!"#$%&'()#*+$&,"-(+* .*+"#/*0"#1#/&*0"&2"/%3&4+(*"5*1(#&6+%7"8(+9&:(+&;1+3<&1#& =#>1%?&@%#/3%>"<0?&!"#$%&%#>&21A"+1% STRENGTHENING THE LEGAL PROTECTION FRAMEWORK FOR GIRLS IN INDIA, BANGLADESH, KENYA AND LIBERIA – KENYA COUNTRY REPORT
Copyright © International Development Law Organization 2010
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Author: Nicholas Okemwa, Children’s Legal Action Network (CLAN)
Cover image: © Sheila McKinnon
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ABOUT THE PROGRAM In order to gain a deeper understanding of the factors that support or inhibit the enhanced legal protection of girls, IDLO is implementing a two-year research project focused on India, Bangladesh, Liberia and Kenya. In these countries, IDLO aims to compile comprehensive, accurate and strategic information regarding the level of protection afforded to girls in the areas of birth registration, access to education, access to property, child labor, child trafficking, commercial child sexual exploitation, and child marriage. The resulting comparative analysis will provide a basis for informed action in each of the four countries with respect to strengthening domestic legal protection frameworks and the capacity of key protection agents to access justice and enforce girls’ legal rights.
PARTNERSHIPS This program is being implemented by the IDLO Unit for Research, Policy and Strategic Initiatives in partnership with local NGOs in India, Bangladesh, Kenya and Liberia:
India: HAQ Centre for Child Rights (www.haqcrc.org) HAQ Centre for Child Rights is an organization based in New Delhi, India, dedicated to the recognition, promotion and protection of the rights of children. In pursuit of its mandate, HAQ undertakes research and documentation; is actively involved in public education and advocacy; serves as a research and support base for individuals dealing with children at every level; and provides legal support to children in need.
Bangladesh: BRAC (www.brac.net) BRAC is a development organization based in Dhaka, Bangladesh. It is dedicated to poverty alleviation and empowerment of the poor, and manages a range of core programs in economic and social development, health, education, and human rights and legal services.
Kenya: Children’s Legal Action Network (CLAN) (www.clan.or.ke) CLAN is a Kenya-based organization working to enhance justice for children by advocating for children and protecting and enhancing children's rights and welfare through the provision of free legal aid and related services. An essential component of CLAN's mission entails working with frontline service providers, including the Government, civil society organizations, families and children.
Liberia: Women NGOs Secretariat of Liberia (WONGOSOL)(www.wongosol.org) WONGOSOL is an organization committed to the creation of a vibrant Liberian society by developing and strengthening the role of women’s organizations and groups and enhancing the effectiveness of women’s organizations through proper coordination at all levels to promote peace and security, women’s development, gender equality and women’s human rights.
DONOR SUPPORT This research is being supported by the Bill & Melinda Gates Foundation (www.gatesfoundation.org) and the Nike Foundation (www.nikefoundation.org). The findings and conclusions contained within are those of the authors and do not necessarily reflect positions or policies of the Bill & Melinda Gates Foundation or the Nike Foundation.
Contents
Acronyms II ! Figures and tables III ! Introduction V! Executive summary VIII !
Country profile 1! Birth registration 5! Education 17 ! Property rights 27 ! Child labor 37 ! Child trafficking 48 ! Commericial child sexual exploitation 57 ! Child marriage 67 ! List of conventions 76 ! Related survey findings 77 !
Strengthening the Legal Protection Framework for Girls | I
Acronyms
Acquired Immune Deficiency Syndrome AIDS African Charter on the Rights and Welfare of the Child ACRWC Central Organization of Trade Unions COTU Child Sex Tourism CST Children Legal Action Network CLAN Community Based Organization CBO Community Child Labor Committees CCLC Convention on the Elimination of All Forms of Discrimination against Women CEDAW Deoxyribonucleic Acid DNA District Child Labor Committees DCLC Early Childhood Development ECD Education for All EFA Federation of Women Lawyers FIDA Female Genital Mutilation FGM Food and Agriculture Organization FAO Gender Parity Index GPI Gross Enrollment Rate GER Human Immunodeficiency Virus HIV International Covenant on Civil and Political Rights ICCPR International Covenant on Economic, Social and Cultural Rights ICESCR International Labor Organization ILO Kenya Institute of Education KIE Kenya Integrated Household Budget Survey KIHBS Kenya National Commission for Human Rights KNHR Kenya National Examination Council KNEC Millennium Development Goals MDGs Ministry of Education, Science, and Technology MoEST National Steering Committee to Combat Trafficking in Persons NSCCTP Orphans and Vulnerable Children OVC Primary Completion Rate PCR Sexually Transmitted Infections STIs The Kenya Education Sector Support Programme KESSP0 United Nations Children’s Fund UNICEF United Nations Convention on the Rights of the Child CRC United Nations Joint Programme on HIV/AIDS UNAIDS
Strengthening the Legal Protection Framework for Girls | II
Figures and tables
Figure 1 Location of birth ...... 7 Figure 2 Is birth registration compulsory? ...... 13 Figure 3 Age at which daughter left school ...... 23 Figure 4 Sectors with child labor ...... 39 Figure 5 How significant a problem is trafficking for girls in your community?...... 50
Table 1 Poverty index by constituency ...... 2 Table 2 Primary Gender Parity Index by Province: 2001 – 2006 ...... 21 Table 3 Primary Completion Rate: 2001 – 2006 ...... 21 Table 4 If you daughter is not attending school, what is the reason why she left school? ...... 22 Table 5 Reason respondent did not seek to protect her daughter’s property rights ...... 32 Table 6 Child labor distribution ...... 40 Table 7 What is the minimum age for the employment of children?...... 44 Table 8 Have you ever thought about the issue of child commercial sexual exploitation? ...... 63 Table 9 By what age must a child’s birth be registered? ...... 77 Table 10 What does birth registration cost, if anything? ...... 77 Table 11 Where was your daughter born? ...... 78 Table 12 Did you register your daughter’s birth? ...... 78 Table 13 At what age did you register your daughter? ...... 78 Table 14 Why did you register your daughter’s birth? ...... 79 Table 15 Would you describe the registration process as straightforward, complicated or difficult? ... 79 Table 16 If you did not register your daughter’s birth, what was the reason? ...... 79 Table 17 Who was the primary decision-maker regarding the birth registration of your daughter?.... 80 Table 18 Is education compulsory?...... 80 Table 19 Is primary education to be provided free to all children?...... 80 Table 20 Is your daughter of school-going age? ...... 80 Table 21 Is your daughter currently attending school? ...... 81 Table 22 What level of education is your daughter attending? ...... 81 Table 23 If you daughter is not attending school, what is the reason they left school?...... 81 Table 24 Did you attempt to keep your daughter in school? ...... 81 Table 25 How did you try to keep your daughter in school? ...... 82 Table 26 What was the reason you did not try to keep you daughter in school? ...... 82 Table 27 Who is the primary decision-maker regarding your daughter's education? ...... 82 Table 28 Can females exercise ownership over property? ...... 82 Table 29 Are females able to inherit property on the same terms as males?...... 83 Table 30 Has your daughter been able to exercise her property rights? ...... 83 Table 31 If not, did you try to seek protection for her rights?...... 83 Table 32 Analysis of methods used to protect daughters’ rights...... 83 Table 33 Should women have equal rights to property?...... 84 Table 34 Who is the primary decision-maker for questions relating to property inheritance?...... 84 Table 35 What is the minimum age for the employment of children?...... 84 Table 36 Who is penalized if a child is employed under this age? ...... 85 Table 37 Are there exceptions to the minimum age for the employment of children?...... 85 Table 38 Have you ever thought about the issue of child labor?...... 86 Table 39 How significant a problem do you think child labor is for girls in your community? ...... 86 Table 40 What do you think is an appropriate age for children to begin working?...... 86 Table 41 Primary decision-maker for when daughter should commence work ...... 86 Table 42 Have you ever thought about the issue of child trafficking?...... 87 Table 43 How significant a problem do you think child trafficking is for girls in your community? ..... 87 Table 44 How significant a problem do you think child commercial sexual exploitation is for girls in your community?...... 87
Strengthening the Legal Protection Framework for Girls | III
Table 45 What is the minimum age for marriage under the law? ...... 88 Table 46 Are there any exceptions to the minimum age requirement?...... 88 Table 47 Have you ever thought about the issue of child marriage? ...... 89 Table 48 How significant a problem do you think child marriage is for girls in your community?...... 89 Table 49 What do you consider to be the appropriate age for marriage? ...... 89 Table 50 Who is the primary decision-maker regarding when your daughter should marry? ...... 89 Table 51 Have you ever faced a legal problem in relation to your daughter(s)? ...... 90 Table 52 What was the nature of the issue? ...... 90 Table 53 Who did you first go to for advice? ...... 91 Table 54 Did you at any point seek legal advice?...... 91 Table 55 If yes, where from?...... 91 Table 56 If you did not seek legal advice, why not? ...... 92 Table 57 Did you lodge a complaint about the matter with the police or other relevant authorities?.. 92 Table 58 Evaluation of the assistance provided by such authorities ...... 92 Table 59 If you did not lodge a complaint with the police or other relevant authorities, why not? ..... 92 Table 60 Of those that did refer the matter to authorities, did you achieve a satisfactory outcome? . 93 Table 61 If you had a legal issue in relation to the protection of your daughter’s rights, which two organizations / individuals would you be most likely to approach for assistance? ...... 93 Table 62 If you had a legal issue in relation to the protection of your daughter’s rights, which 2 organizations / individuals would you be least likely to approach for assistance? ...... 94
Strengthening the Legal Protection Framework for Girls | IV
Introduction
Background
Poverty has a female face in many parts of the developing world. Of the 1.5 billion people living on US$1/day or less, 70 percent are female. 1 Girl children, in particular, represent an extremely vulnerable group in many societies, often existing outside the rule of law and, in some cases, domestic laws and enforcement mechanisms themselves serving as a source of oppression.
The age-old Chinese proverb that ‘women hold up half the sky’ has long been an aspiration rather than a reality for many of the world’s girls. Systematic disadvantage ‘over a wide range of welfare indicators’ including health, nutrition and the burden of household tasks, 2 has perpetuated gender disparities and inequalities, particularly in the developing world. Gender discrimination greatly interferes with a girl’s ability to develop and, ultimately, their ability to live their lives in dignity. From a long-term economic development perspective, discrimination against girls means that a significant proportion of the population will be unable to participate in the economy as productive adults. Conversely, improvements in women’s economic positions have proven to have a positive spin-over effect on the social welfare of their children. 3
In order to gain a deeper understanding of the factors that support or inhibit the enhanced legal protection of girls, IDLO partnered with local organizations in India, Bangladesh, Kenya and Liberia to carry out a six month review of the legal protection framework for girls in these countries, as part of a broader two-year research project. IDLO and its local partners focused on the following seven factors as key to enhancing the economic and legal empowerment of girls:
1. Access to birth registration; 2. Access to education; 3. Access to property rights; 4. Protection from child labor; 5. Protection from trafficking; 6. Protection from commercial sexual exploitation; and 7. Protection from underage marriage
It should be noted that there is a causal connection between ‘means of protection’ and ‘protection risks’ in that poor access to birth registration, education and property rights (all regarded as means of protection) have the potential to increase exposure to protection risks such as child labor, trafficking, commercial sexual exploitation and underage marriage. Moreover, there is also often a causal link between risk factors and means of protection as, for example, underage marriage or trafficking can lead to diminished possibilities for access to education.
1 Plan, Because I Am a Girl: The State of the World’s Girls (2007) 85. 2 Center for Global Development, Girls Count: A Global Investment and Action Agenda (2008) 2. 3 Free the Children, Child Labour, available at
Strengthening the Legal Protection Framework for Girls | V
Research Objective
To compile comprehensive, accurate and strategic information on how best to enhance the legal protection of girls through legal empowerment approaches in four target countries in the areas of birth registration, access to education, access to property, child labor, child trafficking, commercial child sexual exploitation and child marriage. Methodology
The starting point for the analysis was a desk review of relevant literature, followed by in-depth field research conducted in each of the four target countries. The strategy for ensuring inter-country comparability was to employ the use of closed questions (i.e., questions that give a limited number of predefined responses across each survey).
Given that mothers were found to be the principal carers for their daughters, the target survey sample in each of the four countries was composed of mothers classified as ‘poor’, living in rural or peri-urban communities, with at least one daughter aged less than 10 years. A total of 50 questionnaires were administered in each of the pre-selected rural and peri-urban communities for a total of 250 respondents.
Following the administration of the survey, project Criteria for survey partners conducted in-depth interviews and focus participants: group sessions with survey participants and other relevant stakeholders including staff of service ! "#$%&!'()**+,+%-!)*!./##01! delivery organizations, community leaders, ! 2+3+&4!+&!)!050)(!#0!/%0+6507)&! community groups (in particular women’s '#$$5&+89! community groups), legal aid organizations, ! advocacy groups focusing on the rights of women :)3%!)8!(%)*8!#&%!-)54;8%0!(%**! and children, and government agencies involved in 8;)&!8%&!9%)0*!#(-! both the delivery of legal and protection services.
The objective of these focus groups was to further examine actual experiences with the justice system to bring out more detailed information about the protection of girl children in practice, and obtain ideas about possible entry points for improving protection. The focus group sessions also allowed for an informal discussion on issues that arose during the survey.
Central research questions
1. Is the legal and supporting administrative framework adequate in each of the seven thematic areas?
This question enabled an examination of the alignment between the domestic legal protection frameworks in the target countries and the international legal protection framework.
2. Is the legal framework implemented effectively? Are adequate legal services provided?
Even in cases where the law itself provides for suitable protection, implementation is likely to be variable. As such, this question was aimed at enabling analysis of the strengths and weaknesses of the system, including identifying the key obstacles to improved effectiveness.
Strengthening the Legal Protection Framework for Girls | VI
3. Are mothers able to access legal protection for their daughters?
By examining the extent to which mothers, who are often the principal carers for their daughters, are able to access protection, this question assisted in determining the factors that affect mothers’ ability (or inclination) to provide protection.
4. What social services do mothers utilize?
In order to be able to integrate legal services into established community services, it was important to understand the most commonly accessed and effective services.
5. What are the best strategies for improving legal protection?
This final question helped reveal how existing legal services can be built to enhance legal protection for girls.
Outputs
The research has underpinned the generation of this Kenya country report, together with three similar country reports that detail the key protection issues facing girls, the socio- cultural factors that impact upon protection and potential interventions to enhance the legal protection framework for girls in each target country. It is hoped that a comparative analysis of this information, to be published separately, will contribute to forming a basis for informed action with respect to strengthening domestic legal protection frameworks and the capacity of key protection agents to access justice and safeguard the legal rights of girls.
Strengthening the Legal Protection Framework for Girls | VII
Executive summary
In recent years, Kenya has made significant progress towards ensuring greater protection of girl children. However, with 20 percent of the nation living below the international poverty line of US$1.25 per day, girls remain among the most vulnerable groups within Kenyan society and continue to face a number of protection risks.
Poverty is the driving force behind many protection concerns for girls. The poverty cycle is perpetuated by limited government resources and policy-setting that has failed to address key protection risks. Lack of financial means forces girls out of school to provide for themselves, and often their families, as a means of survival. Poor education and rights awareness leaves girls vulnerable to exploitation in the form of, inter alia , child labor, trafficking, commercial sexual exploitation and child marriage. A lack of education also has implications for society as a whole in that poorly educated girls are less likely to join the workforce, thus limiting Kenya’s potential national productivity and aspirations for economic growth.
Findings
The causal link between ‘means of protection’ and ‘protection risks’ must be considered when evaluating the effectiveness of policy, legislation, and public awareness campaigns. This link is essential in ensuring flow-on protection of girls in all areas of vulnerability, namely birth registration, education, property rights, child labor, child trafficking, commercial sexual exploitation and child marriage. Gender sensitive, rights-enforcing legislation and policy must be enshrined in the national Constitution but also rigorously enforced in order to improve the legal protection of girls in Kenya. At the grassroots level, communities and civil society must be involved in shaping a more gender-neutral understanding of the rights that should be afforded to both boys and girls.
Birth registration
The protection risks to girls, as a causal result of non-registration, include a lack of access to education, basic healthcare, inheritance and the right to actively participate in society.
While conducted by the Civil Registration Department of the Ministry of Immigration and Registration of Persons, the onus to ensure birth registration in Kenya is placed on the parents of the child. There is significant awareness of the laws regarding birth registration in Kenya, with 86.6 percent of survey respondents aware that registration is compulsory. However, knowledge on the specificities of birth registration are blurred with regards to the age at which one must register birth and the procedures in place to do so.
In order to improve the situation of birth registration in Kenya, the compulsory and free nature of birth registration should be provided for in legislation, rather than subsidiary instruments. Gaps in the existing domestic legislation, in addition to the domestication of signed international instruments, are of particular concern. While Kenya imposes fines and terms of imprisonment as punishment for non-compliance with the Births and Deaths Registration Act 1948 , the experience of PLAN in Kenya is that the late registration penalty in fact acts as a deterrent to birth registration. 4 Field research further demonstrated that, with less than 10 percent of survey respondents indicating
4 Plan, Count Every Child: The Right to Birth Registration (2009) 52.
Strengthening the Legal Protection Framework for Girls | VIII
penalties as the reason for not registering a daughter, incentives would be a more effective measure to increase registration rates as opposed to the imposition of penalties. Finally, public awareness campaigns must be carried out with the aim of sensitizing the public as to the importance of birth registration and the registration procedures in place.
Education
Several policies and programs have been set in place in an effort to, inter alia , guarantee the basic right to education in Kenya, including the advent of free compulsory primary education for all in 2006. Achieving further progress, particularly closing gender gaps in education, however, will require greater efforts. Increased government commitment is needed to ensure that the right to education is enshrined in the national Constitution and that legal reform is both effective and responsive to current and emerging trends in education and training. Specific recommendations include promoting greater access to education for girls through bursary funds for vulnerable groups and equipping schools with the essential resources needed to cater for the specific needs of girls.
Reducing the gender gap in education also requires greater attention. The number of girls withdrawing from school upon completion of the compulsory (and state funded) primary years remains high, with the result that gender disparities are most evident at the secondary level and beyond.
There is sound awareness of the free and compulsory nature of primary education in Kenya, however, greater awareness of the importance of continuing girls’ education through secondary school is needed. Public awareness campaigns should also be set in place, targeting parents and the wider public, highlighting the importance of education for girls, particularly aimed at combating the view that girls are less worthy of education than boys.
Property rights
Legal pluralism in Kenya has encouraged the resilience and strength of customary law. As Kenyan customary law largely excludes women from inheriting, owning and controlling land, societal perceptions and misunderstandings of the national law regarding property rights have been perpetuated. In the field data collection process, many survey respondents were either unaware of or did not understand the property rights of their daughters. This was particularly the case in ethic minority communities where girl children are often ineligible for any sort of inheritance. The results of the survey indicated poor awareness of the national laws governing property rights in Kenya, thus indicating a need for widespread awareness-raising. Girls, their parents and community leaders should be specifically targeted and encouraged to seek legal assistance in cases of discrimination.
The Kenyan Government should develop policies and programs aimed at combating gender-bias in the area of property and inheritance. Enforcement mechanisms must also be strengthened. Finally, although Kenya is signatory to a number of international conventions relating to the protection of property rights, many of the provisions within such conventions have yet to be domesticated in national law.
Child labor
Child labor in Kenya is rife, with an estimated 1.9 million children aged between 5-17 years involved in exploitative child labor. 5 There is particular concern for girls within the domestic sector, which employs many young girls and is largely sheltered from the eyes
5 United States Department of Labor, Child Labor in Kenya
Strengthening the Legal Protection Framework for Girls | IX
of the law given its inherently private nature. Given the private nature of the domestic sector, gender disaggregated data is difficult to ascertain. This gap in knowledge also contributes to uninformed societal perceptions on the realities and risks of child labor.
Current legislation in Kenya does reflect the gravity of the child labor problem, and there is a strong government and societal commitment to curbing all forms of exploitative work involving children. However, amendments should be made to bring existing national legislation into alignment with international standards. Advocacy efforts are needed to increase the national birth registration rate, a key protection factor in child labor. It is also important that poor households continue to be supported to address the financial concerns that lead girls into work at early ages. Finally, poor public awareness of existing laws, particularly regarding the minimum legal age at which one can enter the work force, must be addressed.
Child trafficking
Significant gaps in the domestic legislation leave girls in Kenya open to exploitation by child traffickers, including that legislation does not provide adequate protection to girls who have already fallen victim to trafficking and that legislation is not aligned with Kenya’s responsibilities under international law.
The survey revealed poor understanding of the risk factor indicators related to child trafficking, suggesting a need for awareness-raising specifically targeting parents. It was also clear that parents often unknowingly place their daughters in situations where they are at risk of trafficking, for example, by sending girls to live with other families for food and schooling in return for light labor.
Commercial sexual exploitation
Commercial sexual exploitation of children in Kenya occurs in the forms of child prostitution, child sex tourism, trafficking, domestic servitude, child pornography and child marriage. Children in difficult economic circumstances, including those living in slums and those affected by natural disasters and political crises, are at particular risk.
The Kenyan government has committed itself eradicating child commercial sexual exploitation, including through legislative reform. The Sexual Offences Act 2006 reflects the grave nature of this crime and brings such legislation into alignment with Kenya’s international responsibilities.
Poor awareness and gender biases are the key obstacles to combating sexually exploitative practices against girls. 6 With the child sex tourism industry growing in recent years, increased awareness of the relevant legislation and the implementation of tougher penalties (specifically zero tolerance for foreigners involved in the commercial sexual exploitation of children) are required. Public health awareness is also needed to combat common myths, such as that intercourse with a virgin will cure terminal conditions such as HIV/AIDS. 7
Child marriage
Child marriage remains a widely ignored violation of the health and development rights of girls. 8 Child marriage in Kenya is governed by legislation that is influenced by religious
6 The Code, The Code Quarterly No.9 (2006) 9. Available at
Strengthening the Legal Protection Framework for Girls | X
and customary practices, creating poor awareness regarding the actual laws pertaining to child marriage. There is hence a need to harmonize marriage laws and enhance public awareness on the dangers of child marriage, as well as promote normative change in the areas of bride price and dowry.
Conclusions
The research conducted in Kenya reveals a number of overarching and recurring themes, particularly the causal linkage between the ‘means of protection’ and ‘protection risks’. For example, without a valid birth certificate, girls face increased difficulties in accessing basic education and healthcare, which leaves them open to a myriad of protection risks such as child labor, trafficking, commercial sexual exploitation and child marriage. Moreover, without access to education girls are not equipped with the skills necessary to enter the work force, thus leaving them more vulnerable to all forms of exploitation.
The interventions proposed to strengthen the legal protection framework for girls are two-fold. Action is required in the form of simultaneous bottom-up and top-down approaches. Increased public awareness is required at the grassroots level, while increased government resource allocations are needed to enable and support greater access to social services. At both levels, greater emphasis should be placed on the value of educating girls, knowledge-generating activities to bring traditional perceptions on girls and education into alignment with fundamental human rights, and measures to protect girls from all forms of exploitation.
Strengthening the Legal Protection Framework for Girls | XI Section 1 Country profile
KENYA COUNTRY REPORT
Kenya covers a total area of 582,646 square kilometers and shares borders with Tanzania, Somalia, Ethiopia, Sudan and Uganda. The country is divided into three agro-ecological zones; the coastal lowlands; the highlands; and the arid and semi-arid lands. The country has a diverse terrain ranging from the lake and coastal basins, to the rugged rift valley, and mountainous highlands. 9 The country has over 40 different ethnic groups resulting in diverse cultural traditions. The rural- urban divide is 59:41 percent of the population respectively.
Children are defined in legislation as human beings under the age of 18 years. 10 Kenya has a total estimated population of 39 million, of which roughly 50 percent are aged below 18 years. Forty-two percent are aged less than 14 years, 20 percent are aged less than 5 years, and 5 percent are aged less than 1 year. The sex ratio of these groups is 51 percent male and 49 percent female. 11 The skewed nature of the population’s age profile is explained by the low life expectancy (53 years), 12 which is in turn explained by the growing incidence of HIV/AIDS, a phenomenon that has left the country with a small population of seniors.
Primary economic activities are subsistence farming, livestock keeping, formal and informal employment, and small-scale enterprise. Poverty has a strong spatial dimension in that the level of income, services, and resources available to children is largely determined by place of residence. It is estimated that the number of Kenyans living in absolute poverty (families with incomes less than US$1/day) is approximately 46 percent, whereas the percentage of persons living in rural areas in absolute poverty is 49 percent. 13 It should be noted, however, that this represents a decrease from the previous decade when 57 percent of the overall population and 60 percent of the rural population were estimated to be living in poverty. 14
The Kenyan poverty profile also reveals strong regional disparities. According to a 2005 to 2006 survey, the lowest incidence of rural poverty was found in Central Province (30.3 percent), followed by Nyanza (47.9 percent), Rift Valley (49.7 percent), Eastern Providence (51.1 percent), Western Province (53.2 percent), coastal areas (69.7 percent), and finally North Eastern province (74.0 percent). 15 These differences in poverty levels also affect access to basic social goods and services such as education, health and access to immunization, all of which play an important role in the overall protection of children.
