELINEATING THE EALIZING THE HE CCUSED IGHT TO XPENSE FOR XPENSE IN AW IN C. E A. B. E L A. B. A R A. B. SUBSTANTIAL INJUSTICE: WHY KENYAN WHY INJUSTICE: SUBSTANTIAL Imagine a courtroom bustling with people. You squeeze Imagine a courtroom bustling with CHILDREN ARE ENTITLED TO COUNSEL AT TO COUNSEL ARE ENTITLED CHILDREN I. D * like J.D. Candidate, New York University School of Law, 2013. I would II. T IV. R III. W ONCLUSION NTRODUCTION to thank Professor Philip Alston, Alice Huling, Lisa Sweat, Salona Lutchman, to thank Professor Philip Alston, Alice Huling, for their helpful comments and Rachael Young, and Ann Vodhanel Preis guidance on early drafts of this Note. I would also like to thank the JILP board for their support and diligence during the editing process. Finally, I would like to thank my wonderful family and friends for their continual love and encouragement. C holding your breath to your way past the throng in the hallway, \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 1 13-MAR-13 9:24 I 33100-nyi_45-1 Sheet No. 148 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 148 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 148 Side B 03/18/2013 11:08:48 [Vol. 45:291 AND POLITICS INTERNATIONAL LAW Another name is called. Again there is no answer from the Another name is called. Again there on to the next case The magistrate and prosecutor move 292 Inside door. the open through slide as you yourself narrow to be for their cases wooden benches listlessly on people wait with near the front stands young police prosecutor called. A He as it should be. nearly as large of files, which isn’t his stack Some the magistrate. he will tell have them all today, doesn’t away Fifteen feet be rescheduled. will have to of the cases in a row on a bench, sit precariously far wall, men along the nearly many books on a library shelf. They’re looking like too to real- of the other, yet it takes a moment stacked one on top is shackled The entire dirty-looking row ize it’s not by choice. from remand are the men who were brought together. These in a suit ap- once in a while someone prison today. Every is coming them, but many know that no one proaches one of of their time in suits, who spend most for them. The people are the table opposite the prosecutor, clustered at a crowded names a suit As the magistrate calls out defense attorneys. the room often, a silence hangs over might answer. More speaks, explaining his defense before one of the shackled men The magistrate growls that the attorney will not be there today. around his cases but ad- attorney should schedule his vacation anyway. journs the case to another date commanded to stand, forcing defense table. A shackled man is raise their hands awkwardly. the men on either side of him to glances up at the man and Furrowing her brow, the magistrate again, she demands his age. down at the file. As she looks up to know why he’s in her “Sixteen,” he answers. She demands the question in the courtroom. He shrugs, not understanding language of the court—English. the court clerk para- After the boy still has no answer. phrases her question in Swahili, that he should not be The magistrate, frustrated, remarks the Children’s Court. He sits there and transfers his case to of the men on either side of back down, returning the hands him to their laps. continue contemplating what on their long docket, but you how long the boy has been in you’ve just seen. You don’t know is broken down and can’t custody. Given how often the truck bring prisoners to court, it’s possible it’s been several weeks. As he sits, shackled between adult men, it’s clear what that delay might have meant. Nevertheless, until now, no one had no- ticed that he was a boy being held with men. Without a lawyer \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 2 13-MAR-13 9:24 33100-nyi_45-1 Sheet No. 148 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 148 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 149 Side A 03/18/2013 11:08:48 R 293 PEN O , While the 2 For children, who usually For children, who 4 Furthermore, states increasingly Furthermore, states 3 , and recognized by the United Nations Eco- , and recognized by the United Nations id. Id. SUBSTANTIAL INJUSTICE SUBSTANTIAL (May 23, 2012), http://www.soros.org/voices/how- note 1, art. 14(3)(d). David Njoroge Macharia v. Republic, (2011) E.K.L.R. David Njoroge Macharia v. Republic, How Malawi Put Access to Justice on the UN’s Agenda How Malawi Put Access to Justice on the supra In addition, the ICCPR recognizes that under cer- In addition, the 1 OUNDATIONS F See generally The Convention on the Rights of the Child (CRC) and Rights of the Child on the The Convention 4. and Criminal Justice, U.N. U.N. E.S.C. Comm’n on Crime Prevention 3. 1. 37, 40, Nov. 20, 1989, Convention on the Rights of the Child arts. 2. ICCPR, OCIETY malawi-put-access-justice-un-s-agenda (last visited Sept. 24, 2012). The malawi-put-access-justice-un-s-agenda (last the African Commission on Human Lilongwe Declaration was “endorsed by and Peoples’ Rights” in 2006, nomic and Social Council (ECOSOC) in 2007. E.S.C. Res. 2007/24, U.N. Doc. E/RES/2007/24 (July 26, 2007). ECOSOC then requested that the U.N. Office on Drugs and Crime develop guiding principles for access to legal aid at the global level. (C.A.K.), http://kenyalaw.org/Downloads_FreeCases/81236.pdf (Kenya) (C.A.K.), http://kenyalaw.org/Downloads_FreeCases/81236.pdf axiomatic in an adversarial sys- (“The right to legal representation is almost tem.”). to Legal Aid in Criminal Justice Draft Principles and Guidelines on Access (Apr. 25, 2012) Systems, Annex, ¶ 1, U.N. Doc. E/CN.15/2012/L.14/Rev.1 The international community [hereinafter Draft Principles and Guidelines]. to access to legal aid. For in- has recently devoted considerable attention Service hosted a conference in stance, in 2004 the Malawi Paralegal Advisory of national legal aid boards, lawyers, Lilongwe, Malawi, that included “heads who adopted the Lilongwe Dec- academics and civil society representatives” Criminal Justice System in Africa. laration on Accessing Legal Aid in the Kersty McCourt, 1577 U.N.T.S. 3 [hereinafter CRC]; International Covenant on Civil and Po- 1577 U.N.T.S. 3 [hereinafter CRC]; International 999 U.N.T.S. 171 [hereinafter litical Rights art. 14(3)(d), Dec. 16, 1966, ICCPR]. S 2012] is unable and therefore his rights of informed not been he has pro- of a lawyer the the appointment them. Without to assert fail him. continue to of the law will likely tections and Political Rights on Civil Covenant the International to have the right children, like adults, recognize that (ICCPR) a fair trial. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 3 13-MAR-13 9:24 tain circumstances the right to a fair trial includes the right to the right to a fair trial includes tain circumstances without payment by the accused. legal assistance have less understanding of the legal system than the average of the legal system than have less understanding right to counsel at state expense is not considered a funda- at state expense is not considered right to counsel have rec- under all circumstances, courts mental human right safeguarding role of legal counsel in ognized the important accused. the rights of the of a fair, hu- aid is an essential element recognize that “[l]egal “a foundation criminal justice system” and mane and efficient of other rights.” for the enjoyment 33100-nyi_45-1 Sheet No. 149 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 149 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 149 Side B 03/18/2013 11:08:48 R Still This 6 [Vol. 45:291 175, 175 (2007) . EV L. R . 529, 529–30(“Youth (2012) EV UTGERS AND POLITICS R ., The Legal Significance of Adolescent , 60 In 2011, the Court of Appeal of In 2011, the Court 8 577, 625 (2002) (“Research by child devel- 577, 625 (2002) (“Research Since the passage of that Act a new Since the passage . 7 . C.R.-C.L. L. R EV The Fiction of Juvenile Right to Counsel: Waiver in The Fiction of Juvenile ARV H . L. R LA F , 47 INTERNATIONAL LAW note 1, art. 40(2)(b)(ii). , 54 supra David Njoroge Macharia v. Republic, (2011) E.K.L.R. at 15 David Njoroge Macharia v. Republic, Mary Berkheiser, 5 See Cf. As a State Party to the CRC and the African Charter on and the African Party to the CRC As a State 6. CRC, 7. of Reports Submit- Comm. on the Rights of the Child, Consideration 8. 5. (“The juvenile needs the assistance of counsel to cope with problems of law, (“The juvenile needs the assistance of counsel to insist upon the regularity of the to make skilled inquiry into the facts, has a defense and to prepare and proceedings, and to ascertain whether he al submit it.”); Jennifer K. Pokempner et Development on the Right to Counsel: Establishing the Constitutional Right to Coun- Development on the Right to Counsel: Establishing a Meaningful Right to Counsel sel for Teens in Child Welfare Matters and Assuring in Delinquency Matters involved in the child welfare and juvenile justice systems are among the most involved in the child welfare and juvenile and delinquency proceed- vulnerable children in society . . . . In dependency whether or not they are adjudicated ings, youth have basic liberty interests in are removed from their homes, dependent or delinquent, in whether they of the services that courts order and in the nature, intensity, and duration stake in these proceedings, youth for them. Given the liberty interests at to provide a safeguard from the must have meaningful access to counsel worst consequences of these systems.”). opment experts supports the Supreme Court’s solicitude for children and the Supreme Court’s solicitude opment experts supports making abil- Court has erected for their lack of decision the protections the social science of the law. However, nothing in the ity in non-criminal areas criminal or delinquency pro- research suggests that juveniles encountering Marsha Levick & Neha Desai, ceedings should receive less protection.”); Waiting: The Elusive Quest To Ensure Juveniles a Constitutional Right to Counsel at Waiting: The Elusive Quest To Ensure Juveniles All Stages of the Juvenile Court Process (C.A.K.), http://kenyalaw.org/Downloads_FreeCases/81236.pdf (Kenya) (discussing that while the previous Constitution disclaimed a right to legal aid, the new Constitution specifically grants legal aid under certain circum- stances). ted by States Parties Under Article 44 of the Convention: Second Periodic ted by States Parties Under Article 44 at 13, U.N. Doc. CRC/C/KEN/ Reports of States Parties Due in 1997: Kenya, 2 (July 4, 2006). the Juvenile Courts 294 under- be cannot assistance of legal the importance adult, stated. must Kenya of the Child (ACRWC), and Welfare the Rights with in conflict rights for children certain minimum recognize of an is the right by the CRC One right guaranteed the law. “legal or other appropriate assistance.” accused child to \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 4 13-MAR-13 9:24 Constitution has come into effect, broadening the rights of the come into effect, broadening the Constitution has accused to representation. obligation, along with many others in the CRC, was domesti- with many others in the CRC, obligation, along Act. cated in the Children 33100-nyi_45-1 Sheet No. 149 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 149 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 150 Side A 03/18/2013 11:08:48 , 295 XPENSE E ONSTITUTION C . Since then, the TATE S but the jurisprudence re- jurisprudence but the OUNSEL AT to criminal cases involving to criminal cases 10 and lay out a test for analyz- and lay C ENYA IN K IGHT TO , (2011) E.K.L.R. at 18. R SUBSTANTIAL INJUSTICE SUBSTANTIAL David Njoroge Macharia v. Republic David Njoroge Macharia recognized a categorical right to counsel at state ex- at state to counsel right a categorical recognized ELINEATING THE 9 David Njoroge Macharia The promulgation of a new Kenyan Constitution in 2010 The promulgation of a new Kenyan In Part I of this Note, I will describe the landmark case of describe the of this Note, I will In Part I 9.highest court in Kenya at the The Court of Appeal of Kenya was the 10. I. D art. 163 (2010) (Kenya). time of the decision in judiciary has been reorganized on the basis of the 2010 Constitution, adding judiciary has been reorganized on the basis case, one has an appeal of right to a Supreme Court. In any constitutional the Supreme Court. The Supreme Court may also certify and hear any other case that involves “a matter of general public importance.” represented a massive shift in the state’s obligations towards represented a massive shift in the 2012] Kenya \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 5 13-MAR-13 9:24 pense for all capital defendants, pense for ing an individual’s right to counsel at state expense under the right to counsel at state expense ing an individual’s analyze the In Part II, I will describe and current Constitution. in Kenya by the children’s rights regime current state of law in domestic and international describing the applicable instru- that my analysis shows international turn. I will assert children in for provision of legal aid to ments set the floor test sug- I will apply the substantial injustice Kenya. In Part III, gested by children and argueby incorporating Kenya’s interna- that Kenya recog- the current Constitution of tional obligations, for chil- right to counsel at state expense nizes a categorical ways in which the right dren. Finally, in Part IV, I will suggest can be realized, first by to counsel at state expense for children right to counsel with funda- describing the interaction of the justice system and then by mental aspects of Kenya’s juvenile both implemented and commenting on legal aid programs to fulfill its duty to provide proposed that will enable Kenya The most important counsel to criminally accused children. the one envisaged by the Le- program that will be described is would bring a comprehen- gal Aid Bill, 2012, which if passed the first time. sive legal aid scheme to Kenya for garding who should be afforded counsel at state expense is at state expense afforded counsel who should be garding still unsettled. Republic Macharia v. David Njoroge 33100-nyi_45-1 Sheet No. 150 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 150 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 150 Side B 03/18/2013 11:08:48 , art. the 11 [Vol. 45:291 art. 77(14). In that case, Id. ONSTITUTION 13 C at 1–3. Despite this broader un- Despite this broader Id. 12 AND POLITICS , (2011) E.K.L.R. at 5 (“The legal issues raised , (2011) E.K.L.R. at 5 (“The legal issues While only a narrow category of indi- While only a narrow 14 , art. 50(2)(h)(2010)(Kenya). INTERNATIONAL LAW David Njoroge Macharia v. Republic. David Njoroge Macharia at 18. ONSTITUTION Id. David Njoroge Macharia C The Kenyan judiciary first gave content to this right in its first gave content to this right The Kenyan judiciary 12. 14. 13. 