What's New in Kenya's Children Act 2022
The Journey of Legislating Children's Rights
in Kenya
The Children Act in Kenya endeavors to domesticate the
international frameworks Kenya is a signatory of. International legislation
originated in the early twentieth-century industrialization period when there
were no standards of protection for children. It was common for children to
work alongside adults in unhygienic and unsafe conditions. As a result of
growing recognition of the injustices of their situation, and propelled by a
greater understanding of the developmental needs of children, it led to a
movement to better protect them.
International timeline of child rights
1924: The League of Nations adopts the Geneva Declaration on the
Rights of the Child. The Declaration articulates that all people owe children
the right to: means for their development; special help in times of need;
priority for relief; economic freedom and protection from exploitation; and an
upbringing that instils social consciousness and duty.
1946: The United Nations General Assembly establishes the
International Children’s Emergency Fund, UNICEF, with an emphasis on children
throughout the world.
1948: The United Nations General Assembly passes the Universal
Declaration of Human Rights, in which Article 25 entitles mothers and children
to ‘special care and assistance’ and ‘social protection’.
1959: The United Nations General Assembly adopts the Declaration
of the Rights of the Child, which recognizes, among other rights, children’s
rights to education, play, a supportive environment and health care.
1966: With the International Covenants on Civil and Political
Rights and on Economic, Social and Cultural Rights, United Nations Member
States promise to uphold equal rights – including education and protection –
for all children.
1968: The International Conference on Human Rights is convened to
evaluate the progress made by countries in the 20 years since the adoption of
the Universal Declaration of Human Rights. An agenda for future work is drafted
and national commitments to upholding human rights are bolstered.
1973: The International Labour Organization adopts Convention 138,
which sets 18 as the minimum age for undertaking work that might be hazardous
to a person’s health, safety or morals.
1974: Concerned about the vulnerability of women and children in
emergency and conflict situations, the General Assembly calls on Member States
to observe the Declaration on the Protection of Women and Children in Emergency
and Armed Conflict. The Declaration prohibits attacks against or imprisonment
of civilian women and children, and upholds the sanctity of the rights of women
and children during armed conflict.
1978: The Commission on Human Rights puts forth a draft of a
Convention on the Rights of the Child for consideration by a working group of
Member States, agencies and intergovernmental and non-governmental
organizations.
1979: To mark the twentieth anniversary of the 1959 Declaration of
the Rights of the Child, the United Nations General Assembly declares 1979 as
the International Year of the Child.
1985: The United Nations Standard Minimum Rules for the
Administration of Juvenile Justice detail the principles of a justice system
that promotes the best interests of the child, including education and social
services and proportional treatment for child detainees.
1989: The Convention on the Rights of the Child is adopted by the
United Nations General Assembly and widely acclaimed as a landmark achievement
for human rights, recognizing the roles of children as social, economic,
political, civil and cultural actors. The Convention guarantees and sets
minimum standards for protecting the rights of children in all capacities.
1999: The International Labor Organization (ILO) adopts the Worst
Forms of Child Labor Convention, calling for the immediate prohibition and
elimination of any form of work that is likely to harm the health, safety or
morals of children.
2000: The United Nations General Assembly adopts two Optional
Protocols to the 1989 Convention on the Rights of the Child, obligating State
Parties to take key actions to prevent children from partaking in hostilities
during armed conflict and to end the sale, sexual exploitation and abuse of
children.
2002: The World Fit for Children agenda was adopted outlining
specific goals for improving the prospects of children over the next decade.
2010: The United Nations Secretary-General adopts the Guidelines
for Alternative Care
2011: A new Optional Protocol to the 1989 Convention on the Rights
of the Child is adopted. Under this Optional Protocol on a communications
procedure, the Committee on the Rights of the Child can field complaints of
child rights violations and undertake investigations.
2015: Somalia and South Sudan ratify the Convention. The
Convention is the most widely ratified international instrument with 196
States. Only the United States has not ratified to date.
Kenya Children Rights Journey
The Children Act 2001 in Kenya outlines the rights and protections
of children. It was enacted to replace the colonial-era Children and Young
Persons Act and address the specific needs of Kenyan children. The Act
recognizes the rights of children to education, healthcare, protection from
abuse and exploitation, and participation in decisions affecting their lives.