9 National Geographic, Kenya
Strengthening the Legal Protection Framework for Girls | 1 KENYA COUNTRY REPORT
Table 1 Poverty index by constituency
Ten poorest constituencies Ten richest constituencies Constituency Poor People Constituency Poor people % % Turkana Central 97 Kajiadio North 11 Turkana South 96 Kajiado Central 13 North Horr 95 Kajiado South 14 Saku 94 Westlands 15 Wajir North 93 Kabete 16 Wajir South 90 Kiambaa 19 Mandera Central 90 Ntonyiri 20 Turkana North 88 Langata 20 Kinango 87 Embakasi 21 Mandera East 85 Starehe 21 Source: Constituency Report on Well -Being (2009).
Girl children in Kenya
In order to secure their survival and that of their families girls in Kenya often engage in deleterious activities such as child labor and can be forced by close family members into early marriage and child trafficking in order to acquire economic capital. 16 In this environment girls are increasingly at risk of falling within the protection gaps of the state.
Kenya is a patrilineal society with men playing a central role in family and community decision-making. 17 This can be explained somewhat by socialization theory, which suggests that children are taught to behave a certain way according to their sex. From infancy, boys are taught to be ‘masculine’ and are given traditional masculine roles such as herding cattle, whereas girls are expected to behave in a ‘feminine’ manner and are given duties such as cooking and cleaning. 18
Culture, through both language and images, plays a strong role in the way that females are denigrated, stereotyped, and controlled. 19 Such representations contribute to the resilience of male-dominated power structures and can penetrate the consciousness of females to mould self-perceptions. 20 This can negatively impact upon females’ sexual relations, health and reproductive rights, education and career choices, political involvement and leadership roles. The struggle against negative cultural representations and practices must be viewed as an important part of the broader process of female empowerment.
In most parts of the developing world children live in a state of vulnerability and are exposed to a combination of systematic discrimination involving age, social status, education and health. 21 This combination of age and sex-based discrimination make girl children one of the most vulnerable social groups, exhibiting systematic disadvantage
16 Ibid. 17 E Cotran, Restatement of African Law: Kenya , Vol. 1 Marriage And Divorce (1968). 18 Institute of Economic Affairs Kenya, Profile of Women’s Socio-Economic Status in Kenya (2008). 19 C Creighton and F Yeike (eds.), Gender Inequalities in Kenya , UNESCO (2006). 20 E Orchardson-Mazrui, ‘Impact of Cultural Perceptions on Gender Issues’ in C Creighton and F Yeike (eds.), Gender Inequalities in Kenya , UNESCO (2006). 21 M Hartl, Reducing Vulnerability of the Girl Child in Poor Rural Areas (UNICEF Innocenti Research Centre and United Nations DAW Expert Group Meeting Paper EGM/DVGC/2006/OP.3) (2006) 2.
Strengthening the Legal Protection Framework for Girls | 2 KENYA COUNTRY REPORT
over a wide range of welfare indicators including health, education, nutrition and labor force participation. 22 The situation is no different in Kenya. Kenya’s commitment towards girl children
Kenya has recognized the vulnerability of girl children within the national legal framework and the government has developed several initiatives to improve their welfare, including through the ratification and promulgation of various treaties, national laws, and policies. 23 The Government has also established a Ministry of Gender, Children, and Social Development that is charged with formulating policy and overseeing the welfare of children within the country. 24
Unfortunately, most of the policy interventions aimed at closing gender gaps have not been informed by data or statistics, nor have they been consistently documented. Likewise, the participation of females with respect to the distribution of social, economic, and political opportunities is scantly documented. 25
Kenya ratified the Convention on the Rights of the Child (CRC) on 31 July 1990 and is thus required to measure progress towards fulfilling children’s rights and report to the UN Committee on the Rights of the Child every five years. To date, Kenya has submitted two reports (in 2000 and 2006). As a party to the CRC, Kenya has undertaken to protect every child’s right to survival, development, protection and participation; to protect children against discrimination; 26 and to ensure that all decisions relating to children are guided by a determination of what is in that child’s best interests. 27
Kenya has also ratified the African Charter on the Rights and Welfare of the Child (ACRWC) on 25 July 2000. This Charter takes into consideration the unique socio- economic and cultural status of children in Africa and imposes various requirements on governments. Such African-specific phenomena include harmful cultural, traditional and religious practices; poor and unsanitary conditions which threaten child survival; discrimination of girl children; early marriage; child involvement in armed conflict; children and apartheid; and refugee children.
Kenya has acceded to several international treaties that concern children including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) (9 March 1984), the International Covenant on Civil and Political Rights (ICCPR) (1 May 1972), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1 May 1972). The Government has also acceded to the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women, and Children, supplementing the United Nations Convention against Transnational Organized Crime (5 January 2005).
Kenya is a dualist state and the hierarchy of laws, as provided for in the Judicature Act (1967), does not recognize the application of international law. 28 This hierarchy places the Constitution of Kenya at the apex, followed by the acts of parliament, common law, doctrines of equity, statutes of general application, and lastly African customary law. Theoretically, for international treaties to be incorporated into national law, they have to be ‘domesticated’ through an act of Parliament. However, in two recent Court of Appeal decisions ( Rono v Rono & another and in Re the Estate of Lerionka Ole Ntutu (Deceased)) the court found that international treaties may be applicable even in the absence of a process of ‘domestication’ provided that they do not conflict with existing
22 R Levine et al, Girls Count: A Global Investment and Action Agenda (2008). 23 The international conventions signed, ratified or acceded to will be discussed in each thematic chapter. 24 See
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domestic legislation. 29 The Children Act (2001) 30 provides a good example of how international treaties have been integrated into national legislation. This Act includes the provisions of the CRC and the ACRWC.
29 [2005] 1 KLR 538 and [2008] eKLR. See
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Section 2 Birth registration
KENYA COUNTRY REPORT
Key findings
! Girls in Kenya are rendered particularly vulnerable to protection violations due to poor birth registration rates. Access to education, basic healthcare, inheritance and the right to actively participate in society could potentially be foregone without adequate documentation of age or family ancestry, otherwise provided for in the form of a birth certificate.
! Gaps in national birth registration legislation, coupled with inadequate government resource allocations and a significant lack of public knowledge on the importance of birth registration are of particular concern.
! It is important to note that the absence of gender-disaggregated data hindered a comprehensive overview of the situation regarding birth registration in Kenya specific to girls. It is recommended that gender-specific data be collected, so as to enable a complete understanding of the relevant protection gaps and how they might be addressed.
Birth registration in Kenya
Birth registration is a state’s official recognition of a child’s existence enabling the right to a name a nationality and family relations.31 It involves the official recording of a birth in a register by the relevant government department. In Kenya birth registration is the responsibility of the Civil Registration Department of the Ministry of Immigration and Registration of Persons. Upon registration a birth certificate is issued. This process is free of charge.
Birth registration of girls allows for the greater protection of fundamental rights by the state, and to ensure adequate and fair access to the social services such as healthcare and education. Kenya has an estimated average birth registration rate of 48 percent, with rates varying between regional areas. This is consistent with the survey results, with 55.6 percent of respondents having registered the birth of their youngest daughter. Generally, urban areas have higher registration numbers than rural areas, particularly in areas that are logistically inaccessible. 32 Specifically, Kenya has a registration rate of 64 percent in urban areas as compared to 44 percent in rural areas. 33 Disparities in registration rates can be explained, amongst others, by uneven development among socio-economic groups. For example, birth registration rates are as high as 74-84 percent in Central Province, but as low as 6-8 percent in parts of the Rift Valley, Eastern, and North Eastern Provinces. Within these provinces, children who are not registered are disadvantaged in terms of socio-economic status, access to education, healthcare, and overall protection. There are particularly low registration rates for the children of indigenous groups, refugees, asylum-seekers, migrants, and internally displaced groups. 34 Interestingly, a 2005 UNICEF statistical analysis indicates that 48.3 percent of girls under 5 have had their births registered, as compared with 47.6 percent of boys. 35
31 UNICEF IRC, Birth registration and Armed Conflict , Innocenti Insight Research Report, (2007) 1. 32 African Child Policy Forum, Universal Birth Registration: The Challenge in Africa (Paper prepared for the 2 nd Eastern and Southern Africa Conference on Universal Birth Registration, Mombasa, Kenya September 26-30, 2005) 12. 33 UNICEF, The State of the World’s Children 2009: Maternal and Newborn Health (2008). 34 Ibid. 35 UNICEF, The ‘Rights’ Start to Life, a Statistical Analysis of Birth Registration (2005) 28. Available at
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Of those surveyed, the majority gave birth to their Figure 1 Location of birth youngest daughter in a hospital. However, at large, 3%1% ‘only 40 percent of women in Kenya deliver in Hospital hospitals and other health facilities’. 36 Where a 38% Home birth occurs outside a health institution, the notice 58% Clinic of registration is generally issued by either the parent, traditional birth attendant, the village elder Other or any other member of the community who has knowledge of the birth. Births taking place at health institutions are noted through health records and information management systems. 37 When births take place in hospitals, staff are supposed to issue a birth notification and advise the mother of the birth registration process and requirements.
Legislation governing birth registration
There are various international legal instruments that provide for birth registration. Of these, Kenya has ratified the CRC 1989 , ICCPR 1966 , ACRWC 1990 , and the CEDAW 1979. It has signed, but not ratified, the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography 2000 (signed on 8 September 2000). Kenya has neither signed nor ratified the Convention on the Reduction of Statelessness (CRS) 1961 or the Convention on the Status of Stateless Persons (CSSP) 1954 .
The Births and Deaths Registration Act 1948 governs birth registration in Kenya. 38 It provides for the compulsory registration of all births in Kenya within the first six months of life, 39 irrespective of race, tribe, or nationality. Specifically, it provides that birth registration of all children may be made compulsory in Kenya through notices in the country’s gazette. 40 Toward this end, a series of notices were published in the gazette in the 1960s and 1970s. 41
Prior to 1971, compulsory registration did not apply to all parts of the country, but only to selected areas. 42 The onus to ensure registration is placed on the child’s parents, and, when this is not possible, the occupier of the house where the child was born. A duty also falls on all persons present at the birth and the person exercising responsibility over the child. 43 Where a birth occurs in a prison, hospital, orphanage, barrack or quarantine station, responsibility rests with the officer in charge. 44 The time period within which the relevant duty bearer should issue a notice of birth is stipulated as three months. 45 The notice of birth is a form where the particulars of the mother are indicated and which
36 B Biomndo, ‘More women prefer to give birth at home’, The Daily Nation (Kenya) 20 January 2009, available at:
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serves as proof that she has given birth. This form is presented to the registrar along with details such as the name of the parents, the name and sex of the child, and the place of birth.
Failure to register a child’s birth within six months is an offense and may result in the imprisonment of the duty bearer for up to six months, a fine not exceeding five hundred Kenyan shillings (US$7), or both. There are no available statistics, however, on prosecutions and convictions relating to non-registration. Where a duty bearer fails to issue a notice of registration within six months of the date of birth, they must apply to the Registrar-General for a late registration. The Registrar-General then exercises his/her discretion whether to issue a late registration form to the registrar to record the birth. 46 Where the duty bearer lodges a late registration form a charge of 100 Kenyan shillings (US$ 1.35) is imposed. 47
In order for children born outside of Kenya to become Kenyan citizens, the law requires either a birth certificate issued by the foreign country or (if the country does not issue birth certificates) a certificate of birth issued by a doctor, midwife or other person who witnessed the birth. 48 Alternatively, if there is a Kenyan mission or consulate in the foreign country, a consular official can provide an attestation that he/she is satisfied, from the evidence provided and inquiries made, that the particulars of the birth are correct. If there is no Kenyan mission or consulate in the foreign country, duty bearers will be asked to provide other evidence as the registrar may require. 49
Institutional framework for birth registration
The Department of Civil Registration is the government agency charged with the responsibility of registering all births and deaths in Kenya. Registrars are located in each administrative district and are required to forward lists of births and deaths on a weekly basis to the Principal Registrar, who then updates the national database. In over half of the districts in Kenya, the department utilizes a community-based system of registration. 50 Through this system, the department enlists the assistance of other ministries and members of the local community, including assistant chiefs (employees of the Provincial Administration), village leaders (e.g. village elders and traditional birth attendants), and health personnel (e.g. employees of the Ministry of Health) to report on and complete birth registrations within their administrative units. 51
The Department of Civil Registration faces several challenges in exercising its mandate. These include governing legislation that is outdated; manual processes that lead to a loss of records, misplacements and delays in service delivery; inadequate operational tools including office space, equipment, vehicles and sanitation facilities; severe staff shortages; inadequate funds; poor customer redress; lack of standardized registration and operational procedures; low staff morale; and inadequate information, communication and technology skills. 52 Further, there is lack of co-ordination between the various agencies involved in national registration such as the National Registration Bureau, Immigration Department, Registrar General, National Social Security Fund, and the National Hospital Insurance Fund. The operations of these agencies are largely manual, independent, and lacking in internal and external linkages.
46 Births and Deaths (Late Registration) Rules (1971), Rule 4. 47 See:
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The abovementioned challenges in providing adequate access to birth registration pose significant threats to the protection of girls. Without adequate government facilities in place to enable and encourage birth registration, girls face increased challenges in accessing the fundamental rights provided for by their country, such as education and health care.
It should be noted, however, that the Kenyan government plans to establish an Integrated Population Registration System that is aimed at making birth registration the basis of all other forms of registration coupled with capacity-building for registration officers. 53
Importance of birth registration
Birth registration is the first point of contact between a child and the state. It is a fundamental right in and of itself, as well as a bridge to other rights, providing a measure of protection against age-related exploitation and abuse.
As highlighted by the Committee on the Rights of the Child, birth registration is particularly important in protecting children affected by HIV/AIDS in terms of securing a child’s right to education, healthcare, and inheritance. 54 Through the issuance of a birth certificate, the state acknowledges the existence of the child and its commitment to the duties required of it to the child. Children who are not registered risk not being recognized as persons by the state, resulting in compromised access to fundamental rights and freedoms, which are otherwise guaranteed by the state. Further, as they will not be included in child-based statistical information, their situation cannot be monitored or factored into development policies. The following section discusses the importance of birth registration in other aspects of an individual’s life in Kenya.
Citizenship
The Constitution provides that where a birth occurs in Kenya the child acquires Kenyan citizenship if either its mother or father is a citizen of Kenya. 55
Registration of birth is important as it provides the evidence required for the child to claim a parent's nationality. Registration is also important to ensure against the child becoming stateless, and thus without any access to, or recognition of, their fundamental rights provided for by their state. This is of particular concern given that Kenya is not a State Party to the Convention on the Reduction of Statelessness (1961) or the Convention on the Status of Stateless Persons (1954).
Persons born outside Kenya after independence (11 December 1963) shall become a citizen of Kenya at the date of his or her birth if, at that date, its father is a citizen of Kenya. 56 However, a child born outside Kenya to a Kenyan mother married to a non- Kenyan does not automatically acquire Kenya citizenship.
53 Ministry of State for Migration and Registration of Persons, Integration of Population Registration Systems (2007). Available at
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Access to education
The Children Act (2001) and the CRC both protect a child’s right to education. This right is not contingent upon the child’s citizenship or nationality.
The education system in Kenya comprises of: early childhood development (ECD), primary education, secondary education, and tertiary education. ECD caters for children aged 0-6 years and the recommended age for enrolment in primary school is 6 years. Without a valid birth certificate, children are unable to prove their age and therefore risk being unable to enroll at the recommended time.
Since the advent of free primary education in Kenya in 2003, there has been an influx of foreign children particularly in areas that share a border with Somalia. 57 The Ministry of Immigration and Registration of Persons requires foreigners to register through a “pupil pass registration form”. 58 Given the difficulty of differentiating between genuine Kenyans of Somali origin and Somali nationals, unregistered Kenyan children may be excluded from educational facilities. Further, the Ministry of Immigration in conjunction with the Ministry of Education has issued new directives to school administrators to not admit standard one (entry level for primary school) pupils without birth certificates. 59 While this is consistent with the Ministry’s 2008-2012 strategic plan, it further emphasizes the need for all children in Kenya to be registered at birth. Finally, the Kenyan National Examination Council has recently stipulated that primary school pupils and secondary school students must have birth certificates or identity cards in order to sit for national exams. 60
The Bursary Education Fund, which prioritizes orphans and vulnerable children, may also be inaccessible to girls who are unable to prove their age and ancestry. 61
Access to national documents: identity cards, passport, driving license, voter card
A Kenyan citizen is required to register with the state once they reach 18 years of age for the issuance of a national identity card. 62 Failure to do so is an offence punishable by the law. 63
However, to obtain a national identity card one must provide proof of citizenship and age. The Constitution and the Kenya Citizenship Act (1963) provide that citizenship can be obtained through birth, descent, registration, or naturalization. Age is usually proven through a birth certificate. The same applies to passports 64 and driving permits, where the applicant must also provide proof of age and citizenship.
In democratic states, citizens are expected to play a pivotal role in political affairs through the election of political leaders. In order to vote one must have a voter’s card
57 A Jubat and B Ongeri, Somalia pupils invade Kenyan schools (2009) The Standard
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issued by the electoral body. However, in order to obtain a voter card it is necessary to produce either a valid passport or national identity card. 65
Access to health services
Every child has the right to life and to enjoy the highest attainable standard of health. 66
Human health has a major role to play in a country’s economic development as good health contributes towards maintaining and enhancing the productivity of its people. 67 Ineffective systems of birth registration mean that unregistered children may be unable to gain access to health care services or may be charged more for treatment than that of a registered child. In Kenya, there are several subsidized health programs targeting young children. For example, all public health institutions offer free outpatient services for children under five years of age. 68 The Ministry of Health also offers free immunization services to children under age five.69 However, the child must have a medical card, and one of the details required to obtain this card is proof of age.
Additional risks posed to girl children by non- registration
Child labor
The law stipulates the minimum age at which children can be engaged in employment. However, without proof of age, either through a birth certificate or identity card, this law is difficult to enforce, leaving children, particularly girls, more vulnerable to unlawful employment.
Child trafficking
Although Kenya’s Children Act 2001 does contain various provisions which are useful in the fight against child trafficking, the Act does not explicitly define child trafficking, thus placing unregistered girls in Kenya at even greater risk of being trafficked than those who have been registered. Additional legislation, which does protect against child trafficking, is age specific and thus such laws can only protect a child if they have the appropriate documentation to prove their age. Moreover, trafficking in girls for the purposes of prostitution or labor is exacerbated by inefficient or ineffective birth registration systems. Without adequate identification of nationality, unregistered girls in Kenya are thus more likely to be exploited by traffickers and moved between countries.
Child sexual exploitation
Kenyan law prohibits sexual intercourse with persons below the age of 18. However, without proof of age, either through a birth certificate or national identity card, girls become even more vulnerable to sexual exploitation.
65 National Assembly and Presidential Elections Act, Chapter 7 of the Laws of Kenya, Section 4a (2). 66 CRC, Articles 6 and 24. 67 E M Gakunju, Determinants of Health Status in Kenya (2003). 68 Department of Reproductive Health, The National Reproductive Health Delivery Strategy 1997-2010 ; National Health Strategic Plan 2005-2010 which integrated Millennium Development Goals and the World Fit for Children goals. 69 For further information on the Expanded Programme on Immunization (EPI) see:
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Disinheritance
The Law of Succession Act (1981) provides that where both parents die intestate, assets will be administered by an appointed adult until the eldest child reaches the age of 18. 70 In order for a child to prove that they are related to the deceased, the child needs to present a birth certificate. This document, in addition to the death certificate and (often) a girl’s parent’s marriage certificate, are therefore critical for proving age and ancestry and hence enforcing a child’s land, property, and inheritance rights. 71
Child offenders
There are certain safeguards for children who come into conflict with the law. The Children and Young Persons Act (CYPA) 2002 is the primary law in Kenya concerning children in conflict with the law. The Penal Code Act 1930 also provides that a person under the age of eight years old is not criminally responsible for any act or omission. It provides that a person under the age of 12 years is not criminally responsible for an act or omission, unless it is proved that at the time of the act or omission, he/she had sufficient capacity to know that the act or omission was wrong. 72 A male under the age of 12 years is presumed to be incapable of carnal knowledge. 73
The Children Act 2001 empowers the court to provide legal aid for unrepresented children in conflict with the law. 74 It also provides that child offenders have the right to have matters determined without delay. 75 There are restrictions on the punishments that can be levied against persons under the age of 18 years, and the Penal Code 1930 provides that no person who was under 18 years of age at the time of committing an offence can receive capital punishment. The Children Act 2001 similarly prevents any child from being sentenced to death, 76 but also provides that no child shall be imprisoned or placed in a detention camp. 77 This represents a conflict with the Penal Code 1930 , which permits the imprisonment of children. Nonetheless, it has only been at the highest levels that courts have been diligent in upholding the above provisions. For example, in the case of Isaac Kigondu V Republic [2009] eKLR, the Court of Appeal overturned a death sentence pronounced upon a person who was 16 years old at the time the offense was committed.
Proof of age is thus vital to be able to enjoy the legal protections afforded to children in Kenya. A birth certificate represents conclusive proof of age and in turn protection under the law. Only one alternative to this is envisioned in the Children Act 2001 , namely an attestation by a medical practitioner relating to a person’s age, provided that the person is less than 18 years. 78
Underage marriage
The absence of a birth certificate may expose girls to early marriage (see further chapter eight) and the condoning of such practices given the difficulty of proving a girl’s age.
70 Section 18. 71 L Rose, Children’s Property and Inheritance Rights, HIV and AIDS, and Social Protection in Southern and Eastern Africa , FAO HIV/AIDS Programme Working Paper No.2 (2007). 72 Section 14. 73 Ibid. 74 Section 77. 75 Section 186 (c). 76 Section 190 (2). 77 Section 190 (1). 78 Section 143.
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Factors perpetuating non-registration
Birth delivery by untrained personnel
Research suggests that countries with high birth registration rates tend to have high rates of births in medical facilities. 79 In response, medical personnel have been incorporated in Kenya’s birth registration system. Attempts have also been made to incorporate midwives and village elders into the birth registration system. Such initiatives, however, are still in their infancy and require greater coordination.
Customary naming traditions
The naming of a newborn child is an important event in Kenyan communities. Traditionally, each name has a meaning attached to it and an individual’s name helps identify their lineage and the period when a person was born. Each ethnic community in Kenya has its own naming traditions and procedures. Some procedures are long and this can result in birth registration being delayed or overlooked. 80
Cultural and social norms
The information required for birth registration may be incompatible with local values or customs. For example, unmarried women may be reluctant to declare their status or that of their child to authorities. 81 Further, in some communities girl children are not considered sufficiently important to merit ‘unwarranted attention’ such as that associated with birth registration. 82
Mistrust
Owing to a fear that the information provided through registration may be abused or misused to discriminate against them and their children on account of ethnic or religious origin, some parents are deterred from registering the births of their children.83 Knowledge and transparency of the registration procedures are thus of paramount importance to encourage the registration of all girls.
Lack of awareness
Even though a 2005 UNICEF study 84 revealed Figure 2 Is birth registration compulsory? Kenya as one of the countries in which the most 4.8% common reason for not registering a child was 8.7% Yes lack of awareness regarding the compulsory No nature of birth registration, of the total survey 86.5% Don't know respondents, 86.6 percent were aware that birth registration was compulsory. Knowledge was less consistent with respect to the age at which registration must take place (see table 28) and the associated costs, with only 51.7 percent of respondents aware that birth registration in Kenya is free of charge. Where respondents had not registered their youngest daughter, 45.96 percent stated that this was because they lacked familiarity with the registration procedure.
79 UNICEF IRC, Birth Registration Right From The Start , Innocenti Digest No.9 (2002). 80 Cotran, above n 17. 81 CRADLE, Universal Birth Registration (2006). 82 Plan West Africa Regional Office, The Status of the Girl Child in Africa (2007). 83 Ibid. 84 UNICEF, above n 35.
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Other research indicates that the importance of child registration does not resonate strongly with government or members of the public. It is widely perceived as a formality and there is generally no urgency or motivation on the part of parents to register their children until the lack of documentation becomes a problem later in the child’s life. 85 This is consistent with the survey, which revealed that 51.26 percent of respondents registered their child for the purpose of obtaining legal documents and access to social services.
Ease of registration and accessibility of registration facilities
The majority of respondents who had registered their daughters (65.3 percent) stated that the registration process was simple, while 28.1 percent found it complicated and 6.6 percent found it difficult. Given the amount of respondents who did not register their daughters because they were unfamiliar with the registration procedures, it is likely that they perceived the process as difficult or complicated due to their unfamiliarity. Where respondents had not registered their youngest daughters, 24.84 percent stated that this was due to inaccessibility of a registration facility, pointing to a lack of resources allocated by the government to ensure higher registration rates. Additionally, the experience of PLAN in Kenya is that the late registration penalty fee acts as a hindrance to registration. 86
Lack of institutional capacity
Kenya’s Department of Civil Registration does not have adequate infrastructural capacity to efficiently carry out birth registration.
