CHILDREN AND THE LAW

Topic 1: Unborn Child and the Law

Legal status of the unborn child

There are three main approaches:

i. Pro-life approach

ii. Pro-choice

iii. Pro-child

Pro-life approach

Proponents advocate for the respect of human life from conception. This approach does not

advocate for abortion. Fetus is treated as a human being from the moment of conception. This

approach argues that conception is the beginning of life and that there should be sanctions for

any acts that prohibit the development of human life.

Pro-choice approach

Its proponents argue that whether the child should be born should be the discretion of the mother.

They advocate for the ---approach that since the law allows for consent in all relationships--- a

mother ---should be able to withdraw her consent from her relationship with the foetus and be

allowed to terminate it. They argue that outlawing abortion subjects the mother to become a

victim of human rights violation. A person has a right to ---regulate her reproductive health and

the law has no business of moving from the courtroom to the bedroom.

Pro-child approach (family fit for a child)

This is said to be the best approach as it promotes responsible parenthood by promoting

reproductive health care through family planning, that is, use of contraceptives. This is meant to

prevent a situation where a child is born in an unhealthy ---environment which in some instances

is below human standards, for example, street families. This approach is good as it encourages a

situation where a child arrives in a planned family environment.

Kenyan law

The Kenyan law seems to adopt a pro-life approach. The Penal Code, CAP 63, expressly

provides for criminal sanctions that prohibits interference of the pregnancy under sections

158,159 and 160. This statute protects the foetus and treats it as a person. This prohibition

reflects the society’s view. The Constitution1[1] also provides for a pro-life approach under

Article 26 (1) which provides that life commences at conception. However, this ---is qualified

under article 26(2) (3) & (4) where ---abortion is allowed if in the opinion of a trained ---health

professional there is need for emergency medical treatment or the life of the mother is in danger.

In the case of R v John Nyamu & 2 others 2005 eKLR, Dr. Nyamu a gynecologist and 2 others

were charged with murder contrary to section 203 and 204 of the penal code. The issue for

determination was whether they were guilty----or not. In her---assessment Judge Rawal held that

there was no evidence to prove murder. In paragraph 20 she noted “am of the ---opinion for a

child ---to become a –person the most important ingredient is when it has completely proceeded

in a living state from the body of its mother, without that, the foetus was not a person capable of

being killed.”

In the case of Paton v British pregnancy advisory service trustee (1978) AER Paton wrote an

application to stop BPAST and his estranged wife whom they had separated from procuring an

1
 abortion. The wife was 1 month pregnant and had contacted BPAST for abortion facilities---

Paton sought –an injunction to stop the abortion of his child.

There were two issues for determination:

i. Rights of an unborn child to life.

ii. Paton’s right to fatherhood in relation to unborn child.

The case was dismissed and the court held that under British law (common law), there can be no

fatherhood, personhood or childhood unless there is a life birth. The court noted further that -----

the unborn child had no legal recognition---and therefore there was no basis for stopping

BPAST.

Paton appealed to the European commission on Human Rights. The commission dismissed the

case noting that the state--- of unborn child was not addressed----and that there was no regional

consensus on how to regard personhood or childhood. However, the commission noted that the

national law was not consistent with the European convention on Human rights.

In the case of Re F (Inutero) 1988 2WLR 1288 similarly the local authorities alerted the court

that a woman who was in her final month of pregnancy was mentally unstable and had suicidal

tendencies. She had an only child whom she abused frequently and had been ---taken under

custody. The appeal laid by local –authority to the high court was to take the ---lady to custody

to protect the unborn child. The court cited the Paton’s case and held that ---holding was that a

child could not be protected unless there was life birth

The court had no jurisdiction to protect the unborn child no matter how advanced the pregnancy

was.

The legal status of the embryo

In Evans v Amicus Healthcare ltd & others (2004) 727 EWCA Mrs. Evans and her husband had

been trying to have a child without success. Mrs. Evans had a problem with her reproductive

health and had been unable to conceive. She was diagnosed with cancer. She and Evans arranged

to extract some ova from her which were then fertilized by Evans at Amicus Healthcare clinic. A

number of embryos were created and some preserved for future surrogate for other clients.

Unfortunately Evans divorced/separated and Mr. Evans instructed the clinic to destroy the

Embryos. Mrs. Evans didn’t want them to be destroyed as she wanted another child in future.

She went to court to seek an injunction stopping the clinic from destroying them. The European

commission on Human rights dismissed the case relying on Human fertilization and embryology

rights act. The court noted that one cannot proceed with forcing parents to having a child if either

or both parents denied consent of keeping the child.

LECTURE 2

TOPIC 2: THE CHILD IN INTERNATIONAL LAW

The purpose of international protection is to codify, legalize universal moral claims of children’s

right. Children’s rights can be said to be derived from moral claims because children are a

vulnerable group and cannot assert their own rights. Under the domestic obligations, the

international community requires governments to ensure certain domestic standards are met to

protect and guarantee children’s rights. States also have extra-territorial obligations (diagonal

obligations). States should not stop at neo-domestic obligations which focus on an inward look

but should also have an outward look.

Earlier legal statements are conspicuously silent on children’s rights, however, the 10

commandments are said to be most influential of all legal codes as they contain a clear normative

pronouncements on parent-child relations.

 1. The Declaration of Geneva of 1924

This was the first international declaration and is limited in scope. In its pre amble it states that

mankind owes to the child the best it has to give. In its five principles it emphasizes on welfare,

the requisite means for normal development, food and medicine, help for the “backward” rehab

for the delinquent, relief in times of distress, to be put in a position to earn livelihood and

protection against exploitation and socialization to serve others.

2. The Universal Declaration of Human Rights of 1948

It had provisions which were better tailored to children specifically Article 25(2) which states

that “motherhood and childhood are to be entitled to special care and assistance and children

born out of wedlock are to enjoy the same protection.”

Further in article 26, the instrument provides that everyone is to have the right to education. This

is to be free at elementary level and also compulsory at that level.

3. European convention on Human rights of 1950

Under this convention there were specific references to the children in Articles 5(1) (d) and 6

which provided for Right to education. Article 8 provides for child’s best interests

4. United Nations declarations on the Rights of the Child of 1959

It was proclaimed in 1959. It was similarly worded to Geneva Convention adopted 35 years

earlier. Both declarations emphasized on child protection- protecting the child rather than the

child’s rights. It has more modern---- e.g. a non-discrimination principle (principle 1). Principle

5 is about recognition of the special needs of a child. Particularly significant is that this

declaration is the first international human rights instrument to refer specifically to the best

interests of the child in its principle 2.

 5. International Covenant on Economic Social and Cultural Rights of 1966

It recognizes children in several of its articles. Article 10 mandates special measures of

protection and assistance and protection from social and economic exploitation. There is an

emphasis on education of the child directed to the poor development of the human personality

and the sense of its dignity. State parties are called upon to recognize that primary education is to

be compulsory and free, secondary education generally available and higher education equally

accessible to all under its article 13.

6. The international Covenant on Civil and political rights of 1966 (ICCPR)

It provides that every child is to be protected from non-discrimination. The death sentence is not

to be imposed on crimes committed by persons below 18 years. Under Article 24, every child is

entitled to be registered and to have a name and the right to acquire a nationality. Article 24 is

the only specific article on children as all the other articles provide for all classes of persons.