11. person who is charged with a The repealed Constitution read, “Every 77(2)(d) (1963) (Kenya) (amended 2009) (repealed 2010). However, in Ar- 77(2)(d) (1963) (Kenya) (amended 2009) sharply constrained. Article 77(14) ticle 77(14), the right to counsel was (2)(d) shall be construed as enti- stated, “[n]othing contained in subsection public expense.” tling a person to legal representation at here are complex, with one of the issues relating to the right to legal counsel here are complex, with one of the issues raised before this Court for the first at state expense, completely novel, and David Nguyo, was accosted and time . . . .”). In this case, the complainant, from a bar. After receiving a tip, the robbed by four people on his way home arrested and led officers to a bush appellant, David Njoroge Macharia, was were recovered. The appellant was from which items stolen from Nguyo a capital offence. He was convicted then charged with robbery with violence, the Chief Magistrate’s Court at and sentenced to death after a trial before Court, and after losing in the High Kibera. He then appealed to the High at Nairobi. On appeal, appel- Court, he appealed to the Court of Appeal been afforded the right to counsel lant’s counsel argued that he should have that under the new Constitution, at state expense at trial. The Court found appellant would have such a right; however, his trial took place under the repealed Constitution, which had expressly disclaimed such a right. There- fore, the appellant was not entitled to relief. criminal offence shall be permitted to defend himself before the court in criminal offence shall be permitted to his own choice.” person or by a legal representative of 296 Constitution, the repealed Unlike defendants. criminal \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 6 13-MAR-13 9:24 viduals is granted a right to counsel at state expense under this a right to counsel at state expense viduals is granted defining what circumstances decision, the case is instructive in It also leaves an open would constitute “substantial injustice.” current one recognizes a limited right to counsel at state ex- counsel at state a limited right to one recognizes current the person has “[e]very accused 50(2)(h) states, pense. Article advo- to have an includes the right a fair trial, which right to State the State and at person by to the accused cate assigned to result, and would otherwise if substantial injustice expense, right promptly.” be informed of this derstanding of the right to counsel, the Constitution does not right to counsel, the Constitution derstanding of the circum- injustice” or further enumerate define “substantial to state- a defendant would be entitled stances under which funded counsel. opinion in at state ex- a categorical right to counsel the court recognized where the “accused of capital offences pense for defendants life.” penalty is loss of 33100-nyi_45-1 Sheet No. 150 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 150 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 151 Side A 03/18/2013 11:08:48 15 297 con- , (2010) ONSTITU- C Zipporah Wambui In re In re Zipporah Wambui In re Zipporah David Njoroge Macharia David Njoroge In re Zipporah Wambui Mathara This provision has been inter- This provision has 18 , art. 165(3)(a)(2010)(Kenya); Furthermore, by virtue of their in- Furthermore, by 19 holding in , (2011) E.K.L.R. at 15 (“Kenya is traditionally 16 Article 2(6) states that “[a]ny treaty or Article 2(6) states SUBSTANTIAL INJUSTICE SUBSTANTIAL 17 (“Substantial injustice is not defined under the Consti- (“Substantial injustice , art. 2(6)(2010)(Kenya); , art. 2(6)(2010)(Kenya). ONSTITUTION C , which ruled that international conventional law was international conventional law , which ruled that ONSTITUTION ONSTITUTION TION David Njoroge Macharia C C See generally id. While the court’s opinion in court’s opinion While the art. 60(1) (1963) (Kenya) (amended 2009) (repealed 2010). It also has art. 60(1) (1963) (Kenya) (amended 2009) , Dualist doctrine points to the essential difference of international Dualist doctrine points to the essential in the fact that the two law and municipal law, consisting primarily International law is a law systems regulate different subject-matter. applies within a state and between sovereign states: municipal law regulates the relations of its citizens with each other and with the executive. On this view neither legal order has the power to create or alter rules of the other. When municipal law provides that inter- national law applies in whole or in part within the jurisdiction, this 18. 19. 17. 15. 16.jurisdiction in both civil and The High Court is a court of original a dualist system, thus treaty provisions do not have immediate effect in do- a dualist system, thus treaty provisions may have changed after the coming mestic law . . . . However, this position into force of our new Constitution.”); of Section 2(6) of the Consti- E.K.L.R. para. 9 (“[B]y virtue of the provisions and Conventions that Kenya tution of Kenya 2010, International Treaties, sources of Kenyan Law.”). Monism has ratified, are imported as part of the relationship between domestic and and dualism are ways of describing the international law: Mathara, (2010) E.K.L.R. paras. 3, 9 (C.C.K.), http://kenyalaw.org/ Mathara, (2010) E.K.L.R. paras. 3, Downloads_FreeCases/77605.pdf (Kenya). appellate jurisdiction over cases from the Resident Magistrate’s Court. Mag- appellate jurisdiction over cases from the istrates’ Courts Act, (2007) § 3(1)(Kenya). sidered the rights-protective and institution-protective roles of roles and institution-protective rights-protective sidered the were defendants that capital counsel, its conclusion defense primarily in interna- was based to state-funded counsel entitled validated the significantly, the Court of Appeal tional law. Most Kenyan High Court’s tution, however, provisions of international conventions that Kenya is signa- tution, however, provisions of international 2(6). Therefore provisions of the tory to are applicable by virtue of Article Rights Committee may provide ICCPR and the commentaries by the Human instances where legal aid is mandatory.”). criminal matters. 2012] of defendants groups are other there to whether as question required. expense is categorically counsel at state for whom \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 7 13-MAR-13 9:24 Mathara Article 2(6) in Kenyan courts as a result of directly applicable of the Constitution. convention ratified by Kenya shall form part of the law of Ke- by Kenya shall form part of convention ratified nya under this Constitution.” preted by the court to transform Kenya, traditionally a dualist to transform Kenya, traditionally preted by the court one. state, into a monist 33100-nyi_45-1 Sheet No. 151 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 151 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 151 Side B 03/18/2013 11:08:48 R U.N. The Human 24 [Vol. 45:291 the treaty 25 31–32 (7th ed. FFICE OF THE AW O L , The court also considered The court AND POLITICS 21 NTERNATIONAL I , (2010) E.K.L.R. at 32. , http://www2.ohchr.org/english/bodies/ UBLIC Id. P , (2011) E.K.L.R. As a result, in determining whether in determining As a result, IGHTS 20 R note 1, art. 14(3)(d). UMAN INTERNATIONAL LAW H RINCIPLES OF P supra , R FOR ’ The ICCPR guarantees all persons the right “to have all persons the right “to The ICCPR guarantees at 16, 18. 23 22 OMM In re Zipporah Wambui Mathara David Njoroge Macharia Id. Id. ROWNLIE Under the monist interpretation of the Constitution, the interpretation of the Constitution, Under the monist C is merely an exercise of the authority of municipal law, an adoption is merely an exercise of the authority of law. In case of con- or transformation of the rules of international law the dualist would flict between international law and municipal municipal law. assume that a municipal court would apply B 20. 21. 22. 23. 24. ICCPR, 25.body of independent experts “The Human Rights Committee is a IGH AN 2008). Monism, by contrast, represents a range of views treating interna- 2008). Monism, by contrast, represents same system. The version of mon- tional law and municipal law as part of the court’s espoused view is Hersch ism that most closely describes the Kenyan of international law even within Lauterpacht’s, which asserts “the supremacy views on the individual as the municipal sphere, coupled with well-developed a subject of international law.” H hrc/index.htm (last visited Oct. 21, 2012). States Parties must “submit regu- lar reports to the Committee,” which then issues “concluding observations” that describe the progress of the State Party in implementing the Covenant. Id. Rights Committee: Monitoring Civil and Political Rights Rights Committee: Monitoring Civil and that monitors implementation of the [ICCPR] by its State parties.” that monitors implementation of the [ICCPR] I provisions of the ICCPR regarding legal aid are binding on the ICCPR regarding legal aid are binding provisions of the in Kenyan Kenya and are directly applicable government of courts. 298 to conventions and treaties Constitution, into the corporation supersede conflicting been held to is a party have which Kenya statutory law. Kenyan \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 8 13-MAR-13 9:24 capital defendants are entitled to counsel at state expense entitled to counsel are capital defendants provi- applied the the court directly Constitution, under the and on Human the African Charter the ICCPR and sions of Charter). Rights (Banjul Peoples’ the interests to him, in any case where legal assistance assigned in any such and without payment by him of justice so require, for it.” have sufficient means to pay case if he does not decisions of the Human Rights Committee and other interna- Human Rights Committee and decisions of the instru- as well as non-binding international tional tribunals ments. court noted that the Human Rights Committee, court noted that the Human Rights body responsible for the interpretation of the ICCPR, has body responsible for the interpretation assistance be available in capi- stated, “it is axiomatic that legal of private counsel tal cases. This is so even if the unavailability 33100-nyi_45-1 Sheet No. 151 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 151 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 152 Side A 03/18/2013 11:08:48 299 FRICAN A CCEDED TO THE /A , art. H(a)–(b)(i). Principles and Guide- (last updated Apr. 2, ATIFIED , R IGHTS R S ’ IGNED S EOPLE AVE The court also noted that in de- also noted that The court P H 26 , (2011) E.K.L.R. at 13 (citations omitted). HICH 29 W SUBSTANTIAL INJUSTICE SUBSTANTIAL UMAN AND H http://www.africa-union.org/root/au/Documents/Trea- OUNTRIES 30 C HARTER ON at 13. IST OF C available at David Njoroge Macharia Id. Like the ICCPR, the Charter protects civil rights, includ- the Charter protects civil rights, Like the ICCPR, 27 , L [t]he accused or a party to a civil case has a right to [t]he accused or a party to a civil him or her in any have legal assistance assigned to so require [sic], and case where the interest of justice or party to a civil without payment by the accused sufficient means to case if he or she does not have pay for it. Article 2(6) also makes the Banjul Charter binding on Ke- makes the Banjul Charter binding Article 2(6) also [e]very individual shall have the right to have his shall have the right to have [e]very individual ap- comprises: (a) the right to an cause heard. This national organs against acts violat- peal to competent rights as recognized and guaran- ing his fundamental in laws, regulations and customs teed by conventions, until to be presumed innocent force; (b) the right (c) a competent court or tribunal; proved guilty by the right to be de- the right to defence, including and (d) the right to fended by counsel of his choice; by an impartial be tried within a reasonable time court or tribunal. 28 29. African Charter on Human and Peoples’ Rights art. 7(1), June 27, 30. African Comm’n on Human and Peoples’ Rights, 26. 27. 28. on January 23, 1992. Kenya ratified the Banjul Charter NION FRICAN 2010), ties/List/African%20Charter%20on%20Human%20and%20Peoples%20 Rights.pdf. 1981, 1520 U.N.T.S. 217 [hereinafter Banjul Charter]. lines on the Right to a Fair Trial and Legal Assistance in Africa U A In interpreting the right to a fair trial, the African Commission In interpreting the right to a fair states, on Human and Peoples’ Rights 2012] and even himself, author to the attributable some degree is to entail an adjourn- assistance would of legal if the provision . .” proceedings . . ment of nya. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 9 13-MAR-13 9:24 ing the right to a fair trial. The Charter states that ing the right to termining whether a non-capital case requires free legal coun- free legal case requires whether a non-capital termining (1) considers the Committee “interests of justice,” sel in the the complexity of and (2) “the of the charge” “the severity case.” 33100-nyi_45-1 Sheet No. 152 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 152 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 152 Side B 03/18/2013 11:08:48 [Vol. 45:291 32 Furthermore, the court 34 33 AND POLITICS , (2011) E.K.L.R. at 18. INTERNATIONAL LAW at 9. at 10. 31 Id. David Njoroge Macharia Id. Id. In analyzing the policy reasons for granting counsel at In analyzing the policy reasons Though the Court of Appeal did not explicitly state a test did not explicitly the Court of Appeal Though their regardless of the gravity of any accused person, if receive a court appointed lawyer [sic] crime may in- it. Such cases may be those the situation requires ac- issues of fact or law; where the volving complex own to effectively conduct his or her cused is unable disabilities or language difficulties defence owing to that the public interest requires or simply where be- aid be given to the accused some form of legal of the offence. cause of the nature 32. 33. 31. 34. Two factors that can be distilled from this summary, the com- Two factors that can be distilled or seriousness of the offense, plexity of the case and the nature the ICCPR and Banjul Char- align with considerations under considered by the court, the ter. However, the third factor his own defense, is not pre- ability of the accused to conduct Committee or the Afri- sent in the tests of the Human Rights Peoples’ Rights. Instead it can Commission on Human and own assessment of the naturally emerges from the court’s roles of defense rights-protective and institution-protective counsel. the role of defense state expense, the court first analyzed The court acknowledged counsel with respect to the client. applicable laws and rules of that counsel’s “knowledge of the the court, and his ability to procedure in the matter before relevant, admissible, and relate them to the fact [sic], sieve from what is irrelevant and sometimes complex evidences [sic] inadmissible” make him vital at trial. 300 of justice “[t]he interests that states further Commission The the criminal matters considering: in determined by should be sen- severity of the [and] the of the offence seriousness tence.” its counsel, requires state-funded when justice for determining test. The relevant factors suggests a three-part summary of the court stated that \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 10 13-MAR-13 9:24 noted that without defense counsel a criminal defendant noted that without defense counsel could suffer “incalculable prejudice.” 33100-nyi_45-1 Sheet No. 152 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 152 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 153 Side A 03/18/2013 11:08:48 36 301 35 The South African test consid- This test can be summarized by 38 37 SUBSTANTIAL INJUSTICE SUBSTANTIAL ., 1996, § 35(3)(g). ONST . C FR at 11 (internal citations omitted). S. A Id. While the capability prong is absent from the treaty bod- prong is absent from the treaty While the capability when counsel at South Africa’s scheme for determining Next, the court described the institutional role of the role of the institutional described the court Next, of the bur- trial judges to counsel “relieves the right courtroom basic rules of and enforce den to explain rou- accused in overcoming and to assist the protocol the accused which regular legal obstacles tine and the if he represents himself, for, may encounter is supposed, in the adversarial Court, to our mind, the arbiter and not a pro-active context, to remain proceedings.” participant in the 37. State v. Vermaas; State v. Du Plessis CCT/1/1/94, CCT/2/94; 1995 38. Makhandela v. State 2005 ZAGPHC 20, at 4–5 (S. Afr.). 35. 36. (3) SA 292 (CC) at 304 para. 15 (S. Afr.). While the decision of whether “substantial injustice” would re- While the decision of whether “substantial based on factors such as the sult is one for the judge, it is their complexity or simplicity, “ramifications [of the case] and ineptitude to fend for himself the accused person’s aptitude or how grave the con- or herself in a matter of those dimensions, and any other factor that sequences of a conviction may look, needs to be evaluated . . . .” ies’ interpretations of the ICCPR and the Banjul charter, the of the ICCPR and the Banjul ies’ interpretations issue. Instead, not unique in considering the Kenyan court was has been accused to conduct his own defense the ability of the counsel affecting the right to state-funded considered a factor South Afri- similar to the ICCPR in both the under provisions for the Pro- and the European Convention can Constitution tection of Human Rights. encapsulates the same pur- state expense should be assigned the accused and ensuring an poses of ensuring protection for The South African Consti- efficient, rights-respecting judiciary. fair trial, including the right tution guarantees the right to a to the accused person by “to have a legal practitioner assigned if substantial injustice would the state and at state expense, of this right promptly.” otherwise result, and to be informed 2012] The court stated, defense attorney. criminal \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 11 13-MAR-13 9:24 looking at three factors: (1) “the seriousness of the offense,” looking at three factors: (1) “the and (3) the “capacity of the (2) “the complexity of the case,” accused to fend for himself.” 