National initiatives
In view of the problems associated with the existing birth registration infrastructure, a new national program has been initiated with the aim of updating birth registration records since 1996. According to PLAN:
(a)t district headquarters, however, the process is still mainly manual and leads to delays in issuing birth certificates. For example, at district headquarters in Kwale, the three-person staff have just one computer and can only process around 200 birth records a month. This work can only be done after they finish serving clients, who come to register new births and deaths, and it is evident that better data management is urgently needed.
Responding to these challenges, Plan is piloting community-led computerized birth registration. By using mobile phone technology, it is possible to record data for birth notifications and track the registration process. This takes advantage of the good mobile phone network connectivity in Kwale and draws on other successful models for enhancing services at community level, as has been proven through mobile banking, which is well developed in many African countries. 87
Moreover, PLAN, in conjunction with local partner Mukembau, has developed a program that involves the training of a network of volunteers to collect birth registration data. Volunteers include children’s clubs, volunteer child officers and community health workers.
85 Ibid. 86 Plan, Count Every Child: The Right to Birth Registration (2009) 52. 87 Plan, Count Every Child: The Right to Birth Registration (2009) 68.
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This project has become a key link between the community and local registration services (see diagram, opposite), and as well as promoting birth registration, they ensure that health clinic and identity cards are distributed to families and young people. Mukembau also holds a celebration ceremony when individuals receive their birth certificates, creating greater awareness and demand for registration services. This model has strengthened genuine community participation, and Plan and Mukembau have facilitated the registration of more than 90 per cent of births in the project catchment area, far above the…national average for Kenya. 88
Proposed interventions
Effective legislation
The Birth and Death Registration Act (1948) needs to be updated to accommodate new social realities. For example, the Minister is still empowered to make birth registration compulsory for members of a specific tribe, race, class, or inhabitants of any particular town. It was under this power that all birth registrations in the country were made compulsory. Therefore, compulsory registration is not grounded in statute but rather in subsidiary legislation. In addition, the Act refers only to registration books and forms and does not take into account the more up-to-date electronic means of registering births. Thus it is important that the compulsory nature of birth registration be provided for in legislation, rather than subsidiary instruments.
Provide incentives
Legislation should emphasize incentives rather than penalties. To encourage demand for birth registration, such incentives could be linked with related social services, to which women already have access. Although the Kenyan government already provides free immunization, the government should promote the receipt of a medical card for each child upon registration, which provides for free immunization and outpatient services at public health clinics up until the age of five years. Such incentives could be used as a means of increasing registration numbers, by providing the parent with something tangible, in return for their registration. While birth registration should be kept compulsory at birth, legislation and policy should also encourage parents to register children even when they have not already done so, and without penalty.
Increased public awareness
With nearly 50 percent of survey respondents indicating unfamiliarity with the registration procedures, public awareness campaigns are of paramount importance to ensure increased education on the importance of birth registration. Public awareness campaigns need to take into account their target audience. Given that 62.8 percent of the survey sample indicated that both the mother and father of the child were the primary decision makers with regards to birth registration, such activities should target both parents.
Increased resource allocation
With nearly 25 percent of survey respondents citing inaccessibility of registration centers as the reason for not registering their daughter’s birth, pressure should be placed upon the central government to allocate more resources to support the institutional framework for birth registration. A more efficient allocation of resources would also allow for the Department of Civil Registration to adequately fulfill its mandate and protection duties to all girls in Kenya, by providing a simple and accessible service. Greater allocation of
88 Ibid, 72.
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resources could also provide for effective training of home-birthing personnel and midwifes on birth registration procedures. A significant hindrance to the analysis of protection issues relating to birth registration of girls in Kenya is the lack of gender-based statistics available. Such statistics would increase the ability of the central government to understand the need for, and provide effective access to, registration processes.
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Section 3 Education
KENYA COUNTRY REPORT
Key Findings
! There is a strong awareness of girls’ education rights and access to education in Kenya.
! However, a significant number of girls withdraw from school following the completion of primary school education. Gender disparities are overwhelmingly evident at the secondary level, which has resulted in poor participation in, for example, the workforce.
! Increased government commitment is required to, not only enshrine the right to education in national legislation, but also to provide additional resources to make schools more attuned to the specific needs of girls.
Policy framework for education in Kenya
The right to education was universally recognized in the Universal Declaration of Human Rights (UDHR) (1948) and since then has been enshrined in various international conventions national constitutions and development plans. Apart from being a right in and of itself, education is an enabling right as it assists in the realization of other rights in economic, political and social arenas.
Education and training play an essential role in reducing poverty and encouraging development. 89 The provision of education and training to all Kenyans is fundamental to the government’s development strategy. Education is seen as enhancing the ability of Kenyans to preserve and utilize the environment for productive gain and sustainable livelihoods. 90
Following independence in 1963, a commission 91 was established to assess Kenya’s educational resources and advise the government on the formulation and implementation of a national education policy. 92 The commission recommended that, since independence signified the birth of the nation, education should serve as a means of uniting Kenya’s different racial and ethnic groups. The commission's decisions were influenced by international opinions and internal political socioeconomic forces 93 that identified a direct relationship between education and economic growth. 94 It was concluded that an educated citizenry was a sine qua non to accelerating Kenya's economic pace. 95 On the strength of the commission’s recommendations, Kenya chose to emphasize education as a principal component of its development strategy.
Educating girls benefits all of society. Education can have a significant impact on poverty reduction as empowering women enables them to participate effectively in labor markets and national development. Education is said to be the most influential factor in improving child health and reducing infant mortality. 96 Educating young girls also has the
89 Communication from the Commission on 6 March 2002 to the Council and the European Parliament on education and training in the context of poverty reduction in developing countries [COM(2002) 116]. Available at
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ability to significantly lower their vulnerability to HIV/AIDS as they are better equipped to make safer decisions pertaining to sexual activity.97 Moreover, education should be an intrinsic part of any strategy designed to address gender-based discrimination against women and girls.
Legal framework governing education in Kenya
There are several international legal instruments that protect the right to education. Of these, Kenya has ratified the ICCPR 98 , ICESCR 99 , CEDAW 100 , CRC, and ACRWC. Kenya is also signatory to the Jomtien Conference of 1990 101 , the Dakar Framework for Action of 2000 102 and the Millennium Development Goals (MDGs) Conference of 2000. Kenya has not signed, ratified, or acceded to the Convention on the Elimination of Discrimination in Education (1960).
The Children Act 2001 upholds the right of all children to free, compulsory, basic education. 103 Principal responsibility for a child’s education rests with the parents, although the government is also vested with responsibilities in this area. 104 Infringing on a child’s right to education is penalized by a maximum imprisonment of 12 months, a fine of up to 50,000 Kenyan shillings (US$ 676), or both. However, this has not been consistently implemented. 105 The survey revealed strong public awareness in that 90 percent of respondents were aware that primary education was compulsory, and 93 percent were aware that this service was free.
The legislation governing education in Kenya is the Education Act 1968 . This Act provides for the regulation and progressive development of education, but falls short of declaring education to be a right or entitlement. 106 The right to education is similarly not provided for in Kenya’s Constitution. Other legislation that deals with education includes the Refugees Act 2006, which guarantees education to refugee children on the same basis as Kenyan citizens; the HIV Prevention and Control Act 2006 , which came into force on 30 March 2009, and prohibits mandatory testing as a precondition for admission to institutions of learning; the Teachers Service Commission Act 1967 ; the Kenya National Examination Council Act 1980 ; the Board of Adult Education Act 1966 and the Universities Act 1985.
As a result of these provisions, the state is not obligated under national law to provide compulsory basic education, despite the distinct stipulations in the abovementioned international conventions that Kenya has signed and ratified. A further issue is that the Education Act 1968 and related legislation are not harmonized, and are no longer adequately responsive to the current and emerging trends in education and training. 107
The government has set in place several policies geared towards guaranteeing children the right to basic education including the Education Policy Framework, the Early Childhood Education Policy, and the draft Orphans and Vulnerable Children (OVC) Policy. This OVC policy involves the provision of bursaries for secondary school to children covered under the policy. The Kenya Education Sector Support Programme 2005-2010 (KESSP0) is charged with the responsibility of implementing these policies. Among other
97 Ibid. 98 1 May 1972 99 1 May 1972 100 9 March 1984 101 World Declaration on Education for All. 102 Framework of Action for the Declaration of Education for All. 103 Sections 7 and 7 (2). 104 Section 7 (1) and 23 (2) (a) (v). 105 US Department of State, Human Rights Report-Kenya (2009). 106 See the Preamble to the Education Act. 107 Ngigi and Machariable, above n 91.
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initiatives, it requires action in awarding bursaries to girls and improving sanitation in schools. 108
Institutional framework
The Ministry of Education, Science, and Technology (MoEST) is responsible for the provision of administrative and professional services in education at the national, provincial, and district levels. The Permanent Secretary is the accounting officer and overall administrative head, and the Director of Education is responsible for all professional matters in education. There are also Provincial Directors of Education, and District and Municipal Education Officers who are in charge of administration and supervision of education in their respective provinces, districts and municipalities. The Kenya Institute of Education (KIE) is responsible for developing educational curricula while the Kenya National Examination Council (KNEC) sets and regulates national examinations.
Since the Jomtien Conference on Education for All , held in 1990, the issue of gender parity has featured prominently in the education debate at all levels in Kenya. Several strategies and activities have been set in place and are bearing positive results. First, a Gender Unit was created in the Ministry of Education in 1995, in response to a recommendation during the Symposium on Girls Education in 1994. The Unit operates and networks with other Ministries within the Government, NGOs, community leaders and individuals interested in matters concerning girl’s education. Secondly, the Ministry of Education, in collaboration with the United Nations Children’s Fund (UNICEF), has initiated the Girl Child Programme with the objective of closing the gender gap in education. It has undertaken gender sensitization activities for top, middle, and grassroots Ministry of Education personnel and intends to target communities in the future. 109 The Programme has also worked with teachers to make them more gender responsive to the special needs of girls. All officers in the Gender Unit have undergone training on the principles of gender and development and have specific skills for dealing with gender issues in education including strategic programme planning. 110
Kenya’s education system and current education statistics
Kenya has adopted an “8-4-4” education system comprising of eight years of primary education, four years of secondary education, and four years of tertiary education. Before primary school, children can attend Early Childhood Development. 111 The pre- primary school gross enrollment rate (GER) was 44 percent in 1999 and 52 percent in 2006, with an approximately equal boy-girl ratio. 112 The literacy rate for youth in Kenya (aged 15-24) during the years 2000-2007 was 80 percent for males and 81 percent for females. 113
108 Centre for Rights, Education and Awareness, Status of Women and Girls in Kenya (n.d.)
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Primary school education
In 2003, the government introduced free primary education leading to a marked increase in school attendance. The GER 114 for primary education rose from 88.2 percent in 2002 to 102.8 percent in 2003 to 107.4 percent in 2006.115 In terms of boy-girl enrollment, the GER increased from 88.9 percent and 87.5 percent respectively in 2002, to 110.2 percent and 104.6 percent respectively in 2006. 116 It should be highlighted, however, that while the enrollment rate increased for both sexes, the gender gap also increased.
The net primary school enrollment rate (NER) increased from 77.3 percent in 2002 to 86.5 percent in 2006. The highest NER was recorded in Nyanza Province (boy NER of 98.8 percent and girl NER of 97.2 percent), followed by Western Province (boy NER of 99.1 percent and girl NER of 94.6 percent). North Eastern Province registered the lowest NER with 20.8 percent. 117
The Gender Parity Index (GPI) reveals near gender parity between female and male school enrollment. However, while gender parity is achieved at the national level, gender disparities exist across the provinces. As illustrated below, the North Eastern Province recorded the widest disparity ranging from 0.60 in 2001 to 0.68 in 2006 as compared to Nairobi Province with 1.17 in 2001 and 1.11 in 2006.
Table 2 Primary Gender Parity Index by Province: 2001 – 2006
Province 2001 2002 2003 2004 2005 2006 Coast 0.87 0.91 0.90 0.93 0.98 0.98 Central 1.03 1.05 1.01 1.00 0.99 1.00 Eastern 1.03 1.04 1.00 1.00 0.99 0.99 Nairobi 1.17 1.16 1.14 1.14 1.04 1.11 Rift Valley 0.99 1.00 0.98 0.97 0.97 0.98 Western 0.95 0.96 0.96 0.98 0.95 0.95 Nyanza 0.98 1.01 0.99 0.99 0.99 0.99 North Eastern 0.60 0.72 0.62 0.63 0.71 0.68 Total 1.00 1.02 0.99 1.00 0.99 1.00 Source: Statistics Section – Ministry of Education
The Primary Completion Rate (PCR) has increased from 59.5 percent in 2001 to 76.8 percent in 2006, with girls consistently lagging behind boys by several percentiles.
Table 3 Primary Completion Rate: 2001 – 2006
2001 2002 2003 2004 2005 2006 Boys 62.2 65.5 71.3 80.3 82.4 81.2 Girls 56.8 60.1 65.2 72.1 72.8 72.4 Total 59.5 62.8 68.2 76.2 77.6 76.8 Source: Statistics Section – Ministry of Education
The transition rate from primary to secondary school was 60 percent in 2006, a marked increase from 46.4 percent in 2002. This can be attributed to the result of an expansion
114 The ratio of all primary school students to all primary school aged children (6-14 year olds) in the population, expressed as a percentage, is the gross enrollment rate. 115 Percentile figures above 100 are explained by high numbers of over-age children in primary school, suggesting poor academic progress and high levels of grade repetition 116 Government of Kenya, Education Sector Report 2009 (2009). 117 Government of Kenya , Education Sector Report 2008 (2008).
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strategy whereby class sizes were increased from 40 to 45 students and additional streams introduced. 118
Secondary school education
Secondary education caters for students aged 14-17 years. The GER for secondary education in the period 2000-2007 was 52 percent for males and 49 percent for females. The NER over the same period for males and females was 43 percent and 42 percent respectively. The secondary education completion rate has improved slightly from 89.5 percent in 2003 to 89.6 percent in 2004. However, the completion rate for boys remains higher than for girls. 119 The reasons for this include the high cost of schooling coupled with increasing poverty levels, unfriendly school environments (especially for girls), socio-cultural factors and the low anticipation of future benefits stemming from education. 120
For primary school, enrollment rates vary considerably between urban and rural areas, and based on socio-economic factors. 121 In rural areas, the gross secondary enrolment ratio ranges from a low of 9.6 percent for the poorest quintile to a high of 34 percent for the richest quintile.
On the other hand, an examination of the economic composition of enrolled students at the primary, secondary and tertiary levels shows that, while primary level children are drawn more or less proportionately from all economic groups, secondary students are drawn disproportionately from upper-income groups. While 30 percent of secondary students are drawn from the richest quintile, fewer than 9 percent are drawn from the poorest per capita expenditure quintile. 122 It is therefore not surprising that the primary reason given by survey respondents for a girl leaving school is related to financial hardship. Other common reasons cited included marriage, death of the father, abuse by children of different tribes in school, caring for siblings, and because of the nomadic lifestyle of the mother.
Table 4 If you daughter is not attending school, what is the reason why she left school?
Response Frequency Valid Percent Need to work to provide income for the family 4 12.90 Education is not a priority for my daughters 1 3.23 Lack of financial resources 16 51.61 My daughter did not want to remain in school 3 9.68 Other family members did not want her to remain in 1 3.23 school Other 16 51.61
Approximately 400,000 students joined secondary school in 2007 and approximately 60 percent of these had sat the Kenya Certificate of Primary Education. In 2008, the government introduced subsidized tuition fees for secondary education. This was expected to translate into an enrollment increase of 200,000 in 2008; however precise statistics are not yet available.
118 Ibid. 119 The completion rate refers to the enrolled students who completed secondary school education. 120 Ibid. 121 This means that there is a large concentration of secondary schools in urban areas as opposed to rural areas despite the fact that the rural population is larger than urban population. 122 UNICEF and KNHR, Situation Analysis of Status of Children in Kenya report , draft report (2009).
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Tertiary education
The percentage of females enrolled in public universities is lower than that of males: 35:65 percent in 2004-2005 and 34:66 percent in 2005-2006. The reverse is the case in private universities, which offer mainly arts-based courses. Here, females made up 54 percent of the student population in 2004-2005 and 56 percent in 2005-2006. 123
Factors exacerbating gender disparity in education
The survey revealed that 89.2 percent of respondents with a school-aged daughter had enrolled this daughter in school. It also revealed, however, that the average age at which a daughter left school was 14 years. This suggests that while many girls attend primary school (which is compulsory and free), fewer go on to enroll in secondary education.
This is consistent with desk-based research findings that also indicate a Figure 3 Age at which daughter left school level of gender inequality in Kenya’s education system. Girls are less likely 7 to attend school, to remain in school or 6 to achieve in education when 5 compared to their male counterparts. 4 3 The primary factors contributing to this 2 Frequency situation can be grouped into ‘in school 1 factors’ and ‘out of school factors’ as 0 discussed below. 1 6 7 10 12 13 14 15 16 17 18 19 20 21 23 26
Age Out of school factors
Poverty
Poor households have limited capacity to support and invest in their children’s education. Girl children, however, are more likely than their brothers to be withdrawn from education. One study has shown that in the arid and semi-arid areas, and the slums in urban centers, girls as young as 11 years of age were forced into early marriages so that parents could obtain a dowry to pay for, among other things, the fees for boy children’s secondary education or training. 124 A disturbing 51.6 percent of survey respondents also indicated that the primary reason for their daughter not attending school was due to a lack of financial resources.
Girl-child labor
Child labor is a key factor preventing children from attending school in Kenya. Common activities for boys include fishing, mining, or working in coffee, tea, sugar and sisal plantations, while one of the main activities for girls is domestic work.125 Girl children are often employed within the house to care for siblings or sick relatives, attend to domestic chores, or assist in a parent’s small-scale business. Such labor is often critical to the functioning of the household. As a result, some parents perceive the opportunity cost of sending their daughter to school to be too high.
123 Kenya National Bureau of Statistics, Economic Survey 2009 (2009). 124 Girl Child Network, The Status of Gender Equity and Equality in Primary Education in Kenya , Draft Report (2004) xii. 125 Ibid.
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Parents’ perceptions and attitudes towards schooling and girls
Most children, and girls in particular, especially those in rural areas, fail to enroll in or complete primary schooling because their parents do not place a sufficiently high value on education. In many of these cases there is a correlation between a child’s non- enrollment and an uneducated and/or illiterate parent. There is also a widespread belief among parents that boys are generally more intelligent and work harder in school than girls, whereas educated girls, when they mature, are more difficult to deal with and become pregnant. The implication is that girls are less likely to be given the opportunity to attend school. Such messages are also internalized by girls with a resulting belief that they cannot excel at school. 126
Traditional socio-cultural practices and rites
Two traditional socio-cultural practices in particular hinder a girl’s education: early marriage and female genital mutilation (FGM). FGM is common practice in particular districts and communities of Kenya. National statistics place the prevalence of FGM at 32 percent. 127 FGM can have serious health implications that may in turn prevent girls from attending school. Early marriage is also common across the country and usually takes place at the behest of parents and or relatives. 128 It should be noted that the survey revealed that in cases where a daughter was not attending school, 51.6 percent of respondents identified reasons not included in the survey, one of which was marriage.
Another reason identified in the survey was the nomadic way of life adopted by the pastoral community. This also affects a girl’s access to formal education as families are continuously relocating, looking for pasture and water. Such children rarely attend school with boys mainly herding cattle and girls attending to domestic chores. School attendance is not regarded as a priority by the parents of such children, particularly with girls, even when learning facilities are accessible. 129
Insecurity and distance from school
Insecurity and distance from school are ‘twin factors’ inhibiting school attendance. In a study of parents in arid and semi-arid areas in North Eastern Province, Eastern Province, Rift Valley, and the Coast, parents indicated that distance from school coupled with instability in their regions were the primary factors prompting them to not send or to withdraw their children from school. Parents of girl children expressed particular concerns relating to their daughters’ safety, with a heightened fear that their children might be raped, kidnapped, or killed. 130 In such situations, parents chose to either not send their children to school, to withdraw their enrollment when the security threat became acute, or, in cases where children had to walk long distances to school, to delay their enrollment until a later age (9-10 years) when they could physically cope with such distances and could escape from ‘harassers’ if required.
Other social factors
In some cases children do not attend school voluntarily. This is usually the result of peer pressure or the absence of strong role models. 131 The high correlation between student pregnancy and school drop-out rates is another factor contributing to girls withdrawing from school.
126 Ibid. 127 Female Genital Cutting Education and Networking Project, FGC Around the World (2009)
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HIV/AIDS
HIV/AIDS affects an increasing number of children in Kenya. Many children have been orphaned and others are required to care for sick parents or other relatives. Regional studies conducted by UNICEF and UNAIDS indicate that in such situations girls are more vulnerable to withdrawing from school than boys. 132 It should also be noted that the survey revealed that in cases where a daughter was not attending school, 51.6 percent of respondents identified reasons not included in the survey, two of which were caring for siblings and the death of a father.
In-school factors
Gender insensitivity within schools
Most schools in rural areas have dilapidated classrooms with non-cemented floors and non-shuttered windows. Such classrooms have few desks for pupils and in some cases it is necessary to sit on makeshift chairs or stones. Some lack or have poor quality toilet and sanitary facilities. In many cases schools do not offer separate toilet facilities for boys and girls, which can cause particular distress for menstruating girls.133 Poor quality sanitation facilities also present health risks which create disincentives for girl school attendance. In some cases, this loss of dignity and privacy causes girls to drop out of school completely. 134
Sexual harassment and abuse
Sexual abuse and harassment of girl children is common in Kenyan schools. Perpetrators include both teachers and other students,135 creating disincentives for girl school attendance. It should be noted that the survey revealed that in cases where a daughter was not attending school, 51.6 percent of respondents identified reasons not included in the survey, one of which was physical abuse at the hands of other students.
Pregnancy
There is a significant correlation between cases of student pregnancy and withdrawal rates. 136 Reports indicate that 8,000-10,000 girls drop out of school every year due to pregnancy. A key factor is that less than 40 percent of parents provide their children information about sex and sexuality. 137 A Gender and Education Policy developed in 2003 makes provision for the re-admission of girls who become pregnant while still at school, allowing them the choice of returning to a different institution to avoid stigmatization. The policy, however, does not stipulate punitive measures for school principals who refuse to re-admit such girls. 138
Proposed interventions
Despite significant progress made in recent years to address girl child education requirements, a number of challenges remain. Many of the factors impacting negatively
132 O Abagi, Baseline Study of Basic Education for Girls and other Vulnerable Groups in Rwanda (2003). 133 A Olouch, Africa at large: Girl-child schooling is still a problem , Afrika.no (2004)
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on girls’ education have proved difficult to resolve, given long withstanding socio-cultural norms and practices, both within the classroom and the home.
Lobbying central government
Advocacy work should be undertaken to encourage the government to establish a specific budgetary allocation for the activities of the Gender Unit in the Ministry of Education.
Lobbying for the right to education being entrenched in the constitution
The right to education in Kenya is not anchored in the national Constitution, diluting Kenya’s legal commitment to free basic education. Kenya is currently redrafting its Constitution and steps should be taken to ensure that the right to education is formalized.
Effective legislation
Free compulsory basic education is currently provided for in education policy and the Children’s Act 2001 139 but not in the central body of legislation governing the provision of education in Kenya; the Education Act 2001 . The Education Act 2001 should be amended in this regard, to integrate penalties on parents who fail to enroll their children in school, and to reflect Kenya’s international obligations as States Party to a number of conventions relating to the provision and protection of children’s right to education.
Incorporating child labor laws in education policies
The goals of universal education and the elimination of child labor are inextricably linked. Ensuring that children participate in quality education before the minimum age of entry into the workforce is a critical step in the struggle against exploitative labor practices. Such issues need to be mainstreamed into education policies, programs and strategies.
Bursaries for girls in need
Increased government budgetary allocation for education should include secondary school subsidy allowances, particularly for girls coming from poor socio-economic backgrounds. Education bursaries should be allocated transparently and with a view to eliminating the gender gap in education. Separate bursary funds should be established for girls living in poverty.
Adequate infrastructure and sanitary provisions
Steps should be taken to improve the infrastructure and sanitation facilities in schools. Sanitary towels are still out of reach to many adolescent girls. Lobbying should occur to encourage price subsidies to ensure that both urban and rural girls can access these items. Moreover, sanitation facilities should be provided in all schools, allowing, at the minimum, for separate toilet facilities for boys and girls.
139 Section 7(2) of the Children’s Act 2001 .
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Section 4 Property rights
KENYA COUNTRY REPORT
Key Findings
! Even though women statistically generate more farm income than their male counterparts and constitute the majority of the agricultural labor force, property ownership in Kenya remains largely dominated by men. Poor awareness of national laws governing property rights for women is a major hindrance to enabling women to enjoy their equal rights to property ownership.
