Implementation of Children Rights in Ken

Implementation of Children rights in Kenya; Legal, Social and
Economic Constraints
Samuel Wahome Kimani
LAW/M/1041/9/10
A Research Paper Submitted to the Faculty of Law, Kabarak University, in partial fulfillment of the
requirements of Bachelor of Laws
16 September 2013
DECLARATION
This serves to confirm that I Samuel Wahome Kimani, Student Registration No. LAW/M/1041/9/10,
enrolled for the Degree of Bachelor of Laws, herewith declare that this is my original work and that
no part of this research has been presented for any award for Bachelor of Laws in any university.
Being well aware of the Plagiarism Policy at Kabarak University I submit that no reproduction of this
work may be used in any form without express permission from the University.
2
DEDICATION
This work is dedicated to all the children in Kenya, to whom survival is an everyday struggle.
3
ACKNOWLEDGMENTS
Firstly, I would like to thank my Family for the support they have invested in my whole academic
journey, more so during this final part of concluding the studies.
Secondly, I would like to thank the entire university from the academic staff to the support staff for
all the immeasurable assistance they have. Further, I recognized the generous support from the
Kabarak University Faculty of Law staff for the academic guidance and material support.
Lastly, I dully submit my appreciation to my supervisor Mr. Z. Ongoya for his guidance and inspiration
throughout the period of working on this research.
4
TABLE OF CONTENTS
DECLA‘ATION…………………………………………………………………………………………………………………………………
DEDICATION……………………………………………………………………………………………………………………………………
ACKNOWLEDGMENT“ …………………………………………………………………………………………………………………….
TABLE OF CONTENT“……………………………………………………………………………………………………………………….
AC‘ONYM“…………………………………………………………………………………………………………………………………….. 7
AB“T‘ACT………………………………………………………………………………………………………………………………………...
1. INTRODUCTION ……………………………………………………………………………………………………………………….….9
. Ba kg ou d……………………………………………………………………………………………………………….…………….9
1.2 Problem Statement………………………………………………………………………………………………………………...10
1.3 Research Objectives…………………………………………………………………………….…………………………….……
1.4 Research Question……………………………………………………………………………………………………………….…
1.5 Research Methodology……………………………………………………………………………………………………….….11
2. CONCEPTUAL AND LEGAL FRAMEWORK OF CHILDREN’S RIGHTS LAW
2.1 Introduction to Children Rights………………………………………………………………………………………………
2.2 Framework of Rights………………………………………………………………………………………………………………
2.2.1 I te atio al Legal f a e o k…………………………………………………………………………………….…
2.2.2 Regio al Legal f a e o k………………………………………………………………………………………………
. . Natio al Legal f a e o k………………………………………………………………………………………………
2.3 Characteristics of Children Rights……………………………………………………………………………………………
3. IMPLEMENTATION OF THE RIGHTS & WELFARE OF CHILDREN

3.1 Introduction…………………………………………………………………………………………………………………..……….
3.2 Critical Evaluation of the Kenyan Implementation Mechanism; the situation of children rights in
Kenya……………………………………………………………………………………………………………………………………………
3.3 Legal efficacy of National Legislation………………………………………………………………………………..…….
5
3.4 The Role of State and Non-state bodies…………………………………………………………………………….……
3.5 The Role of International bodies…………………………………………………………………………………………….
4. CRITICAL ANALYSIS OF CHILDREN’S RIGHTS IMPLEMENTATION MECHANISM; SOCIAL, ECONOMIC

AND CULTURAL CONSTRAINTS
4.1 Introduction………………………………………………………………………………………………………………………..….
4.2 Social, Economic & Cultural Background of Rights in Sub-Sahara Africa……………………………..….
4.3 The Problem of Relativism and Cultural Legitimacy…………………………………………………………..……
4.4 Justiciability vs Resource Constraints…………………………………………………………………………………..….
5. CONCLUSION AND RECOMMENDATIONS
5.1 I t odu tio ……………………………………………………………………………………………………………………………
5.2 “u a …………………………………………………………………………………………………………………………………
5.3 Conclusion………………………………………………………………………………………………………………………………
5.4 Recommendations………………………………………………………………………………………………………………….
5.4.1 Involvement of the community in children rights implementation programmes…………….
5.4.2 Creation of Awareness…………………………………………………………………………………………………….
5.4.3 Regional Advocacy for Implementation of Children rights……………………………………………….
5.4.4 Training and Research…………………………………………………………………………………………………..…
5.4.5 Organizational Capacity Building …………………………………………………………………………………….
5.4.6 Renewed Global State Reports on the status of Children Rights………………………………………
REFERENCES………………………………………………………………………………………………………………………………...
6
ACRONYMS
AC‘WC………………………………………………………..….Af i a Charter on the Rights and Welfare of the Child
AU………………………………………………………………………………………………………………………………….Af i a U io
C‘C……………………………………………………….……………………………………Co e tio o the ‘ights of the Child
CEDAW…………………………………………....Co e tio o the Eli i atio of Dis i ination against Women
GOK………………………………………………………………………………………………………………….…Go e e t of Ke a
IBC‘………………………………………………………………………………………..I te atio al Bu eau fo Child e ‘ights
ICE“C‘…………………………………………………I te atio al Co e a t o E o o i “o ial a d Cultu al ‘ights
ICCP‘………………………………………………………………….I te atio al Co e tio o Ci il a d Politi al ‘ights
ILO………………………………………………………………………………………………….I te atio al La ou O ga izatio s
KNH‘C…………………………………………………………………………….….Ke a Natio al Hu a ‘ights Co issio
UDH‘………………………………………………………………………………………..Universal Declaration of Human Rights
UN…………………………………………………………………………………………………………..……….……………U ited Natio s
UNICEF……………………………………………………………………………U ited Natio s I te atio al Child e s Fu d
7
ABSTRACT
This study recognizes the numerous frameworks of laws at international, regional and national
level borne out of the necessity to respect, to protect and to fulfill children rights. It also notes
the different and combined efforts of all relevant stakeholders, private or governmental, that
engage in harmony to ensure that children in their jurisdictions have access to the very basic
rights conferred upon them by statute and the constitution through implementation of the
same.
The study further identifies with the role of national and international laws in the protection of
hild e s ights as e isaged oth statuto il a d o stitutio all as espe iall i the fo e
case. The study notes the comprehensiveness of these rights with implementation and
enforcement being the main. This is especially so in poor African, middle-eastern, Asian, and
South American countries, with budget constraints serving as the main culprit.
The study envisages possible solutions to these problems with the quest to ensuring the
guaranteeing and enjoyment of hild e s ights all hild e ega dless of ge de , age,
colour, race, religion, ethnic, nationality or other disparity.
8
CHAPTER 1
RESEACH OUTLINE
1. INTRODUCTION
1.1 Background
Children rights can be simply defined as the human rights vested in children with particular attention to the
rights of special protection and care as afforded to minors. 1
These rights encompass their right to association with other persons, their identity as human beings as well as
basic needs, as provided for in the ICCPR and ICESCR for the development and protection of the child. 2
In order to study these rights it is important to first identify who is a child and, or what qualifies a person to be
legally regarded as a child.
According to the Convention on the Rights of a Child 1989 (CRC), 3a hild is a hu a ei g elo the age of
18years, unless under the law appli a le to the hild, ajo it is attai ed ea lie . I Ke a, the Child e A t
4clearly depicts a child as a person below the age of majority-whereas majority is attained at the age of 18
years.
Traditionally Children or minors rather, do not have autonomy or the right to make decisions on their own for
themselves in any legal system.
Their guardians or parents are vested with the responsibility and authority of making the same for them. 5
In contrast, to the justification of that state of care giving due to the hild s i apa it to ake o e t a d
thoughtful de isio s o thei li es, so e iti s a gue that the hild s i suffi ie t o t ol a d o e all sa i
their own lives causes them to be vulnerable to a violation of their interests thus putting them in a repressive
state. 6
These researches identify Children as needing to be recognized as participants in the human society, whose
rights and responsibilities need to be acknowledged at all ages.
Perhaps, one may be forgiven to assert himself that these discussions on the status of a child and his
development of the many children human rights mechanism that we see in the modern times.
The Convention on the Rights of the Child (CRC), 1989 was codified at the end of the cold war which witnessed
the rising status of the human rights standard.
1
Children Rights, Amnesty International, www.amnestyusa.org/ accessed at May 20th 2013
2
Va essa Pupa a ; Child e s Hu a ‘ights Ad o a i Michael Goodhart Human rights; Politics and Practice(2009) p.219
3
Article 1
4
No. 8 of 2001
5
Lansdown G. Children Rights i B. Ma all ed Child e s Childhood: Observed and Experienced. London, The Falmer, (1994) Press
p.33
6
Je ks.C Co eptual Li itatio s Childhood. Ne Yo k: ‘outledge(1996)p. 43
9
In the three decades preceding the ratification of the two conventions, the UDHR 7, was treated as merely
aspirational in the International system.
However, the evolving human rights framework emphasizes the interdependence and indivisibility of rights.
Children rights advocates also affirm the interdependence and indivisibility of rights under the CRC.
According to some researchers, the notion of Children Rights is not well defined with at least one proposing
that there is no singularly accepted definition or the theory of rights held or vested in children. 8
I Athe a d )ole s ie 9, Child e ights la is defi ed as the poi t he e the la i te se ts ith a hild s
life. This includes juvenile delinquency, due process for children involved in the Criminal Justice system, as well
as appropriate representation and rehabilitative services.
All in all, care and protection for children should be guaranteed regardless of their race, gender, sexual
orientation, nationality, religion, disability or ethnicity.
This paper seeks to find out the present state of these Children rights, the state and non-state mechanism of
addressing the need for these rights both nationally and internationally and some of the challenges facing
them whilst brainstorming possible ways of addressing the same.
1.2 Problem Statement
As already denoted, Children Rights have been an emerging issue as from the 19th century evolution and
pronouncement of human rights. 10
Just as any other type of rights, childre s ights ha e a iad of halle ges a i g f o thei e a t e t,
implementation to enforcement.
In this regard, many children across the globe continue to suffer given this vacuum on the proper protection of
their rights as vulnerable individuals in society.
Given the numerous debates on these rights by both state and on-state actors, which may seem to serve the
purpose of finger pointing, it is perhaps prudent for the various stakeholders to stop apportioning blame and
concentrate on the resolution. All relevant stakeholders should engage together in fruitful negotiations in
order to alleviate the suffering of children through gross infringement and violation of their rights through a
broken system.
This study seeks to shed more light on these problems that render the various system of laws broken. Further,
the study suggests possible reforms that may help form part of the resolution.
1.3 Research Objectives
7
Universal Declaration of Human Rights
8
Mangold S.V, Transgressing the Border Between Protection and Empowerment for Domestic Violence Victims and Older Children:
Empowerment as Protection in the Foster Care System, New England School of Law, (2002)
9
Ahearn. D, Holzer. B, with Andrews. L, Child e s ‘ights La ; A career Guide, Harvard Law School (2000, 2007)
10
See the ICCPR and ICESC, 1960
10
• Identify the type of rights categorized under children rights
• To determine the implementation of children rights in Kenya
• Identify the various stakeholders involved in the implementation of children rights
• To determine the various challenges faced in the quest for implementation of children rights and
brainstorm possible solutions to the same
1.4 Research Question
 What are children rights and the various rights identified under it?
 What is the state of the implementation of children rights?
 Who are the stakeholders involved in the implementation of children rights and how do they work
together?
 What are the challenges faced in the implementation of children rights and what strategies can be
adopted to remedy the same?
1.5 Research Methodology
This is a desk research which basically entails the scrutiny of the various legal frameworks providing for,
protecting and enforcing children rights. Further there is the use of various literary texts and journals by
acclaimed authors that extensively covers the subject matter of the research.
Information is also derived from published reports by individuals or institutions, state or non-state bodies to
supplement the research title on the implementation of children rights.
CHAPTER 2
CONCEPTUAL AND LEGAL FRAMEWORK OF CHILDREN’S RIGHTS LAW
11
2.1 Introduction to Children Rights
Traditionally, all rights as vested in human beings have always been categorized into three:
i. Civil and Political rights