33100-nyi_45-1 Sheet No. 153 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 153 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 153 Side B 03/18/2013 11:08:48 While 41 [Vol. 45:291 AND POLITICS but also the complexity of the case with but also the complexity of the 40 INTERNATIONAL LAW The European Court of Human Rights (ECHR) The European 39 ¶¶ 34–36 which are complicated in themselves, (“Such questions, Id. The European Convention on Human Rights, while not on Human Rights, while The European Convention Just as the right to counsel without a right to legal aid is Just as the right to counsel without 39. Rights and Fundamental Convention for the Protection of Human 40. Eur. Ct. H.R. (May 24, Quaranta v. Switzerland, App. No. 12744/87 41. Freedoms art. 6(3)(c), Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter Euro- Freedoms art. 6(3)(c), Nov. 4, 1950, 213 pean Convention on Human Rights]. 1991), ¶ 33 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001- 57677. 302 the case, of complexity and the charges of the severity ers the but approach, Rights Committee’s in the Human both factors individual circum- in light of the those factors contextualizes would test While a less individualized the accused. stances of cul- that reduces the same logic easily administrable, be more favor counsels in diminished capacity persons with pability for for purposes individuals’ varying capacities of acknowledging counsel. of assigning state-funded similarity of is also illuminating due to the binding on Kenya, Charter. The to the ICCPR and Banjul its fair trial provisions the right guarantees an accused person European Convention of his in person or through legal assistance “to defend himself pay for legal if he has not sufficient means to own choosing or, of justice so given it free when the interests assistance, to be require.” \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 12 13-MAR-13 9:24 analyzes not only the seriousness of the offense and the sever- the seriousness of the offense analyzes not only ity of the sentence regard to the specific circumstances of the accused. regard to the specific circumstances were even more so for Mr. Quaranta on account of his personal situation: a were even more so for Mr. Quaranta on young adult of foreign origin from an underprivileged background, he had no real occupational training and had a long criminal record. He had taken drugs since 1975, almost daily since 1983, and, at the material time, was liv- ing with his family on social security benefit.”). the ECHR test is formally two-pronged, the subjective com- the ECHR test is formally two-pronged, analyzing the capacity of the plexity prong has the effect of the ECHR test is sub- accused to defend himself. Therefore, test and my proposed stantially similar to the South African Kenyan test. substantial injustice is done ineffective, a test assessing whether aid is ineffective without tak- to an accused without free legal accused to defend himself. ing into account the capacity of the to grant an accused person Therefore, in deciding whether case, the Kenyan judi- counsel at state expense in a non-capital 33100-nyi_45-1 Sheet No. 153 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 153 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 154 Side A 03/18/2013 11:08:48 R 303 AW L recognizes 42 The purpose of 43 44 ONFLICT WITH THE C ENYA IN K Law in Kenya HILDREN IN C SUBSTANTIAL INJUSTICE SUBSTANTIAL note 1, pmbl. (“[T]he child, by reason of his physical note 1, pmbl. (“[T]he child, by reason supra IGHTS OF R CRC, pmbl. HE See Id. Domestic Sources of the Rights of Children in Conflict with the the Rights of Children in Conflict Domestic Sources of Kenyan domestic law, like international law, Kenyan domestic [a]ll judicial and administrative institutions, and all [a]ll judicial and administrative these institutions, persons acting in the name of conferred by where they are exercising any powers the child as the first this Act shall treat the interests of the extent that this and paramount consideration to of action calcu- is consistent with adopting a course the rights and lated to - (a) safeguard and promote and promote the welfare of the child; (b) conserve secure for the child welfare of the child; [and] (c) to make provision for parental responsibility, foster- to make provision for parental guardianship, ing, adoption, custody, maintenance, to make provision care and protection of children; institutions; to for the administration of children’s Convention on the give effect to the principles of the Charter on the Rights of the Child and the African . . . . Rights and Welfare of the Child 42. 43. The Children Act, (2007) § 1 (Kenya). 44. II. T A. and mental immaturity, needs special safeguards and care, including appro- and mental immaturity, needs special safeguards priate legal protection . . . .”) (quoting the Declaration on the Rights of the Child, G.A. Res 1386 (XIV), U.N. Doc. A/4354, pmbl. (Nov. 20, 1959)). It also establishes that 2012] (2) the charge, of the severity (1) the consider should ciary to of the accused (3) the capacity of the case, and complexity of evaluated in light should be These factors defend himself. roles of defense institution-protective and the rights-protective counsel. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 13 13-MAR-13 9:24 the Act is the vulnerability and special needs of children. Kenya’s pri- and special needs of children. the vulnerability Act, concerning children is the Children mary legislation effect on March 1, 2002. which came into 33100-nyi_45-1 Sheet No. 154 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 154 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 154 Side B 03/18/2013 11:08:48 R supra ¶ 45. How- Id. 47 [Vol. 45:291 45 AND POLITICS It also states that children It also states that 46 Therefore, in Kenya, it is possible 48 INTERNATIONAL LAW § 4(3). Id. such guidance and correction as is necessary for the as is necessary and correction guidance such in the public interest. the child and welfare of in juvenile jus- from best practices Kenya deviates One way 45. 47. The Penal Code, (2010) Cap. 63 § 14(2) (Kenya). 48. Comment No. 10 (2007): Comm. on the Rights of the Child, General 46. The Penal Code, (2010) Cap. 63 § age of 14(1) (Kenya). A minimum that the Children Act is being reviewed with the aim of raising the MACR. that the Children Act is being reviewed Reports Submitted by States Parties Human Rights Comm., Consideration of Third Periodic Report of Ke- Under Art. 40 of the Covenant (Continued): 105th Sess., (July 23, 2012). How- nya, ¶ 34, U.N. Doc. CCPR/C/SR.2906, change has taken place yet. ever, the Committee has noted that no Sess., Jan. 15–Feb.Children’s Rights in Juvenile Justice, 44th 2, 2007, ¶ 30, [hereinafter General Comment U.N. Doc. CRC/C/GC/10 (Apr. 25, 2007) two minimum ages of criminal re- No. 10] (“Quite a few States parties use law who at the time of the commis- sponsibility. Children in conflict with the lower minimum age but below the sion of the crime are at or above the criminally responsible only if they higher minimum age are assumed to be have the required maturity in that regard. The assessment of this maturity is left to the court/judge, often without the requirement of involving a psycho- logical expert, and results in practice in the use of the lower minimum age in cases of serious crimes.”). 304 in Ke- justice system the juvenile this model legislation Despite from ideal. nya is far the While of criminal responsibility. minimum age tice is its justice sys- most aspects of the juvenile Children Act establishes to the age at which one becomes subject tem in Kenya, the Penal Code is set by the Penal Code. The formal justice system criminal re- years old as the minimum age of establishes eight in Kenya. sponsibility (MACR) \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 14 13-MAR-13 9:24 for children as young as eight years old to appear in court. The for children as young as eight years Child considers an MACR be- Committee on the Rights of the under the age of twelve are not criminally responsible for their twelve are not criminally responsible under the age of of doing the “unless it is proved at the time acts or omissions to know that omission [they] had capacity act or making the to do the act or make the omission.” [they] ought not criminal responsibility, or MACR, is the “age below which children shall be criminal responsibility, or MACR, is the infringe the penal law.” CRC, presumed not to have the capacity to to the Human Rights Committee note 1, art. 40(3)(a). Kenya has asserted ever, the Committee on the Rights of the Child has noted that on the Rights of the Child has ever, the Committee of the allow the court to assess the capacity provisions that criminal responsibility gener- child in order to determine his of the lower minimum age in ally result “in practice in the use cases of serious crimes.” 33100-nyi_45-1 Sheet No. 154 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 154 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 155 Side A 03/18/2013 11:08:48 R 305 if he is unable shall note 48, ¶ 36 (“The Committee also supra , at 1, SA2590 (“It is . . . imperative and Recommendations and Observations to the Gov- SUBSTANTIAL INJUSTICE SUBSTANTIAL African Union, African Comm. of Experts on the African Union, African Comm. of Experts 51 See also This upper age limit is set by the Children Act, set by the Children age limit is This upper 53 50 The Act does not describe what “assistance” entails. The Act does not ¶ 32. § 186(b). As a result, juvenile justice is one area in which Kenyan is one area in juvenile justice As a result, 52 Id. Id. 49 Article 186(b) of the Children Act governs a child’s access the Children Act governs a child’s Article 186(b) of [t]he child must be guaranteed legal or other appropriate assis- tance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not 49. 50. General Comment No. 10, 51. The Children Act, (2007) § 2 (Kenya). 52. 53. The Committee has explained, Rights and Welfare of the Child, ernment of Kenya by the African Committee of Experts on the Rights and Welfare of the ernment of Kenya by the African Committee of of the African Charter on Child Concerning the Initial Report on the Implementation the Rights and Welfare of the Child urgent to raise the criminal liability age to 12 years.”). urgent to raise the criminal liability age wishes to draw the attention of States parties to the upper age-limit for the wishes to draw the attention of States parties These special rules—inapplication of the rules of juvenile justice. terms for diversion and special mea- both of special procedural rules and rules sures—should starting at the MACR set in the country, for all children apply, of an offence (or act punisha- who, at the time of their alleged commission reached the age of 18 years.”). ble under the criminal law), have not yet to legal representation or assistance in the preparation and or assistance in the preparation to legal representation that “[e]very defense. Article 186(b) states presentation of his having infringed any law child accused of 2012] accept- be internationally “not to years of twelve the age low able.” with be provided by the Government to obtain legal assistance of his de- preparation and presentation assistance in the fence.” \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 15 13-MAR-13 9:24 Nevertheless, “assistance” must be distinct from the “legal assis- must be distinct from the Nevertheless, “assistance” in the preced- has been unable to obtain tance” that the child this form of “assistance” ing sentence of article 186(b). Thus, the assistance is independent raises questions, such as whether the court and whether it of other institutional players within children. This “assistance” gives the requisite voice to accused child sensitivity training stan- also lacks assurance of minimum for this “assistance” it is dards. Without more specific standards from the perspective not clear that the “assistance” is adequate of the CRC. children are particularly vulnerable by international standards. vulnerable by international are particularly children justice in Kenya age limit for juvenile the upper Nevertheless, and the Committee’s of the CRC with the provisions is in line comments. of under the age “any human being a child as which defines eighteen years.” 33100-nyi_45-1 Sheet No. 155 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 155 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 155 Side B 03/18/2013 11:08:48 R R US- 25 EAR J Y YANZA AIROBI ENYA N N K [Vol. 45:291 EWCASTLE N RIME IN text accompany- IGHTS IN C ITUATION IN R S ALLEY CCOUNTS FOR THE HE V UMAN A : T IFT H See also infra OUTH AND The lack of guaranteed (R Y 56 IGHTS AND POLITICS R NAUDITED U HILDREN UMAN HILDREN AND C , H , C note 48, ¶ 49. RUST , UN-HABITAT, RUST EPORT AND . supra , at 5–7, organization reports that it in which the . T . T ’ R USTICE FOR J and that “[t]here is no government legal aid legal “[t]here is no government and that 2010 Id. OUND OUND 54 INTERNATIONAL LAW . F . F RUSTEES See also ES ES SSIAGO ET AL R R ), T ECEMBER A In addition, a 2002 study regarding the legal repre- study regarding the legal In addition, a 2002 TICE 26 (2009). EGAL EGAL UMA 55 J L L 31 D ROJECT Whether or not these provisions may be sufficient in the- in be sufficient may provisions not these or Whether necessarily under all circumstances legal but it must be appropri- necessarily under all to determine how this ate. It is left to the discretion of States parties of charge. The Commit- assistance is provided but it should be free as much as possible for tee recommends the State parties provide as expert lawyers or parale- adequate trained legal assistance, such is possible (e.g. so- gal professionals. Other appropriate assistance sufficient knowledge and cial worker), but that person must have of the process of juvenile understanding of the various legal aspects children in conflict with justice and must be trained to work with the law. P 56. 55. 54. NDED ROVINCE (2d ed. 2007). handled over 3,000 cases in 2010, 81 of which involved children who had handled over 3,000 cases in 2010, 81 of would have received no legal assis- been criminally charged, most of which also reported that despite being tance were it not for JFC. The organization Kenya to receive funding as a pilot chosen in 2009 by the government of the fact that none then existed), it children’s legal aid program (illustrating of 2010 to hire lawyers, nor had a had not yet received funding by the end the government and the organiza- Memorandum of Understanding between tion been finalized. General Comment No. 10, (2002), http://ww2.unhabitat.org/programmes/safercities/documents/ youth.pdf. The study did not address whether children had been provided non-legal “assistance” in the preparation or presentation of their defense under Article 186(b) of the Children Act. ing notes 73–77. P E 306 protected children not sufficiently clear that they have ory, it is Trust, a reputa- Foundation The Legal Resources in practice. noted with concern in Kenya, has aid organization ble legal cases in legal representation are not guaranteed that “children them,” affecting \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 16 13-MAR-13 9:24 sentation of children in Kenya indicated that only 20% of chil- in Kenya indicated that only sentation of children a lawyer, and in criminal court are appointed dren who appear pay for their own. only another 10% scheme in place to ensure the adequate representation of chil- representation of the adequate in place to ensure scheme dren.” legal representation for children means that it is highly un- for children means that it legal representation and substan- rights will be respected at trial likely that their an out- the possibility that they will receive tially diminishes best interests. come that is in their 33100-nyi_45-1 Sheet No. 155 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 155 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 156 Side A 03/18/2013 11:08:48 R , 307 TATE S TOF ’ EP Permissible 59 http://www.state. U.S. D available at This injustice is exacerbated This injustice is note 54, at 27; 61 (2011), supra , ENYA : K RUST The Children Act also limits the Act also The Children Second, if the child is under the age of Second, if the child SUBSTANTIAL INJUSTICE SUBSTANTIAL . T 57 58 EPORT 60 R OUND . F IGHTS ES R R § 190(3). § 190(1)–(2). § subject 191(1) (“In spite of the provisions of any other law and EGAL UMAN L Id. Id. Id. Despite the protective provisions of the Children Act, provisions of the Children Despite the protective In addition to defining children’s eligibility for legal aid, for legal eligibility children’s to defining In addition 57. The Children Act, (2007) § 73(b) (Kenya). 58. 59. 60. 