Kenya

Kenya[1] [print]

Last edited: January 2006

Summary and Analysis

Kenya ratified the Convention on the Rights of the Child on July 31, 1990.  The enactment of the Children’s Act of 2001[2]  gives effect to the obligations of Kenya under the Convention on the Rights of the Child (CRC) and the African Children’s Charter.[3]  Since its ratification, Kenya has been working to implement its ideals in domestic legislation concerning childcare and protection.

Kenya’s formal child protective system has been developing since independence in the early 1960s.   Legislation addressing children’s issues was in place since this time and included the Children’s and Young Person’s Act,[4] the Guardianship of Infants Act,[5] and the Adoption Act[6].  These statutes remained in legal force up and until March 2002, when the new Children’s Act of 2001 entered into force.  For these 40 plus years, there has also been a Children’s Department, which is hosted under the auspices of the Ministry for Home Affairs and specifically tasked with dealing with issues of implementation of child care and protection and juvenile justice.  For example, the Department operates the child care and protection institutions, such as rehabilitation centers for children considered as being in need of care and protection.  Furthermore, there are children’s courts all over the country, with magistrates specifically assigned as children’s courts magistrates.  The Nairobi Children’s Court, however, remains the only physically separate, child-friendly court in the country.  All Children’s Courts are courts of first instance, with the effect that they lay beneath the High Court in the court structure.  Finally, the private sector (nongovernmental organizations) runs foster care and reception centers and programs that cater for children without family care.  These must be registered with the Children’s Department.

For children’s issues in Kenya, the most important legislation is the Children’s Act of 2001 and rules (e.g., the Foster Care and Placement and other regulations, which constitute schedules to the Act).  After the ratification of the Convention on the Rights of the Child, a Task Force of the Kenya Law Reform Commission recommended that a new child law should be enacted which “draws (as may be appropriate) from all existing statutes touching on children, incorporates relevant principles from the CRC, and attempts to resolve various legal problems that affect the rights and welfare of children.”[7]  The resulting Kenyan Children’s Act 2001 combines in one statute the public and private law provisions, consolidates and repeals three pieces of legislation (The Children and Young Persons Act, The Adoption Act,[8] and The Guardianship of Infants Act[9]), and introduces novel provisions about children’s rights.[10]

The Children’s Act is “an Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; to make provision for the administration of children’s institutions; to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes.”[11]   

Under this Act, a child is “entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking, or abduction by any person.”[12]  Part VI establishes Children’s Courts to conduct both civil and criminal proceedings on matters involving the care and protection of children, and Section 127 makes it an offense for “any person who has parental responsibility, custody, charge or care of any child” to (a) “willfully assault, ill-treat, abandon, or expose, in any manner likely to cause him unnecessary suffering or injury to health (including injury or loss of sight, hearing, limb or organ of the body, an any mental derangement); or (b) by any act or omission, knowingly or willfully cause that child to become, or contribute to his becoming, in need of care and protection.”

Section 119 defines a child in need of care and protection as one who has been abandoned,[13] whose parents or guardian find difficulty in parenting,[14] whose parent or guardian does not, or is unable or unfit to exercise proper care and guardianship,[15] who is being kept in dangerous premises,[16] who is exposed to domestic violence,[17] who has been or is likely to be sexually abused,[18] or who is exposed to any circumstances likely to interfere with his physical, mental and social development.[19]  Neglect is defined in Section 127 as the failure to provide adequate food, clothing, education, immunization, shelter and medical care. 