7. The Hague convention on international child abduction of 1980

The presumption that underpins this convention is that a ---pompt return of an abducted child to

the country of their habitual residence is always in that child’s best interests. The duty to return

the child is not absolute. A judge or judicial officer can avoid return if there is a great risk that

return of the child would lead to physical or psychological harm or otherwise place the child in

an intolerable situation. This convention generally protects children from abduction.

8. European Convention on Custody and Restoration of Custody of children of 1980

It is of lesser profile and significance. Most of its provisions are found in the Hague

convention---.
 9. The convention on the rights of a child of 1989

This is the major global instrument on children’s rights. It has been ratified by all statutes except

the USA. The CRC follows a holistic approach to children’s rights recognizing that the rights

anchored in the convention are ----ind and interrelated and an equal importance must be attached

to every right contained therein. However, since the rights derived from basic principles are

multi-faced. They can be clustered into 8 categories namely:

i. General measures of implementation.

ii. Definition of child

iii. General principles

iv. Civil rights and freedom

v. Family environment

vi. Alternative care

vii. Basic health

viii. Welfare

The convention has 3 optional protocols:

a. Optional protocol to CRC on the involvement of children in armed conflicts of 2000.

b. Optional protocol to CRC on the sale of children and economic

c. Optional protocol to CRC on communication procedures

10. African Charter on the Rights and welfare of the child

This was preceded by the African declaration on the rights and welfare of the child in 1979. The

1979 document was an inspirational, emphasized on equal status of the female and male

children, it referred to child marriage and female circumcision and urged members states to ratify

the ILO convention on minimum age of employment. It urged particular attention to be paid to
 the needs of refugee and disputed children. African charter adopted most of its provisions.

African charter on the rights and welfare of the child is said to be the most forward-thinking of

all the regional conventions. It is the most progressive treaties on the rights of the child. The

most significant innovation empowers the monitoring committee under its article 44 to receive

communications from any person or group or NGOs recognized 2[2] by the organization of

African union. Children can petition the committee on alleged violation of their rights including

their economic, social and cultural rights.

Note: the ACRWC is wider and care than the CRC. There is a specific article condemning

apartheid and child marriage.

See the Nubian case.

Does international protection add value?

LECTURE 3

31ST MAY 2016

Importance of international protection

International protection is of significant value to children’s rights:

i. Provision of additional institutional context. This enables mobilization of resources especially

in a civil society that ensures that the government discharges their obligation under international

law. This provides a parallel institution.

ii. International protection on the rights of a child prevents sources of ideas for forming

institutions, for example female genital mutilation has been outlawed in many countries to

conform with international law.

2
iii. It helps to develop children’s jurisprudence of children rights at the international level. In open

cases, there is no political will at the national level.

iv. International instruments …for example through reporting a state that is crippling with child

labor may borrow from the practices in Columbia. Reporting also enables the international

communities understand problems facing the reporting community of the reporting states so that

international community can contribute in solving some of the problems. Depending on the

problems, World Bank or the UNDP may chip in to provide funding to solve these problems.

Under the UN human rights protection and …each of the core human rights instruments has a

treaty monitoring body. Traditionally, treaty bodies are independent bodies of experts who are

elected from amongst nationals of the state parties to the respective internationals human rights

treaties. The experts work for the treaty bodies usually referred to as the committees and they do

so on a contrary and voluntary basis. Their main role is part of examining state reports. The

reports are a sort of comprehensive national reports involving a wide range of states and non-

state actors such as parliament, national human rights institutions and the civil society. However,

in most cases, many states prepare the reports behind closed doors involving only government

officials. This has resulted in many reports to lack a comprehensive, critical and objective human

rights assessment which is the real objective of every state reporting procedure under the UN

human rights system as well as under the human rights regional system. Under the arrangement

of the reporting, the duty of the treaty monitoring body is to critically examine the state report in

public sessions and to issue concluding observations and recommendations. The reports are

published in their annual issues. After the concluding observations and recommendations are

issued, governments are expected to pay heed/attention to these recommendations and give an
 account of their state of the implementation of the following report. NGOs play a crucial

monitoring role particularly at the national level.

In the case of the CRC it is monitored by a committee which is established under Article 43(1).

The committee is comprised of a ...of experts of high moral standing and recognize competence

in the field covered by the convention. These experts are elected by state parties from among

their nationals who served in their personal capacities. The committee meets in Geneva,

Switzerland, thrice per annum for a period of three weeks for each session. Under Article 44 of

the CRC, state parties are obliged to submit to the committee through the secretary general of the

United Nations reports on the measures they have adopted which give effect to the rights

recognized. The period for state reporting is two-faced:

a. Within two years of entry into force of the convention for the state party concerned

b. Thereafter after every five years

Like the CRC, the ACRWC implementation is monitored by a specialized treaty body. The

African Committee of experts on the rights and welfare of the child which was established in

2001. The African committee of experts has a more extensive mandate than the UN committee

on the rights of the child. Apart from receiving and commenting on the state reports, the African

committee of experts has the mandate to receive and consider individual communications and

conduct ad hoc missions and on such visits of states considered to be violating the treaty

obligations.

The African committee of experts has been cited as progressive in the case of Institute for

Human rights and Development in Africa (IHRDA) and open society justice initiative

society(NY) (on behalf of children of Nubian background in Kenya)…that was brought on …of

Nubian descent before the African committee of experts. Nubians were recruited to be used by
 the government during the colonial era …resources. The government settled them in Kibera in

Nairobi and these children were never issued with IDs because they were from Sudan which was

perceived to be an enemy of Kenya. The Nubians filed a suit in high court that was never …

they proceeded to the African committee of experts claiming their rights had been violated and

specifically article 6(3) of the African charter which provides that every child has the rights to

acquire nationally…the committee made an inquiry in 2011. The committee found that denying

Nubian children access to national identification cards amounted to making them stateless which

was against the best interest of the child. They also found that the vetting system put in place to

determine who got access to citizen ship “unlawfully discriminated”…leaving them stateless

which was in breach of article 3 of the African charter. Further the committee held that lack of

citizenship rights also denied Nubians access to adequate healthcare and education in breach of

article 14 and 11 of the African charter which commits Kenya to provide the highest attainable

standard of health and education to children.

The committee then sent a series of recommendations to the Kenyan government in order to

form legislative and administrative practices while also making great steps to create an un-

discriminatory birth registration system.

NON-ENJOYMENT OF RIGHTS IN CHILDREN DESPITE INTERNATIONAL

PROTECTION

I. Insufficient resource mobilization. In most domestic institution of children issues, you find

that the resources are present but are not mobilized for social economic rights. A class example

is the availability of oil in Turkana yet children in this particular part of the country continue to

starve and are denied their rights. Another example is on the issue of food security in Egypt
 which has a larger population than Kenya and yet she has mobilized her natural resources to

attain food security.

II. Misallocation and misuse of resources. This has led to chronic and sustainable

underdevelopment. A good example is the failure to employ early childhood teachers’ obligation

in public schools by the government. This has contributed to poor performance of children in

public schools.

III. It helps ...corrupt political leadership. Badly governed statehood compromises realization of

children’s rights. Most states especially in Africa have manipulative statehood governance where

they get people to be vulnerable or economic sabotage so that they can vote for them.

IV. Inappropriate child rights advocacy. These are NGOs selected to advocate child rights but

instead use child rights infringement for personal gain. For example, the setting up of orphanages

for the purpose of these orphans. Upon getting donor funding, persons in charge use 95% for

themselves and their families and 5% for the orphans. At some point, especially in the late 90s

creation of orphanages was lucrative before they were exposed.