61. gov/documents/organization/160127.pdf. 2010 H some children are still sentenced to terms of imprisonment some children are prisoners. and held with adult 2012] courts. These courts children’s Act establishes the Children other a child, “any charge against to hear have jurisdiction is in which the child or a charge of murder than a charge age of or above the person or persons together with a charged years.” of eighteen \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 17 13-MAR-13 9:24 sentences available when disposing of a child’s case. First, the child’s case. First, disposing of a available when sentences or to order a child to be imprisoned court is not permitted sentenced to death. sent to a rehabilitation school. ten he is not to be by confusion among magistrates and lack of clarity in the law magistrates and lack of clarity by confusion among by the limitations on punishment prescribed as to when the should be considered a child Children Act apply and as to who instance, magistrates have ob- for purposes of sentencing. For alternatives to imprisonment are described in section 191 of are described in section alternatives to imprisonment the Children Act. to this Act, where a child is tried for an offence, and the court is satisfied as to this Act, where a child is tried for an case in one or more of the following to his guilt, the court may deal with the ways – the offender under section 35(1) of the Penal (a) by discharging on his entering into a recognisance, Code; (b) by discharging the offender a probation order against the of- with or without sureties; (c) by making of Offenders Act; (d) by com- fender under the provisions of the Probation person, whether a relative or not, or mitting the offender to the care of a fit to undertake his care; (e) if the a charitable children’s institution willing years of age, by ordering him offender is above ten years and under fifteen to his needs and attainments; to be sent to a rehabilitation school suitable compensation or costs, or any or (f) by ordering the offender to pay a fine, who has attained the age of sixteen all of them; (g) in the case of a child with any Act which provides for the years dealing with him, in accordance institutions [juvenile detention cen- establishment and regulation of borstal the care of a qualified counsellor; ters]; (h) by placing the offender under institution or a vocational (i) by ordering him to be placed in an educational to be placed in a probation hostel training programme; (j) by ordering him Act; (k) by making a com- under provisions of the Probation of Offenders munity service order; or (l) in any other lawful manner.”). 33100-nyi_45-1 Sheet No. 156 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 156 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 156 Side B 03/18/2013 11:08:48 R , 64 RENDS ULE OF MPOWER- , T R E [Vol. 45:291 ]. and human RACTICE 65 : P USTICE J ENYA USTICE AND THE In addition, the gov- K J 67 OMMISSION FOR THE CCESS TO Thus, section 8(7) of the Thus, section C A AND POLITICS 63 note 62, at 24. CCESS TO 22–23 (2011). ENTENCING IN , A supra , S , [hereinafter RUST RUST ISCRETION D OUGHTON . T . T EVELOPED FOR THE -H D OUND OUND INTERNATIONAL LAW 31 (2006) APER UDICIAL . F . F GONDI J ES ES OOR the United Nations Development Programme has the United Nations Development N : A P R R The Sexual Offences Act provides that “where the provides that Offences Act The Sexual P 66 62 § 10(e). ENYA ONNIE MENT OF THE EGAL EGAL C L L Id. K The extent to which child sentencing procedures are ig- The extent to which child sentencing 63. The Sexual Offences Act, (2007) § 8(7) (Kenya). 64. 65. Replies by the Govern- Comm. on the Rights of the Child, Written 66. 62. 67. AW IN ERCEPTIONS AND P ment of Kenya Concerning the List of Issues (CRC/C/KEN/Q/2) Received ment of Kenya Concerning the List of Issues Child Relating to the Consideration by the Committee on the Rights of the (CRC/C/KEN/2), §of the Second Periodic Report of Kenya 10(d), U.N. 28, 2006) [hereinafter Written Re- Doc CRC/C/KEN/Q/2/Add.1 (Nov. plies]. L Both of these ambiguities should be resolved so that individu- should be resolved so Both of these ambiguities of their offense are not sen- als who were children at the time tenced to terms of imprisonment. The frequency with which nored or misapplied is not clear. facilities is not documented, children are imprisoned in adult such records as the government does not keep 308 as pre- sentences minimum mandatory the to imposing jected of de- accused Act on children the Sexual Offences scribed in filement. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 18 13-MAR-13 9:24 observed that “many children stay in remand for more than observed that “many children stay three months even for petty offences.” person charged with [defilement] is below the age of eighteen is below with [defilement] person charged sentence the accused conviction, court may upon years, the of the Borstal Institu- the provisions accordance with person in Act.” and the Children’s tions Act rights groups are not capable of systematically surveying each rights groups are not capable of while the government asserts prison in the country. Likewise, of three months in pre-trial that children spend an average detention, Sexual Offences Act is permissive, rather than mandatory, and Act is permissive, rather than mandatory, Sexual Offences Despite into the sentencing of children. introduces ambiguity of chil- clear prohibition on the sentencing the Children Act’s Offences Act the later-in-time Sexual dren to imprisonment, what sentencing scheme, obscuring establishes a conflicting In addition, are available to the magistrate. sentencing options a person expressed confusion about whether magistrates have at the time an offense as a child but is an adult who committed as an adult. be sentenced as a child or of sentencing should 33100-nyi_45-1 Sheet No. 156 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 156 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 157 Side A 03/18/2013 11:08:48 R R R R R 309 In 70 In its 72 71 , the international sources of note 48, ¶ 49. supra while the UNDP has documented while the note 67, at 31. 68 note 65, § 10(d). note 65, § 10(g). the Law in Kenya supra SUBSTANTIAL INJUSTICE SUBSTANTIAL , supra supra Finally, the protections of the Children Act of the Children the protections Finally, USTICE 69 note 1, art. 40(2)(b)(ii). J supra David Njoroge Macharia The Committee further recommended that The Committee further recommended 73 CCESS TO A Id. The CRC guarantees rights to criminally accused children The CRC guarantees rights to criminally After International Sources of the Rights of Children in Conflict with of the Rights of Children in Conflict International Sources 72. CRC, 68. Written Replies, 69. 70. Written Replies, 71. 73. General Comment No. 10, B. the rights of children in conflict with the law are even more the rights of children in conflict of those rights. Notably, both salient than the domestic sources the Child and the African the Convention on the Rights of of the Child guarantee ac- Charter on the Rights and Welfare trial, including minimum as- cused children the right to a fair incorporation into the sistance preparing a defense. Their a clear floor for the rights of Constitution in Article 2(6) sets criminally accused children in Kenya. “[e]very child alleged as or in Article 40. Article 40 states that penal law has at least the fol- accused of having infringed the or other assistance in the lowing guarantees: . . . to have legal his or her defence.” preparation and presentation of 2012] re- of children number on the data not provide does ernment to adult prisons, manded \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 19 13-MAR-13 9:24 cases of children held in Industrial Area Remand in Nairobi Industrial Area children held in cases of a year. for over are presumably not available to children charged as adults. to children not available are presumably chil- the number of indicates that most recent data While the were charged declining, 180 children as adults is dren charged according to the Prisons Department. as adults in 2006 General Comment No. 10, the Committee on the Rights of the General Comment No. 10, the Committee afforded under Article 40 Child elaborated that the assistance be appropriate and free of need not be legal, but it must charge. charging children as adults despite the clear standards of the as adults despite the clear standards charging children the rule of and magistrates are subverting Children Act, police of Ke- dereliction of its duty, the government law. Despite this to redress the any steps being taken nya has not acknowledged adults, even the rights of children charged as infringement of able to identify such children. though it has been 33100-nyi_45-1 Sheet No. 157 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 157 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 157 Side B 03/18/2013 11:08:48 R 78 Under 77 [Vol. 45:291 The Committee 75 AND POLITICS This guarantee reflects the assump- This guarantee 74 76 INTERNATIONAL LAW note 1, art. 3. supra ¶ 50. art. 4. Id. Id. Id. Id. In General Comment No. 5 on General Measures of Im- In General Comment No. 5 on Therefore, to be in compliance with the CRC, the “assis- in compliance with the CRC, the Therefore, to be the State parties provide as much as possible for ade- possible as as much provide parties the State lawyers such as expert legal assistance, quate trained assis- Other appropriate professionals. or paralegal that person worker), but possible, (e.g. social tance is and understanding sufficient knowledge must have of juvenile of the process legal aspects of the various children in to work with must be trained justice and law. conflict with the Since the CRC forms part of the floor of constitutional Since the CRC forms part of the 75. 76. 74. 78. 77. CRC, This language means Kenya is not absolutely obligated under This language means Kenya is not criminally accused children. the CRC to provide assistance to “appropriate” measures to Instead the state is obligated to take to consider what “ap- fulfill this duty. Therefore it is important propriate” steps might entail. that the appropriateness plementation, the Committee states the specific measures standard is meant to avoid prescribing tance” offered to children under Article 186(b) must be the children under Article 186(b) tance” offered to of the law who has adequate knowledge assistance of someone to work with children. and who is trained 310 \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 20 13-MAR-13 9:24 tion that the person providing assistance is independent of the providing assistance is independent tion that the person Essentially, the person pro- judiciary, police, and prosecutor. similar to the one a defense viding assistance must serve a role able to afford one. lawyer would fill were the accused to determine what the obligations for Kenya, it is important fulfill their duty to children. CRC requires for States Parties to Parties undertake to ensure” In Article 3 of the CRC “States care and protection. that children are given necessary also notes that the assistance “should take place under such assistance “should take place also notes that the be- the confidentiality [of communications conditions that and the granting assistance to the child tween the person child] is fully respected.” Article 4, states are required to “undertake all appropriate leg- Article 4, states are required to “undertake measures for the implemen- islative, administrative, and other the present Convention.” tation of the rights recognized in 33100-nyi_45-1 Sheet No. 157 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 157 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 158 Side A 03/18/2013 11:08:48 R R 4 81 311 82 in , IGHTS OF THE R However, it is 83 It is also important to It is also 80 note 81, at 4 (stating that unlike ONVENTION ON THE C supra note 1, art. 4. other appropriate assistance” was ATIONS other appropriate assistance in the N supra and and Rishmawi, SUBSTANTIAL INJUSTICE SUBSTANTIAL Article 4: The Nature of States Parties’ Obligations NITED U ´ e Alen et al. eds., 2006). This stands in contrast to the e Alen et al. eds., 2006). This stands in See also 20–21 (Andr In addition, this construction of the states’ obligations of the states’ this construction In addition, 1, 79 Textually the African Charter on the Rights and Welfare Charter on the Rights and Textually the African OMMENTARY ON THE 82. art. 46, May 23, 1969, Vienna Convention on the Law of Treaties 79. Comment No. 5 (2003): Comm. on the Rights of the Child, General 80. Human Rights, Legislative His- Office of the U.N. High Comm’r for 81. Mervat Rishmawi, 83. African Charter on the Rights and Welfare of the Child art. HILD A C economic and social rights contained in the CRC, with regard to which economic and social rights contained to the maximum extent of “States Parties shall undertake such measures within the framework of inter- their available resources and, where needed, national co-operation.” CRC, 1155 U.N.T.S. 331. General Measures of Implementation of the Convention on the Rights of the General Measures of Implementation of Sess., Sept. 19, 2003–Oct.Child (arts. 4, 42 and 44, para. 6), 34th 3, 2003, ¶ 26, U.N. Doc. CRC/GC/5 (Nov. 27, 2003). the Child Vol. 1, at 349–56,tory of the Convention on the Rights of U.N. Doc. HR/PUB/07/1 (2007). preparation and presentation of his defence.” preparation and presentation of a qualification that steps should be the ICCPR, the CRC does not include taken “in accordance with the constitutional process.”). 17(2)(c)(iii), July 11, 1990, O.A.U. Doc. CAB/LEG/24.9/49 (1990) (empha- sis added). C of the Child (ACRWC) takes an even stronger approach to le- of the Child (ACRWC) takes an that an accused child gal assistance than the CRC, stating “shall be afforded legal 2012] Conven- the under its obligations to fulfill take state must each tion. as lim- should not be interpreted Therefore, “appropriateness” in the prepa- obligations to provide assistance iting the state’s a civil and of criminal defense (plainly ration and presentation Neither the basis of its available resources. political right) on the right not be considered to give states should the provision or statu- would require either constitutional to take steps that on the Furthermore the Vienna Convention tory amendments. do clearly states municipal legal obligations Law of Treaties for failing to fulfill treaty obligations. not create an excuse \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 21 13-MAR-13 9:24 was meant to avoid allowing states to limit implementation of implementation states to limit to avoid allowing was meant alone. to legislation the Convention the intended construction, since other African Committee of the intended construction, since unclear whether “legal note what the appropriateness standard is not meant to do. In is not meant to standard the appropriateness note what in- political rights the civil and with the ICCPR, accordance availability. not subject to resource the CRC are cluded in 33100-nyi_45-1 Sheet No. 158 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 158 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 158 Side B 03/18/2013 11:08:48 R note supra [Vol. 45:291 Nevertheless, the 85 other appropriate as- other appropriate David Njoroge Macharia or Guidelines on Action for Children http://acerwc.org/wp-content/ AND POLITICS available at , ¶ 55, By providing for “other measures,” the By providing for 86 INTERNATIONAL LAW Furthermore, there are no available interpreta- no available there are Furthermore, 84 Id. The States Parties’ obligations under the ACRWC vary under the Parties’ obligations The States In light of Article 2(6) of the Kenyan Constitution, the 2(6) of the Kenyan Constitution, In light of Article 84. Kampala Conference, Nov. 7–8, 2011, 85. African Charter on the Rights and Welfare of the Child, 86. 83, art. 1. uploads/2012/05/English-ACERWC-Guidelines-on-action-for-Children-in- the-justice-system.pdf (emphasis added). in the Justice System in Africa 312 Child documents, of the Welfare and the Rights on Experts the for Children in on Action its 2011 Guidelines including “legal merely guarantee Justice System sistance.” \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 22 13-MAR-13 9:24 tions of this right by the Committee of Experts. Committee of this right by the tions of ACRWC does under the CRC. While the somewhat from those it does obligations to “appropriate” measures, not limit states’ “in accor- Parties’ obligations to those steps limit the States Constitutional processes.” dance with their with those of obligations almost coextensive ACRWC makes its only take limited caveat that states must the CRC, with the constitutional with their municipal steps that comply processes. set the constitutional mini- CRC and the ACRWC indisputably accused of a criminal mum standard for the rights of children “and” to be a drafting offense. Assuming the African Charter are entitled to some ap- error, that standard is that children and presentation of propriate assistance in the preparation that the “and” is not an error, their defense. Assuming instead children are entitled to legal assistance—a trained lawyer or provision for such assis- paralegal. In either case, legislative Kenya’s treaty obligations. tance alone is not enough to fulfill other necessary and appropri- Instead the state must also take for criminally accused chil- ate measures to provide assistance provide a constitutional ba- dren. While the CRC and ACRWC in criminal matters, my sis for children’s right to assistance by proposed three-part test suggested legal aid to accused children. may require a higher standard of that the Constitution of In the following section, I will argue counsel at state expense. Kenya entitles children to legal states’ obligations include “legislative or other measures as include “legislative or other states’ obligations may be necessary.” 