African Woman and Child Feature Service

The Kenyan child is faced with many challenges. From sleeping hungry, failing to go to school, being sexually and physically exploited to being forced into child labour.

Children’s rights, therefore, do not seem to play a role as Kenyans look into the State of the Kenyan child, and the continent’s children in general as the Day of the African Child is marked.

The International Day of the African Child has been celebrated on June 16 every year since 1991, when it was first initiated by the Organisation of African Unity. It honours those who participated in the Soweto Uprising in 1976 on that day. It also raises awareness of the continuing need for improvement of the education provided to African children.

In celebrating the Day, the Reject looks at the State of the Kenyan child.

Though the Children’s Act 2001 set out to entrench and protect the rights and welfare of Kenyan children, reports of rampant violations of these rights across the country continue. “I get thoroughly disturbed when I read in the newspapers, hear over the radio and watch on TV the rampant violations of the rights of children in Kenya. It is bad and horrible considering that we have laws to protect the child,” says Ruth Ann Kawira, an advocate of the High Court. She adds: “There is extremely limited legal representation to protect the rights of the Kenyan child.”

Welfare

Even after The Children’s Act was revised in 2007, what remains to be seen is the effective and efficient implementation of the provisions in the law to ensure that these rights are being enjoyed by the children — a major challenge that is compounded of the same as entrenched in the new Constitution.

The welfare of the Kenyan child remains paramount. The Bill of Rights within the new Constitution is comprehensive and sets out rights extending to citizens in general and those of specific groups including children, youth and persons with disabilities. Children’s rights are set out in Article 53.

Departing from the conventional limitations on socio-economic rights, Article 53 creates immediate obligations upon the State to fulfil socio-economic rights of children. In effect, the Government is mandated to deliver healthcare, education, nutrition and shelter to all children irrespective of budgetary implications. The new duty on the State with respect to education, for instance will be greater than that provided for in the Children’s Act2001, which vests responsibility on both parents and government.

It is from this background that President Kibaki in his address to the nation on Madaraka Day outlined the Government’s achievements in trying to meet the legal and constitutional rights of children in the country.

Kibaki said: “The vision outlined by our founding fathers has been the inspiration behind the Government’s heavy investments in the social sectors. Our aim has been that all our children have a decent education that will provide them with good prospects for the future.”

Despair

However, even as Kibaki spoke, many Kenyans could see faces of children eating from the dustbins because they have lost all their parents to the HIV scourge; Kenyans could see faces of desperate girls crying out for help after being sexually violated by their fathers, uncles, brothers, priests and teachers; Kenyans could see teenagers who have been plummeted to the positions of being head of households with no one to offer them support; Kenyans could see faces of grandmothers who no longer have the energy to care for young ones; Kenyans could see children who have been withdrawn from school and pushed into tobacco, tea, coffee, sisal and coffee farms to work and earn a living to support their families. Yet even with the huge figures being given of the success of free primary education — close to nine million —Kenyan children remain desperate.

The Kenyan child who was evicted from his/ her home continues to languish in Internally Displaced Person’s (IDP) camps nearly four years after they were displaced, makes an irony of the Bill of Rights. The situation is reiterated with the high number of street children in virtually all major urban centres not to forget the children languishing under the huge burden of child labour.

One cannot forget the girls who are forced into early and forced marriage in the name of culture. The situation is worsened by girls who undergo Female Genital Mutilation (FGM) in the name of preserving their dignity.

An ugly animal that continues to rear its head is child trafficking where girls and boys are transported to towns where they are forced into labour and sexual slavery.

Children who suffer for the sins of their mothers and are languishing in prisons or in remands remain an ugly picture that one cannot blur.

The case of physically and mentally challenged children locked in dark rooms because society continues to stigmatise them.

Abandoned children and those who are killed in the name of ritual remain a picture that one would want to wish away but is what remains a stark reality of the state of the Kenyan child.

However, the executive director Amsha Africa Foundation Tony Abuta says: “Rights and advocacy groups are alarmed at the physical and sexual abuse of Kenyan children, including commercial sexual exploitation; the increasing burden of HIV/Aids on orphans that prematurely forces them into adult roles; continuing incidences of FGM; and the inadequate access to education, especially for girls.”

Abuta whose organisation is dedicated to fighting for the rights of children observes: “There are an estimated three to four million child labourers in Kenya, many who work in hard conditions, negatively affecting their health, education and development. In some sectors of the Kenyan economy, children comprise 70 percent of the labour force, many working in violation of national and international laws.”

These are critical questions that must be urgently addressed in the implementation of the provisions of the Children’s Act 2001 as well as the rights of the child as entrenched in the Constitution.

Commitment

An officer with the Child Rights Advisory and Documentation Legal Centre (CRADLE) who spoke on anonymity says: “There is a huge mountain of work that must be done in this area. It requires heavy investments and total dedication to reverse the situation. Everybody must be involved and take care as well as ensure that the children’s statutes both in the constitution and otherwise are adhered to the letter.”

“These are the fabric and the future of this nation and must be protected at all costs. If we don’t, then we are consigning our country to total oblivion...we can’t let this happen,” she concluded.

The budget that was recently read must also allocate more resources to agendas that address the concerns of the child. These include among others shelter, health and education. While parents have a duty to support their children, the Constitution now stipulates that both the father and the mother, whether married or separated, have an equal responsibility to provide for their child(ren).

A report by the United Nations Children and Education Fund (UNICEF) documents that in tandem with international children’s rights, the new Constitution establishes in Kenyan law internationally acclaimed principles on the rights of children, such as best interests of the child which is now to be paramount in every matter concerning children.

Report

It further recognises age as a ground for discrimination, which is critical to the application of the rest of the rights recognised in the Bill of Rights to children.

The Report says: “The new constitutional framework creates room for strategic litigation affording an opportunity to enhance jurisprudence on children’s matters. Building on the seemingly narrow scope covered by Article 53 of the Constitution, it is possible to develop extensive jurisprudence for children as has happened in other progressive jurisdictions. Hence, the new law is a sound foundation for streamlining the rights of children in Kenyan law both now and in the future.”