These rights are as defined and contained in the ICCPR. They mainly include civil liberties and freedoms
which dictate the abstention of the state from interference rather than its pronounced involvement.
ii. Social, Economic and Cultural rights
These rights flow from the ICESCR and mostly require state involvement rather than its abstention in
order to positively guarantee and effect these rights.
iii. Group rights
These are the rights that can only be enjoyed; protected and guaranteed in a group as opposed to
individual entitle ship and enforcement
With ega d to hild e s ights it a e o e tl p esu ed that the e o pass all the a o e ights ithout
having a further internal classification.
This is observed in the CRC, ACRWC and other local statutes including the Children Act No.8 of 2001 which is
to an extent autochthonous to the Kenyan case.
The f a e o k of hild e s ights a e see to e i spi ed by the realization that there is the need to
harmonize the enforcement, protection of these rights rather than isolating them into different categories.
This is perhaps owing to the fact that it is in the best interest of the child to have their rights protected as a
basis for survival and wellbeing11. In this regard, this research notes the special status of a child as a right
bearer their place as a vulnerable member of society.
This chapter outlines the children rights legal framework as relevant to Ke a s legal s ste a d atego izes
the framework into international, regional and national level respectively.
2.2 Framework of Rights
Child e s ights, just like a othe a h of hu a ights, a e suppo ted a d o e ed u de a f a e o k

of laws for its protection and enforcement.
The framework of laws can be basically grouped into tow for the purposes of this research.-National laws and
International laws.
2.2.1 International Legal framework
11
Article 6 of the CRC
“ee a ti les to of the C‘C fo the o p ehe si e list of hild e s ights
12
This section deals with the different set of international statutes and institutions that help with promotion,
p ote tio a d e fo e e t of hild e s ights at egio al a d i te atio al le el.
Convention on the Rights of the Child
The principal statute recognized globally, with regards to children rights, is the Convention on the Rights of the
Child (CRC). Established in 1989 under the UNICEF body, the convention has 54 articles.
These articles contain provisions on the different rights of a child as recognized universally. Further, articles 45
to 54 of the convention categorically contain various directions on the role of the government and the parent
in the protection of the child. They state how the state and parents and, or guardians of the child can work
togethe to e su e the hild s ights a e p ote ted, promoted and vindicated.
States, across the globe show, compliance with the CRC through ratification, which is the act by which they
formally and publicly accept to be legally bound by it. In this way, they commit themselves to the obligation to
respect, p ote t a d fulfill, as pe He “hue s t ipa tite theo o state espo si ilit to hu a ights, the
hild e s ights as outli ed i the a ti les of the C‘C.
The United Nations (UN) Committee on the Rights of the Child, a body of ten internationally elected
i depe de t e pe ts o hild e s ights, o ito s p og ess to a ds the i ple e tatio .
In this task, the committee monitors progress in two ways:
1. Appointment of a special rapporteur

This is he e a i depe de t e pe t o hild e s ights is appoi ted and tasked by the committee to
visit a given state. He then does an investigative research which is normally done in conjunction with
the human rights institution in the country e.g. the Kenya National Human Rights Commission
(KNHRC).The expert then compiles the findings and tables a report on whether the given country is
upholding its obligations in the CRC and to which extent
2. Periodic Reviews
This is whereby the committee on its own agenda conducts periodic reviews after a given period of
time, usually two years after becoming a state party to the convention, and thereafter after a period of
every four years. The review is mostly aimed at finding out the steps or measures taken towards the
full ealizatio of hild e s ights u de the o e tio .
The review usually involves representatives of the state and members of the committee who engage in
discussions and sift through any material aimed at finding out the commitment of the state party to its
international obligations under the CRC.
An example may be the Kenyan national report submitted on its Universal periodic review 12. The
compilation of extracts by the UN featuring child rights issues from the report submitted in its
Universal Periodic Review contains extracts from the National Report, compilation of UN information
12
KENYA: Child e s ights ‘efe e es i the U i e sal Pe iodi ‘e ie a essed at
http://www.crin.org/resources/infodetail.asp?10=22297#vv as at 5/31/2013
13
a d the su a of stakeholde s i fo atio . Fu the i luded a e the fi al epo t a d the list of
accepted and rejected recommendations.
The epo t otes the su je t ou t s atifi atio of the i te atio al a d egio al i st u e ts. This
includes the CRC and its additional protocols, at the international level, and the African Charter on
Human and Peoples Rights (ACHPR) and African Charter on the Rights of the Child (ACRWC) at regional
level in the African case. Compliance is observed with the measures taken by the state to enact and
e fo e hild e s ights at atio al le el.
In conclusion, the CRC is further aided by its two optional protocols on the involvement of children in armed
conflict and the other on the sale of children, child prostitution and child pornography. These specifically
provide for rights that were generally provided for under the CRC. They also contain additional obligations that
were absent in the CRC.
2.2.2 Regional Legal framework
African Charter on the Rights and Welfare of the Child
Just like the CRC, the ACRWC serves the purpose of setting up provisions and legal obligations for the state
parties, but at regional level.
The ACRWC provisions on the rights and welfare of the child are however, best suited to the African child
given that its provisions are autochthonous to Africa as a continent. This is especially considering the rich
cultural content of the African people. The Charter thus strives to inculcate this in its provisions. As well stated
in the Prea le of the AC‘WC the ha te takes i to o side atio the i tues of the hild e s ultu al
heritage, historical background and the values of the African civilization which would inspire and characterize
their reflection on the concepts of the rights. Further, the ACRWC13 provides on the right to education that
education should be directed towards the preservation and strengthening of positive African morals,
traditional values and cultures.
Far from promoting positive African morality in the child, the ACRWC also strictly prohibits harmful cultural
practices such as female circumcision and forced marriages, all which are especially persistent in sub-Saharan
Africa as an effort in protecting children rights.14
2.2.3 National Legal framework
National laws can be simply defined as those set of laws that are enacted by parliament for the purposes of
provision, protection and enforcement (save for the constitution which is voted for by the people in a
referendum).
I Ke a, Child e s ights a e p ote ted a d p omoted principally by the Constitution and secondarily under
legislation.
13
Article 11(2) (c)
14
See Article 16 and 21
14
The constitution15 in article 21(3) provides that all state organs and all public officers have the duty to address
the needs of vulnerable groups within the society, including women, older members of society, persons with
disabilities, children, and youth, members of minority or marginalized communities and members of particular
ethnic, religious or cultural communities.
In Part 3 of the specific application of rights under the constitution, article 53 contains some of the rights as
entitled to a child.
The Child e A t No. of is the p i ipal statute that deals ith atte s tou hi g o a hild s ights a d
elfa e i Ke a. It o tai s the hole f a e o k of a hild s ights as enacted by parliament.
In a nutshell, the Act contains an exhaustive list of some of the rights as contained in part II 16. Examples of
these rights include:
 Right to parental care

