Free Legal Aid for Child Matters in Kenyan Courts

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Did you know there is free legal aid for children in Kenya? 

The Children Act No. 29 of 2022 (the 'Act') was assented to the law by the President on 6th July 2022 with a commencement date of 26th July 2022. The process of amending the Children Act 2001 was necessitated by the need to align it to the 2010 Constitution, the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, and other relevant international instruments relating to children. 

In Kenya, the principle of access to justice is enshrined in the Constitution, which requires that everyone, including children, has the right to a fair trial and access to justice. The Children's Act of 2022 also provides for the protection and welfare of children and ensures that children's rights are respected in all legal proceedings. According to the law, children are not required to pay legal fees when they are parties in court proceedings. The Children's Act also provides that children who are unable to pay the fees necessary to pursue a legal matter are entitled to legal aid. This means that the government is required to provide legal representation for children who cannot afford it.

What do you need to know about children and legal process involvement?

First of all, the children act raised the age of criminal culpability of children from 8 to 12 years. This means that a child under the age of 12 years, shall not be held criminally responsible for any act or omission. The presumption of a criminal mind-set has been raised to children of 14 years and above (Section 221).

Secondly, in effort to implement the Constitutional principle which states that the detention of a child before trial shall be considered as the last resort, the Act condemns detaining a child. Instead, section 223 of the Act provides for alternatives to such detention, including placement of children with a family or in an educational setting, among others. “Clause 64 provides for the establishment of child protection units by the Inspector-General in every police station for the purposes of providing, on a temporary basis, a safe and non-threatening environment for children in conflict with the law,” the Act says.

Thirdly, the Act discourage the arraignment of children who have committed minor offences. Instead, it requires such children be diverted to community-based correction systems listed under section 239 of the Act. For cases that are not minor, the law states that the Chief Justice may designate children’s courts in counties and sub counties and appoint a magistrate to preside over the cases in which a child is a victim or complainant.

Finally, the Act provides that all children coming into conflict with the law will be provided with free legal aid to enable them to navigate through the justice system. The Act borrows and is supplemented by the Legal Aid Act, 2016 when it comes to children representation. Specifically, Section 96(1) empowers children complainants under the age of sixteen (16) years in need of representation to be assisted on the same through the legal aid kit. In other words, any legal fees for that particular representation shall be charged on the Legal Aid Fund. It is a step in the right direction that the new Act has elaborately provided for the use of the Legal Aid Fund in that specific circumstance. In contrast, the repealed Act under Section 77 provided that where an unrepresented child is brought before a court, the court may order that the child be granted legal representation and any expenses incurred in relation to the legal representation of the child under shall be defrayed out of monies provided by Parliament. This section of the repealed law was absurd due to the uncertainty of where the expenses would be gotten from. The new Act now, clearly, definitely and elaborately directs the legal expenses to be severed from the Legal Aid Fund.

However, it is important to note that the reality of accessing legal aid for children in Kenya is often challenging, as the government does not always have the resources to provide adequate legal representation for all children in need. This means that in some cases, children and their families may still have to bear the cost of legal representation, even though it is not required by law. The government has a responsibility to ensure that children's rights are protected and that they have access to justice, but this is not always the case in practice.

source: Online

How can a child access legal aid?

Children who need legal assistance can apply for it in several ways. Here are some of the steps that a child can follow to access legal assistance in Kenya:

1. Contact a legal aid organization: There are several legal aid organizations in Kenya that provide free legal services to children who cannot afford to pay for a private lawyer. These organizations can be found in most major cities in Kenya, and they provide legal assistance to children who are involved in civil and criminal cases.
2. Contact the Office of the Children's Officer: The Office of the Children's Officer is responsible for the protection and welfare of children in Kenya. Children who need legal assistance can visit the office and request for legal assistance. The office will provide the child with a list of lawyers who can assist them.
3. Contact the Children's Court: Children who are involved in legal cases can also contact the Children's Court for assistance. The Children's Court is a special court that deals with cases involving children, and it has the power to appoint a lawyer to represent the child if the child cannot afford to pay for a private lawyer.
4. Contact a human rights organization: There are several human rights organizations in Kenya that provide legal assistance to children who need it. Children can visit these organizations and request for legal assistance.
5. Contact a private lawyer: Children can also seek legal assistance from a private lawyer. However, private lawyers usually charge fees for their services, and children who cannot afford to pay for a private lawyer may not be able to access their services.

It is important to note that children have the right to legal representation in Kenya, and they should not be denied access to legal assistance based on their inability to pay for a private lawyer. Legal aid organizations and the Children's Court are there to help children access legal assistance, and they should be contacted if a child needs legal assistance.

Disclaimer: It is important to note that the information provided through this platform is for general informational purposes only and is not intended as legal advice. Therefore, information provided is not a substitute for obtaining legal advice from a qualified attorney. The information may not be complete or accurate for your specific situation. You should not act upon this information without seeking professional legal counsel. Further, by providing information through this platform, I am not creating an attorney-client relationship. You should not rely upon any information provided through this platform in making decisions about your legal matters. If you have specific legal questions or concerns, you should consult a licensed attorney.