It also establishes the National Council for Children's Services to oversee and
implement policies related to children.
Despite the efforts made by the Children Act 2001 in Kenya, there
are still gaps and challenges in the protection and promotion of children's
rights in the country. Some of the gaps include:
- Lack
of implementation and enforcement: The Act is not always properly
enforced, leading to violations of children's rights.
- Underfunding
of child protection services: The government does not allocate
enough resources to the National Council for Children's Services,
resulting in limited capacity to implement and enforce the Act.
- Child
labor: Child labor remains a major challenge in Kenya, with many
children forced to work long hours in dangerous and exploitative
conditions.
- Sexual
abuse and exploitation: There are high levels of sexual abuse
and exploitation of children in Kenya, particularly in the context of
child trafficking and child prostitution.
- Lack
of access to education: Despite the right to education being
enshrined in the Act, many children in Kenya still face barriers to
accessing quality education, particularly in rural areas and among
marginalized communities.
These gaps engineered the need to review the Children Act 2001, as
well as align it with the constitution 2010. To a larger extend, some of these
gaps are now addressed in the Children Act 2022. However, as to whether the enforcement
will be given the attention it deserves including the necessary resources.
Children Act 2022
The Children's Act 2022 was enacted by President Uhuru Kenyatta on
July 6th, 2022, replacing the previous Children's Act 2001. The new act
provides better protection for vulnerable children and addresses emerging
issues such as online abuse, child trafficking, and radicalization. A Child
Welfare Fund was established to support child care facilities and pre-primary
education in each county, and the age of criminal responsibility for children
was raised from 8 to 12 years. Children in conflict with the law will no longer
go through the court system, but instead will be diverted to community-based
systems and have access to free legal aid. The act prioritizes family-based
alternative care, such as kinship adoption, guardianship, and foster care,
rather than institutionalization in children's homes. Children with
disabilities will receive free medical treatment, education, and training. The
Children's Act 2022 emphasizes the right of children to parental care and
provides alternative care services such as guardianship, adoption, foster care,
and temporary shelter.
Snapshot of CA 2022
- The
Children Act No. 29 of 2022 has replaced the old Children Act of 2001.
- The
new law aims to give power to Article 53 of the Constitution of Kenya by
making comprehensive provisions for the rights of children, parental
responsibilities, alternative care, children in conflict with the law,
children services administration, and the establishment of the National
Council for Children's Services.
- The
Act is influenced by other Acts related to children, such as the Births
and Deaths Registration Act, the Basic Education Act, 2013, the Legal Aid
Act, 2016, the Victims Protection Act, 2014, the Counter Trafficking in
Persons Act, 2010, the Sexual Offences Act, 2006, the Protection Against
Domestic Violence Act, 2015 and the Convention on the Rights of the Child
and the African Charter on the Rights and Welfare of Children.
Best interests of the child considerations:
- The
first schedule of the new Act provides elaborate considerations on the
best interests of the child.
- These
considerations include the child's age, maturity, developmental stage,
background, gender, special needs, relationship with parents, living
arrangements, stability, adjustment to home and community, capability and
viability of shared custody, cooperation of parents, existence of abuse,
and other relevant factors.
- This
is a significant improvement from the repealed Act, which only briefly
mentioned the best interests of a child in Section 4(2) and (3).
Criminal liability of a child:
- The
Act has a provision that a person under the age of twelve cannot be
criminally liable for any act or omission.
- For
children under the age of fourteen, it is presumed that they do not have
the capacity to differentiate between right and wrong, unless the court
proves otherwise.
- This
is a wider berth than the Penal Code, which only provided for criminal
responsibility for children above the age of eight.
Legal Aid Fund:
- The
Act is supported by the Legal Aid Act, 2016 when it comes to
representation for children in need.
- Children
under the age of sixteen in need of representation can be assisted through
the Legal Aid Fund. Any legal fees for this representation will be charged
to the Legal Aid Fund.
- This is a positive step, as the repealed Act only briefly mentioned the use of the Legal Aid Fund for representation.
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