 Right to education
 Right to religious education
 Right to healthcare
 Protection from child labour and armed conflict
 Right to name and nationality
 Rights of a disabled child
 Protection from abuse
 Protection from harmful cultural rites
 Protection from sexual exploitation
 Protection from drugs
 Right to privacy
 Right to leisure and recreation e.t.c
Far from the rights, important to note is perhaps the fact that Part III categorically provides for parental
responsibility as guardians of children. It identifies these guardians as a strong pillar in the safeguarding of a
hild s i te ests and the important role the play.
Other stakeholders who are presumed to work closely with the parents/ guardians includes bodies such as the
Natio al Cou il fo Child e s “e i es as esta lished u de Pa t IV a d also the Lo al Autho ities ho also
help in safeguarding and promoting the rights and welfare of children within their territorial confines.
However, as a means of behavior control for rowdy and unruly children who may contravene the laws enacted
to preserve order, children institutions have been provided for in part V. This serves the purpose of dealing
with such absconders. Institutions created for this purpose include Rehabilitation schools and Remand Homes.
15
Constitution of Kenya 2010
16
See sections 3 to 22
15
Borstal Institutions may also be used to the extent to which they are provided for by any written law or under
the statute providing for it17.
Charitable institutions, which manage a programme for the care, protection, rehabilitation or control of
hild e as a dated the Natio al Cou il fo Child e s “e i es a e also i po ta t stakeholders in the
protection and promotion of children rights.
The A t p o ides fo e fo e e t i stitutio s fo hild e s ights. I Ke a, e fo e e t of these ights, as

with others, is mostly or mainly left with the Judiciary. The Act provides for a child e s ou t ith its a date
set out to include conducting civil proceedings, hearing charges against a child other than murder, exercising
any other jurisdiction conferred by law, among others.18
In this regard, the Act provides for the inclusion of a child e s ou t i all su o di ate ou ts of a lass as
contained in the First schedule to the Criminal Procedure Code.
Othe asi issues ith the Child e s ou t deals ith ustod a d ai te a e, gua dia ship, judi ial o de s
for protection of children in need of care and protection, supervision and care orders, escapees, miscellaneous
provisions on protection of children, adoption and child offenders.
The first to ninth schedule of the Act further sets out provisions on aforementioned basic issues pertaining to
children and the rights of the child.
2.3 Characteristics of Children Rights
As al ead oted, hild e s ights as e t a ted f o the ai st ea hu a ights, a e pe ulia a d u i ue i

their own character.
Early human rights proponents in the wake of the 19th century took cognizance of the fact that it is difficult,
albeit an uphill task to strive and protect the rights of children under the UDHR. This consequently gave rise to
the rights that are now enjoyed by children as contained in their different frameworks either nationally,
regionally or internationally.
When discussing the characteristics of children rights it is important to note several things.
Fi stl , hild e s ights a e e lusi el i he e t to hild e . This ea s that o othe g oup of i di iduals in
society can purport to claim entitlement save as are to the extent qualified under the relevant conventions
a d statutes p o idi g fo the . Fo i sta e, u de the hild e s A t 19 sec 2 states that a child means any
human being under the age of 18years. The CRC at article 1 hold that everyone under 18 years of age has all
the rights in this convention. Subsequently, the ACRWC at article 2 provides a definition of a child as every
human being below the age of 18 years.
17
See the Borstal Institutions Act cap 92
18
Section 73 Children Act No. 8 of 2001
19
No. 8 of 2001, Laws of Kenya
16
Secondly, at the apex of all child e s ights is the ell stated p o isio o the est i te ests of the hild .
A ti le of the AC‘WC states that: i a tio s o e i g the hild, u de take a pe so o autho it ,
the best interests of the child shall be the primary consideratio . The sa e positio is efle ted u de a ti le
3 of the CRC which provides that the best interests of children must be the primary concern in making
decisions that affect.
Locally, under the Children Act20 it is the legal obligation of public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies undertaking actions concerning children to ensure the
best interests of the child are a primary consideration.
Thi dl , Child e s ights e fo e e t is at pa ity with that of social, economic and cultural rights under the
ICESC. This is with regards to the consideration that most of these rights are not immediately realizable given
the disparity on the economic capability of different countries. To this end, the different charters and
conventions put the burden on the state parties to take reasonable measure towards realizing the minimum
standards set in a general quest to achieving them wholly21. Rwezaura22 otes that this featu e of hild e s
rights is perhaps more sensitive in the African context especially with existence of a rich cultural content,
some of which may however, be seen to interfere with the best interests of the African child.
Fourthly, far from the government role and obligation towards the rights of the child, parental responsibility is
also greatly espoused. This is perhaps owing to the fact family, as the most fundamental unit in society, is key
to the growth and development of a child. To this end, the state is required to protect the family and parental
ole i a hild s life.23 In Bennett24, privacy is seen as a necessary ingredient in family life whereby parents
must be free to raise their children without undue interference from the government or other outsiders, In
this regard, family auto nomy empowers parents to act in the best interests of their children. However, she
adds that if we focus only on family autonomy then we risk losing sight on the rights of the child as an
individual. This is perhaps with the consideration that parents may sometimes use their authority to deprive
children off their rights rather than to nurture and vindicate them.
A ala e should thus e st u k et ee the o ligatio to p ote t hild e s ights ithi the fa il a d the
value, to children, of family privacy.
Lastl , the e lusi e p ote tio f o a uses is also ell see u de hild e s ights espe iall gi e the fa t
that hild e a e the ost ul e a le e e s i so iet . Glo all , the e tu e to p ote t hild e s ights
form abuses is developed under the CRC further aided by its two optional protocols:
20
Sec 4(2)
21
Article 1 of the ACRWC
Sec 3 0f the Children Act No. 8 of 2001
22
B ‘ ezau a The Co ept of the Child s est i te ests i the ha gi g e o o i a d so ial o te t of “u -“aha a Af i a i P
Alston, (1994) (ed) Best Interests of the Child: Reconciling Culture and Human Rights 80, 83
23
Sec 23 of the Children Act see also the parental duties sec 23(2) and sec 19 on the Right to privacy
Article 10, 19, 20 of the ACRWC
24
Barbara Bennett Woodhouse (1999) A Delicate Balance; The Role of Government in Protecting Childre ’s Rights within the Family,
Ke ote Add ess, I te atio al Co fe e e o Child e s ‘ights, Ministry of Education, Tokyo, Japan
17
 Optional Protocol on the involvement of children in armed conflict25
The protocol is seen as an extension of Article 38 of the CRC, which seeks to protect children caught up
in war and armed conflict.
 Optional Protocol on the Sale of Children, child prostitution and child pornography26
The protocol was enacted following the deep concern at the significant and increasing international traffic in
children for the purpose of sale, child prostitution and child pornography.
The two protocols are regionally supported by the ACRWC under articles 22, 27 and 29 respectively and locally
under sections 10, 13 and 15.
25
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict G.A.
Res. 54/263, Annex 1, 54 U.N. GAOR Supp. (No.49) at 7, U.N. Doc. A/54/49, Vol. III (2000) ratified by Kenya in January 28
2002
26
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, child prostitution and child
pornography, G.A. Res. 54/263, Annex II, 54.u.n gaor Supp. (No.49) at U.N. Doc.A/54/49, Vol. iii (2000)
18
CHAPTER 3
IMPLEMENTATION OF THE RIGHTS & WELFARE OF CHILDREN
3.1 Introduction
Implementation alludes to the process of bringing any piece of legislation into force 27. It simply means to
ensure the observance of laws and rules towards accomplishing, achieving, actualizing and, or bringing out the
realization of a given goal. With regards to Children rights law, this means the actual execution of the set legal
framework for actual protection of these rights.
Just as with any other rights, the burden for the implementation is mainly vested with the state but shared
with Parents, Guardians and the society at large.
This Chapter delves to identify and understand the current implementation mechanisms in play both
domestically and jointly with the international system.
Further, it attempts to evaluate the legal efficacy of National Legislation and on the role of state and non-state
bodies towards the overall implementation of Children rights.
3.2 Critical Evaluation of the Kenyan Implementation Mechanism; the situation of children rights in Kenya
In order to understand the scope of implementation of Children rights in Kenya and to critically evaluate it,
one needs to rely on the already undertaken reports on the same subject.
The Kenyan Section of the International Commission of Jurists 28(ICJ) undertook such a task in the year 2004.29
In its publication, the Kenyan-ICJ u de took a p oje t of pu lishi g epo ts to o ito a d pu li ise Ke a s
current and past compliance to its international obligations as one of its activities. These reports included
those prepared by the government and the comments made by the treaty bodies and those of many Kenyans
as possible.
All this aimed at creating awareness on how the state is fairing in so far as promotion and protection of rights
under the particular treaties, such as the CRC30, is concerned as an attempt to measure the states
performance in adherence to international obligations.
Further, the Kenya-ICJ publication includes a report on the CRC with the major function to publicise and
disse i ate the go e e t s positio o the situatio of hild e a d their rights in Kenya. This borrows
27
Oxford Dictionary of Law, Fifth Edition, Oxford University Press,(2008), pg 242
28
See http//: www.icj-kenya.org accessed 22nd August 2013
29
International Human Rights Standards; Reporting Obligations, Convention on the Rights of the Child, The Kenyan Section of the
International Commission of Jurists,2004
30
Convention on the Rights of the Child, ratified by Kenya in July 31 st 1990
19
from the 1st Child e s epo t 31as submitted to the CRC Committee, the list of issues raised by the committee,
the go e e t eplies a d the o ittee s o ludi g o se atio s.
The Journey for the implementation of the Child e ights la as t a ed th ough Ke a s atifi atio of the
CRC can also be connected with the constitutional reforms undertaken during the same period. Given that the
1st Child e s epo t as the fi st si e Ke a s atifi atio of the C‘C i , it mostly concentrated on the
asi atte s. This i luded a look i to Ke a s: so io-economic, demographic and cultural background mostly
as a a of dis e i g the ou t s a ilit to i ple e t its i te atio al o ligatio s u de the C‘C. 32
The second phase of the report looked into the General measures of implementation with specific emphasis
on Articles 4, 42 and 44 of the CRC.
The report noted that the then Constitution of Kenya33 did not specify the methods for transforming
international treaties into municipal law. Note that this is contrasted with the New Constitution 2010 which
provides for international legal instruments and conventions ratified by Kenya to form part of its law 34. The
most notable effort by the state on the implementation of the CRC under the old constitutional dispensation,
was the measure by the then Attorney General who directed the Kenya Law Reform Commission to review the
then existing laws concerning the welfare of children, and to make recommendations for their improvement
givi g effe t to the o e tio . The effe t of the state s o sultati e p o ess ith the Ke a La ‘efo
Commission was a report submitted to the government in May 1994. This included a key recommendation for
the enactment of a children bill35 whose objects as set out in section 3 were to:

