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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC
|
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/3/Add.62 16 February 2001 Original: ENGLISH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Initial reports of States parties due in 1992
KENYA[*]
[13 January 2000]
CONTENTS
Paragraphs Page
I. INTRODUCTION:
KENYA’S SOCIO-ECONOMIC,
DEMOGRAPHIC AND CULTURAL BACKGROUND 1 -
45 3
II. GENERAL MEASURES OF IMPLEMENTATION:
ARTICLES 4, 42 AND
44 46 - 82 14
III. DEFINITION OF THE CHILD: ARTICLE 1 83 -
100 25
IV. GENERAL PRINCIPLES OF IMPLEMENTATION:
ARTICLES 2, 3, 6
AND 12 101 - 141 28
V. CIVIL RIGHTS AND FREEDOMS: ARTICLES 7, 8, 13,
14, 15, 16 AND 37 (a) 142 - 229 34
VI. FAMILY ENVIRONMENT AND
ALTERNATIVE CARE:
ARTICLES 5, 9, 10, 11, 18, 19, 20, 21, 25 230 -
331 53
VII. BASIC HEALTH AND WELFARE: ARTICLES 6,
18 (PARAS. 1-3),
23, 24, 26, 27 332 - 407 71
VIII. EDUCATION, LEISURE AND CULTURAL
ACTIVITIES:
ARTICLES 28, 29, 31 408 - 467 83
IX. SPECIAL
PROTECTION MEASURES: ARTICLES 22,
38, 39, 40, 37 (b)-(d), 32, 33, 34, 35,
30, 36 468 - 559 97
Annex: The way forward 111
I. INTRODUCTION: KENYA’S SOCIO-ECONOMIC,
DEMOGRAPHIC AND CULTURAL
BACKGROUND
1. The Government of Kenya recognizes that a sound social
and economic base is important in formulating policies, strategies, programmes
and legislation aimed at fulfilling the rights of children. This section
presents the geographical, political, administrative and
economic context in
which the Convention on the Rights of the Child is being implemented. The key
issues of poverty, the labour
force, demography, socio-cultural perspectives and
advocacy channels are also discussed. The focus is on how they interact to
influence
the situation of children.
A. Geography
2. Kenya covers an area of
582,646 km2. It lies between 3o north and
5o south of the equator, and between 33o and
42o east longitude. It borders Tanzania to the south, the
Somali Democratic Republic to the east and northeast, Ethiopia to the
north,
the Sudan to the northwest, Uganda to the west, and the Indian Ocean to
the southeast. The diverse landscapes have a direct influence
on the climatic
conditions resulting in distinct agroecological zones.
3. The most
distinct element in Kenya’s climate is rainfall. Most parts of the
country experience a bimodal pattern of rainfall,
with the long rains coming in
March and May, and the short rains between October and December. The country is
divided into seven
agroecological zones. These range from the arid areas in the
northeast to the humid areas in the southeast.
4. Arable areas cover only
18 per cent of the country. They provide the main livelihood for about
80 per cent of the population.
These areas have a high potential for
plant growth and a low risk of crop failure. The remaining
82 per cent are semiarid and arid
areas. These agroecological zones
determine the human settlement patterns and the agricultural and economic
potential, which have
direct influence on the wellbeing of children in the
country.
B. Demographic profile
1. Fertility, mortality and population growth rates
5. Kenya’s
population was estimated at 29 million in mid1997. It is projected
at 33.3 million by mid2003, and 34.6 million
by mid2005. These
projections assume a moderate decline in fertility and mortality rates. They
also take into account the effects
of the AIDS epidemic. The population
grew at the rate of 3.0 per cent per annum during the
period 19901995. However, it is expected
to decline to
2.5 per cent per annum during the period 19952000 and to
2.2 per cent per annum during the period
20002005.
6. There has been a rapid decline in fertility. This is mainly
attributed to the increased used of contraception (indicated by the
increase in
the contraceptive prevalence rate among married women aged 15 to 49 years,
which was estimated at 17 per cent in 1984,
27 per cent in
1989 and 33 per cent in 1993), and improvements in socioeconomic
determinants. According to the 1989 Population Census,
the national
average life expectancy at birth was 57.5 years for males and
61.4 years for females. With the HIV/AIDS pandemic, life
expectancy is
expected to
decline to 52.8 years for males and 53.4 years for females in the
years 20002005. Based on evidence of levelling off and decline
in childhood
mortality from the 1993 Kenya Demographic and Health Survey (KDHS) data, the
infant mortality rate (per thousand live
births) was estimated at 63 in 1989, 62
in 1993, and is projected at 63 in the period 20002005.
7. Current and
projected levels and differentials in fertility and mortality have implications
for the ultimate size, structure and
regional distribution of the population,
and for prospects of sustainable development.
2. Population structure
8. The combination of declining mortality levels
and high fertility levels in the past three decades account for Kenya’s
very
large proportion of children and young people. As table 1 shows, the
total number of children, estimated at 15.1 million in 1997,
is expected to
increase to about 16.2 million in 2003. Their proportion of the total
population is expected to decline slightly
from 52 per cent in 1997 to
48.7 per cent in 2003. Similarly, the number of children
under5 years is expected to increase slightly
from 4.7 million in 1997
to 4.9 million in 2003.
Table 1. Projected population for Kenya, 1997-2003 (in ‘000s)
Population segment
|
|
Projections (in ‘000s) assuming medium fertility
decline, including AIDS
|
||||||
Base year 1989
|
1992
|
1997
|
2003
|
|||||
No.
|
%
|
No.
|
%
|
No.
|
%
|
No.
|
%
|
|
Total population
|
23 150
|
100.0
|
25 240
|
100.0
|
29 011
|
100.0
|
33 264
|
100.0
|
Children 0-4 years
|
4 190
|
18.1
|
4 421
|
17.5
|
4 741
|
16.3
|
4 907
|
14.8
|
Children 0-14 years
|
11 316
|
48.9
|
11 999
|
47.5
|
12 966
|
44.7
|
13 829
|
41.6
|
Children 0-17 years
|
12 761
|
55.1
|
13 686
|
54.2
|
15 096
|
52.0
|
16 210
|
48.7
|
Persons 15-64 years
|
11 315
|
48.9
|
12 645
|
50.1
|
15 273
|
52.6
|
18 418
|
55.4
|
Persons 65+ years
|
519
|
2.2
|
596
|
2.4
|
772
|
2.7
|
1 017
|
3.1
|
Females 15-49 years
|
4 999
|
22.56
|
5 585
|
22.1
|
6 733
|
23.2
|
8 075
|
24.3
|
Primary school age
(6-13 years) |
5 701
|
24.6
|
6 077
|
24.1
|
6 576
|
22.7
|
7 141
|
21.5
|
Secondary school age
(14-17 years) |
2 106
|
9.1
|
2 442
|
9.7
|
2 966
|
10.2
|
3 260
|
9.8
|
Dependency ratio
|
1.05:1
|
1.00:1
|
0.90:1
|
0.81:1
|
Source: Kenya Population Census, 1989, Analytical Report,
vol. VII.
9. The ongoing and future demands created by a large young
population, particularly in terms of health, education and employment,
present
major challenges and responsibilities. It is appreciated that children are the
most important resource for the future.
Greater investment in them by parents
and the society is essential to attain sustainable economic growth and
development. The slight
increase in the number and proportion of elderly
persons in relation to the working age population has significant implications,
particularly for the future viability of existing formal and informal programmes
for assisting elderly people. Although data on
persons with disabilities are
lacking, the 1989 estimate based on the Population Census indicates that they
constitute 10 per cent
of the total population.
3. Population distribution, migration and urbanization
10. The population distribution in Kenya is
generally uneven. It reflects the uneven distribution of agricultural potential
and of
employment opportunities. Other key factors influencing the pattern of
population distribution include historical policies on land
settlement. The
most densely populated areas are found in the urban centres and around Lake
Victoria, the highlands and the coastal
strip, which have fertile soils and
welldistributed reliable rainfall. The sparsely populated areas are the
arid and semiarid regions,
which have poor soils and an inhospitable climate.
The urban centres have a population density of about 2,000 persons
per km2, while the highpotential rural districts have about
300 persons per km2. The arid and semiarid areas have the
lowest population density, with 2 persons per
km2.
11. There are four main flows of internal migration in
Kenya. These are ruralrural, ruralurban, urbanrural and urbanurban. Ruralurban
migration is the most dominant. Increasingly, migration is taking a new form
where Kenyans displaced by internal conflict - such
as tribal clashes - migrate
in search of security. Internal migration in Kenya involves the more educated
people and predominantly
males of working age. There has, however, been an
increase in female migrants. Kenya has also had growing numbers of refugees and
asylumseekers from neighbouring countries. There is a need to strengthen
support by the international community to enable Kenya
to enhance the protection
and assistance especially of refugee women and children who are particularly
vulnerable.
4. Legal, political and administrative structure
12. Kenya has a multi-party political system,
with more than 20 registered political parties. There are three arms of
government:
the legislature, the executive and the judiciary. In 1998, the
legislature comprised 210 elected and 12 nominated members of
Parliament.
The AttorneyGeneral and the Speaker of the National Assembly are
ex officio members. There is universal suffrage for all citizens
over
18 years. The Electoral Commission of Kenya conducts elections every five
years. Voting is by secret ballot. The Constitution of Kenya guarantees
freedom of political participation, without discrimination on the basis of
gender or race.
13. The administrative structure consists of centralized
services from line ministries, the provincial administration under the Office
of
the President, and local authorities. In 1998, the central Government consisted
of 25 ministries and several nonministerial departments.
Their role is to
facilitate policy formulation and to deliver public services. This includes the
implementation and monitoring
of programmes and projects. In the provincial
administrative system, the President appoints provincial commissioners for the
8 provinces
and district commissioners for the 67 districts. Under
these is a hierarchical structure consisting of district officers, chiefs
and
assistant chiefs, in charge of administrative divisions, locations and
sublocations, respectively. The Government decentralized
decisionmaking by
introducing the District Focus for Rural Development (DFRD) strategy in 1983.
Decentralization has facilitated
more integrated planning, appropriate
prioritization of projects, greater focus on proper targeting and project
sustainability.
14. The local authorities are administrative structures
established under the Local Government Act (Cap. 265, Laws of Kenya) to
oversee the affairs of municipalities, towns and urban and county
councils.
C. Economic overview
1. Economic policy framework
15. Kenya’s main
economic challenges are alleviation of poverty and creation of employment.
Every year an estimated half a
million people join the labour market. It is
estimated that 47 per cent of the rural population and
29 per cent of the urban population
is poor. The Government has
adopted long medium and shortterm policies to address these challenges. The
longterm policy framework
is contained in Sessional Paper No. 2 of 1996,
Industrial Transformation to the Year 2020. This sessional paper details
policies that will lay the structural foundation for transforming the country
into a newly industrializing
country (NIC) by the year 2020. It is hoped
that this will help to alleviate poverty.
16. The mediumterm policy
framework is contained in the 8th National Development Plan covering the period
19972001. It focuses on
raising growth and investment levels, promoting
exportoriented industries, and restructuring the role of Government to focus on
providing
an enabling environment.
17. Kenya’s shortterm policy
framework is contained in policy framework papers (PFPs) and annual budget
statements.
2. Economic performance
18. Kenya’s economy has undergone major
reforms over the past 10 years. These include the removal of import, price
and foreign
exchange controls, which has opened up the domestic economy to stiff
competition. Between 1993 and 1997, the economy recorded an
average annual
growth rate of 3.7 per cent. The period 19921993 was the worst in
Kenya’s economic history. During this period,
the lowest growth rate was
recorded in real GDP at 0.2 per cent in 1993
and 2.8 per cent in 1992. Prolonged drought, high inflation,
excessive growth in the money supply and massive depreciation of the Kenya
shilling marked the period. The growth rate for 1995
was
4.8 per cent. That for 1996 was 4.6 per cent. In 1997, for
the second year running, the economy recorded a decline to
2.3 per
cent against a projected growth of 5.0 per cent
in 1996.
19. The slow growth was reflected in all sectors of the
economy. The substantial fall in the growth rate resulted from a combination
of
factors. These include adverse weather conditions, rising input costs,
electricity interruptions, dilapidated infrastructure,
preelection tension and
violence, depressed investments, competition from imports arising from a
liberalized trade regime, lack of
investor confidence and labour unrest. During
the reporting period, growth was also constrained by highlevel corruption, which
led
to the import of duty free goods which competed unfairly with locally
produced commodities. This has led to the decline of the manufacturing
and
agricultural sectors. Highlevel corruption has also severely discouraged
foreign investment and led to the withdrawal of the
Enhanced Structural
Adjustment Facility (ESAF) by the International Monetary Fund (IMF). This
severely affected Kenya’s macroeconomic
stability. The withdrawal of ESAF
has meant that Kenya cannot pay the huge internal debt or service the external
debt. To reduce
the budgetary deficits, there has been an increase in taxation,
and reductions in expenditure on social services.
3. Expenditure on the social services sector
20. The Government of Kenya remains committed to
the adequate allocation of resources for basic social services. It is
especially
committed to targets agreed on during
the 1995 World Summit for Social Development, held in Copenhagen.
The Summit proposed that
a minimum of 20 per cent of budgetary expenditure
and 20 per cent of foreign aid flows should be allocated to basic
social services.
These include basic education, primary health care, lowcost
water and environmental sanitation, and nutrition programmes.
21. More
than half the population has no access to safe drinking water despite government
investment in social services. Urban water
systems are overloaded and
waterfetching is a great burden to women and children in rural areas. The
1994 Welfare Survey indicated
that only 45 per cent of the
population had access to safe drinking water. It estimated that
only 30 per cent of gazetted urban
areas had a sewage system.
Inadequate effluent and wastewater treatment facilities in urban areas,
especially in the slums, lead
to serious environmental and health hazards.
Sewage systems in major urban areas are disintegrating and the local
authorities lack
the capacity to manage and maintain them.
22. Adequate
shelter and housing are another area of concern. According to a
1998 Ministry of Planning and National Development survey,
90.7 per cent of the nonpoor in rural areas lived in owneroccupied
housing, while 5.3 per cent of the nonpoor and 2.1 per cent
of
the poor lived in rented dwelling units. In urban areas,
14.5 per cent of the nonpoor and 21.0 per cent of the poor
lived in owneroccupied
housing, while 68.5 per cent of the nonpoor and
68.8 per cent of the poor lived in rented dwellings. As the economy
continues to
experience hardships, and as more people migrate to towns, housing
problems will continue to increase.
23. The Government has continued to
invest in the development of sports infrastructure. This investment is aimed at
the development
of youth character, health and values that strengthen teamwork
and national pride. As a result of past government support for sports,
Kenya
has become a regional and international power in various sports.
4. Situation with regard to poverty
24. The 1994 Welfare Monitoring Survey (WMS II)
established monthly food and overall poverty lines in rural areas at K
Sh 702 and
K Sh 978, respectively. The corresponding figures for
urban areas were established at K Sh 875 and K Sh 1,490,
respectively. The
two lines identified 47 per cent of the rural
population and 29 per cent of the urban population as food poor. As
shown in figure
1, the proportion of the rural population falling below the
poverty line between 1992 and 1994 has not changed much. However, the
data show
that the prevalence of poverty in the Coast and Eastern Provinces has deepened,
while it has eased for other provinces.
The comparison should, however, be read
with caution, because different methods were used to collect poverty data for
the three
periods.
Figure 1. Overall poverty in rural Kenya, 1982, 1992 and
1994, by
province
Note: North Eastern Province was not covered in the 1982 and 1992
WMS.
Source: Economic Survey, 1997.
25. The prevalence of overall poverty was highest in North Eastern Province
with 58 per cent, followed by Eastern Province with
57.75
per cent and Coast Province with 55.63 per cent.
The districts with more than 60 per cent of their population below the
overall
poverty line were Marsabit, Samburu, Isiolo, Makueni, Turkana,
Tana River, Machakos, Mandera, Kilifi and Embu.
26. The 1996
Participatory Poverty Assessment (PPA) revealed that out of
the 1,412 household heads interviewed, 55.4 per cent ranked
their families as poor, 41.7 per cent as very poor and only
2.9 per cent considered themselves to be rich. Overall, only
8 per cent
of respondents reported a significant poverty
reduction in the previous five years. About 76.7 per cent
of the households interviewed
(PPAII) indicated that they had become poorer in
the last five years.
27. A shown in table 2, the
distribution of income in Kenya is very skewed. Using expenditure data as proxy
for income, the bottom
20 per cent of the population in rural Kenya
expend only 3.5 per cent of total expenditure. At the other extreme,
the top 20 per
cent of the rural population controlled
60.5 per cent of total expenditure recorded in rural areas. All the
rural provinces showed
almost similar expenditure patterns (see
figure 2).
Table 2. Expenditures in rural Kenya by decile and
province, 1994
Decile
|
Coast
|
Eastern
|
Central
|
Rift Valley
|
Nyanza
|
Western
|
Total
|
---|---|---|---|---|---|---|---|
1
|
1.5
|
1.5
|
1.5
|
1.0
|
1.4
|
1.7
|
1.3
|
2
|
2.5
|
2.9
|
2.4
|
1.6
|
2.0
|
2.6
|
2.2
|
3
|
3.4
|
3.8
|
3.4
|
2.6
|
2.7
|
3.7
|
3.1
|
4
|
4.7
|
4.2
|
4.0
|
3.3
|
3.9
|
4.6
|
4.0
|
5
|
4.4
|
6.0
|
5.0
|
4.6
|
5.3
|
6.0
|
5.2
|
6
|
5.5
|
6.3
|
6.0
|
5.2
|
6.1
|
7.7
|
6.1
|
7
|
7.3
|
8.0
|
7.4
|
7.3
|
8.0
|
9.0
|
7.4
|
8
|
11.1
|
9.8
|
11.1
|
10.6
|
8.9
|
10.4
|
10.2
|
9
|
14.6
|
15.6
|
14.9
|
15.4
|
14.8
|
14.5
|
15.2
|
10
|
45.0
|
41.8
|
44.1
|
48.5
|
47.0
|
39.9
|
45.3
|
Total
|
100.0
|
100.0
|
100.0
|
100.0
|
100.0
|
100.0
|
100.0
|
Source. Welfare Monitoring Survey 11 (WMSII),
1994.
Figure 2. Expenditure in rural Kenya by decile in
1994
28. Children of the most vulnerable groups, including urban slumdwellers, the
disabled, people in the arid and semiarid lands and
femaleheaded households, are
the most affected by poverty. The 1994 PPA survey showed that a third of
the rural households are female
headed; as many as 60 per cent of
these have no male support. Given that the bulk of the poor live in rural
areas, the incidence
of severe poverty is significantly higher for such
households. Of the households investigated 44.1 per cent of
femaleheaded households
were classified as very poor, compared to only
20.8 per cent of maleheaded households.
5. Causes of poverty
29. The causes of poverty in Kenya
include:
Lack of access to factors of production;
Sluggish
economic growth;
Large families and rapid population growth;
Lack of
productive skills and low levels of education and training;
Bureaucratic planning, targeting and resource allocation mechanisms that limit the capacity of the poor to get help;
Inequitable income distribution;
Ill-health, the incidence of AIDS
and other disabilities;
Changes in social structures leading to
breakdown of families and support systems.
30. Various groups including
the Government, donor agencies, NGOs, religious organizations and local
communities have taken up the
fight against poverty on the basis of partnership.
In its Poverty Eradication Plan, the Government has adopted a multifaceted
framework
for poverty reduction that includes:
Creating a macroeconomic
framework that is conducive to growth;
Targeting the vulnerable groups
through social dimensions of development;
Expanded provision of
infrastructure;
Rural-urban balance;
The conservation of natural
resources;
Creation of employment.
6. The labour force
31. The economically active population is
composed of those employed, selfemployed and unemployed. This population is
important because
it is a reservoir of the human capital required to produce
economic goods and services. As a result of the high population growth
rates of
between 3.0 per cent and 3.8 per cent during the 1970s, the
total labour force is estimated to have increased from 10.7
million in 1992
to 12.5 million in 1996.
7. Employment in the modern sector
32. The employment data for Kenya can be
classified under three sectors: the modern or formal sector, the informal
sector and rural
smallscale agriculture. The growth in employment in the modern
sector (which includes the entire public sector and all the incorporated
enterprises within the private sector) of the Kenyan economy has been slow.
This is due to the ongoing public sector reforms, the
poor performance of the
economy in the recent past, and inflexible labour market policies. As shown in
table 3, total employment
in the sector rose marginally from
1.5 million persons in 1992 to 1.7 million persons in 1996.
Table 3. Sectoral distribution of employment 1992-1996
(‘000s)
Sector
|
1992
|
1993
|
1994
|
1995
|
1996
|
---|---|---|---|---|---|
Modern sector
|
|
|
|
|
|
Wage sector
|
1 462.2
|
1 475.5
|
1 505.5
|
1 557.0
|
1 606.8
|
Non-wage sector
|
53.8
|
56.2
|
58.3
|
61.1
|
63.2
|
Informal sector
|
1 237.5
|
1 466.5
|
1 792.4
|
2 240.5
|
2 643.8
|
Small-scale agriculture*
|
5 900.8
|
5 990.3
|
6 046.8
|
6 173.5
|
6 199.9
|
Total employment
|
8 654.2
|
8 988.5
|
9 403.0
|
10 032.1
|
10 513.7
|
Potential labour force
(ages 15-64)** |
10 748
|
11 187
|
11 634
|
12 084
|
12 532
|
Unemployment rate (%)
|
19.5
|
19.7
|
19.2
|
17.0
|
16.7
|
* Estimates based on the 1988/89 Rural Labour Force Survey.
**
Estimates based on the population projection presented in Volume VII of Kenya
Population Census 1989, but adjusted by 0.15 correction
factor.
