First Model African Committee of Experts on the Rights and Welfare of the Child, 2023

Save the Children - Kenya and Kabarak Law School

An investigation mission by the African Committee of Experts on the Rights and Welfare of the Child
into the protection of children rights in the maturing digital age and space in Kenya

This is the written Report by Taarifa Watoto to the investigation mission of the African Charter on the
Rights and Welfare of the Child submitted to the African Committee of Experts under Article 45 of
the Charter

SUMMARY OF STATUS QUO

Over the years, Kenya has witnessed a transformative shift in technology. Protection and promotion
of Human Rights is imperative in this digital era. There is a nexus between promoting rights in the
rapidly developing technological world and facilitating the utilization of technology. 1
Technology

can be insightful and have constructive effects to the life of a child. It could, however, also be
detrimental to a child's development. A study by UNICEF notes that children are more so vulnerable
in the evolving digital age.2 A step toward protecting minors online is the availability of
comprehensive and effective laws and policies.

Kenya has enacted instruments both at the municipal and international levels, with regard to children
in the digital age. The promulgation of the 2010 constitution a monumental framework that provided
for the basis of children’s rights. The Constitution recognizes minors as vulnerable members of
society and imposes the state's role to protect them. 3 Kenya is bound by the provisions of the UN
Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of
the Child (ACRWC), having ratified both.

The state has not been compliant and some issues have been raised by the African Committee of
Experts on the Rights and Welfare of the Child (ACERWC) regarding the state of children's rights in
Kenya in the digital world. In 2022, the Children’s Act was amended and there were significant
changes from the 2001 Act. The new Act has several provisions but remains paper rights due to the
violations that occur. Despite addressing the vulnerabilities of children in the law and policies,
minors are still subjected to exploitations online.4

GENERAL IMPLEMENTATION OF ARTICLE 1(1) OF THE CHARTER IN THE CONTEXT OF

CHILDREN IN THE DIGITAL AGE

INTRODUCTION

1
Bellerose D, Dawkins U, Keltie E and Pihl K, Children’s rights in the digital age: A download from children
around the world, 2 ed, Young and Well Cooperative Research Centre and UNICEF, Melbourne, 2014, 8, 32-33;
see also, Association for Progressive Communications, APC internet rights charter, 2006
2
UNICEF, The State of the World Children 2017: Children in the Digital World (December, 2017)
3
COK Article 1
4
Disrupting harm Kenya
The African Children's Charter is a comprehensive regional-focused framework for children’s rights.
Article 1(1) of the instrument obligates member states to abide by the Charter’s duties, rights and
freedoms. It also requires State Parties to enact any relevant legislative or expedients that give effect
to the provisions of the Charter. This is to be done in tandem with municipal processes and the
Charter. The promotion of children’s rights in the digital era requires comprehensive legislative,
policy, institutional and precautionary measures.

LEGISLATIONS

The Constitution

The Constitution incorporates the provision on application of international treaties in Kenya. Article
2(6) provides that “Any treaty or convention ratified by Kenya shall form part of the law of Kenya
under this Constitution”5 The African Children’s Charter therefore, has been adopted as part of
Kenyan law. Article 21 (4) of the Constitution is consistent with the provisions of Article 1(1) of the
Charter by mandating the state to implement legislation to realize its responsibility under
international treaties in respect of human rights.6

The Specification of children’s rights are provided for under Article 53 of the Constitutions including
the right to education and protection from negligence, abuse, adverse norms, all sorts of violence,
harsh treatment and punishment, and hazardous or exploitative labour. 7 However, as the superior
law of the land which is not subjected to challenge, the Constitution should not be silent on some of
the specified rights such as participatory rights, freedom of thought, conscience and religion, and the
right to privacy. These are listed under broad rights in the Constitution.

The Childrens Act, 2022

This the main statute in Kenya relative to minor’s rights. Section 15 provides for a child’s freedom to
thought, conscience and religion which ought to be in the best interest of the child, and subject to
parental guidance. However, this guidance in religion should not obstruct the enjoyment of other
rights of the child. A child has the right to be protected from interference with their privacy or attack
on their character.8 The parent or guardian nonetheless, has the right to supervise the child. This is
necessary especially in the digital world where the child can access anything from the internet.

Additionally, the child has to protection against child abuse, torture or any other harmful social and
cultural practice.9

INSITUTIONAL FRAMEWORK

1. National Council for Children Services

5
COK Art 2(6)
6
COK Art 2(4)
7
COK Art 53
8
S 27
9
2. Children’s Court.

3. Children Rescue Centres.

4. Child Protection Units.

5. Charitable Children’s Institutions

POLICIES

1. National Plan of Action to Tackle Online Child Sexual Exploitation and Abuse in Kenya 2022–2026

2. Industry Guidelines for Child Online Protection and Safety in Kenya

3. The National Plan of Action on combating human trafficking (2013-2017)

4. The National Plan of Action against Commercial Sexual Exploitation of Children (2013-2017)

IMPLEMENTATION OF ARTICLE 7

INTRODUCTION

The freedom of expression equates to participatory rights of the child. A child has the right to voice
out their opinion without contradiction from the parent or guardian. Implementation of participatory
rights should be done in the best interest of the child. The internet has provided for platforms for
children to express themselves and have unlimited access to information. 10 Technology has also

10
<https://www.academia.edu/41586260/Online_child_protection>
enabled children to become active in the social and political spheres by airing their opinions through
the internet. 11 The ACRWC grants every child that is capable of expressing themselves of the right to
freely do so and to disseminate them subject to restriction. 12

COMPLIANCE BY KENYA

11
CRIN, Children’s rights in the digital age < https://home.crin.org/issues/digital-rights/childrens-right-digital-
age>
12
Article 7