Taskforce on Children Matters

The NCAJ Special Taskforce on Children Matters was appointed by the Hon. Chief Justice vide Gazette Notice No. 369 of 29th January 2016 with a mandate to address gaps regarding the administration of justice with regard to children, and is under the leadership of Hon. Lady Justice Martha Koome. It is mandated to deliver on sixteen areas that form the terms of reference. They are collapsed into three thematic areas which are:

1) Legislative, policy, procedural and practice directions reforms,

2) Survey and data compilation on all matters of children and training, and

3) Infrastructure and co-ordination of all the actors.

 

The 16-fold mandate is as follows:

  1. To review and report on the status of children in the Administration of Justice.

  2. Examine the operative policy and legal regimes as well as the emerging case law to identify the challenges and make appropriate recommendations.

  3. Assess, review, report and recommend on the service standards of each of the justice sector institutions with respect to children matters.

  4. Prepare draft rules of procedure for enforcement of fundamental rights of children.

  5. Conduct a situation analysis of the existing infrastructure and Equipment in the criminal justice system in regard to children matters and develop guidelines for the monitoring, supervision and inspections for holding facilities.

  6. Develop guidelines for Child Protection Units and propose mechanisms for the establishment of Child Police Unit in the National Police Service.

  7. Develop the Court Practice Directions on children cases.

  8. Develop the Diversion Regulations.

  9. Develop a Policy on Mandatory Continuous Professional Development program on child rights for Justice and examine, review the training curricula on children.

  10. Develop policies on re-integration of children accompanying imprisoned matters.

  11. Develop policies on separated cells for children.

  12. Development of the guidelines for children with special needs.

  13. Develop guidelines for inclusion of children with special needs in the Juvenile Justice Actors procedure to be included in the practice guidelines.

  14. Develop a coordinated sensitization and awareness strategy.

  15. Develop a form for presenting the P&C cases in court.

  16. Improve co-ordination of the Juvenile Justice Actors at the National and County level.

The Leadership of the Taskforce includes;

A Chairlady – Honourable Lady Justice Martha Koome, Judge of the Court of Appeal

A Vice Chair – Grace Ndirangu, Office of Inspector General

A Secretary – Noah Sanganyi, Director of the Department of Children Services

It also has a secretariat that constitutes;

  1. Juliet Gachanja, Technical advisor

  2. Roselyne Kabata, Program Assistant

  3. Martha Mueni (NCAJ/OCJ),

  4. Manuela Kinyanjui

The NCAJ Special Taskforce on Children Matters collapsed the 16 core mandates into three thematic areas which are;

1) Legislative, policy, procedural and practice directions reforms,

2) Survey and data compilation on all matters of children and training, and

3) Infrastructure and co-ordination of all the actors.

From these thematic areas, the Taskforce created three committees to deal with each. The committees are;

  1. Legislative and policy Reform Committee – this focuses on legislative, policy and guidelines reforms.

  2. Quality of Care, Infrastructure and Survey and data Committee – it is set to improve children institutions by advocating for standards of duty of care. Under this theme the taskforce plans to lobby for a Juvenile Justice Data Management System

  3. Coordination and Sensitization Committee – The third thematic area mainly focuses on Coordinating the Child Justice Actors, developing a coordinated curriculum and conducting a training of stakeholders on children matters and as well as the day to day co-ordination of the Taskforce work.

Efforts made by the NCAJ Special Taskforce on Children Matters

The taskforce is committed to ensure that the observance of the principle of the best interest of the child especially in the justice sector. Towards this, each committee of the taskforce has a workplan and deliverables to ensure that this mandate it fulfilled. The successes and efforts include;

  1. Legislative and Policy Reform

This committee champions for the improvement of the laws, policies and court rules to ensure that the rights of the child under Article 53 of the constitution are enforced.

The Children Act, 2001 and Article 53 of the Constitution of Kenya makes provision for protection of all children, children in conflict with the law and child victims of abuse. The question therefore remains why do children experience violations especially in the justice system? This is because a lot of the laws lack an implementation mechanism. One of the key principles in child rights in the best interest of the child, the constitution terms it as a paramount principle, nonetheless, there is no definition of the best interest and neither is there a clear guidance on its implementation.

The Legislative and Policy reform subcommittee therefore looks to develop such guidelines, rules, practice directions and regulations to facilitate the implementation of laws. The team also looks at bridging any gaps that exits within laws and suggests amendments to ways the same.

The successes, so far, include;

  • Reviewed the proposed Children Bill with the joint effort of the Department of Children Services and the National Council of Children Services. The Bill has been presented to the Cabinet Secretary under the Ministry of East Africa Labour, urban planning and social protection. This bill has widened the scope of when a child is deemed to be in need of care and protection. The Bill also insisted heavily on alternative family care instead of institutionalization and states that institutionalization shall be of last resort.