Source: Economic Survey 1997.
8. Employment in the informal sector
33. The ongoing structural changes in the
domestic economy have resulted in significant changes in the labour market.
Among the changes
has been a significant shift of surplus labour to the informal
sector. This is reflected in the steady expansion of the sector in
recent
years: the number of persons engaged increased from 1.2 million to
2.6 million in 1996. The notable employment creation
potential of the
sector results from a number of factors, including the multiplicity of informal
sector activities, the use of simple
and inexpensive technologies demanding less
specialized skills, ease of entry into and exit from the sector, and small
capital investment.
Other factors include the absence of registration and other
legal formalities, and a gradual shift of labour from subsistence farming
to the
informal sector as the economy increasingly becomes market
oriented.
34. The Government has set up a department in the Office of the
VicePresident and Ministry of Planning and National Development to
promote the
smallscale and Jua Kali sector. Its activities include training on
the use of appropriate technology, credit management, basic bookkeeping and
marketing.
Several credit schemes have been set up through the department.
There is also collaboration between the Government, the private
sector, NGOs and
the donor community to promote this sector.
35. Despite these efforts,
the full potential of the sector has not been realized, largely because of
constraints in funding. There
is, therefore, a real need to consider
alternative avenues of promoting this sector.
9. Employment in smallscale agriculture
36. Smallscale agriculture and pastoralist
activities include crop production and animal husbandry in rural areas. These
are produced
either for the market or for home consumption. The Labour Force
Survey estimates show that employment in this sector rose from 5.9
million
persons in 1992 to 6.2 million persons in 1996. However, the
sector’s share of total employment declined from 68.2
per cent
in 1992 to 59.0 per cent in 1996. This resulted from a significant
shift from rural smallscale farming activities to the
informal sector. This was
mainly caused by the increasing market orientation of the economy, intensified
population pressure on
arable land, and the ease of entry into and exit from the
informal sector. The sector is dominated by rural women and is their main
source of income.
10. Child labour
37. Child labour refers to working children who
earn a living for themselves and their families, and who may forego the
opportunity
to attend school. Such work may expose the child to physical,
intellectual and emotional damage, which affects their future development.
The
1989 Population Census found 896,569 children (30.1 per cent of
children aged between 10 and 15 years) to be economically active.
These
results indicate a high presence of child labour, given that children below
10 years were not asked about their status in
the labour force. Although
there are no comprehensive statistics on child labour, the number of working
children is estimated to
have increased to 34 million by
1998.
38. Studies and research conducted on child labour indicate that
child labour is related to poverty, lack of schooling and illiteracy.
Children
work in violation of national and international laws. Many of them work under
hardship conditions. This has serious negative
consequences on their health,
education and normal development. There are, however, efforts to eliminate
child labour. These are
spearheaded by the Government in collaboration with
other active partners such as the International Labour Organization (ILO)
through
the International Programme for the Elimination of Child Labour
(IPEC).
11. Unemployment
39. The 1986 Urban Labour Force Survey
established that the overall rate of urban unemployment of
16.2 per cent was slightly higher
than developed world standards, but
lower than the rate of urban unemployment in most African countries. Further,
the 1988/89 Rural
Labour Force Survey showed low levels of unemployment in
rural areas compared to urban areas. The two surveys found that the
participation
rate of females in the labour force had increased. The low
levels of unemployment in the rural areas is a reflection of correspondingly
high levels of underemployment among the youth, especially in familyowned
enterprises such as farms.
D. Sociocultural perspectives
1. Cultural diversity
40. Kenya has over 40
predominantly African indigenous cultural ethnic groups. These account for
about 99 per cent of the population.
The groups are located across
67 administrative districts, whose boundaries are largely coterminus with
ethnic boundaries. Kenyans
thus display diverse cultures in terms of language
and social organization. They are further divided into clans and families based
on blood relationships. They maintain a variety of traditional cultural beliefs
and practices. These influence the lives of children.
41. The diverse
cultural characteristics influence the way people perceive and respond to the
world around them, the way in which
they relate to others and interact amongst
themselves, and their modes of livelihood. Key influences on cultural change
are patterns
of migration and urbanization, education change, economic
development and the growing influence of globalization.
2. Impact of sociocultural beliefs and practices
42. Certain cultural beliefs have had a negative
influence on the lives and welfare of children. The size of families is to a
great
extent influenced by culture, because children are considered to be a
blessing and security for parents in old age. This in turn
influences community
attitudes towards family planning, and consequently infringes on the right of
children to adequate nutrition
which is affected by large families. Certain
beliefs and practices infringe on the girl child’s sexual and reproductive
rights
and bodily integrity as provided in the Convention on the Elimination of
All Forms of Discrimination against Women. These include
practices and beliefs
which touch on coitus, initiation rituals and early marriage. In addition,
gender bias in the provision of
education for girls is deeply rooted in culture
and tradition. This infringes on girls’ rights to development. It denies
them education and health. This affects their career and denies them the
opportunity to participate in decisionmaking at every level.
43. The
traditional family setup consisted of both the nuclear family and the extended
family. These family structures played a very
important role in a child’s
socialization. Through these systems, children acquired very positive values to
assist them as
they grew up to become responsible adults. In the traditional
setup, orphans were taken very good care of by the members of the
extended
family and there were no incidents of homeless children. The breakup of this
family system led to street children, orphans,
childheaded households and
homeless children.
44. Traditionally, there were many rites associated
with growing up which were very important to the child’s moral growth.
For example, during initiation, when one was officially initiated into
adulthood, a lot of values were taught and the most important
lessons touched on
responsible parenthood and moral uprightness.
45. However, some cultural
practices have proved to be negative, such as early marriage of girls, female
(girl) circumcision and preference
of boys over girls, which led to poor
development of the girl child.
II. GENERAL MEASURES OF IMPLEMENTATION:
ARTICLES 4, 42
AND 44
A. Implementation of rights
46. The
Constitution of Kenya does not specify the methods for transforming
international treaties into municipal law. Kenya’s practice follows
the
English one whereby for a treaty to apply, Parliament must pass an enabling Act
to give effect to it. Soon after Kenya’s
ratification of the Convention
on the Rights of the Child on 30 July 1990, the Attorney-General directed the
Kenya Law Reform Commission
to review the existing laws concerning the welfare
of children and make recommendations for improvement so as to give effect to the
Convention.
47. Although the Commission had, as far back as 1984,
embarked upon a review of laws relating to children, the process was hastened
by
Kenya’s ratification of the Convention. The Commission set up a
multisectoral and multidisciplinary task force including
government officers,
children’s rights advocates, experts and representatives of key child
welfare organizations, and academicians.
A team of 13 persons was constituted.
They began work in March 1991.
48. The result of the consultative
process was a report submitted to the Government in May 1994. One of the
key recommendations was
the enactment of a Children Bill and the amendment of
other relevant statutes not codified under this bill. A Cabinet decision soon
thereafter led to the publication of the Children Bill (1995). The objects of
the Bill as set out in section 3 were to:
Promote the well-being of
children;
Implement the 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 wellbeing of
children.
49. The Bill was tabled in Parliament soon after its
publication. It went through the first reading. It did not go beyond the
second
reading because Parliament recessed.
50. There was
dissatisfaction, particularly from NGOs which considered that the Bill fell
short of the provisions and spirit of the
Convention. They cited anomalies
including:
Lack of sensitivity to religious concerns;
Lack of
provisions on social security, free and compulsory education, refugee and
displaced children;
The problems of children with disabilities and
those accompanying mothers to jail;
Protection of the girl child from a
variety of disadvantages.
51. There was the general criticism that the
Bill was not progressive and failed to implement the provisions of the
Convention on
the Rights of the Child in a meaningful way. There were
suggestions on revising the Bill to make it more child friendly and to provide
a
legal and institutional framework that would enhance protection of all children
inside and outside the family environment.
52. After consultations with
the various interest groups, including NGOs, the AttorneyGeneral directed the
task force to review the
Bill. A new bill has since been drafted for
consideration and is soon to be tabled in Parliament.
B. Article 42. Implementation and entry into force
53. The Government participated in the World
Summit for Children in 1990 and ratified the Convention on the Rights of the
Child in
July 1990. By October 1992 Kenya had published its National Programme
of Action for Children (NPAC) for implementation of the 1990
World Summit
Declaration. The NPAC outlines goals and strategies needed to respond
effectively to the goals agreed on at the Summit.
The NPAC is implemented
within government structures and by NGOs. On the basis of the NPAC, development
plans and policy documents
have been developed on issues relating to children.
On the same basis the Government of Kenya, in collaboration with donors, notably
UNICEF, has since 1990 developed country programmes for ensuring implementation
of the Summit goals. So far, two five-year programmes,
19901993 and 19941998,
have been implemented and implementation of a third country programme (19992003)
for children is ongoing (see
table 4).
Table 4. Trend in goals set in the Kenya National Plan of Action for Children
|
World Summit goals for 2000
|
Kenya’s NPA goals
|
1990 levels
|
Current status
|
---|---|---|---|---|
1.
|
A ⅓ reduction in 1990 U5MR (or to 70/1,000 live births, whichever
is less)
|
Reduce IMR and U5MR to 70/1,000 and 90/1,000 respectively, with particular
attention to the AIDS epidemic
|
U5MR - 75/1,000 (1991)
IMR - 52/1,000 (1991) |
U5MR - 112/1,000 (1998)
IMR - 74/1,000 (1998) |
2.
|
A halving of 1990 MMR
|
Determine and reduce current MMR
|
MMR -
150-300/100,000 |
MMR -
365-498/100,000 |
3.
|
A halving of 1990 rates of malnutrition among the world’s under-5s
(to include the elimination of micronutrient deficiencies,
support for
breastfeeding by all maternity units, and a reduction in the incidence of low
birth weight to less than 10%)
|
Reduce moderate malnutrition by 30% of its 1992 level. Give special
attention to the nutrition of the girl child, pregnant and lactating
mothers.
Eliminate IDD and VAD.
|
Stunting - 32%
Wasting - 4% |
Stunting - 34% (1994)
Wasting - 8% (1994) |
4.
|
The achievement of 90% immunization among under1s, the eradication of
polio, the elimination of neonatal tetanus, a 90% reduction
in measles cases, a
95% reduction in measles deaths (compared to preimmunization levels)
|
The achievement of 90% immunization coverage; a virtual elimination of
polio
|
51% fully immunized (1987)
|
76% (1994)
|
5.
|
A halving of child deaths caused by diarrhoeal disease
|
Establish adequate data on diarrhoea mortality and incidence rates in order
to set goals
|
Data not available
|
Data on diarrhoea mortality not available
|
6.
|
A ⅓ reduction in child deaths from ARIs
|
Reduce ARI mortality rates by 10% of their 1993 levels
|
30.2% (1993)
|
Data not available
|
7.
|
Basic education for all children and completion of primary education by at
least 80% - girls as well as boys
|
Increase pre-school participation to 50% nationally. Achieve universal
access to primary school education in every district; reduce
adult illiteracy by
50%. Increase the participation of girls in education
|
GER in pre-school - 35.4% (1990);
GER in primary school - 91.1% (1990) |
GER in preprimary school - 36% (1996)
GER in primary school - 76% (1996) |
8.
|
Clean water and safe sanitation for all communities
|
Provide access to a source of safe drinking water within 1-5 km.
Achieve universal access to sanitary means of excreta disposal
|
Access to safe drinking water - 45%. Access to adequate environmental
sanitation - 80%
|
48%
46% (1996) |
9.
|
Acceptance in all countries of the Convention on the Rights of the Child,
including improved protection for children in especially
difficult
circumstances
|
Enact a comprehensive Children’s Act to protect the rights of the
child. Create effective institutions to implement child law
and assist children
in especially difficult circumstances
|
Children Bill published to be presented to Parliament
|
|
10.
|
Universal access to high-quality family planning information and services
in order to prevent pregnancies that are too early, too
closely spaced or too
numerous
|
Design more gender-sensitive development programmes which recognize
women’s productive and reproductive roles
|
Data not available
|
Gender policy drafted
|
11.
|
Alleviate poverty and revitalize economic growth
|
Reduce incidence of poverty at household level by 50%
|
45% (1992)
|
43.5% (1996)
|
Source: National Plan of Action for Children in
the1990s, various government surveys and analytical reports.
54. There
has been no effective coordination mechanism for the implementation of the
Convention on the Rights of the Child. However,
in 1997 a technical Steering
Committee was established under the chairmanship of the Director of
Children’s Services. The
Committee drew its membership from relevant
ministries and lead children’s NGOs and has been responsible for the
compilation
of this report.
55. It is envisaged that the responsibilities
for reporting on the Convention on the Rights of the Child will continue under
the auspices
of the Children’s Department. This is the central government
department charged with the rehabilitation, protection and care
of children
under the Children and Young Persons Act (Cap. 141, Law of Kenya). It also
undertakes specific childrelated activities
in liaison with NGOs, donors and
other agencies.
56. The District Children’s Advisory Committees
were established in 1992. These committees are chaired by District
Commissioners
and are responsible for coordinating all children’s
activities in the districts.
57. There are measures to collect data on
children on aspects such as immunization, education, birth registration and
nutrition.
But no specific measures have so far been planned to ensure the
systematic gathering of data on children relating to other rights.
However, the
Government of Kenya, through the Ministry of Planning and National Development
and with the support of UNICEF, has
carried out situation analyses of children
in Kenya (1992 and 1997).
The two documents present a collaborative effort
of Government, NGOs, UNICEF, professional groups and civil society. Among other
things, these analyses deal with: children in need of special protection, basic
education, health and nutrition, water and environmental
sanitation, gender, and
HIV/AIDS. The analyses emphasize disparities based on socio-economic factors,
regions, gender and age.
The 1997 Situation Analysis used a rights-based
framework and forms the basis of the 19992003 GOK/UNICEF Programme of
Cooperation.
58. The Government also conducted three welfare monitoring
surveys (WMS) in 1992, 1994 and 1997. These cover health, nutrition, education,
water and sanitation, among other subjects. In addition, two demographic and
health surveys (KDHS) have been conducted (1993 and
1998). A survey on children
in especially difficult circumstances (CEDC) was carried out in 1997
in 13 districts. It was to gather
data on the causes and magnitude of
the problem.
59. A number of NGOs have individually collected data on
issues such as child labour, street children, children and criminal justice,
child prostitution, child abuse, the girl child, teenage pregnancy and school
drop-out. These surveys are, however, based on small
samples.
60. Children’s issues in Kenya are funded jointly by the
Government, the donor community and various NGOs. While there is no
breakdown
of the national budget by children’s programmes and activities, an attempt
has been made to estimate the proportion
of the budget allocated to social
services which ensure the survival and development of children. Funding for
basic social services
has, however, remained very low and has had adverse
effects on the realization of the NPAC goals (see table 5). This is indicated
by the resource allocation in the financial year 1990/911995/96 as shown in
figure 3.
Table 5: Real government expenditures on basic social services (BSS), 1990-1995
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
|
---|---|---|---|---|---|---|
Basic health care expenditure as % of real GDP
|
0.4
|
0.5
|
0.6
|
0.6
|
0.7
|
0.8
|
Basic health services as % of government budget
|
1.4
|
1.4
|
1.3
|
1.2
|
0.9
|
1.3
|
MOH nutrition services as % of GDP
|
0.01
|
0.01
|
0.01
|
0.01
|
0.01
|
0.0
|
MOH nutrition services as % of government budget
|
0.03
|
0.03
|
0.02
|
0.02
|
0.01
|
0.0
|
Reproductive health and family planning services as a % of GDP
|
0.1
|
0.1
|
0.1
|
0.1
|
0.0
|
0.1
|
Reproductive health and family planning services as a % of GOK budget
|
0.3
|
0.3
|
0.3
|
0.3
|
0.3
|
0.3
|
Water and sanitation services as a % of GDP
|
0.5
|
0.5
|
0.3
|
0.3
|
0.2
|
0.3
|
Water and sanitation services as a % of government budget
|
2.0
|
1.4
|
0.7
|
0.6
|
0.3
|
0.4
|
Basic education as a % of real GDP
|
3.3
|
3.9
|
4.5
|
4.7
|
6.2
|
6.8
|
Basic education as a % of government budget
|
12.1
|
10.6
|
10.3
|
8.9
|
7.7
|
10.6
|
All BSS as a % of GDP
|
4.3
|
5.0
|
5.4
|
5.7
|
7.2
|
8.1
|
All BSS as a % of government budget
|
15.8
|
13.8
|
12.6
|
11.0
|
8.9
|
12.6
|
Total government expenditure
|
4 223.7
|
4 311.5
|
4 332.2
|
4 343.3
|
4 474.4
|
4 692.7
|
Source: BSS report 20/20 compact study.
Figure 3. All basic social services (BSS) as a % of
government budget
61. In the national health budget, most children’s
activities are funded through the Preventive and Promotive Health Vote.
This
vote has various sub-items: maternal and child health (MCH), control of
diarrhoeal disease (CDD), acute respiratory infections
(ARI), expanded programme
of immunization (EPI), safe motherhood and babyfriendly initiative and malaria
control. There is also
a sub-vote on nutrition with such sub-items as
micronutrients deficiency control and vitamin A deficiency.
62. In
education, the bulk of the budget goes to children through primary and secondary
education. The budget also has such specific
sub-items as the School Feeding
Programme, Boarding Schools for Arid and SemiArid Areas, and PrePrimary
Education. Although education
takes 30 per cent of the national budget, 80 per
cent of the education budget goes to teachers’ salaries. The remaining 20
per cent is not nearly enough to fund primary education, and hence the policy of
cost-sharing.
63. The Children’s Department is under financed,
representing less than 1 per cent of the total national budget. This impacts
negatively on the Department’s ability to discharge its
responsibilities.
64. Children have been severely affected by the
economic crisis facing the country. Since the 1990s, the emphasis has been on
reducing
government expenditure on social services and transferring the
responsibilities either to users or communities. In the face of the
increasing
incidence of poverty, this has meant decline in access to social services such
as education, health, nutrition, water,
sanitation and security. For example,
the primary school gross enrolment rates have declined from a high of 95 per
cent in the late
1980s to about 76 per cent currently. In health there has been
a notable decline in infant and under5 mortality rates in the 1990s
and
recent studies show that these are increasing.
65. The Government is
concerned about these trends and has set up programmes to respond to this. Such
programmes include the Social
Dimensions of Development (SDD) and the
AntiPoverty Trust Fund. The Government has also developed a Poverty Eradication
Plan. The
SDD programme has been conceived as an umbrella programme to address
the needs of the poor and vulnerable. Its main objectives are
to:
(a) Sharpen the focus and enhance the priority accorded to poverty
reduction in Kenya’s overall development strategy;
(b) Facilitate
the mobilization and channelling of adequate resources to the poor and the
vulnerable; and
(c) Improve the targeting, efficiency and effectiveness
of resource flows and delivery of goods and services to this
group.
66. As the incidence of poverty and its intensity are most severe
for women, the SDD programme gives special attention to their needs,
priorities
and aspirations. Activities under this programme include:
Burseries for
poor students;
Supply of school textbooks;
School milk and
feeding programmes;
Supply of school equipment;
Supply of drugs
and other material for health services;
Maintenance of roads and water
projects in rural areas;
Settlement of the landless;
Sites and
services improvements for housing for the urban poor;
Promotion of rural
industries;
Development of programmes for informal enterprises to
generate employment;
Severance payments for those retrenched under the
Civil Service Reform Programme.
67. Budgetary allocations to selected
narrowly targeted SDD programmes and projects have been K Sh 3.2
billion in 1994/95, K Sh 4.8
billion in 1995/96 and
K Sh 7.6 billion in 1996/97. Additional amounts were allocated
in the budget for selected broadly targeted
SDD interventions amounting to
K Sh 2.6 billion in 1995/96 and 4.8 billion in 1996/1997.
The Government is prepared to earmark resources
for the establishment and
operation of the AntiPoverty Trust Fund.
68. Apart from the government
allocation, BSS are also funded through overseas development assistance (ODA).
Its expenditure on BSS
as a proportion of total ODA has averaged
15 per cent over the period 1989 to 1995, with a notable 23 per cent
in 1994. In terms
of sectors, expenditure on basic health as a proportion of
total ODA expenditure has been rising from almost 4 per cent in 1989 to
a
projected 12 per cent in 1995. As table 6 shows, nutrition has also recorded a
growing trend of allocation of ODA and stood at
almost 10 per cent in
1994.
