Children Can Sue the Government- DCJ

June 14, 2022

By Raisa Okwaras

The Deputy Chief Justice (DCJ) Hon. Lady Justice Philomena Mbete Mwilu affirmed that children have the right to sue the government if the latter fails to have their best interests at heart.

She said this yesterday June 13, 2022, at the Children Town Hall Meeting held at Mbagathi Primary School, Kibera Constituency in Nairobi, Kenya. Here, children from several schools had gathered, courtesy of Mtoto News International, for a one-on-one conversation between the children of Kenya and the Judiciary.

It was to shine a light on 2022’s Day of the African Child on Thursday, June 16, 2022, whose theme is ‘Eliminating Harmful Practices Affecting Children: Progress on Policy and Practice since 2013.’

Some of the burning issues that children raised include why children’s cases sometimes take over six months yet the law is against it and why children are sometimes held in police cells for over 24 hours.

According to Justice Teresia Matheka, it is unfortunate for children’s cases to lapse over six months. Factors that lead to such include the failure of witnesses and victims to show up on court hearing days and the transfer of the Judge in charge of the case.

Others include an overburdening on their side on matters case hearings, where the Judges assigned for Children’s Courts are forced to cater to adult hearings since there is a shortage of Judges. However, she says that they have no excuse as it is a failure on their end.

It is true that no one should be held in the cell for over 24 hours without a court order. However, as the court, we only get to be informed about it later on when you come to court. The police officers should tell us why this happens,” she added.

However, she advises children that if ever they are held in a cell for over 24 hours without a court order, they should say it when they get to court. If the law finds the fault on the Police side, they will be dealt with accordingly where they get punishment or pay damages.

The Deputy Chief Justice (DCJ) Hon. Lady Justice Philomena Mbete Mwilu was quick to state that they were not there to pass the blame. She stated that if children’s cases lapse 3 months, they have a right of shedding off parts of the case. If it goes beyond six months, they have the right to dismiss the case.

We are not here to pass blame today. It is the business of the judiciary to ensure that once the case gets to court, it is heard. Anything else, we say, is an excuse. We are very powerful people. If we give an order to the police who has not brought witnesses, that order has to be obeyed,” said Hon. Lady Justice Philomena Mbete Mwilu.

The law is not deficient in the protection of children. It is the society and the government that is deficient in the execution of the mandate,” she added.

While the dismissal of child cases after six months is okay, the problem is that it does not correct the wrong. If such goes on, our society will be full of culprits. The DCJ, therefore, is insistent on the fact that the Judiciary is capable and no excuses should be raised whatsoever.

She also called upon all Magistrates dealing with children’s cases to ensure that the court is child-friendly. According to her, children do not belong in jail and prison, hence why there are no prisons for children.

The court is a scary place. If a child gets to that court, all the evidence they had evaporates because of fear. If it is we, the magistrates, that have been scaring you, we will change that, because it is all we are asked to do. We will talk to you in a more friendly way if we haven’t been doing that. It is our responsibility to speak to you well. It is our responsibility to ensure that once you are in the court premises, you are not intimidated by the other side…we are trying to do the best we can, but where we fail, we need you to support us to improve,” added the DCJ.

The majority of concerns that followed were concerning sexual offenses and how defilement matters are handled. For instance, Daisy Njoroge asked why bail is granted to child defilement cases. Al Amin Ahmed asked why children that have been defiled or are victims of Female Genital Mutilation (FGM), as dehumanizing as it may seem, are asked to present evidence. Another girl also boldly asked why not kill the men who gang-raped a high-school girl to death.

According to the law, every case is bailable. We only pass judgment once evidence is given, and bail is a constitutional right,” she said.

This is how the court operates; a case is determined upon evidence. I would therefore not call it demeaning, although that is what it is, but I would say that if there was a better way of collecting evidence from the child so that they are not subjected to further torture at the hearing of giving that evidence in front of the perpetrator, then that other method has to be used. But as the law stands today, the victim must give evidence in court, supporting evidence from the doctor, and other viable sources,” added the DCJ.

Nevertheless, raising this concern gave her an opportunity to realize possible loopholes in the National Council on the Administration of Justice (NCAJ) and changes that need to be made.

When asked if children can sue the government, Hon. Lady Justice Philomena Mbete Mwilu affirmed.

Yes, children can sue the government. Anyone can take a case to court through anyone else. If children feel that the law has discriminated against them for not allowing them to participate in processes of governance, yes, they have the right to sue, not just the government, but everybody who has discriminated against them,” clarified the DCJ.

Other concerns include child marriages and child labor in refugee camps like Dadaab and Kakuma, the rights and well-being of babies accompanying their mothers to prison, and if abortion is really a crime for children that get pregnant after being raped.

Abortion is a crime in this country and it can only be allowed under circumstances stipulated by the constitution. If the medical evidence is that the child can carry to term the pregnancy, there are options thereafter. Nobody should have to put a child through this, but there are options that include giving up the child for adoption. But for me, no grown person should have to do this to a child. Do not make children parents,” stated the DCJ.

The DCJ Hon. Lady Justice Philomena Mbete Mwilu and Justice Teresia Matheka were concerned as to why there were so many concerns of child defilement.

Are we sick? What do we do as a society? This problem is bigger than the judiciary can handle alone. It is a societal issue and we all are called upon to chip in and ensure that people keep to their lanes. Let grown men go with grown women and let children be children,” she aired.

The DCJ Hon. Lady Justice Philomena Mbete Mwilu promises to look inwards at the NCAJ and other stakeholders on matters concerning children towards taking care of all children in Kenya.

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