V. High levels of illiteracy, especially female illiteracy. Children dropping out of school, early

pregnancies, failure to be exposed to family planning practices adversely affects the realization

of children rights. There is lack of support programs of girl-child education especially in rural

areas.

VI. Inappropriate International Financial Institution (IFI) policies. The World Bank and IMF

impose certain policies on borrowing countries. Policies such as cost sharing exclude many states

from attaining the acquired rights.

VII. Political instability and armed conflicts. Collapse of states such as Somalia because of

unending conflicts, Kenya’s 2007 post-election violence, Egypt, ivory coast, Liberia, south
Sudan, etc. affects institutions of governance that are required to guarantee rights. States need

advanced and stable economic social infrastructure to provide the basis for accessing children’s

rights.

Look at the Children’s Act

Next: Child in the local Kenyan context

Kenya law reform commission

After 2001 there have been attempts to amend the law

CHILD IN THE LOCAL KENYAN CONTEXT

The child law reform process in Kenya was kick-started by the executive upon public calls for

such reforms towards the end of 1980s. The AG initiated the child law reform process through

the traditional approach, that is, by directing the Kenya Law Reform Commission (KLRC) to

review the existing laws concerning the welfare of children and to make recommendations for

improvement so as to give effect to the CRC.

Acting on his directive the KLRC established a 13 member task force to undertake the process.

The task force was comprised of government officers, children rights advocates, academics,

experts who reflected an inter-disciplinary approach. It commenced its mandates in March 1991.

The taskforce collected information from public administrators and the general public through

public meetings during provincial meetings; it also obtained views of experts and practitioners

from outside Kenya. The taskforce also conducted a comparative study by undertaking a visit to

Egypt in order to enlighten itself in the interaction between Islamic law and children’s rights on a

number of issues including adoption and affiliation. The taskforce also collected views from the

children which were done through a school essay competition. This competition was conducted

to obtain opinion of children specifically regarding their rights duties and welfare. The emerging
 crucial issues from these essays were synthesized and incorporated in the report. The taskforce’s

final report was very comprehensive and in May 1994 it submitted its report to the government

and recommended for the re-enactment of a children’s Act. The Kenya Children’s Act repealed

two pieces of legislation, the Children and Young Person’s Act, the Adoption Act and the

Guardianship of Infants Act.

Children’s Act No. 8 of 2001

The CA consolidates the previous law dealing with childcare, maintenance , guardianship,

adoption, the establishment of childcare institutions, children’s courts, particular provision on

juvenile justice and overall, it seeks to domesticate the provision of the CRC and the ACRWC.

1. DEFINITION (SECTION 1-2)

Some of the key definitions include a “child” as any human below the age of 18 yrs. There is

also the “child abuse” to include physical, psychological and mental torture. “Parent” is defined

as mother and father of the child or any person who is liable by law to maintain a child or is

entitled to his custody.

“Early Marriage” is defined as marriage of cohabitation with a child or any arrangement made

for such marriage or cohabitation. “Female Circumcision” is the cutting and removal of parts or

whole of the female genitalia.

2. SAFEGUARDS FOR THE RIGHTS AND WELFARE OF CHILDREN (S. 3-22)

The Children’s Act provides for the right all of children which can be classified into two groups

as follows

i. Welfare rights

a. (the right to life and development)

 b. The right to parental care

c. The right to health and health services

d. The right to free and compulsory basic education

ii. Protection rights

a. The right to be protected from child abuse

b. The right to be protected from hazardous child labor

c. The right to be protected from harmful cultural activities such as FGM and early marriage

d. The right to be protected from drug abuse

These rights are to be practiced with the following two key principles:

i. The best interest principle set out under section 4 read together art 53(2) of the constitution

that provides that “in all actions concerning children, whether undertaken by public or private

institution, courts of law, administrative authorities or legislative bodies, the best interest of

children shall be a primary consideration.

ii. Non-discrimination principle covered by section 5 that is to the effect that no child shall be

subjected to discrimination and grant of origin, sex, religion, custom, opinion, conscience, social

political or other status, race, disability or local connection

High court- enforcement

On the enforcement of children’s rights is under section 22 which provides that any person who

alleges that the rights of a child have been or are likely to be contravened may apply to the high

court for appeal on behalf of the child.

Q: Who has the locus standi to appear before the high court on behalf of the child?

A: The parent, guardian, interested party etc.

DUTIES AND RESPONSIBILITIES OF A CHILD

 A child is expected to:

i. Work for the unity of the family

ii. Respect his parents, superiors and elders at all times and assist them in case of need

iii. Serve his community

iv. Preserve and strengthen social and national solidarity

v. Preserve and strengthen positive cultural values of his community in his relations

3. PARENTAL RESPONSIBILTY (SECTION 23-29)

It refers to the rights, powers and authority which by law a parent of a child has in relation to the

child property in a manner consistent with the evolving of a child. The duties include:

i. Maintenance of the child and provision of adequate diet, shelter, clothing and medical care

ii. Education and guidance

iii. Protection from neglect, discrimination and abuse

iv. Right to guide in religious, moral and social-cultural beliefs

Under article 53(e) of the constitution, every child has the right to parental care and protection

which includes equal responsibility of the mother and the father to provide for the child, whether

they are married or not.

4. ADMINISTRATION OF CHILDREN SERVICES

Three types:

i. The national council of children services

The purpose of the council is to exercise general supervision and control over planning for …of

child rights and nationwide activities and to advise the government of all aspects of child rights
 and welfare. It’s composed of the government, NGOs that are engaged in child welfare, religious

bodies, private sector, AGs office, police commission and director of children services.

ii. Director of children services

It is responsible for guarding the welfare of children and assisting in establishment, promotion,

coordination and supervision of services facilities designed to advance children’s rights

iii. The local authorities

What is the connection? How do they operate now?

The local authorities have the responsibility of developing welfare schemes for children that

further the interests of children. The local authorities safeguards and promote the rights and

welfare of children within their area of operation.

5. Children’s institutions (section 47-58)

There are three main institutions:

i. Rehabilitation schools

The former approved schools are now what we call rehabilitation schools. They are established b

y the government for the reception, maintenance, training and rehabilitation of children ordered

to be sent their by the children’s court.

ii. Children’s’ remand homes

These are institutions established by the government to receive children normally under the age

of 14 whose cases are still ongoing in court. Former juvenile remand homes are now children’s

remand homes

iii. Charitable children’s homes

These are institutions that are established by religious bodies, private persons and NGOs in

general to undertake programs to protect rehabilitate, care or control children. Approval has to be
 granted by the national council for children services to grant these programs. The NGO must first

show proof of registration before apply for approval.

6. Children’s court (section 73-80)

Children’s courts are established to hear the following three matters:

i. Civil cases

These are cases concerning parental responsibility, custody and maintenance, guardianship,

children in need of care and rotation, and foster care placement.

ii. Criminal cases.

Courts also hear cases from children who are in conflict with the law or child offenders except

where the child is charged with murder is jointly charged with the adult(s).

iii. Offenses against children

Court also hears cases people who have been cruel or neglectful of their children and any other

Offences under the act. Children’s courts are presided over by children’s magistrate specifically

appointed by the CJ.

Restrictions

Only court officials, people involved in cases, genuine members of the press, parents and

guardians of the child are allowed to sit in children’s court while a matter is ongoing. Other

people have to see permission of the magistrates if they have to sit in court. In reporting the cases

involving children in the media or in any other report, their names, schools, homes or last places

of residence should not be published or any other information that will lead to identification of a

child.