Promote the well being of children, implement provisions of the convention; promote the welfare of
the family
 Assist parents in the discharge of their parental responsibilities
 Establish and promote the use of services and facilities within the community designed to;
 Advance the well being of children
NGO s a d stakeholde s felt dissatisfa tio ith the ill iti g that it fell sho t of the p o isio s a d spi it of
the CRC in that there was:
 Lack of sensitivity of religious concern
 Lack of provisions on social security, free & compulsory education and on refugee children
 P o le s of hild e ith disa ilities e e t add essed
 Protection of the girl child from a variety of disadvantages
31
Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties Under Article 44 of the
Convention, initial reports of state parties due in 1992, Kenya 13th January 2000
32
International Human Rights Standards; Reporting Obligations, Convention on the Rights of the Child, The Kenyan Section of the
International Commission of Jurists,2004 pg 15-28
33
‘ead Old Co stitutio of Ke a
34
Constitution of Kenya (Promulgated August 2010)- Article 2(6)
35
The present Children Act No 8 of 2001
20
General criticism also leveled on the bill was that it was not progressive and failed to implement the provisions
of the CRC in a meaningful way.36 Suggestions were made on the revising of the bill to make it more child
friendly and to provide a legal & institutional framework that would enhance protection of children inside and
outside the family unit. For this reason, implementation and codification of the CRC provisions into one
domestic piece of legislation dragged on until the eventual enactment and gazzetting of the Children Act No 8
of 2001 into law.
However, notable positive developments towards the implementation of children rights in the transitional
period, as with the ratification of the CRC as it stands until presently, took place.
For instance, the government participated in the World Summit for Children in 1990 and ratified the CRC in
July of the same year. Further, the state published its National Programme of Action for Children (NPAC) for
implementation of the 1990 World Summit Declaration. This outlines goals and strategies needed to respond
effectively to the goals agreed on at the summit, all which are implemented within government structures and
the NGO s. Also o the sa e ote the GoK i olla o atio ith do o s, ota l the UNICEF, has si e
developed country programmes for ensuring implementation of the summit goals, for instance-1990-1993,
1994-1998 have been implemented with a third programme 1999-2003 currently completed37.
A more recent publication on the status of children rights and the CRC implementation in Kenya was done in
2007.38 ‘esea h a d d afti g of the epo t as do e ith the ai of getti g a o ete ie of the hild e s
rights situation in Kenya.
On looking at the situation of children rights in the country, the report lauded the Children Act 39 which had to
a large extent reflected the provisions of the CRC noting that since it entered into force on 4 th January 2002, it
aimed to promote the well being of children in Kenya in compliance with the principles set up in the CRC. 40
Further noted was that the Children Act is a merger of the repealed Guardianship of infants Act 41, Adoption
Act (Repealed)42 a d Child e a d You g pe so s A t ‘epealed 43. The Children Act has incorporated most
aspects of these repealed laws, and addresses the rights a child is entitled to and the role of government and
parents in protecting these rights.44
In summary, it is observed that the Children Act brings together in one law all requirements concerning
guardianship, fostering and adoption, custody, maintenance, care and protection of children, administration
of hild e s i stitutio s, ights a d espo si ilities of the hild, the ole of pa e ts a d of the go e e ti
36
Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties Under Article 44 of the Convention,
initial reports of state parties due in 1992, Kenya 13th January 2000, Para 51, in International Human Rights Standards; Reporting
Obligations, Convention on the Rights of the Child, The Kenyan Section of the International Commission of Jurists, 2004
37
initial reports of state parties due in 1992, Kenya 13th January 2000, Para 53, pg 30
38
Rights of the Child in Kenya; An Alternative report to the UN Committee on the Rights of the Child in Kenya, 44 th Session-Geneva,
January 2007
39
Children Act No 8 of 2001
40
January 2007, pg 11
41
Cap 144 Laws of Kenya
42
43
44
The Children Act Cap 586 Laws of Kenya; An Executive summary of the Children Act in English and Swahili, Ministry of Home
Affai s Child e s Dept, Ge a Te h i al Coope atio a d sa e the hild e -Canada
21
promoting and protecting the rights of a child and juvenile justice. Moreover, there are certain basic ideas,
su h as the Child s est i te ests a d elfa e that go e the Child e A t. 45
However, the report also identifies that several issues have not been solved by the Children Act. This includes
issues such as corporal punishment both home and in institutions, minimum age for marriage or for criminal
responsibility among others.46
These issues are mostly left for the courts to address them with minimal guidance from other statutes which
might address them vaguely e.g. the Legitimacy Act47, Criminal Law (Amendment) Act48 and Education
(Amendment) Act49.
3.3 Legal efficacy of National Legislation
Legal efficacy simply refers to the ability of a legal document to possess the legal power or capacity to produce
a desired effect50. In this sense it means the effectiveness of the set laws or rules towards achieving their
given purpose which is to guarantee and protect the rights of children.
Legal efficacy is measured by the comprehensiveness of a given piece of legislation in addressing or covering a
matter vis a vis the simplicity of its implementation.
In this regard, a law is required to solidly provide for a given issue which it is intended to address whilst not
being too rigid to enable implementation by the state and its interpretation by the courts.
Legal provisions as contained in the CRC and reflected nationally in the Children Act are concise and direct to
the point. They also offer guidance on the measures to be adopted by the state, either legislatively or
administratively. They are so enacted so as to enable them to achieve legal efficacy in their implementation on
the ground by the state and other stakeholders involved.
3.4 The Role of State and Non-state bodies
As already noted in the previous sections of the research, in the quest for implementation of hild e s ights
as contained in the various legal instruments i.e CRC, ACRWC and Children Act, various stakeholders, state and
non-state, have a role to play in this.
State Bodies
These includes the bodies established by the constitution, statute and any other written law, and created for
the pu pose of p ote ti g a d i ple e ti g hild e s ights.
These include:
45
A Summary of the Children Act cap 586 Laws of Kenya; A brochure by the African Network for the Prevention and Protection
against Child Abuse and Neglect (ANNPPCAN Kenyan Chapter)
46
January 2007, pg 11
47
48
No 5 of 2003, Laws of Kenya
49
Legal Notice No 56 of 2001
50
http://www.thelawdictionary.org/ accessed 20th August 2013
22
1. Kenya National Human Rights Commission
This is the main body tasked with the promotion of respect for human rights whilst acting as the
principal organ of the state in ensuring compliance with obligations under treaties and conventions
relating to human rights.51
The body is established by the Kenya National Human Rights Act52 as directed by the constitution53
with its written functions and powers spelt out.54
It should be noted that children rights are part and parcel of the mainstream human rights and are thus
included in the mandate and scope of KNHRC.
2. Child e s Cou t
The Child e s ou t o di a il efe s to the hild e s di isio of the Magistrate court in the judiciary.
The hild e s ou ts a e esta lished u de the Child e A t55. The Cou t s ju isdi tio is outli ed i
section 73 and 118 of the Act respectively, with its special proceedings spelled out in section 76 of the
Act.
The Children Court is an effective tool in the implementation of Children rights as it helps in:
 The i te p etatio of hild e s ights p o isio s as o tai ed i the a ious legal i st u e ts
both domestic and international
 Issues of custody and maintenance of children as salient issues in children rights which require
a delicate implementation mechanism
 Guardianship
 Children in need of care and protection
In the discharge of its powers the Children Court is empowered to make such judicial orders as it
may deem necessary for the best interests of the child.56
3. National Council for Children Services (NCCS)
This is a body established under the Children Act57 with the object and purpose of exercising general
supervision and control over the planning, financing and coordination of child rights and welfare
activities and to advise the government on all aspects thereof.58
The more specific functions of the body are contained in section 32(2) of the Act with its power spelt
out in section 33.
51
Constitution of Kenya 2010- Article 59
52
No 14 of 2011, Laws of Kenya-section 3
53
Constitution of Kenya-Article 59(4)
54
Kenya National Human Rights Act No 14 of 2011-section6,7, 8 and 9 respectively
55
No 8 of 2001- Part VI Section 73
56
Children Act No 8 of 2001-section 113-117
57
No 8 of 2001-section 30
58
Ibid-section 32(1)
23
The Director of children services59 is the principal officer in the body and is charged with specific tasks
in his capacity as the head of the National Council for Children Services60
Non-state Bodies
This includes the bodies that are independent from the state and which are not established by the
constitution, statute or any other written law. These bodies are non-governmental and have a key role
in the promotion for the children rights and actively assist in the implementation of rights law in
collaboration with state bodies either financially through funds or by public sensitization and
awareness programmes.
They include:
i. Kenya Section of the ICJ61

