SICK AT 50; AN OPEN LETTER TO KENYA-Nyakiya Nyakiyaism (Political Scientist,UoN)

Hello Kenya, as I write, you must have resumed duty. I heard from my neighbour that he had a great time celebrating your 50 year old accomplishments and to be honest, I too, thought that a Birth Day wish for you, would be in order. But as an afterthought, I decided not to stoop that low. I didn’t and won’t celebrate with you as a matter of principle. Both you and I know that you are a hard core criminal and that celebrating your 50 years of successful breech of law, murder of innocent people, theft, ineptitude and injustice, is not the wisest thing I can do as law abiding citizen. Make no mistake, I am not protesting against your merrymaking, which does not also approve that you had reasons to celebrate anyway. Let me be magnanimous with truth, gauged on any logical developmental verisimilitude, you are a dismal performer who at 50, should be more worried and moody than restlessly jovial. Of course I know it wasn’t meant to be 50 years of perfection, but when you score a pathetic 8 out of 10 on the scale of imperfection, I don’t just see the sense in publicly celebrating that you are proudly a failure. At midnight on December 12th,1963, President Jomo Kenyatta, your founding father, full of empty promises, led your children, Kenyans into lowering the colonial flag and raising the independence flag as sign of emancipation from colonial subjugation. 50 years after, Uhuru Kenyatta, then a baby, is your forth President and just like his old man, presided over a similar event, to commemorate what Jomo did a half a century ago. Apart from that, did you have any other reason to justify your celebrations? Be honest and specific! Here! Bite this bit of straight talk and do it double-quick .Whether or not you like the taste should be your own business, because as you should have known by now, it’s not the intention of this letter to please you. Some fifty years ago, you made a sacrilegious mistake and a great symbolic blunder when you crafted and adopted a national anthem with a lullaby tune. And as is the nature of insensitive mothers, you regrettably entrusted the fate of your children in the hands of gluttonous baby sitters who with great zeal, have sang the lullaby and soothed your innocent children into slumber as they plunder your national coffers and steal your babies’ milk for 50 years. The handful of your sons and daughters who wouldn’t shut an eye no matter how sweet the lullaby seemed, are most probably somewhere in Heaven, hell or in between. Those who are still determined to journey on the same ragged terrain of trust and honesty are either gagged or ‘followed’ today so that they won’t disturb the sleeping compliant lads. But what have you done? No need for answers! We both know what you did- Nothing! And just as a reminder, it’s only you among nations, who has two different national anthems for your children. Each time any two of your children sing the national anthem, one in English and the other in Kiswahili, one of them must be lying! ‘’Ee Mungu nguvu yetu ilete Baraka kwetu…’’ and ‘’Oh God of all creation, bless this our land and Nation…’’ are completely two different songs. At 50 you should be old enough to settle on one of these two songs which in your wisdom, or possible lack of the same, could unite your children. When ‘mkoloni’ relinquished his rule and handed power over to you, you seemed just fine. Do you remember Malaysia and South Korea? Of course you can’t forget Singapore! They were your peers. You all grew up together. Confide in me Kenya, what happened? No doubt, you slept in your economic and politico-social policies, only to wake up to a country of a handful of millionaires and millions of paupers. While you settled for gurgitation of your national wealth, your peers revamped their economies and soon you shamelessly went begging for help from their door steps. Do you even have a single thread of decorum in the fabric of your mannerism? Are you ever shameful? Get annoyed if you must, lose your hope in humanity and break my head, but I must tell you this; in 1963, you suffered from disease, ignorance and poverty. Annoyingly, 50 years later, apart from ignorance that you have not yet fully eradicated, poverty which has become your national emblem, and your diseases which have greatly multiplied, you now suffer from corruption, impunity, graft, and the malady of ethnic polarization. Is this the Kenya that my grandfather an ex- soldier fought for? Is this the Kenya whose children were ranked the most hopeful in the world in 2002? Alright, I can see you hate reproach. Well, mother Kenya, forget my earlier ‘harsh’ words. By the way, I suspect that you had a reason to throw a party to celebrate your 50th anniversary and even though you might not believe me, I think you do deserve a nice celebration. You have of course