Table 6. Overseas development assistance (ODA) allocation for BSS
(in thousands US$ and % shares)
Sectoral allocations
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
---|---|---|---|---|---|---|
Primary health care
|
19 538
|
26 188
|
10 130
|
7 643
|
10 075
|
9 351
|
Immunization and other diseases
|
6 214
|
8 421
|
1 657
|
2 684
|
2 827
|
1 170
|
Area development: health activities
|
13 972
|
6 905
|
5 644
|
6 083
|
6 033
|
3 901
|
Reproductive health and Family Planning
|
17 676
|
19 536
|
14 785
|
9 259
|
10 426
|
6 251
|
Total basic health
|
57 400
|
61 050
|
32 216
|
25 669
|
29 361
|
16 772
|
Primary schooling
|
10 461
|
7 697
|
7 290
|
1 888
|
8 395
|
3 998
|
Non-formal education
|
1 536
|
11 277
|
3 712
|
4 385
|
6 132
|
1 552
|
Area development educational activities
|
13 972
|
6 905
|
5 644
|
6 083
|
6 033
|
3 901
|
Total basic education
|
25 969
|
25 879
|
16 646
|
12 356
|
14 527
|
5 550
|
Food crops
|
25 667
|
12 766
|
6 735
|
7 405
|
50 409
|
0
|
Total nutrition
|
25 667
|
12 766
|
6 735
|
7 405
|
50 409
|
0
|
Drinking water and sanitation
|
51 466
|
47 538
|
12 870
|
5 870
|
19 885
|
1 950
|
Area development: water activities
|
13 972
|
6 905
|
5 644
|
6 083
|
6 033
|
3 901
|
Total water supply services
|
65 438
|
54 443
|
18 514
|
11 953
|
25 918
|
5 851
|
Early warning and food information
|
0
|
0
|
0
|
1 551
|
618
|
1 974
|
Relief planning
|
50
|
0
|
0
|
0
|
2 719
|
0
|
Emergency relief
|
4 234
|
4 411
|
44 260
|
72 890
|
30 640
|
5 083
|
Total expenditure on BSS
|
204 425
|
171 315
|
125 106
|
139 229
|
204 601
|
35 230
|
Grand total of grants and ODA
|
1 420 241
|
853 933
|
982 448
|
934 162
|
520 794
|
140 125
|
Total basic health (%)
|
4.04
|
7.15
|
3.28
|
2.75
|
5.64
|
1 197
|
Total basic education (%)
|
1.83
|
3.03
|
1.69
|
1.32
|
2.76
|
3.96
|
Total nutrition (%)
|
1.81
|
1.49
|
0.69
|
0.79
|
9.68
|
0.00
|
Total water supply services (%)
|
4.61
|
6.38
|
1.88
|
1.28
|
4.98
|
4.18
|
Total other BSS (%)
|
0.0
|
0.01
|
0.05
|
0.08
|
0.07
|
0.05
|
BSS as % of total expenditure
|
12.29
|
18.06
|
7.59
|
6.22
|
23.15
|
20.16
|
Source: UNDP Annual Development Cooperation Reports 1990
and 1994 (1995 figures are provisional).
69. Grant aid currently
accounts for less than 2 per cent of GDP. The withholding of ODA
is already causing concern, given that ODA
supports most of the development
activities related to BSS.
70. Overall disbursements from bilateral
donors decreased between 1991 and 1994 as shown in table 7. Despite their large
number and
activities, NGOs contribute a very small percentage of the total ODA.
However, it is important to note that their activities are
concentrated in the
provision of social services and therefore their contribution to ODA is very
important.
Table 7. Overseas development assistance (ODA) by type of
donor
(in millions of US$)
Donor
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
---|---|---|---|---|---|---|
United Nations system
|
523.92
|
294.52
|
361.79
|
372.65
|
161.47
|
24.75
|
Non-United Nations system
|
109.24
|
13.42
|
25.30
|
17.60
|
0.00
|
0.15
|
European Union
|
96.14
|
36.20
|
140.37
|
83.63
|
64.75
|
208.88
|
Bilateral
|
772.51
|
485.20
|
438.78
|
443.45
|
281.30
|
90.12
|
NGOs
|
16.75
|
24.59
|
16.21
|
16.82
|
13.29
|
4.19
|
Total ODA
|
1 420.24
|
853.93
|
982.45
|
934.00
|
520.80
|
140.11
|
Percentages
|
|
|
|
|
|
|
United Nations system
|
36.90
|
34.50
|
36.80
|
39.90
|
31.00
|
17.70
|
Non-United Nations system
|
6.80
|
4.20
|
14.30
|
9.00
|
12.40
|
14.90
|
European Union
|
0.80
|
1.60
|
2.60
|
1.90
|
0.00
|
0.10
|
Bilateral
|
54.40
|
56.80
|
44.70
|
47.50
|
54.00
|
64.30
|
NGOs
|
1.20
|
2.90
|
1.60
|
1.80
|
2.60
|
3.00
|
Total ODA
|
100.00
|
100.00
|
100.00
|
100.00
|
100.00
|
100.00
|
Source: UNDP Annual Development Cooperation Reports 1990
and 1994 (1995 figures are provisional).
71. Pursuant to article 42
of the Convention, Kenya has made the principles and provisions of the
Convention widely known to both
children and adults. In particular, the weekly
Child Survival radio programme has developed and aired radio programmes on the
rights
of the child. Although these have mainly been in English, a few have
been aired in Kiswahili and in local languages. In the daily
newspapers,
feature articles on thematic issues of child rights have been published. The
two main dailies, the Daily Nation and the East African Standard,
have a weekly pullout section for children.
72. Activities such as the
Day of the African Child and Universal Children’s Day are used to create
public awareness using drama,
song and poems by children, and speeches by child
specialists. They are each marked once a year, in June and November
respectively.
They are coordinated by the Ministry of Home Affairs, National
Heritage, Culture and Social Services in collaboration with NGOs
and UNICEF.
Supplementary articles are published in the main dailies. Radio programmes are
also broadcast countrywide to coincide
with these days.
73. To promote
the Convention on the Rights of the Child and to ensure that children know their
rights, children rights clubs have
been piloted in schools by two organizations,
Kenya Alliance for the Advancement of Children (KAACR) and Child Welfare Society
of
Kenya (CWSK). The objectives of these clubs are to:
(a) Promote
awareness of children’s rights and responsibilities;
(b) Encourage
tolerance of different opinions, freedom of expression and respect for the
law;
(c) Promote the artistic talents of children through drama, songs,
essays and art;
(d) Promote sensitivity to environmental, social and
development issues that affect children.
74. KAACR has published 5,000
copies of manuals for facilitators of Child Rights Clubs. Club facilitators can
use these to make child
rights relevant to children’s everyday lives.
Three thousand brochures have been produced. They contain information on the
activities of Child Rights Clubs.
75. The Christian Children’s Fund
(CCF) has translated the Convention into Kiswahili, the national language.
To date over 20,000
copies have been published and distributed in over 53
CCF projects, 95 per cent of which are based in rural areas. Through District
Children Advisory Committees, KAACR has published a simplified version of the
Convention for child readers. To date over 20,000
copies have been distributed
through its network of agencies, mainly scattered in Nyanza, Nairobi, Western
and Coast Provinces.
76. Regular annual and biannual publications by NGOs
on child rights which also solicit views from children include:
The “Voice” by the Child Welfare Society (distributed through its 15 branches in the country);
“Binti” by the Girl Child Network (distributed through its 52-member NGO network);
“The Child” by KAAC (distributed in its programme areas in Nairobi, Kisumu, Western and Coast Provinces;
“Voices” by the Kenya Human Rights Foundation and “Sera Zetu” by Action Aid are distributed mainly in Nairobi;
The Government and UNICEF have produced two posters on child rights. The first is a general poster on survival, development, protection and participation of the child. The second is a series of posters on thematic issues affecting children such as health, education and water. These are distributed in UNICEF’s 19 focus districts, through line ministries and partner NGOs.
77. Sensitization on child rights and the provisions of the Convention on
the Rights of the Child has been carried out at different
times with a focus on
specific categories of citizens. During the drafting of the Children Bill,
judicial personnel and politicians
were the main focus. At the beginning of the
Convention reporting process, officers of the main line ministries were trained
on
the Convention on the Rights of the Child.
78. NGOs that have held
sensitization workshops on child rights include: the Child Welfare Society of
Kenya, Save the Children Canada,
Netherlands Development Organization, Action
Aid Kenya, Christian Children’s Fund, Kenya Alliance for the Advancement
of Children,
African Network for Protection and Prevention against Child Abuse
and Neglect, and the Pandipieri Street Children Programme based
in Kisumu.
Those sensitized in these workshops include police officers, social workers, the
local administration, primary and secondary
schoolteachers, and boys and girls
in and out of school.
C. Article 44. Reports
79. The Convention reporting process began in
April 1997 under the technical Steering Committee. The committee was
coordinated by
the Children’s Department which worked with UNICEF and the
NGO community through KAACR to facilitate the process.
80. KAACR and the
Children’s Department provided a secretariat and worked with the Steering
Committee in sensitizing other Government
Departments, NGOs, CBOs and children
in all eight provinces of Kenya on the Convention on the Rights of the Child.
They also obtained
information on the status of implementation of the
Convention. Apart from adults’ workshops, which were attended by 450
participants,
children’s workshops were held in which 350 children
expressed their views on the Convention and its implementation in Kenya.
Reports from these workshops have been used in compiling the national report.
KAACR also undertook a desk survey on the status
of
implementation.
81. UNICEF provided financial support to the project by
funding workshops in Nairobi, Nyanza, Coast, Rift Valley and North Eastern
Provinces. It also cosponsored the Central Province workshop with Plan
International. Workshops in the other provinces were
cosponsored by Action Aid Kenya, Plan International, Save the Children
Canada, Care Kenya, ILO/IPEC, Young Muslim Association, SNV
Netherlands and the
Children’s Department. The Steering Committee then set up an
interministerial and multidisciplinary team
of 31 drafters from Government, NGOs
and the Attorney-General’s chambers. The drafters initially worked on the
report from
their offices, using reports from the provincial workshops.
Thereafter, they retreated for a nine-day workshop to finalize it.
The draft
report was then discussed at a national workshop where stakeholders were invited
to give their comments for incorporation
in the report. This report was
discussed at a national publicity workshop involving 150 NGOs, CBOs, Government
and children, before
being submitted by the Government to the CRC. One thousand
and fifteen stakeholders were consulted throughout the country, of whom
350 were
children. The reporting process also received wide coverage in the print and
electronic media.
82. We acknowledge the delay in the submission of this
report, which was occasioned by the lack of a reporting mechanism immediately
after ratification of the Convention.
III. DEFINITION OF THE CHILD: ARTICLE 1
A. Constitutional and legal context
83. The Constitution
of Kenya (sect. 82) allows different personal laws on adoption, marriage,
divorce, burial, devolution of property and related matters. The effect of
this
is to allow the different definitions of a child in these laws. The
Constitution does not, however, define childhood, and makes no reference to
children. However, several statutes provide various definitions of
a child and
childhood.
84. According to the Age of Majority Act (Cap. 33, Laws of
Kenya), full legal capacity is acquired at the age of 18 years. Persons below
this age are minors. They may not
enter into commercial legal contracts. The
Children and Young Persons Act (Cap. 141, Laws of Kenya) defines a
“child”
as a person under the age of 14. A “juvenile”
is one aged over 14 years, but is under the age of 16. A “young
person” is one aged 16 or more, but is under the age of 18.
85. The
Children Bill (1998) creates a uniform definition. It defines
“children” as persons under the age of 18. It
also provides for
various stages of childhood. Under the Penal Code (Cap. 63, Laws of Kenya), the
definition of a child includes
the unborn child. This is so because sections
158 and 159 prohibit abortion. The offence of infanticide applies to infants
who
are persons below 12 months.
86. According to section 14, a person
aged below 8 years is incapable of forming criminal intent. Kenya’s
criminal law presumes
that a girl aged below 14 years cannot consent to sexual
intercourse. The law avails to the offender a defence if he reasonably
believed
that the girl was above 14 years at the time the offence was committed. It is
also presumed that a male child below 12
years cannot commit the offence of
rape. According to the Penal Code, the death penalty cannot be pronounced
against a person below
18 years. Girls under the age of 21 are protected from
being procured for immoral purposes. Further, girls under the age of 18
may not
be retained for sexual exploitation by a householder.
87. Cases affecting
children are heard in special courts (Juvenile Courts). They are given special
protection, including protection
against publicity. Children below 16 years are
protected from association with adults charged or convicted of offences, except
when
they are charged jointly with such persons. With respect to custody, the
Penal Code requires that those under 18 be housed in juvenile
remand rather than
remand prisons.
88. Under section 2 of the Borstal Institutions Act (Cap.
92, Laws of Kenya) young offenders between 15 and 18 may be committed to
a
borstal institution.
89. With a few exceptions, parents of those below 18
who are charged with offences are required to attend the hearings. The Act
allows
for the participation of parents in enforcing the penalties prescribed
against such offenders. Under the Prisons Act (Cap. 90, Laws
of Kenya), persons
aged between 17 and 21 years may be placed in corrective training institutions
instead of prisons. This is a
protective measure for young offenders. Under
the Evidence Act (Cap. 80, Laws of Kenya), the evidence of a “child of
tender years” is not admissible unless it is corroborated. There
is no
particular cut-off age for this purpose. In practice, the courts assess each
individual child, and consider the actual age
together with other factors such
as demeanour and level of maturity.
90. Under the Oaths and Statutory
Declarations Act (Cap. 15, Laws of Kenya), “a child of tender years”
may give evidence,
but not under oath if such a child does not understand the
nature of the oath.
91. Under the Traffic Act (Cap. 403, Laws of Kenya),
persons under the age of 16 may not be issued with driving licences. With
regard to motorcycles, the
minimum age for a driving licence is 18. With
respect to matatus (public commuter taxis) and motor-omnibuses, a person
must be at least 24 years old and must have held a driver’s licence
for
motor cars or commercial vehicles.
92. Under the Liquor Licensing Act
(Cap. 121, Laws of Kenya), alcoholic drinks may not be sold to
children.
93. For purposes of marriage, several statutes are applicable.
The Marriage Act (Cap. 150, Laws of Kenya) sets the minimum age of
marriage for
girls at 16 years, and 18 years for boys. In both cases, parental consent is
required. This applies also to marriage
under the Hindu Marriage and Divorce
Act (Cap. 157, Laws of Kenya). In Islamic law, a person is free to marry on
attainment of puberty.
Under customary law, some communities deem a person
ready for marriage after he/she undergoes the relevant initiation rites or after
puberty.
94. Under the Employment Act (Cap. 226, Laws of Kenya), the
minimum age for employment in an industrial undertaking is 16. This restriction
does not apply to employees who belong to the same family as the employer -
unless the undertaking is dangerous to the life, health
or morals of the persons
employed. A child under the age of 16 may also be allowed to undertake
industrial work if he/she is an
apprentice under the Industrial Training Act
(Cap. 237, Laws of Kenya). There is no legal minimum working age in the
agricultural
and services
sectors, and for domestic work. Kenya ratified ILO Convention No. 138 on
Minimum Age for Admission to Employment in 1979. That convention
specifies 15
years as the minimum age for employment. The provision is linked to the number
of years required for the completion
of compulsory education. Under the
Regulation of Wages and Conditions of Employment Act (Cap. 229, Laws of Kenya),
there is no legal
minimum age at which a person may independently bring a matter
before a court. In practice, this age is guided by the age of majority,
which
is 18, and which is the minimum age required for a person to enter into a legal
contract. Under the Trade Unions Act (Cap.
233, Laws of Kenya), children below
16 may not participate or be represented in trade unions.
95. The age of
consent for a surgical operation in Kenya is 18 years. Before a child undergoes
such an operation, the parent or a
guardian must give consent. In case the
parents are not available, a senior supervising doctor in the health institution
must give
consent. This also applies to medical/legal
counselling.
96. Section 2 of the Adoption Act (Cap. 143, Laws of Kenya)
defines an infant as a person under the age of 18 years. This does not
include
a person under that age who is, or has been married. This implies that marriage
confers adult status, irrespective of age.
The Guardianship of Infants Act
(Cap. 144, Laws of Kenya) has a similar definition. Under the Armed Forces Act
(Cap. 199, Laws of Kenya), persons under the age
of 18 may only be recruited in
the armed forces with the consent of their parents, guardians or the District
Commissioner.
B. Context and implementation
97. Kenya has over 40 different ethnic
communities. These define children and childhood differently. The definitions
depend on how
each community marks the transition from childhood into adulthood,
through various rites of passage. These occur at different stages,
and the
ceremonies normally involve age-sets determined by different socio-cultural
events. An example is the Bukusu of Western
Kenya who perform circumcision
ceremonies for boys during even years and at harvest time.
98. Another
Kenyan community, the Maasai of Rift Valley Province, circumcise their boys who
also have to kill a male lion as a sign
of bravery. Initiates have to retreat
to special manyatta (houses) to be socialized by older male members of
the community. The Maasai youths are referred to as moraan
(warriors).
99. To a large extent, these practices still continue for
both boys and girls in many Kenyan communities although they have been modified.
These rites conferred adulthood status with its attendant duties and
responsibilities irrespective of numerical age.
100. The task force
appointed to review laws relating to children recommended the amendment of
several laws and a uniform definition
of a child to be a person under the age
of 18 years. This will become law once the Children Bill (1998) is
enacted. The task force
also recommended amendment of the Employment Act to
provide for 18 years as the minimum age for employment.
IV. GENERAL PRINCIPLES OF IMPLEMENTATION:
ARTICLES
2, 3, 6 AND 12
A. Article 2. Non-discrimination
1. Constitutional and legal context
101. Section
70 of the Constitution of Kenya guarantees fundamental rights and freedoms to
every person in Kenya irrespective of race, religion, sex, tribe, place of
origin, political opinion, residence or any other local connection, colour,
creed or sex. Consequently, all persons, including children,
are equal before
the law.
102. Discrimination is prohibited under section 82, which states
that no law shall provide for discriminatory practices.
“Discriminatory” means treating persons differently
on the basis of
their race, tribe, place of origin, residence or other local connection,
political opinions, colour or creed. However,
the Constitution allows choice in
matters of adoption, marriage, divorce, burial, devolution of property, or other
matters of personal law. The different
personal laws of Kenyan communities
sometimes lead to discrimination against children. This has been widely
criticized.
103. Kenyan statutory law generally reflects the principle of
non-discrimination. But certain legislative provisions discriminate
on the
ground of gender. Different marriage systems and laws prescribe the ages of
marriage for the different systems of marriage.
These systems are based on
religious and cultural distinctions. The Constitution and the Kenya Citizenship
Act (Cap. 170, Laws of Kenya) contain provisions which discriminate on the
ground of gender. A child whose
father is Kenyan automatically becomes a Kenyan
citizen regardless of where he or she is born, but a child born outside Kenya to
a Kenyan mother and a non-Kenyan father only becomes a Kenyan citizen if he/she
applies for citizenship.
2. Context and implementation
104. There are categories of children who face
discrimination within and outside the family due to cultural biases. Children
born
out of wedlock (mainly as a result of teenage pregnancies) are not fully
accepted in the mother’s home. If the mother later
marries a man who is
not the biological father of the child, that child may suffer further
discrimination in the new home. This
practice affects boys more than girls
because in traditional inheritance practices, the girl would get married and
leave the family.
Many cultures still refer to such children in derogatory
terms. There is provision for the legitimization of such children under
the
Legitimacy Act (Cap. 145, Laws of Kenya).
105. In many Kenyan
communities children born of incestuous relationships which are criminal are
considered taboo children and are
discriminated against. In a significant
portion of Kenyan society, especially within rural communities, male children
are still
preferred. This leads to discrimination against girls, especially in
the provision of sufficient food and education. The girl child
in certain
communities is at risk of harmful traditional practices like female circumcision
and early marriage.
106. Although the Law of Succession Act (Cap. 160,
Laws of Kenya) treats boys and girls equally, Kenya is still basically a
patriarchal
society. Rights of inheritance are still to a great extent
restricted to the male members of the family. This discriminates against
female
children.
107. Children with disabilities face discrimination both in and
outside the family setting. In some communities, such children are
considered
to be taboo children since disability is associated with bad luck. Such
children are commonly given derogatory names,
e.g. Maima in Maasai,
Kionje in Kikuyu and Kiwete in Kiswahili, to denote their
disabilities. In some rural communities, such children may be hidden from the
public. This makes
it impossible for them to be assessed and assisted.
Although both boys and girls with disabilities are affected, the girl child
is
particularly vulnerable. In the public sphere, the rights of children with
disabilities to health and education have not been
adequately addressed. The
provision of social amenities by the State to disabled children has been
inadequate. Only a few special
schools have been established to cater for some
groups. However:
(a) Accessibility is not considered in construction of
buildings;
(b) There is no policy of integration of disabled children in
formal schools;
(c) There are few children’s homes with
appropriate facilities for disabled children.
108. The advent of HIV/AIDS
has led to a fast-growing category of children who have been affected either
through infection or being
orphaned. Such children are often discriminated
against. Cases have been reported of such children being neglected and
abandoned
in health institutions, and being disowned by
relatives.
109. With regard to education, children from poor families who
cannot afford the cost of education under the formal system are now
being forced
by circumstances into the non-formal system, which is inferior to the formal
system.
3. Achievements and constraints
110. In 1997, the Constitution was amended to
include sex as one of the grounds on which discrimination is prohibited. It is
expected that this positive development
will be reflected in other statutes.
However, the Constitution still does not recognize disability as one of the
grounds on which discrimination is prohibited. Kenya ratified the Convention on
the Elimination of All Forms of Discrimination against Women in 1984. That
convention and the Convention on the Rights of the Child
play a complementary
role in addressing discrimination against the girl child. In 1993, the
Attorney-General appointed a task force
to review laws relating to women. The
task force was given the responsibility of reviewing any discriminatory
policies, laws, regulations
and practices against women. The review was
inspired by the need to promote human rights and fundamental freedoms in the
political,
economic, social, cultural, civil and other fields. The task force
is expected to accomplish its work soon.
111. The task force is expected
to recommend legislative reforms and the modification or abolition of
discriminatory laws and practices.
This exercise is expected to benefit the
girl child.
112. Another task force was appointed in 1992 to review
laws, policies, customs and practices affecting persons with disability.
Its
report contains extensive recommendations touching on policy, legislation and
programmatic action. These recommendations have
not yet been implemented. The
proposed Children Bill contains extensive provisions on
non-discrimination.
B. Article 3. Best interest of the child
1. Constitutional and legal context
113. Although the
Constitution is silent on the rights of the child, the principle of the best
interest of the child is spelt out in various statutes dealing with
children.
It is also the principle that guides the conduct of the courts on
children’s matters.
114. Under the Children and Young Persons Act
(Cap. 141, Laws of Kenya), a court dealing with a child must have regard to
his/her
welfare. Under the Act, child offenders should be imprisoned only as a
last resort. If it happens, children should not be kept
together with adult
offenders.
