Children’s rights legislation in Kenya: an overview By Paul Iskander
Introduction
This paper provides an overview of children’s rights, focusing on Kenya orphans. Kenya was chosen from a list of fifteen countries in sub-Saharan Africa, largely due to its recent enactment of the Children Act, 2001, as an attempt to implement the Convention on the Rights of the Child (“CRC”). While the Children Act is not without its faults, it is a comprehensive, ambitious piece of legislation that incorporates nearly all of the rights enumerated in the CRC and includes detailed terms on the enforcement and provision of those rights. At the very least, the Children Act provides an impressive aspirational framework for the protection of children’s rights. The volume of detailed provisions regarding the structure and administration of children’s services demonstrate that the Act is meant to be practical as well as aspirational.
This paper’s goals are chiefly expository: its main task is to bring together disparate (and often difficult-to-find) information on legislation and policy surrounding children’s rights in Kenya, and (where possible) to survey the extent to which this legislation and policy has been successfully implemented. To that end, this paper examines the following:
1) the background of the AIDS crisis and orphans in Kenya (including the major threats facing Kenyan orphans and vulnerable children); 2) the best practices, key principles and normative frameworks for the provision of children’s services; 3) the international law relating to children’s rights; and 4) Kenya’s domestic legislation on children’s rights.
This paper considers the Kenyan legislation in the context of the aforementioned best practices, key principles, normative frameworks and international obligations, and concludes that although the Kenyan Children Act is not perfect, it does an admirable job of incorporating all of these elements, and could in many regards provide a valuable model for similar legislation in other countries.
Of course, the true test of the Children Act lies in the degree to which its provisions are successfully implemented and enforced. Unfortunately, because the Act is fairly recent, there is relatively little available information on this question, and as such this paper cannot include a comprehensive treatment of this issue. Where this information is available, the paper attempts to detail the success (or lack thereof) with which the Act has been implemented. Regrettably, it was not possible to do so in an exhaustive manner. It would be useful for scholars to perform further research into this question as information becomes more readily available. Background: the AIDS crisis and orphans in Kenya
Going by numbers alone, the situation for African children who have lost one or both parents to AIDS is dire. In 2000, the United Nations estimated that 13 million children under age fifteen years in Sub-Saharan Africa would have lost their mother or both parents to AIDS by the end of that year.1 The United States Bureau of the Census projected that by 2010, over 30 percent of all children under age fifteen in five eastern- and southern-African countries will be orphans, largely due to AIDS.2 By contrast, research indicates that this figure was about 2 percent in most developing countries prior to the advent of AIDS.3
While HIV/AIDS is by no means the only major cause of orphaning, a report by the World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) suggests that HIV/AIDS is uniquely destructive, creating a vicious cycle that will impact on the lives of children for generations.
Other epidemics and disasters also cause death on a large scale and leave orphaned children, but the pattern of HIV/AIDS is unique. AIDS is a protracted problem, which does not allow the prospects of a return to normality. Those who should be caring and providing for children and the elderly are the ones who are dying. In the communities hardest hit, there are fewer and fewer able-bodied adults to produce crops or income or to care for children, who are often pushed into poverty. The survival of those already poor becomes even more precarious. The problems are further exacerbated by the fear and stigma of AIDS which make other members of the community unwilling to help.”4
Orphans – defined as children who have lost one or both parents – are particularly vulnerable to the cyclical effects of HIV/AIDS. They suffer from emotional trauma and psychosocial distress, lack of parental guidance, poverty, vulnerability to hazardous labour and sexual exploitation, and lack of access to education. Many end up living on the street – a life that brings its own host of risks and dangers. Those orphans who find themselves in homes are often victims of exploitation, abuse, or the simple inability of resource-strapped institutions to provide adequate care and a loving home. These issues are explored in greater detail below.
1 UNAIDS, “Report on the global HIV/AIDS epidemic: June 2000” at 27. 2 Human Rights Watch, “In The Shadow Of Death: HIV/AIDS and Children’s Rights in Kenya,” June 2001 [In the Shadow of Death] at 7. 3 Ibid. 4 WHO and UNICEF, “Action for Children,” 1994, at 8. Risks facing orphans and vulnerable children (OVCs) in Kenya
Emotional trauma and psychosocial distress
After the obvious trauma associated with the illness and eventual death of their parents, orphans suffer further distress when they are deprived of their family environment and thrust into new surroundings. This trauma can be lessened if children are able to stay within their extended families and if they are able to remain with their siblings. Conversely, it is exacerbated when children are removed from familiar surroundings, if they are separated from their siblings, if they are sent to poorly run, poorly equipped or overcrowded institutions, if they end up living on the street, or if they live with foster parents or extended family members who exploit or abuse them. The trauma that AIDS orphans experience is frequently exacerbated by the stigma associated with HIV/AIDS – a stigma which is often imposed by community members and the more distant family members of orphans.5
Lack of parental guidance
Without the guidance of a parental figure, children are less able to fully develop socially and emotionally, and risk losing access to their culture of origin.
Poverty
Children orphaned by AIDS lose the caregivers and breadwinners in their families. In a report on the economic impact of HIV/AIDS in Kenya, Futures Group International estimates that the average Kenyan household loses between 58 and 78 percent of its income when one economically active adult dies of AIDS. When a second adult dies, the family loses between 116 and 167 percent of household income – “that is, households incur debt, forcing them to liquidate assets, withdraw children from school or send children away to live with relatives.”6
Poverty is in itself a major problem, but it begets further risks and disadvantages. Without an adult breadwinner at home, many children must engage in labour in order to support themselves. This can mean that orphans stop attending school in order to work, that they expose themselves to exploitive or hazardous labour, and that they become vulnerable to street life and abuse.
