A TRIBUTE TO JUSTICE JAMES AARON MAKAU; A LEADING LIGHT

IN THE PROTECTION OF CHILDREN’S RIGHTS

By Miracle Okoth Okumu Mudeyi

1. Introduction
The United Nations and the United Nations Convention on the Rights of the Child define
universal child rights (UNCRC).1 Child Rights, according to the UNCRC, are minimum
entitlements and freedoms that should be afforded to all persons under the age of 18
regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth
status, or ability, and thus apply to all people everywhere. The UN considers these rights
to be interdependent and indivisible, which means that one right cannot be fulfilled at the
expense of another.
For this year's African Child Day, which is observed on June 16th each year, I chose to
honour Justice Aaron Makau, who has been a shining beacon of hope in the protection of
children's rights, as evidenced by his recent decisions. He is an exceptionally brilliant
jurist in the development of child-friendly jurisprudence.

2. The Role of the Judiciary in Protecting Children’s Rights

The Courts' primary function is to interpret and enforce domestic law, as well as
international law where relevant. Courts must maintain their independence and
impartiality in administering justice to all types of litigants who approach the corridors of
justice. Courts must make only reference to relevant facts – as far as they may be
established – and the merits of the facts in respect to the law when deciding issues before
them. However, justice necessitates far more. Judges must understand all of the facts as
well as the surrounding circumstances of the parties who appear before them. They must
possess the skills and competence to evaluate the ability and capability of people coming
before them instantly, and they must be prepared to oversee the proceedings accordingly.
It is the court's sole responsibility to preserve equality while various sections of our
society struggle to navigate the quagmire of intricate procedures and evidence burden.
According to the late Justice Ruggero John Aldisert,2 judges may occasionally make
decisions for extra-legal reasons – sometimes for personal reasons, sometimes for petty
motivations. Sometimes judges make decisions based on overarching motivations that
cannot be stated publicly. However, he believes that decisions, regardless of their
motivation, must have justification; there must be a public explanation for the decision;
there must be a statement of the norms that contains the exposition of stated rules and
appropriate principles of law; there must be a statement that originates with the judge's
choice of the legal precept, through the interpretation of that choice; and finally, the
decision must have an application to the cause at hand. Only when they reflect desirable
1
See Article 2 of the UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United
Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 12
June 2022]
2
Ruggero J Aldisert, The Judicial Process (2nd edn, West 1996).
 current public opinion or are consistent with contemporary community moral standards
are they acceptable.

Section 4 (3) of the Children's Act requires all judicial and administrative institutions, as
well as all persons acting in their name, to treat the interests of the child as the first and
paramount consideration whenever exercising their mandate, to the extent that this is
consistent with adopting a course of action calculated to safeguard and promote the rights
and welfare of the child. Torture, cruel punishment, or abuse of a child is prohibited
under Section 18 (1) of the Act.

3. The Scope and Framework under the 2010 Constitution

The Kenyan Constitution of 2010 places a strong focus on equal access to justice for all,
notably in Article 53, which emphasizes the significance of considering the child's best
interests in all matters involving the child. The Children's Act of 2001 provides for the
same. Access to justice for children continues to be a vital tool for improving safeguards
to child rights as espoused in various legal instruments.
In the MWK and Another v Attorney General and 3 others,3 it was held that the 2010
Constitution had ushered in a new era where the society was committed to raising,
developing and nurturing children in an environment that is conducive to their wellbeing.
The society had a duty to ensure that children receive the support and assistance that is
necessary for their growth and development. The court further recognized that children
merit special protection through legislation that guards and enforces their rights and
liberties. In attempting to guard the children, the interventions should not expose them to
harsh circumstances which might adversely affect their development.