Care and protection proceedings against parents and duty bearers are initiated through petitions and involve the need for pleadings by the other party, an inter-parties hearing of the case, and an eventual disposition through an order of the Court - either the Children’s Court or the Family Law Division of the High Court.   Under the Act, any person with “reasonable cause to believe a child is in need of care and protection” may report it to an authorized officer, who may then take the child to a place of safety before the child is brought before court.  In this case, the parent or guardian may apply for the child’s release into his care, which the Director may refuse in writing with the reasons stated.[20]  Section 125 describes the orders a court, before which a child in need of care and protection is brought, may make.  These include an order to return the child to the parent or guardian,[21] require the parent or guardian to execute a bond to exercise proper care,[22] commit the child to a rehabilitation school,[23] or have the child remain in the custody of a local authority, a charitable children’s institution or a fit person.[24]  A court may also make an interim order which may remain in force for no more than fourteen days.[25]  Appeals to an order made under Section 125 go to the High Court.[26]

Part IV of the Act establishes the National Council for Children’s Services (“the Council”), which is responsible for exercising general supervision and control of child rights and welfare agencies.[27]  This part confers powers and obligations on the Director of Children’s Services, Children’s Officers, and local authorities to safeguard and promote the rights and welfare of children.   Through the National Programme of Action for Children (NPA), the Council is expected to play a critical role in implementing the child welfare system in Kenya.  The Council is also responsible for ensuring that Kenya realizes its international obligations relating to children, such as fulfilling the reporting requirements of the CRC.[28]

The Kenyan Children’s Act clearly echoes the ideals of Article 12 of the Convention on the Rights of the Child, stating, “In any matters of procedure affecting a child, the child shall be accorded an opportunity to express his opinion, and that opinion shall be taken into account as may be appropriate taking into account the child’s age and the degree of maturity.”[29]  Section 77 goes on to assert the possibility of the child’s representation and/or legal aid, declaring, “[w]here a child is brought before a court in proceedings under this Act or any other written law, the court may, where the child is unrepresented, order that the child be granted legal representation.”  Children’s Officers are civil servants under the Ministry of Home Affairs and are employed by the Children’s Department to advocate for the child.  A court may also appoint a guardian ad litem to safeguard the interests of the child.[30]

In addition to the Children’s Act, the Civil Procedure Act[31] allows for the role of guardians ad litem to sue and defend any civil claims on behalf of minors, or persons under 18.  Such persons must formally apply to the court and would be competent representatives until the child attains the age of majority.

In practice, most legal representation for children in need of care and protection is voluntary. [32]  The right to legal representation at the government’s expense is only granted for children in the juvenile justice system.  Legal aid clinics tend to do general work on legal awareness in Kenya, and the child rights nongovernmental organization sector and a couple of individual practicing lawyers are very active in the legal representation of children in judicial proceedings and creating awareness.  This effort, is however, mainly concentrated in the urban areas, particularly Nairobi, the capital.

Although Kenya has made significant efforts to implement the ideals in the Convention on the Rights of the Child, some advocate the cementation of children’s rights in a new Constitution which would protect against the event of appeal or amendments to the Children’s Act.[33]   The public referendum held on November 21, 2005, rejected the proposed Draft Constitution of Kenya 2004.  The proposed Bill of Rights was not one of the contested provisions, however.[34]  There, the Constitutional Review Commission suggested the following guarantee:  “Every child has a right to  … have a legal practitioner assigned to the child by the State and at State expense in other proceedings affecting the child, if injustice would otherwise result;[35] and know of decisions affecting the child, to express an opinion and have that opinion taken into account, taking into consideration the age and maturity of the child and the nature of the decision.[36]“  It is likely, although uncertain, that legislation will be passed in the next year that will start the process of obtaining consensus on a new Constitution.  Additionally, there are calls for more training of public officers, professionals, and judges on children’s rights guaranteed by the Act.[37]

Sources of Law (In Order of Authority)

International Law

Convention on the Rights of the Child (1989), ratified by Kenya on July 31, 1990[38]

Article 12

1.  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 age and maturity of the child.

2.  For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Regional Agreements

African Charter on the Rights and Welfare of the Child (1999), ratified by Kenya on July 25, 2000[39]

Article 4:  Best Interests of the Child

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, and opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.

Article 7: Freedom of Expression

Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws.

Statutes

The Children Act[40]

[Sec.] 4.  Survival and best interests of the child.