Vulnerability to hazardous and exploitive labour
Children orphaned by AIDS face serious economic need, and often must work in order to support themselves. According to a 2001 Human Rights Watch report,
5 In the Shadow of Death, supra note 2 at 8. 6 Lori Bollinger, John Stover, and David Nalo, “The Economic Impact of AIDS in Kenya,” (Washington, DC: Futures Group International, 1999), at 4. It is safe to say that eastern and southern Africa will have a disproportionate number of…working children by 2015 unless immediate action is taken to reverse this trend.7
…
A recent study by UNICEF on HIV/AIDS and child labor in eastern and southern Africa concludes that AIDS plays an important role in pushing a significant percentage of Kenya’s estimated 3.5 million working children into the labor market.8
These orphans often become vulnerable to hazardous and exploitive labour. For example, many orphaned children – especially girls – are sent by their new guardians to work as domestic labourers (i.e. housemaids). This work is fraught with the risk of exploitation and abuse, as a 2000 study by TEMAK found.9 Human Rights Watch describes the study as follows:
In this study, of the twenty-five girls aged nine to sixteen years who were interviewed in depth, eighteen were HIV-positive. Of those eighteen, most had worked in several homes and reported being sexually abused in all or most of them. Fifteen of the girls said their first sexual experiences were coerced and were with their employer or someone in his family or circle of friends. All but one of the HIV-positive girls did not know about HIV/AIDS or how to protect themselves from it. UNICEF and the ILO’s International Programme on the Elimination of Child Labour (IPEC) have documented the hazards of domestic labor, especially for girls, in many parts of the world.10
Orphaned children also commonly perform farm work on commercial tea and coffee plantations. Sexual abuse, beatings and severe work-related injuries are not uncommon.11
Children affected by AIDS can also be drawn into illegal work. Observers such as Human Rights Watch, for example, cited an interview with a child who was sent into the streets by her dying mother to steal.12 This is particularly risky due to the often-abusive treatment of young offenders and street children by the police and the justice system in Kenya.13
7 In the Shadow of Death, supra at 10. 8 Ibid. at 14. 9 TEMAK, “Violation of Basic Needs and Basic Rights of Domestic Workers in Kisumu: Report of a Rapid Study” (Kisumu: TEMAK, November 2000). 10 In the Shadow of Death, supra note 2 at 16. 11 Ibid.. 12 Ibid. 13 Human Rights Watch, “Juvenile Injustice: Police Abuse and Detention of Street
Children in Kenya” (New York: Human Rights Watch, 1997) [Juvenile Injustice]. Lack of access to education
Children affected by AIDS also suffer from diminished access to education. Affected children must often stay home from school to care for sick and dying parents, and then remain out of school in order to work to replace the deceased parents’ income. Until the recent abolition of school fees in Kenya, many orphans were kept out of school because they lacked the economic resources to pay the required fees. According to Human Rights Watch,
A … study by several university-based researchers and ICROSS, an NGO based in Kenya, compared over 5,200 children whose parents died of AIDS with the same number of age-matched children who were orphaned by other causes. In this study, children orphaned by AIDS had significantly lower rates of school enrolment and retention than did other orphans. They also suffered higher rates of severe and moderate malnutrition and were more likely to be in child-headed households.14
Affected children also suffer from ignorance and prejudice surrounding HIV, and this prejudice has had a negative impact on their access to education. In 2003, schools in the wealthy Karen district outside Nairobi refused to admit HIV-infected orphans living at Nyumbani Children’s Home, East Africa’s largest orphanage for AIDS-affected children. (Nyumbani officials said the schools had offered various excuses for the exclusion, claiming variously that the schools were full and that they were not equipped to handle HIV-positive children.) Only after a court battle, in which Nyumbani accused the schools of discriminating against the children on the basis of their HIV status, was a solution reached. High Court Judge Martha Koome ordered talks between Nyumbani and the Ministry of Education, which resulted in an agreement granting the children access to the schools in question.15 This outcome is a positive sign, offering hope that the legal system can be successfully used to provide redress in discrimination cases, but it also provides evidence that misunderstanding and discrimination continue to haunt children affected by HIV/AIDS.