33100-nyi_45-1 Sheet No. 158 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 158 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 159 Side A 03/18/2013 11:08:48 R R R 313 As 91 CCUSED A : “If justice is David Njoroge text accompany- , the rights rec- HAT IGHT TO T R See supra XPENSE and concluded that the In addition, as a result of In addition, as a E 87 ECOGNIZE note 48, ¶ 49. R TATE 88 S Though a social worker or other supra ONSTITUTIONAL David Njoroge Macharia 90 The reason for this preference was The reason for C HOULD 89 S SUBSTANTIAL INJUSTICE SUBSTANTIAL AVE A OURT OUNSEL AT H , art. 50(2)(h) (2010) (Kenya). C In re Zipporah Wambui Mathara In re Zipporah Wambui C David Njoroge Macharia note 1, art. 40(2)(b)(ii). supra HILDREN HY THE and in C ONSTITUTION C While the Convention permits non-legal assistance so permits non-legal assistance While the Convention As discussed in Part II above, under the Convention on under the in Part II above, As discussed The Constitution is unequivocal in recognizing an ac- The Constitution is unequivocal 87. CRC, 88. African Charter to be more As noted in Part II, if one believes the 89. General Comment No. 10, 90. David Njoroge Macharia v. Republic, (2011) E.K.L.R. at 10 (C.A.K.), 91. III. W to be done, [the accused] ought to have the help of someone to be done, [the accused] ought better than a lawyer who has to speak for him; [sic] and who been trained for the task?” protective than the CRC, this constitutional minimum would actually be for protective than the CRC, this constitutional assistance. legal assistance, rather than appropriate http://kenyalaw.org/Downloads_FreeCases/81236.pdf (Kenya) (citations omitted). long as it is appropriate assistance, the Committee on the assistance, the Committee long as it is appropriate for legal has expressed a clear preference Rights of the Child over non-legal assistance. 2012] have are entitled “to Kenyan children of the Child, the Rights and the preparation assistance in other appropriate legal or defence[s].” presentation of [their] \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 23 13-MAR-13 9:24 ing notes 77–79. best expressed in the words of Lord Denning, quoted by the best expressed in the words of Lord Kenyan Court of Appeal in non-legal assistant is certainly preferable to a child having no non-legal assistant is certainly preferable his defense, ideally assistance in preparing and presenting a trained lawyer to prepare every child would have access to and present his or her case. rather than merely some cused person’s right to have a lawyer, assigned to him at state form of legal or non-legal assistance, would otherwise result.” expense “if substantial injustice Article 2(6) of the Constitution as interpreted in Constitution as interpreted in Article 2(6) of the Macharia discussed in Part I, the court considered capital defendants discussed in Part I, the court considered categorically in ognized in the CRC are constitutional rights. Therefore, at a are constitutional rights. Therefore, ognized in the CRC right to have children have a constitutional minimum, Kenyan and assistance in the preparation some form of appropriate their defenses. presentation of 33100-nyi_45-1 Sheet No. 159 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 159 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 159 Side B 03/18/2013 11:08:48 , L 92 ’ NT I (2008) ESEARCH 60 : R [Vol. 45:291 http://www. AW HILDREN L C OUNTRIES C available at ], IGHT EFENCE FOR In addition, while chil- E 94 & D ONFLICT WITH THE AND POLITICS HILDREN C C IBERTY IN OSCH L B 93 URT IGHTS OF K , (2011) E.K.L.R. at 18. HILDREN IN R C EPRIVATION OF D INTERNATIONAL LAW IGHTS OF NIVERSITAIRE The Severity of Charges Against Children The Severity of Charges R U ROTECTING THE P A. ON NSTITUT I David Njoroge Macharia While the seriousness of the offense is far from disposi- While the seriousness of the offense This Note discusses the severity of the charge by analyzing the severity of the charge by This Note discusses LTERNATIVES TO 93. The Children Act, (2007) § 73(b) (Kenya). 94. 92. A ROTECTING THE [hereinafter P defenceforchildren.org/files/gabriella/ResearchMCR_alternativesToDeten- tion.pdf. tive, the seriousness of the effects of the criminal process tive, the seriousness of the effects whether to grant children a should have a stronger bearing on expense. Upon arrest, chil- categorical right to counsel at state usually do not have separate dren are kept in police cells that holding areas for children and adults. 314 state expense. at to counsel them entitled Constitution new enti- should be categorically whether children To determine of the 50(2)(h) under Article at state expense tled to counsel of the (1) the severity must consider Constitution, one present of cases against (2) the complexity against children, charges to de- children of the accused and (3) the capacity children, and institu- of the rights-protective in light fend themselves each of defense attorneys. In considering tion-protective roles rights is important to consider the children’s of these factors it as it is legis- as it currently exists, not merely regime in Kenya the third fac- to the determinative weight of lated to be. Due right to in favor of granting a categorical tor, this test counsels expense for accused children. a lawyer at state of the offense, the serious- three components: the seriousness process, and the seriousness ness of the effects of the criminal These criteria must be con- of the consequences of conviction. the accused, in this case, a sidered relative to the person of seriousness of the offense child. It should be noted that the are charged with murder, will particularly affect children who of having their cases as murder suspects lose the protection heard in Children’s Court. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 24 13-MAR-13 9:24 dren are meant to spend no more than twenty-four hours after dren are meant to spend no more children sometimes spend up being arrested in police custody, to a lack of adequate trans- to two months in police cells due 33100-nyi_45-1 Sheet No. 159 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 159 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 160 Side A 03/18/2013 11:08:48 R R R R 315 PEN O 98 GAINST available . A Regard- 11, 17–25 97 RG See also EPORT TO THE O Lilongwe Declara- R MPLEMENTATION OF 31 (2007), ETENTION ORLD I D , W ENYA K LTERNATIVE RETRIAL note 54, at 18. A RASSO N : P G HILD ON THE HILD IN : A supra C C note 54, at 18. , ENYA ROCHU RUST K supra T NITIATIVES , note 95, at 25–26. of the exact Regardless I . T note 65, § 10(e). ´ ECILE RUST supra HILD IN IGHTS OF THE OUND IGHTS OF THE , USTICE . T SUBSTANTIAL INJUSTICE SUBSTANTIAL C R supra R . F , J & C ES , pmbl. (Nov. 24, 2004) [hereinafter RASSO OUND R Even so, some children are remanded in adult are remanded in some children Even so, . F AROUN 96 & G ES Likewise, the Draft Principles and Guidelines on Likewise, the Draft Principles and EGAL NITIATIVE When children are remanded after their arraign- after remanded are children When L 99 M I R , The Lilongwe Declaration on Accessing Legal Aid in the Criminal 95 IGHTS OF THE AROUN ´ , R ENUS EGAL THE V L M USTICE OMMITTEE ON THE ONVENTION ON THE The effects of the trial process are wide-ranging and dra- trial process are wide-ranging The effects of the including pre-trial Some of the effects of the trial process, J Y ’ C 99. Penal Reform Int’l Conference on Legal Aid in Criminal Justice: The 96. Written Replies, 95. 97. 98. . at 23–31; http://www.omct.org/files/2005/09/3074/kenya_omct_altern_report_ ORTURE OC (2008) (documenting the often poor conditions associated with pre-trial de- (2008) (documenting the often poor conditions and health effects that result tention, and the deleterious social, mental, therefrom). Role of Lawyers, Non-Lawyers, and Other Service Providers in Africa, Nov. 22–24, 2004 Justice System in Africa at crc_eng.pdf. nature of the detention, child abuse is rife in the Kenyan detention system. nature of the detention, child abuse is Id S T UN C matic. Pre-trial detention may remove a child from school. detention may remove a child matic. Pre-trial to sup- be prevented from earning money Older children may may also or their families. Pre-trial detention port themselves or to abuse to torture at the hands of officials expose children may bring prisoners. Appearing in court at the hands of other hardship as publicity, and other psychological shame, negative well. access to counsel. In an insti- detention, could be mitigated by to legal aid is recognized tution-protective capacity, the right criminal justice system. The as promoting the efficiency of the aid to suspects and prison- Lilongwe Declaration notes, “legal the time suspects are held in ers has the potential to reduce courts, and prison popula- police stations, congestion in the tions . . . .” 2012] portation. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 25 13-MAR-13 9:24 ment, they spend an average of three months in children’s re- in children’s of three months spend an average ment, they mand homes. remand facilities where they are vulnerable to abuse. are vulnerable facilities where they remand less of whether they are remanded in children’s remand facili- remand remanded in children’s they are less of whether a remand can have time spent in adult ones, the ties or in Children in remand development. on children’s serious effect and they are from their studies and families, spend time away abuse. to physical and psychological likely to be exposed 33100-nyi_45-1 Sheet No. 160 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 160 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 160 Side B 03/18/2013 11:08:48 R 100 [Vol. 45:291 Id. note 4, ¶ 4. AND POLITICS supra may not be imposed on a child, 102 , art. 49(1)(h)(2010)(Kenya). INTERNATIONAL LAW Third, in court the lawyer will be able to raise Third, in court www.penalreform.org/files/rep-2004-lilongwe-declaration- 101 , Julius Muriira & 3 Others v. Republic, (2008) E.K.L.R. In addition, while the sentences permitted under In addition, while the sentences 103 ONSTITUTION See, e.g. C available at Legal aid can also play a rights-protective role. Providing a play a rights-protective role. Providing Legal aid can also The potential consequences of conviction for children in The potential consequences of conviction ], 103. 102. a de facto moratorium on the It should be noted that there has been 101. 100. Draft Principles and Guidelines, death penalty since 1987. U.N. Human Rights Comm., Consideration of Re- death penalty since 1987. U.N. Human Article 40 of the Covenant: Con- ports Submitted by States Parties Under Rights Committee at Its 105th cluding Observations Adopted by the Human Session (Kenya), July 9–27, 2012, ¶ 10 (advanced, unedited version). Never- theless 1,582 convicts remain on death row, despite the commutation of 4,000 death sentences by the Kenyan president in 2009. (C.A.K.) (Kenya) (holding that the High Court judge erred in sentencing a tion 316 “[l]egal state, Systems Justice in Criminal Aid to Legal Access use diversion and the in facilitating an important role aid plays non- including and measures, sanctions of community-based community involve- greater measures; promoting custodial the unnecessary system; reducing the criminal justice ment in jus- criminal rationalizing and imprisonment; use of detention of State resources.” efficient use and ensuring tice policies; effects counsel helps mitigate the negative child with defense be able to process. First, a child’s lawyer will of the criminal will be able arraignment. Second, the lawyer push for a timely even for seri- child’s bail, which is available to advocate for the ous offenses. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 26 13-MAR-13 9:24 these sentences are still meted out by magistrates who are ei- these sentences are still meted out the law in sentencing ther unaware of the law or who misapply minors. other violations that arise out of the child’s conditions of con- that arise out of the child’s conditions other violations detained his being held with adults or being finement, such as counsel at Fourth, by having access to legal in an adult facility. more likely to of the proceeding, the child is the earliest stages could result from his own be able to prevent undue delay that preparation of his defense. search for legal counsel and the is rights-protective in Finally, having access to legal counsel self-incriminate or accept an that a child will be less likely to of his attorney than he ill-advised guilty plea in the presence the supervision of a guardian. would if left by himself or under in favor of recognizing conflict with the law must also counsel expense. Although imprison- their right to counsel at state ment and the death penalty en.pdf. 33100-nyi_45-1 Sheet No. 160 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 160 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 161 Side A 03/18/2013 11:08:48 R R HE 317 OLICY , T —A P —A properly HILDREN AW 108 C L AVE THE , S 9–11 (2005). ILLIAMS ONFLICT WITH THE -W C note 62, at vi. RACTICE ARRY supra P P , 106 OOD HILDREN IN OHN RUST G : C . T SUBSTANTIAL INJUSTICE SUBSTANTIAL & J OPE H OUND ARTIN note 1, art. 37(b). . F M OSE ES XAMPLES OF those sentences have greater long-term effects on long-term have greater those sentences As a result, many children who would likely grow who would likely many children As a result, L R O supra E 104 105 T EGAL OT Therefore, if children are being diverted Therefore, if children are being LORENCE F L N In sum, while the specific circumstances surrounding the In sum, while the specific circumstances Assigning an advocate at state expense to a child would at state expense to a child Assigning an advocate 107 106. 107. CRC, 105. 104. interpretation, a term of It should be noted that under the ECHR IGHT NALYSIS AND imprisonment of three months was considered severe enough to warrant imprisonment of three months was considered v. United Kingdom, App. No. State-funded counsel for an adult. Benham ¶ 61, http://hudoc.echr.coe.int/ 19380/92 Eur. Ct. H.R. (June 10, 1996), sites/eng/pages/search.aspx?i=001-57990. R A severity of the charge will depend on each child’s individual severity of the charge will depend of liberty as a last re- case, a child should only be deprived sort. penalty is unavailable for minors); sixteen-year-old to death, as the death E.K.L.R. C.A.K. (Kenya) (stating Edward Ochieng Ouko v. Republic, (2006) Court judge failed to take notice that both the trial magistrate and the High and could not be sentenced to a of the fact that the appellant was a child Republic, (2009) E.K.L.R. (C.A.K.) term of imprisonment); Isaac Kigondu v. had wrongly sentenced a child, (Kenya) (holding that a High Court judge and seventeen at the time of sixteen years old at the time of the offense 25(2) of the Penal Code and sentencing, to death in violation of section Section 190(2) of the Children Act). 2012] imposed when severe considered not be Act may the Children on adults, as should be viewed of conviction The consequences children. con- children are of the fact that most severe in light especially not become career and most will petty offenses, victed of criminals. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 27 13-MAR-13 9:24 out of their criminal behavior are sentenced to institutions are sentenced criminal behavior out of their envi- them from their normal developmental that will remove of abuse, them to an increased likelihood ronment, subject their lives. affect the course of the rest of and in doing so, the child’s the abuses of rights associated with prevent many of foremost, a criminal justice system. First and exposure to the and institu- can serve both rights-protective child’s advocate the proper by advising the court of tion-protective purposes any im- for children and appealing sentencing procedures advocate for Second, the child’s lawyer can proper sentences. in cases of petty of- a non-custodial sentence, particularly support institutional goals fenses. This advocacy would also overcrowding, which is a such as the need to reduce prison major problem in Kenya. 