Kenya is a signatory to numerous global and regional treaties and conventions that promote the rights of children, key among them is the UN Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child.
The Children’s Act (2001) was a major milestone in domestication of these legal frameworks and promotion of children’s rights in Kenya. Since 2001, Kenya has made significant progress towards promoting the rights of children, including a robust policy and legal framework and corresponding systems and structures to support child care, protection and participation.
Nonetheless, there still exist gaps and challenges for Kenyan children to fully realize their rights, necessitating policy and legal reform from time to time.
Since enactment of the Children’s Act (2001), a number of issues have emerged posing significant challenges and deterring children from realising all their rights. These include increased cases of abuse and violence against children (including online exploitation); trafficking; escalation of numbers of missing children; sexual grooming and exploitation; inadequate allocation of resources to child welfare programmes; challenges in coordination of stakeholders in the children’s sector for better access to services by children; inadequate data and information to inform planning and implementation of policies and programmes, among others. The Bill seeks to address these challenges.
The Children (Amendment) Bill, 2020, places equal parental responsibility for children, including those born out of wedlock or whose parents have divorced, on both the mother and the father.
The Bill seeks to amend Section 24 of the Children Act of 2001 and align it to the Constitution, ending a scenario that has seen child upkeep disputes left to the court’s interpretation.
The Act currently places the primary parental responsibility for the child on mothers in instances where they are unmarried. The father can only take parental responsibility for the child through a court order or agreement with the mother.
The Bill seeks to vest equal responsibility for parental care and protection of a child in both the mother and father whether they are married to each other or not.
Article 53(1) (e) of the Constitution states that: “Every parent has the right to protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not”
The proposed legal changes will also grant both parents equal rights, a move aimed at reducing child custody disputes. It reads in part……”Nor the father nor the mother shall have a superior right or claim against the other in the exercise of such parental responsibility”.
Kenya’s current age of criminal responsibility is too low – actually, among the lowest in Africa – and the bill proposes to increase it to 12 years. The current age of 8 goes against the letter and spirit of child rights and provides an escape route for adult offenders to abuse and coerce children to commit crimes.
While recognising children in need of care and protection, part II of the Bill further provides for safeguarding of the rights and basic interests of the child taking into consideration issues like violence against children; access to justice for children through diversion programs; the right to parental care and inclusion of alternative care services such as kinship, guardianship, adoption, kafalah, foster care, care in emergencies among others, for children who may not thrive within the biological family.
The Bill introduces provisions for social security to enable orphaned and vulnerable children to access alternative care services as a fulfillment of the provisions of Article 43 of the Constitution. In addition, the Bill specifically pronounces the right to free and compulsory basic education and health.
The Bill makes provisions for the roles of the county governments in discharging their mandate towards administration of children’s services. This is in fulfillment of the provisions under Schedule 4 of the Constitution that provides for the functions of the county governments. County governments are mandated, among other things, to establish child care facilities, make provision or facilitate the access to pre-primary education, play and recreational centers for children and the development of policies and guidelines that affect children.
To ensure access to child welfare programmes and services at the County level, the Bill makes provisions for the establishment of such child welfare programmes, systems and structures in collaboration with the National Council for Children’s Services.
The Bill will ensure better planning, budgeting, implementation and adequate resource allocation towards child welfare programmes.
Finally, it seeks to address abuse and violence against children such as child online exploitation, child marriage, trafficking, radicalization and sexual exploitation. The Bill will further enhance child rights governance as it provides various opportunities for the voice of the child in all matters that affect them and ensures their participation and inclusion of their voice in policy making.
The Bill is an investment in Kenyan children and their full participation in development.