115. The Guardianship of Infants Act (Cap. 144, Laws of
Kenya), recognizes that the welfare of the child is the first and paramount
consideration in matters of custody
and upbringing. Section 17 requires a
court hearing on matters concerning custody or the administration of property
belonging to a child to take into account
the child’s welfare. A court
dealing with children should also remove them from undesirable surroundings and
ensure provision
for their maintenance, education and
training.
116. Under the Adoption Act (Cap. 143, Laws of Kenya), adoption
orders are based on the underlying principle of the best interest
of the child.
The Act sets out an elaborate procedure and detailed legal requirements for
adoption. Due consideration should be
given to the wishes of the child. In
such cases, the age and understanding of the child and the ability of the
adopter to maintain
and educate the child should be taken into account. The
court may require the adopter to accept supervision by, and advice from,
an
adoption society specified by the court, for a period not exceeding two
years.
117. Section 12A empowers the court in adoption proceedings to
appoint an independent person or body to act as a guardian. The duty
of such a
person or body is to safeguard the interests of the child before the
court.
118. The Matrimonial Causes Act (Cap. 152, Laws of Kenya) empowers
the court to make an order in divorce proceedings for custody and
maintenance of
children of the marriage. Kenyan courts have been systematic in ensuring that
the best interest of the child is the
guiding principle in all decisions made
regarding a child (Situation Analysis, 1997:47).
119. Although the
principle of the best interest of the child is easily applicable ion the courts,
it has not been extended to policy
areas such as development planning and
budgetary allocation. This limitation also exists in the family sphere where
important activities
and decisions affecting the child take place.
2. Context and implementation
120. Kenya’s policy framework on
children’s rights is inadequate both in content and implementation.
Development plans
and official policy papers merely express the ideals that
children should be provided with education, medical care and nutrition.
Such
documents fail to specify how all Kenyan children will gain access to education,
basic health care and nutrition. In reality,
most children live in highly
vulnerable economic or social conditions. In the face of deteriorating economic
conditions, it is difficult
to ensure the best interest of the
child.
121. Although the Government is committed to free primary
education as expounded in various development plans and sectoral policies,
it is
becoming more difficult to maintain the best interest principle. Programmes
such as school feeding, bursary allocation, special
education for children with
disability, and subsidies to educational services receive low budgetary
allocation. This is further
compounded by the structural adjustment programmes
that have been undertaken more intensively in the 1990s.
122. However, in
attempts to ensure the best interest of the child in education despite the
declining economic conditions, the Government
identifies standards in the
provision of school physical facilities and class sizes. The regulations aim at
ensuring safety in schools.
Boarding facilities are especially encouraged to
have clinics or sanatoriums. These are intended to create a learner-friendly
environment.
At all levels of education, the Government trains teachers and
provides them with professional skills. This includes pre-service
and
in-service training.
123. Nutritional status. One third of Kenyans are
exposed to the risk of deficient nutrition. Some drought-prone districts in the
Northern and North-Eastern Provinces experience wide fluctuations in
malnutrition rates. During drought periods, some district record
as high
as 50 per cent malnutrition rates. The Government has attempted
to improve the situation through school milk and feeding
programmes, and by
providing relief during emergency periods. These programmes have been
implemented in nomadic areas such as:
(a) The total arid areas category
- all school-going children in primary and preprimary schools get lunch daily.
Districts included
are Moyale, Samburu, Turkana, Isiolo, Mandera, Wajir,
Garissa, Tana River and Marsabit;
(b) Semi-arid areas category - feeding
is only done in selected pockets of poverty. Districts involved are Bringo,
Koibatek, West
Pokot, Narok, Kajiado, Mwingi, Mbeere, Laikipia, Kilifi, Kwale
and Lamu.
124. Nutrition safety can, however, only be assured by
increased and diversified food production; the varieties of foods consumed
(which in turn depend on the economic status of the household); the availability
of other basic needs services such as health and
education; and the gradual
change in cultural habits. Hungry and malnourished children who go to school
perform poorly and drop
out of school.
125. The health sector: The Government is committed to providing
comprehensive and community-based care. This includes appropriate
health
education, provision of proper nutrition, basic sanitary facilities, and
maternal and child health care including family planning
and immunization. The
goal of health care is to reduce morbidity and mortality. However, many
families live in remote and inaccessible
areas, including urban
slums.
126. These families have limited access to essential services like
safe water and adequate sanitation. In these circumstances, the
rights to
survival, development, protection and participation for most children are not
assured. In traditional Kenyan society,
communities were collectively
responsible for the upbringing of children. They ensured the continuity of
communities and lineage,
and cared for parents in old age. Survival,
development and protection activities within society were undertaken
collectively by
extended families in the best interest of all members,
especially children. Changes, particularly modernization, migration and
urbanization,
which began with colonization have led to the disintegration of
the extended family. The new family forms, which include the nuclear
family,
female- and child-headed households and families headed by grandparents, are
vulnerable. They fail to provide for the basic
social services of the children.
The presence and increasing population of children in need of special protection
further indicate
this.
C. Article 6. Right to life and maximum survival and development
1. Constitutional and legal context
127. The Constitution
guarantees the right to life for all persons in Kenya. It also states that no
person shall be deprived of his/her life intentionally,
except in the execution
of a sentence of a court for a criminal offence under the laws of
Kenya.
128. The Penal Code (Cap. 63, Laws of Kenya) forbids the
imposition of a death sentence on a child. The right to life is extended
to the
unborn child by the law which prohibits abortion unless the life of the mother
is threatened.
129. A death sentence cannot be passed on a pregnant
woman. Such a sentence is replaced by life imprisonment. The Penal Code
further
creates the offence of infanticide to protect the lives of infants.
Murder is a capital offence. Attempted suicide is also an offence.
The Penal
Code provides further that a person in charge of those who are unable to provide
for themselves the necessities of life
must provide such necessities; failure to
do so is an offence.
2. Context and implementation
130. Kenya is committed to the survival and
development of children as stipulated in various government documents such as
the NPAC.
The Government has established relevant programmes to ensure child
survival and development.
131. Under the NPAC, programmes have been formulated and implemented to curb
infant mortality and morbidity. There is a comprehensive
Maternal and Child
Health Programme. Under this programme, neonatal and post-natal care are given
to mothers free of charge in all
public health facilities. Infant immunization
and growth monitoring is routinely carried out. Malnutrition and vitamin
deficiency
are curbed by the provision of iron, folic acid and vitamin A to
pregnant mothers and children. To increase such activities, an
outreach
component has been added to this programme.
132. Rehabilitative health
for children with disabilities is done through the departments of physiotherapy
and occupational and orthopaedic
therapy in the Ministry of Health. A conscious
effort is being made to encourage community-based rehabilitation.
3. Constraints
133. The right to development is greatly
compromised by the declining public and family resources. There are regional
disparities
in the availability of public health facilities and supplies. Even
with the outreach programme, children in remote areas of Kenya
have not
benefited fully from MCH care. The HIV/AIDS scourge has created new challenges
in the provision of MCH services. Medical
and health-care facilities and
supplies are overstretched because of the rising numbers of patients. The
available medical personnel
cannot cope with the rising demand for services.
The rapid population growth and rural-urban migration have escalated poverty and
led to the growth of slum dwellings in the cities and other major towns. Slum
dwellings lack proper sanitation, safe drinking water
and general
infrastructure. The congestion in the slums exposes children to constant
outbreaks of diseases. Slums are not recognized
officially by the Government.
As a result, policy on the provision of basic social services and infrastructure
is lacking.
134. The economic structural adjustment programmes have had a
negative impact on the provision of basic social services. This is
threatening
to reverse the progress made so far.
D. Article 12. Respect for the views of the child
1. Constitutional and legal context
135. Chapter 5 of the
Constitution of Kenya guarantees fundamental rights and freedoms, which include
the freedoms of conscience, expression, assembly and association.
These rights
are guaranteed to all citizens. Although there is no specific mention of
children, these provisions also cover them.
136. Section 77 of the
Constitution provides due process rights. These require that an accused person
be given the protection of the law and a fair hearing by an impartial
court,
adequate time and facilities to prepare the defence; and an opportunity to mount
a defence in court either in person or through
a legal representative of choice.
Where necessary, an accused person should be provided with the services of an
interpreter.
137. The juvenile courts, set up under the Children’s
and Young Persons Act (Cap. 141, Laws of Kenya) to deal with matters
affecting
children, follow similar principles. The evidence of a child is
admissible but it must be corroborated by other material
evidence.
138. Under the Adoption Act (Cap. 143, Laws of Kenya), an
adoption court is required to give consideration to the wishes of the
child.
In doing this it should consider the age and understanding of the child.
The same is the practice in matrimonial cases.
2. Context and implementation
139. In Kenya, the elder members of the society
have taken decisions concerning children. Although changes have taken place and
children’s
views are now being taken into consideration, this is still
minimal. In educational institutions, school authorities make decisions
affecting the management of the institutions, including rules and regulations.
Although there is a policy provision for students’
councils and unions,
students are rarely involved in the decision-making process in their respective
institutions.
140. From primary to tertiary level, children are free to
join clubs, associations and societies in school that enhance their growth
and development. Such clubs in Kenya include Scouting, Girl Guides, 4K
clubs, Environmental Clubs, religious associations and Child
Rights Clubs.
The present education system has, however, stretched the school curriculum
such that there is little time left for
co-curriculum activities, including
clubs. Various organizations have been advocating for children’s opinions
to be taken
into account while taking decisions concerning them. These
organizations, which include KAACR, ANPPCAN and CCF, have conducted several
workshops aimed at sensitizing the communities on the rights of children,
including the freedom of expression. The Convention has
so far not been
incorporated in the curriculum of training teachers and other professionals
working with children. The Children’s
Department and several child
rights NGOs conduct in-house orientation courses on the Convention for
their officers.
141. The training of teachers, social workers and
medical personnel includes components of child growth and development. However,
other disciplines do not include these topics, and interested professionals have
to undergo post-graduate training.
V. CIVIL RIGHTS AND FREEDOMS: ARTICLES 7, 8,
13, 14, 15, 16 AND 37 (a)
A. Articles 7 and 8. Name, nationality
and
preservation of identity
1. Legal and constitutional framework
142. Every
child in Kenya has a right to be registered at birth. The requirements of
articles 7 and 8 of the Convention on the Rights
of the Child are reflected
in Kenyan laws and policies.
143. The law on nationality is contained in sections 8798 of the
Constitution of Kenya. This is complemented by the Kenya Citizenship Act
(Cap. 170, Laws of Kenya). A person can become a citizen of Kenya by
birth, descent, registration or naturalization. Persons born in Kenya become
citizens by birth if either parent is a Kenyan citizen.
Children born outside
Kenya become citizens by descent if both parents are Kenyan citizens. Where
the parents are not married, the child acquires the mother’s
citizenship.
Under section 97 (1) of the Constitution, such a child is entitled to
dual citizenship until he/she is 21 years old. On becoming 21 years
old, he/she must choose whether
to remain a Kenyan citizen. Such a person loses
Kenyan citizenship if he/she does not renounce the other country’s
citizenship
by the age of 23 years. Citizens of Commonwealth or African
countries which allow Kenyans to be registered as citizens can apply
for
registration, but they must have been lawfully resident in Kenya for at least
five years.
144. The Constitution does not refer directly to
children. However, the law provides for their right to special treatment and
protection. The Births
and Deaths Registration Act (Cap. 149, Laws of
Kenya) requires every child, regardless of nationality, to be registered within
six months after birth. The Registrar
of Births and Deaths must maintain a
register of births. The Register must contain the following:
Name of child, including tribal names;
Father’s name (this does not have to be included if the parents are unmarried);
Date of birth;
Sex of the child;
Mother’s name;
Place of birth; and
Mother’s usual place of residence.
This information helps to determine the age, identity and nationality of
the child. It also helps to preserve and protect the child’s
identity.
145. Kenyan children born abroad must be registered. Abandoned
children enjoy the same right to registration. Anyone who finds an
abandoned
child, or is in charge of such a child should notify the registrar within
seven days of finding the child. Parents, guardians,
or the occupier of
the house in which a birth occurs must notify the Registrar. Similarly, those
present during the birth, or those
who are put in charge of a child must notify
the birth to the Registrar. Persons in charge of institutions where a birth
takes place
must give notice of the birth. They must also provide all the
information necessary for registration.
146. Every child must be given a
name at birth. If the name by which the child was registered is changed, the
parent or guardian
may register the new name within two years. The name in
the Register of Births cannot be changed. This protects and preserves the
child’s identity. However, a name can be changed without interfering with
the Register. This can be done through a deed poll
under The Registration of
Documents Act (Cap. 285, Laws of Kenya). If a child’s name is
changed, the parents or legal guardians should countersign the old and new
names. But children who are over 16 years of age must give their consent
to a change of their name by endorsing on the deed poll
in the presence of an
advocate.
147. The name of the father can only be entered in the Register
on the request of both parents, or if they prove that they are married.
A child
born out of wedlock becomes legitimate when the parents get married to each
other. In such a case the father’s name
is entered in the Register. But
the child remains legitimate whether or not this is done. Such a child has
equal rights with children
born in wedlock.
148. The RegistrarGeneral
must keep a register of all adopted children. Adopted children are given an
adoption certificate specifying
the names of the adopter(s). On reaching
18 years, an adopted child is entitled to know who his/her biological
parents are.
2. Context and implementation
149. Under customary practices, different
rites, norms, and other traditional or customary values govern the naming of
children in
Kenya. Each ethnic community has its own naming system. A name
helps to identify an individual in the community. It also helps
to identify the
clan or family to which an individual belongs. A name confers on the clan or
extended family the responsibility
to take care of a child in the absence of the
parents.
150. Registration of births in Kenya was introduced in 1963 in
Nairobi and Nyeri on a pilot basis. Later, compulsory registration
was extended
to other districts in phases until 1971 when registration was made compulsory in
the whole country. The AttorneyGeneral
was initially responsible for the
registration of births. In 1989, the Cabinet transferred the registration of
births and deaths
to a fully-fledged department in the Office of the
President.
151. Registration services have been decentralized to the
district level. This allows easy access for everybody. Registration of
births
is free of charge, and is done at the grassroots level. This makes the process
participatory because the people can identify
with the exercise. It is also
meant to bring the service close to the members of the public, and to limit
transportation costs or
other obstacles caused by distance.
152. Births
occur mostly at home or in health institutions. To ensure registration
immediately after birth, assistant chiefs, who
are in charge of the smallest
administrative units (sublocations), have the duty of registering home births.
Because the sublocations
are geographically small, the assistant chiefs are in
touch with the local people. They also know most of what happens in their
localities. Currently, only hospital staff register births occurring in their
institutions. There are plans to identify traditional
birth attendants and
other suitable community workers to register home births. The communitybased
system of civil registration is
designed to enhance accessibility of the service
to the people. Under this system, all registration personnel/agents in a
district,
including health institutions’ staff and assistant chiefs, are
trained. The Registrar’s
Department has identified trainers of trainers for each district. These perform continuous participatory training activities for new agents when the need arises. They also undergo annual refresher courses.
(a) Measures to make the need for registration widely
known
153. Different
awarenesscreation strategies have been designed for each district taking into
account the diversity of cultures. The
campaigns first target community/opinion
leaders who then sensitize the public. The campaigns are meant to create a
change of attitude
towards registration. To address obstacles related to
sociocultural values, local opinion leaders and community workers are used
for
mobilization and sensitization. The communities are involved in the entire
process through public meetings at sublocational
level. In the past, both the
print and electronic media have been used for awareness campaigns.
(b) Coordination and monitoring of civil registration
154. The registration activities described
earlier are monitored at the head office and district level through District
Civil Registration
Monitoring Committees (DCRMCs) and District Coordination
Committees (DCCs). These committees are composed of personnel from different
government departments, including the provincial administration, the Ministry of
Health, the Central Bureau of Statistics, the Department
of Children’s
Services and the Ministry of Education. Other members of the DCRMC are
women’s groups, NGOs operating
within the district, Church leaders, youth
groups and other interested groups. Because of the uniqueness of Nairobi, where
the assistant
chiefs may not be easily accessible, the City Council coordinates
registration activities. Machinery has also been put in place
to identify
community workers who can be used for registration and community mobilization
and sensitization.
3. Achievements and constraints
155. The emerging practice in some schools to
require proof of registration and immunization has encouraged the registration
of births.
156. It is estimated that only 30 per cent of births
are registered annually. The larger proportion of these registrations occur
in
health institutions. Urban areas have the highest number of registered births.
Although registration is still very low, knowledge
of registration has
increased. The use of assistant chiefs as registration agents has also had a
positive impact. The training
and use of assistant district registrars (ADRs)
who visit the locations has also had a positive impact. With the assistance of
UNICEF,
the Department has acquired motorcycles which the ADRs use. However,
the fluctuating climatic conditions and the poor terrain limit
the number of
visits they can make. The low coverage and low knowledge about civil
registration is attributed to a combination of
factors. These
include:
(a) Infrastructure. The country’s poor infrastructure
makes it hard to reach all targeted children for registration. This
is made
worse by the poor and fluctuating climatic conditions in some areas. Most
districts in North Eastern, parts of Eastern and
a large part of
Rift Valley Provinces are not easily accessible;
(b) Cultural
beliefs. Some cultural beliefs, norms and values do not encourage registration.
Some communities fear revealing the
birth of new babies to strangers because
they fear either witchcraft or breaking a taboo that children should not be
counted. The
nomadic lifestyles and other values and norms of the many
different ethnic groups also impede registration;
(c) Poverty and
ignorance. Famine and drought in most areas have kept people moving in search
of food and water. It is not easy
to reach such people for registration. Low
enrolment in schools also accounts for the poor level of registration. In such
areas
there is a high level of ignorance of both the law, the registration
process, and its relevance and importance. Since there is no
tangible benefit
attached to registration, many people do not see the need to register births.
The situation of destitute and refugee
children poses a major challenge for
registration. Most of these children will not reveal their identity. This
makes it hard to
identify their parents, or to know whether they are registered.
Some of these children were abandoned, and it is difficult to ascertain
whether
they had been registered prior to abandonment. It is also very hard to mobilize
street children who avoid formal institutions
and requirements;
(d) Poor
health facilities. Because of poor health facilities and the introduction of
cost sharing in health services, many mothers
deliver at home. Births occurring
at home tend not to be registered. Although health factors partly explain the
high infant mortality
rates, cultural explanations account for hidden births.
The sparse distribution of health facilities also plays a major role in
low
registration;
(e) Perception of assistant chiefs. The effectiveness of
assistant chiefs is hampered because they are seen as law enforcement officers.
Because of their poor pay, assistant chiefs also see registration as an added
burden for which they are not compensated;
(f) Inadequate financial and
human resources. Registration activities are hampered by diminishing funds from
the Treasury and less
external funding;
(g) Lack of computerization.
The Government has yet to develop a computerized system for civil registration.
Without this, it is
difficult to monitor progress and provide the necessary
statistics for planning.
B. Article 13. Freedom of expression
1. Legal and
constitutional framework
157. The
Constitution of Kenya protects the right of all persons to the freedom of speech
and expression. The law may impose restrictions on the exercise
of these
freedoms in certain cases, for example:
(a) In the interests of defence,
public safety, public order, public morality and public health;
(b) To
protect the reputations, rights and freedoms of other persons;
(c) To
protect the private lives of persons concerned with legal
proceedings;
(d) To prevent the disclosure of confidential
information;
(e) To maintain the authority and independence of the
courts;
(f) To regulate the technical administration or the technical
operation of telephony, telegraphy, posts, wireless, broadcasting or
television;
(g) To impose restrictions on public officers or persons in
the service of a local government authority who have done things that
are not
justifiable in a democratic society.
158. Restrictions limiting the
freedom of expression are contained in several statutes such as the Penal Code
(Cap. 63, Laws of Kenya)
(on criminal defamation), the Defamation Act
(Cap. 36, Laws of Kenya), the Copyright Act (Cap. 130, Laws of Kenya)
and the Official
Secrets Act (Cap. 187, Laws of Kenya). Although the
restrictions limit the exercise of freedom of speech and expression, they also
protect an individual’s reputation. Any person may institute an action
and claim damages for injury to his/her reputation.
However, things said during
judicial proceedings by those taking part (judges, magistrates, commissioners,
advocates, assessors,
witnesses or parties to the proceedings) cannot be the
subject of a suit. The Defamation Act forbids the publication of blasphemous,
seditious or indecent matter.
2. Context and implementation
159. Traditionally, children were allowed
various means to express themselves that did not interfere with cultural norms.
These included
songs, games and dances, and were especially encouraged during
socialization. Drama, music and arts festivals have become national
events
which bring schoolchildren together to compete for prizes. These activities are
complemented by other activities like the
production of school magazines. State
and privately owned television stations provide opportunities for children to
participate
in debates on issues of national and international importance, and
those touching on their own welfare. The Government encourages
teachers to
listen to the views of children. Despite all this, student strikes have been
reported in a number of Kenyan schools.
These usually result from lack of
adequate channels through which children can express their grievances. These
strikes have led
to the disruption of learning activities in the affected
schools.
160. Although there is overwhelming evidence that Kenyan
children have the freedom to express themselves, a lot needs to be done to
establish the degree to which children’s views are heard within learning
institutions and the family. There is a need to examine
the extent to which
children’s views are taken into account in decisions affecting them such
as the type of punishment and
how funds are spent.
161. The Children Bill
(1998) provides that in matters of procedure affecting a child, the child should
be able to express an opinion
and to have that opinion taken into account,
depending on the age and maturity of the child. This will ensure that children
are
allowed as much freedom as possible to express themselves, especially on
matters affecting them. This requirement is consistent
with the Convention on
the Rights of the Child.