Vulnerability to street life
Children who are orphaned often find themselves without any kind of parental or substitute care. If they end up on the street, their suffering compounds itself and further increases the chances of HIV infection, leading to a vicious cycle. Without financial support and a secure home, children must often work to stay alive. This frequently leads to dangerous work (including sex work, which increases the chances of HIV infection), and means that they cannot attend school, keeping them trapped in a cycle of poverty.16 Many street children are also at risk of substance abuse, which – in addition to its own
14 In the Shadow of Death, supra note 2 at 14. 15 Marc Lacey, “Court Allows Kenyan Pupils With H.I.V. Into Schools,” The New York Times (10 January 2004). “Kenyan School Accepts HIV Orphans,” BBC News, online: BBC News
…AIDS has become another factor pushing children onto the streets, as parents die and relatives are unable or unwilling to provide care. Some street children are involved in sniffing glue or solvents, and their level of sexual activity is high, bringing the risk of sexually transmitted diseases, including AIDS.17
Kenyan street children have often been victimized by the police who are charged with protecting them. A 1997 Human Rights Watch report stated that:
Police tend to view street children as hardened criminals, who must be treated with severity. Police also abuse and exploit the children for their own personal gain. Children we interviewed said they were frequently harassed, beaten, and had their money taken from them by police on the streets. Girls in Nairobi reported being sexually propositioned or coerced into having sex with police. The level of abuse is rising to a dangerous level. In recent years, there have been alarming incidents of police use of lethal force against street children resulting in death.18
Abuse, neglect and exploitation
Children who do find themselves in homes with foster parents or extended families are sometimes abused, neglected or exploited. Extended families or community members sometimes take in orphaned children solely to gain access to their inherited property or to use them as revenue sources by sending them out to work, steal, or engage in prostitution. Elizabeth Owuor-Oyugi, the director of the Kenyan chapter of the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN-Kenya), stated in 2001 that:
There were high levels of prostitution, even among girls as young as nine years old. The father’s brother will come in and take the land after the parents die. His wife sends the children out at night and tells them not to come back until they have 200 shillings. Of course they will fall into prostitution—what else can they do?19
Likewise, John Mburu, director of the orphan program run by Action-AID-Kenya in the Kariobangi slum of Nairobi, told Human Rights Watch:
With some guardians, there is abuse—we find a lot of sexual abuse, alcoholism, and so on. Children are told to go to the dumps and streets and come back with money in the evening….We find children as young as eight years old who are the bread-winners.20
17 World Health Organization (WHO) and UNICEF, “Action for Children Affected by AIDS: Programme Profiles and Lesson Learned” (Geneva: United Nations, 1994) at 52. 18 Juvenile Injustice, supra note 13 at 16. 19 In the Shadow of Death, supra note 2 at 15. 20 Ibid. Kenyan lawyer Ambrose D.O. Rachier, founder and director of the Kenya Ethical and Legal Issues Network on HIV/AIDS (KELIN), reported similar findings. “There are so many cases where the nearest relative wants to take up the property but not care for the children,” he said in 2001.21
Many extended families that take in orphans do their best to provide stable, loving homes. Due to the extent of the AIDS epidemic, however, extended families are being pushed to the limits of their ability to cope with the orphaned children whom they take in, and many simply lack the resources to adequately provide for the orphans in their care. According to the Monitoring the AIDS Pandemic (MAP) Network, “[t]he number of orphans in countries with severe HIV/AIDS epidemics is already straining the ability of extended families and communities to absorb and provide for these children’s needs. It is unclear how much coping can be expected of families and communities.”22
Best practices, key principles and normative frameworks for the care of OVCs
HIV/AIDS-focused NGOs have developed frameworks outlining certain best practices and key principles that should be adhered to when designing programs for the care of AIDS orphans. They include:
Non-discrimination
The key principle of non-discrimination is a recurring theme in best-practices literature. As the Interagency Coalition on AIDS and Development (ICAD) states, “HIV/AIDS orphans should have a right to protection, confidentiality and privacy, and access to basic services such as health and education without discrimination.”23 UNICEF grounds this principle in the Convention on the Rights of the Child, stating that:
All children should be given the opportunity to enjoy the rights recognized by the Convention on the Rights of the Child. States must identify the most vulnerable and disadvantaged children and take affirmative action to ensure that the rights of these children are realized and protected. Orphans and vulnerable children are at risk of discrimination in all aspects of their lives and, therefore, this principle is essential in guiding all efforts to address HIV/AIDS.24
Observers have noted that when programs are targeted specifically at children orphaned by AIDS, the result has often been increased stigmatization from the community at large. A more constructive approach would be to address the needs of vulnerable children in
21 Ibid. at 19. 22 Monitoring the AIDS Pandemic (MAP) Network, “The Status and Trends of the HIV/AIDS Epidemics in the World” (Cambridge, Massachusetts: François -Xavier Bagnoud Center for Health and Human Rights, 1998) at 20. 23 Interagency Coalition on AIDS and Development, “Best Practices for Care of AIDS Orphans” (Ottawa: March 2002) [Best Practices] at 3. 24 UNICEF, “The Framework For the Protection, Care and Support of Orphans and Vulnerable Children Living in a World With HIV and AIDS,” July 2004 [The Framework] at 13. general. UNICEF’s Framework for the Protection, Care and Support of Orphans and Vulnerable Children Living in a World With HIV and AIDS states that “[t]argeting children living with HIV or AIDS or orphaned as a result of it will only serve to exacerbate the stigma and discrimination against them.”25 Instead, interventions should “be directed to all vulnerable children and the communities in which they reside, and integrated into other programmes to promote child welfare and reduce poverty.”26 ICAD echoes this recommendation, stating that “[p]rogramming must reduce, rather than increase, stigmatization of HIV/AIDS affected orphans, by not singling them out for assistance, but by focusing on all vulnerable children.”27
Human rights
All programming and policies should be based on a human rights framework, and should be developed in conformity with the rights set out in the Convention on the Rights of the Child (CRC). As the Interagency Coalition on AIDS and Development states, “Programming should promote, protect and support the rights and freedoms of children with respect to inheritance, participation, confidentiality, and freedom from discrimination and exploitation, and need to work with communities to achieve a shared understanding of the principles of children's rights.”28
Community focus
Programming and policies should be community-oriented, focusing on enabling communities and extended families to deal with the AIDS crisis and care for orphans and vulnerable children. Programming should be sensitive to local cultures, should take local realities into account, and should be developed in consultation with those who are affected. Whenever possible, orphans should be cared for in their extended families and communities rather than in orphanages, institutions or foster homes.29