4. The Role of Justice Makau in protecting the right to education

Kofi Anan in outlining the importance of education as a human right and as a tool for
unlocking everyone’s potential once remarked; “Education is a human right with
immense power to transform. On its foundation rest the cornerstones of freedom,
democracy, and sustainable human development. In the case of Joseph Enock Aura v
Cabinet Secretary, Ministry of Education, Science & Technology & 3 others;
Teachers Service Commission & 6 others (Interested Parties)[2020]eKLR, Justice
Makau restated his role in protecting children’s right to education. He faulted the decision
to close schools indefinitely, Justice Makau had the following to say:
“I find that the benefit of the petitioner’s school-going children and other school children
attending school in-person out-weighs the risks of COVID – 19 as urged by the Respondents
provided the respondents ensure that COVID – 19 measures and safety protocols are put in
place and fully complied with in every school by both the learners and the teachers. This being
complied with, I find that the school-going children will reasonably be safe in school given that
health conditions that may place children at health risk are given priority. Further, this Court
notes that it is important for school-gong children to have the social interaction and academic

3
[2017]eKLR
 development that can be ripped only from in-person learning. The best interest of any child is
to be in school in person as there is more control, guidance and provision of health safe
measures in the school than leaving the children roaming in the villages or shanties or towns
as the case may be without observing any Covid-19 Health Protocols.”

He also held out that the closure of schools had caused psychological harm to school-enrolled
children and further finding that the community-based learning was illegal. Thus, in his decision,
he affirmed the notion of a justiciable right to education, which implies that when this right is
violated, the right-holder can bring her claim before an independent and impartial authority, and
if the claim is upheld, she will be granted a remedy, which can then be implemented.

5. Protection of children from harm, torture and corporal punishment, in the case of
DWK & another v Board of Management AJ Primary School & 2 others [2021]
eKLR
Justice Makau found that the act of mercilessly and ruthlessly caning the minor by the
2nd and 3rd Respondents coupled with threats, intimidation and a malicious letter written
by the 1st respondent to the 2nd petitioner was a clear demonstration of violence, torture,
corporal punishment, cruel, inhuman, or degrading manner. Justice Makau proceeded to
award the victim(EJK) EJK general damages of Kshs.4,000,000/= for physical and
psychological suffering inflicted on him on 10th March 2021, in breach of his rights
against such physical and psychological torture as enshrined in the Constitution of Kenya
and the international legal instruments that Kenya ratified in furtherance of the right to be
protected from abuse, neglect, all forms of violence, inhuman treatment and punishment
of the said minor, the award to be borne jointly and severally by the Respondents.
He further issued a permanent order restraining the 1st, 2nd and 3rd Respondents jointly
and severally from interfering with, insulting, intimidating, harassing, threatening,
verbally and physically abusing the petitioners, the minor namely EJK and all minors
within and without the premises of [Particulars Withheld] Primary School. Perhaps even
without intention, he has set a new standard of care for school-going children and the
need for teachers and schools to be duty bearers in the treatment of children within the
precincts of schools.

6. Protection of children’s development rights: Erick Otieno Ogumo & 2 others v

Chigwell Holdings Limited; County Government of Nairobi & another (Interested
parties) [2022] eKLR
Justice Makau issued a declaration the Respondent has violated the constitutional rights
of the Petitioners’ children as provided under the Constitution by failing to provide for a
children’s playground. The judge agreed with the homeowners that the lack of a playground
violated children's rights to human dignity and appropriate sanitation standards, as well as their
right to adequate amounts of clean and safe water. He further directed that within 90 days of
this Judgment the Respondent should provide a play area for the children in houses in
phases 1, 2 and 3 separate from the vehicle parking grounds.
 7. Concluding Thoughts
Based on the aforementioned three decisions by Justice James Aaron Makau which I
have summarily captured, it is my humble view that he has lived up to the promise of
jealously guarding the rights of the child and adhering to the paramountcy principle. To
me, he is a perfect testament of a leading light in the fight for children’s rights.

Miracle Okoth Mudeyi is a third-year law student at the University of Nairobi. His research interests
include but are not limited to transformative constitutionalism, mental health law, public international
law, third-world approaches to international law, administrative law, and sexual and reproductive health
rights. He currently works as a legal researcher at Havi and Company Advocates and can be reached via
mudeyi_miracle@uonbi.ac.ke