Being a minor locked up with adults in a cell is no child’s play and activist Boniface Mwangi, who was arrested a couple of times before he turned 18, knows this only too well.
“Number one, getting food is a hassle. Trying to get yourself into the queue with the adults is difficult.
“When it comes to cleaning the cells, the kids are the ones who are told to do the work, including ‘picking up the excrement’. It is a horror, man,” Mr Mwangi, who came third in the race for the Starehe parliamentary seat in August, said.
Years have passed since Mr Mwangi’s experiences as a minor in cells, and a couple of laws have been passed between the first time he was arrested in 1995, when he was aged 11, and today.
However, the handling of minors in police custody seems not to have changed much since that period.
“In those days, like now, there is no police station in Kenya that has cells for minors.
“When you get arrested, you are mixed with adults and you are molested in those cells, either by police or criminals, and no one cares,” Mr Mwangi told the Sunday Nation.
It is for this reason that Nairobi-based human rights lawyer Enricah Dulo wants a 13-year-old schoolgirl, who was allegedly raped in a police cell in Murang’a on September 30, to sue the State.
Ms Dulo believes the girl suffered for the misdeeds of the entity that is supposed to protect her.
“I would love to see the victim sue the State and claim compensation as the State was duty-bound to provide her with protection while in a holding facility, but it failed to do so,” the lawyer said.
The grounds for suing, Ms Dulo opines, are many.
Key among them are the provisions of the fifth schedule of the Children’s Act that came into force in March 2002.
One of its provisions says that a female child shall — while detained, being conveyed or waiting for trial — be under the care of a woman officer.
Another one states: “No child while detained in a police station or while being conveyed to any court, or while waiting to attend or leave any court shall be detained with or be allowed to associate with any adult who is not a relative of the child.”
In the Murang’a case, the girl is reported to have been arrested on a Friday and was to stay in a cell till Monday, when she would appear in court.
But that Saturday, a police officer, who is now facing trial, is suspected to have defiled her in a cell that should ideally hold adults.
The incident could have gone unreported had it not been for a male detainee in a separate cell who says he saw the officer emerge from the enclosure and throw a condom on the roof.
The allegations against the officer raise fears that 15 years since the enactment of the Children’s Act, the protection that lawmakers wanted to give to minors in the hands of the police, has not been achieved.
When you look at the police cells where minors are held before their day in court or the remand facilities where they are detained after appearing before a magistrate or the buildings where they are locked up after being sentenced, it is gloom all over.
Every year, over the past five years, at least 1,900 children aged 17 and below have been convicted of various offences across Kenya, according to the Economic Survey 2017.
Some 2,767 minors were convicted in 2012 and in the three succeeding years, the figures were 2,549, 3,455 and 2,733, respectively.
The provisional 2016 figure stands at 1,976.
That means at least 13,480 minors have gone through police cells in the past five years and have been subjected to the conditions Mr Mwangi faced or worse.
“Every time you treat a child like an adult and you assault them, you harden them and you radicalise them.
“When a child is young, all they need is care and love. But all they get from the police is brutality and indefinite arrest,” Mr Mwangi said.
A team of 42 people from three agencies conducted an 18-month survey of correctional facilities in 18 counties countrywide and compiled a report titled Criminal Justice System in Kenya: An Audit.
The report exposed various concerns in the way minors are treated in the hands of the police.
The team, which was commissioned on May 2015, sampled two children’s courts and one of the findings in its report was that matters relating to child offenders were characterised by “significant delays”.
Mr Esther Bett, a programme manager with Resource Oriented Development Initiatives, one of the agencies involved in preparing the 380-page report, explained to the Sunday Nation what could be the reason for the trend.
“In most cases, the age of the child is determined by the court. Children have no ID cards, so, unless a birth certificate is produced, it is hard for children in their teens.
“Children are committed to children’s homes by the children’s courts.
“Where a minor is co-accused with an adult, the case is addressed in the lower courts and not a children’s court,” Ms Bett said.
“My recommendation is that officers should be proactive in identifying children at a police station.
“They should have children’s cells at the police station and at the courts. Some police stations or posts do not even have cells for women and children. So, they are held in stores or corridors,” she added.
Ms Bett’s organisation teamed up with the National Council on Administration of Justice and the Legal Resources Foundation Trust to compile the report that Chief Justice David Maraga launched in January.
“It remains necessary to set clear standards in respect of court holding cells,” they said in their conclusion.
“Separation of children from adults” was one of the areas the team said should be given attention.