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Substantial Injustice: Why Kenyan Children Are Entitled to Counsel At 33100-nyi_45-1 Sheet No. 148 Side A 03/18/2013 11:08:48 \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 1 13-MAR-13 9:24 SUBSTANTIAL INJUSTICE: WHY KENYAN CHILDREN ARE ENTITLED TO COUNSEL AT STATE EXPENSE MADALYN K. WASILCZUK* INTRODUCTION ......................................... 291 R I. DELINEATING THE RIGHT TO COUNSEL AT STATE EXPENSE IN KENYA............................... 295 R II. THE RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW IN KENYA ................................... 303 R A. Domestic Sources of the Rights of Children in Conflict with the Law in Kenya ................ 303 R B. International Sources of the Rights of Children in Conflict with the Law in Kenya ................ 309 R III. WHY THE COURT SHOULD RECOGNIZE THAT ACCUSED CHILDREN HAVE A CONSTITUTIONAL RIGHT TO COUNSEL AT STATE EXPENSE........... 313 R A. The Severity of Charges Against Children ....... 314 R B. The Complexity of Cases Against Children ...... 318 R C. The Capacity of Accused Children To Adequately Defend Themselves ............................ 318 R IV. REALIZING THE RIGHT TO COUNSEL AT STATE EXPENSE FOR CHILDREN IN KENYA ................ 320 R A. The Right to Counsel as Part of a Comprehensive Juvenile Justice System ........................ 321 R 33100-nyi_45-1 Sheet No. 148 Side A 03/18/2013 11:08:48 B. Delivering Legal Aid Despite Resource Constraints .................................. 325 R CONCLUSION ........................................... 333 R INTRODUCTION Imagine a courtroom bustling with people. You squeeze your way past the throng in the hallway, holding your breath to * J.D. Candidate, New York University School of Law, 2013. I would like to thank Professor Philip Alston, Alice Huling, Lisa Sweat, Salona Lutchman, Rachael Young, and Ann Vodhanel Preis for their helpful comments and 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. 291 33100-nyi_45-1 Sheet No. 148 Side B 03/18/2013 11:08:48 \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 2 13-MAR-13 9:24 292 INTERNATIONAL LAW AND POLITICS [Vol. 45:291 narrow yourself as you slide through the open door. Inside people wait listlessly on wooden benches for their cases to be called. A young police prosecutor stands near the front with his stack of files, which isn’t nearly as large as it should be. He doesn’t have them all today, he will tell the magistrate. Some of the cases will have to be rescheduled. Fifteen feet away along the far wall, men sit precariously in a row on a bench, looking like too many books on a library shelf. They’re nearly stacked one on top of the other, yet it takes a moment to real- ize it’s not by choice. The entire dirty-looking row is shackled together. These are the men who were brought from remand prison today. Every once in a while someone in a suit ap- proaches one of them, but many know that no one is coming for them. The people in suits, who spend most of their time clustered at a crowded table opposite the prosecutor, are the defense attorneys. As the magistrate calls out names a suit might answer. More often, a silence hangs over the room before one of the shackled men speaks, explaining his defense attorney will not be there today. The magistrate growls that the attorney should schedule his vacation around his cases but ad- journs the case to another date anyway. Another name is called. Again there is no answer from the defense table. A shackled man is commanded to stand, forcing the men on either side of him to raise their hands awkwardly. Furrowing her brow, the magistrate glances up at the man and down at the file. As she looks up again, she demands his age. “Sixteen,” he answers. She demands to know why he’s in her 33100-nyi_45-1 Sheet No. 148 Side B 03/18/2013 11:08:48 courtroom. He shrugs, not understanding the question in the language of the court—English. After the court clerk para- phrases her question in Swahili, the boy still has no answer. The magistrate, frustrated, remarks that he should not be there and transfers his case to the Children’s Court. He sits back down, returning the hands of the men on either side of him to their laps. The magistrate and prosecutor move on to the next case on their long docket, but you continue contemplating what you’ve just seen. You don’t know how long