Copyright © June 1997 by Human Rights Watch
All rights reserved.
Printed in the United States of America.
ISBN 1-56432-214-9
Library of Congress Catalog Card Number 97-77536

Listserv address: To subscribe to the list, send an e-mail message to majordomo@igc.apc.org with "subscribe hrw-news" in the body of the message (leave the subject line blank).
 

Research for this report was undertaken in Kenya by Yodon Thonden, counsel to Human Rights Watch Children's Rights Project. The report was written by Yodon Thonden and edited by Lois Whitman, director of Human Rights Watch Children's Rights Project, and Binaifer Nowrojee, counsel to Human Rights Watch/Africa. Production assistance was provided by Linda Shipley, Human Rights Watch Children's Rights Project associate.

We wish to express our gratitude to the many organizations and individuals in Kenya who helped make this report possible. We especially would like to thank Elizabeth Oyugi, Villoo Nowrojee, Lee Muthoga, and Dorcas Buku of ANPPCAN Kenya, who generously gave their time and assistance to us in planning and conducting our fact-finding mission. We also would like to thank Mr. S. Ole Kwallah, the director of the Children's Department (Ministry of Home Affairs), for his cooperation in our work. We thank the many nongovernmental organizations and their representatives with whom we met, including Pandipieri Street Children Programme, Rescue Dada Center, Child Welfare Society of Kenya, the Undugu Society of Kenya, the Kenya Alliance for the Advancement of Children, Mji Wa Salama, Kituo Cha Sheria, and the Kenya Human Rights Commission and the many other individuals and their organizations that asked not to be identified. Finally, our heartfelt thanks go to the many boys and girls who talked freely with us and whose names have been changed in this report for their safety.
 

GLOSSARY OF TERMS AND ABBREVIATIONS

Afande Kiswahili term of respect for police.

ANNPCAN African Network for the Prevention and Protection against Child Abuse and Neglect.

Approved officer Individuals appointed by voluntary organizations who are approved" or "gazetted" by the minister of home affairs to work on issues related to the protection and care of children.

Approved school Correctional institution, under the administration of the Children's Department, to which children ten years old and above may be committed by courts.

Askari Kiswahili word for guard or soldier.

Beijing Rules U.N. Standard Minimum Rules for the Administration of Juvenile Justice.

Borstal institution Correctional institution, under the administration of the Prisons Department, to which children fifteen years old and above may be committed after being found guilty of criminal offenses.

CID Criminal Investigation Department of the police.

Children's officer Staff member of the Children's Department, authorized to refer cases of children "in need of protection or discipline" to court and to make recommendations to court on what correctional measure to order in a "protection or discipline" case.

ICCPR International Covenant on Civil and Political Rights.

Juvenile remand home Temporary detention center, under administration of the Children's Department, to which children are committed by court pendingadjudication or final disposition of their cases.

KANU Kenya African National Union.

NGO Nongovernmental organization.

P&C Protection and care, used to refer to a subcategory of children who fall within the broader category of children "in need of protection or discipline."

P&D Protection and discipline, used to refer to a subcategory of children who fall within the broader category of children "in need of protection or discipline."

Probation officer Staff member of the Probation and After Care Services Department, authorized to make recommendation to court on correctional measures to order in a child's criminal case.

Remand prison Temporary detention center, under administration of Prisons Department, to which adults and children fourteen years old and above are committed by court pending adjudication or final disposition of their cases.

Reservist Police reserve officer, employed on a part-time basis to perform regular police duties.

Shamba Farm.

Sukuma wiki Green leafy vegetable.

U.N. Rules for the U.N. Rules for the Protection of Juveniles Deprived of

Protection of their Liberty.

Juveniles

Ugali Stiff porridge made of maize meal.

Summary

Street children in Kenya face innumerable hardships and danger in their daily lives. In addition to the hazards of living on the street, these children face harassment and abuse from the police and within the juvenile justice system for no reason other than the fact that they are street children. Living outside the protection of responsible adults, street children are easy and silent targets for abuse by police and society at large. On the streets, they are subject to frequent beatings by police as well as monetary extortion and sexual abuse. They are subject to frequent arrest simply because they are homeless; "vagrancy"1 (being without a fixed abode) is a criminal offense under Kenyan law. Once arrested, often by plainclothes police in roundup operations, street children are processed through the revolving doors of the Kenyan juvenile justice system, where children pass back and forth between remand detention centers and court before a final disposition is reached in their cases. After spending indefinite periods of time on remand, where they are further neglected and abused, they may be finally sentenced to institutions called approved schools, borstal institutions or adult prisons, which do little to improve their lives. Further, the procedures by which street children are deprived of their liberty and are committed to these institutions do not comply with the due process standards of international law. This report documents the treatment of street children by the Kenyan police, and in the juvenile justice system as a whole, following street children from an all too frequent route from street to police station lockup, from lockup to court, from court to detention in remand institutions, and finally from remand to confinement in correctional institutions.

For the purpose of this report, Human Rights Watch undertook a fact-finding mission to Kenya, in September and October of 1996. We interviewed over sixty children in Nairobi, Kisumu and Mombasa. Most interviews with children were conducted with the assistance of interpreters on the streets, or in shelters for street children and, in certain cases, in correctional or remand institutions where children were confined. Additionally we interviewed members of nongovernmental organizations (NGOs) and human rights activists that work with street children in Kenya. A number of the NGO representatives we spoke with requested anonymity for themselves and their organizations, particularly when speaking on issues of police abuse of street children, reflecting the sensitive nature of the issues involved and the fear that nongovernmental actors have of thegovernment and police. We also met with government officials, including representatives and staff of the Children's Department, the Probation and After-Care Services Department, the police and the judiciary. Additionally, we visited three juvenile remand homes and three approved schools, and interviewed staff there. We also observed proceedings at the Juvenile Law Court in Nairobi.

Upwards of 40,000 street children live in Kenya today, with over half of their population concentrated in the capital, Nairobi. Numerous and complex socio-economic factors have fueled the rising presence of children on the streets, including, but not limited to: rapid urbanization and the breakdown of traditional support structures of the African extended family; the increasingly difficult circumstances of women as heads of single-parent households; the inability of parents to pay uniform and book fees, and other costs of public education; the displacement of large numbers of people in urban slum clearance operations, sometimes leaving families homeless overnight; and, in recent years, the internal displacement of an estimated 300,000 people, including a high percentage of children, from state-sponsored "ethnic" violence in the west and Rift Valley of Kenya.

Some street children we spoke with had parents or family members in nearby slum areas or in faraway villages, with whom they maintained some contact. Some were not actually "homeless" but spent periods of varying length on the street before returning to their homes, and then returned back to the streets. Most said they came from single-parent households or that they had lived with a relative other than a parent before leaving home. Some were abandoned or orphaned; others left their families and homes of their own accord citing the inability of their families to provide and care for them, or problems in their relationships with their parents, as the cause. Thus when we use the term "street children" we refer to the broad spectrum of children "for whom the street more than their family has become their real home."2

Arrest and Confinement of Children in Correctional Institutions

With their numbers on the rise, police and local government authorities are increasingly at a loss as to what to do with street children. Despite the emergence, on the surface, of coalitions of NGOs working on issues related to street children, including the establishment of the National Task Force on Street Children (to advise the government at the cabinet level on issues related to street children), and a stated commitment of the attorney general to addressing the needs of street children, the reality is that street children continue to be criminalized in Kenya simply because they are homeless. Government response to the rising presence of street children is to arrest and charge street children with the crime of "vagrancy."

Law enforcement officials who police the streets and carry out arrests of street children demonstrate brutal attitudes towards street children and abuse and exploit the children with impunity. Children reported that on the street they are often harassed and beaten by police, and have to pay bribes to police in order to avoid arrest. Street girls reported being sexually propositioned by police in order to avoid arrest or to be released from custody, including raped.

Often regarded by police as petty criminals, or vagrants at best, street children are often rounded up, for no reason other than the fact that they are on the streets. Although police and government officials may state that street children are rounded up for the alleged purposes of identifying and reuniting children with their families or placing them in appropriate institutions for their care, the manner in which the children are subsequently treated, both by police and within institutions, belies such intentions; these children are arrested and dealt with as criminals.

Police roundups are conducted with brute force and with little regard for the welfare of the children, who are often taunted, scolded, manhandled and beaten at the time of arrest. Twenty-five out of forty-five children whom we interviewed and who were arrested, said they had been beaten by police at the time of arrest and/or at the police station. Seven out of the forty-five said they had not been beaten. Once arrested, street children are held under deplorable physical conditions in crowded police station cells, often without toilets or bedding, with little food, and inadequate supplies of water. They are almost always mixed with adults, beaten and harassed by police in the station, and held for periods extending from several days to weeks without any review of the legality of their detention by judicial authorities. One child reported being held in a police lockup for two months without being charged with an offense and without any review of the legality of the detention before he was finally released by police, despite Kenyanlegal requirements that a person arrested without a warrant be brought before a magistrate without delay, and ordinarily within twenty-four hours.

Once arrested, children may have their cases referred by police to court for processing. Children's cases are supposed to be heard in special juvenile courts, established under the Children and Young Persons Act.3 The jurisdiction of juvenile courts extends to both criminal matters and to non-criminal "protection or discipline" matters-essentially status offenses. Status offenses are acts that would not be offenses if committed by an adult; for example, truancy, running away from home, or being "incorrigible." Under Article 21 of the Children and Young Persons Act, children who are "in need of protection or discipline" are children under the age of sixteen who are deserted, parentless, beggars, vagrants, "uncontrollable," or who fall into "bad associations." "Protection or discipline" cases and criminal cases are treated very similarly, and the categorizations are thus in many ways arbitrary and meaningless. For example, a fifteen-year-old street boy who is arrested by police on "vagrancy" grounds could be treated as either a criminal case or a "protection or discipline" case, depending on the discretion of the magistrate; either way, the boy could be finally committed by court to an approved school.