! Gaps in national legislation result in women and girls failing to realize their legal rights to own property. Legal pluralism and the strength of Kenyan customary law also exacerbate the enjoyment of such rights.
! Further awareness-raising of women’s legal rights should be facilitated, particularly regarding the availability of legal aid services. Moreover, the capacity of women to enforce their own property rights, and that of their daughters’, should be strengthened.
Property rights in Kenya
The term ‘property rights’ is used in this paper to refer to the legal ability to control the use and sale or gift of a good or resource. While the term often denotes only immovable property (land and houses) it also encompasses rights of control and use over movable property such as livestock, televisions, vehicles and personal items.
In pre-colonial Kenya, land was communally owned and could only be transferred with the approval of (mostly male) clan elders. 140 Women’s access to property was generally dependant on their relationships with male relatives (husbands, sons, brothers, or fathers) with the primary means by which women enjoyed property being through marriage. It should be noted that although women’s property rights were limited in this way, social structures protected both women and men against exclusion from land. 141 With the advent of colonization, however, communal land tenure was eroded and replaced with an individual land tenure system. Consultations with the clan elders prior to the transfer of land were dispensed with, eliminating the limited protections once afforded to women. 142
Today, the Kenyan economy is agrarian-based with land being the principal capital asset. Although women make up a majority of the population (52 percent), constitute 75 percent of the agricultural labor force and provide 60 percent of farm income, Kenyan society remains patriarchal in nature and gender inequality pervades many aspects of life, including property ownership. 143 One study revealed that men own up to 76 percent of agricultural land, while women own only 8 percent and 11 percent is jointly owned. 144 Only 6 percent of those involved in the study believed that women should register
140 In most indigenous Kenyan communities the term elders was synonymous with older men of a certain age group or generation: E Cotran, Casebook on Kenya Customary Law (1987). 141 J Walsh, Double Standards: Women’s Property Rights Violations in Kenya , Human Rights Watch Vol. 15(5) (2003) 7. 142 Ibid. 143 Federation of Women Lawyers, Kenyan Laws and Harmful Customs Curtail Women’s Equal Enjoyment of ICESCR Rights (2008) available at
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property in their own names. 145 A 2009 US State Department report indicated that females hold only 6 percent of land titles. 146
Such impediments on women’s property rights hinder development by contributing to low agricultural production, food shortages, underemployment, and rural poverty. Securing women’s property rights is important for other reasons also. For example, it is widely recognized that secure property rights give rise to a host of other benefits including social acceptance, income generation opportunities, livelihoods security and the potential to access capital via mortgage or renting. 147
Legal framework governing property rights in Kenya
Property ownership in Kenya is governed by the Constitution and other statutes such as Registration of Land Act (1963), Registration of Titles Act (1948), Married Women Property Act (1882), and the Law of Succession Act (1981).
Kenya has ratified various international conventions that are instrumental to promoting equal land access and non-discrimination in property ownership including the CEDAW (1979), ICCPR (1966), ICESCR (1966), African Charter on Human and Peoples’ Rights (ACHRP) (23 January 1992). Kenya has also signed but not ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (17 December 2003). The provisions contained therein have largely not been domesticated within Kenyan law.
Kenya’s legal system comprises both statutory and customary law and this plurality has resulted in conflicts regarding guarantees of human rights and their extension to women and girls. Within Kenya’s legal hierarchy, the Constitution sits at the apex, superseding any other law. 148 This instrument prohibits discrimination of persons including on the basis of gender. 149 However, the effect of this provision has been tempered by a proviso that allows for discriminatory laws with respect to adoption, marriage, divorce, burial and devolution of property upon death.150 This is in direct contravention of the international instruments to which Kenya is a party.
The place of customary law is spelled out in section 3(2) of the Judicature Act (1967), which states that African customary law shall govern in “civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law”. Customary laws largely exclude women from inheriting, owning, and possessing land, and few women enjoy ready access to justice to be able to bring out the repugnancy aspect of a rights denial.
Means of acquiring property by women in Kenya
Individual purchase
Prior to the individualization of land ownership through the issuance of title deeds, land in Africa was held communally. Under this system, emphasis rested not on ownership but on access rights, which were determined on the basis of membership to a group, clan, or to the family that owned that land. With the advent of individualized registration
145 Ibid. 146 United States Department of State, Human Rights Report-Kenya (2009). 147 Kameri-Mbote and Mubuu, above n 145. 148 See: United States Department of State, Background Note: Kenya (2008)
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in these areas, an adjudication and consolidation exercise was initiated that would lead to property being registered under the Registered Land Act (1963). Sections 27 and 28 of the Act provided that the first registered proprietors or owners held such titles free from any adverse claim, and further that such a title was incapable of being impeached or questioned on any grounds. Invariably, such property tended to be registered in favor of male members of the community. The effect of a strict interpretation of the above law is that customary law rights (which enabled women access to land) to land were extinguished when property was registered.
Any Kenyan citizen can purchase land in accordance with the procedures set out in the various systems of land registration. The complexity of land tenure law, however, is an impediment to women exercising such rights as the majority of Kenyan women are poor, illiterate and lack awareness of their legal rights. 151 Some laws also facilitate discrimination against women. For instance, the Land Disputes Tribunal Act (1990) provides that the District Land Disputes Tribunal shall settle disputes according to customary law, which, as previously discussed, fails to recognize women’s right to own land. Further, women are rarely represented on tribunals and the decisions handed down are influenced by members’ poor knowledge of relevant land laws and corruption. 152
Matrimonial property
With respect to customary law, many African communities are patrilineal with husbands considered to be the sole property owners and wives being among this property. Upon divorce, wives will generally leave the home with their self-acquired property, but matrimonial and landed property will invariably remain with the husband. Under customary law, wives are widely believed to be incapable of contributing substantially, if at all, to accumulation of family wealth. 153
Kenya lacks post-independence statutory guidance on the division of matrimonial property in the case of divorce. Instead, it relies on the Married Women Property Act (1882) — a statute of general application that is applicable by virtue of s.3 of the Judicature Act (1967). There is, however, a Matrimonial Property Bill (2009) pending before Parliament.
Section 17 of the Married Women Property Act (1882) allows for an application by either spouse for a court determination of his or her share of disputed property acquired during a marriage. The court is given the power to order such a settlement in situations of divorce or nullity of marriage. Over the years, there have been varying interpretations as to what elements of matrimonial property wives are entitled to receive. In Karanja v Karanja (1976), 154 the court rejected customary law and concluded that a presumptive trust in favor of a wife applied with respect to property registered only in the husband’s name in situations where both husband and wife were in salaried employment and contributed to household expenses and children’s education costs. In this case the court awarded the wife one-third of the property.
In Essa v Essa the court held the Act applied equally to Muslims as it did to non-Muslims in Kenya. 155 The court awarded the wife a half-share in one of the properties based upon evidence that she had made payment from her business towards the property’s purchase.
151 Walsh, ‘Double Standards: Women’s Property Rights Violations in Kenya’, Human Rights Watch 15(5) (2003). 152 Report of the Commission of Inquiry into the Land law System in Kenya (The Njonjo Commission), (2002) 80. 153 E Cotran, above n 17. 154 (1976) Kenya Law Reports, 307. 155 1995 LLR 384 CAK. See
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In Kivuitu v Kivuitu the court ruled that, even without clear evidence regarding the actual contributions made by both spouses, property acquired through a joint venture was to be considered joint property. 156 This case seems to suggest that a contribution could be presumed by virtue of a wife’s participation in managing the family’s affairs. As such, in a dispute over property registered only in the name of a husband, the starting point would be the extent of the wife’s contribution and what value to attach to it, not whether she contributed at all. However, in Echaria v Echaria the Court of Appeal ruled that the wife’s contribution had to be proved. 157 This has important consequences for the security of women’s property rights as in Kenya as most women are not employed and hence their contribution towards the acquisition of matrimonial property can be difficult to quantify.
Inheritance
1. Widow’s rights The Law of Succession Act (1981) applies to both intestate and testate succession for all Kenyans with the exception of Muslims and the indigenous inhabitants of districts where customary law applies. The Act provides that widows shall be granted a life interest (a right of use and utility) in matrimonial property in situations where the deceased dies intestate. 158 This is terminated if they remarry. 159 She holds the property as a trustee and stands in a fiduciary position in relation to the property. This was confirmed in the matter of the Estate of Basen Chepkwony ( deceased ) [1993] 160 when the court held that where the property in dispute is land, such land cannot be absolutely registered in the name of the surviving spouse as she enjoys only a life interest and holds the property in trust for surviving children and other heirs.
These provisions may be argued to discriminate against women in that they cannot exercise rights over property that they may have helped acquire. Section 37, however, allows the surviving spouse, subject to the consent of co-trustees and all adult children, or the consent of the court, to sell any of the property for their own maintenance. 161 Where the subject property is immovable, court consent is mandatory, reflecting the importance attached to family land in Kenya.
Where a person dies testate (leaving a will), there is nothing in the law preventing a husband from bequeathing property including land to his wife or other female members of the family.
2. Daughter’s rights Section 38 of the Act provides that both sons and daughters have equal rights to inherit property. 162 In Re the Estate of Grace Nguhi Michobo (deceased) , an application for confirmation of grant of letters was refused on the grounds that it did not comply with section 38. 163 The proposed distribution excluded a married daughter, provided a small share of the estate to an unmarried daughter, and larger shares to the sons of the deceased. The court held that there should be no discrimination between male and female children and that the property should be distributed equally. Similarly, in the matter of Mary Wanjiru Thairu ,164 the deceased was survived by a son and six daughters. The son attempted to inherit the entire estate relying upon Kikuyu customary
156 1985 LLR 1411 CAK. See
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law. His application was rejected on the basis that it did not comply with section 38 which required that the property be shared equally among all seven children.
The courts have been quite active in ensuring that the property rights of daughters are not abused. In the matter of the estate of the late Wanjihia Njuguna 165 the court rejected a proposal to share the estate between a widow, a son and daughter-in-law of the deceased on the grounds that the application did not disclose whether the deceased had any daughters. The court ordered the applicant to file a fresh application making a full disclosure of all the deceased’s children.
The courts have rejected applications for unequal share divisions, even in situations where there is evidence that one child contributed to the property’s acquisition, or where female children consent to an unequal division. In the case of Patrick Mungai Kugega , a son opposed an equal division of the property on the grounds that he had provided the deceased with money to purchase the assets,166 the court found that section 38 required an equal distribution of the property between all children and dismissed the objection.
Although the courts have been active in protecting the property rights of girls, nearly 50 percent of mothers surveyed attributed a lack of awareness regarding the appropriate course of action to take in order to protect their daughter’s property rights.
Table 5 Reason respondent did not seek to protect her daughter’s property rights
Valid Response Frequency Percentage Did not know what to do 16 47.06 Did not think it was a problem 5 14.71 Did not know from whom to obtain assistance 5 14.71 Others had already made the final decision 5 14.71 Others 3 8.82
In the matter of the estate of Ela Warue Nthawa , the deceased was survived by two sons and one daughter. 167 A grant of letters of administration was made to the sons with the consent of the daughter. The administrators proposed to give the majority of the property to the sons and the daughter only a small portion, and to divide the proceeds of a bank account between the two sons only. The court, relying on section 38, held that the property should be shared equally among all the children and rejected the administrator’s proposed distribution.
The Law of Succession Act (1981) does not apply to Muslims. Under Islamic law, no non- Muslim is allowed to inherit the estate of a Muslim. Secondly, an illegitimate child cannot inherit from his or her father, but only from their mother. These principles were stated in the case of Chelanga v Juma in which children of the deceased were prevented from inheriting a share of the estate of their deceased father for the reason that they were both illegitimate and the daughter was a non-Muslim. 168
165 Succession Cause 533 of 2002. 166 2005 eKLR. Available at
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3. The rights of other relatives Section 39 of the Law of Succession Act (1981) provides that where the intestate leaves no surviving spouse or children, the property should be distributed among the deceased’s family members in the following order of priority:
1. Father; if dead 2. Mother of the deceased; if dead 3. Brothers and sisters, and where siblings are dead their share should devolve to their children in equal shares; if no such relatives 4. Half brothers and half sisters and any child or children of the deceased’s half brothers and sisters in equal shares; if there are no such relatives 5. Relatives of the deceased who are in the nearest degree of consanguinity up to and including the sixth degree in equal shares including cousins, uncles etc.; if no such relatives can be traced 6. The net intestate estate devolves upon the state in bona vacantia and the estate is liquidated and the proceeds paid into a consolidated fund.
This provision discriminates against women insofar as the father precedes the mother in the order of priority. As far as the law permits, however, the courts have been active in upholding the gender-neutrality of inheritance divisions. Nonetheless, it should be noted, in this context, that decisions of the High Court and the Court of Appeal are the only decisions reported in Kenya. Therefore, a comprehensive picture of the judicial approach to female property and inheritance rights, including the rights of girl children, is hard to ascertain. In the case of The Estate of Muchiri Komu Nakuru H.C. Succession Cause No. 441 of 1998, the deceased was survived only by his brothers and sisters. One brother applied for and obtained a grant of letters of administration and listed the beneficiaries as himself, his brother and a sister-in-law, excluding his sisters. The court revoked the grant made to the brother, holding that under section 39, the estate was to be divided among both the brothers and sisters in equal shares.
Likewise, in Re the Estate of Wamuhu Murimi (deceased ), the deceased’s nephew claimed that the deceased’s niece should not be allowed to inherit on the grounds that she was married. 169 He cited the Kikuyu customary law, which excludes married daughters from inheriting from their parents. The Court held that since the deceased died in 1994, the Law of Succession Act (1981) was applicable and overrode Kikuyu customary law. The Court ordered that the deceased estate be distributed equally among the nephews and nieces in equal shares, their gender or marital status being immaterial.
4. The rights of wives and daughters in polygamous families Section 40 of the Law of Succession Act 1981 provides for the division of the property of an intestate where the deceased is a polygamist. The estate of such a deceased person should be divided as follows:
1. His personal and household effects and residual estate should first be divided among the houses according to the number of children in each house; 2. Distribution of the estate should thereafter be on the basis of the provisions of sections 35-38 of the Law of Succession Act (1981).
In short, the estate is to be divided in accordance with the number of children in each house. A widow is treated as an additional unit to the children.
169 2005 eKLR. Available at
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In the case of Mary Rono v Jane Rono & Another the High Court had distributed the estate according to the customary law and the Law of Succession Act (1981) 170 . The judge found that section 40 of the Act allowed equal distribution among the children irrespective of gender, but considered the fact that the daughters might marry and inherit property from their new families. Six daughters were each given five acres and three sons were each given thirty acres. The Court of Appeal overruled the High Court’s finding and required that in a polygamous setting the property should be divided equally among all children. The distribution was revised and each of the children was provided with equal shares.
Factors that contribute towards the hindrance of women’s property rights
Discriminatory attitudes
Many men, and some women, believe that women should not be entitled to property rights, or at least not on an equal basis with men. These attitudes influence the interpretation of customary laws, and vice-versa, a cycle that entrenches women’s subordination and inequality. 171 Social norms and mores also operate to discourage women from pursuing their legal rights as this is perceived as her “competing against her male relatives.”172 It should be noted that in the survey, 82.5 percent of respondents indicated that women should have equal rights to property/inheritance.
Resilience of customary law
Despite strong statutory provisions upholding women’s property rights, poor access to justice in Kenya means that most women (particularly poor women) rely upon local authorities — both governmental and customary — to resolve land and property-related disputes. Although informal dispute resolution can help limit the financial and social costs of claiming property rights, local officials are more inclined to apply customary law, which, as discussed above, fails to uphold women’s property rights. 173 Local officials frequently maintain discriminatory views on female inheritance, ownership and possession of land. 174
Poverty
Poor availability of legal aid services, and the high costs associated with alternative legal services means that many women cannot afford to pursue a property action in court.
Lack of awareness
Awareness regarding women’s property rights is poor, particularly among women themselves. This is consistent with the survey findings, where even though 81.9 percent of respondents correctly indicated that women were allowed to own property, 56.4 percent believed that women were not permitted to inherit property on an equal basis with men. To a certain extent, this may reflect the complexity surrounding female access to property in Kenya. Inapplicability of the Law of Succession Act 1981 for Muslims and
170 2005 eKLR. Available at
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certain communities where customary laws apply again highlights the ambiguity of the issue for many women in Kenya. Risks associated with denial of property rights
Women in poverty
Failure to uphold women’s property rights, particularly through inequality of inheritance, perpetuates the poverty cycle for women and decreases their likelihood of being able to enjoy their own property for livelihoods purposes.
Exposure to HIV/AIDS
Failing to ensure equal property rights upon separation or divorce discourages women from leaving violent marriages. Apart from the obvious risks this creates for her and her children’s physical and psychological wellbeing, these women risk heightened exposure to HIV infection. The correlation between HIV/AIDS and domestic violence is well established, grounded on evidence that domestic violence is associated with coercive sex, which diminishes women’s ability to negotiate safe sex and condom use, and impedes women from seeking health information and treatment. 175
Low agricultural production
In Kenya, women constitute 80 percent of the agricultural labor force and provide 60 percent of farm income. Restrictions on women’s property rights hence negatively impact upon food production and economic growth.
Proposed interventions
Education
Continued participation in school by all girls should be encouraged in order to improve their capacity to enter the labor force, earn an income and thus acquire property independently, as opposed to through marriage. The government should prioritize education as essential to the legal empowerment of women and girls in Kenya.
Effective legislation
Gender biases remain evident in national legislation governing property rights in Kenya. This perpetuates discriminatory attitudes and continued belief in certain customary laws pertaining to the property rights of women and girls.
Awareness
Public awareness campaigns should be implemented to focus on the important role women play in wealth generation and the economic growth outcomes that can ensue when women’s property ownership is supported. Campaigns should also target the promotion of women’s legal rights in the areas of inheritance, division of property upon divorce and property ownership. Local authorities and traditional leaders should also be trained in the correct jurisdictional limitations of customary law and how to access the formal legal system.
UN-HABITAT, which is headquartered in Kenya, supports a Women’s Land Access Trust in Kenya, which provides affordable loans to females for housing, as well as provides
175 Joireman, above n 172; Y Ertürk, Promotion and Protection of all Human Rights , Report of the Special Rapporteur on violence against women, its causes and consequences (2009) A/HRC/11/6/Add.5.
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business advice and training to female entrepreneurs that allows them to maximize their income and make use of micro-credit loans from revolving funds. 176 Moreover, certain NGOs — including the Federation of Women Lawyers (FIDA), Kenya — have worked to enhance awareness of female rights to property and inheritance, and trained females to provide information on these topics to their communities. 177
Legal aid
Legal aid services, particularly targeting women, should be expanded to facilitate litigation in cases of discrimination regarding property acquisition or disinheritance. Access to such services will also need to be conveyed to women, particularly those who are otherwise uninformed of their legal rights.
As an example of good practice, the International Commission of Jurists (Kenya Section) helped facilitate the establishment of a Family Division of the High Court of Kenya to provide specialized arbitration of cases concerning, inter alia , property and maintenance, and initiated the training of judicial officers with the aim of correcting gender biases within the judicial system.178 FIDA also runs an access to justice program that offers legal assistance and trains women to represent themselves in court. 179
176 UN-HABITAT, Kenya’s Low Income Earners Poised to Get Housing (2008)
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Section 5 Child labor
KENYA COUNTRY REPORT
Key findings
! Although legislation reflects both the international instruments to which Kenya is a party and current societal trends, effective socialization is lacking, perhaps explaining the significant confusion exhibited by survey participants as to the legal minimum age at which children are allowed to enter the workforce.
! A lack of gender disaggregated data in relation to child labor, coupled with the inherently private nature of domestic work (the sector that employs a large number of young girls) prevents an adequate understanding of the vulnerabilities faced by girls engaged in exploitative work practices.
What is child labor?
Child labor is defined for the purposes of this research as work that deprives children of their childhood, their potential, their dignity, and that is harmful to their physical and mental development. 180
It is important to distinguish child labor from work activities that do not negatively impact upon a child’s health or personal development, or interfere with schooling. Such activities might include household chores, assisting in a family business or tasks to earn pocket money outside of school hours and during school holidays.
According to UNICEF, ‘child labor’ refers only to forms of employment or unpaid work that violate the rights of the child. 181 The International Labor Organization (ILO) Convention 138 (1973)and the ILO Convention 182 (1999) (both of which Kenya has ratified) define child laborers as:
! All children younger than 12 working in any economic activity; ! Children aged 12–14 engaged in more than light work; and ! All children engaged in the worst forms of child labor (discussed below). 182
ILO Convention 138 establishes three minimum age limits for employment:
! 18 years: for work that may jeopardize the worker’s health, safety or morals; 183 ! 15 years: for full-time work that does not pose a risk to the worker’s health or prejudice school attendance; 184 and ! 13 years: for ‘light work’ that does not pose a health risk or prejudice school attendance. 185 ILO Convention 182 defines the “worst forms of child labor” as:
a) All forms of slavery or practices similar to slavery such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict;
180 ILO, About Child Labour, International Programme on the Elimination of Child Labour
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b) The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;
c) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; and
d) Work that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. 186
Child labor in Kenya: current statistics
There is significant evidence that Kenyan children are trafficked within the country for purposes of forced domestic servitude, street vending, agricultural labor and sexual exploitation. 187
According to national statistics, Kenya has an estimated 1.9 million children aged between 5–17 years involved in child labor. 188 About 800,000 of these are engaged in the worst forms of child labor. 189 The majority of working children (43.6 percent) fall within the 10-14 year age bracket, and 30.1 percent fall within the 15-17 year age bracket. 190 According to UNICEF statistics, between 1999 and 2007, 26 percent of children in Kenya aged 5-14 years were engaged in child labor. This represents 25 percent of all girls and 27 percent of all boys. 191
Children represented by the category ‘Other’ in Figure 4 192 work in construction, wholesale Figure 4 Sectors with child labor and retail trade, mining, and manufacturing, Commercial particularly in textile mills and chemical 17.90% Agriculture factories. Children are engaged in both the 34% Other ‘worst forms of child labor’ and ‘hazardous’ work, particularly in the manufacturing and 23.60% Subsistence agricultural sectors. 193 Children living in Sector poverty and street children are at the highest Domestic risk of becoming engaged in hazardous 24.50% Sector employment, such as commercial sex work or illegal activities under the control of organized criminal groups. 194
The percentage of children working in the rural areas is 19.7 percent of the total rural child population, while for the urban areas the percentage of working children is 9 percent. However, it is important to note that in urban centers, young girls are more likely to be exploited within the privacy and under the guise of domestic work, thus making statistics difficult to obtain to be able to realistically represent the reality of child labor in urban centers. The table below shows the geographical distribution of child laborers in Kenya.
186 Article 3. 187 United States Department of State, Trafficking in Persons Report (2005) 134. 188 United States Department of Labor, above n 5. 189 Central Bureau of Statistics, The 1998/99 Child Labor Report (2001). 190 Ibid. 191 UNICEF, above n 182, 150. 192 Central Bureau of Statistics, above n 189. 193 Integrated Regional Information Network (IRIN), Kenya: High rates of child labor blamed on poverty (2002). 194 United States Department of Labor, 2001 Findings on the Worst Forms of Child Labor – Kenya (2002) available at
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Table 6 Child labor distribution
All Children aged Working Children Percentage Area/Province 5-17 years Aged 5-17 years working (million) (million) Rural 8.6 1.7 19.7 Urban 2.3 0.2 9.0 Total 10.9 1.9 17.4 Province Nairobi 0.6 0.06 11.4 Central 1.4 0.24 17.2 Coast 0.8 0.15 19.0 Eastern 1.8 0.35 19.1 North Eastern 0.3 00.2 9.1 Nyanza 2.0 0.30 13.5 Rift valley 2.6 0.50 19.7 Western 1.4 0.30 19.8
Twenty-five percent of all girls between 5-14 years are engaged in child labor. 195 Most of the domestic workers are girls aged between 10-18 years. Eleven percent are less than 10 years of age. 196 Most domestic child workers live with their employers and work under difficult conditions. 197 They are usually employed full-time which denies them the rights to growth, recreation and education.
The extent to which child labor occurs within traditional populations is not well documented. This may mean that the incidence of child labor among Kenyan pastoralists and hunter-gatherer populations is ignored in national statistics. 198
Legislation governing child labor
The Kenyan Constitution prohibits slavery servitude and forced labor. 199
Kenya is party to a number of international instruments that have provisions relating to child labor. Kenya has ratified the CRC, the ACRWC, ILO Convention No. 138 on the Minimum Age for Employment 1999 200 and ILO Convention No. 182 on the Worst Forms of Child Labor 1973.201 Kenya also became a member of ILO’s International Program on the Elimination of Child Labor in 1992. Although Kenya has not ratified the ILO Convention No. 181 on Private Employment Agencies, the government has largely domesticated the ratified instruments as described below.