Continuum of care
Care for affected children should begin early, when parents first discover their HIV-positive status. It should support the parent-child relationship, provide for succession planning, and help the family prepare for the parent’s death.30
Gender sensitivity
Programming and policies should be sensitive to gender issues. Girls and women are more vulnerable to HIV/AIDS, both physically and culturally. Girls and women are
25 Ibid. at 5. 26 Ibid. 27 Best Practices, supra note 23 at 3. 28 Ibid. 29 Ibid. 30 Ibid. more easily infected (due to physiological factors and because women are often not free to negotiate condom use or refuse unprotected sex), and girls are more often expected to care for ailing family members.31
Human rights framework
In addition to the above best practices, the UNICEF Framework for the protection, care and support of orphans and vulnerable children living in a world with HIV and AIDS (“The Framework”) lays out the following guiding human rights principles for orphan care, describing them as the “underlying values – or ‘guiding principles’ – of the Convention [on the Rights of the Child]:”32
Best interests of the child
The best interests of the child should be the central concern in all programming and policies affecting children. As The Framework states:
The Convention on the Rights of the Child states that in each and every decision affecting the child, the various possible solutions must be considered and due weight given to the child’s best interests. This principle is immediately relevant to orphans and vulnerable children where decisions are being made regarding their caretakers, property and futures, but extends further to all matters that concern children, including development policies and programmes and allocation of public resources.33
Right to survival, well-being and development
UNICEF states that the CRC is, at its root, grounded in the child’s right to survival, well-being and development. This is not merely a right to physical well-being: “rather, it further emphasizes the need to ensure full and harmonious development of the child, including at the spiritual, moral, psychological and social levels.”34 According to UNICEF, this right imposes a positive duty on states to take action to protect vulnerable children, including those affected by HIV and AIDS.35
Respect for the view of the child
Children should be entitled to express their views on matters relating to them, and to have those views respected. The view of the child should “be given due weight in accordance with the child’s age and maturity.”36 This principle is embodied in Article 12(1) of the CRC, which holds that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the
31 Ibid. 32 The Framework, supra note 24 at 13. 33 Ibid. 34 Ibid. 35 Ibid. 36 Ibid. age and maturity of the child.”37 According to UNICEF, this principle “underscores the importance of ensuring that orphans and vulnerable children participate in decisions that affect them, such as those concerning their care and inheritance, and that they have important contributions to make in the fight against HIV/AIDS.”38
The Framework expands on these principles by laying out five key strategies for their implementation:
a. Strengthen the capacity of families to protect and care for orphans and vulnerable children by prolonging the lives of parents and providing economic, psychosocial and other support. b. Mobilize and support community-based responses. c. Ensure access for orphans and vulnerable children to essential services, including education, health care, birth registration and others. d. Ensure that governments protect the most vulnerable children through improved policy and legislation and by channelling resources to families and communities. e. Raise awareness at all levels through advocacy and social mobilization to create a supportive environment for children and families affected by HIV/AIDS.39
Specific recommendations for the placement of orphans
With respect to placement of orphans, The Framework makes the following recommendations:
Local adoption and foster care mechanisms are needed for children who require special placement. This will entail strengthening and expanding existing programmes, creating new ones and supporting measures to ensure rapid family placement of abandoned infants. In placing children in out-of-home care, effort should be made to place siblings together and to prevent the placement of very young children in large institutional settings. While placement in the most family- like setting is developmentally appropriate for all children, it is most important for younger children.
Developing, financing, implementing and monitoring community systems of care based on the principles of providing children with a family environment are of the highest priority. Vigilance in monitoring must continue once children have been placed in households of relatives or foster families to ensure they are well cared for and that their rights are respected. There is a need to establish and enforce screening procedures to ensure that children are placed in institutional care only when no better placement options are possible, and preferably only on an interim basis until a family or community placement can be made. Much has been learned by countries trying to reduce reliance on institutions. Lessons from Ethiopia and Uganda, for example, can help provide guidance for other countries trying to develop new and strengthened systems that promote family-based care.40
37 Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, 28 ILM 1456 (entered into force 2 September 1990) [CRC]. 38 The Framework, supra note 24 at 13. 39 Ibid. at 14. [emphasis in original] 40 Ibid. at 23. Specific recommendations for the development of child-focused legislation
The Framework makes the following specific recommendations for the development of legislation to protect orphans and vulnerable children:
Legislation that supports the care and protection of orphans and vulnerable children includes:
o Prohibiting discrimination in health care, schools, employment or other areas based on actual or presumed HIV status o Providing placement and guardianship for children who lack adequate adult care o Ensuring women’s rights to own property and hold jobs o Protecting the inheritance rights of orphans and widows o Protecting children against abuse, neglect and sexual contact with adults o Eliminating the worst forms of child labour o Eliminating barriers that keep the poorest children from attending school or accessing health care o Protecting children who live on the streets o Developing policies that encourage and support family-based placements for children without adequate family care o Establishing specific standards for alternative care of children without family support, including steps to prevent separation of siblings; first preference for family-based placements; use of institutional placements as a last resort and temporary measure; and the involvement of children in decisions regarding their placements.41
Summary of best practices, key principles and normative frameworks
Governments that design programs and policies targeting orphans and vulnerable children should adhere to the following principles:
- Base programming and policy on the principles of respect for human rights and non-discrimination, taking care to ensure that interventions do not exacerbate stigma and discrimination against those affected by HIV/AIDS; - Focus programming at the family and community level, empowering communities to deal with the pandemic and enabling orphans to stay within their extended families or their communities wherever possible; - Provide a continuum of care starting when parents first discover their HIV- positive status; - Adopt a gender-sensitive approach that recognizes the greater risk that HIV/AIDS poses to women and girls; - Be guided at all times by the best interests of the child; - Respect the views of affected children; and - Protect the child’s right to survival, well-being and development.