Despite the requirement that children's cases be heard in special juvenile courts, we found that children's cases are often heard in regular courts along with adult cases, where children are tried without the special protections accorded to juveniles under Kenyan law. However, even when their cases are heard in juvenile court, the proceedings are rushed and do not allow children fair opportunities to be heard. To our knowledge, none of the children we interviewed were ever represented by legal or other counsel in either juvenile or regular courts, and only a few said that a parent or guardian was present at the proceedings. Confused and frightened in court, children often do not understand the nature of the legal proceedings or the dispositions of their cases. Some said they were advised by cell mates, and in one case even by the magistrate, to plead guilty to crimes, including the crime of vagrancy, in order to avoid otherwise lengthy periods of detention in remand institutions.

Pending final adjudication and disposition of their cases, street children are committed by courts to temporary detention in remand institutions- to juvenile remand homes (for children fifteen years old and younger) or to adult remand prisons (for children at least fourteen years old) where they may languish for indefinite periods of time, usually between several weeks and several months, before a final disposition is reached on their cases. There are no limits underKenyan law on the amount of time that a person can be detained in a remand institution. Although remand homes are meant to be only temporary holding centers for children, we found that some children had spent several years in remand homes pending adjudication of their cases-without any education or recreational activities at all to provide them with stimulation.

Conditions in remand were particularly disturbing in adult remand prisons, where children as young as fourteen may be held. Rooms were so crowded that children reported sleeping sitting up or next to toilets because there was not enough room elsewhere. Boys said they endured extreme physical abuse, usually by older inmates and sometimes by prison guards. Sexual harassment by inmates was also reported, along with failure of guards to protect children from inmate abuse. As mentioned above, the notoriety of remand centers, with regard to both the conditions within and the limitless duration of remand periods, leads some children to plead guilty to offenses they have not committed in order to avoid remand altogether.

From remand, children may be finally committed by courts to approved schools (if the child is fifteen years old or younger), borstal institutions (for boys at least fifteen years old) and adult prisons (if the child is at least fourteen years old). A wide range of alternatives to custodial treatment are provided for under the Children and Young Persons Act, yet magistrates still tend to overuse institutionalization as a remedial measure for street children. Conditions in these institutions fail to provide children with the education and rehabilitative training that they purport to, and children leave these institutions emotionally and physically scarred, stigmatized, and negatively influenced by their peers who may be serious criminal offenders. Little effort is made to separate the children by category of their underlying offense or status, resulting in children who are homeless being mixed with children convicted of serious criminal offenses. Further, many children complained about the infliction of corporal punishment by staff, and physical abuse by other boys. In approved schools, canings, deprivation of home leave, and labor are used as punishments. Punishments in borstal institutions (for boys) were found to be particularly cruel-boys reported the use of hard labor (digging), solitary confinement in dark and wet isolation rooms, reductions in diet, and public floggings.

The treatment of street children by police, the procedures by which children are confined to correctional institutions, and the conditions in these institutions will be discussed in this report. The Kenyan government is failing to adequately address the social and economic hardships which lead children to the streets. Moreover, its system of correctional institutions fails to provide children with the rehabilitation, support, and education required to assist them to becomeresponsible and capable members of society. The complex and outdated legal provisions and enforcement mechanisms which currently exist in Kenya result in the criminalization and mistreatment of street children. Although the Kenyan government is currently in the process of considering much needed amendment of a number of laws relevant to street children, including the Children and Young Persons Act, it is feared that little real change will come about. Human Rights Watch hopes that this report may be useful in identifying some of the specific areas in need of reform, in the interest of improving the lives of street children in Kenya.

Recommendations

Human Rights Watch makes the following recommendations concerning the treatment of street children by police and in the juvenile justice system:

To the Kenyan Government:

* The government should promptly submit its overdue report on Kenya's compliance with the U.N. Convention on the Rights of the Child to the Committee on the Rights of the Child.

* The government should promptly sign and ratify the African Charter on the Rights and Welfare of the Child.

To the Attorney General:

* As a matter of priority, the attorney general should complete the redrafting of the Children Bill and other relevant laws requiring reform, in close consultation and cooperation with the Kenyan NGO community. We urge the attorney general to take into account the recommendations below in redrafting the Children Bill and other laws.

* The attorney general should seek the technical assistance of the U.N. Crime Prevention and Criminal Justice Division towards the reform of laws relating to juvenile justice.

* The Births and Death Registration Act (Chapter 149 of the Laws of Kenya) should be amended to ensure that all births in Kenya are duly recorded and registered so that children and their families know their age.

* The Police Act (Chapter 85 of the Laws of Kenya) should be amended to include clear guidelines on the use of force by police. The Police Act currently contains guidelines on the use of firearms only.

* The Vagrancy Act (Chapter 58 of the Laws of Kenya) should be repealed or amended so that "having no fixed abode," "begging," or having neither "lawful employment nor lawful means of subsistence" are no longer criminal offenses for street children and not grounds for arrest.

* The Children and Young Persons Act should be amended accordingly:

Article 6, which allows police to detain sixteen and seventeen-year-old children with adults, should be amended so that children-those under eighteen-are never detained with adults.

Article 11 should be amended to place a time limit on the period that children can be detained on remand pending adjudication of their cases, and to prohibit remanding children to adult remand prisons.

Article 12 should be amended so that children who are accused jointly with adults of criminal offenses are tried in juvenile courts.

Article 17 should be amended so that corporal punishment is never used as a correctional measure.

Article 17 should be amended so that children are never committed to adult prisons.

Article 46 should be amended to prohibit the transfer of children from an approved school to a borstal institution or prison, and to prohibit the prolonging of a child's sentence in an approved school.

* The Borstal Institutions Act (Chapter 93 of the Laws of Kenya) should be amended to:

Eliminate the following disciplinary practices in borstal institutions:

corporal punishment (Article 33.5);

solitary confinement (Articles 32, 33.5); and

reduction in diet (Articles 32, 33.5).

Prohibit the transfer of children from a borstal to prison (Article 42).

* The right of children to maintain contacts with the outside world through uncensored correspondence and visitations should be respected. The Borstal Institutions Rules (subsidiary legislation under Article 52 of the Borstal Institutions Act) should be amended to eliminate the censorship of children's correspondence (Rule 45) and to eliminate the use of deprivation of the right to write and receive correspondence as punishment (Rule 42).

Regarding the Police:

* The Kenyan government should reiterate the absolute prohibition on physical abuse of children by police, and should prosecute any police officer found guilty of such abuse to the full extent of the law.

* Prompt investigations of complaints concerning police mistreatment of children should be conducted, their findings made public, and disciplinary measures and criminal proceedings ordered where appropriate.

* The attorney general should establish a special independent commission for the receipt of complaints concerning police mistreatment of street children (having special cognizance of the use of deadly force, custodial abuse, sexual abuse, and extortion). The commission should be directly accessible to street children and should be equipped and empowered to subpoena witnesses, conduct investigations, and to bring complaints to the Attorney General's Office and the Criminal Investigation Department.

* Police should be specially educated and trained on how to handle cases of street children with a view towards sensitizing police to the special needs of children and ensuring that rights accorded to children, under international and Kenyan law, are enforced.

* Measures should be taken to ensure that children are not detained beyond the permissible periods under law; the validity of any detention extending beyond twenty-four hours should be promptly reviewed by judicial authorities or the child should be released.

* Police should make diligent and systematic efforts to determine the age of young persons they arrest, to ensure that children are identified and dealt with as children. If necessary to refer children's cases to court, cases should be referred to juvenile court.

Regarding the Juvenile Courts:

* Resources should be directed towards the establishment of specialized juvenile courts in Kenya for the handling of children's cases. Currently, only one specialized juvenile court exists in all of Kenya, in Nairobi.

* Magistrates should make diligent and systematic efforts to determine the age of young persons appearing before them to ensure that children are identified and treated as children, in juvenile courts according to law.

* Magistrates who handle juvenile cases should be specially educated and trained on how to handle children's cases, with a view towards sensitizing the judiciary to the special needs of children and ensuring that the rights accorded to children, under both international and Kenyan law, are enforced.

* The government should take steps to provide children in court with free legal and other assistance in their cases. Magistrates should make special efforts to ensure that children understand the nature of the proceedings and the status and disposition of their cases. Parents or family members should take part in the proceedings.

* The Ministry of Home Affairs should ease restrictions on the procedures for becoming an approved officer (an officer approved by the government to work on issues related to the protection and care of children, including appearing on behalf of children in juvenile court). NGO representatives who work with street children should be allowed to act as approved officers and to provide assistance to street children in juvenile court.

* Magistrates should always consider social inquiry reports by children's officers or probation officers before ordering the deprivation of a child's liberty.

* Alternatives to institutionalization should be given the highest priority in determining correctional measures.

* All efforts should be made to reunite children with their families, or to place them in appropriate children's homes, approved voluntary institutions, and NGO-run programs for street children.

* The deprivation of liberty in a correctional institution (approved school, borstal institution, or prison) should only be ordered as a last resort and for the shortest period necessary.

* Children who are "in need of protection or discipline" should not be committed to the same institutions as children who are convicted of criminal offenses.

* Court practice should be changed, so that cases of children who are "in need of protection or discipline" are not treated as criminal cases.

Regarding Remand Institutions, Approved Schools, and Borstal Institutions:

* The Children's Department should undertake measures to ensure that children are separated according to the nature of their underlying offenses or status, and separated in detention or correctional facilities accordingly.

* Every juvenile confined in a detention or correctional facility should have immediate access to adequate medical care and medical facilities for the prevention and treatment of illness. Every juvenile in custodial care who is ill, who complains of illness or who demonstrates symptoms of illness, physical or mental, should be examined promptly by a qualified medical officer and treated.

* Corporal punishment and physical abuse by staff against children should be strictly prohibited. Staff found to have abused children should be appropriately disciplined, including by dismissal. Where appropriate, criminal charges should be brought against the staff.

* The practice of suspending home leave to children confined in approved schools, as punishment, should be ended.

* The use of corporal punishment in approved schools (as authorized in the Internal Regulations of the Children's Department) should be discontinued.

* The Children's Department and the Prisons Department should ensure that children are provided with effective mechanisms to make uncensored complaints about the conduct of institutional staff members or the conditions of confinement.

Regarding Education:

* The government should undertake measures to provide free primary level education to street children in Kenya, and to provide for the associated costs of education (books, uniforms, and "building fund" contributions or "school fees") for such children.