come from ‘far’. Let us toss in the air and celebrate your achievements.Oh yes! Let us celebrate your 50 years of falsehood, 50 years of corruption and impunity, 50 years of poverty, 50 years of gross inflation, 50 years of greedy politicians, 50 years of squatters, 50 years of poor health, 50 years of hunger and famine, 50 years of insecurity and of course 50 years of collective ignorance. Congratulations mother Kenya on your 50th year in the business of achieving nothing and mustering the courage to celebrate it! Children of Kenya, my fellow human beings, I salute you all. Is it really true that we are celebrating, or is it our facial expressions that are misleading the observers? Is it 50 years of ‘man eat man Kenya’ that we are busy celebrating? Or are we simply sick and stupid? I tend to think and it might be true that only fools celebrate hunger, bloodshed, insecurity and apathy. Swallow me, if you must, but do we really have a nation which as a people, we can feel proud enough to celebrate? How about a little truth? Kenya was poisoned with tribalism shortly after it was born, buried secretly in the tomb of greed and only a mental picture of what it ought to have been, provided to us through fruitless national cohesion initiatives. Verily, we’re not celebrating Kenya but 50 years of Kikuyus, Kalenjins, Luos,Luyhias pokomos, Abasuba,and all the other cultural groups which make the 42 tribes of this country. There is no such thing as a united Kenya, we are lying to the world. We are cheating ourselves. We are not one. We might never be. Period. How can we be one when masses of this country live in abject poverty, die like flies in terror attacks and watch their young and old die of hunger while others within the same nation, are safe, live in extreme affluence and proudly display their pomp and splendor? How can we be united, when only less than a quarter of the total population, celebrates our ‘advancement’ in health care while not one, but many patients have just succumbed to preventable deaths as I write? Sadly, our national and county governments don’t seem to agree on who should hire and remunerate medical practitioners and as long as this stalemate is not addressed, the doctor’s strike is on. In simple terms, the sick must continue dying until we finish partying and get back to the table of negotiations. While we boast of our success in the fight against ignorance as evidenced by the numerous public and private colleges and Universities, there in a small village in Ukambani, a humble group of ‘religious’ Kenyans still think that vaccination against polio is an unnecessary and a demonic temptation from government. Fifty years into independence, insecurity as a ‘sector’ is booming in Kenya, the Northern part of this country has become a favourite playground for bandits, in Nairobi, life is unpredictable! Recently, our government fiercely fought and vanquished ‘about 10- 15’ imaginary terrorist at Westgate, and of course we don’t need a reminder on how much ‘water’ was drank from Nakumatt and other Business premises that were under ‘siege’ during the multi-agency operation by our very own (in)disciplined forces. The Kenya that was militarily ‘strong’ enough to succeeded in Somalia where the mighty USA had failed, cannot safeguard its own internal security? And with a President and his Deputy, suspected to be powerful criminals by the International community, I find more reasons to be gloomy than to expose my molars in unrealistic jubilation. I won’t lie to you Kenya! 50 years ago, you begun a race but sadly oscillated around the same point of stagnation in all aspects of your development. Precisely, you have only moved on, never forward. By openly celebrating our failures before a local and global audience, Kenya has appended the signature of failure on the form of her national character. We have become a bad influence to the world and especially to those other countries who wasted their tax payers’ money to send their heads of states and envoys to come and witness our national insensitivity. Had I the unfortunate duty of advising the Kenya @ 50 celebrations committee, because they wouldn’t listen anyway, this would have been my advice; “Instead of spending millions to mock ourselves in meaningless celebrations, let us, as a nation, purchase sack cloths, assemble in all our village headquarters and declared three days of national mourning. Let us reflect on the opportunities we have lost in addressing poverty and hunger, on joblessness, impunity and nepotism, Let us think of all the lives we have assassinated, on all the innocent lives we have lost in careless road accidents, terrorist attacks, extrajudicial killings and on the lives we are currently losing because of the Doctors’ strike. Let us take this time, to make a national declaration to begin a new, this time more seriously and with honest diligence.”