C. Article 14. Freedom of thought, conscience and religion
1. Legal and constitutional framework
162. Section 78
of the Constitution of Kenya guarantees freedom of religion and conscience. It
also recognizes the existence of indigenous African religions and practices
which may be different from Christian or Islamic practices. Section 66 of
the Constitution provides for the establishment of cadis’ courts. These
are presided over by cadis who must be Muslims with the necessary knowledge
of
Islamic law. Cadis’ courts deal with matters relating to personal status,
marriage, divorce or inheritance in proceedings
in which all the parties are
Muslims. The Penal Code further protects the freedom of religion. It
makes it an offence to insult
the religion of any group of persons. The Law of
Succession Act (Cap. 160, Laws of Kenya) exempts Muslims from its
provisions in
matters of intestate succession.
2. Context and implementation
163. These elaborate constitutional and legal
provisions on the freedom of thought, conscience and religion make it clear that
Kenya,
which has diverse ethnic, racial and religious groups, recognizes the
importance of accommodating diverse cultural and religious
beliefs. The
Government is committed to creating an environment where religious tensions do
not threaten national unity and where
everyone is free to practise their
religion.
164. Both adults and children are entitled to the freedom of
thought, conscience and religion. However, parents and guardians nurture
children in their respective religions when they are still young. On coming of
age, children can choose to follow their parents’
faith or adopt another
religion altogether.
165. Many public schools in Kenya, especially
secondary schools, are sponsored by religious organizations. These schools
basically
offer secular education in keeping with the official curriculum. No
undue emphasis is placed on religious education in such institutions.
Few
cases are reported of children from different religious faiths being forced
to adhere to the faith of the denomination sponsoring
the school.
Religion is not a condition of entry into a school. A few cases have, however,
been reported of schools forcing pupils,
especially girls, to adopt a
particular dress code which confirms to the norms of the sponsoring
religion.
166. In Kenya, religious freedom has in some instances
promoted a number of practices that violate enjoyment of individual rights
and
freedoms. This has mainly been the case with certain religious sects. Some
beliefs and practices of these sects, such as prohibition
of medical treatment
and promotion of female circumcision, do not conform to the rights and freedom
of certain groups like children
and women. Such beliefs and practices therefore
need to be modified by legislation. The contradictions between the rights and
freedoms
of the individual and the freedom of thought, conscience and religion
continue to attract attention and remain a sensitive issue
in the
country.
D. Article 15. Freedom of association and peaceful assembly
1. Legal and constitutional framework
167. The Constitution
of Kenya protects the freedom of assembly and association. This is the right of
individuals to assemble freely, associate with other
persons, and particularly
to form or belong to trade unions or other associations to protect their
interests. This right is, however,
subject to some restrictions. These
include:
(a) Protection and defence of the republic, public safety,
public order, public morality or public health, and for the protection
of the
rights and freedoms of other persons;
(b) Imposing restrictions upon
public officers, members of a disciplined force, or persons in the service of a
local government authority;
(c) The regulation of the activities and
running of trade unions.
168. Restrictions on freedom of assembly and
association must be exercised in a manner which is justifiable in a democratic
society.
Legal reforms adopted in 1997 removed the requirement for those
assembling to obtain a licence from the administration. People
wanting to
demonstrate, hold rallies or assembly for peaceful purposes are now only
required to give notice to the local police so
that security can be
provided.
169. The Kenya Scouts Act (Cap. 219, Laws of Kenya) and the
Girl Guides Act (Cap. 220, Laws of Kenya) provide for the establishment
of
the Kenya Boy Scouts Association and the Kenya Girl Guides Association. The
statutes further protect the activities and interests
of these associations.
They state that these associations are not government agents, or under
government direction, but are run
exclusively by their
members.
170. There is no restriction in Kenyan law on the right of
children to assemble and associate, but such association or assembly is
subject
to the general restrictions mentioned earlier.
2. Context and implementation
171. Children in primary and secondary schools
are encouraged to join extracurricular activities such as academic clubs and
societies,
debates, exhibitions, science congresses, journalistic clubs, music,
dance and drama, sports and games. Children join one or more
of these
activities depending on their interests, talents and capabilities. The clubs
and societies are free to organize activities
and competitions with neighbouring
schools.
172. During all National Day celebrations, children feature
prominently in all sorts of activities to express their patriotism, needs
and
concerns. These include environmental degradation, child abuse and the plight
of street children. Some national days such as
the Day of the African Child and
Universal Children’s Day focus specifically on the child. Such days are
celebrated through
weeklong activities by, and for, children. During such
celebrations, peaceful demonstrations and parades by children are
common.
E. Article 16. Protection of privacy
1. Legal and constitutional framework
173. Section 76 of
the Constitution of Kenya protects individuals from arbitrary search of their
person or property, or the unlawful entry by others into their premises.
However, the Constitution allows for laws which might limit such protections.
Such cases include:
(a) When it is in the interest of defence, public
safety, public order, public morality, public health, town and country planning,
the development and utilization of mineral resources, or the development or
utilization of any other property in order to promote
the public
benefit;
(b) When such laws are required to promote the rights or
freedoms of others;
(c) In order for an authorized officer of the
Government of Kenya, or of a local government authority, or a corporate body
established
by law to inspect premises for the purpose of taxes, rates or dues,
or for the purpose of carrying out work concerned with government
property that
is lawfully in such premises;
(d) For enforcing the judgement or order
of a court in civil proceedings, or an entry by order of a
court.
174. Limitations to the rule protecting privacy must be made in a
manner that is reasonably justifiable in a democratic society.
They are also
permitted if the person whose right is infringed consents. Section 79 of
the Constitution makes it unlawful for anyone to interfere with an
individual’s freedom to receive and send correspondence. The Penal Code
provides for the punishment of anyone who destroys, opens or interferes in any
way with mail or any matter sent through the post
office. Some other
legislative measures complement and implement this constitutional position
protecting the right of privacy.
These include the Penal Code which makes it a
criminal offence to publish any false information about a person; the Defamation
Act
which allows one whose reputation has been damaged maliciously to institute
civil proceedings in court for redress, and the Evidence Act (Cap. 80, Laws
of Kenya) which provides various safeguards against the infringement of the
right to privacy. The Criminal Procedure
Code (Cap. 75, Laws of Kenya)
extensively limits the power of the police to arrest or search a person or
property without a warrant
issued by a magistrate. This ensures that an
individual is not arbitrarily deprived of the right to privacy.
175. The
Police Act (Cap. 84, Laws of Kenya) allows the police to arrest and search only
on reasonable suspicion. But in general
cases, a warrant will be required.
Individuals are entitled to demand to see the warrant authorizing a police
officer to search
their premises.
176. Section 53 and 55 of the Public
Health Act (Cap. 242, Laws of Kenya) protects the right to privacy of those
suspected of having
venereal diseases by requiring that such persons be treated
in private. Offences such as assault, indecent assault, malicious damage
to
property and abduction are meant to safeguard the personal privacy of
individuals and non-interference with their honour and property.
These
provisions are universal in application and cover children too.
2. Context and implementation
177. These provisions apply to all irrespective
of age. Therefore, children have the same entitlement to privacy as adults.
Restrictions
on the right to privacy are expressly authorized by the
Constitution.
178. Some school authorities are known to interfere with
the privacy of the children under their care in order to ensure discipline.
They intercept and confiscate correspondence sent to, or by, such children. No
research has, however, been carried out to determine
the prevalence of this
practice. Children from poor families often do not enjoy the right to privacy
because in many cases the entire
family shares one room. The 1998 KDHS reported
that 47 per cent of families in rural areas and 29 per cent
in urban areas shared
one room. This is because housing is relatively expensive
in Kenya. It forces many families in urban centres into slum dwellings
where
their privacy, that of the family, and particularly that of the children is
greatly compromised. Efforts are being made to
develop a policy framework that
addresses the housing needs of the poor.
179. There are incidents of
law enforcement agencies interfering with the right to privacy contrary to
the law. Most of these cases
are not remedies because of the victims’
ignorance. Where they are children, they lack someone to take up the case on
their
behalf. It is also evident that there is likely to be a lack of
privacy in overcrowded children’s institutions.
F. Article 17. Access to appropriate information
1. Legal and constitutional framework
180. Section 79 of
the Constitution of Kenya protects the freedom to receive ideas and information
without interference. The main objective of government policy on
information is
to ensure that the media, in addition to fulfilling their traditional roles to
enlighten, educate and entertain the
public, serve as a catalyst for
nation-building and socio-economic development. A number of statutes
regulate and facilitate access
to information in both print and electronic
media. The Kenya Library Services Board established by the Kenya National
Library Service
Board Act (Cap. 225, Laws of Kenya) has a wide mandate to
promote, establish, equip, manage, maintain and develop libraries in Kenya.
The
Board also plans and coordinates library, documentation and related services in
Kenya. It advises the Government, local authorities
and other public bodies on
all matters relating to library, documentation and related services. It
participates and assists in campaigns
for the eradication of illiteracy,
stimulates public interest in books, and promotes reading for knowledge,
information and enjoyment.
It also acquires books produced in and outside
Kenya, and such other materials and sources of knowledge necessary for a
comprehensive
national library.
181. The Books and Newspapers Act (Cap. 111, Laws of Kenya) requires all
books and newspapers to be registered with the Registrar
of Books and
Newspapers. Any person who prints or publishes a newspaper must deposit a bond,
which may be used to pay damages or
costs
awarded for any libel published in
the newspaper. The Minister may, however, exempt a printer
or publisher
from this requirement. Newspapers published by any school registered under the
Education Act (Cap. 211, Laws of Kenya) for distribution solely among students
and their parents are exempted from executing a bond.
182. The law also
regulates the cost and content of books. The Kenya Literature Bureau is
empowered by the Kenya Literature Bureau
Act (Cap. 209, Laws of Kenya) to
promote the production, printing and distribution of books of a literary,
educational, cultural
or scientific nature, and to make educational materials
available to schools at reasonable prices. The electronic media, including
radio and television, are also facilitated by statutes such as the
Kenya Broadcasting Corporation Act (Cap. 221, Laws of Kenya) and
the Kenya
Posts and Telecommunications Corporation Act (Cap. 411, Laws of Kenya). The
Kenya Broadcasting Corporation Act establishes
the Kenya Broadcasting
Corporation (KBC). The KBC is required to provide independent and impartial
broadcasting services for information,
education and entertainment in English,
Ikiswahili and other languages. It also has a wide mandate to
produce, manufacture, purchase,
acquire in any other way, or dispose of
films, gramophone and other mechanical records, tapes, wires and perforated
rolls through
which words, visual images or ideas are mechanically or
electronically produced or presented. The Corporation may also collect news
and
information in, or from, any part of the world in any manner that is fit. It is
also authorized to license broadcast-receiving
apparatus and dealers and
repairers of such sets.
2. Context and implementation
183. Formal information transmission mechanisms
are dominated by the print and electronic media. By 1992, 55 per cent
of Kenyan families
owned radios while 7 per cent owned televisions
(Welfare Monitoring Survey WMS II).
184. There has been a dramatic rise
in the consumption of electronic media transmitters (television and radios). As
figure 4 shows,
between 1992 and 1996, the recorded purchase of radios and
televisions increased from 6.2 per thousand to 38.3 per thousand of the
population for radios, and from 0.91 per thousand to 7.7 per thousand for
televisions. This coincided with a relative decline in
consumption of the
print media with sales of daily newspapers declining from 15.2 per thousand
in 1992 to 9.3 per thousand in 1996.
The data also show a relative decline in
the share of Kiswahili publications, from 20.8 per cent to 12.0 per cent of
daily newspapers,
and from 18.4 per cent to 7.4 per cent of other newspapers.
Economic liberalization has vastly expanded the choice for Kenyans with
respect to formal print and electronic media. It can be argued that
liberalization has led to a shift from print to electronic media.
Figure 4. Consumption of print and electronic media
Source: Economic Survey,
1997.
185. Traditionally, Africans have used a variety of non-formal
modes of communication, such as drums, folk media, popular theatre
and
interpersonal contacts. Even in the modern day, when the mass electronic and
print media dominate, these traditional forms of
communication still play a
significant role. Non-formal communication methods have a role to play because
they overcome the barriers
of illiteracy, and offer entertainment alongside the
spreading of the message. They also use culturally acceptable techniques and
encourage community participation (Khasiani, 1995).
186. For these
reasons, development agencies have recognized non-formal communication methods,
especially folk media and popular theatre,
as powerful tools for initiating
community motivation and mobilizing support and participation in programmes.
Development agencies
have thus been able to use culturally based performing arts
and other communication methods to promote development messages passed
through
other formal channels (Khasiani, 1995).
3. Existing or planned mechanisms for coordinating
policies
for children and monitoring the Convention
(a) Television
187. KBC
television transmits 260 hours of programme material a month. It
devotes 470 minutes a week to children’s programmes.
This
amounts to 15 per cent of the week’s programming, and targets
children between the ages of 3 and 18. Programmes focus
on issues related to
the youth, parent-child relationships, reproductive health, peer pressure, and
emerging social trends. The
format of the programmes includes talk shows and
panel discussions where there is free exchange of ideas and mature
debate.
188. Programmes targeted for the age category 3-13 are mainly short
skits, dance, story time and magic shows. A total of 38.76 per
cent of the
programmes are educational, and include a school quiz and programmes on
environmental awareness. The content is modelled
on the curriculum of the 8-4-4
system of education.
189. KBC has begun a sign language facility for some
children’s programmes to involve deaf children. The participation of
children
with disabilities on radio and television programmes has increased. The
KBC is guided by the internationally accepted Children’s
Television
Charter, adopted in Munich in 1995. This Charter promotes the right of the
child to seek, receive and impart information
and ideas of all kinds, through
the media of choice. Over the last two years KBC television has begun a new
initiative where talented
children are identified through auditions, and given
necessary training in scripting and presenting children’s programmes.
KBC provides the studio facilities, production personnel and free airtime
for broadcasting the programmes. A second television
channel linked to the
Electronic Media Network (M-NET) of South Africa runs a children’s
broadcasting service, Kids Television
(KTV), and is linked via satellite to KBC.
The Kenya Television Network (KTN) began broadcasting a free unencrypted UHF
service in
February 1990. This is a 24-hour television service viewed
by 86 per cent of all households with televisions in Nairobi.
The current
service has a wide mix of entertainment programmes. Twenty per cent
of the week’s total broadcast hours are devoted to children’s
programmes. Owing to the limited reach of its transmission signal, KTN is an
urbanbased, upmarket medium. In order to increase
the diversity of information
disseminated by the broadcast media, the Government has allocated additional
broadcast licences to Stella-vision,
Citizen TV, and Nation Media Group.
The Ministry of Information and Broadcasting is responsible for allocating
licences in a way
that ensures the widest possible diversity of programming.
All licence holders are required to consider the needs and interests
of the
Kenyan people in a multicultural society.
190. In addition, there are
three multi-channel cable television stations broadcasting in English, Arabic,
French, Gujarati and Hindu.
These stations broadcast 12 hours every week.
There is no provision for local news and children’s programmes.
191. Advertisements and foreign programmes may be booked on all
television stations subject to the Censorship Committee’s approval.
This
Committee vets all material before transmission. Proposed radio and television
scripts or ready programmes are submitted to
the Censorship Committee for
approval. Guidelines for acceptance include relevance to truth, maintaining a
sense of decency compatible
with the Kenyan culture, and the promotion of
political harmony. Tobacco and alcohol advertising are not allowed in the
breaks on
news broadcasts on television and radio.
192. The Government
actively encourages the international exchange of social and cultural
information. The establishment of a National
Commission for UNESCO has further
facilitated access to international funding and expertise for cultural
participation and development.
In addition, Kenya is a member of the Union of
Radio and Television Networks of Africa (URTNA) and houses its Programme
Exchange
Centre. This is a clearing house that facilitates the exchange of
radio and television programmes throughout member States. The
programmes
include dramas, documentaries, musicals and children’s cultural
programmes. Other television stations involved in programme
exchange include
Trans-Atlantic Television (Transtel), the Cable News Network (CNN), the
British Broadcasting Corporation (BBC) and
Deutsche Welle Television.
(b) Radio
193. There are two national services in English
and Kiswahili, and a regional service, which broadcasts in 17 local languages,
that
cover the rural areas. The Government has modernized its radio network by
upgrading old transmitters and constructing eight new
ones. By the end of the
modernization period (1999) there will be 16 radio transmitters across the
country raising signal receivership
of the population to 95 per cent.
National estimates show that there are close to 4 million radio sets in the
country. Currently,
about 90 per cent of the country is covered by radio.
About 92 per cent of Kenyan households have one or more sets in working
order.
194. Radio currently transmits programmed material amounting to
2,072 hours a month. Children’s programmes on the regional
service
provide a unique opportunity to speak to children in their own mother
tongue. In any particular week, children’s programmes
consume 135
minutes of the Swahili service, 240 minutes of the English service, 355 minutes
of the Western service, 265 minutes of
the Central service, and 300 minutes of
the Eastern service.
195. The regional service operates three different
radio services: Central service, which broadcasts in Kikuyu, Kikamba, Kimeru
and
Hindustani; Eastern service, which broadcasts in Somali, Boran, Rendille,
Burje and Turkana; and the Western service, which broadcasts
in Luo, Kisii,
Luhya, Kalenjin, Kuria, Teso and Pokot.
196. The Kenya Institute of
Education in conjunction with the KBC has run the educational media service for
more than six years.
This is a schools radio broadcast service serving primary
and secondary schoolchildren in the 8-4-4 system of education. Airtime
is
provided free of charge, and teachers present programmes with pupil
participation in mathematics, English, science, arts and crafts,
and social
studies.
197. There has been a proliferation of FM radio stations,
confined largely to Nairobi and Mombasa, and largely geared towards
entertainment
and advertising. There are no indications that the concerns of
children and youth will be addressed on these channels.
(c) Film
198. Static cinema. There are 43 cinema
theatres operating in Kenya, over 30 of which are located in the urban areas.
These are
sometimes referred to as “static” cinemas to distinguish
them from the mobile cinema vans. Combining colour, movement
and sound to a
captive audience, cinema is a powerful medium that caters for the young
up-market population with a disposable income.
199. The Kenya Film
Censorship Board vets all films shown in all cinema theatres in Kenya. A large
majority of the films (62 per
cent) are for general exhibition, and include
action, adventure and drama. Certain categories of films require proof of age.
Films
centred on children’s concerns are rarely screened in cinema
theatres. For young children, participation in cinema theatres
is confined
largely to charity premieres of upcoming Walt Disney films. A major
disadvantage of this channel in the imparting of
information is its relatively
low reach and high production costs.
200. Mobile cinema. During the
first decade of independence, film production activities of the Ministry of
Information and Broadcasting
remained essentially an integral part of television
programme production services. In 1967, Kenya was among the first African
States
to establish public control over the importation and distribution of
films through the establishment of the Kenya Film Corporation.
201. In
1972, the Ministry of Information and Broadcasting took a major step in the
development of film production services by establishing
a separate 16 mm
documentary Film Production Unit. This was followed in 1975 by the
establishment of the Kenya Newsreel to produce
35 mm news documentaries. A film
school was established at the Kenya Institute of Mass Communication in 1976. It
trains professionals
in all technical aspects of film-making. This has further
enhanced the continuing public commitment to the development of film production
resources in Kenya. Among the services offered include the production of news,
feature films, and commercial films and, most importantly,
the screening of
documentary films for all school-going children in all provinces of Kenya.
Mobile cinema vans carrying projectors
and screens tour monthly on regular
itineraries, screening films in all districts in Kenya. The productions
screened are a combination
of documentary, religious and feature films from the
East African region. The films cover diverse themes relating to
children’s
cultural identity, language, values, respect for the natural
environment and career guidance.
(d) Non-governmental organizations
202. Non-governmental organizations working
with and for children produce their own magazines and newsletters to which
children are
encouraged to make their own contributions and express their
thoughts and feelings. These include magazines and newsletters published
by the
KAACR which publishes a magazine “The Child”, ANPPCAN, CCF, Action
Aid, the Netherlands Development Organization,
SNV and the Child Welfare Society
of Kenya (CCWSK). The Girl Child Network (GCN) under the auspices of CARE Kenya
publishes “Binti”.
The various publications are made available to
children free of charge. The organizations also exchange these publications
amongst
themselves within and outside the country.
203. Churches and
religious organizations have also played a role in producing and distributing
children’s and youth publications.
Most of these are produced at the
local church and are usually in English, Kiswahili, or the local language of the
particular community.
(e) Children’s magazines
204. There are seven children’s magazines
published by independent media groups primarily catering for urban primary
schoolchildren.
These include: “Rainbow”, “Picha
Hadithi”, “New Guinea”, “Watoto”,
“Sparkle”
and “Pied Crow”. These magazines use the
medium of comic books to address serious themes such as retelling African folk
tales and abridging already published serious novels by local and international
writers. The educational animated magazine “Pied
Crow” was until
1997 distributed free of charge to all primary schools in Kenya. The magazine
was published and funded by
CARE Kenya, an international NGO. The Daily
Nation has a weekly supplement for children.
(f) Children’s publishing
205. The British Council, in partnership with
the East African Educational Publishers, Longhorn Kenya and the Cooperative Bank
of
Kenya launched “Voices”, a unique project that gives children in
Kenya an opportunity to write and publish short stories.
Over 20 children have
published their short stories on topical issues. More recently, three Kenyan
child authors attended the Zimbabwe
International Book Fair.
206. The
Foundation for the Promotion of Children’s Science Publications in Africa
- Kenya Chapter (CHISCI) has been actively
involved in facilitating, and
promoting a life-long reading and book buying culture among Kenyan children.
This has been achieved
through the hosting of an annual book fair. This is a
child-centred event with creative and engaging activities for children to
foster
a reading, writing, science and spiritual culture.