* The government should establish a special fund for the provision of the associated costs of primary level education to children from low-income families throughout Kenya, for whom the payment of book, uniforms, and "school fees" are prohibitive. Women, as heads of single parent households, and others who care for children and are unable to afford the associated costs of primary education should be encouraged to apply for support to enable children to stay in school.

* The Prisons Department should ensure that borstal institutions provide primary level education for all boys, not just for boys in standards 7 and 8.

* The Children's Department should ensure that girls committed to approved schools are provided with equal access to opportunities for secondary level education. Currently only boys have the opportunity of continuing their education beyond the primary level in approved schools.

To the United Nations:

* The U.N. Special Rapporteur on Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment should visit Kenya and investigate police abuse of street children, and abuse of children in borstal institutions and adult remand prisons.

* The U.N. Working Group on Arbitrary Detention should visit Kenya and investigate the detention of children in police station lockups, juvenile remand homes and adult remand prisons.

* The U.N. Committee on the Rights of the Child should devote one of its theme days to police violence against street children.

To Donor Country Governments:

* Aid should be earmarked for the training of police and law enforcement personnel on the rights of the child and on the handling of juvenile cases.

* Aid should be earmarked for the creation of specialized courts for children (juvenile courts or family courts), and for the training of magistrates on the rights of the child and on the handling of juvenile cases.

* Aid should be earmarked to facilitate the reunification of street children with their families.

* Realizing that deprivation of liberty should be ordered only as a last resort for children, aid should be earmarked to improve conditions in remand institutions, approved schools, and borstal institutions to provide for the health, physical, educational and recreational needs of children committed there.

* Aid should be earmarked for the purposes of defraying the associated costs of primary school attendance, such as book fees, uniforms, and building maintenance costs, which families currently must provide.

* Donor country governments should use their influence with the Kenyan government to seek accountability of law enforcement personnel, prison officers, and correctional school officers for abuses committed against street children, including extortion, physical abuse and sexual abuse.

* Donor country governments should use their influence to press the attorney general for meaningful reform of existing legislation affecting children, to bring legislation into compliance with the Convention on the Rights of the Child-in the drafting of the revised Children Bill and other legislation.

To NGOs:

* NGOs should maintain detailed records of incidents of violence between police and children in order to monitor and document abuses by police. They should submit these records to the government-created Standing Committee on Human Rights, and coordinate with other NGOs active in the protection of human rights to strengthen NGO efforts in this area.

I was schooled up to standard 3. I was chased away from the school because I couldn't pay the school fees, and I didn't have a uniform. Then I was home for a while, with my mother and brothers and sisters, and I started hanging out on the streets. That's how I came to be a street boy.4

The Growing Presence of Street Children

Before discussing the treatment of street children within the juvenile justice system, it is important to address the complex factors that contribute to the "phenomenon" of street children in Kenya. In addition to deep rooted and complex socio-economic factors, direct government actions have also contributed to the mounting presence of street children in Kenya.

Between 1980 and 1990 the urban population in Kenya doubled, with most of the growth concentrated in Nairobi, the capital, and Mombasa, the second largest city.5 Migration from rural areas to urban centers increased dramatically with poor families being driven from their homes by landlessness, drought and unemployment. A sprawling collection of slum settlements spread over the outskirts of Nairobi, including the areas of Mathare Valley, Huruma, Dandore, Kariobangi, Kibera, Korogocho and Ngara. With thousands of new urban slum dwellers, including a large number of single-parent households headed by women,6 the numbers of children7 living on the streets began to rise dramatically. The annual growth rate of the street children population was put at 10 percent in 1993.8 There are currently estimated to be 25,000 street children in Nairobi alone and upwards of 40,000 nationwide,9 compared to an estimated 3,600 in Nairobi and 16,300 nationwide in 1989.10 A study on street children initiated by the Attorney General's Office in 1989, and completed in 1991, concluded that Kenya was sitting on a "time bomb."11

Numerous and complex socio-economic factors have fueled the rising presence of children on the streets. Views expressed in a 1993 UNICEF International Child Development Center report point towards the increasingly difficult circumstances of women, as heads of single-parent households, as a major contributing factor. Like in many places in the world, Kenyan women have had comparatively less access to education and paid employment opportunities than men and are less represented in higher-paying occupations. Yet, overwhelmingly, it is the women who take responsibility for raising their children in single-parent households. The single-parent phenomenon "is the result of a combination of social and economic factors, including the increasing employment of women outside the home, connected to the impact of rapid urbanization and the unfamiliarcity lifestyle on family ties and conjugal life."12 Industrialization and urbanization have contributed to the breakdown of the traditional African extended family network which previously provided a safety net of support. Industrialization and urbanization have also contributed to a rise in cohabitation before or instead of marriage, leading to complications regarding the custody and support of children and the inheritance of property when the relationship ends. The Affiliation Act guaranteed that children born out of wedlock were entitled to financial support by the father until 1969, when it was repealed in parliament, with male parliamentarians arguing that the Act was being abused by women to claim support from more than one man for one child. Formal marriages are also becoming less stable, with divorce and separation rates on the rise. With the pressures of urban life and the breakdown of traditional support structures of the African extended family, women and their children are finding themselves increasingly at risk.13

The rising costs of education, coupled with these socio-economic factors, have further contributed to the increase of children on the streets. Kenya follows the "8-4-4" system: there are eight years of primary level education, standards 1-8, followed by forms 1-4 of secondary level education, followed by four years of university level education. When the Kenyan government ratified the International Covenant on Economic, Social and Cultural Rights in 1976, it recognized "the right of everyone to education," and that with a view towards achieving progressively the full realization of this right, "primary education shall be compulsory and free to all."14 The Convention on the Rights of the Child, ratified by Kenya in 1990, provides for the same.15 Although not yet compulsory, primary level education (standards 1-8) in Kenya is tuition-free.16 As early as 1961 the Kenya AfricanNational Union (KANU), which has been in charge of government since 1963, committed itself to providing free primary level education for every child.17 Hoewever, in practice not all children have been able to benefit from the plan for free primary education. Dropout rates are high, even at the primary school level, in large part because of the heavy expenses incurred by families to finance their children's primary education. Between 40 and 60 percent of children living in the slum areas of Nairobi, Kisumu and Mombasa do not attend primary school, compared to enrollment rates of about 80 percent in the urban population as a whole.18 The reality is that education in Kenya, even at the primary level, is not free.

While there are no tuition fees for primary education, parents must provide for the costs of textbooks, uniforms, stationery, and building and maintaining schools, by making "voluntary" contributions to the "development fund" or "building fund." The government pays for teachers' salaries and some school equipment and some textbooks.19 This cost-sharing arrangement between the government and parents is simply beyond the means of many families from which street children come. Indeed, many street children who we interviewed said they had taken to the streets after being thrown out of school for not being able to pay school fees or because they did not have uniforms or shoes.20

Large scale slum clearance operations undertaken by city authorities have been another factor contributing to the rise of street children. With policies ostensibly aimed at maintaining Kenyan cities at the highest standards of hygiene, the government uses urban planning restrictions, which forbid the development of squatter settlements, to remove residents with the eviction and destruction of their homes-leaving already marginalized slum dwellers and their families homeless. These operations are often undertaken without providing assistance, alternative arrangements, or notice to evicted residents, with families sometimes literally being uprooted from their homes and left to fend for themselves on the streets.

Finally, in recent years, state-sponsored ethnic violence in the west and Rift Valley of Kenya has also contributed to the internal displacement and migration of families, as well as the breakup of families.21 In 1991, after the government was forced to concede to a multiparty system, the Moi government was responsible for instigating "ethnic" violence in order to punish those ethnic groups which supported the political opposition and to reward its own supporters with illegally obtained land. Although the large-scale attacks that characterized the violence have diminished since 1994, periodic incidents continue. Most of those displaced belong to the Kikuyu, Luo and Luhya ethnic groups and were attacked by members of the Kalenjin ethnic group (President Moi's group) as well as the Maasai. Retaliatory attacks did occur, but tended to be more random and opportunistic in character, and most of the displaced Kalenjin have since returned to their land. However, thousands others of the estimated 300,000 displaced have still not returned to their land because of government inaction to provide adequate security. The government has also been responsible for forcibly dispersing groups of displaced in order to avoid the attention of humanitarian and human rights groups and to evade its responsibility to return these people to their land andlivelihood. Since most of those displaced by the "ethnic" violence were subsistence farmers with little formal education, they have been rendered virtually destitute. Many members of the internally displaced Kikuyu, Luo and Luhya ethnic groups have drifted to the urban slum areas.

The United Nations has estimated that as much as 75 percent of the estimated 300,000 displaced were children.22 A number of Kikuyu boys and girls whom we interviewed in Nairobi and in Mombasa said they were forced to flee from their homes and were separated from their families during "tribal clashes," as the violence is known, in the west and Rift Valley of Kenya in 1992 and 93. They had come to Nairobi in search of family members or simply because there was nowhere else for them to go:

I had to flee in the middle of the night. I woke up and our house was on fire. There was no one left in the house, and I just ran. I stayed in a camp for about a year with a lot of other people who had to flee like me. After a while, people started talking about going back to their homes. I went back to my home [in Molo, in the Rift Valley], but our home was not there and my family was gone. The neighbors said they had heard nothing about my parents. So I came to Nairobi to look for my uncle and found him. He was surprised to see me-he said he thought we had all been killed. But he couldn't keep me with him. Sometimes I still see him when I can, but he can't take care of me.23

Another Kikuyu boy said, "we're not real street boys, we were forced to leave our homes during the clashes. I had to run out of the house and hide at night-our house was burning. I came back the next day and my parents and brothers and sisters were gone. I don't know where they went. I came to Nairobi, and haven't been back [to Molo] since."24

Whatever the causes are, the numbers of children living on the street are expected to continue to rise. In addition to addressing the deep rooted and complex factors which contribute to their existence on the streets, the Kenyan government must take steps to address the treatment of street children by law enforcement and within the juvenile justice system, and by Kenyan society as a whole.