the boy has been in custody. Given how often the truck is broken down and can’t 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 33100-nyi_45-1 Sheet No. 149 Side A 03/18/2013 11:08:48 \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 3 13-MAR-13 9:24 2012] SUBSTANTIAL INJUSTICE 293 he has not been informed of his rights and therefore is unable to assert them. Without the appointment of a lawyer the pro- tections of the law will likely continue to fail him. The Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR) recognize that children, like adults, have the right to a fair trial.1 In addition, the ICCPR recognizes that under cer- tain circumstances the right to a fair trial includes the right to legal assistance without payment by the accused.2 While the right to counsel at state expense is not considered a funda- mental human right under all circumstances, courts have rec- ognized the important role of legal counsel in safeguarding the rights of the accused.3 Furthermore, states increasingly recognize that “[l]egal aid is an essential element of a fair, hu- mane and efficient criminal justice system” and “a foundation for the enjoyment of other rights.”4 For children, who usually have less understanding of the legal system than the average 1. Convention on the Rights of the Child arts. 37, 40, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]; International Covenant on Civil and Po- litical Rights art. 14(3)(d), Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 2. ICCPR, supra note 1, art. 14(3)(d). R 3. See generally David Njoroge Macharia v. Republic, (2011) E.K.L.R. (C.A.K.), http://kenyalaw.org/Downloads_FreeCases/81236.pdf (Kenya) (“The right to legal representation is almost axiomatic in an adversarial sys- tem.”). 33100-nyi_45-1 Sheet No. 149 Side A 03/18/2013 11:08:48 4. U.N. E.S.C. Comm’n on Crime Prevention and Criminal Justice, U.N. Draft Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Annex, ¶ 1, U.N. Doc. E/CN.15/2012/L.14/Rev.1 (Apr. 25, 2012) [hereinafter Draft Principles and Guidelines]. The international community has recently devoted considerable attention to access to legal aid. For in- stance, in 2004 the Malawi Paralegal Advisory Service hosted a conference in Lilongwe, Malawi, that included “heads of national legal aid boards, lawyers, academics and civil society representatives” who adopted the Lilongwe Dec- laration on Accessing Legal Aid in the Criminal Justice System in Africa. Kersty McCourt, How Malawi Put Access to Justice on the UN’s Agenda, OPEN SOCIETY FOUNDATIONS (May 23, 2012), http://www.soros.org/voices/how- malawi-put-access-justice-un-s-agenda (last visited Sept. 24, 2012). The Lilongwe Declaration was “endorsed by the African Commission on Human and Peoples’ Rights” in 2006, id., and recognized by the United Nations Eco- 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. Id. 33100-nyi_45-1 Sheet No. 149 Side B 03/18/2013 11:08:48 \\jciprod01\productn\N\NYI\45-1\nyi105.txt unknown Seq: 4 13-MAR-13 9:24 294 INTERNATIONAL LAW AND POLITICS [Vol. 45:291 adult, the importance of legal assistance cannot be under- stated.5 As a State Party to the CRC and the African Charter on the Rights and Welfare of the Child (ACRWC), Kenya must recognize certain minimum rights for children in conflict with the law. One right guaranteed by the CRC is the right of an accused child to “legal or other appropriate assistance.”6 This obligation, along with many others in the CRC, was domesti- cated in the Children Act.7 Since the passage of that Act a new Constitution has come into effect, broadening the rights of the accused to representation.8 In 2011, the Court of Appeal of 5. Cf. Mary Berkheiser, The Fiction of Juvenile Right to Counsel: Waiver in the Juvenile Courts, 54 FLA. L. REV. 577, 625 (2002) (“Research by child devel- opment experts supports the Supreme Court’s solicitude for children and the protections the Court has erected for their lack of decision making abil- ity in non-criminal areas of the law. However, nothing in the social science research suggests that juveniles encountering criminal or delinquency pro- ceedings should receive less protection.”); Marsha Levick & Neha Desai, Still Waiting: The Elusive Quest To Ensure Juveniles a Constitutional Right to Counsel at All Stages of the Juvenile Court Process, 60 RUTGERS L.
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