A 16-year-old orphan was awarded the equivalent of Shs6m when the High Court ruled in his favour in a constitutional petition. The court ruled that the orphan was a minor whose constitutional rights as a minor had been abused without any substantial justification by both the Director of Public Prosecutions and the court trying him for a criminal offence.
Right to a fair trial
The High court also ruled that the orphan’s right to a fair trial had been infringed upon and that he had been discriminated against by the law on the basis of his sex. Court was guided in awarding these costs by an article of the constitution that provides for reliefs where there is violation of fundamental rights and freedoms. It had been proved to the court’s satisfaction that these violations were made by these two agents of the State. In addition, the High Court quashed the criminal trial of the orphan in a lower court and ordered for him to be released immediately.
Interests of the child
The orphan had been charged with the offence of defiling a fellow minor and detained with adults for close to one year. This detention with adults was one of the grounds of the constitutional petition. In the petition it was stated that the orphan continued to be held in custody for an inordinately prolonged period in an adult facility. As a result of this prolonged stay, the petition added, the orphan missed school and his education suffered. The article of the constitution, to act in the best interest of child, was clearly being violated, court was further told.
The first issue court had to settle was whether the orphan was indeed a minor. The High Court was convinced, and ruled that the orphan was a child. Minors have constitutional rights enshrined in the constitution and International law. Court was therefore guided by, among other laws, the UN Convention on the Rights of Children, one of which states “that every child deprived of liberty shall be separated from adults, unless it is considered in the child’s best interest not to do so.”
Exceptions for children
The law also states that “every child has the right not to be detained, except as a last resort, and when detained, to be held;
•for the shortest appropriate period of time
•separate from adults and in conditions that take account of the child’s sex and age.
The national children policy was also in conformity with these. One of the policy statements was to the effect that “All children deserve protection from the law in matters regarding the law, whether they are in conflict with the law or requiring legal protection.
To the High Court it ought to have been clear to the Director of Public Prosecutions that the orphan was a minor and the fact that a Children’s officer was not assigned to locate his next of kin made it close to impossible for him to be bailed out on remand.
The High Court observed that it is not in the best interest of children in conflict with the law to be mixed up with adult offenders, and that is why the law is unambiguous that children should be kept separately, which is clearly provided for in the constitution as well as bail and bond policies for children. Court therefore ruled that as a matter of fact, the Director of Public Prosecutions and the Court trying the orphan for defilement had contravened the constitution, in that the best interest of the child was not taken into consideration and the rights of the orphan were infringed upon. Court observed that this contravention could bruise the orphan for the rest of his life.
The judge shuddered to think of the possible abuses the orphan may have been subjected to while sharing remand facilities with adult men. This to the judge was cruel exposure that could be difficult for the child to be cured from.
The High Court further observed that whereas the orphan was granted bail whose term he could ill afford, the trial court ought to have called for a pre-bail report so as to assess whether he could have benefitted from cashless bond. This was therefore a major failure by the trial court.
to be continued...