ii. Child Welfare Society of Kenya (CWSK)
iii. Family Life Counseling Association of Kenya (FLCAK)
iv. National Council of Churches of Kenya (NCCK)
v. Kenya Alliance for Advancement of Children (KAACR)
vi. Child Rights Advisory Documentation and Legal Centre (CRADLE)
3.5 The Role of International bodies
International bodies include all those created by the international and regional child rights instruments as
ratified by Kenya i.e. CRC, ACRWC, UN Human Rights Charter, UDHR, ACHPR e.t.c.
1. U ited Natio s Child e s Fu d UNICEF
It is one of the major bodies of the United Nations dealing primarily with Children and Children
needs.62
In executing its functions the UNICEF provides long-term humanitarian and developmental assistance
to children and their families mostly in developing countries.
In its own agenda, the UNICEF does this work through:
i. Statistics and monitoring data on the situation of children and women for tracking progress and
focusing action
ii. Evaluation and identification of goods practices which helps it and its partners achieve better
results for children
iii. Communication for development in improving the health, nutrition and other key social outcomes
for children and their families
iv. Situation analysis by strengthening evidence for achieving child-focused and gender sensitive
policies, laws and budgets
v. Supplies and logistics for UNICEF emergency and development programmes and procurement
services for partners
59
Ibid-section 37(1)
60
Ibid-section 38(1) and 38(2)
61
http//: www.icj-kenya.org accessed 22nd August 2013
62
http//: www.unicef.org accessed 25th August 2013
24
vi. Gender equality which is the empowerment of women and girls and the pursuit of gender equality
as a means to a sustainable and just society
vii. Research meant to study the changing situation of children and children rights
viii. Social and economic policy whereby UNICEF works on the impact in social protection, migration
and budgeting have on child poverty
ix. Child protection from violence, exploitation and abuse
x. Engaging in emergencies and humanitarian action I countries with crisis, emergency, assistance,
funding appeals and donor updates
xi. Human rights based approach to programming of the UNICEF to achieve results for all children 63
2. Committee of the Convention on the Rights of the Child

This is established under the CRC64.
3. Committee of the African Charter on the Rights and Welfare of the Child
This is established under the ACRWC65 as the African Committee of Experts on the Rights and Welfare
of the Child and is established within the OAU to promote the rights and welfare of the child.
Its composition and general way of conducting its business are outlined in the ACRWC.66
The functions of and mandate of the committee are provided for under Article 42 of the ACRWC, with
Article 43 dealing with reporting procedure, Article 44 on communications and Article 45 deals with
the investigations and procedures of the same by the committee.
4. Human Rights Committee
5. African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN)
6. Amnesty International (AI)
This is a global human rights movement that seeks to end human rights abuses across the globe.67
63
www.unicef.org/whatwedo/index.html accessed 25th August
64
Convention on the Rights of the Child-Article 43
65
African Charter on the Rights and Welfare of the Child-Article 32
66
Ibid-Article 33-40
67
www.amnesty.org accessed 26th August 2013
25
CHAPTER 4
CRITICAL ANALYSIS OF CHILDREN’S RIGHTS IMPLEMENTATION MECHANISM; SOCIAL, ECONOMIC AND