41 Ibid. at 25. International law and obligations
The ICCPR, ACHPR and ACRWC
The rights of children are widely recognized in international instruments. Kenya is a party to the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights (ACHPR), the African Charter on the Rights and Welfare of the Child (ACRWC), and the Convention on the Rights of the Child (CRC).
Article 24 of the ICCPR guarantees every child the right “to such measures of protection as are required by his status as a minor.”42 While the ACHPR contains little direct material on children’s rights, it bolsters the force of other existing international instruments: Article 18(3) holds that “[t]he State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.”43 The ACRWC contains, for obvious reasons, more detailed provisions on children’s rights. With respect to orphans, Article 25 specifically provides that:
1. Any child who is permanently or temporarily deprived of his family environment for any reason shall be entitled to special protection and assistance; 2. States Parties to the present Charter:
(a) shall ensure that a child who is parentless, or who is temporarily or permanently deprived of his or her family environment, or who in his or her best interest cannot be brought up or allowed to remain in that environment shall be provided with alternative family care, which could include, among others, foster placement, or placement in suitable institutions for the care of children; … 3. When considering alternative family care of the child and the best interests of the child, due regard shall be paid to the desirability of continuity in a child's up-bringing and to the child's ethnic, religious or linguistic background.44
The Convention on the Rights of the Child
Of these international instruments, the CRC is perhaps the most applicable in that it provides the most expansive assertion of children’s rights and is the most widely ratified human rights treaty in history, having been ratified by every country save for Somalia (which has no recognized government and thus cannot ratify any treaty) and the United States (which has signed but not ratified the treaty – the US government typically considers only one human rights treaty at a time, and has given priority to the Convention on the Elimination of All Forms of Discrimination against Women).45 42 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, article 24, Can. T.S. 1976 No. 47, 6 L.L.M. 368 (entered into force 23 March 1976) [ICCPR]. 43 African [Banjul] Charter on Human and Peoples' Rights, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, article 18(3), 21 I.L.M. 58 (entered into force 21 October 1986) [ACHPR]. 44 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), article 25 (entered into force 29 November 1999) [ACRWC]. 45 UNICEF, Convention on the Rights of the Child: Frequently Asked Questions, online: UNICEF < http://www.unicef.org/crc/faq.htm#009>. Because the loss of a parent imposes challenges that impact on so many aspects of a child’s life, there is no single CRC provision that addresses the situation of children orphaned by AIDS. Rather, a number of CRC provisions touch upon different aspects of the crisis for AIDS orphans. The provisions most relevant to orphans are as follows:
Article 3(2):
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.46
Article 19:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.47
Article 20:
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.48
Article 21:
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required,
46 CRC, supra note 37, article 3(2). 47 Ibid., article 19. 48 Ibid., article 20. the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.49
Article 32:
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.50
These treaties provide children with not merely negative liberties but positive entitlements against governments. While the treaties themselves are not domestically enforceable law, it is a generally recognized principle in common law systems that domestic law will be interpreted so as not to conflict with treaty obligations wherever it is reasonable to do so. More importantly, the CRC has been domestically implemented in Kenya’s Children Act, 2001. While critics charge that the Children Act is far from perfect in its design and its enforcement, it remains a positive step that gives Kenyan children enforceable rights against adults and the government.
Domestic law and policies
History of child-focused legislation in Kenya
Until 2001, Kenya’s main child-focused legislation was the Children and Young Persons Act, 1964 (CYPA). The CYPA was seriously outdated: with one exception, it focused entirely on children in conflict with the law, and contained no provisions outlining the rights of children or establishing protection or policies for vulnerable children. The exception was s. 23, which provided penalties for anyone with custody of a “child or juvenile” (i.e. a child under the age of 16 years) who:
49 Ibid., article 21. 50 Ibid., article 32. wilfully assaults, ill-treats, neglects, abandons or exposes him or causes or permits him to be assaulted, ill-treated, neglected, abandoned or exposed, in any manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, hearing, limb or organ of the body, and any mental derangement); or by any act or omission, knowingly or wilfully causes that child or juvenile to become, or conduces to his becoming, in need of protection and discipline.51
After Kenya ratified the Convention on the Rights of the Child (CRC) in 1990, Kenya’s Attorney General directed the Kenya Law Reform Commission to review Kenya’s existing laws related to child welfare and develop recommendations for law reform to implement the CRC’s provisions. The Commission’s work on this issue ran from 1991 to 1994. One key recommendation was the enactment of a Children’s Bill and the modification of other relevant statutes. A cabinet decision led to the publication of the Children Bill (1995), whose objects (as set out in section 3) were to:
- Promote the well-being of children; - Implement the provisions of the Convention; - Promote the welfare of the family; - Assist parents in the discharge of their parental responsibilities; and - Establish and promote the use of services and facilities within the community designed to advance the well-being of children.52
The Bill died on second reading due to a Parliamentary recess.