7. CUSTODY AND MAINTENANCE (SECTION 81-89)

 Custody refers to the possession of a child

Who can be given custody?

i. The parent

ii. The guardian

iii. Any other person who applies to the court for custody but has had actual custody for three

months before the application with condition of parent or guardian.

What factors must be considered before making a custody order?

i. Best interest of the child

ii. The wishes of the child

iii. The wishes of parent, guardians, foster parents or any other persons who have custody of child

iv. Cultural and religious background of the child.

When it comes to maintenance, it refers to the supply of the necessaries of life for a person. For

children this refers to adequate diet, shelter, health and medical services and education

Who has a duty to maintain a child?

i. Parents of a child whether married or not

ii. Joint custodians of the child

iii. Joint guardians of the child.

The court may order a parent to provide for child upkeep but will take into consideration

financial means of those involved.

8. Guardianship (section 103)

A guardian is a person appointed to take care of a child alone or the child’s property after the

death of a parent. A guardian can be appointed in three different ways:

i. Through a valid will

ii. Through a deed or designing of a document witnessed by two persons declaring the

appointment of a guardian.

iii. Through court order upon the application by any person to the court if the child is an orphan or

his parents cannot be found or where the child is in need of care and protection. The surviving

parent may act together in appointing the guardian of the child. If the guardian does not wish to

take responsibility or the surviving parent does not wish to act jointly with the appointed

guardian they may refer the matter to the children’s court for solution.

9. JUDICIAL ORDERS FOR THE PROTECTION OF CHILDREN (S.113- 117)

These are the orders that the court can grant for the protection of children and ensure that their

welfare is enhanced.

Who can apply for the orders?

a) The child

b) Guardian, custodian of the child

c) A relative of the child

d) The director of children services

e) An authorized officer

What kind of orders can the court issue in bid to protect the welfare of the child?

Restraining orders/exclusion orders

Judicial protection

a. Access order – allows a person to visit a child residing with another person

b. Residence order – requires a person named in the order to reside with the child.
 c. Exclusion order – requires a person who has been violent to a child or has threatened to use

violence to stay away from the child

d. Child assessment order – requires a child to be evaluated or investigated by a person appointed

by the court

e. Family assistance order – this requires a person named by the court to assist the family with

advice, counseling and guidance.

f. Wardship order – places a child under the protection of the court.

g. Production order – in the context of children’s issues requires a person to produce a child he/she

is illegally keeping.

10. CHILDREN IN NEED OF CARE AND PROTECTION (S. 118-129)

These are children:

(i) Orphans who have been abandoned or destitute

(ii) whose parents have been imprisoned

(iii) homeless or beggars

(iv) have been denied education

(v) of female gender but subjected or exposed to harmful cultural practices, like FGM and early

marriages

(vi) are exposed to domestic violence

(vii) are pregnant

(viii) terminally ill or whose parents are terminally ill or has a disability

(ix) sexually abused

(x) are exposed to child labor etc.

 Any person who believes that a child is in need of care and protection should report the matter to

an authorized officer including among others to a police station or a local administration and the

child should be taken to a place of safety. Where a child is brought before a court as one in need

of care and protection, the court must give the parents or guardian a chance to explain their case.

The court then makes certain orders according to the best interest of the child.

What orders can the court make?

(i) The court can compel the parents to sign a written agreement that they will take good care of

the children.

(ii) Commit the child to a rehabilitation school.

(iii) Commit the child to a drug rehabilitation center of the child is addicted to drug abuse

(iv) Nullify the marriage of a child and place the child with a person who is fit

(v) Place the child under the supervision of children’s’ officer while still at home

(vi) Place the child under care of another other than the parents under the care order.

It is an offence for any person to willfully assault, abandon or knowingly cause a child to be in

need of care and protection. A penalty for this offence is a fine not exceeding 200,000 shillings

or imprisonment for a term not exceeding 5 years or both.

11. FOSTER CARE PLACEMENT (s. 147-155)

It means the placement of a child with a person who is not the child’s parents, relative or

guardian and who is willing to undertake the care and maintenance of that child.

A child can be taken to a foster placement by the director of children services and the manager of

a charitable institution or rehabilitation school where the child has been placed through a care

order.

Who can qualify to be a foster parent?

(i) A married couple

(ii) A single woman aged above 25 yrs. but cannot foster a male child

(iii) A single man aged above 25 yrs. but cannot foster a female child

12. ADOPTION (S. 156-159)

Adoption gives parental rights and duties relating to a child to the adopter or the person who the

adoption order has been granted. The act established the adoption committee to oversee adoption

issues.

Prerequisites for adoption:

(i) A child must be at least 6 weeks old

(ii) A child must have been declared fit for adoption by a registered adoption society

(iii) The child must be a resident in Kenya and has been in the continues care and control of the

applicant for a period of three months before the filing of the application and a registered

adoption society has evaluated both child and applicant

Who may apply for adoption?

(i) A sole applicant or jointly, two spouses …where each one of them is:

a. At least 25 yrs. and at least 21 yrs. older than the child

b. Is a relative of the child

c. Is the mother or father of the child

The following cannot adopt a child unless there are special circumstances for adoption order to

be made:

a. A sole male applicant in respect of female child

b. A sole female applicant in respect of a male child

c. An applicant or joint applicants who have attained the age of 65 yrs.

 The following persons may never adopt a child:

i. A person who is not of sound mind

ii. A person who has been convicted of child abuse offence

iii. A homosexual

iv. Gay applicants who are not married

v. Is a sole foreign male applicant

Consent before any adoption is effected. There are two types of consent that must be taken out

before adoption is effected;

(i) The consent of parents, guardians or any person having parental responsibility or for people not

resident in Kenya, the consent of the courts or government authorities.

(ii) The consent of a child who has attained the age of 14 yrs.

Consent of parent can be done away with in the case where they have abandoned or neglected

their children or cannot be found.

The parent can appoint a guardian ad litem, to safeguard the interest of the child among other

things to

A guardian ad litem is a person appointed to defend an action or other proceedings on behalf of

the child.

When it comes to international adoptions under s. 162, can be conducted in respect of a child

upon the application of two spouses who are not Kenyans and who are not in Kenya provided

that legal requirements to that effect are met.

Effects of an adoption order

An adoption order once granted has the effect of transferring all rights, duties and responsibilities

off a child to the adopter as if the child was born to the adopter inside a lawful marriage. The
 adoption order extinguishes the rights, duties and responsibilities that a parent or guardian or any

other responsibilities before the order was made

13. CHILD OFFENDERS (s. 184-194)

These are those who are in conflict with the law. These are children who are suspects in a

criminal case or have been convicted for having committed a criminal offence. A children court

will hear cases of children offenders’ part from those charged with murder and those charged

together with adult(s).

What rights do those children accused of having infringed the law have?