The Employment Act 2007 governs and regulates employment in Kenya. This Act increased the age definition of ‘child’ from 16 to 18 years 202 to synchronize it with the Children Act 2001 . Part VII of the Employment Act 2007 contains protective provisions for children. It prohibits the worst forms of child labor, 203 importing the definition contained in ILO Convention 182 to include slavery, child trafficking, debt bondage, the
195 UNICEF, State of the World’s Children Report (2009). 196 ILO Geneva, Child Labour: Targeting the Intolerable (Report prepared for the International Labour Conference, 86 th Session, 1998) 12. 197 Ibid. 198 J O Kaunga, Review of Existing Child Labor Initiatives, Experiences and Lessons Learned and Strategies for further interventions in selected Pastoralists communities in Kenya , Final Report of the Project to Promote ILO Policy on Indigenous and Tribal peoples Rights (2008) 7. 199 Section 73. 200 Ratified on 9 April 1979. 201 Ratified on 7 May 2001. 202 Section 2. 203 Section 53.
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sale of children and procuring children for prostitution. 204 It also prohibits the employment of children aged less than 13 years, but allows children aged 13-16 years to perform light work provided that this is not harmful to their health or development and does not interfere with education. 205 The Act places restrictions on employing children aged 13-16 years to work machinery 206 or at night in industrial settings. 207 However, there is an exemption for children aged 13-16 years if they are employed under an apprenticeship subject to the provisions of the Industrial Training Act 1960 .208 Employers are also mandated to keep a register detailing particulars such as the names and ages of all children employed. 209
The Employment Act 2007 represents a significant step forward in terms of child protection. It introduced provisions relating to the worst forms of child labor; extended the application of the minimum age for admission to employment for all sectors (not only the industrial sector); and included unpaid work within the purview of child labor (previously child labor only referred to remunerated employment). The Act only falls short in the following respects: it does not define ‘light work’, it does not provide guidelines on the evidence that employers should look for to confirm proof of age, 210 and there is the possibility that children aged 17 years may not be fully protected from child labor under the current definition.
Another area of concern is that the penalties against employers for engaging child laborers are inadequate. The maximum penalty, including for offences relating to the worst forms of child labor such as slavery, is imprisonment for a period of 12 months, a fine of Kenyan shillings two hundred thousand shillings (US$ 2700) or both. Further, the employer can be exonerated if they can demonstrate a reasonable belief that the child met the age specifications detailed in the law. 211 The Act does not establish penalties for parents and/or guardians who allow or encourage their children to engage in child labor.
The Children Act 2001 provides that primary education for all children in Kenya is compulsory. It also provides that every child should be protected from economic exploitation and any work that is likely to be hazardous, that might interfere with a child’s education, or is considered harmful to a child’s health or physical, mental, spiritual, moral or social development. 212 It does, however, permit children above the age of 16 years to engage in work (but does not detail the type of work or period of employment). The Act establishes parental responsibilities including a duty to protect children from neglect, discrimination and abuse. 213 The penalty for neglecting such responsibilities is two hundred thousand shillings (US$ 2700), imprisonment for a term not exceeding five years, or both. 214
Under the provisions of the Industrial Training Act 1960,215 a minor (defined under section 2 as a person under 15 years of age) may enter into an apprenticeship with the authorization of his/her parents or guardian or, in the absence of such authorization, a district officer or labor officer. 216
Recognizing the harmful consequences that child labor has on long-term development, various policy measures have been adopted to address the growing problem of child
204 Section 2. 205 Section 56. 206 Section 58. 207 Section 59. 208 section 57. 209 Section 61. 210 Section 63 (3). 211 Section 64 (3). 212 Section 10. 213 Section 23 (2) (b). 214 Section 127. 215 Chapter 237 of the Laws of Kenya. 216 Employment Act section 55 (1).
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labor in Kenya. The draft Sessional Paper on Child Labor in Kenya 2000 affirms the Government’s commitment to fulfilling its obligations under various international instruments. It also highlights the nature and magnitude of the child labor problem, the vulnerability of child workers, determinants and consequences of child labor, and the need to coordinate and mainstream specific interventions in order to fight child labor. The Ministry of Labor has developed a National Plan of Action on the Elimination of the Worst Forms of Child Labor in Kenya (2004-2015) (hereafter National Plan of Action). 217 Further, a National Child Labor Policy is currently being reviewed to reflect recent developments including the introduction of free primary education and the National Plan of Action. 218
Institutional framework
The existing institutional framework for combating child labor comprises the Ministry of Labor, Ministry of Gender, Children and Social Development, police, courts and provincial administration (including chiefs, sub-chiefs and local authorities).
The Ministry of Labor is mandated to ensure compliance with national labor laws, international labor practices, as well as to review labor standards and facilitate the domestication of international conventions and recommendations relating to labor matters. 219 It is also responsible for the implementation and administration of the Employment Act 2007 , the Industrial Training Act 1960 and the other labor laws.
The Department of Labor, within the Ministry of Labor, is responsible for enforcing the Employment Act 2007 and its officers (located in all provinces and districts) are charged with, inter alia , investigating instances of child labor. The Ministry has established District Child Labor Committees (DCLC) and Community Child Labor Committees (CCLC) to monitor the implementation of the National Plan of Action.
The Department of Children’s Services (part of the Ministry of Gender, Children and Social Development) is mandated to enforce the Children Act 2001 . Its responsibilities include sensitizing civil society on the rights of the child and operating and managing the rehabilitation of institutions for children in need of care and protection.
The judiciary plays an important role in upholding the rights of children in Kenya. The Children’s Court is empowered to hear all matters concerning the welfare of children, however, there are no available statistics indicating the number of cases involving child labor. The role of the judiciary is complemented by several government agencies, including the police and provincial administration officers, which work towards strengthening intervention measures against child labor, particularly at the domestic level. 220
The Government of Kenya became a member of ILO’s International Program on the Elimination of Child Labor in 1992. ILO-IPEC Kenya has established various action programs on child labor and several more mini-programs in collaboration with
217 The National Plan of Action is a framework for the national time-bound measures taken by the Kenyan Government as a result of ratifying Convention 182 on the Worst Forms of Child Labour (WFCL). International Labour Office, Decent Work Country Programme: Kenya (2007) 14. 218 Key informant interview (2008). 219 Ministry of Labor, available at
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government agencies, employer and labor organizations, a wide range of NGOs and media-based organizations. 221
Organizations of workers and employers, particularly the Central Organization of Trade Unions (COTU) and its affiliate the Kenyan National Union of Teachers, are active in developing and implementing policies and action programmes geared towards eliminating the worst forms of child labor. 222 The COTU has conducted a survey on child labor practices; raised awareness on the effects of the worst forms of child labor; economically empowered community child labor committees and developed a policy paper on child labor. The Federation of Kenya Employers has also conducted a child labor survey in commercial agriculture; formed child labor consultative committees; and developed employers' guidelines and codes of conduct on child labor issues. 223
Factors contributing to child labor
Poverty
Poverty is an underlying cause of child labor and one that interacts with other factors in mutually reinforcing and complex ways. In the first instance, children gain employment to supplement their family incomes. 224 Long-term, however, this exacerbates the poverty cycle as it limits workforce opportunities for adult family members and prevents children from completing school and finding professional employment later in life.
Conflict
Child labor is more prevalent in conflict-affected areas of Kenya where school programs have been disrupted and adult employment opportunities are scarce. 225
HIV/AIDS
There are 1.1 million children who have been orphaned due to HIV/AIDS, most of whom are working as child laborers. 226 The incidence of HIV/AIDS has created an increasing number of child-headed families. Such children, irrespective of their age, are charged with the responsibility of providing for their siblings. As a result, many are forced to engage in paid employment to earn money for the family. Given their desperation, girls are particularly vulnerable to engaging in prostitution, domestic slavery and other exploitative means of work.
Rural to urban migration
Rapid rural-to-urban migration has contributed to the increasing rate of child labor in urban centers. Many families leave the agricultural sector in search of city-based economic opportunities. When such opportunities do not come to fruition, families often settle in slum areas under difficult living conditions, which, in turn contributes to family disintegration. Many families are left under the headship of women who, being already economically marginalized, are forced (or force their daughters) into prostitution. 227
221 United States Department of Labor
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Lack of awareness
Table 7 What is the minimum age for the employment of children?
Mean 19.18 The majority of the Mode 18 sample surveyed Range 22 believed that the minimum legal age Minimum 8 for employment in Maximum 30 Kenya was 18 years. Only 0.3 percent of respondents were aware that the minimum legal age for employment in Kenya is in fact 13 years. This figure highlights significant confusion and lack of knowledge regarding the legalities of child labor and its ramifications in terms of both penalties imposed and risks to girls’ wellbeing. Many adults, including parents, are also ignorant regarding the harmful and hazardous affects of child labor both on children and society in general. 228 There is evidence that in Kenya some girls are forced by their mothers to be employed as domestic slaves, under the guise of lawful employment.229
Inadequate data
Lack of accurate and comprehensive information on the nature and magnitude of girl child labor poses a serious challenge in terms of devising and implementing combat strategies. Poor data collection also means that much of the work done by children is not reflected in national statistics and is therefore invisible, making it more difficult to generate political support to combat the problem of child labor. 230 Implementation of existing laws is also a serious concern, in part due to resource constraints. 231
Private nature of domestic work
Gathering information on the number of girl laborers employed within the domestic sector is technically difficult because most are confined to their employers’ homes and employers do not declare their workers, usually due to fear of prosecution. 232 Even when labor inspectors do penetrate these premises there is rarely an employment contract between the child worker and the employer, or employers choose to pay an adult intermediary rather than the children themselves.
As previously indicated, this is particularly the case with girls as much of their exploited labor is conducted within the privacy of the domestic sphere. This creates further difficulties in assessing the real protection situation of girls in Kenya and exacerbates the gender disparities already evident in everyday life.
Culture
There are divergences between mainstream attitudes towards child labor, particularly in more traditional areas, and the applicable law. In Kenyan culture, having children working in the household is considered to be part of the socialization process that prepares them for adulthood. Child labor is also an integral part of household labor. 233 For girls, how they engage in domestic duties takes on added significance. A girl’s competence in domestic chores is often considered an advantage as she searches for a
228 M Mutie, Addressing Child Labor through Vocational Training , A Policy Brief (2007). 229 KIPPRA, above n 220. 230 Ibid. 231 US State Department Country Report on Human Rights in Kenya 232 C A Suda, ‘The Invisible Child Worker in Kenya: The Intersection of Poverty, Legislation and Culture’ Nordic Journal of African Studies Vol. 10(2) (2001) 163. 233 S T Nyambari, Child Labor: The Invisible Child Worker (Paper presented at the National Conference on Child Rights and Child Protection in Kenya, Nairobi 9-10 September 1998).
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husband. Such attitudes, coupled with a general lack of awareness regarding the rights of children, contribute to the invisibility and vulnerability of girl domestic workers. 234
A positive 87 percent of survey respondents indicated that they did not believe children should commence work until they were over 18 years of age, and a further 58 percent of survey respondents regarded child labor as a major problem in their communities, while 22.9 percent regarded it as a problem. However, lack of awareness regarding the severe dangers of child labor was also evident, with 41.2 percent of respondents stating that they have never even thought about the issue of child labor. Mothers’ responses to this question provide support for the concerns already noted on the lack of public awareness on the risks associated with child labor in Kenya.
Risks associated with child labor
Lack of education
Child labor poses an enormous challenge to achieving Kenya’s ‘Education for All’ goals by 2015. There are approximately 1.7 million children between 6-14 years who are not enrolled in school and are engaged in child labor, with girls comprising 47% of the total. 235 Without proper education, these children are less able to reach their full potential or contribute to the economy later in life, thus trapping themselves and their families in the cycle of poverty.
Family poverty
Children are often forced into work to support the family income, and in some cases these children are charged with the sole responsibility of earning the family income. Child labor reduces the employment prospects of adult family members, which in turn decreases the overall quality and potential of the labor force. This contributes to longer- term family poverty and slower economic growth.
Health
Children involved in high-risk employment such as fishing, mining, quarrying, building and road transport activities are at higher risk of physical injury when compared with adults due to their smaller physique, poorer awareness and immaturity. One study revealed that limb injuries contributed approximately 16.6 percent of all total injuries/disabilities related to child laborers, while respiratory problems contributed approximately 6.7 percent. These injuries could be attributed to the fact that most children work in the agriculture sector and are exposed to hazardous work, which involves working with sharp tools and toxic chemicals, among others. Street trade, mining, stonecutting and handcraft also contribute to injuries among working children.
Girls engaging in the worst forms of child labor such as prostitution are vulnerable to underage pregnancy, infection of HIV and other sexually transmitted diseases. This is because they rarely have the capacity to control who they have sex with or the use of contraception. There is also a high incidence of sexual molestation among child domestic workers, usually perpetrated by male household members. This again increases girls’ risk of contracting HIV/AIDS or becoming pregnant. 236
234 Ibid. 235 K O Ori, Kenya exposed: Child labor revelation , Afrik.com (2008)
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Proposed interventions
Raising community awareness on child labor
The survey results revealed poor awareness regarding child labor issues on the part of mothers. Awareness-raising, however, needs to target not only mothers, but also fathers, community leaders, teachers, employers, employer associations and government workers. Awareness-raising should focus on the applicable law, the risks associated with child labor, and the wider economic ramifications of having children in the workforce and perpetuating the poverty cycle.
Lobbying and advocacy
NGOs should be encouraged to mainstream child labor in their human rights, advocacy and community development interventions. Media organizations should be encouraged to highlight the issue of child labor. Placing political pressure on members of parliament should also be encouraged to bring about legislative changes with regards to the provision of tougher penalties for employers exploiting young children, in addition to securing financial resources to be used for combating child labor.
Support of orphans and vulnerable children
The Kenyan government has instituted various programs aimed at improving the financial prospects of families in the country and thereby reducing child labor rates. In partnership with UNICEF, it administers cash transfer programs to support families taking care of orphans and vulnerable children (OVC). 237 The poorest and most vulnerable families are targeted based on eligibility criteria developed and vetted by communities. While the initial phase of the project covered only 500 OVCs, the program was expanded during 2009 to 47 districts covering over 43,000 households (at an average of 600 Kenyan Shillings (US$8) per child per month). 238 The program is implemented by local child protection structures comprising community representatives, members of the Area Advisory Council and District Children’s Officers.
The program has achieved significant impact in terms of poverty alleviation and other welfare measures such as school attendance, health clinic visits, and household nutrition. 239 Such programs are likely to have positive spillover effects on the issue of child labor and could be replicated targeting families with a child who has been identified as being involved in underage labor, or families where children are deemed vulnerable to engaging in child labor.
Support of destitute households to rebuild livelihoods
Families living in poverty should be supported in such a way that facilitates the re-entry of adult members into the workforce and to earn an income sufficient to support the entire family, hence eliminating the need for children to work. Assistance should hence focus upon livelihoods creation such as capacity building, training and micro-credit .
The Kenyan government has introduced a Hunger Safety Net program, involving cash transfers to the poorest and most vulnerable families in Kenya as a means of social protection.240
237 UNICEF Kenya, The Evolution of the Government of Kenya Cash Transfer Programme for Vulnerable Children (2008). 238 United States Department of State, above n 146. Currency Conversion as of 30 March 2010. 239 R Pearson, The Evolution of the Government of Kenya Cash Transfer Programme for Vulnerable Children between 2002 to 2006 and prospects for nationwide scale-up. 240 Institute of Development Studies, Kenya Hunger Safety Net Programme
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Supporting civil society organizations
Organizations of workers and employers, such as the COTU and Federation of Kenyan Employers have made significant headway developing and implementing policies geared towards eliminating child labor. These include surveys on child labor practices, awareness-raising activities, the formation of grassroots child labor committees and the development of employer guidelines and codes of conduct on child labor issues. Given current limitations on the government’s capacity to eliminate child labor practices, such agencies should be supported financially, be included in policy debates and play a key role in policy development.
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Section 6 Child trafficking
KENYA COUNTRY REPORT
Key findings
! Current legislation does not adequately protect girls from falling victim to trafficking, nor does it adequately respond to the protection needs of those already trafficked.
! Non-compliance in domestic legislation with international standards on child trafficking leaves Kenyan girls vulnerable to trafficking and leaves victims’ core medical, psychosocial and legal needs unaddressed.
! Despite a large portion of survey respondents expressing concern regarding the dangers of child trafficking in their communities, greater awareness-raising on the risks and realities of child trafficking is required. This is particularly the case for parents and other family members, who, either directly or indirectly, often expose girls to child trafficking.
Child t rafficking
In the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000), child trafficking is defined as the recruitment, transportation, transfer, harboring or receipt of a person under 18 years of age, by any means, for the purpose of exploitation. 241
A distinction should be made between the definitions of human trafficking and human smuggling. Smuggling, according to the Protocol against the Smuggling of Migrants by Land, Sea and Air, is defined as the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident. 242
Trafficking in children is a global problem affecting large numbers of children, including throughout Eastern Africa. The trafficking problem is both transnational and internal. Clandestine by nature, trafficking is a covert criminal activity, which makes statistics difficult to gather and thus the crime more difficult to combat. As a result, many girls are left exposed to the largely unknown and under-represented reality of child trafficking.
Current status in Kenya
The United States Department of State Trafficking in Persons Report (2009) 243 listed Kenya under Tier 2 of its Trafficking Watch List. This means that Kenya does not fully comply with the minimum standards for the elimination of trafficking. The reasons given for the Tier 2 listing included a lack of evidence, on behalf of the government, to increase its efforts to combat severe forms of trafficking.
Transnational trafficking
Kenya is a source, transit, and destination country for men, women, and children trafficked for the purposes of forced labor, organ sales and sexual exploitation. 244 Girls
241 Article 3 (a). 242 UN General Assembly, Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at: http://www.unhcr.org/refworld/docid/479dee062.html 243 United States Department of State, above n 187. 244 Ibid.
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are trafficked to other African countries, the Middle East and Europe for prostitution and, particularly in the Middle East, for domestic service. 245 Girls are also trafficked for the purposes of child marriage, occult practices and illegal adoptions (particularly toddlers). 246
Intra-country trafficking
Kenyan children are also trafficked internally for domestic servitude and forced labor in agriculture (particularly on flower plantations), cattle-herding and for commercial sexual exploitation (particularly in coastal areas where there is a thriving sex tourism industry). 247 Pre-teens and youths aged 13-25 years are most vulnerable to trafficking, except in coastal areas where traffickers also target older women. 248 Girls are most likely to be trafficked from rural to urban areas for domestic work and prostitution. Among such girls there is ahigh rate of molestation and physical and sexual abuse perpetrated by employers; there is also evidence that in some cases girls are resold. 249
It is a long-standing African tradition that poor parents in Figure 5 How significant a problem is trafficking for girls in your community? rural areas send their children to live (and work) with wealthier families, usually in urban centers. This once operated as a type of 26.10% A major problem foster arrangement. Today, however, the practice is increasingly exploited by A problem 54.30% traffickers with the result that 19.60% children whose parents believe Not a problem that they are being cared for by families are in fact working as domestic child laborers with no access to education or freedom of movement, for little or no pay. 250 Nonetheless, there is significant overall awareness on the issue of child trafficking, as indicated in Figure 4, with nearly 75 percent of survey respondents agreeing that child trafficking was a concern for girls in their community.
Legal framework governing child trafficking
There are several international instruments that have provisions relating to child trafficking. Of these, Kenya has ratified the CRC (1989), ACRWC (1990) and ILO Convention No. 182 (1999).251 It signed the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography on 8 September 2000, and has assented to the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women, and Children (2000) on 5 January 2008and the Hague Convention of Inter-Country Adoption (1993) on 12 November 2008. However, to a large extent the anti-trafficking provisions in these international agreements have not yet been domesticated.
245 E Pearson, Study on Trafficking in women in East Africa , GTZ Situational Analysis Paper (2003). 246 See the ECPAT International Online Database available at
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The Children Act 2001 , which domesticated certain provisions of the CRC (1989) and the ACRWC (1990) ,provides that children are entitled to protection from physical and psychological abuse, neglect and any other form of exploitation, including sale, trafficking or abduction by any person, although it leaves the term ‘trafficking’ undefined. 252 Penalties for violation include a maximum of twelve months imprisonment, a fine up to 50,000 Kenyan Shillings (US$ 646), 253 or both. 254
The Children Act 2001 also prohibits the economic exploitation of children as well as any work that is likely to be hazardous, or which may interfere with a child’s health or physical, mental, spiritual, moral or social development. 255 The Sexual Offences Act 2006 does include provisions on child trafficking, however, the definition of trafficking is limited in that it applies only to persons below the age of 18 years and in situations where the intention of the trafficking is to facilitate the commission of a sexual offence. 256 Courts can impose a penalty of a minimum prison term of 10 years for natural persons 257 and a minimum fine of 2,000,000 shillings (US$ 27,000) for non- natural persons.
Other legislation, however, might be drawn upon to cover cases involving child trafficking. The Penal Code Act 1930 258 criminalizes “child stealing” which is defined as depriving any parent, guardian or other person who has lawful custody of a child under 14 years of age, of the possession of this child either forcibly or fraudulently, or who takes, entices away or detains a child, or who receives or harbors a child knowing that is has been so taken, enticed away or detained. 259 Offenders can be sentenced to a maximum penalty of seven years imprisonment and courts have routinely imposed the maximum penalty. The obvious flaw in the legislation is that it fails to offer protection to children aged 15-18 years, which is, as previously discussed, an age at which girls are vulnerable to traffickers.
The Penal Code Act 1930 also criminalizes the kidnapping of a minor. Kidnapping is defined as enticing any minor under 14 years of age if a male, or under 16 years of age if a female, or any person of unsound mind, out of the keeping of a lawful guardian, without the guardian’s consent. 260 Again, this legislation fails to protect children aged 15- 18 years. It also fails to cover situations where parents or guardians have consented to or been aware of the kidnapping.
Finally, the Penal Code Act 1930 provides for the offence of abduction, which is defined as compelling through force, or enticing through deceitful means, any person to leave any place. 261 The weakness in extending this provision to situations of trafficking is the requirement of deceit; in some cases children are aware that they are being removed from their homes to work, for example, as a domestic servant.
Apart from not providing girls with adequate protection against trafficking, Kenyan legislation may operate to place such victims in conflict with the law. Under the Immigration Act (1967), it is an offence to enter Kenya unlawfully. 262 Additionally, foreigners are prevented from engaging in any employment, occupation, trade, business, or profession without a permit. 263 Offenders can be charged with a penalty of 20,000
252 Children Act (2001), Section 13. 253 Currency conversion as of 19 February 2010. 254 Children Act (2001), Section 20. 255 Section 10 (1). 256 Section 13. 257 Ibid. 258 Chapter 63 of the Laws of Kenya. 259 Section 174. 260 Section 255. 261 Section 256. 262 Section 13 (2) (c). 263 Section 13 (2) (f).
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shillings (US$ 270), a maximum prison term of one year, or both. 264 Girls who have been trafficked to Kenya for the purposes of child labor or commercial sexual exploitation may be charged under this legislation. However, as they are unlikely to be able to pay such fines, they are more likely to be placed in prison.265
Further, as most girls do not have access to identity documents, authorities may assume that they are adults and thus refuse to provide them with the legal protections afforded to children under the law. 266 In terms of prosecuting traffickers, the Immigration Act (1967) penalizes persons who facilitate unlawful entry into the country or who knowingly harbor illegal immigrants. 267 Penalties include a fine not exceeding 100,000 shillings, (US$ 1,350) a maximum prison term of three years, or both. 268 However the Act fails to prescribe penalties for non-natural persons, for instance hotels or companies that benefit from trafficking activities.
In general, the existing legal framework for child trafficking in Kenya is overly focused on prostitution, and does not sufficiently address trafficking for other purposes. Moreover, it has the potential to criminalize victims given that, under the Penal Code Act 1930 , living on the proceeds of prostitution is criminalized. 269
While there are no national statistics currently available, the government has prosecuted cases of child trafficking. In 2009, 119 parents and guardians of 209 children were charged in one legal action with abusing their children by removing them from school and forcing them to work as domestic servants.270
Institutional framework for combating child trafficking
The Ministry of Immigration is responsible for the creation of a comprehensive population database for personal legal records, registration and identification documents. 271 The Ministry houses the Department of Civil Registration, the National Registration Bureau, and the Immigration Department. The Department of Civil Registration is responsible for birth and death registration,272 while the National Registration Bureau is responsible for the issuance of national identity cards. These identification documents are crucial in the fight against child trafficking. The government has recently set in place mechanisms to combat identity document forgery, a practice that is common amongst traffickers. For example, the Immigration Department has a Forgery Detection Unit at Kenya’s main airport (Jomo Kenyatta International Airport).