Beyond legalism in alleviating plight of Kenyan children-Kigondu Ngata, School of Law, University of Nairobi

“Children have specific problems of general application to all societies, varying only in magnitude and character. This fact is lent credence by international legal instruments such as the convention on the rights of the child (1989) and the African charter on the rights and welfare of the child (1990). These instruments have set standards for national legislation in the area of children rights. Realizing the rights of adults depend to a large extent on realizing the rights of children. Indeed a commentator has written that ‘the way a society treats its children reflects not only its qualities of compassion and protective caring but also its sense of justice, its urge to enhance the human condition for coming generations…………..Children rights are often incidental and peripheral in Kenya.”-PROF. PATRICIA KAMERI MBOTE

In Kenya, the main legal framework of children rights at the national regional and international level is the children Act, African charter on the rights and welfare of the child and the United Nations convention on the rights of the child. Both the regional (African charter) and the international charter (CRC) were adopted into the Kenyan jurisdictions by the Kenyan judicature Act which is the enabling statute for domesticating foreign laws. The Act states that the jurisdiction of the high court and the court of appeal and all subordinate courts shall be exercised in conformity with common law, doctrines of equity and statutes of general application in force in England on 12^th August 1897 and the procedure and practice observed by in courts of justice in England at the time in so far as the circumstances in Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

This paper shall be failing in its duty, if it does not enumerate the critical provisions of the children right law and subsequently submit the way forward to government and other stakeholders.

THE CHILDREN   ACT OF 2001.

The children Act was enacted to harmonize and consolidate all laws concerning children for easier reference, interpretation and application.

At the preamble, the Act commences by stating that it’s an Act of parliament making provisions for various rights of the child and administration of these rights and states one of its major objectives as to give effect to the principles of the convention of the child, African charter and for connected purposes.

Under the act a child is any human being under the age of 18years and a child of tender years to be a child of tender years. Some of the safeguards provided  for the rights and welfare of the child  include, right not to be discriminated against on the ground of origin, sex, religion, creed, custom, language ,opinion, conscience color  birth ,social, political economic and other  status, race, disability, tribe, residence or local connections. The act imposes upon the government and parents the responsibility to safeguard the rights of the child and in particular to ensure the rights to life, survival and best interest of the child in all actions concerning the child.

 The act protects children from physical and psychological abuses neglect and any other form of exploitation, including social trafficking and abduction and recommends that a child who has suffered such abuses should be rehabilitated to the society.

Child labor is prohibited under the act, it provides that every child has a right to be protected from economic exploitation and any other work that is hazardous to the Childs health and is likely to interfere with his health. Consequently the minister is empowered to make regulations in respect of periods of work and legitimate establishments for children above 16 years.

The act provides protection from all forms of sexual molestation and protects children from all forms of deprivation of liberty and requires the government to offer rehabilitation services when a child is exposed to sexual abuses. Moreover a child is protected from harmful cultural practices and rites.

Duties of parents towards their children are provided and anyone who has parental responsibility towards the child shall not cease to have such responsibility at any time.

Anyone found contravening the rights above instead of enforcing them shall be liable to summary conviction for a term not exceeding 12 months or to a fine of not more than 50,000 or both. The high court may issue an order and give direction on the enforcement of these rights in an application by a person who suspects that these rights are likely to be contravened

The Act establishes the office of the Director of children services who shall safeguard the welfare of the child.

THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD

The African charter on the rights and welfare of the child is the basic regional instrument containing the rights and welfare of the child. Kenya is a party to it after signing it on July 1990 when it was adopted by the council of ministers of OAU and ratified the charter on 25 july 25 2000.

The African children charter outlines measures to promote and protect the rights and welfare of the African child and emphasizes special needs of the child, social economic, cultural, and traditional development circumstances, natural disaster armed conflicts, exploitation and hunger as special to the African child. Under the charter, a child is every human being under 18 years.  The charter prohibits discrimination on the race, ethnic group, color, sex, language, religion, national and social origin, the rights to life shall be protected by law.

Article 4, states that all actions concerning the child undertaken by any person or authority shall be in the best interest of the child.  In Wambwa v. Okumu, the High Court of Kenya at Eldoret, rejected the argument that local customary law, which favored patriarchy, applied and instead granted the mother custody, upholding the best interests of the child principle. The charter also guarantees the child rights to nationality, right to education and goes ahead to add that states parties should respect the rights and duties of parents to choose schools for their children, other than those established by public authorities which conform to the minimum standard set aside by the state.