(i) To be informed promptly and directly of the charges against them

(ii) To be assisted to obtain legal assistance

(iii) To have the matter determined without delay

(iv) Not to be compelled to give testimony nor to face guilt

(v) To have the assistance of an interpreter if the child needs one

(vi) To have the rights to appeal

(vii) To have the right to privacy at all times during proceedings

(viii) If they are disabled to be given special care and treatment in a manner that enhances their

dignity

(i) The best interest of the child shall be primary

(ii) The children court shall have a setting friendly to the child offender

(iii) The words conviction and sentence shall not be used in relation to a child, instead the term “a

finding of guilt” and “ an order upon finding of guilt” shall be used respectively

There are various orders that the court can issues with respect to child offenders. The court may:

(i) Set the child free by discharging them

(ii) Place the child under probation

(iii) Place the child under a fit person who may be a relative or a charitable children institution

willing to take care of the child

(iv) Commit the child

(v) Order the offender to pay a fine, compensation or costs

(vi) Commits the child to a bostol institution

(vii) Place the child under the care of a qualified counselor

(viii) Place the child in a vocational training programme

(ix) Issue a community service order

Restrictions on punishments

(i) No child offender shall be subjected to corporal punishment

(ii) No child shall be ordered to imprisonment or a detention camp

(iii) No child shall be sentenced to death

Remand in custody shall not exceed 6 months for an offence punishable by death and if the case

is not finalized within a year the case will be dismissed. 3 months in the case of any other

offence and if the matter is not completed within 3 months after the child has taken plea, the

matter will be dismissed.

Lecture

June 2016

Interaction of children and the community

Provisions for the best interests of the child – sections...CRC

BEST INTEREST PRINCIPLE

 The principle of the best interest of the child has been referred in the Kenyan law in respect of

guardianship and custody of the child. In a number of cases, the Kenyans courts have insisted on

the need to consider the best interest if the child.

Article 53(2) of the constitution provides for the ‘best interest’ principle as read together section

45(2) of the act. The convention on the rights of the child committee CROC has urged the

Kenyan government to ensure that the principle of best interest is taken into accounting all

programs policies and decisions that concern children and especially vulnerable children by

sensitizing and training all involved officials and other professionals.

In its consolidated 3rd, 4th and 5th report to the CROC, the government of Kenya reported to have

taken follow-up actions reports in compliance with the recommendations of the CROC. The

Kenyan government reported that it has enshrined this principle to the constitution and further

that there were numerous capacity building sessions for professionals-working children at

various levels.

Article 4(1) of the African charter on the Rights and Welfare of a Child (ACRWC) and article 3

of the CRC guarantee the child’s best interests. Under both treaties, state parties are obliged to

domesticate these principles through constitutional, policy, legislative, judicial, and

administrative measures.

In general, while assessing a child’s best interest the courts will look at:

(i) Each parent’s

a. Physical and mental health.

b. Education and work skills

c. Relationship with the child

(ii) The child’s special needs

(iii) The child’s current living situation

(iv) The child’s wishes

(v) The child’s relationship with the extended family members

(vi) Each parent’s employment and earning capacity

(vii) Each parent’s motives for seeking custody

(viii) Recommendation from expert witnesses, evaluators or psychologists.

(ix) Each parent’s willingness to allow the child to have a meaningful relationship with the other

parent.

(x) Either parent’s history of domestic violence, promiscuity or child abuse

(xi) If the child is of sufficient age and maturity, the child’s preference

In the Kenyans courts the best interest principle has been interpreted in the case of F.M v H.G

civil case no. xxx 2012 eKLR ,this was an appeal case that involved a man and a woman who

were married in 2003 under the Meru customary law, they cohabited together as husband and

wife till 2005. Their marriage was blessed with one child I.M. they then fell out in 2007 and at

the time of filing for a divorce case in 2007, I.M was 4 and half yrs. Prior to the filing of the

divorce case, the respondent/wife and the child had been chased from the matrimonial home by

the appellant/husband in 2005. As the case was ongoing, the appellant/husband took the child

from the wife/respondent claiming that he was going out of the country and that he wanted to

take the child for insurance purposes and would return the child back to the respondent but he

failed to return the child as promised. The respondent/wife filed an application to the court

seeking custody, care and control of I.M .

The court made reference to section 4(3) of the children as read with s. 83 which includes…as to

custody order should always be made in the best interest of the child. The court further noted that
where a custody of a child of tender years. The mother should have the custody unless special

instances are established to disqualify the mother from having custody.

The court noted that there was no record showing exceptional circumstances to justify depriving

the mother of her natural rights to have her child with her. The court granted joint custody to

both the appellant and the respondent and directed that the parties would exercise equal

responsibilities of the child which would include providing maintenance, education, medical

care, general upkeep of the child.

Appellant was ordered to surrender custody of I.M to the respondent mother under the

supervision of the O.C.S Chuka police station and the district children’s officer. Finally the

parties were ordered to structure their visitation rights that would enable the appellant to access

I.M.

Similarly in the case of L.K. (LLMM Baby) v H.M.K 2013, eKLR this was an appeal case. The

appellant/ sought orders for actual custody of the minor child named MMM aged 4 yrs. to be

granted to her. There was no dispute that the issues was a biological to both. In June 2012, the

law court delivered judgment in the children’s court in Meru vesting the custody of the minor

child to the applicant/mother and the respondent was ordered to provide for the child upkeep and

maintenance but he refused to comply. The applicant/mother averred as a result she was forced

to leave the child with her mother to go and look for a job in Nairobi but she would come back

every two weeks to check on the child. She further wrote to the …court that she used to send

upkeep to her mother through m-pesa and that she had found a job as a salonist and she was

earning 20,000 per month and was in the process of moving to Nairobi as soon as she found

affordable accommodation. She further noted that she had enrolled the child in school, was

paying school fees alone without any help from the respondent. On 5 th December 2012, the
respondent sought custody of the child. The court allowed the application and vested the minor

child in the custody of the respondent. The applicant was dissatisfied by this order and thus

revered this appeal.

The respondent averred that the respondent had hidden the child to deny him access and further

averred that he further supported the child though there was no evidence. In making its final

decision the court relied in the case of Karanu v Karanu 1975 EA where the court of appeal

stated “the substantial question in this appeal is not whether the judge was right in giving custody

of the children to the father. At the time the application was heard, the daughter of the parties

was 7 yrs. of age as the son was 6yrs. The judge correctly directed himself that in cases of this

nature, the paramount consideration is the welfare and the best interest of the children. And in

the absence of exceptional circumstances, the custody of young children should be given to the

mother.

In the instant case(of L.K ) the court noted that no evidence had been tendered to show that there

were compelling circumstances to disqualify the applicant mother from continuing to be in

physical custody, care and control of LMM. The court noted that the respondent had never been

in custody of the minor child and was unknown to the child.

Parental care, duties, and responsibilities of the child

What circumstances can inspire a child to sue?

Under common law, unless otherwise proved, children are entitled to parental care. Both parents

have a duty to support their children and children have a reciprocal duty to support their parents.

The duty to support children by parents accrues whether the children are born of parents who are

married or not. The famous UK Gillick case 3[3] involved a health departmental circular advising

3
 doctors on the contraception of minors for this purpose below 16 yrs. The circular stated that the

prescription of contraception was a matter for the doctor’s discretion and they could be

prescribed to children less than 16yrs. without parental consent. The mother was litigated

because an activist, Mrs. Victoria Gillik, ran an acting campaign against …Mrs. Gillik sought a

declaration that prescribing contraception was illegal because the doctor would commit an

offense of encouraging sex with a minor, and that it would be treatment without consent and yet

consent vested in the parent. The issue before the house of lords was whether a minor could give

consent. The House of Lords focused on the issue of consent rather than a notion of parental

rights or parental powers. In fact the court held that parental rights did not exist other than to

safeguard the best interest of a minor. The majority held that in some circumstances a minor

could consent to treatment and that in this circumstance a parent had no power to veto treatment.

This case lays down that the authority of parents to make decisions for their minor children is not

absolute but diminishes with the child’s evolving maturity.