The government agency with most direct responsibility for issues relating to child trafficking is the Department of Children Services. This department is mandated to advocate for children's rights and provide services for children in need. This includes conducting investigations relating to trafficking and providing counseling and follow-up services to child victims. 273 Children's Officers in the Ministry of Gender, Children and Social Development currently serve on the management committee of the Rescue Center, a shelter for sex trafficking victims in Mombasa. They also provide case assessments and service referrals for victims. 274
264 Ibid. 265 K Sengupta, ‘Thousands of children victims of trafficking’, Independen t, 30 July 2003. 266 Such protection as stipulated under the Children Act, Section 190. 267 Section 13. 268 Ibid. 269 Penal Code Act (1930), Section 154. 270 United States Department of State, above n 146. 271 See the Ministry of Immigration website:
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A Human Trafficking Unit within the Kenya Police was created in 2005. 275 This unit, however, lacks trained personal or the required technical equipment. The Kenya Police has been unable to report any concrete action undertaken by the Human Trafficking Unit since its inception.
A National Steering Committee to Combat Trafficking in Persons (NSCCTP) has established a taskforce comprising government officials and civil society organizations. This taskforce is devising, but has not yet released, a national plan of action to combat trafficking in persons. 276
This weak institutional framework means that survivors and returnees lack the medical, psychological and reintegration support necessary to rebuild their lives. 277 There is only one documented rescue centre for sex trafficking victims located in Mombasa that provides case assessments and service referrals for victims.
Factors perpetuating or contributing to child trafficking
Poor birth registration rates
A birth certificate provides proof of age and nationality. In areas where birth registration rates are low, including in rural and poor areas and in nomadic communities, girls are at greater risk of trafficking. Non-registered children do not have formal proof of nationality and are hence more easily moved between countries. Further, it can be difficult to ascertain the age of non-registered children, making it easier to pass older children off as adults, and making it more difficult to provide such children with the protection afforded to them as children under Kenyan law.278
In the case of transnational child trafficking, a lack of birth registration or nationality documents also makes it difficult for victims to return to their country of origin.
Legislative framework
The Children Act (2001) states that an appointed guardian need not be a Kenyan citizen or even a resident of Kenya. 279 This creates an opportunity for persons to disguise themselves as guardians in order to move children out of the country for the purposes of illegal adoption or other forms of trafficking. The Children Act (2001) also provides that any child who is a resident within Kenya may be adopted, whether or not the child is a Kenyan citizen or was born in Kenya. 280 This makes Kenya an ideal transit point for child trafficking and, in particular, illegal adoption.
Corruption and weak law enforcement
In Kenya, traffickers can bribe law enforcement and immigration officials to overlook criminal activities. Public administrators may also be bribed to falsify information on identity cards, birth certificates and passports in order to facilitate trafficking. 281 Given the severe problem of child trafficking in Kenya and the lack of concrete action taken on
275 Office of Public Communications, ‘Agreements Signed Between The Government Of The United States Of America And The Government Of Kenya On Narcotics Control And Law Enforcement’ (Press Release, 2 October 2005)
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the part of the Kenya Police Human Trafficking Unit, inefficiencies in law enforcement increase the protection gaps for girls vulnerable to child traffickers.
Social and economic change
Poverty, the breakdown of traditional family structures or the death of one or both parents may contribute to a family’s decision to place a child in the care of relatives, friends, or acquaintances. ‘Success stories’, including displays of wealth or remittances back to villages by relatives working in urban areas or overseas, provide a powerful incentive for parents to consider sending their children away for work or for education. Once a child is living outside of the family structure, however, he/she becomes more vulnerable to being trafficked. Similarly, HIV/AIDS has orphaned more than 650,000 Kenyan children, creating an increasing number of child-headed households, the members of which are at high risk of trafficking. 282
Dangers faced by trafficked girls
Lack of education
Trafficked girls who are forced into prostitution or child labor rarely attend school. 283 There is a high correlation between girls with limited or no access to education and becoming a victim of trafficking. Girls who are trafficked into Kenya also generally lack the necessary documentation to access education facilities, thus perpetuating their vulnerability and increasing their dependence on the traffickers themselves.
Exposure to HIV/AIDS
Girls who are trafficked for the purposes of prostitution, early marriage or domestic servitude are at heightened risk of HIV infection (as well as underage pregnancy, sexual violence and abuse). Injuries and abrasions sustained during non-consensual sexual contact heighten vulnerability to HIV transmission.284 The vulnerability of trafficked girls to sexually transmitted infections is compounded by their reduced access to methods of contraception, medical testing, treatment, counseling and other health care services. 285 This is particularly the case for girls trafficked into Kenya who do not speak Swahili, possess identity documents and lack the freedom of movement.
Gender-based violence
Violence is often used as a means of coercing women and young girls into, and keeping them in, exploitative situations such as prostitution or involuntary servitude such as domestic work. 286 Most trafficked girls in Kenya work as barmaids, placing them in a vulnerable situation where they are often coerced into sexually exploitative work or directly into prostitution. 287
282 Ibid. 283 Ibid. 284 UNAIDS, Women and AIDS , Best Practices Collection (1997) 3: “Tearing and bleeding during intercourse, whether from ‘rough sex,’ rape or prior genital mutilation (female “circumcision”) multiplies the risk of HIV infection.” Available at
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Psychological distress
Trafficking severely affects the psychological health of children as they are often exposed to various forms of violence such as beatings, rape, forced drug use, and food and sleep deprivation. 288 They are also prevented from enjoying the care of parents and normal social interactions such as through schooling and relationship development with peers.
Proposed interventions
Strengthening law enforcement
Agencies with responsibility for enforcing child trafficking laws should be strengthened and equipped with investigatory capacity. The Human Trafficking Unit within the Kenya Police, in particular, should be provided with adequate technical equipment and trained personnel to enable it to carry out its duties effectively. Increased and continued training of all officers in the Unit is paramount to achieving concrete action in the fight against child trafficking. Such training should increase the capacity of the Unit to be able to better identify victims of trafficking, perpetrators and the applicable law with which to protect and prosecute, respectively. Penalties for corruption should be revised and effectively communicated to all officers in the respective departments.
Knowledge of all cases that have been successfully prosecuted should also be effectively communicated to the public in order to highlight not only the illegality and risks associated with child trafficking, but also to encourage community faith and respect of the work of the Kenyan Police.
Legislative reform
Kenya lacks adequate legislation governing child trafficking. Advocacy aimed at the central government and Members of Parliament should be undertaken aimed at introducing a Trafficking in Persons Act that is compatible with the international instruments to which Kenya is a party, and containing penalties that reflect the severity of the crime. In particular, legislation should provide for the prosecution of non-natural persons and parents who consent to trafficking, while also ensuring the protection of victims of trafficking from prosecution under the Immigration Act (1967).
Other legislation should also be amended to ‘domesticate’ Kenya’s obligations under the international treaties it has ratified. Specific legislation should be amended to rectify obvious flaws: the Sexual Offences Act (2006) should be amended to revoke any age limitations and include other forms of trafficking, and the Penal Code Act (1930) should be amended to revoke any age limitation on the crimes of kidnapping and child stealing and to cover situations where parents may have consented to a kidnapping.
Establishment of rescue and rehabilitation centers for child victims of trafficking
Kenya lacks adequate facilities to shelter and rehabilitate girl victims of trafficking. A lack of government capacity means that the focus needs to shift towards the strengthening of and partnerships with civil society organizations with experience in girl protection and trafficking issues. Facilities should be equipped to provide medical, legal and psycho- social services, family tracing, school re-entry and livelihoods support.
288 UNFPA, Trafficking In Women, Girls and Boys. Key Issues For Population And Development Programmes (Report of the Consultative Meeting on Trafficking in Women and Children, Bratislava, 2-4 October 2002).
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Awareness-raising campaigns
The high correlation between poorly educated girls and susceptibility to trafficking further highlights the need for increased public awareness and education on the specific dangers of child trafficking.
Awareness campaigns should be established that target local communities, particularly parents and community leaders, on all issues of child trafficking. Such programs should combat the commonly held belief that children can be safely sent to live with other families who will provide them with food and schooling in return for light labor. Information and awareness-raising should also take place in schools, beginning at the primary level, training teachers in how to recognize vulnerable or trafficked children, and training children in how to extricate themselves from dangerous or exploitative situations.
The African Network for the Prevention and Protection Against Child Abuse and Neglect (ANPPCAN) runs a child trafficking program in Kenya, which seeks to increase levels of awareness among different groups, build the capacity of service providers and develop and enhance networks and alliances to effectively fight child trafficking. 289 Additionally, the Child Welfare Society of Kenya has sought to raise the awareness of the Kenyan public on child trafficking and its effects on orphans and vulnerable children, in particular. It has also established a working relationship with the leading newspaper in Kenya, allowing it to publish pictures of lost children, in order to protect them from the possibility of being trafficked.290
Partnership development
Child trafficking is a covert crime that requires a networked response. Action plans should be developed that build partnerships and collaborations between key protection agents including parents, teachers, community leaders, police, NGOs and child protection agencies.
289 ANPPCAN , Child Trafficking Program Fact Sheet
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Section 7 Commercial child sexual exploitation
KENYA COUNTRY REPORT
Key findings
! Legislative reform, particularly the Sexual Offences Act 2006 , largely reflects the gravity of the crime of child commercial sexual exploitation in Kenya. In this respect, Kenya has upheld its international obligations in protecting its girl children from commercial sexual exploitation, and reaffirmed its commitment to combating such practices.
! However, relatively poor awareness on the dangers of child commercial sexual exploitation is of particular concern, which requires action on the part of the government and civil society. Awareness-raising both at the national and international level is crucial to reducing the demand for sex with children in Kenya. Education on the health risks and the legal issues, in addition to the promotion of alternative employment options and income-generating activities should be the focus of such communication, with an aim of also reshaping current perceptions and acceptance of commercial child sex work.
! Funding is required to establish training programs for protection officers and rehabilitation personnel in order to effectively protect the rights of girls from being (or who have been) sexually exploited. The provision of government financial support is also necessary for families with daughters who are particularly vulnerable to becoming involved in commercial sexual work as a means of survival, as a result of their socio-economic status.
Commercial sexual exploitation
Commercial sexual exploitation of children constitutes a violent and criminal practice that violates a child’s most basic rights.291
Commercial sexual exploitation is defined as the sexual abuse of a child by an adult with remuneration in cash or in-kind to the child, a third person or other persons.
Child sex tourism and trafficking in children for sexual purposes are two common forms of commercial sexual exploitation. Child sex tourism (CST) occurs when a person or persons travel, usually from a developed country to a developing country, for the purpose of engaging in sexual relations with children. Child sex tourists however, can be domestic travelers or international tourists.
Trafficking in children for sexual purposes is defined as all acts involved in the recruitment, transportation, transfer, harboring or receipt of children within or across borders for the purpose of sexual exploitation. 292 Child sex tourism and trafficking in children for sexual purposes are inextricably linked: both are fuelled by a demand for sex or sexual activities with children. In certain situations victims are trafficked specifically to serve in the sex tourism industry, and trafficking in children for sexual purposes can involve the tourism industry.
Child domestic workers can also be subjected to commercial sexual exploitation, even if they are engaging in consensual and remunerated employment. Female domestic workers, particularly girls, are at risk of sexual abuse by male members of the household. 293 Moreover, given the higher prevalence of girls involved in domestic work, they are more vulnerable to becoming victims of commercial sexual exploitation. Often due to threats, intimidation or fear of dismissal, incidences go unreported, thus leaving
291 The Declaration and Agenda for Action of the World Congress Against Commercial Sexual Exploitation of Children (1996). 292 ECPAT International, Confronting the Commercial Sexual Exploitation of Children in Africa (2007) 6. 293 Mzungu, above n 236.
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the public and relevant protection agents unaware of the protection violations encountered.
Child marriage may be considered a form of commercial sexual exploitation, especially where the girl’s family receives some form of payment (e.g. a dowry) in exchange for their child. This is buttressed by the fact that the poverty status of a girl’s family often influences their decision to allow their child to enter into early marriage. 294 Child marriage as a form of child commercial sexual exploitation is discussed in detail in chapter eight.
Child pornography is another form of exploitation. It is defined as the sexually explicit reproduction of a child's image for commercial purposes. 295
Commercial sexual exploitation of girls in Kenya
Child sex tourism is on the rise in Kenya, especially in coastal regions. Most victims in this industry are girl children. An estimated 15,000 girls living in the coastal areas of Malindi, Mombasa, Kilifi and Diani are involved in casual sex work. This number equates to 30 percent of all 12-18 year olds living in those areas. A further 2,000-3,000 girls and boys are involved in full-time commercial sexual activity. Forty-five percent of children engaged in sex work with tourists are from outside the province with large numbers coming from the Eastern, Central and Western provinces. Perpetrators come from many countries, however, most are Italian (18 percent), German (14 percent) and Swiss (12 percent). 296
Child prostitution is an emerging phenomenon in Kenya with an increasing number of youths, mainly girls and particularly those living in slum areas, engaging in sex work as a means of survival. About one in ten children involved in prostitution enter the industry before they reach puberty.297 A disconcerting aspect of child prostitution in Kenya is the communal living of child prostitutes within the same premises that are used for sexual activities. 298 This might be explained by the fact that many child prostitutes leave their communities, either voluntarily or forcefully, to engage in commercial sex work. Living in the same premises leaves child prostitutes even more susceptible to further exploitation at any given time.
A recent study showed that 45 percent of child prostitutes working in coastal regions had migrated from upcountry. 299 There are also reports of adults keeping destitute children in their homes under the guise of taking care of them, but instead hiring them out as prostitutes. Some children also live in brothels alongside adult prostitutes, something that is particularly common in Nairobi and the coastal towns of Mombasa and Malindi. To conceal their identities, brothels in Mombasa (which mainly deal in male children) are often located in residential areas. In Nairobi, brothels are covertly registered as 'Bar and Restaurant', and deal mainly in female children. 300 Child prostitution is also widespread in towns that have foreign military bases (for example, Nanyuki). 301
294 Forward, Child and Forced Marriage
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Child pornography is widespread in the coastal areas of Kenya. Perpetrators force or trick children (often with the use of drugs) to pose for pornographic photographs, of which such cases of abuse are rarely reported. 302
Legal framework governing the commercial sexual exploitation of girls
Kenya has ratified the CRC (1989) , the ACRWC (1990) and ILO Convention No. 182 (1999) on the Worst Forms of Child Labor. It has signed but not ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000). The provisions of the aforementioned conventions have largely been domesticated through provisions of the Children Act 2001 , the Employment Act 2007 and the Sexual Offences Act 2006 . The Employment Act 2007 incorporates the definition in the ILO Convention No. 182 (1999) of the worst forms of child labor, namely the use, procuring or offering of a child for prostitution for the production of pornography or for pornographic performances.
Prior to 2006, the laws regarding offences of a sexual nature were contained in four different pieces of legislation: the Penal Code Act 1930, 303 Criminal Procedure Code 1930, 304 Evidence Act 1963 305 and the Children Act 2001 . The application of such disparate legislation complicated investigations and convictions, as well as advocacy and community awareness-raising efforts. A further issue was that the laws in place did not adequately address the seriousness of these offences or the impact on victims.
For example, the maximum penalty that could be applied under the Children Act 2001 in cases of sexual exploitation and child prostitution306 was a prison term of 12 months, a fine of 50,000 shillings (US$ 675), or both. 307 Further, as there were no minimum sentencing guidelines, there was a high level of inconsistency in sentences meted out. Being entirely within a magistrate’s discretion, sentences were often light and, on occasion, non-custodial. A critical failure was that the law required a child’s evidence to be corroborated. The difficulty in this is clear: the nature of such offences is that they are seldom committed in public and victims, particularly children, rarely take steps to preserve medical evidence.
In 2006, the Sexual Offences Act 2006 was introduced. 308 It provides comprehensive definitions of the various sexual offences, addressing previous legal deficiencies and recognizing new social realities. The Act introduces minimum sentences that reflect the seriousness of these crimes, and creates new offences such as deliberate infection of HIV/AIDS, trafficking for sexual exploitation, sex tourism and child pornography. It also recognizes the potential culpability of non-natural persons, such as hotels, in, for example, promoting child sex tourism. 309 The introduction of the Sexual Offences Act 2006 also now allows for uncorroborated evidence in offences of a sexual nature 310 in addition to providing for the creation of a DNA data bank and pedophile registry.
302 E Mwangi, Sexual abuse continues unabated in Kenya , News From Africa (2003)
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Child prostitution
The Sexual Offences Act 2006 prohibits the procuring of a child under the age of 18 years for the purposes of sexual intercourse or for any form of sexual abuse or indecent exhibition or show, inducing a person to be a client of a child for sexual purposes or indecent exhibition or show, and giving monetary consideration, goods or other benefits or any other form of inducement to a child or their parents with the intent to procure the child for sexual purposes. The minimum punishment for those convicted of procuring a child for the purposes of prostitution is 10 years imprisonment. 311 It also addresses exploitation through prostitution by making it an offence to intentionally cause or incite another person to become a prostitute, or intentionally control the activities of another person relating to that person’s prostitution, in expectation of gain for himself or herself or a third person. The maximum penalty that can be imposed for this offence is five years imprisonment. 312 It should be highlighted, however, that victims can also be penalized under this law. 313 While soliciting prostitution is not itself a criminal act, the Kenyan police do arrest females engaged in prostitution. 314
Child trafficking
Child trafficking is defined under the Sexual Offences Act 2006 as trafficking with the intention of facilitating a sexual offence against a child. Natural persons convicted face a minimum prison term of 10 years, 315 while non-natural persons face a minimum fine of 2 million Kenya shillings (US$ 27, 027).
Promotion of sexual relations with a minor
The promotion of sexual offences with a child is prohibited under the Sexual Offences Act 2006 . Promotion is defined as manufacturing or distributing any article that promotes or is intended to promote a sexual offence with a child; or supplying or displaying to a child any article that is intended to be used in the performance of a sexual act with the intention of encouraging or enabling that child to perform such an act. Courts can impose a minimum prison term of five years on natural persons and a minimum fine of 500,000 shillings (US$ 6757) on non-natural persons.
Child pornography
The Sexual Offences Act 2006 prohibits child pornography and imposes a minimum prison term of six years, a minimum fine of 500,000 Kenyan shillings (US$ 6757) or both; upon subsequent conviction a minimum prison term of seven years without the option of a fine must be imposed. A serious flaw in this legislation is that the definition of child pornography focuses on ‘obscene material’ without defining ‘obscene’ or setting out how the material must relate to children. 316
Child sex tourism
Child sex tourism involves the exploitation of children and their communities by persons who travel from their own country to another, to engage in sexual acts with minors. The Sexual Offences Act (2006) prohibits promoting child sex tourism and natural persons are liable upon conviction to imprisonment for a term of not less than 10 years, 317 whereas non-natural persons can be issued with a fine of not less than two
311 Section 15. 312 Section 17. 313 Section 8. 314 United States Department of State, above n 146. 315 Section 13. 316 ECPAT International, Global Monitoring Report on the Status of Action against Commercial Sexual Exploitation of Children – Kenya (2007) 26. 317 Sexual Offences Act (2006), Section 14.
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million shillings (US$ 27,027). Foreigners who participate in child prostitution or pornography in Kenya are liable under the law on the same basis as nationals. Foreigners can therefore be charged with any offence under the Sexual Offences Act (2006).
Cultural or religious defenses
The Sexual Offences Act (2006) provides that any person who, for cultural or religious reasons, forces another person to engage in a sexual act or other act that amounts to an offence under the Act is guilty of an offence. The practice of child marriage may fall under this provision as it most often involves having sexual intercourse with a minor under the guise of ‘culture’. The minimum punishment for this offence is a prison term of 10 years. 318 Child marriage is discussed further in the following chapter.
Institutional framework relating to the commercial sexual exploitation of children
The Department of Children’s Services (within the Ministry of Gender and Children affairs) oversees child protection issues in Kenya, including the commercial sexual exploitation of children. In collaboration with UNICEF, NGOs, religious groups and private sector actors have spearheaded the ‘Stop Violence Against Children’ campaign which focuses on exploitative practices including child labor, trafficking and sexual abuse. 319
NGOs in the country have also been involved in the creation of livelihood programs for Kenyan girls, which have involved credit, savings, financial education and social support activities. One aim of such programs is to prevent girls from entering, and to help them in leaving, dangerous sexual relationships. 320 According to the US State Department’s 2009 report on the state of human rights in Kenya, “(t)he government (also)…assisted NGOs in providing education, skills training, counseling, legal advice, and medical care to girls abused and street children exploited in the commercial sex industry.” 321
The Ministry of Education is the key actor responsible for encouraging girls to remain in school. In this regard, it has conducted a campaign aimed at sensitizing pupils and parents to the dangers of prostitution and discouraging girls from leaving school to pursue relations with foreign tourists in the hope of marriage.
Even though the State Law Office has responsibility for prosecuting cases on behalf of the State, police prosecutors who generally have no legal training are responsible for prosecuting cases of violence against children including cases of child sexual abuse. Difficulties in this area include weak investigatory capacity, inconsistency in officers’ understanding of the law and weak prosecutorial skills. The result has been a high acquittal rate of persons charged with such offences. 322 In response, the Police Department, in collaboration with civil society actors, has initiated a child rights and child protection training program for police officers. It has also established Child Protection Units in 14 districts. A Gender and Children Section, headed by an Assistant Commissioner of Police has also been set up at police headquarters.323 Unfortunately,
318 Section 29. 319 ANPPCAN and UNICEF-ESARA, A situational analysis of sexual exploitation of children in the Eastern and Southern Africa Region (2001). 320 See J Bruce, A Note on the Social and Economic Development and Reproductive Health of Vulnerable Adolescent Girls, EGM/DVGC/2006/EP.11 (2006) 15. 321 United States Department of State, above n 146. 322 CLAN, Challenges of Prosecuting Sexual Offences Against Children (2008). 323 See
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Child Protection Units are not fully operational, and they lack full-time multi-disciplinary staff that have specialized training and skills for working with children.324
The Kenyan Tourism Ministry, along with the Kenyan Association of Hotel Keepers and Caterers, has signed the International Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism (2006). 325 This occurred in response to public pressure, which followed the exposé of Kenya’s growing child sex tourism industry. The Code encourages companies in the tourism sector to help in the fight against commercial child sexual exploitation by incorporating child protection and anti- exploitation practices into business procedures and operating environments. Efforts have included: posting signs highlighting that child sexual exploitation is a crime, educating and training workers to identify and report suspicious customer activities, requiring vendors and employees to commit to not engage in the exploitation of children, and terminating employment or business relationships with any party who engages in the commercial sexual exploitation of children. Participating businesses are required to report on their progress and share best practices. 326 The Tourism Ministry, along with UNICEF, the World Tourism Organization and NGOs continues to liaise with hotels and tour operators on this issue. 327
Factors contributing to commercial sexual exploitation of girls
Increased tourism coupled with a weak legislative framework
Sex tourists, like regular tourists, are looking for an ‘ideal destination’. They look for a country where child sex workers are in high supply, children are vulnerable and child protection mechanisms are weak . Kenya meets each of these conditions. 328
As indicated below, even though 66 percent of survey respondents expressed concern over the issue of child sexual exploitation, nearly 30 percent admitted that they had never thought about the issue. Low awareness, particularly among parents, on the dangers of child sexual exploitation will keep the supply of child sex workers consistent.
Table 8 Have you ever thought about the issue of child commercial sexual exploitation?
Valid Response Frequency Percent I have never thought about it 101 29.0 Sometimes think about it but does not worry me 18 5.2 Concerned about this issue for my daughters 229 65.8 Total 348 100.0 No response 12 Total 360
324 Kenya National Commission of Human Rights, Situation Analysis of Children in Kenya: The Future in the Hands of Kenya’s Children (2008). 325 February 2006. 326 Code of Conduct for the Protection for Children from Sexual Exploitation in Travel and Tourism. 327 United States Department of State, above n 146. 328 ECPAT International, above n 292.
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Demand in the context of increasing HIV/AIDS rates
Children tend to be in high demand by perpetrators who believe that they are more likely to be HIV/AIDS-free. 329 Moreover, there is a belief among some groups that if an HIV/AIDS-infected person has sex with a virgin, their condition will be cured.
Poverty
Poverty is a major cause for child prostitution in Kenya. According to government figures, an estimated 15 million people are living in poverty in Kenya (52 percent of the population). 330 For the 46 percent of the Kenyan population living in absolute poverty, most cannot afford to feed their families, let alone send their daughters to school. As traffickers are often in guise, offers of education abroad or potential employment often become difficult to refuse.
HIV/AIDS
The growing incidence of HIV/AIDS in Kenya has contributed to the commercial sexual exploitation of children in a number of ways. Children affected by HIV/AIDS have additional vulnerabilities that place them at greater risk of commercial sexual exploitation including impoverishment, orphan-hood, the need to provide for their families, discrimination, stigmatization and being ostracized from communities, including in particular, education facilities.
Popular attitudes toward child commercial sexual exploitation
In a 2006 UNICEF study 76.3 percent of interviewees considered child sexual exploitation to be ‘normal’. 331 Only 20 percent of respondents considered the practice immoral and unacceptable. Where respondents actually approved of the practice, they reasoned that it brought in wealth to the family and advantages to individual girls, and that the higher income generated would benefit various sectors of the community.