Recognition has also been accorded to special children through rights and privileges that are in line with their special nature. Handicapped children, whether mentally or physically disabled have a right to protection and states are called upon to promote self reliance and active participation in the community. Refugee children too.See guidelines on the protection and care of children. Pregnant mothers should not be sentenced to death and children of impoverished mothers as well as expectant mothers and mothers of infants who have been accused of convicted for infringing penal law should be accorded special treatment.

The right of non separation, adoption rights, rights homeless children all should be provided with an alternative family as provided for in the charter.

The charter mandates states to offer protection to chidren against harmful social and cultural practices, apartheid and discrimination, sexual exploitation, drug abuse, trafficking and abduction.The charter also provides for protection against child labour and economic exploitation and obligates states to provide through legislation, minimum wages for employment and regulation of working hours.

More importantly the charter lays down measures for monitoring and the extent of compliance with its provisions by establishing, the African committee of experts on the rights and welfare of the child, it’s called the committee.  Each state is obligated to submit to the committee, through the secretary general of OAU (now AU chair), reports on measures they have adopted to give effect to the charter.

The charter remains one of the most powerful instruments in the realization of the children rights in the continent and has special category of human rights in Africa.

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

Kenya signed the convention on January 20, 1990 and ratified it on July 1990. Its main objectives are outlining the specific rights concerning children, and the implementation and monitoring procedures of the compliance of the rights by states parties.

The convention obligates state parties to fulfill and respect the full range of rights concerning children as enumerated by the convention, and to report to the committee on rights of the child on measures they have adopted which give effect to the rights of the child and the progress on the enjoyment of these rights. The best interest of the child is of paramount importance according to the letter of the convention. Only that the principle shall be a duty to state and other none state actors. Article 4 obligates all state parties to take all possible steps in implementing the rights of the child in so far as their resources allow and within the framework of international co-operation. The convention acknowledges the rights and responsibilities of parents in raising a child from parents; child is not separate and also urges state parties to enhance the importance of bringing up a child in a complete family.

The CRC also provides for the right to nationality. It accords every child a right to nationality so as to ensure that state parties realize the said right. CRC also obligates state parties to ensure the registration of each child immediately after birth and to see to it that the child has a name, and is cared for by his or her parent.Rights of children have also been specifically dealt with in article 2.

The convention has also outlined the specific guidelines as concerns adoption, so that all adoptions shall be in the best interest of the child and authorized only by competent adoption authorities, with the opinion of the child taken into consideration.

Just like the African charter, the CRC has accorded appropriate protection and humanitarian assistance in the enjoyment of rights by refugee children.

In the same vein children with disabilities, are entitled under the CRC  to the enjoyment of a full and decent life, in conditions which ensure dignity, promote self reliance and facilitates active participation in the community.

Children who are engaged in armed conflict should be accorded protection by their states and they should not be recruited to war if under 15 years of age according to CRC.

The CRC has also donated the right to health and obligates states, to ensure that children receive the highest attainable standards of health.

The convention has more importantly guaranteed the right to education  which is necessary for a Childs development in personality, respect for parents and a responsible life.

States parties are also called upon to ensure there is social security benefits for children and equally important provide for the freedom to express themselves as well as freedom of thought, conscience and freedom of association. Also under CRC, no child should be subjected to torture, cruel or other degrading and inhuman treatment.

When cases of Childs inhuman and degrading treatment has occurred, the state is obligated to take all appropriate measures to promote recovery of the child.

THE WAY FORWARD IN ALLEVIATING PLIGHT OF THE KENYAN CHILD

The child is an important unit in society and the best interest of the child should be of critical importance and consideration in all state plans, policies and programs.

In so doing, Kenya should include emerging types of discrimination in its laws, such as HIV/AIDS age and the level of education. The government should also be pro-active in providing for children rights and not entirely leaving it to NGOs yet state is the main custodian of the rights and welfare of the child. However, state can also empower the NGOs dealing with children welfare with bigger roles in running of the children agenda administratively.