Parental duties and responsibilities for the child in international law

In international law the primary duty to take care and maintain a child is imposed of their

parents. The legal position of parents to take care of their children is derived from the

presumption that they are in the best position to secure the rights of a child. In international law

there are two aspects relating to the role of parents in raising their children:

(i) The first aspect entails a functional role which provides that a child is to be nourished,

protected and stimulated.

(ii) The second role of parents is the cultural symbolic role. This role ensures that the child is

imparted with a sense of belonging. The significance of child rights to the care and company of

their parents is expressed in international human rights treaties. Specifically this right is
recognized in Art. 18 of the CRC, Art. 19 of the American convention on Human Rights which

implies the right of a child to be part of a family. While the CRC imposes obligations on parents

in the context if “child custodian” the ACRWC extends parental responsibility to other people in

charge of the child. This is in appreciation concept of extended family in the applicant

concept/African. Art 19 of the CRC provides that both parents have equal responsibilities for the

upbringing of the child.

Article 6 (1) of the African Women Protocol 4[4] requires state parties to enact legislation which

ensures that a woman and a man shall strictly contribute to safeguarding the interest of the family

protecting and educating the children.

LECTURE

June 28, 2016

WHAT PROVISIONS PROVIDES FOR PARENTAL CARE IN THE CoK?

ART 53

S. 23.24 & 25

Parental duties and responsibilities under the Kenyan law

The duties are provided for in article 53(e) of the constitution and part III of the (s.23 & 28 ) of

the Children Act. Section 23 defines parental responsibility to mean all the duties, rights, powers

responsibilities and authority which by law a parent of a child pass in relation to the child and the

child’s property in a manner consistent with the child’s evolving capacity. As the court held in

R.M v A.G 2006 eKLR, s.23 of the Children’s Act sets out the actual responsibility of parents

towards their children. Article 53 (e) of the constitution affirms that the primary duty to care and

maintain a child is vested in the child’s parents, guardians or relatives who are in charge of a

child and both have equal responsibility whether married to each other or not.

4
Pre-2010 constitution had no support accrued for illegitimate children. The only remedy was in

customary law which was a weak mechanism as it relied on the concept of ‘pregnancy

compensation mechanism’.

When you look at s. 24 and 25 it sort to distinguish families in a marriage institution, it is sort of

discriminative on children born out of wedlock as was established by the case of rose moraa.

2010, the zach case

Sections 23, 24 and 25 have been declared unconstitutional

Sections 24(3) and 25 have since been held to be discriminatory of illegitimate children as this

was cured by article 53(e) of the constitution. These sections were contested in the Rose Moraa

case unsuccessfully. The facts in the R.M case were that Rose Moraa was born on the 16 th

September 2000 through a relationship of the mother and another man. The father worked with a

local company as a mechanic. At the time of the birth of the baby, the mother was cohabiting

with the man who duly paid for the hospital expenses at the hospital where R.M was born. In

January 2001 the father disappeared and avoided the mother until April 2001. In September 2000

the mother saw the man when he came to the matrimonial home, named the child after his

mother, shaved her head after one week as per the Kisii customary law. The father failed to give

parental support thereafter to the child and the mother depended on good Samaritan for upkeep.

She filed a constitutional petition arguing that Section 24(b) of the children’s Act was

discriminatory as it gave her child at a disadvantaged position vis-a-vis other children who’s

father had married or had subsequently married their mothers. The court dismissed the

application and refused to declare it unconstitutional on the reasoning that “as crafted the

children’s right is a milestone in entrenching and securing the rights of a child and Section 24(3)

is in our view a big improvement of the uncoordinated laws which dealt with parental
responsibility before its enactment. Scrapping it from our laws would go against the object of the

Act and the state responsibility to endeavor to create laws and at securing the best interest of the

child.”

This section has since been declared unconstitutional by Justice Mumbi Ngugi in the Zack v A.G

2013 eKLR where the petitioner challenged the constitutionalism of both Section 24(3) and 25.

She argued that these sections infringed on Article 27 of the constitution which states that all

people are equal before the law and has the right to equal protection under the law. Justice

Mumbi Ngugi stated that it was unconstitutional on the act to place responsibility only on the

mother and she proceeded to find that the Act must be read in line with the constitution as

imposing parental responsibility on biological parents whether they were married or not at the

time of the child’s birth.

PARENTAL RESPONSIBILITY OF CHILDREN

WITHOUT PARENTS
Like in all modern jurisdictions, the Children’s Act has set out situations in which a child who

cannot be cared for by his parents can benefit from such service from other persons or

institutions other than the parents. There are three sets of provisions relating to maintenance and

care of children who do not have parental care. The first and second set of such provisions relate

to constant care of such provisions. Sections 147- 153 of the Act provides for conditions upon

which children can be provided for custody and care of foster parents and institutions.

Sections 154-183 of the Act regulates the adoption of children in Kenya.

The third set of provisions relates to alternative care of children relating to parental care under s.

119 which relates to children defined as being “in need of care and protection.”

EXTENSION OF PARENTAL RESPONSIBILITY

What instances can parental responsibility can be extended?

In certain circumstances the law allows for the extension of parental responsibility for non-minor

children. Under section 28 of the Act, the right to education can be extended to a child of over 18

years provided that special circumstances exist with regard to the welfare of the Child. These

special circumstances must be shown to necessitate an extension of time and an application for

an extension is made in court by the child, parent or relative, or any person who has parental

responsibility for the child. This has been interpreted in the Dian Wambua v DR. Paul Wambua

2002 in which Diana Wambua was born on the 1 st Feb 1982 to dr. Paul and Diana Wambua. The

applicant Diana was engaged as a student at the University of Nairobi undertaking a medical

degree under the parallel program since 2001. Applicant’s parents had separated in 1995 and

custody of the children including the applicant was given to the mother. The respondent father

was …to pay…he paid school fees for the applicant up to form 4 at precious blood secondary

school. The applicant qualified to go to the university but she had already attained the age of

majority at sole and maintenance order …the respondent was a lecturer at UoN, and was entitled

to a staff education fund for his children which would cover up to 50% of the university fees.

Under this fund, a member of staff was entitled up to two children. Applicant approached the

father to sign for her the form that would entitle her to this benefit but he refused. She sought the

intervention of the vice chancellor …she then approached the courts seeking an order compelling

the father to pay part of, or the whole university fee. The court held that “the applicant is a

daughter of the medical daughter and the professor at the university. Mother’s profession is not

disclosed but she is well educated and working at the United Nations. To my mind this parents

belong to an educated elite. They have set high standards for their children and I therefore not
hold the applicant conscribing to attain what she considered to be the best for her. I find the

refusal by the respondent father to extend the ACSL facility to the applicant unreasonable.

Extension was also in Vebba Gathua v Grace Nyokabi Gathua 2005 eKLR. The

respondent(grace nyokabi) applied for an order extending parental responsibility beyond 18 yrs.

And sought an order that the father appellant be ordered to pay for her college education.. at the

time the child had been ...to Kampala university. The court extended parental responsibility but

based on the evidence presented to it directed the parties to go for an affordable institution in

Kenya or elsewhere offering a course of the applicant’s choice. The respondent then sought a

cheaper option and gained admission at the Athi river vocational training center for a diploma

course in business administration for a duration of 3yrs. In this case the courts held that

education would be what the family can afford.