33100-nyi_45-1 Sheet No. 161 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 161 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 161 Side B 03/18/2013 11:08:48 [Vol. 45:291 Part IV.A. infra AND POLITICS yet those children may be vulnera- yet those children 109 Defend Themselves INTERNATIONAL LAW The Complexity of Cases Against Children of Cases Against The Complexity The Capacity of Accused Children To Adequately The Capacity of Accused Children To B. A child, almost by definition, would be even less ad- A child, almost by definition, would , David Njoroge Macharia v. Republic, (2011) E.K.L.R. (C.A.K.), 110 C. E.g. Like the seriousness of offenses, the complexity of cases of offenses, the complexity Like the seriousness The determinative factor in recognizing a categorical The determinative factor in recognizing 108. see For a discussion of diversion programs, 109. The Children Act, (2007) § 73(b) (Kenya). 110. 318 in the remain cases that the system, justice the criminal from and severe charges with the most system will be those criminal by competent protection afforded need for the the greatest counsel. However, will vary greatly from child to child. against children Children raises particular cause for concern. one type of case be tried with adult co-defendants cannot who are charged court, before a children’s \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 28 13-MAR-13 9:24 right to counsel at state expense for children is the capacity of right to counsel at state expense are skeptical of the aver- children to defend themselves. Courts effective defense on his own age adult’s ability to conduct an behalf. ble to manipulation or pressure that will result in an unjust or pressure that will result ble to manipulation cases not in their best interests. Furthermore, judgment that is than are inherently more complex with multiple defendants with mul- child is the sole accused. In cases those in which the take on a the child’s defense counsel would tiple defendants, be able to role. The attorney would primarily rights-protective the child’s mental state and raise important issues regarding the attorney would be better relative culpability. In addition, becoming a scapegoat for positioned to protect the child from child would be on his own. the adult defendants than the children’s right to counsel at Under a categorical analysis of the case plays little role. Nev- state expense, the complexity of the jurisdiction of children’s ertheless, cases excluded from be recognized as circum- courts under article 73(b) should be particularly vulnerable stances in which children would without access to an advocate. http://kenyalaw.org/Downloads_FreeCases/81236.pdf (Kenya) (“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may 33100-nyi_45-1 Sheet No. 161 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 161 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 162 Side A 03/18/2013 11:08:48 319 exposes 111 SUBSTANTIAL INJUSTICE SUBSTANTIAL 112 On a more basic level, the international community has On a more basic level, the international Recognizing that a narrow category of children may be a narrow category of children Recognizing that 111. The Penal Code, (2010) Cap. 63 § 14(1) (Kenya). 112. The Children Act, (2007) § 4(3) (Kenya). be tongue-tied, nervous, confused or wanting in intelligence. He cannot ex- be tongue-tied, nervous, confused or wanting it everyday. A magistrate says to a amine or cross-examine witnesses. We see whereupon the man immediately man: ‘you can ask any questions you like;’ done, he ought to have the help of starts to make a speech. If justice is to be someone to speak for him; and who better than a lawyer who has been trained for the task?”) (internal citations omitted). recognized that children are less capable and more vulnerable recognized that children are less recognize that “the than adults. Human rights instruments mental immaturity, needs child, by reason of his physical and appropriate legal pro- special safeguards and care, including 2012] to un- to be able unlikely is extremely so. A child doing ept at of cross-examination, methods the rules of evidence, derstand to the extent neces- his own crime the elements of and even very Assuming an adequate defense. able to raise sary to be se de- pro the most incompetent would make young children years old) MACR (eight Kenya’s very low fendants, \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 29 13-MAR-13 9:24 a range of even more vulnerable child defendants to criminal child defendants of even more vulnerable a range MACRs. do other state systems with higher prosecution than the capac- question of whether a child has The essence of the the child is is this: Will the defense that ity to defend himself lawyer be suf- on without the assistance of a capable of putting regard to “substantial injustice?” Even with ficient to prevent in relatively offenses being adjudicated relatively minor not to be the answer is more likely than straightforward cases, no. determine on an adequate defense, why not capable of putting on a case-by-case basis? The the “substantial injustice” question the right to counsel at most troubling aspect of adjudicating case-by-case basis is that the state expense for children on a to be assigned will have to child or the assistant he is supposed the court. Such a requirement raise and argue the issue before argue such an issue but also demands not only the ability to Furthermore, the “incalcu- the awareness that the right exists. that may result when the ac- lable prejudice” to the accused representation is intolera- cused does not have access to legal due to the fact that the ble with respect to a child, particularly working in the child’s best in- justice system is supposed to be terests. 33100-nyi_45-1 Sheet No. 162 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 162 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 162 Side B 03/18/2013 11:08:48 R R R R R 116 . have Id A cate- XPENSE [Vol. 45:291 115 E Likewise, the TATE 118 governments S , http://worldjusticepro- ) UN Strengthens Right to Legal ENYA note 4, ¶¶ 22, 53–54. K AND POLITICS OUNSEL AT supra note 54, at 27. C Oct. 27, 2012 supra ( Without lawyers to challenge these Without lawyers , note 99, ¶ 1 (emphasis added). The decla- HILDREN IN 117 IGHT TO FOR RUST C supra ROJECT , R . T P note 4, pmbl. The draft was presented to the Commis- note 4, pmbl. The draft was presented OUND INTERNATIONAL LAW USTICE note 1, pmbl. (internal quotations omitted). . F J supra ES Indeed, the United Nations Draft Principles and Principles Draft Nations United the Indeed, R supra ORLD EALIZING THE 113 W state that “[c]hildren should have access to legal aid have access “[c]hildren should state that The document was drafted in response to Resolution 2007/24 of The document was drafted in response EGAL L Lilongwe Declaration HE Id. 114 The right to counsel at state expense comes with a con- The right to counsel at state expense T , IV. R 115. Draft Principles and Guidelines, 117. 116. The Children Act, (2007) § the Rights of the 190 (Kenya); Comm. on 118. 113. CRC, 114. on Access to Legal Aid in The U.N. Draft Principles and Guidelines ject.org/blog/un-strengthens-right-legal-aid. The draft is being sponsored by ject.org/blog/un-strengthens-right-legal-aid. (acting on behalf of the States Georgia, the Philippines, and South Africa of African States). Draft Principles Members that are members of the Group and Guidelines, the Economic and Social Counsel (ECOSOC Resolution 2007/24). the Economic and Social Counsel (ECOSOC Child, Consideration of Reports Submitted by States Parties Under Article Child, Consideration of Reports Submitted Kenya, ¶ 67, U.N. Doc. 44 of the Convention: Concluding Observations: CRC/C/KEN/Co/2 (June 19, 2007). Criminal Justice Systems are slated to be adopted by the General Assembly of Criminal Justice Systems are slated to be Smith, the United Nations in late 2012. Jennifer Aid ration continues to encourage governments to the primary responsibility to recognise and support basic the primary responsibility to recognise of and access to legal human rights, including the provision system.” aid for persons in the criminal justice Justice in Vienna on April 23–27,sion on Crime Prevention and Criminal 2012. Likewise, children are held in prison cells and remand facili- are held in prison cells and Likewise, children separate ac- despite provisions that mandate ties with adults them. commodations for such assistance. The comitant duty of states to provide that “[a]ll Lilongwe Declaration recognizes 320 tection.” \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 30 13-MAR-13 9:24 Guidelines on Access to Legal Aid in Criminal Justice Sys- Criminal Justice Legal Aid in on Access to Guidelines tems under the same conditions or more lenient conditions as lenient conditions or more same conditions under the children. measures” for provide “special adults” and aspirational Act is little more than an practices, the Children piece of paper. gorical right to state-funded legal counsel is one “special safe- is one “special legal counsel to state-funded gorical right As noted above, of all others. would be protective guard” that death despite to imprisonment and children are sentenced juveniles. against those sentences for statutory protections 33100-nyi_45-1 Sheet No. 162 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 162 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 163 Side A 03/18/2013 11:08:48 R R 321 note 4, ¶ 15. As a result, while civil so- As a result, while 120 supra Justice System 119 SUBSTANTIAL INJUSTICE SUBSTANTIAL note 1, art. 4. supra The Right to Counsel as Part of a Comprehensive Juvenile The Right to Counsel as Part of a Comprehensive Furthermore, under the CRC, it is the duty of the state to the CRC, it is the duty of the Furthermore, under [s]tates should consider the provision of legal aid as the provision of should consider [s]tates end, they To that and responsibility. their duty specific enacting where appropriate, should consider, a compre- and ensure that and regulations legislation system is in place that is accessible, hensive legal aid allo- and credible. States should effective, sustainable to human and financial resources cate the necessary the legal aid system. In recognizing the right to counsel at state expense for In recognizing the right to counsel adopt measures and allocate funding sufficient to ensure an effec- adopt measures and allocate funding sufficient legal aid to the poor and tive and transparent method of delivering and in doing so em- vulnerable, especially women and children, aid should be defined as power them to access justice. Legal assistance, representa- broadly as possible to include legal advice, dispute resolution; tion, education, and mechanisms for alternative such as non-govern- and to include a wide range of stakeholders, organizations, religious mental organizations, community-based professional bodies and and non-religious charitable organizations, associations, and academic institutions. A. 119. Draft Principles and Guidelines, 120. CRC, Id. “undertake all appropriate legislative, administrative, and appropriate legislative, administrative, “undertake all rights recog- for the implementation of the other measures Convention.” nized in the present 2012] in Aid to Legal Access on Guidelines and Principles Draft state that Justice Systems Criminal \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 31 13-MAR-13 9:24 accused children, the resource question looms large. After all, accused children, the resource question as it stands, and its the Children Act is not fully implemented representation are largely provisions regarding access to legal right to counsel for accused dead letters. Nevertheless, the to be viable, this right must children can be realized. In order juvenile justice system. The be located within a comprehensive ciety and individual lawyers may play an important role in ef- lawyers may play an important ciety and individual ultimately it is to counsel at state expense, fectuating the right of a of the state to ensure the establishment the responsibility following subparts will sug- functioning legal aid system. The this duty to its children. gest ways in which Kenya can fulfill 33100-nyi_45-1 Sheet No. 163 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 163 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 163 Side B 03/18/2013 11:08:48 R The runs 124 122 [Vol. 45:291 126 One, the Safe Horizon One, the Safe , http://www.thecradle.or.ke/ , http://www.thecradle.or.ke/ 123 125 AND POLITICS note 105, at 74. CRADLE CRADLE supra , HE HE T 121 T , , A pilot diversion program began in A pilot diversion program began ILLIAMS 127 -W ARRY INTERNATIONAL LAW Our History & P ARTIN Id. Id. Child Rights Awareness M Diversion, another key component of a comprehensive ju- Diversion, another key component In order to complement general education and welfare general education and In order to complement In Kenya, non-governmental organizations (“NGOs”) and organizations non-governmental In Kenya, 124. 125. 126. 123. 127. Diversion can happen at any point in the criminal justice process and 121. The Children Act, (2007) (Kenya). 122. to providing legal services to The CRADLE is an NGO devoted programmes/child-rights-awareness (last visited Nov. 10, 2012). programmes/child-rights-awareness (last about-us (last visited Nov. 10, 2012). consists of referring cases away from the formal criminal procedural system. Diversion may be conditional. One scholar describes diversion as follows: “Diversion can be as simple as a formal caution by a police officer or act of Kenyan children. venile justice system, is gradually being embraced by the venile justice system, is gradually Kenyan government. programs and help support the prevention efforts made by support the prevention efforts programs and help of Kenya community groups, the government NGOs and other child offenders. Without ac- should keep accurate statistics on of reported crimes involving curate statistics on the number children, the ages of chil- children, the number of arrested number of convicted chil- dren arrested or charged, and the extent to which juvenile de- dren, it is impossible to know the The problem of accurate in- linquency is a problem in Kenya. misuse of juvenile institutions formation is exacerbated by the deal with impoverished chil- and the juvenile justice system to which obscures the mean- dren who have committed no crime, ing of those statistics that are available. 322 prevention include system would such a for framework basic how- Children Act, components. The as central and diversion juve- programs for provide for any not specifically ever, does from of children or for diversion prevention nile delinquency justice system. the formal to the most prevention programs. Outreach youth groups run groups who major tool for NGOs and youth community is a as well as and leadership programs often run mentorship trainings. For example, The CRADLE rights awareness \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 32 13-MAR-13 9:24 program, works with women leaders in high schools. program, works two programs in schools for girls. two programs in other, the Letter Link Project, is based in primary schools and Link Project, is based in primary other, the Letter through clubs. reaches out to girls 33100-nyi_45-1 Sheet No. 163 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 163 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 164 Side A 03/18/2013 11:08:48 R R R 133 323 As 130 39, 50 (Hatla ID A In addition, the In addition, EGAL 129 note 94. L The goal of the pro- goal of The 128 supra From 2001 to 2004, the From 2001 to 2004, , 131 132 IGHT TO R note 105, at 75. note 105, at 75. HILDREN supra supra UMAN C Where There Is No Lawyer: A Strategy To De- , , A H in , ILLIAMS ILLIAMS IGHTS OF SUBSTANTIAL INJUSTICE SUBSTANTIAL -W -W R ARRY ARRY & P & P at 76. ARTIN ARTIN ROTECTING THE M P M Id. Id. The initial success of the diversion program counsels in of the diversion program counsels The initial success 128. 129. 130. 131. 132. 