Although the Bill was a major step for children’s rights in Kenya, incorporating protections that had been previously unseen in Kenyan legislation, it was by no means perfect. In its initial report to the Committee on the Rights of the Child, the Kenyan government acknowledged that the Bill had been criticized for falling short of the CRC’s requirements. Specifically, it was criticized for:
- A lack of sensitivity to religious concerns; - A lack of provisions on social security, free and compulsory education, refugee and displaced children; - A failure to address the problems of children with disabilities and those accompanying mothers to jail; and - Inadequate protection of the girl child from a variety of disadvantages.53
The government also acknowledged more general criticisms:
There was the general criticism that the Bill was not progressive and failed to implement the provisions of the Convention on the Rights of the Child in a
51 Children and Young Persons Act, 1964 (Cap. 141, Laws of Kenya), s. 23 [CYPA]. 52 Children Bill, 1995 (Kenya), s. 3. 53 Committee on the Rights of the Child – Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Initial reports of states parties due in 1992 – Kenya (16 February 2001), CRC/C/3/Add.62 [Kenya States Parties Report] at para. 50, online: United Nations Human Rights Website
After consultation with NGOs and other interest groups, the government directed a task force to review the Bill. It subsequently tabled a new Children Bill, which came into force as the Children Act on 1 March 2002.
The Children Act in detail
The Children Act is a sweeping piece of legislation, containing over 200 sections. Of these, the Act has six essential features of particular interest: first, it establishes a set of children’s rights and imposes corresponding duties on the government and on private adult citizens. Second, it introduces a uniform legal definition of “child.” Third, it establishes the National Council for Children’s Services, a body drawn from various sectors of government which bears responsibility for the oversight and provision of children’s services. Fourth, the Act sets out detailed provisions regarding the establishment, regulation and monitoring of NGO-run children’s institutions. Fifth, it creates a Children’s Court, setting out child-focused rules for court proceedings involving children and designating magistrates throughout the country to run Children’s Courts in local areas. Lastly, it establishes provisions for the guardianship of children deprived of their parents (including rules for adoption, foster care, institutionalization, etc.), as well as provisions dealing with the disposition of assets inherited by orphaned children. Given the size and scope of the Act, it would be beyond the scope of this essay to cover each of these key features in depth. As such, the paper will focus on the children’s rights provisions of the Act. That said, it should be noted that the substantive features of the Act – the establishment of the National Council, the provisions on NGO-run institutions, and the creation of the Children’s Court – are the concrete steps that give force and practical applicability to the abstract rights enumerated in the Act. As such, it will be necessary to examine each of these features in order to understand the degree to which the Act protects children’s rights in practice. Each of these key features is therefore examined below.
Children’s rights
Although specific provisions of the Act list children’s rights in detail, the rights of the child permeate every aspect of the Act. As is noted above, the Act was initially developed for the purpose of implementing the CRC in Kenya’s domestic legislation, and as such, children’s rights make up the foundation of the Act. According to the 2002 annual report of the Federation of Women Lawyers Kenya (FIDA Kenya),
The principal object of the Act is to safeguard the rights and welfare of the child. The Act contains what can be considered as the bill of rights for the promotion and protection of the rights of the child.55
54 Ibid. at para. 51. 55 The Federation of Women Lawyers Kenya (FIDA Kenya), FIDA Kenya Annual Report 2002 at 24, online: FIDA Kenya
The Children Act sets out the following entitlements:
- The right to life and survival and development of the child (s. 4 of the Act, corresponding to Article 6 of the CRC); - The right to non-discrimination on the basis of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic, or other status, race, disability, tribe, residence or local connection (s. 5 of the Act, corresponding to Article 2 of the CRC); - The right to parental care (s. 6 of the Act, corresponding to Articles 7 and 9 of the CRC); - The right to education (s. 7 of the Act, corresponding to Article 28 of the CRC); - The right to religious education (subject to appropriate parental guidance) (s. 8 of the Act); - The right to health and medical care (s. 9 of the Act, corresponding to Article 24 of the CRC); - The right to a name and nationality (s. 11 of the Act, corresponding to Articles 7 and 8 of the CRC); - The right to leisure, play, and recreation (s. 17 of the Act, corresponding to Article 31 of the CRC); and - The right to privacy, subject to parental guidance (s. 19 of the Act, corresponding to Article 16 of the CRC).56
The Children Act also offers protection from:
- Physical and psychological abuse, neglect and any form of exploitation, including prostitution (ss. 10, 13 and 15 of the Act, corresponding to Articles 19, 32, and 34-36 of the CRC); - Female circumcision, early marriage, or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development (s. 14 of the Act); - Sexual exploitation, use in prostitution, inducement or coercion to engage in any sexual activity, and exposure to obscene materials (s. 15 of the Act, corresponding to Articles 34 and 35 of the CRC); - The use of hallucinogens, narcotics, alcohol, tobacco products or psychotropic drugs and any other drugs that may be declared harmful by the Minister responsible for health (s. 16 of the Act, corresponding to Article 33 of the CRC);
Economic exploitation and any work that is harmful to their health, physical, mental, moral or social development, or which could interfere with their education (s. 10 of the Act, corresponding to Articles 28 and 32 of the CRC); and
- Torture and deprivation of liberty (s. 18 of the Act, corresponding to Articles 19 and 37 of the CRC).57
56 Children Act 2001 (Kenya), No. 8 of 2001, ss. 4-19, online: Laws of Kenya
(a) the duty to maintain the child and in particular to provide him with—
(i) adequate diet; (ii) shelter; (iii) clothing; (iv) medical care including immunization; and (v) education and guidance;
(b) the duty to protect the child from neglect, discrimination and abuse.58
Because the Children Act was specifically designed to implement the provisions of the CRC into domestic law, its provisions map over well to those of the CRC, encompassing virtually every right enumerated in the CRC. Few, if any, other countries have developed such a comprehensive legislative scheme of substantive rights for children. The key question, of course, is the degree to which these rights have successfully been implemented and enforced, and this question will be examined in greater detail below. It is nevertheless encouraging to see the Kenyan government enacting such sweeping legislation on the rights of the child.