LECTURE

4th July 4, 2016

…the factors which weaken this ….included an increased focus on the best interest of the child

as the primary consideration and also with the effects of the industrial revolution fathers

increasingly sort to court while mothers remain …

Under common law, a parent has an obligation to take care of his child during marriage and this

obligation was only on the part of the father. In the event of marriage breakdown, the father has

always has a right to custody unless he forfeited …which is immoral or cruel conduct. This was

stated in the case of Re Agar Ellis 1883 24 CHD the position under common law was changed

by statutes which watered down the exclusive rights of fathers over children. Due to family

responsibilities, paternal preference was gradually replaced by maternal preference. The maternal

preference was based on the tender year’s doctrine which was intended to apply to children
under the age of 6 years and was invoked to give custody of children of tender years to their

mothers. Assumption her was that in the interest and welfare of children, mothers were better

suited to nurture and raise children. Maternal preference obtained in Kenya for a while and this

was under the guardianship of infant act which has since been repealed. The act provided that in

awarding custody, child welfare was the paramount consideration. And if that child was of tender

year’s custody was vested in the mother. Under common law, parental custody included the

power to...the child education, power to control the discipline of the child, power to determine

the child’s religion, power to control any property belonging to the child until they attain the age

of majority and the right to decide type of medical treatment to be given to the child including

right to consent to that treatment.

CHILD CUSTODY UNDER THE

CURRENT REGIME
Custody decisions are now based on consideration of the child needs as opposed to the interest or

the gender of parents. In Kenya, child custody is now regulated by the Children’s Act as read

together with the …

Custody under the CA is defined to mean parental rights and duties as relates to the possession of

the child. Care and control is the actual possession of a child. We have two types of custody:

legal and actual custody.

A custody order is a court order given to the applicant seeking custody of a child. The custody is

given to the person and referred to as the custodian of the child.

Not everyone can be given custody...has lived with the child for three months prior to the

application of the child

 …..jfhdh

Section 83 of the guiding principles …

a. The conduct and,..o fthe child

b. The wishes and …of the child

c. The wishes of the foster parent and has lived for them 3yrs prior to the application

d. The wishes of the child

e. Whether the child has suffered any harm or the child has …

f. Customs of the community in which the child belongs to

g. Religious persuasion of the child

h. Whether care orders, supervision orders, personal protection orders or exclusion orders have

been made, and are enforced.

i. Circumstances of any sibling of the child concerned and other child …

Best interest of the child.

Where two parents are concerned they should decide between themselves who is best suited to

have custody of the children.

The court is under discretion to enforce these decisions as long it is in the best interest of the

child. Where there are two parents or guardians and only one is granted actual custody, the other

parent only acquires the rights and duties in relation to the child of what is refered to as the legal

person. Upon the death of a parent, the case involving custody, the other parent does not

automatically become the custodian o f the child except with the leave of the court. The

deaceased parent may have appointed a guardian in a way and if not, the court appoints one.

In the case of J.K.F v K.W.L CA 40 of 2014 eKLR 2014, this was a case in which the trial court

granted legal and actual custody of the minors to the mother and the father was granted unlimited
accsss to the minors during the days when they were not in school. The court further determined

that the two parties were to agree on maintenance. Father was aggrieved by the decision and

appealed. The appellant plegedd that the respondent mother plucked the teeth of one of the child

when she took them on august and as a result the child lost esteem and confidence. The fater

alleged that when the court gave the children to the respondent during the easter school hilodays,

the respondent mother neglected them and a s aresult they returned when they were sickly with

dark paled skin, dirty and bad mannerisms. Appellant further argues that the trial court was

biased as it did not consider the wishes of the children and their welfare. He also argued that the

mother had found a new husband and that his children would be exposed to the hostility of nw

inlaws.

The respondent on the other hand dismissed appelants allegation that he had married another

man. She explained to the court that owing to the nature of the applenats job who was a tour

operator, and children were most of the times left in the care of house girls who the applenat

hired and fired frequently. He argued that personality of the children is likely to be affected by

the explore to the many negative..of the housegirls who had no personal attachment ot the

children. He also demonstrated to the court that he had other childten as he was polygamous and

was not taking proper care of those children.

..granted custody to the respondent mother and noted that the appellant father had not

demonstrated any exceptional circusmtances that would have denied the respondent custody of

the minor children.

..various factors e.g. poverty,drug abuse, broken homes, dropping urbanization, peer pressure,

slums, low education, increased population,

When it comes to child offenders, there are two approaches:

Law enforcement approach.

This approach posits that crime must be dealt with by criminal justice system regardless of who

commits it. This approach argues that child offenders must face the full force.

The special treatment of child

Under this approach, children are not seen as ..but as young people in conflict with the law. They

argue that a child offender has not yet matured into a professional criminal or offender therefore

be accorded a lenient treatment of the law. Kenya adopts special treatment approach.

A TYPICAL CRIMINAL CASE

THE FIRST ENCOUNTER A CHILE HAD in the judicial process IS THE ARREST(s.21 of the

criminal procedure court provides that in making an arrest, the arresting person shall confine the

body of the person being arrested unless the person submits by word or conduct. As a

requirement of lawful arrest, a person, wehther a child or adult must be informed of the reasons

of arrest and in the language they understand (provided under article 49(1)(a) of the constituiion.

However, when it comes to children, who have been arrested, depending on their age, a decision

must be made whether they should ebe detained and charged, releasedor transferred into a

remand.

Officer must also take into account information obtained from the victims of crime commited by

a child, the child himself, child’s parents and any past record of the youth or child in relation to

the offence. When the child awaits trial, they may be held in a secured detention facility. A

juvenile would be typically detained if he poses s threat to himself or to the public.

Diversion problems in common hearing and

 Approximately 50% of all juvenile cases are held informally and among this most are dismissed.

Cases receive an informal disposition by a magistrate whena child admits guilt and a grees to

settle the charges by meeting the requirements of the court which are laid out in a consent degree

involving the court. Some of the requirements that may be set out by the decree are:

a. Restitution. The juvenile is required to reimburse the victim or to pay a fine to the community to

damages that may have been caused. Section 193 of the CA

b. THE JUVENILE IS REQUIRED TO PARTICIPATE IN drug and other rehabilitation program

c. M

d. The child offender handed over to be monitored by a probation officer.

The pre-arrangenemtn diversion faces many challenges in Kenya as the Kenyan criminal

facilities are not quite equipped and secondly corruption.

..or atimes in the criminal court

s. 184 of the CA PROvides fir the jurid=sdiction of childrens’ court. A children court may try a

child in any offence except the offence of murder or any offence commited by the child in

presence of the parent. S. 185 of the CA gives power to the magistrates to remedy cases of the

children’s court. During the court hearing, the magistrates is informed of the allegations of the

child against the child and ..to hear and judge. Testimony, facts and cases are taken into account.

Punishement

once a case has been determined, a child found guilty of the offense is dealt with according to the

provisions of section 191. Section 190 provides for restrictions as to how child offenders are to

be punished. This include no life imprisonment, no death sentencing and the child at the age of

t10 cannot …
can be sent to bostol institutions, rehabilitation centres, community service, educational

institutions, …probation, vocational training colleges.

Application is made to child ofenders between the age of 10-15.

Probation

A child offende3r should be taken to the probation hostels as provided by the ofenders act.

Probation officers take into account the results of any studies that have been made to the child.

This include psychological valuations and diagnostics …

Once they compile a report, they recommend te offenders be referred to ..rehabilitation,

restitution or residential plcaments. Bostol institutions are recommended …CA of child

offenders of 16 years and above. They are administered by the prisons department and managed

by the department of children services.