We usually carry sacks (for garbage picking). The [Kisumu] police beat us up and put us in our sacks. Even if we're just walking around, doing nothing. If you don't give them money, they take you to the station. Usually they ask us questions about thefts that have happened. They search us. If we have money, they take it. If we don't have money, we have to talk to them really nicely, or else they'll take you to the police station.25

Life on the streets is dangerous enough for street children without their having to be on guard against police, the very people who are supposed to protect them. While we recognize that some police work to help street children and to reunite them with their families, many others do just the opposite, harassing and abusing the children and those who seek to help them. One street worker in Nairobi described being questioned by police: "they wanted to know who I am, and what business I have with the kids. I told them I am their friend and teacher. The police told me that I am doing zero work as those boys are criminals. . . . I convinced them that these boys can be rehabilitated if we use the right approach. They said it is not possible."26

Police tend to view street children as hardened criminals, who must be treated with severity. Police also abuse and exploit the children for their own personal gain. Children we interviewed said they were frequently harassed, beaten, and had their money taken from them by police on the streets. Girls in Nairobi reported being sexually propositioned or coerced into having sex with police. The level of abuse is rising to a dangerous level. In recent years, there have been alarming incidents of police use of lethal force against street children resulting in death. The Executive Director of the Undugu Society of Kenya has been cited as stating that "Kenya's dispossessed youngsters don't face the same level of public hostility as their counterparts in South America, but violence against the street kidshas been increasing."27 With their ranks growing, street children are likely to continue to suffer from such abuses unless immediate measures are taken to ensure better training and strict accountability of law enforcement personnel.

International and Kenyan Standards

The conduct of police regarding the use of force is prescribed under international law by the U.N. Code of Conduct for Law Enforcement Officials.28 Law enforcement officials "shall respect and protect human dignity and maintain and uphold the human rights of all persons" in the performance of their duties (Article 2). The human rights that must be "protected, maintained and upheld" are those identified and protected by national and international law, including the International Covenant on Civil and Political Rights (ICCPR) which was ratified by Kenya in 1976.29 Under Article 7 of the ICCPR, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.30 Under the Code of Conduct, no law enforcement official may inflict, instigate or tolerate such treatment or punishment against any person (Article 5).

Force may only be used as is reasonably necessary to prevent the commission of a crime or to effect a lawful arrest; no force may be used beyondthat which is reasonably necessary to effect that purpose.31 The Kenyan Police Act contains no guidelines on the use of force, aside from the use of firearms, by police. However, police regulations contained in the Police Act recognize an officer's unlawful use of violence or the unlawful striking of a person as a disciplinary offense.32 We strongly recommend that the Police Act be amended to include clear guidelines on the limits of use of general force that comply with the Code of Conduct and with the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

With regard to the use of firearms, Article 28 of the Kenyan Police Act authorizes its use against "any person who by force attempts to prevent the lawful arrest of himself or of any other person." The officer must also have "reasonable ground to believe that he or any other person is in danger of grievous bodily harm or that he cannot otherwise . . . effect the arrest." Similarly, international standards provide that use of firearms should be avoided, especially against children, except when a suspected offender offers armed resistance or jeopardizes the lives of others, and less extreme measures cannot restrain him.33 In cases where the lawful use of force and firearms is unavoidable, law enforcement officials must act with restraint in such use of force and in proportion to the seriousness of the offence and the legitimate objective to be achieved, with a view towards minimizing injury and preserving human life.34

Police Abuse of Children on the Streets

Categories of Law Enforcement Personnel

Street children in Kenya come into frequent contact with several different categories of law enforcement personnel: regular police, police reservists, administration police, and city askaris (the Kiswahili word for guard or soldier). In addition to regular police, the Kenyan Police Act provides for the establishment of the Kenyan Police Reserve, staffed by reserve officers (known as reservists) whoare employed on a part-time basis to perform regular police duties.35 As with regular police, reservists may be in uniform or plain clothes and may be armed.36 As with regular police, they may be disciplined or prosecuted for their conduct under the Police Act or under any other law.37 There are also armed and uniformed administration police appointed by the provincial administration who have duties and powers identical to those of ordinary police in conducting arrests.38 Administration police are frequently associated with land and housing eviction operations, and are most active in rural areas. Several children we interviewed stated that administration police sometimes work together with regular police and reservists to round up street children. Finally, there are also unarmed and plainclothes city police, known as city askaris, who enforce city by-laws and are under the administration of a city commission (city council). City askaris sometimes work with administration police in slum clearance operations, and carry out arrests of street hawkers and vendors, including street children.39

It should be noted that children usually were unable to identify the particular law enforcement agency of the officers they spoke about, but simply referred to them as police or askari. As many are often in plain clothes, and none wear visible identification badges or name tags, children were generally unable to identify police by name. In the testimonies which follow, we have used thelanguage of the children to identify law enforcement personnel. When children did use particularized terms or names for police, we have stated so.

Physical Abuse on the Streets

Street children interviewed by Human Rights Watch recounted numerous incidents of physical abuse and harassment by police on the street. "We usually run away when we see the police because we know what will follow," said fourteen-year-old John about life on the streets in Nairobi.40 Another Nairobi street boy told us that police harassment is constant, and that he had been beaten by police many times, the most recent time being just one day earlier in Westlands, Nairobi: "I was slapped around yesterday morning. The police just pounced on me while I was walking and started hitting me."41 Children said they are frequently kicked, slapped, or hit with rifle butts for no reason other than the fact that they are street children. This type of treatment is not restricted to police in the Nairobi area, but was also reported in Kisumu.

In Mombasa children reported better treatment on the streets by police. Sixteen-year-old Peter, who had formerly lived on the streets in Nairobi, commented that "the police in Mombasa are better than in Nairobi. In Nairobi, even if you're just walking around doing nothing, the police might come and just pick you from the street and beat you up, and take you to the station. At least they don't do that here in Mombasa."42 Another Mombasa street boy offered further explanation, "the police might not beat you, they just treat you like you're a sack, like you're not a person-they didn't beat me, but they threw me around and into the police vehicle like I was a sack."43

NGO street workers and many children told us that physical abuse by police is worse at night, when fewer people are on the streets and the risk of public censure is likely to be less. Roundups of street children usually happen at night, during the course of which children are often manhandled and beaten. Once detained, children are often further beaten at police stations, during interrogations and in lockups. This will be discussed in greater detail in Section IV (on confinement of children in police station lockups).

Extortion

Aside from physical abuse, street children are also subject to extortion by police on the streets. They often must give up whatever meager amounts they have on their bodies to avoid arrest. In all three cities visited, children described having to pay money to police in order to avoid being taken into custody. "The policeman will say, `now won't you give me some money for my tea,44 and then I'll let you go'," said Helen, from the Mathare slum of Nairobi. Two weeks earlier, she had to give 500 shillings (approximately U.S.$10) to a policeman from Central Police Station in Nairobi in order to avoid arrest.45 Fourteen-year-old Judy told us how she had been caught with several other girls near the 680 Hotel in Nairobi by plain-clothes police, who asked her if she had any money. When she said she had no money, she was slapped and taken to Central Police Station, and then to court where she was charged with vagrancy.46

A social worker who works with street boys in Mombasa told us it is well known that police can be paid off to avoid arrest, but that street children rarely have the cash to do so;47 fifteen-year-old Victoria told us, "I've never bribed the police. That's why I've been to jail ten times."48

Another street worker who works with children in Nairobi noted that "blackmailing" also occurs "when drugs are around" or "when the boys play karata (a gambling game)." He added that children who are arrested and brought to police stations are released immediately if they are able to pay money. "When they do not have money they sometimes stay two to three days in the police station and are subsequently released," he said.49

Sexual Abuse of Street Girls

Even more disturbing were the accounts of the sexual abuse of girls on Nairobi streets. In addition to money, street girls told us that they are asked for sex to avoid arrest or to be released from police custody. "When the police catch you, they ask you for money, or for sex, or else they'll take you to the police station," said Helen, who sleeps near City Market at night.50 Five out of nine girls we interviewed on the streets of Nairobi, said that police had detained them and offered to release them in exchange for sex. The girls had been arrested on grounds of "loitering with intent to solicit" or vagrancy.

Sixteen-year-old Elizabeth, pregnant with her second child, described being arrested and locked in a cell in Central Police Station in Nairobi. She said that while her cell mates were asleep at night, two police men approached her and told her they would release her if she agreed to have sex with them. She said she refused, for which they punished her the next day by whipping her with a strip from an old rubber tire and ordering her to wash out the toilets. Elizabeth was eventually sentenced in City Court to two weeks in Langata Prison (for women) for "loitering with intent to solicit." Soon after her release from prison, she told us she was caught by police again, near Uhuru Park at night, and was put in a car where she was asked to have sex with one of the officers. "They didn't threaten me, but I was afraid, so I agreed to do it. I only had to have sex with that one policeman," she said.51

Eighteen-year-old Pamela, from Nyeri district in Central Province, recounted how she had been raped by a police man a year earlier:

The police are always calling us names, threatening us, saying we're whores, trash, homeless, and beating us. Sexual abuse happens too. It happened to me once, here in Jeevanji [Gardens, a public park]. Four policemen came and arrested me near City Market. They started taking me to the Central Police Station, and brought me here to the park. One of them hit me and I fell down, and he came down on top of me. Another held me down while the policeman raped me. After he raped me, they walked me over to Central Police Station, and just let me go."52

Pamela said she still sees the policeman who raped her patrolling the streets. She never complained to anyone about the rape. "Who would I complain to? If you go to the police to say anything, they'll either make you leave or they'll lock you up," she said.

Use of Deadly Force

Given the brutal attitude that many police display toward street children, it is not surprising to find that police violence against street children has occasionally risen to a deadly level in recent years. On August 11, 1994, a fifteen-year-old street boy named Simon Kamande Kampaniu was allegedly shot several times at close range and killed by police reservist Arvinderjit Singh Chadha in the Ngara area of Nairobi.53 Public outrage mounted when it became known that the same reservist had been involved in the shooting and killing of five other street boys less than two months earlier on June 22, 1994. The reservist was eventually charged with the murder of Simon Kamande Kampaniu but was acquitted after trial in March 1995.