133. is considered “in need of care The Children Act defines when a child Thelle & Paul Dalton eds., Danish Inst. for Human Rights, 2010). Thelle & Paul Dalton eds., Danish Inst. and protection.” The Children Act, (2007) §and protection.” The Children Act, (2007) (“(1) For purposes 119 (Kenya) protection of this Act, a child is in need of care and – (a) who has no parent his parent or guardian, or is desti- or guardian, or has been abandoned by alms; or (c) who has no par- tute; or (b) who is found begging or receiving or (d) whose parents or guardian ent or the parent has been imprisoned; parent or guardian does not, or is find difficulty in parenting; or (e) whose and guardianship; or (f) who is tru- unable or unfit to exercise proper care (g) who is prevented from receiving ant and falling into bad associations; or is subject or is likely to be subjected education; or (h) who, being a female, or to customs and practices preju- to female circumcision or early marriage or (i) who is being kept in any dicial to the child’s life, education and health; officer, are overcrowded, un- premises which, in the opinion of a medical sanitary or dangerous; or (j) who is exposed to domestic violence; or (k) who is pregnant; or (l) who is terminally ill, or whose parent is terminally ill; or (m) who is disabled and is being unlawfully confined or ill treated; or (n) who has been sexually abused or is likely to be exposed to sexual abuse and favor of its expansion. Currently, the program is heavily fo- favor of its expansion. Currently, of care and protection cused on diverting children in need or without an offer of restitution or apology for the offence committed, with compensation.” Adam Stapleton, 2012] Kisumu. and Nakuru, in Nairobi, 2001 velop Primary Justice Services \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 33 13-MAR-13 9:24 program diverted 2,800 children from courts and resulted in a 2,800 children from courts and program diverted to the chil- number of children referred 90% drop “in the the project areas. dren’s courts” in program is meant to prevent the “criminal contamination” of contamination” the “criminal is meant to prevent program in custody occur when children are kept children that may resources by offenders and to save time and with more serious courts. in processing matters in juvenile avoiding delays departments, included “13 government of 2005, this program organiza- legal networks, 19 community-based 22 NGOs, three stations . . . .” tions and four police gram is “to divert children, especially those in need of care in need of especially those “to divert children, gram is at their earliest the justice system away from and protection, contact—namelypoint of the police—and with to ensure that to to refer children and competent are trained police officers detaining them.” instead of other agencies 33100-nyi_45-1 Sheet No. 164 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 164 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 164 Side B 03/18/2013 11:08:48 R S ’ HILDREN C [Vol. 45:291 in , AND POLITICS 135 147, 154 (Julia Sloth-Nielsen ed., The Impact of International Law on Children’s ERSPECTIVE P EGAL Despite the promise of the diversion pro- Despite the promise 134 INTERNATIONAL LAW note 1, art. 37(b). : A L supra FRICA A Godfrey O. Odongo, See With an effective diversion program in place, the right to diversion program in place, the With an effective 135. 134. CRC, IGHTS IN 2008) (“The potential for unequal access and discrimination in referral of child offenders to diversion calls for the need for diversion to be under- pinned by legislation.”). R exploitation including prostitution and pornography; or (o) who is engaged exploitation including prostitution and mental or moral develop- in any work likely to harm his health, education, of war, civil disturbances or ment; or (p) who is displaced as a consequence to any circumstances likely to inter- natural disasters; or (q) who is exposed development; or (r) if any of the fere with his physical, mental and social to this Act has been committed offences mentioned in the Third Schedule same household as a child against against him or if he is a member of the or is a member of the same whom any such offence has been committed, of such an offence against a household as a person who has been convicted or trafficking of drugs or any other child; or (s) who is engaged in the use of, by the Minister responsible for substance that may be declared harmful this section shall be placed in sepa- health. (2) A child apprehended under rate facilities from a child offenders’ facilities.”). gram, caution should be exercised in its implementation. Un- be exercised in its implementation. gram, caution should breed- diversion systems can become regulated, discretionary espe- due process and human rights violations, ing grounds for of oversight. cially in the absence more re- at state expense would be much counsel for children coming those circumstances, the children alizable. Under arrest and de- would be only those for whom before the court Not only would there be tention was a measure of last resort. counsel, but those who fewer children in need of state-funded be the children who most did require counsel would also whether to assign an closely match the criteria for determining a case-by-case model. Chil- advocate at state expense under of through the diver- dren whose cases could not be disposed presented the most com- sion program would be those who 324 to divert little but it does system, justice juvenile from the away court the formal offenses away from accused of petty children to relieve resource is necessary scale diversion system. Larger the to ensure that justice system and on the juvenile pressures In of the children. the best interests of cases is in outcome aggressive diversion goals, a more to serving practical addition ar- of the CRC that with the mandate would comply program dealing with be measures of last resort in rest and detention child offenders. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 34 13-MAR-13 9:24 Rights on Juvenile Justice Law Reform in the African Context Rights on Juvenile Justice Law Reform in 33100-nyi_45-1 Sheet No. 164 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 164 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 165 Side A 03/18/2013 11:08:48 325 avail- CCESS ], A ANDBOOK MPROVING I H ID A While these centers EGAL 136 L For example, in Kenya, For example, in ANDBOOK ON In addition to being conve- In addition to being 138 , H 137 RIME C SUBSTANTIAL INJUSTICE SUBSTANTIAL RUGS AND 81 (2011) [hereinafter D FRICA A FFICE ON Delivering Legal Aid Despite Resource Constraints Delivering Legal Aid Despite Resource ID IN at 81–82. A TO B. Id. Id. U.N. O http://www.unodc.org/pdf/criminal_justice/Handbook_on_improv- In further developing its juvenile justice system, Kenya juvenile justice developing its In further While this paper does not set out to design a comprehen- While this paper does not set out EGAL L 137. 138. 136. able at ing_access_to_legal_aid_in_Africa.pdf. 2012] non-di- Thus, the severe charges. most the cases and/or plex the child would have in which a would be those verted cases himself. representing most difficulty South African model. the South consider utilizing should also order centers” in child justice developed “one-stop Africa has child rights provisions. to implement its \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 35 13-MAR-13 9:24 sive legal aid program for Kenya, any discussion of the right to sive legal aid program for Kenya, children must consider the legal counsel at state expense for Kenya. Legal aid in Ke- current legal aid environment within through a range of legal nya is currently provided primarily Resources Foundation Trust, aid organizations such as Legal Independent Medico-Legal the CRADLE, Kituo Cha Sheria, Mission, to name a few. The Unit, and International Justice to accept responsibility for Kenyan government has also begun Recently there have been the provision of legal aid services. the provision of legal ser- encouraging developments in both courtrooms serve both as adult and children’s courts. These courtrooms serve both as adult frightening for children. By courts may be embarrassing or a child justice center, the relocating a children’s court into dignified. child may feel less fearful and more nient and allowing different child-serving agencies to work in different child-serving agencies nient and allowing the added to one another, these centers have close proximity in which less stigmatizing than other places advantage of being similar resources. one might find may not be practical in less populated areas, they may be a in less populated areas, they may not be practical centers. in Nairobi and other population practical possibility services in all major juvenile justice These centers combine rooms, po- “holding cells, assessment one building, including rooms for services, a courtroom, and lice services, probation programs.” presenting diversion 33100-nyi_45-1 Sheet No. 165 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 165 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 165 Side B 03/18/2013 11:08:48 R , ERSPEC- USTICE J : P [Vol. 45:291 OOR P While these INISTRY OF 142 M , This pilot project is , http://www.justice.go.ke/ 141 USTICE FOR THE J FFAIRS AND POLITICS in , Many of these pilot projects Many of these A The Programme launched a launched The Programme 140 note 102, ¶ 19. 139 Despite this limitation, this system is Despite this limitation, this system supra 449, 459 (Ayesha K. Dias & Gita H. Welch Delivery of Legal Aid Services in Developing Coun- Delivery of Legal Aid Services in Developing 143 CCESS ONSTITUTIONAL A C INTERNATIONAL LAW CCELERATING at 460. TIVES ON A OHESION AND Id. Id. National Legal Aid (and Awareness) Programme C In 2007 the government launched the National Legal Aid launched the National the government In 2007 The Nairobi Children’s Court Pilot Project, run by the The Nairobi Children’s Court Pilot L ’ 141. 142. David McQuoid-Mason, 143. 139. Human Rights Comm., 140. AT N index.php?option=com_content&task=view&id=162&Itemid=99 (last visited index.php?option=com_content&task=view&id=162&Itemid=99 Sept. 26, 2012). tries: In the Light of South African Experience eds., 2009) (describing judicare). 326 a comprehen- to institute of legislation drafting and the vices aid program. sive legal legal to provide which was formed Programme, and Awareness repre- providing legal with the goal of the short term advice in in the long term. sentation \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 36 13-MAR-13 9:24 well suited to areas where there is no need for a traditional well suited to areas where there a version of a judicare scheme (a method of providing legal a version of a judicare scheme contracts with a network of services in which a legal aid body services). private attorneys to provide legal integrate the principles of innovative legal aid schemes in an of innovative legal aid schemes integrate the principles the govern- wider-ranging legal aid through attempt to provide made under not clear what progress has been ment. While it is examples many of them serve as useful each of these projects, be deliv- counsel at state expense could of the ways in which ered to Kenyans. Children’s Legal Action Net- Law Society of Kenya and the aid, advice, and litigation ser- work, provides legal education, crimes, as well as to children vices to children charged with crime. who are victims and witnesses of number of pilot programs, including the Nairobi High Court programs, including the Nairobi number of pilot Court Pi- Project, the Nairobi Children’s Family Division Pilot Project, the Mombasa Capital Offences Pilot lot Project, the the Nakuru Advise [sic] Office Pilot Project, Kisumu Paralegal Law Pilot Project, and the Moi University Children’s Justice Pilot Project. Clinic (Eldoret) types of programs generally function well when the number of types of programs generally function resources required to cases is relatively few, the administrative volume of cases make it infea- run such a program with a high sible in most situations. 33100-nyi_45-1 Sheet No. 165 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 165 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 166 Side A 03/18/2013 11:08:48 R R R R , 327 FFAIRS A Kenya The gov- The 148 144 University le- 147 The legislation’s ONSTITUTIONAL 151 C This pilot project focuses This pilot project http://www.ksl.ac.ke/index.php? 146 OHESION AND C L ’ available at note 142, at 471–75. AT note 142, at 475. note 142, at 463. Kenya could undertake a similar pro- Kenya could undertake a similar , N SUBSTANTIAL INJUSTICE SUBSTANTIAL supra supra supra 150 USTICE J If the government fails to pass that bill and con- to pass that bill fails If the government text accompanying notes 152–62. 145 to encourage young lawyers to do public interest to encourage young lawyers INISTRY OF M Id. See infra 149 A more ambitious approach to legal aid provision is envis- A more ambitious approach to legal The Moi University Law Clinic follows the pattern of legal Law Clinic follows the pattern The Moi University note 140. 150. McQuoid-Mason, 151. The Legal Aid Bill is currently in draft form and has not yet been 144. 145. 146. McQuoid-Mason, 147. 148. McQuoid-Mason, 149. The Advocates Act, (2012) Cap. 16 § 13(b)(i). After a law student supra tabled before Parliament. It is also not yet included on the 2012 Bill Tracker, which provides an overview of the status of bills before Parliament during finishes her coursework, she must undertake a six-month supervised pupil- finishes her coursework, she must undertake legal work and can be undertaken age. The pupilage consists of supervised or with a private or pub- in an advocate’s chambers, within the government, Overview, Council of Legal Ed- lic corporation. Advocates Program Training ucation, Kenya School of Law, option=com_content&task=view&id=20&Itemid=276. 2012] cases. of low volume to the due defender public \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 37 13-MAR-13 9:24 gram by offering stipends or other incentives to pupils to do gram by offering stipends or other legal services may not oth- their pupilage in a rural area where erwise be available to indigent clients. 2012. aged in the Kenya Legal Aid Bill, work. In South Africa, the government has placed legal interns work. In South Africa, the government work under the supervision in rural law offices to do legal aid of private attorneys. tinues to rely on judicare, the government will make its provi- will make its the government rely on judicare, tinues to services more expensive than necessary. sion of legal aid which have universities around the world, services clinics at quite successful. generally proved on “serving poor, vulnerable and marginalized clients” with a vulnerable and marginalized clients” on “serving poor, education, services” including “legal aid, legal “broad range of litigation and mediation.” [and] referrals for ernment should make an effort to transition from judicare an effort to transition should make ernment one-stop justice more cost-effective like this one to programs dis- Legal Aid Bill, defenders. The traditional public centers or aid legal more comprehensive is a step toward cussed below, provision. require- taking advantage of its pupilage should also consider ment gal aid clinics can be a valuable source of human resources for be a valuable source of human gal aid clinics can a large population of lawyers. countries that lack 33100-nyi_45-1 Sheet No. 166 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 166 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 166 Side B 03/18/2013 11:08:48 156 153 155 http:// [Vol. 45:291 Second, legal available at 154 , Kenya Nat’l Assembly, 10th AND POLITICS http://www.parliament.go.ke/index.php? While the program of legal aid program of While the 152 available at INTERNATIONAL LAW §§ 22–26. § 4(1)–(4). § (1), a 20(3) (“Without prejudice to the generality of subsection Bill Tracker As at 17th September 2012 Id. Id. Id. (a) legal advice and awareness creation; (b) legal representation; (a) legal advice and awareness creation; (c) assistance— resolving disputes other than by legal pro- (i) with or incidental to any pro- ceedings; (ii) with taking steps preliminary effect to any out-of-court ceedings; and (iii) in arriving at or giving any proceedings; (d) in settlement that avoids or brings to an end the provision of legal infor- relation to a justice advisory centre- (i) (ii) undertaking law-reform mation and law-related education; and it serves . . . . and advocacy work on behalf of the community §2. 152. Draft Legal Aid Bill, (June 2012) pmbl.(Kenya), 154. 153. “legal aid” includes According to the Draft Legal Aid Bill, 155. 