Katiba At 10: Children

What fruits have Kenyan children bore from the decade of the Constitution of Kenya, 2010?

Children are arguably the most vulnerable group in the society. They rely on other members of the society for basic rights, depending on their evolving capacities. Universally, children are recognized as individuals who have not yet attained the age of eighteen. Countries worldwide have continually shown their commitment in the protection of the rights and welfare of children. Evidence of this is the overwhelming number of countries that have ratified the international instruments protecting children’s rights.

UNICEF has ranked the United Nations Convention on the Rights of the Child (UNCRC) as the most widely ratified human rights instrument in history. This instrument has influenced the manner in which states, including Kenya, protect the rights and welfare of their children. The Convention affirms children as human beings and individuals with their own rights.

The UNCRC came into force in 1989 and was soon after adopted by the African Union through the African Charter on the Rights and Welfare of the Child, in 1990. These two international instruments set out the rights and define the universal principles and norms for the protection of children. The universal principles governing the rights of children embodied in these instruments are survival, development, protection and participation. These two instruments were domesticated in Kenya in 2001 through the enactment of the Children Act.

The enactment of this Act was the first of many steps taken by the government of Kenya in championing of the rights of children. The Act contains substantive provisions on various issues touching on the lives of children such as the safeguards for the rights and welfare of the child, parental responsibility, administration of children’s services, children’s institutions, children’s courts, custody and maintenance, alternative family care and child offenders. The enforcement of the Act presented challenges due to the absence of any preceding guidelines and this necessitated the establishment of the National Children Policy in 2010. 

The coming into force of the Constitution of Kenya, 2010 broadened the scope of protection of children's rights in Kenya. Being the supreme law, constitutional protection bears more weight than statutory provisions. The Constitution recognizes children as being among the vulnerable groups in the country in need of special care and protection from the state. The anti-discrimination clause also recognizes age and birth as some of the prohibited grounds for discrimination.

In addition to all the rights in Chapter four of the Constitution on the Bill of Rights in which children are entitled to, Article 53 is specific to addressing the rights of children. The Article reiterates the rights granted to children in the Children Act such as the right to a name and nationality, free and compulsory basic education, basic nutrition, protection, parental care, and other rights touching on child detainees. The Article also affirms the overriding principle in child care and protection; ‘the best interests of the child are of paramount importance in every matter concerning the child’.

To further the implementation of the Children laws in Kenya, various children institutions have been set up. The devolved form of governance introduced by the Constitution introduced new children institutions to complement those established by the Children Act such as the Children’s Court and the National Council for Children’s Services.

For instance, each of the 47 counties has a Children’s Department dealing with the issues affecting children in the county. In addition, there have been Area Advisory Councils that consist of relevant government ministries, key partners, and stakeholders working with, and for children have been instrumental at the county levels in creating awareness on child rights and welfare. Additionally, several National Plan of Actions for Children in Kenya have been developed since 2014. The 2015-2022 National Plan of Action is the one currently in operation. This is an appreciation of the multisectoral and multidisciplinary nature of child protection services and activities. 

The Constitution additionally supplemented the existing children’s legal system through various judicial interventions that have developed the law further. For instance, the constitutional right of children to equal parental responsibility was affirmed in the case of ZAK & another v MA & another [2013] eKLR. This case occasioned the nullification of certain sections of the Children Act that place parental responsibility on the mother in the first instance.

Also, the discriminatory clause in the Constitution that includes ‘birth’ as one of the prohibited grounds of discrimination informed the nullification of sections of the Children Act which discriminated upon adopted children by denying them the right to a birth certificate. The Court in the case of Organisation for National Empowerment v Principal Registrar of Births and Deaths & another [2013] held that these children were entitled to both a birth and adoption certificate. In this regard, the Constitution, through the judiciary, has contributed to the development of children laws in Kenya.

All in all, it is quite evident that governments are generally committed to the protection of the rights of children, being a vulnerable group in the society. The great number of signatories to international children's rights instruments and subsequent domestication of the same depicts this commitment. In Kenya, the Children Act was enacted in 2001 to contextualize the provisions of the international frameworks for child protection.

The provisions in this legislation are quite extensive and the promulgation of the Constitution extended the scope of the protection of the rights and welfare of children in this Act. In the past ten years, the Constitution has been a champion of the rights of children in Kenya through its comprehensive Bill of Rights and the child-specific rights.

This is seen through the number of case laws that have challenged some of the provisions of the statute in favor of the constitutional rights of children. Besides, parliament tabled the Children Bill of 2017 that incorporates the provisions of the Constitution touching on Children. The enactment of this Bill has however been delayed and needs to be expedited. 

The Youth Café has severally partnered with various Child Rights and Welfare Organizations in championing for the rights of children around the globe. A case in point is the recent partnership with The Centre for Children’s Rights at Queen’s University, Belfast on the rights of children in the world during the COVID-19 pandemic. The organization acknowledges the interception between children, especially those in their teens and the youth as some of our projects and activities include children between the age of 16 and 18. 

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