Presiding over the High Court in Nairobi, where the reservist was tried, Judge Samuel Bosire found that there was insufficient evidence to prove that the reservist had committed murder, or even the lesser charge of manslaughter.54 The reservist admitted shooting Kampaniu and said that the boy was the eighth person he had killed in two years of duty.55 He claimed that he had acted in self-defense after Kampaniu allegedly threatened him with a knife. The judge found that there was insufficient evidence to support the reservist's claims that Kampaniu had been armed, but still ruled that Kampaniu "was killed in the course of arrest after having committed a crime."56

Street children interviewed immediately after the verdict stated that the decision set a dangerous precedent for them and that it encouraged police to use excessive force against street children. Sixteen-year-old Evans Nyagah said theruling signaled to police that they could shoot street children at any time and claim that children were stealing as justification for their conduct.57

Eighteen months after the acquittal, another street boy named Daudi Ismail, known as Kajunia, was allegedly shot and killed by a reservist in Uhuru Park in Nairobi on September 22, 1996. The shooting occurred during Human Rights Watch's visit to Kenya, and we were able to interview several of the boys who were present at the shooting. Eighteen-year-old Moses described to us what happened that Sunday afternoon in Uhuru Park:

It was around 3 p.m. We were by the restaurant in Uhuru Park. They had given us food in exchange for throwing out their garbage and we had just sat down to eat. There was a big group of us boys. Kajunia and David went off to go to the bathroom. Some other boys went off to get water for us all to drink. Then we saw Paul, a police reservist, who we recognized right away-he usually carries a whip. He and his partner got out of their car, about fifty meters away, and started coming towards us. Paul was holding a whip in his left hand. We got up and started to run away. We were all running and shouting, and some of the smaller boys were caught and whipped. I jumped over a fence and crouched down low, near the Cathedral. David and Kajunia had gone down into a ditch which runs through a part of the park, and gone to the bathroom in a tunnel. David came out first and was able to get away in time. Kajunia was just coming out when Paul got him. Paul had his gun out and pointed into the ditch and fired. A few minutes later, he walked to his car and drove away. A crowd gathered around Kajunia's body, and the police came about fifteen minutes later. Us boys stood back a little at a distance. We were afraid to come too near. The police didn't come to us and ask any questions, except they asked one of the small boys what Kajunia's name was, that was all.58

We asked the boys present at the shooting whether Kajunia had attempted to steal a purse, as one newspaper article alleged, and whether Kajunia had beenarmed.59 David, who had been with Kajunia just before he was killed, responded angrily to that allegation:

If Kajunia had stolen a purse, where was the purse? There was nothing next to his body, no purse, no weapon. He wasn't armed. If he had tried to steal a purse, then from who? There was no one accusing him of stealing. Even if they thought we were stealing, the police should have whipped him, not killed him."60

David added that Kajunia was shot at point blank range, that he had his arms raised in surrender when he was shot, and that the reservist spat on his body before he walked away.

Police Accountability

Establishing police accountability is seriously hampered by the fact that children must complain directly to police about police abuse. The threat of repercussions by police is a serious deterrent to any child coming forward to testify or make complaints against police. Several children told us that for them to even go near a police station would be risking jail time for them. Thus, the majority of cases of police abuse of street children go undetected and unreported. Nevertheless, boys who witnessed the shooting of Kajunia told us they would be willing to come forward if provided with legal protection: "We're afraid and we're nervous. We can't just go to the police station and tell them what happened. We would go if we had protection, if we had a lawyer behind us."61

According to Rhoda Kimundi, an assistant commissioner of police, the process of making a complaint against a police officer works as follows. There is no special disciplinary unit within the police for the registering of complaints against officers. Individuals can lodge their complaints at any police station. The senior-most officer there would then direct the complaint to another police station or to the police commissioner for investigation. "We don't spare anything on ourofficers. They can be sacked, depending on the seriousness of the complaint. They can even be prosecuted in court," she said.62

In practice, however, we found that although any individual can lodge a complaint with police at any station, "the police are not bound by law to act, which means that in cases where they are being criticized, it is most unlikely that any decisive action will be taken."63 Thus even if a child were to muster up the courage and defiance to complain to police about police abuse, there is no guarantee that the complaint will be followed up or answered. With regard to legal redress, it is critical to note that police themselves are the ones who make the determination whether or not to level a criminal charge against an officer who is accused of violating the law. "The eminence of the police in the criminal trial process is emphasized by the fact that they must prepare the necessary charge sheet before a trial court can arbitrate over a matter of abuse."64 In cases where police do decide to file a criminal charge sheet against another officer, the charge sheet is passed to a prosecutor who is a also a member of the police force. The bulk of criminal cases in Kenya are government prosecuted, by "police prosecutors" who are usually employed within a division of the police known as the Criminal Investigation Department (CID).65 Police prosecutors are not attorneys but are trained to prosecute criminal cases. They often prosecute criminal cases against ordinary citizens, including street children, as well as cases against other police, raising the possibility of conflict of interest in the latter cases.66 If the case is very serious, or if a senior or "high ranking" officer is involved, a state counsel from the Attorney General's Office prosecutes the case.67

The Kenya Human Rights Commission, an NGO, reported that police killed eighty-eight people in the first nine months of 1996. According to the Attorney General's Office, twelve police officers were charged with brutality and wrongful killings in 1996. The government prosecuted only several of these cases, resulting in two convictions for murder.68

Additionally, it is possible for an individual to bring a private criminal action against the police or an individual. However, this is extremely costly and is well beyond the means of street children and NGOs that seek to assist them :

The government raised court fees for filing and hearing cases by several hundred percent in 1995. The daily rate for arguing a case before a judge, for example, rose from $10 to $50. The Law Society of Kenya and many attorneys strongly opposed the increase, saying that the new charges would deny the majority of citizens access to the courts.69

The difficulties in mounting a private criminal action against the police are large. This is especially true for street children, who are impoverished and live outside the protection of responsible adults. Further, the attorney general is authorized to take over and continue or discontinue any criminal action which is commenced by an individual.70

NGOs have assisted street children in filing preliminary complaints with the police about police misconduct,71 but have not themselves commenced private legal actions against police, with the exception of Kituo Cha Sheria (an NGO which engages in legal advocacy on behalf of the poor). Even if children's NGOs had the legal and financial resources to do this, the obstacles which they face are high and costly. One NGO that was actively involved in bringing to light facts surrounding the shooting and killing of Simon Kampaniu Kamande was denied registration after it became involved in the case, and has since registered under a new name. Members of that NGO have reportedly been harassed and one member was subjected to short-term arrest by police. Police often view NGOs that work with street children with suspicion and disdain, and NGOs are wary of antagonizing police and jeopardizing their ability to work with the children.

Evidence of the impunity of police is reflected in the case of the killing of Kajunia, described above. Despite the strong evidence that the use of lethal force against Kajunia was wholly unwarranted, no charges have been brought against the police reservist. Apparently, an inquest file was opened by police to record evidence on whether the shooting was justified or not, but no indictment was made against the reservist.72 Children said that they still see the reservist walking the streets. "The afande [the Kiswahili term of respect for police] is still around. He still comes after us and tries to beat us," said street boy Joseph Mwangii.73 Human Rights Watch sent letters to the attorney general and to the director of CID, inquiring about the status of the inquest, and what measures, if any, are being taken to discipline and prosecute the reservist. As of the date of the printing of this report, no response was received.

In the absence of any visible action on the part of the government to investigate and prosecute the reservist implicated in the shooting of Kajunia, the Kenyan branch of ANPPCAN (African Network for the Prevention and Protection against Child Abuse and Neglect), an NGO, is considering commencing a private criminal action against the police, but has not filed any action to date.74

We didn't sleep at all last night. That's why we're sleeping now, during the day. The daytime is our night time. Night is the most dangerous for us. The police come while we're sleeping and catch you off guard, and grab you and hit you. They'll take you to Makadara court [in Eastlands] and then you'll be sent to remand for months. Last night there was a big roundup and we had to move many times to avoid being caught. There was a large group of police in a big lorry, driving around, looking for kids. They're cleaning up the streets now to prepare for the Nairobi International Show [an annual international commerce and trade fair which takes in Nairobi].75

Although prohibited under international and Kenyan law, arbitrary detention is a common occurrence throughout Kenya. Street children are particularly vulnerable to this form of detention, as police and local government administrators become increasingly frustrated with their growing presence. Rounding up and locking up street children is viewed as a way to keep the population in check and to clean up the streets, particularly at times of international conferences or during holiday seasons, when national and international attention is focused on a city. Law enforcement and government authorities may also justify roundups as a means to identify children and reunite them with their families or place them in appropriate institutions for their care, although the manner in which the children are treated by police and within the juvenile justice system does not reflect that intention or the realization of that end.

The manner in which street children are detained grossly violates children's fundamental rights. Children often stay in police station lockups for days or even weeks, without being formally charged with an offense, with no assistance to suggest that the child's welfare was a motive for the detention, and without having the legality of their detention reviewed by judicial or other authorities. Children are picked up, held in police lockups where they are often beaten and almost always held with adults, and then released back onto the streets. They are not informed of their rights, not provided with legal counsel, and often beaten by police during questioning and in cells.

International and Kenyan Standards

The Convention on the Rights of the Child, ratified by Kenya in 1990, states that "no child shall be deprived of liberty unlawfully or arbitrarily."76 The child shall have the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority.77 The U.N. Rules for the Protection of Juveniles Deprived of their Liberty78 (U.N. Rules for the Protection of Juveniles) mandate that deprivation of liberty should be used only as a measure of last resort, and "for the minimum necessary period and should be limited to exceptional cases" (Rule 2). The U.N. Standard Minimum Rules for the Administration of Juvenile Justice79 (the Beijing Rules) also require that a judge or other competent official shall, without delay, consider releasing the child instead of recommending further incarceration (Rule 10.2).80 The child's parent or guardian should be immediately notified of the apprehension of the child, or as soon thereafter as possible (Rule 10.1).

Under Article 29 of the Criminal Procedure Code of Kenya,81 a police officer has wide powers of arrest without a warrant, including the power to arrest:

(a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence;

(f) any person whom he finds in a highway, yard, or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony; and

(g) any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself.