(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to-

(a) safeguard and promote the rights and welfare of the child;

(b) conserve and promote the welfare of the child;

(c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

(4) In any matters of procedure affecting a child, the child shall be accorded an opportunity to express his opinion, and that opinion shall be taken into account as may be appropriate taking into account the child’s age and the degree of maturity.

[Sec.] 77.  Legal Aid.

(1) Where a child is brought before a court in proceedings under this Act or any other written law, the court may, where the child is unrepresented, order that the child be granted legal representation.

(2) Any expenses incurred in relation to the legal representation of a child under subsection (1) shall be defrayed out of monies provided by Parliament.

[Sec.] 79.  Appointment of guardian.

A court before which a child is brought, and especially where that child is not represented by an advocate, may appoint a guardian ad litem for the purposes of the proceedings in question and to safeguard the interests of the child.

[Sec.] 160.  Guardian ad litem.

 [Note:  This section sets out the duties of the guardian ad litem for the purposes of any application for an adoption order.  Although it does not explicitly address the duties of a guardian ad litem appointed in the case of a child in need of care and protection, section 160 may inform the role of a guardian ad litem appointed under section 79.]

(1) For the purposes of any application for an adoption order, the court shall upon the application of the applicant or of its own motion, appoint a guardian ad litem for the child pending the hearing and determination of the adoption application. 

(2) It shall be the duty of the guardian ad litem to -

(a) safeguard the interests of the child pending the determination of the adoption proceedings;

(b) investigate and apprise the court as to the circumstances pertinent to the adoption of the child in the prescribed manner,

(c) make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child;

(d) intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent prescribed by this Act;

(e) undertake such duties as the court may from time to time direct or as may be prescribed by the rules made under this Part.

(3) Where arrangements for the adoption of any child have been made by an adoption society, neither the society nor any member thereof, shall be appointed guardian ad litem of that child for the purposes of its adoption.

(4) The appointment of a guardian ad litem shall expire upon the making of a final order by teh court under this Part unless the court, having regard to the interests of the child extends the period of the appointment.

(5) Without prejudice to the generality of subsection (4), where an appeal is lodged against a final order by the court under this Part, the court shall have power to extend the appointment of a guardian ad litem until the date of the determination of the appeal.

Case(s)

Wambwa v. Okumu, [1970] E.A. 578 (Kenya)[41]

High Court of Kenya at Eldoret, 16^th April and 19^th December 1969.  In a custody case, the Kenyan High Court rejected the argument that local customary law, which favored patriarchy, applied and instead granted the mother custody, upholding the best interests of the child principle.[42]

Ethical Provisions

Government of Kenya-National Revised Guidelines for Children’s and Volunteer Officers (2003)

Local Contact Information

Dr. Godfrey Odongo

Programme Officer

Save the Children - Sweden (Kenya/South Sudan Program)

P.O. Box 19423 - 202 KNH

Nairobi, Kenya

Email:  Godfrey.Odongo@swedsave-ke.org

Additional Resources and Links

Godfrey Odhiambo Odongo, The Domestication of International Standards on the Rights of the Child:  A Critical and Comparative Evaluation of the Kenyan Example,  The International Journal of Children’s Rights, Vol. 12 (4), p. 419 (2004).

Coalition on Child Rights and Child Protection in Kenya, Child Rights and Child Protection in Kenya,Report of the Wajir District Children’s Advisory Committee Training of Trainers Workshop 17-21 September 2001.

The Chambers of Justice, Children Act Monitoring Unit, Measuring Our Collective Responsibility, A Preliminary Report on Implementation of the Children Act, Cap 586 of the Laws of Kenya, Monitored Period:  March 2002 - March 2003.

Government of Kenya:  http://www.kenya.go.ke/

The Constitution of Kenya Review Commission:  http://www.kenyaconstitution.org/enter.htm

Child Rights Legal and Advisory Centre (CRADLE):  www.thecradle.org

The African Network for the Prevention and Protection Against Child Abuse and Neglect (ANPPCAN):  www.anppcan.org

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