CULTURAL CONSTRAINTS
4.1 Introduction
The iti al a al sis of hild e s ights i ple e tatio e tails the evaluation of the given mechanisms of
implementation.
This chapter shall be based on the following subjects: social, economic and cultural aspects as constraints to
the implementation of children rights mechanism.
We shall attempt to understand the social, economic and cultural background of children rights as
autochthonous to Kenya by virtue of the widespread norms and practices as seen over history (post and pre-
colonial history)
Further we shall evaluate the problem of relativism and cultural legitimacy as impediments to implementation
of children rights law; whilst striving to achieve a balance between the justiciability of the implementation of
these rights and the major obstacle that is resource constraints.
4.2 Social, Economic & Cultural Background of Rights in Sub-Sahara Africa
Just like any other mainstream human right, the children rights derive themselves from social, economic or
cultural needs in society.
I s uti to the Ke a ase, a d Af i a at la ge, the pe spe ti e o hild e s ights just like other human
rights was based on their norms and practices. There were set boundaries on the duties of parents which
commonly became rights entitled to children.
This included the basics such as right to maternal care, shelter, food, parental care, health e.t.c.
Similarly the children who were perceived as members of the community, they had a role to play which in turn
brought about their duties.
Social Background
Firstly, it is important to know that the modern day conception of a child differs from that of the early African
tradition. Note, that the modern day conception of a child as per the definitions offered in the various legal
instruments perceived a child as an individual who has not transitioned into adulthood by virtue of an
initiation ceremony. Age alone was not suffice to designate one as a child or a mature adult. Further, the
transition ceremony was seen to be very barbaric, violent and tortuous to the children who had to go through
them. For instance, the initiation ceremony for girls in many African communities like the Maasai, Turkana,
Abagusii often involved Female Genital Mutilation (FGM), a practice which would singularly bring about the
violation of almost all the rights of the child.
26
Secondly, children under the African tradition were denied the enjoyment of most rights since these were
deemed unnecessary. For example, the best interests of the child as an inherent right was denied in many
ways mostly in that the opinion of the parents and elders would carry the day without rega d to the hild s
opinion and interests. A good form of all this was in child marriage where the young girls were forced to marry
old men without their consent even if they had not fully matured and, or attained puberty. As noted in the
committee of the CRC report on Kenya, certain cultural beliefs and practices have a negative effect on the
ights a d elfa e of hild e . These eliefs a d p a ti es i f i ge o the gi l hild s ep odu ti e, se ual ights
and bodily integrity as provided under the Convention on the Elimination of All forms of Discrimination against
Women. These include beliefs and practices that touch on coitus, initiation rituals and early marriage.68
P ese tl , the AC‘WC outla s this p a ti es that i f i ge o the hild s ights.69
Similarly, the boy child upon circumcision at an tender age, had to take on the full responsibilities of a grown
man. This included but was not limited to hard labour, farming, and livestock keeping, cattle rustling, and
fighti g as a t i e s a io . All these had the effe t of g oss iolatio s o the hild s ight to pa e tal a e,
health, food, and not to be subjected to child labour. Note that in looking at the social background of children
rights under the African customs, these violations were accepted norms and only recently have they started to
be changed.
Economic Background
As already noted, different aspects of life which affected the community in the African customs greatly
influenced the rights of people. In looking at the economic background of children rights as exclusive to Kenya
and other African states, one can note that this may perhaps be one of the biggest, if not the biggest, factors
influencing rights in the sub-Saharan region of Africa.
It can only be correctly assumed that children rights just like economic, social and cultural rights as contained
under the ICESCR70 closely depend on the availability of economic resources for their fulfillment by the state.
For instance, in a situation of a rich family versus a poor family, one observes that children in the rich family
will be able to enjoy their rights to the maximum as compared to those in poverty stricken families. This
includes right to the highest attainable health standard, right to education, parental care e.t.c
Further, where the government is economically stable it can ne able to immediately realize the basic children
rights need as compared to where there is economic instability prompting the progressive realization of
children rights.
Cultural Background
Just like in the social and economic background of rights, culture has an equally counting influence on the
status of children rights.
68
initial reports of state parties due in 1992, Kenya 13th January 2000, Para 42, pg 27
69
African Charter on the Rights and Welfare of the Child-Article 21
70
International Convention on Economic Social and Cultural Rights, adopted by the UN General Assembly Resolution 2200A (XXI) of
16 December 1966 at New York, entered into force on 3 January 1976
27
As one may correctly observe in the African culture as seen in Sub-Sahara Africa, there is good culture and bad
culture. Good culture in this sense refers to that which is rich in customs and practices which promote good
African morals, values and heritage in the child. This is promoted by the ACRWC in Article 31 which confers a
responsibility on the child to preserve and strengthen African cultural values in his relations with other
members of the society and to contribute to the moral well being of society as well as achievement of African
unity.71
Bad culture refers to the African culture in the form of practices and customs that are detrimental to the best
interests and welfare of the child. These practices are harmful and in dignifying on a child and are best done
away with in order to respect, promote and fulfill the rights of the child. The ACRWC addresses this concern on
a general scale by providing that state parties take all appropriate measures to eliminate social and cultural
practices affecting the welfare, dignity, normal growth and development of the child. 72 This position is also
reflected in the Children Act.73
4.3 The Problem of Relativism and Cultural Legitimacy
Relativism and cultural legitimacy with regards to practices inhibiting the enjoyment and implementation of
children rights remain a major constrain in Sub-Saharan Africa.
In this sense, relativism crops up in that proponents of the African culture and practice defend its use as not
absolute but relative to the given people of that culture Note that this goes against the universalism principle
in the UDHR74.
Thoko Kaime notes that the debate between universalism and relativism which focuses on the relative merits
of adopting a universal system of rights in comparison to protecting cultural diversity is one of the most
enduring and perhaps important elements of the general conversation on children rights in Africa. 75
In the midst of all this was the ACRWC76 eated ith a deli ate ala e o its fo us o u i e sal hild e s
rights principles as well as local traditions and practices.
Further form the issue of relativism is the issue of cultural legitimacy. Cultural legitimacy denotes the quality
of being in conformity with the accepted principles or rules and standards of a particular culture.
Cultural legitimacy denotes the quality of being in conformity with the accepted principles or rules and
standards of a particular culture.77
71
African Charter on the Rights and Welfare of the Child-Article 31 (d) and (f)
72
Ibid-Article 21
73
Children Act No 8 of 2001-section 14
74
Universal Declaration of Human Rights-1948
75
Thoko Kaime, The African Charter on the Rights of the Child; A socio-legal perspective, Pretoria University Law Press (PULP) 2009,
P.31
76
African Charter on the Rights and Welfare of the Child, adopted July 1990 (entered into force 29 November 1999)
77
AA An-Na i P o le s of U i e sal Cultu al Legiti a i AA A -Na i & FM De g eds Hu a ‘ights i Af i a: Cross-cultural
perspectives (1990) p.336
28
An-Na im argues that the defining characteristic of cultural legitimacy is the authority and reverence derived
from internal validity.78
A cultural legitimate norm, rule or value is respected and observed by members of the particular culture
presumably because it is assumed to bring benefits (whether tangible or imaginary) to the members of that
particular culture.79
The diffi ulties i i ple e tatio of hild e s ights sta da ds as o e ed th ough the C‘C, AC‘WC &
Children Act thus attribute to the insufficiency of cultural support for the set of social practices that comprise
the particular claims or rights.80
The level of cultural support for any particular norm or standard on the rights and welfare of the child will be
different at the international, regional and local level. While the strategies for securing cultural legitimacy at
any of these levels will be aimed at the same result; the enjoyment of the rights by children; the employed
strategies will be different at any of these levels to suit the dynamics of the context under consideration.81 For
instance, at the international or regional level, the drafting, adoption and ratification of the instruments by
state pa ties a e the gi e a of he ki g the legiti a of hild e s ights sta da ds, at the ational or
local level however, the mere adoption of texts or passing of legislation on rights may not be indicative of the
aised legiti a of hild e s ights ithi the o u it . A o e g ou ded app oa h to a ds the
implementation needs to be adopted to supplement ratification and legislative policies.
As should e u de stood, e efits fo seeki g to aise ultu al legiti a of hild e s ights ithi Ke a a d
the various African states are numerous.
Fi stl , e ha i g ultu al legiti a of hild e s rights motivates individuals and communities to take action
in favour of the rights and welfare of the child.
Secondly, such motivation brought about by cultural legitimacy evokes the mental attitude that accepts
hild e s ights o s.
Thirdly, the mobilization of individuals influences political forces within the community thereby inducing those
in power to accept accountability for the implementation and enforcement of the rights and welfare of the
child.
Nyamu Musembi adds to this conversation on universalism, cultural relativism and cultural legitimacy by
adding weight to the importance of human agency against a deterministic conception of culture. Sourcing her
o t i utio f o esea h fi di gs o o e s p ope t ights i Ke a, N a u o se es that the dynamism
78
Ibid-51 above
79
p.37
80
Ibid- 51 above p.337
81
p.48
29
reflected in the variation and flexibility that abound in actual practice point to the fact that culture is not
deterministic.82
In summing up, Nyamu holds the view that human actors do possess the agency that enables them to act
against established cultural expectations and therefore opening up the possibility of the departure from
interpretations of culture that go against human rights principles.83
In summary observation, we can thus deduce that an effective implementation strategy for the rights and
elfa e of the hild s eeds the olla o ated effo ts of oth the state a d the i di idual. The AC‘WC puts this
into account by emphasizing state obligations on one hand and for African cultural heritage as underlying the
whole philosophy of the rights and welfare of the child.84
4.4 Justiciability vs Resource Constraints
Justiciability refers to the quality or state of being appropriate or suitable for adjudication by a court. 85 The
court is thus a major player in the implementation of children rights law. The framing of the provisions on
children rights law as contained in the CRC and ACRWC make them justiciable in court subject to the accepted
rules for judicial action i.e. standing, procedure, cause of action, practice e.t.c.
Once a case is justiciable and pertains to children rights then the Children Court as set out in the Children Act
Part VI 86 is obliged to hear the case and determine it.
However, a challenge arises in that whereas the developed countries can immediately realize these rights;
developing countries are crippled with economic sustainability and can only strive to progressively realize
these rights.
This is the halle ge that is esou e o st ai ts . Ho e e u h a i di idual to a ight, a d the state dut
bound to fulfill, protect and guarantee it, the courts cannot dele to compel the state to fulfill its obligations in
a case where there is evidence of lack of resources as a constraint.
This thus becomes a major barrier to the quest for justice with the courts stuck in between adjudicating for
the rights of the child whilst reasonably considering the economic capability of the state in implementing the
same.
82
C Nyamu-Musembi, Are local norms and practices fen es o path a s? The e a ple of Wo e s P ope t ights i AA-An-Na i &
J Hammond (eds) Cultural Transformation and Human rights in African Societies (2000) p.134
83
Ibid-56 above p.135
84
See Paragragh 6 of the preamble of the African Charter on the Rights and welfare of the Child; also see Article 1
85
Bla k s La Di tio a , th Edition, Thomson West, (2004) p.882
86
30
CHAPTER 5
CONCLUSION AND RECOMMENDATIONS
5.1 Introduction
This research set out to study the implementation of children rights in Kenya; Legal, Social and Economic
Constraints.
The previous four chapters provided the basis on which the researcher winds up this study. In chapter one, the
background and problem statement were included with the objectives of the research and the relevant
research question set out. The methodology for doing the research was also well outlined. In chapter two, a
detailed conceptual and legal framework of children rights law as applicable to Kenya was well outlined with
the work categorized into national, regional and international framework. Chapter three discussed the
implementation of the rights and welfare of children in depth. This included a critical evaluation of the Kenyan
implementation mechanism, the legal effect of national legislation with further discussion on the role of state
and non-state bodies and on the role of international bodies as relevant players in the implementation of
hild e ights i Ke a. Chapte , o stituted the iti al a al sis of hild e s ights i plementation
mechanism with keen emphasis on social, economic and cultural constraints affecting the same. There was
discussion on the social, economic and cultural background of rights, the problem of relativism and cultural
legitimacy as impediments to the implementation quest by the state and lastly an attempt to compare the
justiciability of children rights implementation versus the unavoidable problem of resource constraints in the
country.
This chapter dissects the already established facts from the previous chapters and draws conclusions upon
which recommendations and areas though necessary for further research are identified.
The chapter includes the summary of gathered facts, conclusion drawn, recommendations made and a
compilation of the relevant academic journals and books, legal instruments and legislation used in highlighting
the various aspects of the study and further in an attempt to shed more light to the study.
5.2 Summary
The research questions the study aimed at answering were:
i. What are children rights and the various rights identified under it?
Here the research was able to identify the various rights inherent to a child as provided under the
Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and
the Children Act No 8 of 2001.
The research delved on the unique nature and character of these rights as necessary for the survival of
the child.
ii. What is the state of the implementation of children rights?
The research was able to address this research question by providing insight on the current state of
children rights in Kenya and on the efforts made and attempted by the state towards the realization of
31
the implementation of children rights. Further, the research evaluated and critiqued some of the
implementation mechanisms used whilst reviewing some of the opinions and criticisms by various
scholars writing on the same subject.
iii. Who are the stakeholders involved in the implementation of children rights and how do they work
together?
The research was able to point out the various stake holders, state and non-state, at national, regional
and international level, which are involved in the implementation of children rights for the benefit of
the children.
The research was able to provide insight on some of the work done by these bodies, organizations and
structures and how they are important in the whole process of implementation.
iv. What are the challenges faced in the implementation of children rights and what strategies can be
adopted to remedy the same?
In winding up the research, it was evident that the reality of children rights implementation in Kenya
was graced by a myriad of challenges. The research carefully identified these challenges and how they
are impediments to the implementation of children rights.
The final chapter carefully considers this challenges and attempts to offer feasible recommendations
towards achieving a solution for the same.
5.3 Conclusion
The research has been able to highlight all relevant information pertaining to the subject of implementation of
children rights in Kenya.
Kenya, as a developing country, has yearned for human rights all the years after its declaration as an
i depe de t state. It is i po ta t to take a e tal ote that Ke a s jou e to the a hild e ights and
more so human rights that are enjoyed presently has been a long, frustrating and rigorous journey. This is
especially considering the state that the colonial masters left the country-recovering from gross human rights
violations and abuses.
The transition of the state into one which respected, promoted and fulfilled children rights was thus not an
automatic and smooth one.
Nevertheless, steady steps towards this journey of implementation for full realization of the rights and
welfare of the child have been seen.
Through the ratification of major conventions and charters 87 providing for children rights and enactment of
national legislation88 to complement the regional and international legal instruments, a comprehensive legal
framework has been guaranteed by the state as a major step towards realizing the rights of the child and
ensuring Kenyan children get to enjoy them.
87
Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child
88
32
Kofi Annan89 observes that in the years since the ratification of the Convention (CRC), there has been
remarkable progress. Virtually all governments that have ratified the CRC have passed local legislation-where
this did not exist previously-which stresses the rights of children and legislation-where this did not exist
previously-which stresses the rights of children and provides a legal basis to realize those rights.
Fast forward to the present state, the groundwork has been done by the state and together with legislative
measures and other policies, the government is striving to promote and implement children rights law to the
g ass oots. These is pa ti ula l o side i g the e asi ights e essa fo a hild s su i al as p o ided i
90
the constitution )
The establishments of various institutions that assist the state in monitoring the status of children rights on
the ground also play an important role in the implementation of children rights since abuses and violations
against children can be noted, reported and prosecuted.91
The state involvement of the community in the quest for implementation of children rights through the local
authorities (Now County Government) and the national government through the chiefs, county commissioners
e.t.c help exploit cultural legitimacy positively to promote the children rights.
The research has established all these facts on the current status on the rights of the child in Kenya as seen
through history. Whilst lauding the achievements as observed through the periodic reports to the children
rights committees,92 a lot is still left to be done to ensure that the state gets to fully realize these rights for the
benefit of the Kenyan children.
5.4 Recommendations
5.4.1 Involvement of the community in children rights implementation programmes
The state should renew its efforts in involving the society in its undertakings to implement children rights. This
should preclude sending government officials to convene meetings with the community elders and people,
while noting their opinions in order to incorporate the same in the measures that the state may choose to
take towards fulfilling its duties and obligations for the implementation of the rights of the child.
This would help in eradicating cultural relativism and cultural legitimacy as hindrances towards the
implementation goals but turning them into a tool for acceptance and respect of these rights in the
community.
89
Kofi A a , The p i iple of all hild e , all ights is still u h too fa f o ei g a ealit i The Progress of Nations 2000
90
Constitution of Kenya 2010-Article 53
91
See the Children Act No 8 of 2001 for the NCCS in section 30 and the Children Court in Part VI Section 73
92
See the Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties Under Article 44 of the
Convention, initial reports of state parties due in 1992, Kenya 13th January 2000, and the Rights of the Child in Kenya; An
Alternative report to the UN Committee on the Rights of the Child in Kenya, 44th Session-Geneva, January 2007, pg 11
33
5.4.2 Creation of Awareness
The state should also increase its children rights campaign and sensitization programmes, more so in the
conservative communities who are too rigid to accept the current children rights law.
This is should especially target the nomadic communities such as the Maasai, Turkana, Samburu, Pokot and
Somali tribes; all where child marriage and female circumcision is prevalent.
5.4.3 Regional Advocacy for Implementation of Children rights
The state should join efforts with other African parties to come up with a regional mechanism for the
promotion of children rights. This will help with reaching a wider audience and also assist poorer countries
with the much needed resources for implementation of the basic children rights. This is in considering that
most African countries share the same challenges and it would be prudent to pool together and try to come
up with a shared solution.
Pat i ia ites that, a ad o a to apitalize o the ope i g spa es ust e d i e the hild e s se to
in the region in a more organized and collective manner. As such part of any sub-regional advocacy campaign
will ha e to i lude a st u tu al ele e t hi h i ol es o ga izi g the hild e s se to i to a o e o ga ized
and effective advocacy collective.93
Ingrid also adds to this conversation by urging that states should use regional structures such as the Afrcian
Union (AU) to highlight the barriers to implementation of child rights for migrants. (Note that children from
migrants and refugee children are the most vulnerable since they are not targeted by national legislation) 94
5.4.4 Training and Research
The step in an effort of including everybody in its implementation campaign should undertake training and
research programmes aimed at educating people involved in the children rights and also for coming up with
better and involving ways at improving implementation of children rights in the country.
The CRC committee encourages State parties to invest in systematic training and research in the field of early
childhood development from a rights-based perspective. They are encouraged to undertake systematic
education and training of children and their parents, as well as professionals working for and with children, in
particular parliamentarians, judges, magistrates, lawyers, law enforcement officials, civil servants, personnel in
children institutions, and places for detention for children, teachers, health personnel,, social workers, and
local leaders. The committee further urges state parties to conduct awareness-raising campaigns for the public
at large.95
93
Patricia Martin, Regional Child rights ad o a ; s opi g the oppo tu ities a d halle ges fo p o oti g a d p ote ti g hild e s
rights in Southern African through SADC, Save the Children Sweden (2010) p.42
94
I g id Pal a , Fo Bette I ple e tatio of Mig a t Child e s ‘ights i “outh Af ica, UNICEF (2009) p.4
95
United Nations Committee on the Rights of the Child, A Guide to General Comment 7: Implementing Child Rights in Early
Childhood, UNICEF (2006) p.27-28
34
5.4.5 Organizational Capacity Building
This entails recruitment of more staff in law enforcement institutions and institutions tasked with the
promotion of children rights such as the National Council for Children Services, as well as renewed specialized
trained training all aimed at capacity building to enable the effective performance of these institutions and
their staff towards implementation of children rights.
In this quest, the state should also support the development of in-house training for police and social workers
on the rights of migrant children. Further, support for organizations outside of urban centres is needed where
ig a t hild e a e likel to e ost ul e a le as a go e e t s ai of lo al apa it fo high le el
advocacy on children rights. 96
5.4.6 Renewed Global State Reports on the status of Children Rights
This would aim at stimulating state parties and organizations, including Kenya, to international conventions
such as the CRC to work harder towards the implementation of children rights so as to avoid international
spotlight as a country with a poor record on the same.
This effort is well seen by the ILO (International Labour Organization) which reports child labour patterns
across the globe. The International Bureau for Children Rights (IBCR) notes that the new ILO report dated 29 th
April 201 is the fi st i a se ies to e pu lished a uall the ILO “ I te atio al P og a e o the
Elimination of Child labour. It brings together research on child labour and social protection, identifying
policies that are designed to achieve multiple social goals.97
96
I g id Pal a , Fo Bette I ple e tatio of Mig a t Child e s ‘ights i “outh Africa, UNICEF (2009) p.5
97
World Report on Child Labour: Economic vulnerability, social protection and the fight against child labour-How can we reduce child
labour in the less favourable circumstances of global economic slowdown? International Bureau for Children Rights (IBCR),
Ne slette o Child e s ights i “u -Saharan Africa (2013) p.6
35
REFERENCES
BOOKS/ ARTICLES
1. AA An-Na i P o le s of U i e sal Cultu al Legiti a i AA A -Na i & FM De g eds Hu a ‘ights