Definition of ‘child’
The Children Act is the first Kenyan legislation to establish a uniform definition for “child.” Prior to the enactment of the Children Act, different laws enacted different definitions, sometimes even establishing different age criteria for boys and girls within the same law.59 Under the Act, a child is any boy or girl under the age of 18 years. Simple though this provision may be, its impact goes beyond the standardization of a legal definition – by standardizing (and, by comparison to the age definitions in many previous laws, raising) the age definition of “child,” the Act recognizes the equality of boys and girls, and confirms the vulnerability and special status of all Kenyan children. In addition to its legal impact, this plays an important symbolic role in recognizing the rights and needs of the child.
The National Council for Children’s Services
The Children Act established the National Council for Children’s Services (“the Council”), a multi-sectoral body charged with the administration of children’s services in Kenya.60 The Council consists of: representatives from the ministries responsible for matters related to children, education, local authorities, health, finance and labour; the Attorney-General; the commissioner of police; and representatives of child-welfare NGOs, Christian and Muslim religious organizations, and representatives of the private
58 Children Act, supra note 56, s. 23(2). 59 The Federation of Women Lawyers Kenya (FIDA Kenya), “The Children’s Bill – 2000” at 1, online: FIDA Kenya
Perhaps the most encouraging aspect of the Council is that it is composed of representatives from virtually every branch of government, making the protection of children’s rights a multi-sectoral responsibility rather than an issue for one discreet branch of government. This appears to echo Uganda’s widely-praised multi-sectoral approach to HIV/AIDS, in which every branch of government was charged with responding to the HIV/AIDS crisis. The National Council’s multi-sectoral nature acknowledges the comprehensive scope of children’s rights, recognizing that children’s rights touch not only on the provision of child welfare services, but also on education, health, labour, finance and law.
Another positive aspect is that, to complement the administration of children’s rights at the national level, the Children Act fixes local authorities with a general duty to provide for the rights of the child. The Act states that
It shall be the general duty of every local authority—
(a) to safeguard and promote the rights and welfare of children within its jurisdiction; (b) to promote the good up-bringing of children by their families, through the establishment of suitable family-oriented programmes, and through the creation of a department to deal with the rights and welfare of children, public awareness and the co-ordination of relevant programme support initiatives from different social sub- sectors.63
This provision enables the Kenyan government to take steps at the national level to provide for the protection of children’s rights, while also comporting with the best- practices requirement to focus efforts at the community and family levels.
Provisions on NGO-run children’s institutions
The Children Act provides criteria for the approval and registration of “charitable children’s institutions” and requires all such institutions to be registered and approved by the National Council before they can provide children’s welfare services.64 The Act also contains provisions on the inspection of children’s institutions, and allows for the creation of regulations on the approval of children’s welfare programmes, the management of children’s institutions, and the penalties for non-compliance. According to FIDA Kenya, these provisions were designed to respond to allegations in the Kenyan press “that some children’s homes may be less than genuine.”65 FIDA has spoken highly of these regulatory provisions, saying:
61 Ibid., s. 31. 62 Ibid., s. 32. 63 Ibid., s. 40. 64 Ibid., s. 58. 65 FIDA: The Children’s Bill, supra note 59. The areas that have been left with the Minister to make regulations in respect of are very important indeed. The reason why some of these homes that are suspect have been able to operate is because of the gaps in the law that these regulations will seek to fill.66
In FIDA’s view, then, it appears that these provisions were of key importance and are by- and-large appropriately designed. Indeed, these provisions comprise one of the most- needed aspects of the Act: there have been numerous reported problems with substandard children’s homes, either due to incompetence, lack of resources, or in some cases malevolence. Still, some NGOs have commented that although these protections are well drafted, they are unlikely to be successfully implemented without significant changes to the current institutional structure.
