KING’ORI DAVID WANJOHI
Rights of the child
mr. Danstan omari
QUESTION: Otieno aged 11 years is accused of having robbed while armed with an AK47, he appears before the senior resident magistrate. Analyse the facts and provide answers to the following: 1. Handling of Otieno at the police station
2. Being arraigned for plea taking and the trial process
3. Expert witnesses/reports
5. Punishments available
Otieno having stolen from the victim (for purpose of this paper the victim will be referred to as Onyango), the incident should be reported by Onyango to the nearest police station. The police record this incident in the Occurrence Book (OB), Onyango proceeds to write a statement and police to begin investigations. Onyango could also obtain a medical exam if he was injured in the incident and this filed with the police. In the process of investigations, the police may obtain leads as to where Otieno may be hiding and eventually apprehend him. This arrest should be made in the presence of a Child Officer. The police will also confiscate any goods which are suspected to be stolen and in this case offensive weapons used in committing the crime in accordance with section 29 of the Criminal Procedure Code. As soon as Otieno is put in police custody, the officer in charge of the station (OCS) should contact his parents/guardian and the director of the arrest. If he has no parent or guardian, a Child Officer or any other authorized officer should be contacted. The reason as to why they are contacted is to ensure they are present every time the police are interviewing Otieno for investigation purposes. This is to ensure the investigations are conducted properly without harassment of the minor. This may be through threats or violence to force the minor to give evidence, make a confession or plead guilty. Otieno should not be held in police custody for more than twenty four hours after arrest without being arraigned in court. There are only two instances when he may be held for more than twenty four hours: a. If the police have obtained leave or permission from the courts to detain for more than twenty four hours. This could possibly be to allow for further investigations or due to unavoidable circumstances. b. If together with robbery with violence he is also charged with manslaughter or murder, and it is necessary in his own interests that he is removed from association with any undesirable person or/and his release will defeat justice. In these instances he will continue to be held in custody but should be arraigned in court as soon as possible. In this case therefore, Otieno may be held for more than twenty four hours if there is reasonable cause of doing so but this should be avoided as it generally against an accused’s rights. During this whole time, he should not be detained with an adult or be in association with any adult who is not his relative. This is to ensure he is safe from any form of abuse. He may also be released but with sureties by the parent or guardian to ensure he appears before court upon the hearing of the charge but this is at the discretion of the court. Since the Children’s Court has original jurisdiction on all child matters, Otieno will be arraigned before a Children’s Court and charged with armed robbery under section 296 of the Penal Code and illegal handling of firearms under section 4(2) of the Firearms Act. The doli incapax rule is applicable if Otieno is charged with any sexual offence since he is 11 years and the Penal Code under section 14(2) stipulates that a minor under 12 years is incapable of carnal knowledge. However if the armed robbery led to death of another individual or he committed the offence with an adult, the case is taken to the Chief Magistrates Court or the High Court. However provision of the Children’s Act shall still apply. This case...