in Africa: Cross-cultural perspectives (1990) p.336
2. Ahea . D, Holze . B, ith A d e s. L, Child e s ‘ights La ; A career Guide, Harvard Law School
(2000, 2007)
3. B ‘ ezau a The Co ept of the Child s est i te ests i the ha gi g e o o i a d so ial o te t of
Sub-“aha a Af i a i P Alsto , ed Best Interests of the Child: Reconciling Culture and Human
Rights 80, 83
4. Barbara Bennett Woodhouse (1999) A Delicate Balance; The Role of Government in Protecting
Childre ’s Rights withi the Fa il , Ke ote Add ess, I te atio al Co fe e e o Child e s Rights,
Ministry of Education, Tokyo, Japan
5. Bla k s La Di tio a , th Edition, Thomson West, (2004) p.882
6. C Nyamu-Musembi, Are local norms and practices fences or pathways? The e a ple of Wo e ’s
Property rights in AA-An-Na i & J Ha o d eds Cultu al Transformation and Human rights in
African Societies (2000) p.134
7. I g id Pal a , Fo Bette I ple e tatio of Mig a t Child e s ‘ights i “outh Af i a, UNICEF
p.5
8. Je ks.C Co eptual Li itatio s Childhood. Ne Yo k: ‘outledge p.
9. Lansdown G. Child e ‘ights i B. Ma all ed Child e s Childhood: Observed and Experienced.
London, The Falmer, (1994) Press p.33
10. Kofi A a , The p i iple of all hild e , all ights is still u h too fa f o ei g a ealit i The
Progress of Nations 2000
11. Mangold S.V, Transgressing the Border Between Protection and Empowerment for Domestic Violence
Victims and Older Children: Empowerment as Protection in the Foster Care System, New England
School of Law, (2002)
12. Oxford Dictionary of Law, Fifth Edition, Oxford University Press, (2008), pg 242
13. Patricia Martin, Regional Child rights advocacy; scoping the opportunities and challenges for promoting
a d p ote ti g hild e s ights i “outhe Af i a th ough “ADC, “a e the Child e “ ede
p.42
14. Thoko Kaime, The African Charter on the Rights of the Child; A socio-legal perspective, Pretoria
University Law Press (PULP) 2009, p.37
15. Va essa Pupa a ; Child e s Hu a ‘ights Ad o a i Mi hael Goodha t Hu a ights; Politics and
Practice(2009) p.219
OTHER PUBLICATIONS
1. A Summary of the Children Act cap 586 Laws of Kenya; A brochure by the African Network for the
Prevention and Protection against Child Abuse and Neglect (ANNPPCAN Kenyan Chapter)
36
2. Amnesty International-all about us, www.amnesty.org accessed 26th August 2013
3. Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties Under
Article 44 of the Convention, initial reports of state parties due in 1992, Kenya 13th January 2000
4. International Commission of Jurists Kenya Chapter- http//: www.icj-kenya.org accessed 22nd August
2013
5. International Human Rights Standards; Reporting Obligations, Convention on the Rights of the Child,
The Kenyan Section of the International Commission of Jurists,2004 pg 15-28
6. Rights of the Child in Kenya; An Alternative report to the UN Committee on the Rights of the Child in
Kenya, 44th Session-Geneva, January 2007, pg 11
7. The Children Act Cap 586 Laws of Kenya; An Executive summary of the Children Act in English and
“ ahili, Mi ist of Ho e Affai s Child e s Dept, Ge a Te h i al Coope atio a d sa e the
children-Canada
8. United Nations Committee on the Rights of the Child, A Guide to General Comment 7: Implementing
Child Rights in Early Childhood, UNICEF (2006) p.27-28
9. UNICEF-what we do, www.unicef.org/whatwedo/index.html accessed 25th August 2013
10. World Report on Child Labour: Economic vulnerability, social protection and the fight against child
labour-How can we reduce child labour in the less favourable circumstances of global economic
slowdown? I te atio al Bu eau fo Child e ‘ights IBC‘ , Ne slette o Child e s ights i “u -
Saharan Africa (2013) p.6
LEGISLATIONS
1. Borstal Institutions Act cap 92- Laws of Kenya
2. Constitution of Kenya 2010

