“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 12th
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.