Under the children Act, the law is very lenient on men who get children outside the wedlock hence assumes all parental responsibility is on the mother, yet when mother is lost to diseases, children become destitute. State should amend the law to define parental responsibility as encompassing both parents.

The 12 months imprisonment and or 50,000 fine imposed to offenders is not a watertight , and deterrent to child molesters and traffickers while such cases are on the rise, the state should also sign, ratify and accede to other optional protocols complementing the regional and international conventions to curb proliferation of the situation.

Health care and psychological treatment should be taken to international levels so as to provide decent life to vulnerable children. The state should also roll out nationwide insurance cushioning children against vagaries of future life.

Kenya must also devolve to all the 47 counties the office of the director of children services for greater and effective service delivery in the protection of children.

There should be a general children welfare kitty to be managed through the office of the president so as to complement the cash transfer for orphans and vulnerable children fund.

President should also take personal initiative to weed out corrupt officers in the children services department who instead of identifying the neediest children to benefit in government subsidies, end up misappropriating the monies meant for the exercise.

To deter child labor the minister for labor must issue stricter guidelines on those benefiting from child labor, which is said to be cheap.

Children court’s jurisdiction should extend to hitherto untouched areas of adoption and succession involving children. Adoption orders under the children’s ACT can only be made by the high court, considering that high court is not evenly distributed in the country and is ever in lengthy vacations then the accessibility of children rights remain a pipe dream.

A nationwide education on adoption procedure should be carried out and people be encouraged to legally adopt children through credible adoption societies unlike currently where illegal adoptions are on the rise. The age of marriage must also be clearly set by amending the marriage Act cap 150 of the laws of Kenya.

Outside the above legal frameworks, the following laws also need a critical review..

1.       The legitimacy Act cap 145 laws of Kenya, in providing for legitimization of a person born out of wedlock , when parents marry, fails to provide parental responsibility in the child’s best interest.

2.       The Borstal institutions Act, cap 92, which makes provisions for establishment of borstal institutions, for detention of youthful offenders mainly aims at punishing the child as opposed to promotion of a child’s sense of dignity. It’s submitted that other measures of dealing with juveniles without resorting to judicial proceedings should be embraced.

NB:For references kindly contact the Author.

Copy right:Kigondu Ngata, School of Law, University of Nairobi

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HUMAN NATURE FROM THE LENS OF NYAKIYAISM-Nyakiya Nyakiyaism(Political Scientist, UoN)

As a social scientist, I have deposited some reasonable  amount time in studying the diverse human orientations. Dissecting the human specimen into biological, religious and politico-social components I have assembled groups of multifarious traits to redefine human beings as important constituent elements of the planet earth: Generally human beings are caring, charming, considerate, funny, excitable and polite. But they can also be belligerent, boorish, cowardly, cruel, dangerous and defiant. These behavioural manifestations are fully depended on the environment in which they find themselves. As a keen psephologist, I have come to conclude that human beings are political puppets in well organized power punch and Judy shows. As a political puppet, man/woman is a creepy, finicky, flippant, furtive, jittery and erratic being. He/she is selfishly cunning and unpredictable, openly denouncing despotism while entrenching saprophagous democratic structures. As a servant, he/she rebukes graft and impunity but meticulously ingurgitates public wealth as a master. On a religious lens, human beings are rapidly eluded, egocentric, irrational, seeking, narcissistic and hopelessly optimistic. Left to his/her spiritual convictions, a human being is a perfect incarnate of a demogorgon. Biologically, human beings are programmed to be perpetually greedy,nihilistic and ignorant. But they can also be lovable, sweet -bitter, proud and conscientious. Again whatever personality they exhibit is usually in response to an anticipated or existing situation. I have taken time to monitor the inharmonious interactions of humanity and I can conclude with finality that the sociocultural landscape in which man/woman finds him/herself as a capricious learner and actor is destructive, sporadic and violent. Such an evil set up, intoxicates the mind which is at birth, a pure tabula rasa. The result is a defective process which renders man/woman a persistent saint and criminal at the same time. Forget romantic categorizations, human beings, after all is said and done, remain twisted, deceptive, stupid, stubborn and curious..Turbulence and wrath which encircle their surrounding have made them reactionary beings.