3. Children Act No 8 of 2001-Laws of Kenya
4. Kenya National Human Rights Act- No 14 of 2011 Laws of Kenya
5. Legitimacy Act Cap 145- Laws of Kenya
INTERNATIONAL INSTRUMENTS
1. African Charter on the Rights and Welfare of the Child, adopted July 1990 (entered into force 29
November 1999)
2. Convention on the Elimination of Discrimination Against Women1979
3. Convention on the Rights of the Child, ratified by Kenya in July 31 st 1990International
4. Convention on Economic Social and Cultural Rights, adopted by the UN General Assembly Resolution
2200A (XXI) of 16 December 1966 at New York, entered into force on 3 January 1976
5. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflict G.A. Res. 54/263, Annex 1, 54 U.N. GAOR Supp. (No.49) at 7, U.N. Doc. A/54/49, Vol. III (2000)
ratified by Kenya in January 28 2002
37
6. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, child
prostitution and child pornography, G.A. Res. 54/263, Annex II, 54.u.n gaor Supp. (No.49) at U.N.
Doc.A/54/49, Vol. iii (2000)
7. Universal Declaration of Human Rights-1948
38

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Implementation of Children rights in Kenya; Legal, Social and

Samuel Wahome Kimani

1.2 Problem Statement………………………………………………………………………………………………………………...10

1.3 Research Objectives…………………………………………………………………………….…………………………….……

1.4 Research Question……………………………………………………………………………………………………………….…

1.5 Research Methodology……………………………………………………………………………………………………….….11

2. CONCEPTUAL AND LEGAL FRAMEWORK OF CHILDREN’S RIGHTS LAW

2.1 Introduction to Children Rights………………………………………………………………………………………………

2.2 Framework of Rights………………………………………………………………………………………………………………

2.2.1 I te atio al Legal f a e o k…………………………………………………………………………………….…

2.2.2 Regio al Legal f a e o k………………………………………………………………………………………………

. . Natio al Legal f a e o k………………………………………………………………………………………………

2.3 Characteristics of Children Rights……………………………………………………………………………………………

3. IMPLEMENTATION OF THE RIGHTS & WELFARE OF CHILDREN

3.3 Legal efficacy of National Legislation………………………………………………………………………………..…….

3.5 The Role of International bodies…………………………………………………………………………………………….

4. CRITICAL ANALYSIS OF CHILDREN’S RIGHTS IMPLEMENTATION MECHANISM; SOCIAL, ECONOMIC

4.2 Social, Economic & Cultural Background of Rights in Sub-Sahara Africa……………………………..….

4.3 The Problem of Relativism and Cultural Legitimacy…………………………………………………………..……

4.4 Justiciability vs Resource Constraints…………………………………………………………………………………..….

5. CONCLUSION AND RECOMMENDATIONS

5.1 I t odu tio ……………………………………………………………………………………………………………………………

5.4.1 Involvement of the community in children rights implementation programmes…………….

5.4.2 Creation of Awareness…………………………………………………………………………………………………….

5.4.3 Regional Advocacy for Implementation of Children rights……………………………………………….

5.4.4 Training and Research…………………………………………………………………………………………………..…

5.4.5 Organizational Capacity Building …………………………………………………………………………………….

5.4.6 Renewed Global State Reports on the status of Children Rights………………………………………

AC‘WC………………………………………………………..….Af i a Charter on the Rights and Welfare of the Child

C‘C……………………………………………………….……………………………………Co e tio o the ‘ights of the Child

CEDAW…………………………………………....Co e tio o the Eli i atio of Dis i ination against Women

IBC‘………………………………………………………………………………………..I te atio al Bu eau fo Child e ‘ights

ICE“C‘…………………………………………………I te atio al Co e a t o E o o i “o ial a d Cultu al ‘ights

ICCP‘………………………………………………………………….I te atio al Co e tio o Ci il a d Politi al ‘ights

ILO………………………………………………………………………………………………….I te atio al La ou O ga izatio s

KNH‘C…………………………………………………………………………….….Ke a Natio al Hu a ‘ights Co issio

UDH‘………………………………………………………………………………………..Universal Declaration of Human Rights

UN…………………………………………………………………………………………………………..……….……………U ited Natio s

UNICEF……………………………………………………………………………U ited Natio s I te atio al Child e s Fu d

1.2 Problem Statement

1.3 Research Objectives

• To determine the implementation of children rights in Kenya

• Identify the various stakeholders involved in the implementation of children rights

1.4 Research Question

1.5 Research Methodology

CONCEPTUAL AND LEGAL FRAMEWORK OF CHILDREN’S RIGHTS LAW

i. Civil and Political rights

2.2 Framework of Rights

Child e s ights, just like a othe a h of hu a ights, a e suppo ted a d o e ed u de a f a e o k

2.2.1 International Legal framework

Convention on the Rights of the Child

In this task, the committee monitors progress in two ways:

1. Appointment of a special rapporteur

2.2.2 Regional Legal framework

African Charter on the Rights and Welfare of the Child

2.2.3 National Legal framework

 Right to parental care

The A t p o ides fo e fo e e t i stitutio s fo hild e s ights. I Ke a, e fo e e t of these ights, as

2.3 Characteristics of Children Rights

As al ead oted, hild e s ights as e t a ted f o the ai st ea hu a ights, a e pe ulia a d u i ue i

IMPLEMENTATION OF THE RIGHTS & WELFARE OF CHILDREN

3.3 Legal efficacy of National Legislation

3.4 The Role of State and Non-state bodies