Waiver petition

This is where the prosecutor applies that a case would normally be under sole jurisdiction of the

chhildren’s court is heard ina criminal court.

Factors that can make in a court to waive include:

Succcesss of a ..

A child who is a repeat offender

Age

Amount of time that the youth services have to work with the offenders

If a waiver is granted the case is … the case is referred to the criminal court but if it is denied it

is taken to the children court.

A case of …or defilement

LECTURE

8TH AUGUST 2016

CHILD ENFORCEMENT OF CIVIL AND POLITICAL RIGHTS

HUMAN RIGHTS PROTECTION OF CHILDREN

It is a well-established principle that human rights including child rights are indivisible and

interdependent. Article 4 of the CRC obliges state parties to undertake all appropriate legislative,

administrative and other measures for the impelemntation of rights including civil and political

rights recognized in this treaty.

Child’s right to name and nationality

Child has a right to a name, nationality, to know their biological parents and extended family as

well as the right to free and compulsory birth registration and issue of a birth certificate. Article

6(4) of the ACRWC obliges state parties to undertake measures to ensure that their constitutional

legislation recognizes the principles according to which a child shall acquire the nationality of

the state to which he was born.

Child’s right to …in Kenya

Under article 53 (1) of the COK provides that every child has a right to name and nationality at

birth. The right is expounded in the ..which stipulates that every child including a child with a

disability or special needs has a right to identity and registration at birth. This right is further

procided for under section 11of the CA.

Article 14(4) of the constitution provides that a child under the age of 8 whose parents are not

known is preseumed to be a citizen by birth. The birth and death registration act makes iot

mandatory for the registrar of births to register a child within 6 months after birth.

Childs right to freedom of expression and opinion

Article 12 OF THE CRC and 7 of ACRWC guarantee the right to freedom of expression and

opinion. These two provisions require that a child who is capable of forming and communicating

their views express those views in all matters affecting them. Under the Kenyan constitution.

Right to freedom of expression is provided for under article 50. In addition to this, article 35

guarantees the right to access information including freedom of the media.

Section 4 of the CA provides that the child shall be accorded an opportunity express their

opinion in judicial and administrative processes, taking into consideration the child’s age and

degree of maturity.

Administratively, the guidelines for child ..in kneya published in 2007 established and regulate

the child participation at home, school,community and national levels. In addition the ministry of

education undertakes co-curricular activities such as drama & music festivals. During school

time…an hour per week set aside for co-curricular activities.

Right to freedom of thought conscience and religion

Article 1 & 9 of the ARWC and article 14 of the CRC guarantee the freedom of religion.

ACRWA vests on the parents or guardians a duty to provide guidance and direction in exercise

of this right having regard to the involving capacities in best interest of the child.

Article 32 of the Kenyan constitution provides for these rights and it broadens the scope of these

rights by providing that a person may not be denied access to any institution employment or

facility or enjoyment of any right because of the person’s belief or religion.

Section 8 of the CA provides that a child has a right to religious education subject to appropriate

parental guidance.

Right to freedom of association and assembly

Article 8 of the ACRWC and article 15 of the CRC recognize the right of child, association and

peaceful assembly. This has been implemented by article 36 of the Kenyan constitution which

guarantees thwe right of every person including a child to form, join or participate in the

activities of any association. Article 37 provides right to …picket and demonstrate peacefully.

Right to privacy

It is provided by article 17(4), 23 AND 24 of the ICCPR . it ia also provided for art 10 of

ACRWC and art 16 of the CRC.

DOMESTICALLY THE KENYAN constitution guarantees the rifht to privacy uinder article 31.

The right to privacy includes the right not to have one’s form of property searched, possession

seized, information relating to family or rivate affairs reveled or commuinication infringed.

Section 76(5) of the child act provides that in any proceedings concerning a child, child’s name,

identity, home, school, residence, photograph should not be published or revealed. This also

extends to judicial proceedings where the child is involved.

THE CHILD’S ENJOYMENT OF SOCIO-ECONOMIC RIGHTS

The right to health

Child’s right to health is enshrined in various instruments. Article 14 of the African charter on

social and economic rights and articles 24 and 26 of the CRC guarantee this rights. Under both,

state parties are obliged to ..measures to ensure full implementation of this right. Such measures

include: to reduce and diminish child and infant mortality rate, combat malnutritious...ensure

appropriate healthcare for expectant mothers, allocate resources, primary healthcare fir children,

provide preventive healthcare for family life education among others.

The Kenyan government has undertaken constitutional policy legislative and administrative

measures to realize this right. Article 43 of the constitution as read with section 9 of the
children’s act guarantee the child’s right to the highest attainable standards of health. Section 12

of the CA guarantees special care to children disabilities. The government has also made efforts

in ensuring that there is access to water to mitigate diarrhea and other waterborne diseases.

The government has also made efforts to roll out sex education to youth …led vulnerable by

HIV/AIDS. Government has also set up an HIV/AIDS tribunal.

In order to scale down infant mortality rates, the government has put in place immunization kits

for child aged 12-23 months for measles and other immunizable diseases.

Child’s right to adequate standard of living

Under the CRC parents or guardians have primary responsibility to secure ..abilities and

financial capacities the condition that make it necessary for the child’s development. Article

27(3) of the CRC obliges states to take appropriate measures, provide material assistance and

support programs with regard to nutrition clothing and housing.

The state has set up cash transfer and other…in 60 districts so far. The cash transfer programs is

currently setving 134 households across the country. In a dition there is a devolved fund in

collaboration with the private sector such as …education bursary for poor children. The

governemtn has also resignated 15m for the kazi kwa vijana program. To create jobs for the

youth in rural and urban communities. There is also the slum upgrading program, the governemt

is currently upgrading programs in Kisumu, Mombasa and Nairobi. Finally, in order to enhance

hand washing to the children government started a handwashing drive although this program has

been faced with limited water supply

The right to education

 It is guaranteed under article 11 of the ACRWC and article 28 of the CRC . ARTICLE 13 OF

THE ICESCR sets out four purpioses fir education which are:

a. Education should lead to the development of full personality and …dignity

b. Should strethen respect for human rights and freedom.

c. Education should enable everypne to participate in a free society

d. Education should promote human right ,equality and non-discrimination

Under the African charter RWC state parties are obliged to present free and compulsory

education, to encourage development of secondary education and to progressively make higher

education accessible, encourage regular attendance at schools and take special measures in

respect of children gifted and disadvantaged children to ensure equal access.

Kenyan government has made an effort. Constitutional provision at art 53(1)(b) , teachers service

commission has also improved on recruitment of teachers, school

The Kenyan government has developed a program on technical industrial occasional and

entrepreneurship training – an investment program for female students, disabled learners and

learners of poor household. The government has also increases institutions of education of

children with special needs.

PROTECTING CHILDREN WITH DISABILITIES

Article 23 of the CRC gurantees the right iof children mental disabilities to enjoy a full and

dissent life, right to special care and extension of assistance free of charge wherever possible, the

right to effective access to education and health care services. In its general comment no. 9 on

the rights of children with disability, CROC(COMMITTEE) has emphasized the need to

appreciate that the barrier is not the disability itself but rather the combination of social, cultural

and physical obstacles in which children with diabislities encounter in their daily life.
The UN also adopted the UN convention on the right s of person with disabilities 2006, which

called for global accountability and commitment to persons with disabilities. In Kenya, article 54

of the constitution (as read with person with diability act 2003) protects persons with any

disability.