Risks associated with commercial sexual exploitation
HIV/AIDS infection
Children involved in commercial sex work are at high risk of contracting HIV and other sexually transmitted infections, as they are usually powerless to negotiate safe sex. 332 Some tourists travel to Kenya looking to have sex with children, encouraged by the myth that having sex with a virgin will cure HIV/AIDS. 333 Only 34 percent of young women (15-24 years) in Kenya have comprehensive knowledge of HIV, 334 thus making girls increasingly more vulnerable and likely to agree to engage in unprotected sex. Persons infected with HIV/AIDS may specifically target children as they find it easier to negotiate unprotected sex with a child than with a consenting adult.
329 ECPAT International, Linkages between the Commercial Sexual Exploitation of Children and HIV/AIDS in Africa (2007) 31. 330 ECPAT, Child Sex Tourism in Kenya (2005) 2. 331 The Code, above n 6. 332 Ibid. 333 C Njoki, ‘Kenya’s Sex Tourism “Slowly Blossoming” and Remains Unabated’, Daily Nation (2006). 334 UNICEF, Country Statistics, see
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Underage pregnancy
Girl children involved in commercial sex services have a higher propensity to fall pregnant as they are rarely in a position to negotiate the use of contraception. Given this, they are also more vulnerable to contracting sexually transmitted diseases including HIV/AIDS. Pregnancy is strongly correlated with early school departure and can also lead to health complications when the mother is a child herself, including increased risk of infant mortality. Where the child is infected with HIV/AIDS, the rate of mother-to-infant infection is high without medical treatment, and children engaged in commercial sex work are less likely to have access to health services.
Lack of education
Girls involved in prostitution often do not attend school. Such girls will not only miss out on fundamental education but also on important opportunities to develop social interaction skills and the necessary documentation and skills required to enter the workforce, hence perpetuating the poverty cycle.
Child trafficking
Girls who engage in child prostitution are vulnerable to being trafficked to different parts of the country or outside of Kenya. Where child prostitutes are controlled by ‘pimps’, they may facilitate travel to meet foreign clients’ demands. 335
Proposed interventions
Public awareness-raising
Child sexual exploitation is a complex interplay between the well-understood forces of supply and demand. 336 Until the demand for child prostitutes diminishes, the child sex tourism industry is likely to continue to thrive. Education and awareness-raising is needed to reduce this demand, both nationally and internationally.
On the international level, foreigners should be made aware that they will not receive impunity for acts committed under the recently implemented Sexual Offences Act 2006.
On the national level, NGOs and government authorities should undertake awareness- raising activities, targeting communities, particularly parents and traditional leaders, on the dangers of child commercial sexual exploitation. Given that peer pressure also plays a strong influential role, particularly for girls, children also need to be educated about the risks associated with different forms of commercial sex work and be presented with viable alternative paths to employment and income generation.
Considerable effort is required to reshape commonly held attitudes that tolerate commercial child sexual exploitation. As such, awareness-raising should also focus on the implementation of tougher penalties through the Sexual Offences Act 2006 .
Amend legislative gaps
Although the Sexual Offences Act 2006 has marked a significant improvement in the protection afforded to girls, child victims of commercial sexual exploitation through prostitution can still be penalized under this law. Such gaps need to be closed in order to effectively provide for and allow protection to victims.
335 ANPPCAN and UNICEF-ESARO, above n 319. 336 Jones, above n 296.
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Increased funding for Child Protection Units
Child protection officers within the Child Protection Units should be allocated more government funding to allow for increased and improved training, particularly in the area of the Sexual Offences Act 2006 and also in prosecutorial skills so to be better able to represent victims and reduce the acquittal rate.
Additional funding should be set aside for the establishment of Task Forces within the Protection Units to focus entirely on girls involved in commercial sex work.
Establishment of rescue and rehabilitation centers
Currently there is only one child rescue center located in Mombasa. Government authorities should partner with municipal or town councils and NGOs to establish additional facilities with services including medical assistance, legal guidance, psycho- social counseling, family tracing, rehabilitation, school reintegration and livelihoods training.
Training of qualified personnel
Lack of trained and qualified personnel has been linked to the low number and poor quality of rehabilitation and counseling services. 337 Workers currently employed in the child protection and medical sectors hence require specialist training on how to identify, support and rehabilitate child victims of commercial sexual exploitation.
Economic support to vulnerable families
Poverty is a key factor promoting a child’s engagement in commercial sex work. Girls living in poverty should be the focus of economic assistance, awareness-raising and livelihoods programs so to be able to provide them with alternative work opportunities and income-generating activities.
Promote alternative work opportunities for girls
In order to help girls contribute towards the family income without having to enter the commercial sex work market, girls should be provided with incentives to remain in school to develop vocational skills that increase their chances of post-education employment.
337 Ibid.
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Section 8 Child marriage
KENYA COUNTRY REPORT
Key findings
! Child marriage remains a widely ignored violation of the health and development rights of girls and young women. 338
! Child marriage in Kenya is prevalent, with around 27 percent of rural and 19 percent of urban girls in Kenya married before their eighteenth birthday.
! The legislation governing marriage is largely influenced in application by the religion of the parties to the marriage. This causes confusion and a lack of understanding regarding the applicable law governing child marriage.
! While Kenya is a signatory to many international conventions relating to the protection of women and girls, the government is yet to ratify or sign the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962).
Child marriage
For the purposes of this research child marriage is defined as any marriage occurring when one of the parties is below 18 years of age.
Child marriage can take place with or without formal registration under civil, religious, or customary law. It also covers situations of betrothals of young children and babies. The rate of child marriage in Africa is 42 percent, 339 and more than 60 percent in some parts of East and West Africa. 340
Current statistics on child marriage in Kenya
In Kenya, 10 percent of girls are married by 15 years of age. 341 Twenty-seven percent of girls from rural areas and 19 percent of girls from urban areas are married by 18 years of age. 342 The practice of child marriage is prevalent especially among the pastoral communities, where girls are often married in exchange for cattle as a form of bride price. 343
Legal framework governing child marriage
The requirement of consensual marriage is protected in several international treaties including the ICESCR 1966 ,344 ICCPR 1966, 345 the Convention on Consent to Marriage 1962 ,346 and the Universal Declaration of Human Rights 1948 .347
338 IPPF, Ending Child Marriage: A Guide for Global Policy Action (2006). Available at
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Child marriage is one of the most prevalent forms of non-consensual marriage in that consent cannot be free and full when one of the parties is not sufficiently mature to make an informed decision. 348 Although United Nations human rights instruments do not specify a minimum age for marriage, there is tendency to interpret these standards as prohibiting marriage under the age of 18 years.349
There are various international legal instruments that offer protection against child marriage. Article 34 of the CRC (1989) and Article 27 of the ACRWC (1990) protect children against sexual abuse and exploitation. Article 21 of the ACRWC (1990) also protects children from harmful cultural practices and explicitly provides that State Parties shall take measures to prohibit child marriage and the betrothal of boys and girls through effective action, including legislation and compulsory registration of all marriages in an official registry.
Of the instruments that contain provisions on child marriage, Kenya has acceded to the ICCPR (1966) 350, ICESCR (1966) 351 , CEDAW (1979) 352 , CRC (1989), and the ACRWC (1990). Kenya has not signed or ratified the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962),353 the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956).354 On 17 December 2003, Kenya signed (but has not ratified) the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.355
There are a number of national laws that govern marriage in Kenya. These laws differ in application depending on the religion of the parties. For statutory marriage, the minimum age for females and males under the Marriage Act 1902 356 is 16 years provided that the consent of the parents is obtained. 357 Without parental permission, the minimum age for marriage is 18 years.
Other national laws exist with relevance for child marriage, but they are inconsistent with the Marriage Act 1902 . For instance, the Children Act 2001 (which defines a child as any person under the age of 18 years) provides protection against harmful cultural practices including early marriage. 358 This may be interpreted as prohibiting the marriage of persons below 18 years of age. This is supported by the Sexual Offences Act 2006 , section 16(2)(d) of which states that having sex with someone below 18 years of age constitutes defilement. 359 There is currently a Draft Marriage Bill that harmonizes the marriage laws in the country and that explicitly prohibits child marriage, setting the age for marriage
347 Article 16; see also Principle 1 Recommendations on Consent to Marriage . Regional treaties that protect against non-consensual marriage include the ACHR, Art. 17 and ECHR, Art 12. Note that the ECHR does not require consent to marriage but protects the right of all persons of age to marry in conformity with national laws. 348 UNICEF, Child Protection Sheet , Child Marriage (2006). 349 The Committee on Elimination of Discrimination Against Women General Recommendation 21 “...considers that the minimum age for marriage should be 18 years for both man and woman.” See also Child Protection: A Handbook for Parliamentarians , above n 181. 350 Article 23 (3). 351 Article 10. 352 Article 16 (2). 353 United Nations Treaty Collection, available at
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at 18 years for both males and females. It is important to note that Section 82 of the Kenyan Constitution stipulates that no law shall make any provision which is discriminatory of itself or in its effect. This, however, excludes matters concerning “marriage, divorce, burial, devolution of property on death or other matters of personal law”.360
In the case of Islamic and customary law, the age for marriage varies between different regions and communities, although in principle, customary law can only be applied if it is not morally repugnant or inconsistent with statutory law. 361 Islamic marriages are governed by Mohammedan Marriage and Divorce Registration Act 1906 , Mohammedan Marriage, Divorce and Succession Act 1920 , and Kadhis' Courts Act 1967. These statutes afford recognition to marriages occurring under Islamic law, provide for the registration of Muslim marriages and divorces, delineate the jurisdiction and procedure of Kadhis' Courts, and instruct the application of the principles of personal law to the parties involved. The above are bolstered by the Constitution of Kenya, section 66 of which establishes the Kadhis’ Courts and gives them jurisdiction in the determination of questions involving Muslim law relating to personal status, marriage, divorce or inheritance in proceedings where all the parties are Muslim.
Hindu marriages in Kenya are regulated under the Hindu Marriage and Divorce Act 1960 .362 The age of a valid marriage is given as 18 years of age for males and 16 years of age for females. 363 In instances where the female party is below 18 years of age, the marriage can take place provided that the consent of her parent or guardian is given. 364 The Act has penalties for non-adherence to the aforementioned stipulations. Where the female party has not reached 16 years of age, whoever solemnizes or procures the marriage is liable to imprisonment for a term not exceeding 14 days or a fine not exceeding 500 shillings (US$ 7), or both. Where the female party is below the age of 18 years and consent from her parent or guardian is not obtained, whoever solemnizes or procures the marriage is liable to a fine not exceeding 1000 shillings (US$ 14). The wording “whoever solemnizes or procures” suggests that the female party may also be liable to charges.
The Marriage Act 1902 stipulates that “whoever goes through the ceremony of marriage, or any ceremony which he or she represents to be a ceremony of marriage, knowing that the marriage is void on any ground, and that the other person believes it to be valid, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years.” 365 The Children Act 2001 provides a maximum penalty of one-year imprisonment, a fine of 50,000 Kenyan shillings (US$ 675), or both. 366 This penalty applies to any person who willfully, or as a consequence of culpable negligence, infringes any of the rights of a child pertaining to child marriage. This means that the girl victim of early marriage is not liable to prosecution.
Nearly 40 percent of survey respondents believed that there were no penalties for child marriage when one or both partners to the marriage was below the age they believed to be legal. It should be noted that 40.4 percent of survey respondents believed that the minimum legal age for marriage was 18 years or younger.
360 Constitution of Kenya, section 82. 361 The Judicature Act, Chapter 8 of the Laws of Kenya, provides the hierarchy of laws in Kenya. Customary law is applicable to matters of personal law, e.g. marriage, so far as it is not inconsistent with written laws and repugnant to morality. 362 Chapter 157 of the Laws of Kenya. 363 Section 3 (c). 364 Section 3 (d). 365 Marriage Act (1902), Section 48. 366 Section 20.
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Table 9 Are there penalties for marriage below this age (the age which they believe is the minimum legal age for marriage)?
Response Frequency Valid Percent
Valid Yes 181 51.0 No 139 39.2 Don't Know 35 9.9 Total 355 100.0 No response 5 Total 360
The penalty for defilement under the Sexual Offences Act 2006 ranges from 15 years to life imprisonment depending on the age of the child. 367 As defilement requires proof of ‘penetration’, this law might be drawn upon to prosecute cases of child marriages, however not in situations of child/baby betrothals. It would be difficult to charge parents who consent to or facilitate their child’s marriage using the provision on defilement.368
Institutional framework relevant to child marriage
The Department of Children Services is responsible for safeguarding the rights and welfare of children in Kenya. The Department has dedicated children’s officers in both its headquarters and field offices. At the provincial level there is a Provincial Children’s Officer who co-ordinates officers at the district level. These officers cover approximately 47 percent of the country.
The Kenya Police is responsible for preventing and detecting crime, apprehending offenders and enforcing the law, including the Sexual Offences Act 2006 . The Police Department has established Child Protection Units in 14 districts. A Gender and Children Section, headed by an Assistant Commissioner of Police, has also been set up at police headquarters. 369 However, child rights and child protection have not been recognized and strengthened as a specialist and key area of practice within the department more generally.
Prosecutions relating to child marriage have been sporadic and mainly involve cases where girls have been forced to enter into marriage against their will. Prosecutors generally rely on the Sexual Offences Act 2006 , which, as noted above, is not a suitable ground for prosecuting cases of child marriage, as a conviction requires evidence of sexual penetration. Successful prosecution invariably depends upon the girl’s interest in and ability to report such cases to authorities rather than a broad commitment on the part of law enforcement agencies and government actors to eradicate the practice.
Factors leading to child marriage
Poverty plays a central role in perpetuating child marriage. Where poverty is acute, young girls can be regarded as an economic burden and her marriage to an older man may be believed to benefit the child and her wider family, both
367 Section 8. 368 Section 29 provides that any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under the Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years. This may be used to prosecute willing parents; however no case has so far been brought under this head. 369 See
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financially and socially. In many cases, a family's only way to recover its investment in a daughter is to have her married in exchange for a dowry. Additionally, child marriages form new alliances between tribes, clans, and villages; reinforce social ties; and stabilize social status. 370
Some parents can also regard child marriage as a protection mechanism against premarital sexual activity, unintended pregnancy, sexually transmitted infections, sexual abuse or trafficking. Additionally, young girls are widely presumed to be free of HIV/AIDS, and as a result are often preferred for marriage. This was particularly evident from a study conducted in Nyanza Province. 371
A lack of awareness, and ill-informed perceptions on the risks associated with child marriage additionally perpetuate the vulnerability of girls to early marriage. A concerning 39.8 percent of survey respondents indicated that they had never thought about the issue of child marriage. However, 63.3 percent of respondents did believe that child marriage was a major problem for girls in their community, with a further 22.3 percent acknowledging child marriage as a problem.
Risks associated with child marriage
Heightened risk of child commercial sexual exploitation
In many cases, parents consent to or facilitate child marriage because they genuinely believe this to be in the best interests of their child, for example because they believe that marriage will offer their daughter protection from sexual assault, trafficking or HIV infection. In fact, child marriage can be used as a means of obtaining children for the purposes of bonded labor, enslavement, or commercial sexual exploitation. 372
Derogation of basic rights
Child marriage violates girls’ basic human rights by excluding them from decisions regarding the timing of marriage and choice of spouse. In many instances, child marriage marks an abrupt initiation into sexual relations, often with a relative stranger. 373 As children themselves, girls are physiologically and psychologically unready to make such transitions, or to shoulder the responsibilities of marriage and childbearing. 374
Health risks
Child marriage is associated with multiple health risks. These are exacerbated by the fact that married girls have limited access to reproductive health services and information. A fundamental difficulty is that girls are financially dependent on their husbands and generally occupy a socially inferior position within the household. They therefore lack the power to exercise their rights regarding sexual choice and family planning. For example, they are unlikely to be able to ask their husbands to have an HIV test, to abstain from intercourse or demand the use of
370 Forward, above n 294. 371 J R Glynn et al, ‘Why do young women have a much higher prevalence of HIV than young men? A study in Kisumu, Kenya and Ndola, Zambia’, AIDS Vol.15(4) (2001) 134. 372 UNICEF, above n 339. 373 Populations Council, Transitions To Adulthood: Child Marriage/Married Adolescents
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contraception; 375 likewise they cannot insist that their husbands be monogamous. This leaves them at high risk of underage pregnancy and HIV infection, not to mention the psychological damage on girls entering marriage as children. According to a recent report by the International Center for Research on Women, 36 percent of girls married before 18 in Kenya believe that a man may be justified in beating his wife, as compared with 20 percent of married women more generally. 376
Underage pregnancy
Studies show a strong association between child marriage and early childbirth, partly because girls are pressured to prove their fertility soon after marrying, coupled with the fact that they have little access to information on reproductive health or the ability to influence decision-making regarding family planning. 377 Underage pregnancy is associated with higher rates of maternal mortality; 378 for example, because pregnancy suppresses the immune system, girls are at increased risk of acquiring diseases such as malaria. 379
Exposure to HIV/AIDS
A study in Kenya concluded that married girls had a 50 percent higher likelihood than unmarried girls of becoming infected with HIV.380 Another study, which explored why married girls in Kenya and Zambia had a higher risk for HIV infection, concluded that because married girls are under pressure to prove their fertility, they are more likely to have unprotected intercourse. It also found that husbands were significantly older (between 5–14 years) than their wives and were 30 percent more likely (than boyfriends of single girls) to be infected with HIV. 381
Decreased access to education
There is a strong correlation between girls' educational levels and age at marriage. In Kenya, when a girl marries she is likely to leave school, particularly if she becomes pregnant. Illiteracy rates of married girls by 15 years old are as high as 62 percent, much higher than their unmarried peers.382 Reduced access to education further erodes girls’ income-earning potential and exacerbates the cycle of social and financial dependency on their spouse. 383 By not attending school, girls are also denied other opportunities such as to recreational play, development of friendships, and social interaction skills. 384
Reduced choice
Girls who find themselves in an unhappy marriage are often trapped. First, they are often unable to leave because they cannot repay the price of their dowry. Second, divorce is widely considered unacceptable and leaving a marriage without a husband’s consent could have serious implications for the social or tribal ties that were formed through the marriage.
375 S Clark, ‘Early marriage and HIV risks in sub-Saharan Africa’, Student Family Planning 35(3) (2004) 149. 376 International Center for Research on Women, Child Marriage and Domestic Violence (2006). 377 C Bledsoe and B Cohen (eds.) Social Dynamics of Adolescent Fertility in sub-Saharan Africa (1993). 378 UNFPA, Women’s Empowerment and Reproductive Health (2005). 379 M Watanabe et al, ‘Changes in T, B, and NK lymphocyte subsets during and after normal pregnancy’ American Journal of Reproductive Immunology 37 (1997) 368. 380 Glynn et al, above n 371. 381 Clark, above n 375. 382 Kenyan Central Bureau of Statistics et al, above n 342. 383 O’Donnell, above n 181. 384 IPPF, above n 338.
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Isolation and depression
The consequences of underage marriage include separation from family, isolation, and lack of freedom to interact with peers. Once married, girls are taken to their husband’s household, where they assume the role of wife, domestic worker and, eventually, mother. These new homes can be in a different village or town. Where there is a significant age gap between husbands and wives there may be little social interaction, contributing to feelings of isolation. Particularly in polygamous marriages, girls may feel rejected, lonely, and depressed. 385
Proposed interventions
Promoting education
To date, policy interventions have focused more on unmarried girls’ rights to education than on the particular challenges faced by married girls. 386 Unfortunately, there is a dearth of governmental projects specifically targeting the practice in the country. However, some organizations have made efforts at a grassroots level. A 2007 report prepared by the International Center for Research on Women describes one effort:
In 1999, Christian Children’s Fund’s (CCF) Margery Kabuya started a program to prevent child marriage among Kenya’s Maasai tribe through an approach that taps into Maasai traditions and compensates for the economic incentive of marrying girls. In the Maasai culture, baby girls are promised as wives to men before they are even born — a practice called “booking.” The project, called the Naning’oi Girls Boarding School, substitutes the traditional practice of booking girls for marriage with booking them for school instead. Naning’oi works within the framework of the dowry system, where the school represents a man in search of a young bride. Well-respected members of the Maasai community become “suitors” on the school’s behalf, offering gifts to a girl’s father in exchange for committing to his daughter’s attendance at the boarding school. To date, 350 girls are enrolled and more than 500 additional infants and girls have been booked, waiting until they are old enough to attend school. 387
Promoting the compulsory nature of primary education for all girls should be prioritized, as well as informing parents as to the financial benefits that accrue in the long-run from educating their daughters. Specific programs aimed at decreasing the school dropout rate of girls upon marriage or pregnancy, for example through distance learning programs, should be explored. Other examples include the establishment of Girl Advisory Committees staffed by teachers, parents and pupils to monitor girl school attendance and investigate situations where girls leave school prematurely. Girl ‘clubs’ led by older students could focus on peer-on-peer education regarding the dangers of underage marriage and be charged with reporting impending marriages to school authorities.
385 Ibid. 386 Kenyan Central Bureau of Statistics et al, above n 335. 387 International Center for Research on Women (ICRW), New Insights on Preventing Child Marriage: A Global Analysis of Factors and Programs (2007) 2
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Mobilizing religious leaders
Kenya is predominantly a Christian society; approximately 45 percent of the population is Protestant and 33 percent are Catholic, while 10 percent are Muslim and 10 percent adhere to indigenous belief systems.388 Religious leaders should be engaged to assist in sensitizing parents regarding the dangers of child marriage and dissuading families from consenting to marriages where one party is a child.
Working to alleviate poverty
Assistance programs should be geared towards eliminating some of the perceived advantages associated with child marriage, for example, financial assistance schemes that are based upon the number of children living in the home (preferably the number of children attending school), and systems that increase girls' ability to contribute to household income in a way that does not impact upon their schooling. Efforts should also be made to reform local norms relating to bride price and dowry.
Health services support
While preventing child marriage is the ultimate aim, it is also important to support girls who are already married. Services specifically targeting married girls might include family planning, maternal health services, reproductive health education, HIV testing and treatment, and education programs specifically geared towards children who are married or who have child-rearing responsibilities.
Advocacy and awareness
Advocacy should be undertaken to encourage the central government to tackle the issue of child marriage including petitioning Members of Parliament to issue proclamations against the practice. Members of the public should be sensitized regarding the dangers of child marriage through media campaigns and workshops.
Effective legislation
The marriage laws should be harmonized and the marriage age set at 18 years of age for both males and females. Consideration should be given to outlawing the practice of bride price through the form of a dowry.
Even though Section 48 of the Marriage Act 1902 stipulates tougher penalties for persons soliciting the marriage of a child, and the possibility of severe penalties under the Sexual Offences Act2006 , securing the commitment of law enforcement officers and particularly those with discretion over sentencing is also required.
Establishment of rescue centers
In areas where child marriage is prevalent, local authorities and NGOs should establish rescue centers for girls who wish to leave a marriage but cannot return to their parent’s home. Such centers should be equipped with personnel specifically trained in dealing with the protection consequences of child marriage.
388 Ship for World Youth Alumni Association, Kenya Handbook (2007)
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Annex 1 List of conventions
ratified/signed by Kenya
Date of Date of Name of Convention Ratification (r) Signature Accession (a) African Charter on Human and Peoples’ 23 January 1992 Rights (ACHPR) African Charter on the Rights and 25 July 2000 Welfare of the Child (ACRWC) (1990) Convention on the Elimination of All Forms of 9 March 1984 (a) Discrimination against Women (CEDAW) (1979)
Convention on the Rights of the Child 26 January 1990 30 July 1990 (CRC) (1989)
Hague Convention on Inter -Country 12 November 2008 Adoption (1993) ILO Convention No. 182 on the Worst Forms of Child Labor (ILO Convention 7 May 2001 (r) 182) (1999) ILO Convention No. 138 on the Minimum Age for Employment (ILO Convention 9 April 1979 (r) 138) (1973) International Covenant on Civil and 1 May 1972 (a) Political Rights (ICCPR) (1966) International Covenant on Economic, Social and Cultural Rights (ICESCR) 1 May 1972 (a) (1966) Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography 8 September 2000 (2000) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women 5 January 2008 and Children (2000) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of 17 December 2003 Women. United Nations Convention against Transnational Organized Crime (CTOC) 16 June 2004 (a) (2000)
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Annex 2 Related survey findings
Section 2 Birth registration
Table 9 By what age must a child’s birth be registered?
Valid Cumulative Response Frequency Percent Percent Percent Valid After Birth 157 43.6 51.8 51.8 After 1 Week 6 1.7 2.0 53.8 After 2 Weeks 7 1.9 2.3 56.1 After 3 Weeks 3 .8 1.0 57.1 After 6 Weeks 46 12.8 15.2 72.3 After 1 month 2 0.6 0.7 72.9 After 2 months 4 1.1 1.3 74.3 After 3 months 7 1.9 2.3 76.6 After 4 months 3 .8 1.0 77.6 After 5 months 5 1.4 1.7 79.2 After 6 months 12 3.3 4.0 83.2 After 9 months 5 1.4 1.7 84.8 After 1 year 2 0.6 0.7 85.5 After 2 years 2 0.6 0.7 86.1 After 4 years 28 7.8 9.2 95.4 After 6 years 7 1.9 2.3 97.7 After 18 Years 5 1.4 1.7 99.3 At Any Age 2 0.6 0.7 100.0 Total 303 84.2 100.0 No response 57 15.8 Total 360 100.0
Table 10 What does birth registration cost, if anything?
