KNOW THE KENYA’S CHILDREN ACT 2022

INTRODUCTION

Kenya was a pioneer African country in ratifying the United Nations Convention on the Rights of the Child (CRC) in 1990. Since then, the domestic legal regime has undergone a radical shift, to a more comprehensive constitutional legal framework, that prioritises the promotion, protection and fulfilment of human rights, among those the rights of vulnerable persons.

The Constitution of Kenya (CoK) 2010 articulates the rights of children under Article 53, with a key emphasis on their best interests, which have been regarded to be “of paramount importance in every matter concerning the child”. This constitutional provision mimics the wording of Article IV of the African Charter on the Rights and Welfare of the Child (ACRWC), a regional charter which Kenya ratified in 2000. 

The domestic law governing the rights of children in Kenya is now under the purview of the Children Act of 2022, which aims to ameliorate what its precursor, the Children Act of 2001, and the former Constitution had hitherto provided. The salient features of the local regime are highlighted below.

KEY FEATURES OF THE CHILDREN ACT 2022

1. DEFINITIONS

The Act provides a comprehensive definition of “best interests of the child”, something that neither the CoK 2010, CRC, nor the ACRWC have done. In addition to this, the Act further explains  this principle under section 8 and the First Schedule respectively.  

A child is defined as an individual who has not attained the age of eighteen years. This definition is crucial especially in respect of children in conflict with the law, who are especially protected under the Constitution.

Other crucial definitions in the Act include: child abuse; child marriage; corporal punishment; grooming; intersex child; and vulnerable child. 

2. PROTECTIONS UNDER THE ACT

The Act offers more robust protections for children against all sorts of violations, including abuse (s.22), and harmful cultural practices (s.23). In addition to the already much impugned female genital mutilation (FGM), the Act also prohibits forced male circumcision, signalling its intent to be all-inclusive in the protections it offers to vulnerable children.

Intersex children, who have hitherto been a forgotten disadvantaged class in Kenya, have also been captured under the Act, and have been categorised as a “special need” group, deserving of the rights to be treated with dignity, and to be accorded appropriate medical treatment, special care, education, training and consideration.

Other notable protections offered are in the form of child rescue centres and child protection units in police stations for children in conflict with the law, which are established and captured under ss. 63 and 64 of the Act, respectively.

3. PARENTAL DUTIES AND RESPONSIBILITIES

The Act provides for “equal parental responsibility”, wherein it states that neither parent shall have a superior right or claim over the other, regardless of whether the child has been born in or out of wedlock (s.32 (1). This is especially important with regard to custody and maintenance disputes, where the Act once again reinforces the importance of the principle of the best interests of the child in the determination of such suits.

The Act also makes provision for “parental responsibility agreements” or popularly referred to as PRAs, which delineate the responsibilities of parents who are not married to each other, but wish to fulfil clear individual responsibilities towards the child (s.33).

4. JUDICIAL INTERPRETATION OF THE CHILDREN ACT 2022

Kenya’s superior courts are called upon to interpret the rights of the child as per the Kenya constitution and the new children’s Act. Under the current constitutional dispensation judicial authority should be exercised in a manner that promotes and protects the purposes and principles of the CoK 2010 (Art. 159 (1) (e)). A brief glance at relevant case law exhibits the enthusiasm with which judicial officers are striving to uphold, among others, the principle of the best interests of the child, as illustrated below.

For example, in the case of CMM and 6 others v Standard Group and 4 others, the Supreme Court of Kenya was called upon, in an appeal from the Court of Appeal, to pronounce themselves with regard to the right to privacy of minors and the right of the public to information. The brief facts of the case are that the seven (7) applicants were children suspects facing arson charges. The respondents (1st to 4th) were media bodies who aired and published the case on various platforms, revealing the faces and identities of the suspects. In finding in favour of the applicants, the Court held that children in conflict of the law are vulnerable on account of their age and hence, the trial process should not expose them to further intimidation, humiliation and stress. The Court was categorical that the rights under Art. 53 of the CoK 2010 were not merely guiding and must be strictly applied in order to uphold the best interests of the child.

Similarly, lower courts have also fully embraced the principle in its entirety. In KBH v HMI, the Court of Appeal was called upon to settle a custody and maintenance dispute, which had been initiated at the Magistrate’s court and made its way, through several appeals, to the court of appeal. In finding in favour of the appellant (the father), the Court held that the previous court had misapplied itself by granting custody to the respondent (mother) simply because the child was of ‘tender years’ despite her not being a responsible parent. Specifically, the Court drew attention to s. 95 (1) of the Children Act, which prohibits judicial officers from making orders unless they are in the best interests of the child.

5. IMPLEMENTATION BOTTLENECKS

Recently, the Government of Kenya (GOK), through the defunding and dissolution of the Child Welfare Society of Kenya (CWSK), has dealt a huge blow in the full realisation of the rights of vulnerable children. This was borne out of the need to merge 42 state corporations and dissolve 9 of them as part of a wider strategy in respect of “fiscal consolidation efforts”, in the words of the President, H.E. Dr William Ruto.

This move therefore significantly endangers infants abandoned by mothers, who end up in institutions ran by the society. Similarly, about 171,000 school going children, from primary to university, who rely on funding from the society, now have their educational futures hanging in the balance.

Another worrisome challenge is the requirement of teenage mothers to pay insurance premiums under the current Social Health Authority (SHA) scheme, which no longer covers them under their parents’ medical insurance.

These are just a few of the challenges that hamper the full realisation of the rights of the child that are articulated under the Children Act 2022, as well as the CoK 2010, the CRC, and the ACRWC.

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