  • Developed the P&C Form that is used to open a protection and care file in Court for a child falling under section 119 of the Children Act, 2001. It was noted that, before this form, all children files in Court were opened using a charge sheet – which is used to charge persons who have committed a crime under the Penal Code and an other crime outlined by statute. The taskforce is still sensitizing the Court User Committee members on how to use these forms so as to ensure that any child under protection and care is not committed in an institution but offered the protection and care required.

  • Developed of the Court Practice Directions

  • Reviewed Chapter 46 of the police service standing orders

  • Collection of statutes and case law concerning children

  1. Quality of Care, Infrastructure, Survey and Data

According to the Criminal Justice Report, children face some of the greatest injustices while they are in children institutions. The institutions range from Child remand homes, rehabilitation centers, borstal institutions, probation hostels amongst others. During one of the visits to the children institutions in Nairobi, the team discovered that there is no standardized procedure for the running of the institutions and that not all of them have a service charter.

This committee therefore focuses on improved service delivery for children in the institutions and is looking into developing standards for children institutions which can be used by the country when it is building and setting up children institutions. The other important component of the Subcommittee is on collection and analysis of data. To effectively lobby for budgetary allocation towards children there must be evidence of the status of children in the justice system. To this end the subcommittee is working towards a National Data Centre for Children which will provide information on key areas affecting the lives of children such as Health, Education, Children in the Justice System and Social protection issues.

The successes and efforts made include;

  • Developed a data collection tool to review the current state of children institutions in Kenya. This tool has been used by Courts to identify the cases of children in need of care and protection and those who are in conflict with the law.

  • Conducted 20 visits to children institutions in Kenya including Remand and Rehabilitation Centers as well Child protection units and made appropriate recommendations to the Director of Children Services. Likoni Remand home was closed down after the taskforce made the recommendation to the Department of Children Services. The institution fell short of the basic standards of an institution that holds children. There was no healthcare for the children – some were infested with jiggers, the institution held child-mothers who did not receive prenatal care, basics like soap and sanitary towels were scarce. The taskforce also recommended that no magistrate send a child to Likoni remand home.

  • During the national service week the taskforce collected data on the number of children matters currently in court. The taskforce also has a member of the Judiciary’s PMD (Performance Management Directorate) that updates it on the data in all court stations on where a child is involved.

  1. Coordination and Sensitization

There are good laws, both national and international, concerning children in Kenya, there are also institutions created by the laws to ensure implementation, however there is lack of coordination how all these institutions work together. An example of the disconnect in coordination is where children in the police cells stay in the cells awaiting transportation to a rescue center but the Children officer is not aware. This puts the child at a vulnerable position, because the office that is mandated to protect the child is not aware of his or her existence in the police station. Another gap is that the magistrates are presented with reports by the children officers but most do not specialize on children laws hence they make the decisions solely from these reports which mostly recommend that the child be sent to a specific institution.

The mandate of this committee is ensuring that all actors in the taskforce work together in coordinated fashion. The subcommittee aims at championing for the creation child protection units within police stations, including a Child Police Unit within the National Police Service. Another key deliverable for this subcommittee is developing a syllabus and curriculum for training of actors on children matters.

The successes and efforts include;

  • The taskforce hired a consultant to Coordinate activities of the taskforce for synergy.

  • Completion of the Work plan and Concept Note for the Taskforce to ensure that the progress in achieving the deliverables is monitored.

  • Successful attendance and participation to the International Best Interests of the Child (BIC) Conference; where GIZ supported about 15 judges and magistrates as well as the taskforce members to take part in the conference. It presented a forum for the taskforce and other justice actors to learn from other countries and each other on the best practices. The honourable Chair recommended that the conference be held biennially.

  • Developed a protocol for children in court stations that is used to guide the Courts on how to deal with children matters in Court.

  • The Chair, Justice Koome, addressed the court user committee colloquium on including child protection in their agenda.

  • Coordinated the Service week in April and November to clear backlog of pending children cases. The recently concluded national service week aimed at handling over 3000 criminal cases involving children. The taskforce has visited Embu, Nakuru, Meru, Kikuyu, Ngong and Kilifi Court User Committees to plan for the 2018 mini- service weeks that shall culminate in a national service week in November.

  • Training on plea agreement and Court annexed mediation. All Court User Committees that the taskforce is visiting in 2018 is being trained on plea bargaining and Court annexed mediation which are two mechanisms that are useful in reducing the number of children cases in Court. Diversion has been included in the Children Bill 2018 but cannot be enforced until it is enacted. These shall reduce the number of children in the institutions significantly.

Pending work

  • Review of the laws and bad case law

  • Development of Juvenile Justice Data Management System

  • Establishment of a Child Police Unit

  • Institutionalization of annual National Children’s Service Week.

  • Circuit Visits of other children institutions and make appropriate recommendations.

  • Develop a system to regulate training for Juvenile Justice Actors

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