207. The introduction
of reading facilities known as the Reading Tent within the book fair was
pioneered by CHISCI and is now recognized
as an essential component of book
trade promotion. Other book fairs in Africa have emulated this concept and
taken the initiative
to deliberately target children as important visitors to
the fairs. This cultivates the quality and attitudes of the future
market.
208. Deliberate efforts are under way to establish a National
Book Production Plan. This will control book imports, so that only
those
required for use in higher courses and which it is impractical to produce
locally will be imported. Besides aesthetic and
educational considerations, a
National Book Plan will supply books within the economic means of the Kenyan
People.
(g) Library services
209. The Kenya National Library Service
organizes a wide range of activities for children. It also provides libraries
at more than
20 locations which contain children’s sections. These
include annual book fairs, national book weeks, Braille library services
for the
blind, community library and Internet services. A camel library catering for
the needs of nomadic communities operates in
arid and semi-arid regions of the
country.
(h) Public information services
210. In the effort to ensure the wide
dissemination of news and information from national and international sources,
the Ministry
of Information and Broadcasting has public library services in
Nairobi and in 12 provincial and district information offices. There
are
children’s literature reading sections where a wide selection of books by
African authors are available. These services
cater for the great thirst for
information, education and entertainment among primary schoolchildren,
especially during school vacations.
(i) School textbooks
211. The Government is aware and concerned
about the poor availability of appropriate children’s books for academic
instruction
and general information. With regard to instructional materials,
textbooks are scarce and expensive, especially at primary level.
It is
estimated that the Government and community resources supply only 25 per cent of
the total instructional materials required.
Supplementary reading materials are
rare, and whatever is available is largely unrelated to the environment and
lifestyle pupils
experience in their communities.
212. Low-cost
techniques for printing textbooks have been identified, and a textbook unit is
to be set up. The private sector has
been sensitized to enhance its
capacity to publish and print books. Following the long-running advocacy
campaign by private publishers,
donors and other stakeholders in the education
sector, two policy documents on textbooks for primary schools were launched in
September
1998. These allow private publishers to access the school market,
unlike in the past when State publishers had a monopoly in the
publication and
supply of textbooks. The policy documents explicitly point out that pupils will
now be required to buy one course
book per subject in any class. This will
reduce the cost for parents who were previously required to buy many titles,
which the
children hardly had time to read.
4. Measures to make the provisions of the Convention widely known
(a) Rural press
213. There are 11
rural newspapers published by the Ministry of Information and Broadcasting.
They are intended to boost literacy
skills by providing reading materials on
themes topical to the local population. The papers are published in Kiswahili.
They attract
readership among rural populations of Central, Coast, Rift Valley,
Western, Eastern, NorthEastern and Nyanza provinces.
214. The Ministry of
Information and Broadcasting in 1998 held a series of training workshops
facilitated by the UNICEF Kenya country
office to train its field staff in the
rural press on the interpretation of the Convention on the Rights of the Child.
This was
aimed at making the Convention part of the content of the rural
newspapers. Consequently, there is a bimonthly pullout in the 11
rural papers
on different articles of the Convention.
215. The Kenya Association of
Journalists for the Child (KAJOC) was launched in 1997 for the purposes of
making the provisions of
the Convention on the Rights of the Child widely known.
In conjunction with the Thomson Foundation of the United Kingdom, it has
conducted a series of training workshops to advocate a heightened emphasis on
children’s rights and ensure that these are covered
in the print
media.
(b) Non-governmental organizations
216. The CCF produced an abridged pictorial
version of the Convention on the Rights of the Child in English and
Kiswahili in 1992.
This has been distributed to all governmental
and nongovernmental organizations dealing with children and in schools,
especially
those in CCF’s areas of operation. CCF has 45
projects evenly distributed across the country. Over 12,000 copies have
been
produced and distributed. The KAACR simplified the Convention on the
Rights of the Child into the four basic rights of survival,
development,
protection and participation in 1993. That document is distributed through
children’s workshops and Child Rights
clubs, which create awareness on
child rights in schools and the community through education and community work.
In total, 42 clubs
have been established in Kisumu and Nairobi.
5. Constraints
217. The existing legal framework inadequately
addresses the content of programmes of both the electronic and print media to
ensure
that they are appropriate for children. With respect to the moral
content of information imparted to adults and children alike,
the Penal Code has
provided safeguards. It is an offence to make, produce or possess obscene
writing, drawings, prints, paintings,
printed matter, pictures, posters,
emblems, photographs, films or other objects tending to corrupt morals. This
provision may be
invoked to counter the production and distribution of
pornographic material. There are no studies to indicate its effectiveness
or
otherwise in dealing with obscene material.
218. There are definite
difficulties in regulating private avenues of communication such as those
facilitated by the Internet, home
videos and various computer
networks.
219. There are, however, recent legislative developments aimed
at liberalizing the communications sector, among other objectives.
The Kenya
Communications Bill (1997) pays particular attention to the content of
communications in the print and electronic media.
The term
“content” includes radio and TV programmes such as news,
documentaries, films, plays and educational and entertainment
materials.
220. The regulatory framework created by the Kenya
Communications Bill on matters of content may have far-reaching consequences
when
the Bill finally becomes law. It provides stiff penalties for the offence
of distributing pornography, which is defined to include
the distribution of
“indecent” materials. Clearly, it would have an impact on the
requirements of article 17 of the
Convention on the Rights of the Child. As it
is, the question of how effectively to regulate the content of information,
especially
from international sources, in the best interests of the child
remains unanswered.
221. The overloaded 8-4-4 curriculum curtails the
wholesome development of all children by limiting their leisure and recreation
time.
It also creates psychological pressure for children. Children in need of
special protection are particularly vulnerable. The learning
of children living
in poverty is also affected by the absence of equipment and workshops required
for effective participation in
the current system.
222. The needs of
communities, curriculum content, and the structure of education are not
compatible. For example, the curriculum
does not respond to the diverse needs
of Kenyan children, especially those from arid and semi-arid lands (ASALs),
whose environment
and experiences are different, and children in need of special
protection. The rigid and centralized
structure of education also makes school participation difficult for those
from agricultural and sedentary communities. The content
of learning materials
and the teaching-learning process itself, especially in terms of gender and
cultural sensitivity, is problematic.
Textbooks and other learning resources
often ignore the experiences of the girl child and children from minority
groups. This hinders
their cognitive and psychological development. In science
and technology subjects in particular, female marginalization is
glaring.
223. The facilities for learning are also not sensitive to the
needs of some categories of the population, particularly disabled people.
Their
participation in learning is therefore limited. Outside school, very few
children have access to television, radio or film
as sources of education. This
is because these are usually urban-based facilities. The situation is worse for
poor communities
and those in ASAL areas. Funding for local film productions to
service the mobile cinema network is limited. There is a need to
commercialize
this service to generate funds to enable the Ministry to reach more
children.
G. Article 37. Torture
1. Legal and constitutional framework
224. Section 74 (1)
of the Constitution of Kenya states that: “no person shall be subjected
to torture or to inhuman or degrading punishment or treatment”.
It also
provides for exceptions to the prohibition against torture and inhuman or
degrading punishment. It states that punishment
inflicted according to the law
shall not be considered to contravene this section.
225. The Children and
Young Persons Act (Cap. 141, Laws of Kenya) contains the law relating to the
protection and discipline of children.
It sets out the various methods of
dealing with child offenders. These methods are meant to ensure that no
children offenders are
punished in a way that is not appropriate to their age
and welfare.
226. Section 25 (2) of the Penal Code provides that the
death sentence shall not be passed on a person who was under 18 years at the
time of committing the crime. A child who is proved to have committed murder
may be detained at the President’s pleasure in
a place and under
conditions the President may direct.
227. Section 27 of the Penal Code
provides for corporal punishment for male child offenders. Section 23
of the Children and Young
Persons Act empowers a person having care
or control of a child, such as a parent or teacher, to administer
reasonable punishment
to the child, but makes it punishable for any person in
whose care and custody a child has been left to wilfully assault, ill-treat,
neglect, abandon or expose the child to suffering or injury to health. Any
person who knowingly or wilfully causes such a child
to become, or creates
conditions which make a child to be in need of protection is liable to
punishment. The Education Act (Cap. 211, Laws of Kenya) permits corporal
punishment but restricts the manner of its infliction, the persons allowed to do
so, and
the instances in which it can be inflicted. These restrictions
are meant to curb abuse of corporal punishment, its excessiveness,
and to
safeguard the dignity of the child being punished.
2. Context and implementation
228. Torture, cruel and inhuman punishments
have caused a lot of concern in Kenya. While corporal punishment may be viewed
by a section
of the society as cruel and inhuman treatment, many people consider
it necessary in order to discipline wayward children. Children
in schools are
still subjected to corporal punishment, and parents and guardians use it
frequently. Cases have been reported of
deaths and serious injuries resulting
from corporal punishment. These have been punished in accordance with the law.
Cases have
also been reported of police and other law enforcement officials
using excessive force and methods amounting to torture and cruel
and inhuman
treatment on children, especially street children. The Government discourages
these practices by prosecuting any officer
found guilty of unlawfully subjecting
a child to such treatment.
229. Children in custody and other
correctional centres have been reported to undergo torture from those in whose
charge they have
been left. Cases of parents and guardians using excessive
force to discipline children, subjecting them to inhuman treatment like
burning
their hands for petty indiscipline have been reported to the Children’s
Department, the police and other government
authorities. They are punished
under the normal criminal law and under the Children and Young Persons Act.
Teachers who infringe
the rules regulating the infliction of punishment on
pupils are disciplined according to the Teachers Service Commission Act
(Cap.
212, Laws of Kenya) and the by-laws created under it.
VI. FAMILY ENVIRONMENT AND ALTERNATIVE CARE:
ARTICLES 5, 9, 10, 11, 18, 19, 20, 21, 25
A. Article 5. Parental guidance
230. The
Kenyan Government recognizes the important role of families in raising children.
Some statutory provisions recognize parents’
responsibility and rights
over children. Under section 17 A of the Children and Young Persons Act (Cap.
141, Laws of Kenya), a court
dealing with a child needing protection or
discipline may consider returning such a child to the parents or
guardian.
231. Under the Guardianship of Infants Act (Cap. 144, Laws of
Kenya), the surviving parent has the right to be the guardian of a child. The
court may also appoint a guardian
if the dead parent did not do so, or if the
testamentary guardian also dies or refuses to act. The court may also appoint a
guardian
if both parents are dead. In any case, both parents have the sole
right to appoint a guardian for their child.
232. Under the Penal Code
(Cap. 63, Laws of Kenya) it is an offence to take an unmarried girl under 16
years from the custody of her
parents. The court will only remove a child from
the custody or care of a parent who is guilty of cruelty and neglect of the
child.
There are penalties for parents who fail to take their duties and
responsibilities towards their children seriously.
233. According to the
Adoption Act (Cap. 143, Laws of Kenya) a court may not make an adoption order
without the consent of either
or both parents of the child to be adopted.
1. Context and implementation
234. In traditional Kenyan society, children
belonged to the whole community. They were valued because they ensured the
continuity
of the community and lineage, and ensured care for parents in old
age. Survival, development and protection were undertaken collectively
by the
extended families in the best interest of all members, especially children.
However, changes, particularly modernization,
migration and urbanization, have
led to the disintegration of the extended family. The new family forms, which
include the nuclear
family, female- and childheaded families, and those headed
by grandparents, are vulnerable. They fail to provide for the health,
education, sanitation, shelter and water needs of children. This compromises
the best interest of the child. The increasing population
of children in need
of special protection is evidence of this.
235. As figure 5 shows
extended families constitute 9 per cent of the families. Nuclear families with
both spouses present constitute
the largest number of families at 44 per cent.
Nuclear families with the mother as single head constitute 31 per cent, while
nuclear
families with the father as single head constitute 8 per cent. Although
their numbers are relatively small, there also exist families
headed by
grandparents.
Figure 5. Percentage of families of various
types
Grandparents
(head) Child-headed
3 %
families
5 %
Nuclear with single Extended
parent (father) 9 %
8 %
Nuclear
single
parent (mother) Nuclear with both
31 %
spouses present
44 %
Source: A Survey of Children
in Especially Difficult Circumstances in Kenya - November
1997.
236. Socio-economic factors also affect the family. This has given
rise to non-conventional families. However, some aspects of the
extended family
persist. The extended family typically bears the burden of high dependency. It
also acts as an informal insurance
system, or mutual support mechanism.
Traditionally, adult members of the extended family prepared children for adult
roles. They
had full authority to require any child to perform simple duties.
This authority was not usually abused. Grandparents in particular
were
important agents of socialization in
traditional African society. They were instrumental in introducing young
people to important matters such as the husband-wife relationship,
sexual
behaviour, larger social roles, values and traditions. They did this through
story-telling, proverbs and songs. After the
age of 10, grandmothers were
closely involved with female grandchildren and grandfathers with male
grandchildren.
237. Peer or age groups were also important socialization
agents. They were usually segregated by sex. They helped to support the
parents’ values and to fulfil duties to the larger kin and ethnic group.
Peer groups disciplined members through social ostracism.
Physical punishment
was rarely used. Traditional peer groups were close in age. More importantly,
they went through rites of passage
like circumcision together (Male and Onyango,
1994).
238. However, new agents of socialization have come into family
life. These are the house workers commonly referred to as maids,
ayahs or
houseboys. They are usually engaged where the mother is in wage employment. In
some cases, the educational and social
background of the worker is different
from that of the employer. They therefore offer alternative moral and value
systems from those
of the parents. In urban areas, the workers may also be from
a different linguistic community from the family. Thus, they become
a major
socializer of children in language and moral behaviour.
239. The roles of
members of the family have also been affected. In the modern family, the role
of the father as a socialization
agent has changed a lot. Some fathers seldom
spend time with their children. Others spend much more time with their
children.
They are therefore more affectionate towards them than their own
fathers were with them. In urban areas, grandparent’s roles
in
socialization have also changed. This results from the physical distance
between the village and the town. It also arises from
the difficulties of the
extended family living as a residential unit in towns.
240. Peer group
roles have also changed in modern times. But they are still strong agents in a
child’s socialization. However,
they support the values of their parents
or larger cultural group less.
2. Existing or planned mechanisms for coordinating
policies
for children and monitoring of the Convention
241. The Government
is committed to promoting communitybased approaches to family wellbeing. This
has led to the creation of the
District Children’s Advisory Committees
(DCACs), as an effort towards preventive measures. DCACs involve all key
players in
Government, the private sector and NGOs in child matters. DCACs
identify priority areas in each district and programme intervention
with a view
to improving the welfare of children. They encourage community participation
and involvement.
242. Community mobilization has been enhanced through
the registration of women and youth groups which have been formed to assist
members through the Women’s Bureau. The Ministry of Home Affairs, Culture
and Social Services also helps to organize vocational
training for children with
disabilities. Organizations such as religious bodies and school committees have
made efforts to counsel parents and the youth on parenting issues. Amani
Counselling Centre, an NGO, offers training in counselling
for teachers and
social workers. It also offers individual counselling. In addition, the
Ministry of Education contributes teachers
for service training
courses.
243. The NGO sector has made a great contribution by targeting
categories of children in need of special protection. It does this
through
their families, for example through funding incomegenerating projects and
providing better housing. The Undugu Society of
Kenya and the African Housing
Fund are some of the organizations involved in such projects.
3. Constraints
244. Poverty is very real for a large
proportion of Kenyan families. It is a major constraint in parental guidance
and inhibits the
development of a child’s capacities. The 1994 Welfare
Monitoring Survey identified 47 per cent of the rural population and
29 per cent
of the urban population as poor. Legal provisions alone are not enough. For
instance, the provision on granting bond
to child offenders is not effective if,
because of poverty, the parents are unable to raise money for their
children’s school
fees. In addition, societal norms, attitudes and
practices do not encourage the voicing of children’s views in matters
affecting
them.
B. Article 9. Separation from parents
1. Legal and constitutional context
245. The main legal
provisions on separation from parents are contained in the Guardianship of
Infants Act (Cap. 144, Laws of Kenya). This deals with guardianship, custody
and maintenance of the child. The Act applies irrespective of
the family law
system that applies to the child. Courts are required to decide cases of
custody and maintenance in the best interest
of the child. When a marriage
breaks down, the court may make an order for custody taking into account the
welfare of the child,
the conduct of the parents, and their
wishes.
246. The Matrimonial Causes Act (Cap. 152, Laws of Kenya) states
that in cases involving divorce, separation or nullity, the court
should first
take into account the custody, maintenance and education of the child. The Act
places the duty of determining rights
to custody on the Guardianship of Infants
Act (Cap. 144, Laws of Kenya).
247. The Subordinate Courts (Separation
and Maintenance) Act (Cap. 153, Laws of Kenya) provides that a woman in a
monogamous marriage
may apply for a separation and maintenance order on various
grounds. These include the husband’s persistent cruelty to her
and the
children, or failure to provide reasonable maintenance for the
family.
248. The court can award the legal custody of any children of the
marriage to the mother. The Act allows the Attorney-General to
seek direction
from the court on the father’s custody and maintenance of a child where a
woman is dead or absent from Kenya.
The Attorney-General must, however, be
satisfied that were it not for death or absence, the parent would have had
reasonable grounds
to apply to the court for an order.
249. The Children
and Young Persons Act (Cap. 141, Laws of Kenya) recognizes that sometimes
children should be separated from their
parents for their own protection. This
includes cases where there has been sexual and physical abuse, or where the
children are
neglected, exposed to moral danger, are in possession of drugs, or
are living in dangerous premises. The juvenile court has the
power to commit a
child to a care institution, or to the care of a fit person. It also has a wide
range of options to separate the
child from the family if it is in the best
interest of the child. A child committed to an institution has the right to
maintain
contact with his/her family through release on licence. In cases of
imprisonment, the Prisons Act (Cap. 90, Laws of Kenya) allows
mothers to
take children below 4 years to prison with them.
2. Context and implementation
250. Causes of separation include divorce,
separation, imprisonment of parents, or the institutionalization, neglect and
abandonment
of children.
251. Parents are the first teachers of their
children. However, some children end up with other caregivers within the
extended family,
other families or institutions. Separation from parents, for
whatever duration of time, has permanent effects on a child. Children
need role
models, and the love and care of their parents.
252. Recently, tribal
animosities in the Rift Valley and Coast Provinces of Kenya have caused children
to be separated from their
parents.
253. The number of children
accompanying their mothers to prison is quite significant, as shown in figure 6.
However, the separation
of children from their parents is not always bad.
Sometimes it is necessary, for example in serious cases of child abuse, or in
a
legal struggle where a child left to continue living in the neighbourhood may
face retribution. In cases of serious abuse, the
child should be moved to a
safe place.
254. There are provisions for the rehabilitation of child
offenders within the family system. A child may be rehabilitated while
in the
custody of the parents. According to the Children and Young Persons Act,
children can be released on bond if they are of
good character. Parents are in
turn required to provide proper protection. Currently, parents are fully
involved in the decision
to place their children in approved schools for
rehabilitation. Counselling takes place before committal. However, it has been
observed that in some cases, placing children in approved schools is not always
in the best interest of the affected child.
255. The child’s
opinion is sometimes sought in custody matters. This happens when custody
matters are referred to the Children’s
Department for social investigation
reports. This entails direct interaction between the Children’s Officer
and the affected
children in a familiar environment such as the school or home.
The officer investigates the situation on the ground, and seeks the
child’s views on matters affecting the child’s relations with the
parents. The contents of the report are presented
to the court which uses its
discretion in deciding the matter in the child’s best interest.
3. Existing or planned mechanisms for coordinating policies
for children and monitoring of the Convention
256. There are
programmes to take care of children whose parents are imprisoned. The Langata
Women’s Prison, for example, liaises
with Newlife, a facility in Langata
(Nairobi), to take care of the children of imprisoned mothers. Such children
are also admitted
to NGOs, voluntary children’s homes and State-run
children’s homes. The aim is to avoid instances where young children
are
“imprisoned” with their mothers. In come cases, there are attempts
to resettle the children with extended families
until the mother leaves prison.
Figure 6 shows the number of children accompanying their mothers to
prison.
Figure 6. Number of children accompanying mothers to prison
257. The Prisons Act
(Cap. 90, Laws of Kenya), section 30, state that an infant child of a female
prisoner may be permitted to remain
in prison until it attains an age of 4 years
or until arrangements for its proper care outside prison are concluded.
4. Constraints and achievements
258. The separation
or divorce of couples in court does not always favour children. In such cases,
children’s school, food
and housing needs are not adequately met. This
has been observed in separation and divorce cases, as in Talaka (Islamic
divorce). Children who accompany their mothers through the criminal justice
process are exposed to abuse and neglect.
Also, children left behind by an
imprisoned mother are, more often than not, left to fend for themselves, drop
out of school, and
are ostracized. Not all custody matters are referred to the
Children’s Officers. Lack of adequate resources such as personnel,
finance and care institutions are a constant constraint. In spite of the
Government’s commitment to promote community-based
care, communities only
have limited capacity to take care of children of imprisoned mothers.
C. Article 10. Family reunification
1. Legal and constitutional framework
259. Section 81 of
the Constitution of Kenya guarantees freedom of movement. All Kenyans are
therefore free to leave or re-enter the country. This is, however, subject
to
the provisions of the Immigration Act (Cap. 172, Laws of Kenya). These
immigration laws, however, do not unduly restrict the
rights of families to
reunite.
2. Existing or planned mechanisms for coordinating policies for children
260. The Government recognizes the need for
families to travel with their children. Children are endorsed on either
parent’s
passport, but the father must give consent before they can be
allowed to leave the country.
