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Legal Considerations

Street children in Kigali—arguably some of the neediest and most vulnerable children in Rwanda—in practice enjoy no meaningful protection from the state, and often have their rights violated by the authorities who should protect them. The detention of persons and in particular street children in Gikondo violates a number of human rights guarantees by which Rwanda has agreed to be bound, both under international human rights law and national human rights legislation.

Rwanda is a party to the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention on the Rights of the Child (CRC).³⁵ Rwanda is also a party to the regional African Charter on the Rights and the Welfare of the Child,³⁶ and to the African Charter on Human and People’s Rights (the Banjul Charter) that in addition to protecting basic civil and political rights requires the state to ensure “the protection of the rights of the woman and the child as stipulated in international declarations and conventions.”³⁷ Domestically, Rwanda has passed its own law to protect children and assure their rights, and (as noted above) has established a national policy that sets out laudable standards for the treatment of vulnerable children, including street children.

A regulation dating to the nineteenth-century colonial era apparently serves as the legal basis for rounding up “vagrants.” The law, although arguably incompatible with current norms and standards governing grounds of detention, does at least provide some minimal protection for those detained: it requires that they be brought before a competent tribunal, and that children be held separately from adults.³⁸  Although this is the law on the books, the basic protection provided by this regulation was not afforded in practice to the detainees interviewed by a Human Rights Watch researcher.³⁹

Detainees were held at the Gikondo center without having been brought before a competent judicial authority, without charge and in the absence of appropriate due process. Such deprivation of liberty violates Rwanda’s obligations under both the ICCPR and the Banjul Charter.⁴⁰ The CRC provides that children accused of a crime have the right not to be detained arbitrarily or unlawfully,⁴¹ and that children should be imprisoned only as a last resort, for as brief a period as possible, and separately from adults. Other guarantees include that children deprived of their liberty have the right to prompt access to legal and other assistance, and the right to challenge the legality of their detention before the courts or other competent authorities and the right to a prompt decision on any action.⁴²

The CRC also provides that institutions, services, and facilities responsible for caring for children must conform to standards of health, safety, and supervision set by competent authorities.⁴³ But the roundup of street children and their detention at Gikondo not only imposes an extrajudicial penalty on children who have committed no offense beyond that of being poor and homeless, but exposes them to many forms of inhumane and degrading treatment and risk of physical and mental injury, neglect, maltreatment, and sexual abuse.

The detainees’ conditions of overcrowding, together with scarcity of basic provisions such as food and water and very limited hygiene and exercise, amount to inhuman and degrading treatment.

In 2004 the United Nations Committee on the Rights of the Child, the body responsible for monitoring the implementation of the CRC, in examining the second periodic report of the government of Rwanda, expressed concern about the way the government dealt with street children, particularly its detaining children in poorly maintained centers. It recommended that the Rwandan government “stop rounding up these children and sending them to detention centers.”⁴⁴

The African Charter on the Rights and the Welfare of the Child contains guarantees akin to those in the CRC, including that children who come in contact with the criminal justice system “shall have the right to special treatment in a manner consistent with the child’s sense of dignity and worth.”⁴⁵ The Charter commits Rwanda to “(a) ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment; and (b) ensure that children are separated from adults in their place of detention or imprisonment.”⁴⁶ Children are also to be afforded full due process rights if accused of an offense. Children are to be protected from all forms of abuse and are to be allowed freedom of association.⁴⁷

The detention of adults and street children in Gikondo for alleged “vagrancy” without due process, in inhumane conditions and without the effective legal protection clearly violates not only international obligations but national legislation. In particular, Rwanda’s Law Relating to Rights and Protection of the Child Against Violence echoes many provisions of international law, guaranteeing that in case of imprisonment children be separated from adults; and that appropriate administrative, legal, social and educational measures must be taken to ensure the protection of every child against every form of violence, mental or physical attack or brutality, abandonment, neglect, stress, or exploitation.⁴⁸