Under the Vagrancy Act, a police officer (including an administration police officer) may also arrest without a warrant "any person who is apparently a vagrant." Under Article 2 of the Vagrancy Act, vagrant is defined, among other things, as:

(a) a person having neither lawful employment nor lawful means of subsistence such as to provide him regularly with the necessities for his maintenance; or

(b) a person having no fixed abode82 and not giving a satisfactory account of himself; or

(c) a person wandering abroad, or placing himself in a public place, to beg or gather alms.

The Criminal Procedure Code requires that a person arrested without a warrant be brought "without unnecessary delay" before a magistrate or an officerin charge of a police station.83 Officers in charge of police stations must report all arrests without warrants to the nearest magistrate.84 If the detention is premised on criminal grounds, the constitution requires that the detainee be brought before a court "as soon as is reasonably practicable" and ordinarily within twenty-four hours.85 Assistant Commissioner of Police Rhoda Kimundi told us that children must ordinarily be brought before a magistrate within twenty-four hours of arrest, unless the arrest takes place on a Friday, in which case children will be held until the following Monday before being brought to court.⁷⁶

If the child "cannot be brought forthwith before a court," the police shall release the child "on a recognizance being entered into by his parent or guardian or other responsible person, with or without sureties" except in cases where the child is charged with a serious crime such as murder or manslaughter; or it is in the interest of the child to remove him or her from association with any undesirable person; or if releasing the child would defeat the ends of justice.86

Confinement in Police Lockups

Children are regularly picked up individually by police or are rounded up in groups during street sweeps, for no reason other than the fact that they are homeless or because a theft has occurred in the area. Decisions to round up street children are made by the police, sometimes in conjunction with local government authorities and the Children's Department.87 "Sometimes the police round up the children on their own initiative, and sometimes I ask them to do it, periodically," said H.O. Miyienda, the provincial children's officer for the Western Province ofKenya.88 Other employees of the Children's Department in Nairobi said, "provincial children's officers, in conjunction with provincial commissioners, will decide to round up children and instruct the police. Police sometimes will also liaise with the city commissioner and the city police (city askaris) to round up hawkers. Police will also apprehend a child who is found alone."89 Rhoda Kimundi told us that roundups are conducted for the purpose of helping the children-"to sort out the children, and feed them, and send them back to their families."90 In practice, most roundups are conducted in a punitive manner, and children may end up being charged with the crime of vagrancy or the status offense of being "in need of protection or discipline" in courts.

Roundups occur most frequently in Nairobi, where the numbers of street children are the highest, and take place usually at night. Group roundups also used to occur with regularity in Kisumu, but had dropped off in 1996 due to NGO pressure on police and local authorities.91 Regardless, children continue to be picked up frequently at night by police. A fifteen-year-old boy from Ahero town in Kisumu district told us that he had been arrested five times, and that most of the arrests had also occurred at night. His most recent arrest had occurred a few months earlier, in June 1996, when he and other boys were asleep near the bus station in Kisumu. They were arrested by a mixed group of regular police and administrative police, riding in a lorry. Twenty boys were caught and held overnight in the courtyard of the police station, before being taken to court.92

The majority of street children whom we interviewed stayed an average of a few days in lockups before being released or taken to court. However, sixteen out of forty-three children who were arrested and held at police stations said theywere held in lockups between one week and two months before being released or taken to court: six were held for one week; six were held for two weeks; two were held for three weeks; one was held for one month; and one was held for two months. The excessive duration of periods in lockups is worsened by the fact that conditions in lockups are extremely harmful to children-they are often beaten, almost always held with adults under deplorable physical conditions, and with no form of legal redress. Rarely were children's parents or guardians informed by police of the apprehension of the child.93 Release on bail to a parent or other responsible person was not extended to any of the street children whom we interviewed.

Physical Abuse by Police

Individual arrests and group roundups are conducted with brute force. Children described being grabbed and kicked, hit and sometimes whipped, caned or clubbed by police. Twenty-five out of forty-five children whom we interviewed and who were arrested, said they had been beaten by police at the time of arrest and/or at the police station. Seven out of the forty-five said they had not been beaten.

The Convention on the Rights of the Child states that children deprived of their liberty "shall be treated with humanity and respect for the inherent dignity of the human person" and that no child "shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment" (Article 37). The Constitution of Kenya, under Article 74(1), prohibits the same.94 The U.N. Basic Principles on theUse of Force and Firearms by Law Enforcement Officials contain guidelines on the policing of persons in custody or detention; law enforcement personnel "shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened."95

Beatings are commonly used to punish children for being on the streets, or during interrogations to find out information about a child's background, identity or alleged offenses. Sixteen-year-old Morgan, in Kisumu, described his treatment by police when he was arrested for an alleged forgery:

I was taken to the police station in Maseno market and was put in a cell with about ten men. The first day I was whipped by two policemen in the investigation room. They whipped me while they asked me questions and while two other policemen held me down. I refused to confess to the forgery. On the second day, I was called from my cell into the OCS's [officer in charge of station's] office. The OCS slapped me while he asked me questions. I still denied all the accusations. The OCS then ordered me to kneel on the floor for two hours.96

Fifteen-year-old John, from Vihiga district in Western Province, described how he was rounded up by city askaris and whipped with a motorcycle cable wire in Kamukunji police station in Nairobi: "Two police men in uniforms questioned me. They asked me questions, like where I was from, where my parents were. Every time I didn't answer a question, they whipped me on my back with a cable brake from a motorcycle."97

John also described receiving what he said police called a "welcome" upon first entering the station-a round of kicks, slaps, and hits. Several other children confirmed this practice of "welcoming" children on their first day of lockup. Fourteen-year-old David, from Nyandarua district in Central Province, explained: "usually the first day you're beaten, when they put you in the cell. At that time they'll also hit anyone else who's around. They don't know exactly whothe new ones are and who the old ones are so anyone might be hit."98 Seventeen-year-old Minga described his detention one month earlier in Parklands Police Station in Nairobi for us: "I stayed in the cell for three days. The first day, I was hit on the head with a pistol and kicked and punched. Whichever policeman would come into the cell and do the head count would hit me."99

It appears that street children may be beaten by police as a way of distributing summary punishment to children and to warn and frighten them into behaving, before releasing them back onto the streets. A social worker from Nairobi commented on the police practice of locking up and beating children:

The police response is partly administrative convenience: a summary punishment in the form of corporal punishment is meted out and the "delinquent" is released without charges having to be prepared or court proceedings gone through. Often both sides are content with this. Partly it is exasperation at the inability to solve an insoluble problem. . . . The young person may well know that going to court will only set off a procedure which will result in several periods of remand of a much longer duration, no matter what the outcome of the case itself.100

Eight out of forty-five children we interviewed, who had been arrested, said that they were released by police at the station without ever being sent on to court. All eight boys who were released said they were beaten, usually whipped or caned, before being released. Two of the eight said they were released on the same day that they were arrested. The other six reported that they spent between five days and two months in lockups before being released by police.

Physical Conditions in Lockups

The ICCPR requires that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."101 The Convention on the Rights of the Child requires the same.102

The cells in which children are held are often overcrowded, unclean, poorly ventilated, overrun with lice and vermin, and without running water. They are completely bare of any furnishings. All children we interviewed reported that they slept on the floor, usually without even a blanket to cover them. The absence of any bedding material is worsened by the fact that boys and men must usually remove their shirts, along with their shoes and belts, before being put in lockup. Cells were sometimes so crowded that children said they had to sleep sitting up or on their sides, because there was not enough room in the cell to lie down. Children said food was provided one, two, or three times a day, and in small quantities and of poor quality. Usually buckets served as toilets, and if there were toilets attached to the cells, they stank and filled the room with the odor of excrement and urine. Children's descriptions of different police stations are set forth below:

Central Police Station in Nairobi: We were all squashed into the cell, women and girls together. The police hit us with sticks when they put us in the cell. We were squeezed together when we slept on the floor at night. There were no blankets and no mattresses. Nothing. There was a bathroom attached to the cell which we could use whenever we wanted. The toilet smelled. They fed us bad ugali [porridge made of maize meal] and sukuma wiki [a green leafy vegetable] to eat. I didn't eat it, it looked so bad. Sometimes they gave us water to drink. The police were always yelling at us and checking on us. This one policeman, called Kiragu, beat me. I stayed there for two weeks before I went to court.103

Parklands Police Station in Nairobi: The first time I was in Parklands station, I stayed there for only one night. I stayed in a cell with drunk ladies, changga [home made alcohol] sellers,and two men. We all slept on the floor. They fed us ugali and greens. There was a small hall that served as a toilet. That time I wasn't beaten, but some of the others were. The police made one man bend down and put a finger on the floor and run around in circles while another policeman was kicking him. The next time I was arrested I was brought to Parklands again, and stayed for two nights, but this time I stayed in a different cell-it was larger. There were adults and kids there together, but the adults were taken somewhere else at night to sleep. I didn't have any problems with the adults. The only problems I had were with the police. I woke up in the middle of the night to find police beating me with a stick and kicking me. I must have been asleep when they were taking roll call.104

We were given toast in the morning and tea without sugar. There was no lunch. In the evening they gave us water and a small amount of ugali. We were very hungry. There was no light and no running water, but they gave us drinking water. There were fleas all over the place. We slept on the floor. There were two filthy blankets for all seven of us to share.105

Kamukunji Police Station in Nairobi: I was forced to clean the police station when I got there. Then they put me in a small dirty cell with some drunk men and two other boys. The cell mates did not mistreat me. The first day I was beaten by two police with a long wooden stick. They called me names-said I was a thief. They didn't ask me questions, they just beat me. There was no toilet in the cell. I peed on the floor. I was hungry all the time. They fed us a half cup of tea in the morning, and a small portion of ugali in the evening. That was it. After a week I was brought to court.106

I was put in a separate room for children in Kamukunji. There were no windows and the room was dark and crowded. There was no light aside from what light came through the sheeting on the ceiling. There was a bucket for a toilet. Sometimes they let the kids out to get water. I was hungry. They fed us once a day, ugali and sukuma wiki at night. They also gave us a cup of tea in the morning. Two police men in uniforms questioned me. They asked me questions, like where I was from, where my parents were. Every time I didn't answer a question, they whipped me on my back with a cable brake from a motorcycle. After two months there, they let me go. I never went to court.107