Valid Cumulative Response Frequency Percent Percent Percent Valid Free 108 30.0 51.7 51.7 3 1 0.3 0.5 52.2 20 7 1.9 3.3 55.5 50 16 4.4 7.7 63.2 60 1 0.3 0.5 63.6 70 2 0.6 1.0 64.6 90 1 0.3 0.5 65.1 100 16 4.4 7.7 72.7 130 4 1.1 1.9 74.6 150 30 8.3 14.4 89.0 200 11 3.1 5.3 94.3 450 1 0.3 0.5 94.7 500 9 2.5 4.3 99.0
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1000 1 0.3 0.5 99.5 2000 1 0.3 0.5 100.0 Total 209 58.1 100.0 No response 151 41.9 Total 360 100.0
Table 11 Where was your daughter born?
Valid Cumulative Response Frequency Percent Percent Percent Valid Hospital 207 57.5 57.7 57.7 Clinic 12 3.3 3.3 61.0 Home 138 38.3 38.4 99.4 Other 2 0.6 0.6 100.0 Total 359 99.7 100.0 No response 1 0.3 Total 360 100.0
Table 12 Did you register your daughter’s birth?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 199 55.3 55.6 55.6 No 159 44.2 44.4 100.0 Total 358 99.4 100.0 No response 2 .6 Total 360 100.0
Table 13 At what age did you register your daughter?
Valid Cumulative Response Frequency Percent Percent Percent Valid After Birth 85 23.6 43.4 43.4 After 5 Months 3 0.8 1.5 44.9 After 6 Months 4 1.1 2.0 46.9 After 9 Months 4 1.1 2.0 49.0 After 1 Year 30 8.3 15.3 64.3 After 2 Years 4 1.1 2.0 66.3 After 4 Years 3 0.8 1.5 67.9 After 5 Years 5 1.4 2.6 70.4 After 1 Week 16 4.4 8.2 78.6 After 2 Weeks 9 2.5 4.6 83.2 After 3 Weeks 1 0.3 0.5 83.7 After 1 Month 20 5.6 10.2 93.9 After 2 Months 6 1.7 3.1 96.9 After 3 Months 5 1.4 2.6 99.5 After 4 Months 1 0.3 0.5 100.0 Total 196 54.4 100.0 No Response 164 45.6 Total 360 100.0
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There may be a relationship between this result and the results obtained in question 4 where 44.4 percent of respondents indicated that they did not register their youngest daughters.
Table 14 Why did you register your daughter’s birth?
Valid Response Frequency Percent Birth Registration is compulsory 94 42.34 To avoid penalties associated with failure to register 19 8.56 Birth is needed to acquire legal documents and social 102 45.95 services Other reasons 5 2.25 Not known 2 0.9
Anecdotal evidence revealed that some respondents undertook registration in order to receive a service such as immunization or because of a census.
Table 15 Would you describe the registration process as straightforward, complicated or difficult?
Valid Cumulative Response Frequency Percent Percent Percent Valid Straightforward 128 35.6 65.3 65.3 Complicated 55 15.3 28.1 93.4 Difficult 13 3.6 6.6 100.0 Total 196 54.4 100.0 No response 164 45.6 Total 360 100.0
Those who indicated that the registration process was not easy cited obstacles such as distance to registration centers, corruption, and postponement of appointments by administration officials. 45.6 percent of respondents did not answer this question. There may be a relationship between this result and the results obtained in question 4 where 44.4 percent of respondents indicated that they did not register their youngest daughters.
Table 16 If you did not register your daughter’s birth, what was the reason?
Response Frequency Valid Percent Cost was too high 21 13.04 I did not have the required documents 25 15.53 Fear of government officials for tax reasons 4 2.48 Fear of ill -treatment/abuse by government officials 14 8.70 I saw no reason to do so 25 15.53 Lack of time 27 16.77 Registration centers were not accessible 40 24.84 Unfamiliarity with the registration procedure 74 45.96 My daughter was not eligible for registration 4 2.48 Other 7 4.35 I don’t Know 12 7.45
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Table 17 Who was the primary decision-maker regarding the birth registration of your daughter?
Valid Cumulative Response Frequency Percent Percent Percent Valid Mother 117 32.5 33.0 33.0 Father of child 13 3.6 3.7 36.6 Both father and 223 61.9 62.8 99.4 mother of child Other 2 0.6 0.6 100.0 Total 355 98.6 100.0 Missing System 5 1.4 Total 360 100.0
Section 3 Education
Table 18 Is education compulsory?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 324 90.0 90.0 90.0 No 34 9.4 9.4 99.4 Don't Know 2 0.6 0.6 100.0 Total 360 100.0 100.0
Table 19 Is primary education to be provided free to all children?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 331 91.9 93.0 93.0 No 23 6.4 6.5 99.4 Don't Know 2 0.6 0.6 100.0 Total 356 98.9 100.0 No response 4 1.1 Total 360 100.0
Table 20 Is your daughter of school-going age?
Response Valid Cumulative Frequency Percent Percent Percent Valid Yes 285 79.2 82.4 82.4 No 61 16.9 17.6 100.0 Total 346 96.1 100.0 No response 14 3.9 Total 360 100.0
The average age of the respondents’ daughters was 12 years.
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Table 21 Is your daughter currently attending school?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 256 71.1 89.2 89.2 No 31 8.6 10.8 100.0 Total 287 79.7 100.0 No response 73 20.3 Total 360 100.0
Table 22 What level of education is your daughter attending?
Valid Cumulative Response Frequency Percent Percent Percent EarlyChildhood Valid 38 10.6 14.8 14.8 Education Primary School 169 46.9 65.8 80.5 Secondary School 34 9.4 13.2 93.8 Tertiary 16 4.4 6.2 100.0 Total 257 71.4 100.0 No response 103 28.6 Total 360 100.0
65.8 percent of respondents indicated that their children were in primary school. An earlier survey question found that most oldest daughters had a mean age of 12 years, placing them in primary school.
Table 23 If you daughter is not attending school, what is the reason they left school?
Valid Response Frequency Percent Need to work to provide income for the family 4 12.90 Education is not a priority for my daughters 1 3.23 Lack of financial resources 16 51.61 My daughter did not want to remain in school 3 9.68 Other family members did not want her to remain in 1 3.23 school Other 16 51.61
The most common reasons why the oldest daughters left school were lack of financial resources and other reasons not in the questionnaire including marriage, death of the father, abuse by children of different tribes in school, caring for siblings, and because of the nomadic lifestyle of the mother.
Table 24 Did you attempt to keep your daughter in school?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 11 3.1 42.3 42.3 No 15 4.2 57.7 100.0 Total 26 7.2 100.0 No response 334 92.8
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Total 360 100.0 Anecdotal evidence suggests that it would be difficult for a mother to prevent their daughter from leaving school in this situation. 42.3 percent of respondents, however, attempted to keep their daughters in school.
Table 25 How did you try to keep your daughter in school?
Valid Response Frequency Percentage I approached community leaders 1 3.23 I discussed issues within the family 3 9.68 I sought assistance/ counseling for the daughter 2 6.45 I discussed issues with the school staff 3 9.68 I discussed issue with community group 0 0.00 I sought legal advice 0 0.00 I used other methods 4 12.90
Table 26 What was the reason you did not try to keep you daughter in school?
Response Frequency Valid Percentage Did not know what to do 0 14.00 Did not think it was a problem 2 14.29 Did not know from whom to obtain 9 64.29 assistance Others had already made the final 1 7.14 decision Others had already made the final 5 35.71 decision
Table 27 Who is the primary decision-maker regarding your daughter's education?
Valid Cumulative Response Frequency Percent Percent Percent Valid Mother 83 23.1 23.6 23.6 Father of 11 3.1 3.1 26.8 child Both father and mother 257 71.4 73.2 100.0 of child Total 351 97.5 100.0 Missing System 9 2.5 Total 360 100.0
Section 4 Property rights
Table 28 Can females exercise ownership over property?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 294 81.7 81.9 81.9 No 65 18.1 18.1 100.0 Total 359 99.7 100.0 No response 1 0.3 Total 360 100.0
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Table 29 Are females able to inherit property on the same terms as males?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 148 41.1 41.1 41.1 No 203 56.4 56.4 97.5 Don't 9 2.5 2.5 100.0 Know Total 360 100.0 100.0
Table 30 Has your daughter been able to exercise her property rights?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 48 13.3 14.6 14.6 No 37 10.3 11.3 25.9 Not relevant as my daughter does not 240 66.7 73.2 99.1 have property entitlements Don't Know 3 0.8 0.9 100.0 Total 328 91.1 100.0 No response 32 8.9 Total 360 100.0
The majority of respondents (73.2 percent) found this question inapplicable as their daughters did not possess exercisable property rights. This is not surprising given that the average age of respondents’ daughters was 14 years.
Table 31 If not, did you try to seek protection for her rights?
Valid Cumulative Frequency Percent Response Percent Percent Valid Yes 9 2.5 23.7 23.7 No 29 8.1 76.3 100.0 Total 38 10.6 100.0 Missing System 322 89.4 Total 360 100.0
Table 32 Analysis of methods used to protect daughters’ rights
Response Frequency Percentage I approached community leaders 0 0.00 I discussed issues within the family 8 88.89 I discussed issues with the school staff 1 11.11 I discussed the issue with provincial 2 22.22 administration office I discussed issue with community group 0 0.00 I sought legal advice 1 11.11 I used other methods 0 0.00
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Table 33 Should women have equal rights to property?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 80 22.2 82.5 82.5 No 17 4.7 17.5 100.0 Total 97 26.9 100.0 Missing System 263 73.1 Total 360 100.0
Table 34 Who is the primary decision-maker for questions relating to property inheritance?
Valid Cumulative Response Frequency Percent Percent Percent Valid Mother 33 9.2 9.4 9.4 Father of child 101 28.1 28.7 38.1 Both father and 204 56.7 58.0 96.0 mother of child Other relative 8 2.2 2.3 98.3 Community 4 1.1 1.1 99.4 leader Other 2 0.6 0.6 100.0 Total 352 97.8 100.0 Missing System 8 2.2 Total 360 100.0
Section 5 Child Labor
Table 35 What is the minimum age for the employment of children?
Valid Cumulative Response Frequency Percent Percent Percent Valid 8 1 0.3 0.3 0.3 10 1 0.3 0.3 0.6 12 2 0.6 0.6 1.3 13 1 0.3 0.3 1.6 14 2 0.6 0.6 2.3 15 18 5.0 5.8 8.1 16 2 0.6 0.6 8.8 17 1 0.3 0.3 9.1 18 156 43.3 50.6 59.7 19 13 3.6 4.2 64.0 20 58 16.1 18.8 82.8 21 1 0.3 0.3 83.1 22 12 3.3 3.9 87.0 23 4 1.1 1.3 88.3 24 7 1.9 2.3 90.6 25 24 6.7 7.8 98.4 28 3 0.8 1.0 99.4
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30 2 0.6 0.6 100.0 Total 308 85.6 100.0 No response 52 14.4 Total 360 100.0
Mean 19.18 Mode 18 Range 22 Minimum 8 Maximum 30
50.6 percent of respondents indicated that the minimum employment age was 18 years. The minimum age for employment of children under the Employment Act 2001 is 13 years; 0.3 percent of respondents correctly answered this question.
Table 36 Who is penalized if a child is employed under this age?
Valid Cumulative Response Frequency Percent Percent Percent Valid The Employer 181 50.3 50.8 50.8 The child 9 2.5 2.5 53.4 The parents 95 26.4 26.7 80.1 Both employer and 54 15.0 15.2 95.2 the child No One 12 3.3 3.4 98.6 Don't Know 5 1.4 1.4 100.0 Total 356 98.9 100.0 Missing System 4 1.1 Total 360 100.0
Table 37 Are there exceptions to the minimum age for the employment of children?
Valid Cumulative Response Frequency Percent Percent Percent Yes , s ome jobs are legal for children such as 52 14.4 14.8 14.8 domestic labor Child working in home/family farms/family 148 41.1 42.2 57.0 business Where parents consent 35 9.7 10.0 67.0 No exceptions 95 26.4 27.1 94.0 Don't know 21 5.8 6.0 100.0 Total 351 97.5 100.0 System 9 2.5 Total 360 100.0
72.9 percent of respondents indicated that there were exceptions for employment of a child below the minimum age. It should be highlighted, however, that the vast majority of respondents pegged the minimum age of employment at 18 years which is higher than what is actually required by law.
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Table 38 Have you ever thought about the issue of child labor?
Valid Cumulative Response Frequency Percent Percent Percent I have never Valid 145 40.3 41.2 41.2 thought about it Sometimes I think about it 40 11.1 11.4 52.6 but it does not worry me Concerned about this issue 167 46.4 47.4 100.0 for my daughters Total 352 97.8 100.0 Missing System 8 2.2 Total 360 100.0
Table 39 How significant a problem do you think child labor is for girls in your community?
Valid Cumulative Response Frequency Percent Percent Percent Valid Not a problem 67 18.6 19.1 19.1 A problem 80 22.2 22.9 42.0 A major 203 56.4 58.0 100.0 problem Total 350 97.2 100.0 Missing System 10 2.8 Total 360 100.0
Table 40 What do you think is an appropriate age for children to begin working?
Valid Cumulative Response Frequency Percent Percent Percent Less than Valid 21 5.8 5.9 5.9 15 15 to 18 25 6.9 7.0 13.0 Over 18 309 85.8 87.0 100.0 Total 355 98.6 100.0 No response 5 1.4 Total 360 100.0
Table 41 Primary decision-maker for when daughter should commence work
Valid Cumulative Response Frequency Percent Percent Percent Valid Mother 64 17.8 18.6 18.6 Father of child 28 7.8 8.1 26.7 Both father and 174 48.3 50.4 77.1 mother of child Other relative 1 0.3 0.3 77.4
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Commu nity 3 0.8 0.9 78.3 leader Other 75 20.8 21.7 100.0 Total 345 95.8 100.0 No response 15 4.2 Total 360 100.0
Section 6 Child Trafficking
Table 42 Have you ever thought about the issue of child trafficking?
Valid Cumulative Response Frequency Percent Percent Percent I have never Valid 128 35.6 36.7 36.7 thought about it Sometimes think about it 24 6.7 6.9 43.6 but does not worry me Concerned about this issue 197 54.7 56.4 100.0 for my daughters Total 349 96.9 100.0 Missing System 11 3.1 Total 360 100.0
Table 43 How significant a problem do you think child trafficking is for girls in your community?
Valid Cumulative Response Frequency Percent Percent Percent Valid Not a problem 89 24.7 26.1 26.1 A problem 67 18.6 19.6 45.7 A major 185 51.4 54.3 100.0 problem Total 341 94.7 100.0 Missing System 19 5.3 Total 360 100.0
Section 7 Child sexual exploitation
Table 44 How significant a problem do you think child commercial sexual exploitation is for girls in your community?
Valid Cumulative Response Frequency Percent Percent Percent Valid Not a problem 48 13.3 13.8 13.8 A problem 61 16.9 17.6 31.4 A major 238 66.1 68.6 100.0 problem Total 347 96.4 100.0
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Missing System 13 3.6 Total 360 100.0 Section 8 Child marriage
Table 45 What is the minimum age for marriage under the law?
Valid Cumulative Response Frequency Percent Percent Percent Valid 9 1 .3 .3 .3 12 3 .8 .9 1.3 13 1 .3 .3 1.6 14 5 1.4 1.6 3.1 15 20 5.6 6.3 9.4 16 5 1.4 1.6 11.0 17 6 1.7 1.9 12.9 18 88 24.4 27.6 40.4 19 4 1.1 1.3 41.7 20 51 14.2 16.0 57.7 21 4 1.1 1.3 58.9 22 8 2.2 2.5 61.4 23 6 1.7 1.9 63.3 24 7 1.9 2.2 65.5 25 89 24.7 27.9 93.4 26 4 1.1 1.3 94.7 28 5 1.4 1.6 96.2 29 1 .3 .3 96.6 30 9 2.5 2.8 99.4 32 1 .3 .3 99.7 35 1 .3 .3 100.0 Total 319 88.6 100.0 No 41 11.4 Response Total 360 100.0
Mean 20.97 Range 26 Minimum 9 Maximum 35
Table 46 Are there any exceptions to the minimum age requirement?
Valid Cumulative Response Frequency Percent Percent Percent Valid In cases of rape 13 3.6 3.7 3.7 Where parents consent to the 92 25.6 26.4 30.1 marriage Where marriages takes place under 54 15.0 15.5 45.6 religious/ customary law Other 29 8.1 8.3 53.9
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No exceptions 150 41.7 43.0 96.8 Don't Know 11 3.1 3.2 100.0 Total 349 96.9 100.0 No Response 11 3.1 Total 360 100.0
15.5 percent of respondents cited ‘other’ exceptions such as where the marriage takes place under religious/customary law, pregnancy, poverty or the death of both parents.
Table 47 Have you ever thought about the issue of child marriage?
Response Valid Cumulative Frequency Percent Percent Percent I have never thought 141 39.2 39.8 39.8 about it Sometimes think about it but does not worry 18 5.0 5.1 44.9 me Concerned about this 195 54.2 55.1 100.0 issue for my daughters Total 354 98.3 100.0 No Response 6 1.7 Total 360 100.0
Table 48 How significant a problem do you think child marriage is for girls in your community?
Valid Cumulative Response Frequency Percent Percent Percent Valid Not a problem 51 14.2 14.4 14.4 A problem 79 21.9 22.3 36.7 A major 224 62.2 63.3 100.0 problem Total 354 98.3 100.0 Missing System 6 1.7 Total 360 100.0
Table 49 What do you consider to be the appropriate age for marriage?
Valid Cumulative Response Frequency Percent Percent Percent Valid Less than 15 4 1.1 1.1 1.1 15 to 18 49 13.6 13.8 14.9 Over 18 303 84.2 85.1 100.0 Total 356 98.9 100.0 Missing No response 4 1.1 Total 360 100.0
Table 50 Who is the primary decision-maker regarding when your daughter should marry?
Valid Cumulative Response Frequency Percent Percent Percent
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Valid Mother 32 8.9 9.2 9.2 Father of 47 13.1 13.5 22.7 child Both father and mother 200 55.6 57.5 80.2 of child Other 4 1.1 1.1 81.3 relative Other 65 18.1 18.7 100.0 Total 348 96.7 100.0 Missing System 12 3.3 Total 360 100.0
Access to Justice
A component of the survey tool was an inquiry into whether mothers had encountered and sought legal assistance pertaining to matters affecting their daughters. The data gathered is presented below.
Table 51 Have you ever faced a legal problem in relation to your daughter(s)?
Valid Cumulative Response Frequency Percent Percent Percent Valid Yes 29 8.1 8.3 8.3 No 322 89.4 91.7 100.0 Total 351 97.5 100.0 No response 9 2.5 Total 360 100.0
Table 52 What was the nature of the issue?
Valid Cumulative Response Frequency Percent Percent Percent Denial of birth Valid 1 0.3 3.4 3.4 registration Denial of access to 7 1.9 24.1 27.6 education Denial of access to 1 0.3 3.4 31.0 property rights Child sexual 8 2.2 27.6 58.6 exploitation Child marriage 2 0.6 6.9 65.5 Other 10 2.8 34.5 100.0 Total 29 8.1 100.0 No response 331 91.9 Total 360 100.0
Of the 8.3 percent who had encountered a legal problem in relation to their daughters, the main issues identified were child sexual exploitation (27.59 percent), denial of access to education (24.14 percent), and ‘other’ issues (34.48 percent) including child maintenance, denial of court orders, abandonment of mother and child by father, abduction of a child by the father, custody matters, and neglect of parental responsibility by fathers.
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Table 53 Who did you first go to for advice?
Valid Cumulative Response Frequency Percent Percent Percent Family member 11 3.1 36.7 36.7 Community leader 8 2.2 26.7 63.3 Government agency 1 0.3 3.3 66.7 CBO/Self help 5 1.4 16.7 83.3 organi zation Provincial Administration 3 0.8 10.0 93.3 Officer Other 2 0.6 6.7 100.0 Total 30 8.3 100.0 No response 330 91.7 Total 360 100.0
Anecdotal evidence suggested than when mothers approached a family member with a legal issue, it was generally a mother, sister or uncle.
Table 54 Did you at any point seek legal advice?
Valid Cumulative Response Frequency Percent Percent Percent Yes 20 5.6 69.0 69.0 No 9 2.5 31.0 100.0 Total 29 8.1 100.0 No response 331 91.9 Total 360 100.0
Table 55 If yes, where from?
Response Frequency Valid Percent Government agencies 13 65.00 NGO 3 15.00 CBO/Self help groups 3 15.00 Provincial Administration 1 5.00 Other sources 1 5.00
Of the 69 percent of respondents who sought legal advice, 65 percent approached government agencies, 15 percent approached NGOs (Federation of Women Lawyers – FIDA, and the Children Legal Action Network - CLAN) and 15 percent approached a community-based organization or self-help groups. The government agencies cited by the respondents were the local chief and Department of Children Services
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Table 56 If you did not seek legal advice, why not?
Valid Response Frequency Percent Did not know where to go 1 11.11 Embarrassed 0 0.00 Lack of financial resources 1 11.11 Was afraid of treatment 0 0.00 Was afraid that the daughter would be considered a 0 0.00 criminal Other 3 33.33
Of the 31 percent of respondents who did not seek legal advice, the majority stated that they did not know where to go (11.1 percent), lacked the required financial resources (11.1 percent), or ‘other’ reasons (33.3 percent). ‘Other’ reasons included that they decided to forgive the person involved or approach the local chief or CLAN for arbitration.
Table 57 Did you lodge a complaint about the matter with the police or other relevant authorities?
Valid Cumulative Response Frequency Percent Percent Percent Yes 12 3.3 48.0 48.0 No 13 3.6 52.0 100.0 Total 25 6.9 100.0 No response 335 93.1 Total 360 100.0
Table 58 Evaluation of the assistance provided by such authorities
Valid Cumulative Response Frequency Percent Percent Percent Helpful in resolving my 5 1.4 50.0 50.0 problem Referred me to another agency who could help 3 0.8 30.0 80.0 me Unhelpful 1 0.3 10.0 90.0 They treated me badly 1 0.3 10.0 100.0 Total 10 2.8 100.0 System 350 97.2 Total 360 100.0
Table 59 If you did not lodge a complaint with the police or other relevant authorities, why not?
Valid Response Frequency Percent Not able to travel to an office 0 0.00 Didn't know how to raise the issue 7 53.85 Didn't know if they could help 5 38.46 Was afraid of how I would be treated 2 15.38 Was afraid I would have to pay money that I cannot 3 23.08
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afford Was afraid that my daughter would be treated as a 1 7.69 criminal Police/Authorities are not helpful 0 0.00 Other reasons 4 30.77
Table 60 Of those that did refer the matter to authorities, did you achieve a satisfactory outcome?
Valid Cumulative Response Frequency Percent Percent Percent Yes 13 3.6 56.5 56.5 No 10 2.8 43.5 100.0 Total 23 6.4 100.0 No response 337 93.6 Total 360 100.0
Anecdotal evidence suggests that of those respondents who were not satisfied with the outcome they received after referring the matter to authorities, this was due to corruption on the part of a chief/police or the authorities’ failure to prosecute the offender.
Table 61 If you had a legal issue in relation to the protection of your daughter’s rights, which two organizations / individuals would you be most likely to approach for assistance?
Response Frequency Valid Percent Family member 54 18.12 Community leader 49 16.44 Government agency 52 17.45 NGO Including Legal aid 49 16.44 organi zation CBO/Self help organi zation 30 10.07 Provincial Administration Officer 64 21.48 Total 298 100.00 No response 64 Total 362
Anecdotal evidence suggests that:
! When referring disputes to a provincial administration officer, this comprised mainly the police, local chief or district officer.
! When referring disputes to a family member, mothers would mainly approach their parents.
! When referring complaints to a government agency, this mainly comprised the Children’s Department or police.
! NGOs referenced included FIDA, the Family Department, Medecins Sans Frontieres (MSF), Center for Rights Education and Awareness (CREAW), Nairobi Women, Women rights group, Children Welfare and CLAN.
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Table 62 If you had a legal issue in relation to the protection of your daughter’s rights, which 2 organizations / individuals would you be least likely to approach for assistance?
Response Frequency Valid Percent Fami ly member 25 12.69 Community leader 36 18.27 Government agency 27 13.71 NGO Including Legal aid organi zation 18 9.14 CBO/Self help organi zation 32 16.24 Provincial Administration Officer 39 19.80 Other 20 10.15 Total 197 100.00 No response 164 Total 360
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