156. The County Legal Aid Service offices, located in each county, Aid Service offices, located in The County Legal Aid Service policies of the National Legal will implement the duties. legal aid providers, among other and oversee local the year. 328 and accountable sustainable, accessible, an is “to establish goal Legal Aid Service, the National legal aid, to establish system of and access to justice and greater legal awareness to promote matters.” for connected bill in Kenya, the is far from reality the Legal Aid Bill set out in com- it a promising that make a number of features exhibits most First and for the country. legal aid program prehensive with diversi- bill establishes a Legal Aid Fund importantly, the dona- including monies from Parliament, fied funding sources under the Legal Aid Bill. tions, and fees levied \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 38 13-MAR-13 9:24 Parliament, 4th Sess., option=com_content&view=article&id=113:bill-tracker&catid=46:house-busi- ness. aid provision is tiered at the state, county, and ward levels. The at the state, county, and ward aid provision is tiered the bill will Aid Service established through National Legal through- in Nairobi and regional offices have a headquarters and it will be accountable to Parliament. out the country, Id. www.kituochasheria.or.ke/index.php?option=com_docman&task=cat_view& gid=12&dir=DESC&order=name&Itemid=92&limit=5&limitstart=5. County Service office shall perform and be responsible for all or any of the County Service office shall perform and the policy and directives of the Ser- following functions- (a) to give effect to of legal aid in the County; (c) to vice: [sic] (b) the general implementation coordinate and monitor the accred- consider applications for legal aid; (d) ited legal aid providers within the country [sic] (e) to undertake preventive and strategic legal aid programmes; (f) to develop training modules and provide training to paralegals; (g) to organize legal aid camps and clinics, especially in rural and slum areas for the purpose of educating vulnerable 33100-nyi_45-1 Sheet No. 166 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 166 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 167 Side A 03/18/2013 11:08:48 159 329 Subse- 158 161 The incon- 160 § people nonethe- 27(1)(a). These Id. A final positive aspect of the bill is aspect of A final positive 157 SUBSTANTIAL INJUSTICE SUBSTANTIAL § to- (a) 21 (“The functions of a justice advisory centre shall be § 51(4). § 27(1)(b). § 38(2) (“Where a child is brought before a court in proceedings Id. Id. Id. Id. It is also encouraging that the bill specifically provides for that the bill specifically provides It is also encouraging 157. 158. 159. 160. 161. Section 27 of the Legal Aid Bill also provides for legal aid at state sections of the society on their rights as well as encouraging the amicable sections of the society on their rights as relating to legal aid as the settlement of disputes; (h) any other functions Service may direct.”). legal aid services for children. Section 27 states, “[l]egal aid for children. Section 27 states, legal aid services . . a child.” at the expense of the state to . shall be granted it clear behooves the legislature to make Nevertheless it child to be bill that it is mandatory for a throughout the the bill uses at state expense. In section 38, granted legal aid of legal repre- when describing the grant the permissive “may” the court. sentation to a child brought before 2012] paralegals of two a minimum local level, most at the Finally, where centers, of the justice advisory in each will be stationed cases to the County and refer provide legal advice they will as needed. Service offices \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 39 13-MAR-13 9:24 its inclusion of a wide range of legal service providers. The bill providers. The of legal service of a wide range its inclusion advo- (b) pupil of “(a) advocates; the accreditation permits stu- teachers; (e) law lawyers; (d) law non-advocate cates; (c) and employed by the service, government dents; (f) paralegals (g) civil society and non accredited bodies; –governmental . . . .” and (h) university law clinics [sic] organisations gruity between sections 27 and 38 should be resolved, and le- gruity between sections 27 and 38 accused children brought gal aid should be granted to all In addition, the cur- before the court in criminal proceedings. not make clear whether chil- rent formulation of the bill does eligibility criteria. dren have to meet any additional quent drafts of this legislation should clarify whether legal aid quent drafts of this legislation should coordinate legal advice and awareness within the Ward; (b) refer cases in coordinate legal advice and awareness Service office; (c) facilitate and need of legal aid services to the local County (d) encourage the settlement of conduct legal aid clinics within the location; and conciliation; (e) perform disputes by way of negotiation, mediation, by the local County Service office.”). such other functions as may be assigned expense for “a person or group of persons who need legal services but who cannot afford to pay for the services.” under the Children act or any other written law, the court may where the under the Children act or any other written be granted, order that the child child is unrepresented, order that the child be granted legal representation [sic].”) less have to meet eligibility criteria spelled out in sections 28 and 30. Section 28 states, 33100-nyi_45-1 Sheet No. 167 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 167 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 167 Side B 03/18/2013 11:08:48 R [Vol. 45:291 Paralegals have been Paralegals have , http://www.lrf-kenya.org/ 162 RUST AND POLITICS . T note 136, at 31. OUND . F supra ES Second, they facilitate “legal empow- Second, they facilitate , R 163 EGAL L , ANDBOOK INTERNATIONAL LAW H ID A EGAL Third, they “[link] up the criminal justice system by fa- up the criminal justice system Third, they “[link] Our Approach L Id. Community paralegals have also played an important role also played an paralegals have Community 164 (1) The Service may grant legal aid to an applicant in respect of (1) The Service may grant legal aid to proceedings in criminal matters if— (a)the [sic] applicant is a nat- an offence; and (b)it [sic] ural person charged with or convicted of does not have sufficient appears to the Service that the applicant legal assistance; and means to enable him or her to obtain (c)either—the offence to which the application relates is [sic] (i) or (ii) it appears to the Ser- punishable by a term of imprisonment; result if the appli- vice that a substantial injustice would otherwise cant is not granted legal aid.” [a] person is eligible for the grant of legal aid if that person has [a] person is eligible for the grant of to obtain private legal ser- insufficient means to enable him or her vices and —or she is a citizen of Kenya or is a resident in (a) he or refugee under the Kenya; or (b) he or she is an asylum seeker of human trafficking [sic] Refugees Act; (c)He or she is a victim person or a stateless (d)he [sic] or she is an internally displaced of which legal aid is sought person; or (e)the [sic] matter in respect and type of proceedings for is in an area of law and is a type of case (f) the matter is of which the service provides legal aid services; in accordance with the public interest; (g)he [sic] or she applies eligibility require- guide; (h)he [sic] or she meets the prescribed services is approved, in ac- ments; (i) the application for legal aid the guide. cordance with the procedures set out in § 30. § 28. Section 30 reads, 163. 162. 164. index.php?option=com_content&view=category&layout=blog&id=2&Item id=4 (last visited Nov. 29, 2012). Id. Id. 330 and the passage While children. to available is unconditionally Draft to come, the legislation are yet of this implementation and coordination improve the Bill would vastly Legal Aid in Kenya. legal aid services reach of Resources Founda- in Kenya. Legal legal services in providing directly with community paralegals “to work tion Trust trains people to ad- vulnerable and excluded the poor, marginalised, and human rights.” dress social justice \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 40 13-MAR-13 9:24 erment of prisoners so they can represent themselves through so they can represent themselves erment of prisoners on a daily ba- aid clinics inside prisons conducting paralegal sis.” an especially successful source of legal aid in Malawi, where source of legal aid in Malawi, an especially successful advice and First, they provide “legal they serve four purposes. in police in conflict with the law in prison, assistance to those custody and at court.” 33100-nyi_45-1 Sheet No. 167 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 167 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 168 Side A 03/18/2013 11:08:48 R R , E- ID 331 D A Member- RIAL http:// EGAL -T L RE P Access to Justice: The legisla- 171 available at IGHT TO Fourth, they help Fourth, R EDUCING R 165 UMAN the Kenyan legislature A H 170 in RACTICES IN , https://www.cia.gov/library/publica- 166 P CIA, OOD , G , www.lsk.or.ke/index.php/membership (last , www.lsk.or.ke/index.php/membership ENYA SUBSTANTIAL INJUSTICE SUBSTANTIAL sustained, focused effort is needed to sustained, focused K note 127, at 53. NDEX OF 168 , I While paralegal programs have also been suc- While paralegal YOF L ’ ’ supra 167 at 99, 103–04. The Sierra Leone Legal Aid Bill of 2012, OC NT , I S AW TENTION L 9 (2005). EFORM While paralegals already play an important role in pro- While paralegals already play an The World Factbook: Kenya Id. Id. HE R Malawian paralegals have been successful in effecting a in effecting been successful paralegals have Malawian Using paralegals to provide basic legal advice and training to provide basic legal advice and Using paralegals T note 127 169 , 170. Draft Legal Aid Bill, (June 2012) § 65 (Kenya), 171. the formal justice system has An increasing role for paralegals in 169. 165. 166. 167. Stapleton, 168. Project was able to reduce “the In 2004, the Kenya Prison Paralegals ENAL tions/the-world-factbook/geos/ke.html (last visited Nov. 10, 2012); tions/the-world-factbook/geos/ke.html ship visited Nov. 10, 2012). www.kituochasheria.or.ke/index.php?option=com_docman&task=cat_view& gid=12&dir=DESC&order=name&Itemid=92&limit=5&limitstart=5. For example, the Malawi Law been sought elsewhere in sub-Saharan Africa. Society has proposed modifying The Legal Education and Practitioners Act to include “paralegals as service providers.” Bruno Kalemba, The State of Legal Aid Services in Malawi remand population at Thyika [sic] women’s prison from 80 to 20 prisoners.” remand population at Thyika [sic] women’s supra P 2012] po- among coordination better and communication cilitating the community.” courts and lice, prisons, first paralegals policy. Malawian juvenile diversion successful the intent to track in 2003 with the to prisons gained access When of juveniles who were in custody. parents and guardians to screen the prisons regularly, they offered they began visiting from the for- they were eligible for diversion juveniles to see if of screening system. After twelve months mal criminal justice expanded to police stations, the program was children in four paralegals di- Between 2004 and 2007 the all police stations. criminal cases away from the formal verted 77% of children’s justice system. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 41 13-MAR-13 9:24 “[inform] policy on legal aid.” policy on legal “[inform] cessful in Kenya, tool. an effective juvenile justice make those services Kenya, where there are far is especially important in places like world. Kenya has 8,001 fewer lawyers than in the developed 43 million peo- lawyers for a population of approximately ple. and have a recognized role viding legal services in Kenya under the Draft Legal Aid Bill, should consider expanding their role further. should consider expanding their 33100-nyi_45-1 Sheet No. 168 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 168 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 168 Side B 03/18/2013 11:08:48 R R R ID 11, A supra CCESS OORDI- May , A C EGAL ( L [Vol. 45:291 IGHTS R NITIATIVE This amount of I UMAN 176 H OOPERATION AND USTICE New Legal Aid Law in Sierra FOR C J . Y OMPARISON OF THE ’ The work is also sporadic NST OC AND POLITICS I : A C S 175 EVEL OF L 69 (2011). PEN ANISH FRICA O note 136, at 28; McQuoid-Mason, , A While pro bono requirements for While pro bono ., D CTORS 174 AST supra A note 142, at 457–58. , E supra ID IN EGION AND THE ARIOUS In addition, the cost of paying a paralegal In addition, the A R V ANSEN ET AL ANDBOOK 173 INTERNATIONAL LAW As long as certified paralegals were trained sim- were trained as certified paralegals As long H EGAL ID O. H L 172 A SED IN THE ETWEEN THE TO NATION HOMAS EGAL U L T B , http://www.soros.org/voices/new-legal-aid-law-sierra-leone-em- Though there are many innovative options for providing Though there are USTICE AND J 175. 176. 172. Cap. 75, Subsidiary Legisla- The Criminal Procedure Code, (2010) 173. lawyer as opposed to a police If the prosecutor on a case is a trained 174. McQuoid-Mason, CHEMES 2012) braces-role-paralegals. tion L.N. 234/1972 (Kenya). to provide legal representation. prosecutor, a paralegal should not be used note 142, at 458. S passed by the legislature and currently awaiting the assent of the President, passed by the legislature and currently Legal Aid Bill, (2012) §also includes an extensive role for paralegals. 65 Teale, (Sierra Leone); Sonkita Conteh & Lotta Leone Embraces the Role of Paralegals 332 of level a certain with paralegals trained permit should ture of un- on behalf in magistrates’ courts to stand up certification of police officers Currently, indigent defendants. represented may serve as public or higher of Assistant Inspector the rank prosecutors. a team of that of paying an attorney, and would be less than they could work under an attorney to whom paralegals could were too complex. refer a case if it here, there is of which have been discussed legal aid, not all requires law- should not be pursued. Kenya one scheme that to renew a pro bono requirement in order yers to complete their practice certificates. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 42 13-MAR-13 9:24 and uncoordinated. The Law Society of Kenya estimates that and uncoordinated. The Law Society services through its Legal 300 lawyers have offered pro bono years. Awareness Week over the past three private attorneys may appear an attractive option because they may appear an attractive option private attorneys rather than on the govern- impose costs on private attorneys primary method of ment, they should not be the government’s indigent defendants. Too ensuring the right to counsel for of lower quality often, pro bono work results in representation than that afforded paying clients. ilarly to police prosecutors, this scheme would provide greater this scheme police prosecutors, ilarly to defense than between the prosecution and equality of arms currently exists. work is not sufficient to meet the needs of indigent clients. work is not sufficient to meet the 33100-nyi_45-1 Sheet No. 168 Side B 03/18/2013 11:08:48 Side B 03/18/2013 Sheet No. 168 33100-nyi_45-1 33100-nyi_45-1 Sheet No. 169 Side A 03/18/2013 11:08:48 333 ONCLUSION C SUBSTANTIAL INJUSTICE SUBSTANTIAL The recognition of a categorical right to counsel at state of a categorical right to counsel The recognition 2012] be used should requirement pro bono current the Therefore, but legal aid services, supplementary to provide to continue pro- responsibility to not abdicate its should the government on by relying solely persons to indigent vide representation such a program. children is an important rights-protective expense for Kenyan a strong The Children Act establishes procedural safeguard. of juvenile background for the adjudication rights-respecting failure to im- the judiciary’s ongoing cases in Kenya. However, the need for Act properly means that plement the Children otherwise greater for children than it would counsel is even this right is effective program of diversion, be. Without an bear. There- resource-intensive for Kenya to likely to be too obliga- ahead to fulfilling its constitutional fore, in looking of non-custodial sentencing tions, Kenya must make good use the first point of contact with procedures as well as diversion at should pass the pending Le- the justice system. Further, Kenya coordinated legal aid gal Aid Bill to provide comprehensive, continue to take lessons services. The country should also determine how to structure from other developing nations to aid system that meets the a cost-effective, innovative legal planning and execution, Ke- needs of children. With careful for the fulfillment of its duties nya can become a model nation to juvenile defendants. \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 43 13-MAR-13 9:24 33100-nyi_45-1 Sheet No. 169 Side A 03/18/2013 11:08:48 Side A 03/18/2013 Sheet No. 169 33100-nyi_45-1