Children’s Courts
Prior to the enactment of the Children Act, numerous observers complained that the Kenyan court system was extremely unfriendly to children, failing to provide special procedures and protections for children and failing to distinguish between children in need of protection and children in conflict with the law. In an attempt to address these concerns, the Children Act established a Children’s Court and assigned magistrates across the country to hear children’s cases. As FIDA Kenya notes:
- The Act also provides that a Children’s Court shall sit in a different building or room from those in which sittings of other courts are held. - Further that no person shall be present at any sitting of a Children’s Court except (See Section 74): o Members and officers of the court; o Parties to the case before the court, their advocates and witnesses and other persons directly concerned in the case; o Parents or guardians of any child brought before the court; o Genuine registered representatives of newspapers or news agencies; o Such other persons as the court may specially authorize to be present; - The act also provides that in cases involving children a child’s name, identity, home or last place of residence, school names or particulars of parents or any photograph of the child shall not be published in any publication or law report and anyone contravening the section commits an offence and if found guilty is liable to a fine not exceeding 100,000 thousand shillings or three months imprisonment or both fine and imprisonment. - The Act provides that a child who is brought before a court and does not have a lawyer will be given a lawyer at the expense of the State.67
Provisions for the guardianship of children deprived of their parents
The Children Act includes terms that regulate the guardianship of orphans and children otherwise deprived of their parents. These terms include provisions regulating orphanages and children’s institutions (as described in section 5.24 of this essay, above) as well as provisions dealing with foster parenting and adoption. These provisions are
66 Ibid. 67 The Federation of Women Lawyers Kenya (FIDA Kenya), “The Children’s Act” at 3-4
The relevant provision in the Children Act is s. 110, which reads:
Where a guardian of the estate of a child whether or not that guardian is also a guardian of the person of the child neglects to recover or safeguard, or misplaces any asset forming part of the estate of the child, or subjects the estate to loss or damage, he shall whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.68
This section provides an excellent example of child-focused legislation: rather than focus mainly on criminal liability, the focus of the law is to ensure that children are compensated for the value of their property by holding the estate guardian accountable to the child for the value of the estate entrusted to them. As such, this provision upholds the best practices of being “guided at all times by the best interests of the child,” and protecting “the child’s right to survival, well-being and development.” There may be difficulties with enforcing this section, in that its enforcement depends first on proving that the assets are legally part of the child’s estate, and then on the guardian’s financial ability to compensate the child for the loss – but if these potential hurdles can be overcome, this section gives the child recourse that would not otherwise exist in the normal criminal law context. As such, it provides a valuable example of child-focused, rights-based legislation.
Implementation and enforcement of the Children Act
On paper, the Children Act provides sweeping protections for the children’s rights laid out in the CRC, and includes detailed provisions on how these rights are to be given meaning in practice. These provisions would be of little use, however, if they were not enforceable.
To that end, a key feature of the Children Act is that each of the entitlements that it enshrines is explicitly coupled with an obligation imposed upon parents/guardians, the government, or both. By explicitly tying children’s rights to obligations held by adults, the Children Act provides a relatively clear system of accountability that should make enforcement of the rights more feasible.
The Children Act furthers this goal by imposing strict penalties for the infringement of children’s rights. Section 20 of the Act provides that
Notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights of a child
68 Children Act, supra note 56, s. 110. as specified in sections 5 to 19 such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both imprisonment and fine.69
The imposition of such strict penalties suggests that children’s rights are taken extremely seriously, at least in theory. (50,000 shillings are roughly equivalent to US$667.70 For perspective, note that the UN measured Kenya’s GDP per capita at US$393 in 2002.71)
It is especially heartening that the Children Act specifically ties children’s rights to responsibilities held by both the government and private adults. By imposing responsibilities on adults and creating strict penalties for the violation of those responsibilities, the Act seeks to give meaning to the rights that it enshrines. The true measure of the system’s devotion to children’s rights, however, is how stringently these rights are enforced and how strict are the penalties that courts actually impose.
Children often lack the wherewithal and resources to enforce rights against adults, especially given the complexities of the legal system. In addition, reports indicate that government resource constraints often simply do not allow for adequate policing and enforcement of the rights enshrined in the Act.
As the Children Act is relatively new, there is relatively little available information on how successfully, or unsuccessfully, the various rights under the Children Act are being enforced. Dishearteningly, much of the available information suggests that many of the rights in the Act are often not widely implemented or enforced stringently. The following is a brief survey of the available information on the implementation and enforcement of specific children’s rights under the Children Act.
Reports suggest that under-enforcement is an especially common problem with regard to the Children Act’s prohibition of harmful cultural practices such as female genital mutilation (FGM). In March 2005, the United Nations Human Rights Committee (HRC) commented that “[t]he Committee remains concerned that, despite the recent legal ban for children (section 14 of the Children Act (2001)), the practice of female genital mutilation (FGM) persists, particularly in rural areas of the country.”72 Likewise, the Kenyan government acknowledged in 2004 that it faces difficulties in enforcing the Act’s prohibitions on child labour:
In practice, the country has a major challenge in dealing with child labour. Due to endemic poverty, parents in some instances still send their children to work in plantations, and in other capacities such as domestic servants to supplement the family income. This happens in spite of the presence of laws prohibiting child 69 Children Act, supra note 56, s. 20. 70 Interbank currency exchange rate for 19 April 2005, Oanda, online: Oanda
Other reports have surfaced that suggest judges are being extremely lenient in sentencing those who commit offences against children. For example, a recent high-profile case saw a judge issue a non-custodial three-year probationary sentence to a man convicted of “defiling” and impregnating an 11-year-old girl. According to news reports, the perpetrator offered to marry the girl as his second wife; this was treated as a mitigating factor in sentencing. 74
Conclusion
From these examples, it is apparent that the provisions of the Children Act have yet to be fully, or in some cases even meaningfully, implemented. As further information becomes available on the actual implementation and enforcement of the Act, it will become possible to assess the real impact of the Children Act on the lives of Kenya’s vulnerable children. In the meantime, the Children Act clearly provides, on paper at least, an outstanding example of child-focused legislation – one that is developed based on the normative framework of children’s rights, and that adheres to the guiding principles of focusing policy and programming (where possible) at the community and extended family levels, and focusing on the best interests of the child.
73 United Nations Human Rights Committee, International Covenant on Civil and Political Rights, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Second Periodic Report, Kenya (27 September 2004), CCPR/C/KEN/2004/2, online: United Nations Human Rights Website: Treaty Bodies Database < http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/828d411f4ea33e07c125 6fa10040cb86/$FILE/G0443826.pdf> 74 Michael Arunga, “Kenya’s Laws Don’t Protect Children Enough,” The East African (30 March 2005), online: AllAfrica.com