Central Police Station in Mombasa: The cell was small and damp. There were between twelve and twenty people in the cell when I was there. I was the only kid. There were bedbugs and lice. There was only one window and it was very high up. There was nothing in the cell. We slept on the floor. The lights were on twenty-four hours a day. There was a bucket for a toilet. They gave us tea and a slice of bread in the morning, ugali and greens for lunch, and the same thing again for dinner with a little water to drink.108

Police Station in Likoni (near Mombasa): There was only one cell and there were around sixty people in it. We were all mixed together, adults and kids, but the women stayed separately in the corridor. It was so crowded I had to sleep sitting up, with my knees pulled up to my chest. There was a bucket for a toilet, and no running water in the cell. There were no windows and the place smelled. There was a small hole in the door which was the only place where light came in. In the morning they fed us half a cup of tea and two slices of bread. For lunch they gave us a little ugali and cabbage, and the same thing for dinner.109

Police Station in Kisumu: The cell was dirty, with a bucket for a toilet . . . . The cell had two small windows with bars and mosquito netting. There were no lights in the room. There were no blankets, nothing at all to sleep on. They fed us twice a day. In the morning they gave us tea and bread, and for supper we got ugali and sukuma wiki. There was water available in a separate room, which we could get to if we wanted.110

The cell was small and crowded and adults and kids were mixed together. There were no lights, and no windows, only small vents with wire mesh over them. There was one small window in the door of the cell that faced onto the corridor. There was a bucket for a toilet. The food wasn't enough. They gave us one piece of toast and tea in the morning, and a small portion of ugali and sukuma wiki for lunch. There was no dinner. At midnight they'd take roll call, and if you didn't answer you'd be caned. We slept on the floor sitting up because there wasn't room to lie down. There were lice on the floor, you could see them.111

Children Held with Adults

An overwhelming majority of the children we interviewed who had been arrested were locked in cells with adults despite the clear standards in international law that children should never be held with adults. Article 10(1)(b) of the ICCPR and Rules 13.4 and 26.3 of the Beijing Rules require that children suspected of offenses be separated from adults if detained. The Kenyan Children and Young Persons act requires that children under the age of sixteen be detained separately from adults in police stations and while being conveyed between police station and court, and while waiting to attend or leave any court.112 In this regard, Kenyan lawis inconsistent with international standards, including the Convention on the Rights of the Child, which require that persons under the age of eighteen not be detained with adult offenders.113

When questioned about the regular practice of detaining children with adults, Assistant Commissioner of Police Rhoda Kimundi responded, "it could be that the cells were too full. Children should not be mixed with adults unless it is something that cannot be avoided."114 Commingling was found to be the norm, and separation the exception. Three out of forty-three children we interviewed, who were arrested and held at the police station, told us they were held in a separate room or area for children. Thirty told us they were mixed with adults. Almost all were separated by sex.

None of the children we interviewed complained about mistreatment by adult cell mates. However, children commonly complained that police singled them out from adults to perform chores around the station, such as cleaning out waste buckets, and cleaning offices in the station. Fourteen-year-old Augustine, from Kisumu district, told us how he had been caught in a roundup at night along with four other boys, and taken to the police station in Kisumu:

The police caned us and took us to the station. I stayed there for one week. There were men and kids mixed together. Women were in a separate room. The cell was dirty, with a bucket for a toilet. Us kids were made to clean out the bucket every morning, and to clean the shit and urine off the floor.115

Another fourteen-year-old boy told us that in the Central Police Station in Mombasa he was held in a cell with between twelve and twenty adults for six nights. He complained, "the police bullied me because I was the only young boythere. They made me mop the offices, and clean up the other cells. The others didn't have to do this."116

After spending several nights or weeks under these conditions, children are released or taken to court.

I was charged along with four other girls who I didn't know. We hadn't been arrested together but we were all on the same charge sheet. They read us the charges, `loitering with intent to solicit.' We didn't have a lawyer. The magistrate told us it would be better for us if we pleaded guilty, so we pled guilty. We were sentenced to two weeks in Langata prison, or to pay a fine of 1000 shillings. The whole thing lasted about five minutes.117

Street children are frequently arrested by police and brought before courts where they are charged with criminal offenses or classified as being "in need of "protection or discipline." Without representation by legal counsel, and without the presence of a parent or legal guardian, these children are subjected to brief hearings on their cases whereby they may be deprived of their liberty and committed for years to juvenile correctional institutions know as approved schools or borstal institutions. Under Kenyan law, children fourteen years old and above also may be committed to regular prisons, although this practice is reportedly rare. Before they are committed to these institutions, children frequently spend excessive periods in temporary detention centers, called juvenile remand homes or remand prisons, pending adjudication of their cases. This section will focus on the procedures by which children are confined to these institutions.

Juvenile Court

The primary law in Kenya concerning children in conflict with the law is the Children and Young Persons Act. The court system in Kenya is three-tiered and consists of a court of appeals, a high court, and lower courts known as magistrate's courts. The Children and Young Persons Act establishes juvenile courts, at the level of magistrates' courts, for the purpose of hearing all charges against persons under eighteen years of age, except in cases where children arecharged jointly with adults.118 If a child is brought before a regular court and it becomes apparent that the person is under eighteen years of age, the court must remit the case to juvenile court.119 Juvenile courts must sit in a different building or on different days or at different times from regular courts for adults, and are closed to the general public.120 Only one separate juvenile court exists in Kenya, the Juvenile Law Court in Nairobi, presided over by Magistrate Dixon Konya. Other ad hoc juvenile courts are convened in regular courthouses throughout Kenya; the courtrooms are cleared of adults before children's cases are heard, or the cases are heard in camera.121

Despite the requirement that children's cases be heard in juvenile courts, sixteen out of forty children that we interviewed who were brought to court, said their cases were heard in regular courts mixed with adult cases. None of the children we interviewed were charged jointly with adults.122 Children arrested in or around Nairobi described being taken to City Court, Makadara Court, and High Court (instead of the Juvenile Law Court) where they were mixed with adults. Outside of Nairobi, where ad hoc juvenile courts are convened, children reported that their cases were heard in open court rooms mixed with adults.

A representative of an NGO that works with street children in Nairobi explained how children might be processed as adults and pointed to the critical role that police play in determining which court a child is sent to:

Police have huge discretion in deciding what court you go to. They write the charge sheet and they take you to court. If they think you're older or if the offense is a more serious one, they'll take you to regular court. It's all based on looks. Kids can't explain themselves to the police. There's no time, and they're scared.123

Njuguna Mutahi, of the Kenya Human Rights Commission, similarly commented:

Police decide your age, basically on your looks, and they can make mistakes. There are other problems too-like in rural areas pastoralist children are born at home and have no official registration and may not know their exact age. The police don't care. The magistrates don't care. It especially effects street children who don't have concerned parties to complain on their behalf and point out that they're only children.124

Even in the Juvenile Law Court, the one juvenile court in Kenya that is housed in its own building, adult cases are also heard. Reportedly this practice developed during the tenure of the last magistrate, who began asking for adult cases to be brought to court.125 According to probation officers at the court, "she decided hearing only juvenile cases was boring."126 Whatever the reasons were, the practice has continued to the present.

In the Juvenile Law Court, children's cases are heard at separate times from adult cases. Children are crowded into one of the court's two holding cells, located in an enclosed courtyard behind the main court building. At the time of our visit, on September 17, 1996, the holding cell in which children were kept was completely dark, without any windows or light. There were small air vents at the top where the ceiling met the wall. The only light which came into the cell was through a tiny window in the heavy door. There were approximately forty children in a room of about twenty-five-by-fifteen-feet in size.

Despite Kenyan legal requirements that children's cases be heard in juvenile courts, police and magistrates commonly overlook or neglect to enforce them. There is a clear need for the establishment of more separate juvenile courts throughout Kenya, presided over by magistrates who are specially trained to deal with children's cases. Many NGOs voiced concern over the complete absence of training for magistrates on how to deal with the special needs of children. In areas where it is impractical to establish separate juvenile courts, at least magistrates should ensure that children who come before them are not treated and tried as adults. Police and magistrates should make greater efforts to ascertain the true age of young people in their work, and ensure that children are identified and dealt with as children, in juvenile courts according to law.

Jurisdiction of Juvenile Courts

Jurisdiction of the juvenile courts is broad and extends to "any offence other than manslaughter or an offence punishable by death."127 In addition to criminal offenses, jurisdiction of the juvenile court extends to non-criminal cases of children under the age of sixteen who are "in need of protection or discipline."128

"Protection or discipline" cases refer to the cases of children under the age of sixteen who are uncontrollable, parentless, deserted, destitute, vagrants, beggars or who fall into "bad associations."129 "Protection or discipline" cases areessentially status offenses,130 and are subdivided into cases of children "in need of protection and care" (P&C cases) and children "in need of protection and discipline" (P&D cases).131 Street children's cases are frequently processed as P&D cases.

Confusing overlaps exist between criminal offenses and "protection or discipline" matters. For example, a child vagrant may be a criminal offender under the Vagrancy Act, and may also be a child "in need of protection or discipline" under the Children and Young Persons Act. Similarly, under certain circumstances a child found begging may be an "idle and disorderly person" or a "rogue andvagabond" under the Penal Code,132 and may also be a child "in need of protection or discipline" under the Children and Young Persons Act. Children from both categories are mixed together in police lockups, in court, in remand, and in approved schools (to which children from both categories may be finally committed). Thus, the distinction between children charged with criminal offenses and children "in need of protection or discipline" is obscured and the categorization is in many ways arbitrary; the legal system essentially treats them the same.

Indeed, street children themselves appear to be unaware of the distinction between criminal and non-criminal status offenses for which they are brought to court, and generally view court proceedings to which they are subjected as criminal. It is no wonder, considering that street children are apprehended and beaten by police, held in lockups usually with adult criminal offenders, and processed often in regular courts. They are further detained in remand homes or in adult remand prisons, and finally may be confined for years in correctional institutions where criminal offenders are mixed with those "in need of protection or discipline." The language the children used to describe their experiences in court reflects their view of the proceedings as criminal. Although the words "conviction" and "sentence" are not to be used to refer to decisions in juvenile court,133 children told us that they were "guilty" or "not guilty," even when the facts surrounding their apprehension indicated that they were children "in need of protection or discipline."