3. Constraints
261. Immigration laws do not favour children
born out of wedlock. Neither do they allow for children travelling with their
mothers,
or women who intend to join or live with new spouses. For example,
when local girls and their foreign husbands are to travel out
of the country,
the children born before the marriage face many problems. Children born of
Kenyan mothers outside the country do
not get automatic citizenship. Even those
born in Kenya of Kenyan mothers married to foreign husbands are in practice
considered
“outsiders”.
D. Article 18. Parental responsibilities
1. Responsibilities and rights of a parent
262. There are no
specific provisions setting out parental responsibilities and rights. Two
statutes, namely the Guardianship of Infants Act (Cap. 144, Laws of Kenya) and
the Children and Young Persons Act (Cap. 141, Laws of Kenya) provide a legal
definition of parental
responsibilities and duties.
263. The Children and
Young Persons Act recognizes the primary responsibility of a parent in the
upbringing of a child. This is supplemented
by the Guardianship of Infants Act,
which recognizes that a mother has equal rights with the father to apply to
court for a decision on any matter affecting a child.
In such cases, the court
should treat the views of both parents equally. The Adoption Act (Cap. 143,
Laws of Kenya) also recognizes
the principle of common responsibilities of both
parents. It requires that where a couple wishes to adopt a child, both spouses
must agree to the application.
264. A court may award custody to one
parent, and rights of access to the other. It may also require the maintenance
of the child
by both parents.
265. Other statutes likes the Matrimonial
Causes Act (Cap. 152, Laws of Kenya) and the Subordinate Courts (Separation and
Maintenance)
Act (Cap. 153, Laws of Kenya) deal with custody and maintenance of
children, and the rights and responsibilities over children.
2. Context and implementation
266. The rights of spouses and children depend
on the system of marriage which applies to them. In all, there are four
different
systems of family law which govern marriage, and which the
Constitution considers to be equal and protects. The four systems of family law
are Islamic law, African customary law, Hindu law, and English
law. These
systems of family law express the different cultural values existing in Kenya.
Some of the personal law is specified
in statutes that have universal
application and also govern children. For example, the Guardianship of Infants
Act (Cap. 144, Laws of Kenya) applies to all children.
267. The roles and
responsibilities of family members depend on their age, sex and status within
the family. The family’s economic
background also influences the roles
and responsibilities of family members. Among others, marriage confers on the
child the right
to be maintained by the father and to inherit the father’s
property. Marriage confers on the mother the right to maintenance
and
inheritance. Where there is no marriage, the child has no right to be
maintained by its father or to inherit his property, unless
the father has
either recognized expressly or assumed responsibility for the child’s
support. The mother of such a child has
no right to be maintained by the
child’s father, and is not his heir. Despite the mother’s weakened
economic position,
she is still expected to take care of the child’s
needs, which may therefore not be met.
268. All four systems distinguish
children born outside wedlock from those born in wedlock. Under some customary
laws, the child
born outside marriage gets material support from the mother, who
alone is entitled to custody. The mother’s family is also
entitled to
custody of the child if the mother does not marry the natural father. Where she
marries another man, he is entitled
to the legal custody of the child, if he
pays dowry. Under other customary laws, the natural father of a child born
outside marriage
is entitled to custody either with or without making a small
payment to the mother’s family. In the rural areas where family
ties and
customs are strong, the child born out of wedlock is protected. In urban areas
the child is not protected if the parents
are not married or
cohabiting.
269. Under the English family law, there is a distinction
between children born in wedlock and those born out of it. Where a child
is
born in wedlock, the mother can obtain support from the father in a number of
ways. She can obtain necessaries for the child
on the husband’s credit.
She can petition for judicial separation under the Subordinate Courts
(Separation and Maintenance)
Act (Cap. 153, Laws of Kenya), or ask for custody
and maintenance for herself and the children. Under the Matrimonial Causes Act
(Cap. 152, Laws of Kenya), she may petition for divorce and request maintenance
for herself and the children. If the marriage breaks
down and the woman does
not want to petition for divorce or judicial separation, she may apply for
custody of the children and maintenance
for herself and the children under the
Guardianship of Infants Act (Cap. 144, Laws of Kenya).
270. Children
whose mothers are not married lack adequate protection. Such children may have
mothers who fall into one of the following
categories:
(a) Mothers who
are cohabiting with a man in a stable relationship;
(b) Mothers who can
identify the father of their child but are not cohabiting with him. They may or
may not be getting financial
assistance from the father;
(c) Mothers who
cannot identify the father, and will therefore definitely not get any support
for the child.
271. For the purposes of the law of succession, the mother
in the first category and her children are likely to be treated as wife
and
children respectively; the commonlaw presumption of marriage which arises after
a long period of cohabitation as husband and
wife will most likely
apply.
272. Under Islamic family law, the mother is entitled to the
custody of children under the age of seven years. Thereafter, the children
are
placed in the father’s custody. In Hanafi law, the mother has the
custody of female children until they reach puberty. Under Ithnashari
law, the mother has the custody of the child until the age of seven. The
position regarding custody of children under Hindu family
law is similar to that
in English law.
273. The right of the child to the protection of the
parents is undermined by the conflict created between Western and African
values.
English law, which is dominant in Kenya, has always looked down on a
marriage that is potentially polygamous. By their nature,
traditional African
customary and Muslim marriages are potentially polygamous. Hindu customary
marriage was also potentially polygamous
until 1960 when it was reformed by the
Hindu Marriage and Divorce Act (Cap. 157, Laws of Kenya) which abolished
polygamy and granted
wives the opportunity to end such unions if they so
wished.
274. In the early part of this century, Kenyan courts refused to
offer relief in cases arising from Muslim marriages. They also declined
to
offer relief in cases arising out of Hindu marriages, until the Marriage,
Divorce and Succession Ordinance was enacted in 1946.
Between 1914 and
1963, the courts refused to treat a wife under customary law as a wife for the
purposes of the law of evidence.
For the greater part of Kenya’s history,
the law has allowed the conversion of a potentially polygamous marriage into a
monogamous
one, but not vice versa.
275. For purposes of succession, a
woman married in a polygamous marriage is treated as a wife even though her
husband was previously,
or later, married under a monogamous marriage. Thus,
the law of succession appears to treat polygamous and monogamous marriages
equally. It also acknowledges the conversion of a polygamous marriage into
a monogamous one. It has been argued that the principle
should be applied
during the lifetime of a man in order to confer the rights of maintenance on
“wives” and children who
do not enjoy them in his lifetime.
3. Constraints and achievements
276. Cohabitation, which means a man and a
woman living together as husband and wife without having undergone a legally
recognized
marriage, is increasing in Kenya. It has farreaching consequences
for the children involved. Customary law recognizes a marriage
through
elopement, where a woman and a man cohabit without going through any marriage
ceremony.
277. Generally, parental responsibility for biological children
depends largely on the relationship between the father and the mother.
A child
born in wedlock is entitled to better parental care than one born outside
wedlock. However, the application of both personal
laws and statutory laws,
which have different values, has been a constant source of conflict. Some of
the legal remedies available
to mothers for the maintenance of their children,
such as the right to obtain necessaries on the husband’s credit, are
rarely
utilized.
278. The resolution of disputes involving parental
responsibility, especially where parties rely on different systems of family
law,
is provided for in the Guardianship of Infants Act (Cap. 144, Laws of
Kenya). Three principles have emerged from the application of the Act: the
interests of the child are paramount;
the mother and father have equal rights in
claiming custody over their children; and the custody of a child of tender
years, in the
absence of negative or special circumstances, should be given to
its mother.
E. Article 19. Protection from abuse and neglect
1. Legal and constitutional context
279. The key statutes
on matters relating to violence against children, abuse, neglect and
exploitation are the Penal Code (Cap. 63,
Laws of Kenya) and the Children and
Young Persons Act (Cap. 141, Laws of Kenya).
280. Neglect is closely
linked to the duty to provide the basic necessities of life to a child. The
Penal Code makes it an offence
for a person who is responsible for providing
another with the necessities of life to fail to do so. Failure to perform
one’s
duty which causes harm to any person is also an offence under the
Penal Code and is punishable by imprisonment.
281. The Children and Young
Persons Act contains several protective provisions. It provides penalties for
any person who wilfully
assaults, ill-treats, neglects, abandons or exposes a
child. It is also unlawful to allow a child to be exposed to unnecessary
suffering
or injury to health. This includes injury to, or loss of, sight,
hearing, limbs or organs of the body and any mental derangement.
Wilful acts or
omissions which cause a child to be in need of protection or discipline are also
offences punishable by a fine or
imprisonment.
282. A person who is
responsible for the custody, charge or care of a child who fails to provide
adequate food, clothing, medical
aid, or lodging is considered to have neglected
the child in a manner likely to cause injury to health.
283. Violence
against children, including sexual assault, is also dealt with by the two
statutes. However, the Penal Code provides
the bulk of the protections. Under
the Penal Code, common assaults and assaults causing actual bodily harm on any
person are offences.
284. The Penal Code also creates the offences of
rape, defilement of girls under 14 years, indecent assaults on females,
defilement
of girls under 13 and 16 years, detention of boys under 14
years, homosexuality, incest, and living on the earnings of
prostitution.
2. Context and implementation
285. Most cases of abuse involve actual
physical and bodily harm like burning, cutting, detention in locked rooms, and
sexual abuse.
Emotional abuse may also result from traumatic experiences. As a
result of such abuses, children require a lot of medical and emotional
support. Cases of child abuse within the family are sometimes not
reported where discipline degenerates to actual abuse, or where
parental
“authority” demands silence of the victim. The child with a
disability is often subjected to abuse within the
family. The abuse often
takes the form of physical abuse, overprotection and neglect. However, the
media are currently highlighting
such cases, thus creating awareness.
Members of the public have also come forward and reported cases of abuse to the
Provincial
Children’s Officer, Nairobi. In 1994, 90 cases
were reported.
286. Besides abuse in families, some caregivers like
teachers and workers in institutions are known to abuse children entrusted to
their care by administering excessive corporal punishment or through sexual
abuse. Bullies in institutions sometimes also abuse
newer/younger
pupils/students.
287. The wider community also contributes to abuse.
Some cultural practices encourage abuse. This happens, for example, with
“taboo”
children, including children with disabilities. The
“taboo” child is neglected for having been born in irregular
circumstances,
like incestuous relationships, and the disabled for being a
“bad omen”. Since the community defines these descriptions,
it
also turns a blind eye to the abuse of such children. The wider community also
produces people who sexually abuse children.
288. The death of parents,
poverty and family break-ups contribute to child abuse. Orphans are often
subjected to abuse. Homeless
children, or those on the street, are also victims
of physical and sexual abuse.
3. Existing or planned mechanisms for
coordinating policies
for children and monitoring of the Convention
289. The Children and
Young Persons Act creates machinery for intervention where a child or juvenile
has been sexually assaulted,
or is a member of the same household as a person
who has been convicted of such an offence. Such a child is considered to be in
need of protection, and can be taken to a place of safety by an authorized
officer. There is an elaborate institutional framework
aimed at making these
provisions effective. The framework involves local authorities, courts,
administrative officers (including
chiefs and assistant chiefs), police,
children’s officers, voluntary agencies and the community. Reports can be
made to these
officers, who are expected to take appropriate action.
Furthermore, an appointed local authority and an approved society have the
power
to receive such a child. This may result from a report by a member of the
public.
4. Achievements and constraints
290. Programmes aimed at solving abuse cases
include:
(a) A government crisis desk with a hotline to receive reports
of child abuse for action;
(b) Peace houses for abused children run by
the Child Welfare Society.
291. NGOs have a large input in targeting
various categories of children outside family care. Many target particular
categories,
but since the categories overlap, these NGOs end up caring for
children with various problems, including victims of abuse. The National
Directory of NGOs dealing with Child Labour (1996) contains 123 such NGOs
countrywide. Their main areas of focus are recorded as
advocacy (38 per cent),
research (19 per cent) and rehabilitation
(43 per cent).
292. Various NGOs have formed coalitions and
networks to enhance their service delivery for children in need of special
protection
(CNSP). These include the coalition on child rights and child
protection under the umbrella of the ANPPCAN regional office, Nairobi;
the Girl
Child Network, and the national Child in Need Network. However, there is still
no elaborate programme for addressing issues
of victims and perpetrators of
child abuse.
293. The contribution made by the print and electronic media
in highlighting the abuse of children is commendable. It often results
in
action by the relevant authorities.
294. Unfortunately, there are
insufficient programmes addressing children with disabilities. Parents and
guardians are sometimes
reluctant to pursue cases of abuse against their own
children. Newspaper reports record cases where parents are ready to negotiate
with their child’s abuser in total disregard of their child’s
rights, but in consideration of other circumstances like
“good
neighbourliness”. Owing to legal complexities, sexual abusers are
sometimes discharged by the courts, thus causing
fear and uncertainty among
parents or guardians who seek redress for their abused children. The Children
and Young Persons Act does
not provide for direct action by a member of the
community in case of abuse. When child abuse takes place within the family and
in institutions, intervention from “outsiders” becomes very
difficult.
F. Article 20. Protection of children without families
295. Children who have been denied or deprived
of their home and the care of their parents may be provided with an alternative
home
and care under the Adoption Act (Cap. 143, Laws of Kenya), the Children and
Young Persons Act (Cap. 141, Laws of Kenya) and the Guardianship of Infants Act
(Cap. 144, Laws of Kenya).
296. The Children and Young Persons Act
considers a child who is destitute, has no parent or guardian, or has been
deserted by such
parent or guardian to be in need of protection. Such a child
may be taken to a place of safety. This includes any mission, institution,
hospital or other suitable place whose owner is willing to accept temporary care
of the child. Where no such place is available,
a juvenile remand home or
police station is considered to be a place of safety.
297. The Act empowers
the juvenile court to hear matters concerning the welfare of children. The
court may order that a child be
removed from the family home, when it is in
his/her best interest. The Act also provides for the establishment of homes for
orphaned
children, and those who have been abandoned.
298. An approved
authority or an appointed society may also receive and care for a child or
juvenile in need of protection. Such
an authority or society is empowered to
arrange for foster care of the infant.
299. Similarly the Guardianship of
Infants Act gives wide authority to the courts to make the necessary orders.
Thus, where an infant has no parent or guardian, any applicant
who satisfies the
court of his/her ability to exercise proper care may be appointed a guardian of
the infant. The Act applies to
persons under 18 years of age, but excludes a
person who is or has been married.
1. Context and implementation
300. A form of “fostering” around
the extended family system takes place informally in many Kenyan families.
Relatives
take care of cousins, nephews, and nieces needing shelter or education
for varying periods of time. One result of such fostering
is that the foster
child is less attached to the real parents while being just as detached from the
foster parents. Where nonrelatives
are fostered, they may be abused,
overworked, or treated as outcasts.
301. The court exercises a wide range
of powers in relation to a child without a family who is brought before it for
protection.
It may commit the child to the care of an appointed local
authority, if any. It may also commit the child to an approved society
or
approved voluntary institution willing to take care of the child. The child can
also be placed for a specified period, not exceeding
three years, under the
supervision of an approved officer, a children’s officer, or some other
person appointed by the court.
The court may commit the child to an approved
school if it is in the best interests of the child to do so. The school must be
suitable
to the needs and attainments of the child.
302. The structural
causes of children without families include rapid social, economic, cultural and
political transformations. Poverty,
increased urbanization, and inadequate
legislation and policy have had a negative impact on the family, leaving some
children without
family protection.
303. The Children and Young Persons
Act provides for rules, regulations and registration for children’s
institutions. Children
without family or effective family protection form the
bulk of CNSP. The categories of CNSP are numerous. They overlap, and are
still
in various stages of refinement. Because rural and urban areas are distinct
socially, physically, economically and politically,
they produce distinct kinds
of children in need of special protection.
304. A survey of children in
especially difficult circumstances identifies 16 different categories of CNSP
(see table 8). The data
presented in table 8 show that a majority
(36.8 per cent) of urban CNSP are street children while orphaned
children (7.5 per cent)
are the majority of rural CNSP. The leading CNSP
categories are street children, orphaned children, excluding AIDS orphans,
domestic
workers and abandoned and neglected children. Except for street
children, there are no great disparities between rural and urban
areas in the
distribution of children in the other categories. However, rural and urban
areas are distinct. There are more nomadic
children (4.2 per cent) in rural
areas compared to 1.1 per cent in urban areas. There are also more street
children in urban than
in rural areas. There are more adolescent parents in
rural areas (3.1 per cent), and more orphaned children in rural areas (7.5
per
cent) compared to 4.3 per cent in urban areas. Overall, the data
indicate that the place of residence does not determine the
category a child
falls into. However, the likelihood of falling into a particular category is
increased by residence in either rural
or urban areas.
Table 8. Percentage distribution of CNSP by rural-urban
differences
CNSP category
|
Rural children as a % of total CNSP
|
% of category as proportion of total rural CNSP
|
Urban children as % of CNSP
|
% of category as proportion of total urban CNSP
|
Street child
|
4.7
|
13.8
|
36.8
|
54.8
|
Adolescent mother/father
|
3.1
|
9.2
|
1.4
|
2.2
|
Child bride
|
0.9
|
2.7
|
0.3
|
0.6
|
Drug user/trafficker
|
0.3
|
0.9
|
0.6
|
1.0
|
Child labourer
|
1.7
|
5.1
|
2.8
|
4.0
|
Domestic worker
|
3.1
|
9.4
|
4.7
|
7.1
|
Destitute/abandoned/neglected child
|
4.3 |
13.0 |
5.3 |
8.0 |
Child of imprisoned mother
|
0.6
|
1.3
|
2.3
|
3.4
|
Child in armed conflict/displaced child
|
0.2 |
0.6 |
0.9 |
1.4 |
Child prostitute
|
1.1
|
3.4
|
3.2
|
5.0
|
Child infected/affected by AIDS
|
0.2
|
0.5
|
0.2
|
0.3
|
AIDS orphan
|
0.6
|
1.8
|
0.2
|
0.3
|
Orphaned child
|
7.5
|
22.1
|
4.3
|
6.7
|
Child physically/mentally challenged
|
0.9 |
0.3 |
0.5 |
0.8 |
Nomadic child
|
4.2
|
12.3
|
1.1
|
1.6
|
Delinquent child
|
0.4
|
1.1
|
1.6
|
2.4
|
Total
|
33.8
|
100
|
66.2
|
100
|
Source: GOK/Ministry of Home Affairs and Natural Heritage.
UNICEF Kenya Country Office. A survey of children in especially difficult
circumstances (CEDC) in Kenya, 1997.
305. The survey of children in
especially difficult circumstances (1997) covered 13 of Kenya’s 67
districts. It identified
109,767 CNSP. It further showed that a large number
of CNSP were being denied the rights to survival, development and protection
required by the Convention on the Rights of the Child. Between 20 per cent and
75 per cent of CNSP lacked access to critical amenities
of child protection and
development. Half did not live with their parents and received no parental
care, 82.7 per cent participated
in child labour, 55.2 per cent lacked access to
shelter, while 50 per cent ate only once or twice a day.
306. Young girls
have been identified as mothers of many abandoned children in Kenya.
A 1993 AMREF study found that the mean age
of first coitus is 14.8 years.
About 55 per cent of adolescents became mothers before the age of 20, while 6
per cent of girls have
had sex before the age of 10 (KDHS,
1993).
307. Many teenagers have unwanted pregnancies, which cause crises
in their lives. Such crises include dropping out of school, running
away from
home, experiencing health problems and being denied access to their
fathers’ property. Furthermore, children of
adolescent unmarried mothers
are considered to be illegitimate throughout life.
2. Achievements and constraints
308. Placing children in institutions is a
popular way of dealing with children without a family or effective family
protection in
Kenya. This raises the issue of the quality of protection.
Placing children in institutions can deprive them of family protection,
depending on the length of the stay, which in some cases could be up to the age
of 18. These institutions are also expensive to
run. They also promote
dependency and deprive the child of his or her sense of individual
responsibility.
309. The fostering of children is mostly undertaken by
childless couples. When children are fostered for long periods, their rights
are not ensured unless arrangements are made for their
adoption.
310. There are insufficient programmes by both the Government
and NGOs to address issues of children with disabilities and the girl
child.
However, the activities of the Forum for the Advancement of Women’s
Education and Africa Inland Church Girls School
in Kajiado in the area of
girl-child education have been noted.
311. The registration and
supervision of voluntary NGO programmes is not coordinated. Some are registered
under the Societies Act
(Cap. 108, Laws of Kenya), others by the Department of
Culture and Social Services, and yet others by the NGO Bureau. There is also
provision for registration under the Children and Young Person’s Act (Cap.
141, Laws of Kenya), which is administered by the
Children’s
Department.
312. While police stations are places of safety, they can
expose children to abuse because no specific rooms are set aside for them.
Children are usually held in cells designated for women. Monitoring is further
hampered by the small number of children’s
officers. There are currently
slightly under 150 such officers for the whole country. The recent study on
CNSP in 13 districts
is a step in the right direction towards better programming
for children without families. The available child-care institutions
for
children outside the home and community do not address the root causes of CNSP
like poverty. Government institutions are associated
with only curative
services. They respond mainly to negative behaviour or to orphans. The burden
of supporting the child falls
on the mother where she is not married to the
father.
313. NGO directories listing NGOs dealing with children in need
of special protection give a clearer picture of the organizations
running
programmes for CNSP than has been the case previously. These include the
Nairobi Networker, the Christian Workers Directory,
the KAACR Directory of
agencies working with children in Kenya and the NGO Directory (1998) of the
National Council of NGOs. However,
the fact that many children (over 28 per
cent) do not seem to know where to go for help is a point of concern.
G. Article 21. Adoption
314. The Adoption Act (Cap. 143, Laws of Kenya)
contains various provisions regarding adoption of children in Kenya and
elsewhere.