Referral of Cases to Juvenile Court

Any authorized officer who has reasonable grounds to believe that a child is "in need of protection or discipline" can apprehend a child without a warrant and bring him or her before a court.134 Authorized officers include: a police officer (including administrative police), a children's officer, an approved officer, a chief or a sub-chief. Police apprehend children on the street for vagrancy or upon suspicion of having committed minor criminal offenses and bring them to court. The Children's Department (under the Ministry of Home Affairs) is charged under the Children and Young Persons Act with the protection and care of children and employs approximately seventy children's officers who investigate cases ofchildren at risk or who are "in need of protection or discipline."135 Among their many duties, children's officers can bring cases of children "in need of protection or discipline" to court, and can apply for an order committing a child to an institution for the child's rehabilitation and welfare. Approved officers are individuals who are appointed by voluntary organizations that are "approved" by the minister of home affairs to work on issues related to the protection and care of children. Chiefs and sub-chiefs are the lowest level of local government administrators, who work under city commissions. They also may bring children's cases to juvenile court. Parents and private citizens can also bring children directly to police or to children's officers for court referral. Parents occasionally do this out of desire to have their child receive a free education in an approved school,136 reflecting more on the limited opportunities for children on the outside, than on the quality or conditions in approved schools.

Through occasional meetings of local bodies known as district children's advisory committees, police, children's officers, NGOs and local government authorities sometimes work together on issues of common concern, in tracing children's families and alerting each other to the presence of children "in need of protection or discipline."137 However, by far the most common route of referral to court is through the police.

Rights of the Accused

International and Kenyan Standards

The Convention on the Rights of the Child, ratified by Kenya in 1990, directly addresses the rights of children accused of having infringed penal laws in Article 40 and guarantees, at a minimum, the right to "legal or other appropriateassistance in the preparation and presentation of his or her defense," including "free assistance of an interpreter if the child cannot understand or speak the language used," not to be compelled to give testimony or confess guilt, and to have the matter determined "without delay" by an independent judicial body, or other independent and impartial authority, in a fair hearing according to law, in the presence of a parent or guardian and "legal or other appropriate assistance." Where a decision is made that a child has infringed penal laws, the child has the right to have that decision and any measures imposed in consequence reviewed by a higher competent, independent and impartial authority.

The Beijing Rules also guarantee basic procedural safeguards to children accused of criminal offenses, "such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority."138 The Beijing Rules also extend these protections to children accused of status offenses, "who may be proceeded against for any specific behaviour that would not be punishable if committed by an adult," such as family disobedience.139 The very recognition of status offenses as punishable conduct is strongly discouraged by the U.N. Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), which recommends that governments should enact legislation prohibiting the very recognition of status offenses.140

The Criminal Procedure Code and Constitution of Kenya provide certain protections to any person accused of a criminal offense, including the rights: to defend him or herself in court through a legal representative of his or her choice;141 to examine in person or by legal counsel the witnesses against him or her;142 to be tried by an impartial court;143 and to an appeal.144 "The procedure of hearing juvenile cases [in juvenile courts] is the same as other courts in that the criminal procedure and law of evidence must be followed."145 As for children, the attendance of the child's parent or guardian may be required during all proceedings, if the parent can be found and resides at a reasonable distance.146

Kenyan law, however, does not extend these basic protections to status offenders; this is especially problematic for street children who are often brought before courts without being charged with criminal offenses, who are "children in need of protection or discipline." As such, they are without many of the rights supposedly enjoyed by children charged with criminal offenses, in contravention of international law. In practice, however, both categories of children rarely are able to exercise these rights.

Kenyan Practice

We observed proceedings in the Juvenile Law Court in Nairobi on two separate occasions. Juvenile court proceedings are closed to the public-the only people allowed in the court room are the parties to the case, their attorneys and witnesses, parents or guardians, the magistrate, probation officers and children's officers, the police prosecutor, court clerks, and any other person that the court may specially authorize to be present. The magistrate in charge of the court, Dixon Konya, allowed Human Rights Watch to attend court sessions on two mornings,when "mentions" were being heard.147 Mentions are essentially arraignments or preliminary hearings, and last no longer than a few minutes per case. However, many children's cases never move beyond the mention phase, as will be discussed below.

The Beijing Rules state that proceedings "shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely."148 However, we found the atmosphere of the court room to be intimidating and frightening for children, as well as rushed. Thirteen-year-old Peter, from Nairobi, said of his experiences in the Juvenile Law Court "it's like the judge has already made up his mind that you're guilty, from the moment he asks you the first question."149 Ad hoc juvenile court proceedings are also reported to be conducted in an intimidating manner:

[M]ost court officers do not conduct themselves as they should in Juvenile Court. For a start, there is only one Juvenile Court in the whole country -- in Nairobi. In all other stations, the magistrates have to convene these courts as special sessions of the ordinary courts. This they normally do without regard to the provisions of the law regarding the conduct of a children's court. As a result, children in these courts are subjected to great fear, as prosecutors, advocates, and other court officers addressing them in an intimidating manner in order to get them to make admissions.150

On each morning in the Juvenile Law Court, we observed that the children were brought in from the holding cell of the court in a large group and crowded onto benches in the court room. There was barely enough room on the benches to accommodate the forty-five and forty-nine children on each day. Many had been brought directly from the police station and others had been brought from remand. Almost all appeared to be street children. They ranged in age from the very young, about six years old, to adolescents. They all looked dirty, dressed in ragged andsoiled clothes, and many were barefoot. The proceedings took place at a rapid pace with no more than a few minutes spent on each case.

The new cases of children brought directly from the police station were called first. The most frequent charge against children on both days was vagrancy. Cases were called one at a time. Each child would rise from the bench and step forward to be questioned by the magistrate who was seated behind a desk on a raised platform at the head of the court room. The magistrate would ask the children where they were from, where they lived, where their parents were, and if the children had any money. Often visibly frightened, the children sometimes did not respond to questions, or responded inaudibly, to which the magistrate would command them to speak louder.151 At times the magistrate lost his temper, and sharply scolded children or warned them that if they were found on the streets again they would be jailed.

Referral of cases to children's officers or probation officers

If the case was a "protection or discipline" matter, the magistrate would refer the case to a children's officer for preparation of an "investigation report" (the equivalent of a social inquiry report), and tell the child to sit down. If the "protection or discipline" case was old, and had already been assigned to a children's officer, the officer would rise and present the recommendations of the investigation report (on what correctional measure to order). Often the investigation report was not ready and the officer would request more time for its preparation.

If the charge was a criminal offense, the magistrate would ask for the plea. In City Court152 in Nairobi, where sixteen-year-old Elizabeth was taken a year earlier, she described being advised by the magistrate to plead guilty: "It would be better" for her, she was told by the magistrate.153

Once an admission of guilt was entered, the magistrate would assign a probation officer to the case for the preparation of a "pre-sentencing report." If the case was old, and a probation officer had already been assigned to the case, the officer would rise and present the recommendation on sentencing to the magistrate. If the child pled "not guilty," a court date would be set for the child to reappear for another mention or for trial.

Translation and explanation of proceedings

The proceedings were conducted in Kiswahili and English. Occasionally a child would be called who spoke neither, and one of the court officers would interpret portions of the proceedings for the child. However, occasionally interpreters are not available, as was the case for fourteen-year-old Gordon. He told us how two years earlier he had been rounded up off the streets and brought to the Juvenile Law Court:

The judge spoke to me in Kiswahili but I didn't understand. I only speak Luo. People in the court room started laughing at me. The judge motioned for me to sit down. At the end, I was brought to his chambers, and he spoke to me again in Kiswahili. Then he caned me. From there I was sent to Kabete remand [Nairobi Juvenile Remand].154

On the days we observed proceedings in the Juvenile Law Court, the magistrate made efforts to explain to children what was happening to them (where they were being sent, what correctional measures he was ordering, or when they would have to reappear in court). However, several children we interviewed told us that in other courts they were not informed of the status of their cases, were confused about the nature and purpose of the proceedings, and were unaware of the disposition of their cases. For example, fifteen-year-old Tom told us of his first experience in the High Court in Kisumu in June 1996, after he was rounded up while sleeping near the bus station:

No one talked to me or explained anything that was happening. The magistrate asked me where I was from, and why I had left home. He didn't tell me what he had decided for me. I figured he had decided to send me to remand, where most kids get sent,and I was right. I was taken to juvenile remand home where I stayed for three days, and was then just released."155

Similarly, another street boy in Kisumu expressed his confusion over court proceedings, after he was charged with being a "rogue and vagabond":

From the Central Police Station in Kisumu I was brought to court and sent to Kodiaga remand prison. . . . I went back to court three times, every two weeks. The first time I went, the judge wasn't there. I was brought into a room and was questioned by some people. I don't know who they were. After another two weeks, it was the same procedure again. Then the third time I went back I saw the judge. He turned me over to the police and they brought me to the Central Police Station. I didn't know what was happening. The judge didn't tell me anything. Then from the police station, the police took me to Kiambu and left me with my parents.156

Presence of parent or guardian

Parents or guardians were rarely present at the proceedings that we observed. Only five out of forty children we interviewed, who had appeared in court, said that a parent or guardian had been present for a part of the court proceedings. In the Juvenile Law Court, we observed that parents must wait outside the courtroom in the hallway and are called in when their child's case is called. A representative of a street children's NGO in Nairobi told us that sometimes cases were called so quickly that it was possible for a parent to miss the case entirely.157 Once in the courtroom, the parents appeared to be as intimidated as the children before the magistrate. In non-criminal cases, the child was released to the parent then and there if the parent was willing to accept the child. In one case that we observed, however, the parent told the magistrate that she did not want the boy released to her because she could not control him. The boy broke down intears as the magistrate announced that the boy was a "delinquent" and would be sent to an approved school.

Legal or other assistance

None of the children on either days were represented by attorneys, and none of the forty children we interviewed, who had appeared in court, had legal counsel at any time. Legal representation is so rare that two probation officers attached to the Juvenile Law Court told us the last case they remembered where a child had legal counsel was sometime the year before, in 1995.158