These provisions are meant to ensure the best interests of the
child. The Act allows for the adoption of children who are abandoned
or
neglected. It provides that when making an adoption order the court should be
satisfied that it is in the best interest of the
child.
315. Section 22
limits the right to make adoption arrangements to those societies approved and
appointed as adoption societies. In
the absence of special circumstances, the
applicant must be of the same race as the child. An overseas adoption is
recognized if
it is made by a court in a Commonwealth country. It is also
recognized where an adoptive parent acquires custody rights that are
superior to
those of the parents, and rights over any property the child may have.
1. Requirements for a concluded adoption matter
316. Once the adoption has been finalized, the
registration office requires a copy of the court adoption order and adoption
certificate.
If there are no queries about the adoption, the principal
immigration officer issues a travel document or passport within 21 days.
However, where adoption is still pending in court, as many documents as possible
to support the application must be produced. The
required documents
are:
(a) An attachment agreement between the children’s home, that
is the guardian and the adopters, signed in the presence of an
advocate;
(b) A juvenile court order committing the infant to the care
and protection of a children’s home or a fit person;
(c) A letter
from the social worker of a hospital where the child was born or brought to
after the mother absconded, giving a brief
history of the child, or a police
abstract where necessary;
(d) The child’s birth certificate (if
any). In case a child does not have a birth certificate, the applicant should
state
the date of birth as shown in the hospital letter or committal order by
the juvenile court. The child’s name given by the
home must be indicated,
because most of these children are referred to as unknown African
babies/children;
(e) A letter from the children’s home giving the
name of the applicants/adopters and confirming the position of the matter
in
court and when it is to be concluded;
(f) A letter from the
advocates/lawyers for the applicants/adopters, confirming the position of the
matter in court and when it is
to be concluded;
(g) The
infant/child’s passport/travel documents, application forms, and a
security bond of K Sh 60,000;
(h) One of the applicants/adoptive
parents has to appear in person before the immigration officer to explain the
reason for travel,
the destination, the file number in the Immigration
Department, their citizenship, the period they have been in Kenya, and why they
cannot wait for the court to conclude the matter.
This process takes
between two and three months, because the documents have to be approved by
senior immigration officers.
317. Currently, the only officially
approved society is the Child Welfare Society of Kenya. The Society has
well-established procedures.
These involve interviewing the adoptive parents to
gather as much information from them as possible. The procedures also involve
the presentation of all information before adoption case committees. If the
case committee is satisfied that the applicant is suitable,
he/she is allowed to
take the child on a fostering basis. Before an adoption order is made, the
child should stay for at least three
months on a fostering basis with the
adoptive parent. The case is then taken before the High Court for an adoption
order. The adoption
order is irrevocable. It transfers parental rights from
the natural to the adoptive parents. It gives the child a permanent
home.
318. The Child Welfare Society of Kenya recorded an average of 143
applications per annum from prospective adopters between 1991 and
1998.
319. Children who can benefit from adoption include those whose
mothers give them up by signing consent forms six weeks after delivery.
They
also include babies who are abandoned at birth or for six consecutive months.
These include babies abandoned in hospitals,
or those who are considered to be
taboo children such as those born out of incestuous relationships.
2. Achievements and constraints
320. Because there is only one official
adoption agency, it is possible to circumvent it through private adoptions
which, though legal,
may not cater for the best interests of the child. They
are also inadequate given the increasing number of children in need of adoptive
care.
321. Adoptions are accepted up to a certain level in Kenya.
Therefore, adoption can be used as an alternative means of catering for
the
welfare of children without families. It is preferable to institutionalizing
them and denying them the love and bonding only
possible in a family
setting.
322. The Adoption Act facilitates the adoption of homeless
children and regulates adoption societies. Some adoptive parents prefer
not to
tell their children that they are adopted. They prefer to make such children
believe that they are their natural children.
This has caused crises in the
lives of such children once they find out their true status from neighbours,
school, or the adoption
certificate. There are no proper follow-up mechanisms
to ensure the safety of children awaiting adoption.
H. Article 25. Periodic review of placement
1. Legal and
constitutional context
323. The
Children and Young Persons Act establishes the post of Chief Inspector, whose
role is to inspect voluntary institutions and
places of safety where children in
need of care have been placed. The Chief Inspector is required to examine the
management of the
institutions and the treatment of the children who are placed
there. It is an offence to obstruct the Chief Inspector’s duties.
2. Context and implementation
324. Children placed for safety in an approved
school are entitled to leave of absence. This is determined by the manager of
the
approved school, with the consent of the Director of Children’s
Services.
325. The Director of Children’s Services may release a
child from an approved school on licence to live with parents or a fit
person
willing to receive and take charge of such a child.
326. If satisfied
that a person who has been ordered to be committed to an approved school should
not remain subject to the order,
the Director of Children’s Services may
revoke the committal order in writing.
327. There is also provision for
transfer from a junior to a senior approved school, and for supervision after
release for a duration
of two years. In cases of frequent escapees or
persistent absconders, or those who have bad influences on other children in the
approved school, and are under 16 years, the committal may be increased by a
period not exceeding six months. A child who is over
15 years is sent to a
borstal institution.
328. The Probation Department has a case committee
to review cases of probationers aged below 18 years. Some NGOs have case
committees
that review children’s cases. These include the Child Welfare
Society of Kenya and Dr. Barnado’s Children’s Home.
3. Achievements and constraints
329. After-care services for children released
from government institutions are inadequate owing to lack of resources (both
financial
and trained personnel). There is no stated policy for NGOs on
periodic review of children placed under their care, and there is
lack of
training on the need for periodic review of placement as an integral part of
rehabilitation.
330. Certain measures have been taken to make the
principles and provisions of the Convention on the Rights of the Child widely
known.
These include:
(a) Electronic and print
media;
(b) Seminars;
(c) Barazas (public meetings in
localities);
(d) Familiarization tours to successful regions.
I. Article 11. Illicit transfer and non-return of children abroad
331. The Constitution of Kenya contains
provisions against slavery. It is unlawful to transfer children out of Kenya by
any other means except those set
out in the relevant statutes like the Adoption
Act (Cap. 143, Laws of Kenya). The Penal Code also makes it an offence for a
person
to import, export, remove, buy or sell another person as a slave. It
further prescribes penalties for persons guilty of kidnapping
people in or
outside Kenya.
VII. BASIC HEALTH AND WELFARE: ARTICLES 6,
18 (PARAS.
1-3), 23, 24, 26, 27
A. Article 6. Right to life, survival and development
1. Legal and policy framework
332. The
Constitution of Kenya states that all persons are entitled to the fundamental
right to life. In promoting this right, the Government, through
the Ministry of
Health, has undertaken to prevent deaths caused by diseases. It also provides
for universal primary education for
survival and development, overseen by the
Ministry of Education. The Ministry of Home Affairs, National Heritage, Culture
and Social
Services has the responsibility for the general welfare of the
child.
333. The Public Health Act (Cap. 242, Laws of Kenya) has created a
department which is in charge of monitoring disease epidemics and
their
management. It is also concerned with providing preventive, promotive and
curative health services to ensure survival and
development.
334. In
addition, Kenya’s Health Policy Framework (1994) emphasizes that the Kenya
Government, through the Ministry of Health,
is committed to ensuring that all
Kenyans have access to health services. This will promote their well-being,
while improving and
sustaining their health. Because of scarce resources, the
Ministry targets resources to those conditions and diseases that cause
the most
deaths. This is achieved through promotive and preventive healthcare services.
The Ministry ensures the provision of cost-effective
essential public health
services, HIV/AIDS control, and the control of Kenya’s rapidly growing
population.
2. Context
335. The infant mortality rate (IMR) is
currently estimated at 62/1,000 live births. The underfive mortality rate
stands at 96/1,000
live births. Most of the morbidity- and mortalitycausing
diseases are preventable. These could have been contained and sustained
by high
immunization coverage.
336. Kenya has moderate nutrition problems. The
low birth weight prevalence is 17 per cent, but has regional
variations. Stunting,
a feature of chronic undernutrition, is the most
prevalent result of malnutrition. The current national rate is
36 per cent (1996-CBS
National Nutrition Survey). The prevalence of
underweight among under-fives is also high at 23 per cent (CBS, 1996).
This is slightly
lower than the global figure of 29 per cent (SCN, 1997).
Geographical diversity also exists in prevalence and causes. The figures
on
malnutrition do not indicate the nutritional status of street children and
children with disabilities.
337. There are cultural practices that
contribute to malnutrition. These include superstitions about eating certain
foods which have
high nutritional value. In Coast Province, for instance, some
communities do not feed pregnant mothers on eggs because it is believed
that the
infants will be born bald, and that children fed on eggs will steal eggs and
chickens when they grow up. An important cultural
practice in Nyanza Province
concerns food distribution within the family where preference is given to boys.
Other causes of malnutrition
include households without safe drinking water or
toilet facilities and high population density.
338. The prevalence of
nutritional anaemia is high, especially in women and young children. Coast
Province is the most severely affected.
The lake region of Nyanza has a rate
of 2530 per cent. The same regions are prone to worm infestation
and malaria. Data from localized
studies indicate that 33 per cent of Kenyan
children are anaemic.
339. Breast-feeding rates also vary within regions.
Nationally, almost all (97 per cent) children are breast-fed soon after birth.
The rates of exclusive breast-feeding at four months drop drastically to less
than 20 per cent. The Kenyan mother breast-feeds
for an average
of 16 months, with exclusive breast-feeding for only about
2.5 months for the majority.
340. Some of the reasons for low
exclusive breast-feeding rates include mothers having to return to work, where
they are not able
to take their babies with them. The rate of exclusive
breast-feeding is higher in rural than in urban areas. Rural mothers have
more
time with their babies. Urban mothers have to leave their babies at home
because of the short maternity leave and the problems
of travelling long
distances to work. The rate of exclusive breast-feeding
is 34 per cent in rural areas, compared to 22 per cent
in urban
areas.
341. The frequency of breast-feeding should be increased during
illness, but in practice some mothers stop breast-feeding, for example
when
the children get diarrhoea. The early introduction of complementary foods in
infants’ diet exposes them to conditions
that cause disease before they
develop immunity. This is likely to result in infections and increased risk of
diarrhoea. Repeated
infections have an impact on the nutritional status of
infants and children.
342. Maternal deaths currently stand at 365 per
100,000 live births. This is attributed to postpartum haemorrhage, hypertensive
disorders
and maternal infections. Regional variations exist. Nyanza Province
accounts for 24 per cent of all recorded maternal deaths, followed
by Western
Province at 23 per cent and Eastern Province 21 per cent (MOH,
1997).
343. HIV/AIDS is a threat to the survival and development of
children. In 1998, it was estimated that the number of children affected
by
AIDS stood at 600,000. The figure is expected to rise to 1.2 million by
the year 2005. The growing number of AIDS orphans places
a heavy burden on
families and communities. It also affects the Government’s ability to
respond to the needs of such children.
The health sector is particularly
overburdened by the AIDS epidemic. Besides the huge increase in health
expenditure, the dependency
ratio has risen and productivity levels have
dropped. This has resulted in a reduction in the GDP. These factors, together
with
the legal and ethical issues surrounding AIDS have presented major
development challenges. Government efforts are supplemented by
organizations
like UNAIDS, the Family Planning Association of Kenya (FPAK), the National AIDS
Consortium, and Marie Stopes clinics.
344. As part of the effort to
reduce the transmission of HIV and reduce the impact of AIDS, the
Government’s policy is to promote
and strengthen non-institutional care of
people with AIDS. There is also a policy shift regarding breast-feeding of
infants, in
view of the risks of transmission of HIV from mother to child
through breast milk. Alternative ways of infant feeding will be vigorously
pursued through education, counselling and research in cases where babies of
HIV-infected mothers are identified.
345. Both the Government and NGOs
have made deliberate efforts to promote behaviour change with respect to the
transmission of HIV.
The type of communications used include widespread use of
billboards in local vernacular languages and Kiswahili, posters and pamphlets
in
English, Kiswahili and local languages and the electronic and print media.
Poems, songs, and drama have also been used in different
languages. No efforts,
however, have been made to translate these into Braille or sign language for
those with disabilities.
3. Constraints
346. The malnutrition figures do not indicate
the nutritional status of children in need of special protection, street
children and
children with disability. Nutrition status data for
children 518 years are generally lacking.
347. The fact that
mothers have to go back to work after 60 days’ maternity leave and the
introduction of other foods before
six months of age contribute to the low rates
of exclusive breastfeeding, and consequently expose children to
infections.
348. In the area of HIV and change of behaviour, children and
people with disabilities are not covered by the types of communication
already
in use. Sign language for the deaf and Braille and audio cassettes for the
blind are necessary.
B. Article 23. Children with disabilities
1. Legal and policy framework
349. The Constitution
of Kenya is silent on discrimination on the basis of disability. This has been
interpreted by some to mean that it is lawful to
discriminate against people
with disabilities. There is also no progressive legislation in Kenya allowing
differential treatment
for the disabled.
350. The result of this is that
the policies on children and people with disabilities are not concrete.
However, the AttorneyGeneral
set up a task force to review laws relating to
people with disabilities. The report of the task force and a draft bill have
been
handed over to the AttorneyGeneral. It has been noted that the draft bill
contains gaps on children with disabilities but discussions
on this are going
on. The proposed Children Bill also contains some provisions on children with
disabilities.
351. The Ministry of Education has a policy on special
education which takes into account communitybased rehabilitation for the
disabled.
The Ministry of Home Affairs also has a policy on rehabilitation of
people with disabilities; however, its implementation has not
been very
encouraging.
352. A notable development was the inauguration of the
National Fund for the Disabled. This is a Government-funded mechanism for
the
distribution of financial resources and equipment to improve the welfare of the
disabled.
2. Status of education, health and culture for people with disabilities
353. Like the violation of the rights of
minority groups, the violation of the rights of children with disabilities by
parents, teachers,
administration, policy-makers and the community has persisted
over the years. This has mainly resulted from ignorance, attitudes,
culture and
poverty. The general public, policy formulators and technocrats are ignorant
about the unique needs and aspirations
of people with disabilities. Similarly,
existing policies and legislation do not take into account the needs or
aspirations of people
with disabilities. This has made it difficult for people
with disabilities to have access to equal opportunities in education, training,
employment, health and social services. Eventually, the lack of access to
viable opportunities has reduced most disabled people
to
poverty.
354. The campaigns to control various preventive diseases like
polio and measles are also steps to control the various types of handicaps.
Kenya offers vaccines against such diseases free of charge. It also
disseminates information about early symptoms of these
diseases.
355. According to the World Health Organization (WHO), the
disabled comprise 10 per cent of any population. This means that
Kenya
has approximately 3 million disabled persons and 600,000
children under 5 years with disability. It is necessary to have a comprehensive
health-care programme to address the needs of people and children with
disability. These programmes should include the training
and setting-up of
specialized facilities.
356. Currently there is a community-based
rehabilitation programme targeting all groups of people with disabilities. It
is functional
in some districts, namely Siaya Kisumu, Nandi, Machakos, Kajiado,
Tharaka Nithi, Mbeere, Laikipia and Kibwezi. It is expected that
the programme
will be extended to other districts.
357. The Kenya Society for the
Blind, the Government, and Sight Savers carry out preventive outreach programmes
and provide free medication
in some parts of the country. The Association for
the Physically Disabled of Kenya carries out health activities in Mombasa and
Nairobi. These are, however, inadequate. Physiotherapy, counselling of parents
and referral of the disabled children to schools
are done in collaboration with
the Ministry of Health. The Kenya Society for Deaf Children and the Society for
the Deaf carry out
campaigns for hearing aids.
However, since the hearing equipment is expensive, there is a need for
government subsidies to enable the deaf to have access to them.
There is also a
crucial need for the interpretation of sign language.
358. With respect
to recreation for children with disabilities, the Ministry of Home Affairs,
Culture and Social Services has played
a leading role in helping children with
disabilities to participate in sports locally and internationally. Mentally
challenged children
have participated in the Special Olympics and won medals.
This boosts their morale because they are not able to perform well academically.
Visually impaired children have also excelled in sports such as the high jump,
shot putt and 100-metre races. All children with
different categories of
disability may compete in drama and music festivals.
359. Other agencies
involved in the provision of services for people with disabilities include the
Ministries of Education, Agriculture,
Home Affairs, National Heritage, Culture
and Social Services, the Office of the President, NGOs such as AMREF, religious
organizations
and Lions Clubs.
3. Constraints
360. There is a low enrolment of children with
disability in schools owing to lack of training aids, the high cost of training
and
the stigma associated with disability. The girl child with disability is
especially affected. There are also inadequate data on
the number of children
and people with disabilities.
C. Article 24. Health and health services
1. Legal and policy framework
361. The legal
provisions that relate to health delivery include the Public Health Act
(Cap. 242, Laws of Kenya), the Local Government Act (Cap. 265, Laws of
Kenya) and the Food, Drugs and Chemical Substances Act (Cap. 254, Laws of
Kenya). These were in force before
the ratification of the Convention on the
Rights of the Child. Therefore, they do not specifically protect
children.
362. The Government is committed to improving the health of the
population. This is stated in successive National Development Plans
and
government policy documents such as the Kenya Health Policy Framework (KHPF).
These policies form the bases for the planning
and implementation of healthcare
services. The current health policy revolves around two critical issues. The
first is the delivery
of a basic package of quality health services to a growing
population. The other is the financing and management of services in
a way that
guarantees availability, accessibility and affordability to the most vulnerable
groups. Since 1994, the Government has
embarked on far-reaching reforms in the
health sector. These focus mainly on the financing of healthcare delivery,
community participation
and intersectoral collaboration. The reforms emphasize
preventive and promotive health services and the treatment of common
diseases.
363. The National Plan of Action for Nutrition (NPAN) has
addressed the implementation of world global goals. The Plan aims to
incorporate
global nutrition objectives into national development programmes and
policies. It also aims to develop specific nutrition interventions
and generate
information from community-based actions. The eventual aim is nutritional
assessment and the implementation of appropriate
interventions. The Government
has also implemented policies on specific nutrition issues. These include
universal salt iodization,
iron supplements for pregnant mothers, vitamin A
supplements for children under 5 years and lactating mothers, and the
implementation
of the Kenya Code of Marketing Breast Milk
Substitutes.
364. By September 1997, over 76,000 AIDS cases had been
reported and 1.3 million Kenyans were estimated to be infected with
HIV which
causes AIDS. Of this number, an estimated 77,950 were children.
Indeed, one of the major consequences of AIDS in Kenya is that
it has reduced
life expectancy and increased the incidence of illness and death among
children.
365. Adult deaths due to AIDS have increased the number of AIDS
orphans and child-headed households. In 1996, it was estimated that
the number
of children affected by AIDS stood at 300,000 and this figure was expected
to double by the year 2000. The growing number
of AIDS orphans has imposed
a heavy burden on families and communities and on the Government’s ability
to respond to the needs
of these children. At the same time, the extended
family network, which would traditionally have been relied upon to support the
orphans, has been gradually eroded by urbanization, poverty and other
socio-economic factors.
366. Kenya has no direct legal provisions
regarding the AIDS epidemic. However, the existing laws related to health care,
the rights
to survival, protection and participation and the provision of basic
needs indirectly address the problem. But these are limited
in scope in the
context of the legal, ethical, socio-cultural and economic factors resulting
from the spread of HIV. In response
to these, Sessional Paper No. 4 of
1997 on AIDS in Kenya spells out the direction the Government proposes to take.
This includes
the enactment and enforcement of relevant laws. That Sessional
Paper addresses both the socio-cultural issues that facilitate the
transmission
of HIV and cultural practices that support prevention and care.
2. Context
367. Children comprise more than 33 per cent of
Kenya’s population. They are the future consumers and productive human
resources.
However, there is no codified child welfare policy (National
Development Plan 1997-2001).
368. Currently, the health care delivery
system comprises a total of 3,500 health facilities. These include 209
hospitals, 257 health
centres and 2,764 health sub-centres, dispensaries
and clinics. While the Government and NGOs have more than 83 per cent of
their
facilities in rural areas, approximately half of the private
sector facilities are located in urban areas. Thirtyeight per cent
of the
hospitals are also located in urban areas. In contrast,
over 80 per cent of health centres and dispensaries are
in rural areas. Access to health
facilities has improved: 42 per cent of the population
resides within 4 km of a health facility and 75 per cent
within 8 km. However,
this accessibility is limited by the cost-sharing policy
that has raised the cost of health services.
369. In 1992, NGOs provided
about 40 per cent of the health services. Currently, NGOs and missions
operate 20 per cent of the health
facilities in Kenya. Of the approximately
80,000 health personnel in the country, the Ministry of Health provides
55,000 (69 per
cent). The rest are provided by NGOs and missions. The
proportion of health services provided by this sector is not currently
available.
Research therefore needs to be carried out to establish the ratio of
these health services. The NGOs have been involved in curative
and primary
health-care services, maternal, child and family planning programmes, and in
community-based distribution of contraceptives.
370. Street children in
Nairobi go for those health services supported by the Red Crescent, which
is a private agency. An average
of 20 street children are treated daily. Some
of the most common ailments include STDs, ARIs, skin rashes and injuries.
Street
mothers also attend antenatal clinics. The street communities contribute
money for the delivery of their babies in hospitals.
371. Community-based
interventions are emphasized as part of primary health care. They include
health promotion, disease control,
sanitation and simple curative health care.
As part of the Health Policy Framework, the Government has restructured the
health management
system in order to decentralize decision-making in the health
sector to the district level. Communities have major roles to play
in
decision-making, generating resources, and implementing and supervising health
programmes in partnership with health providers.
The increased involvement of
communities include their participation as community health workers (CHW),
traditional birth attendants
(TBAs), and traditional healers. They are
supported through the primary health care (PHC) support network which brings
together
health extension workers and the population. The village health
committees (VHCs) are formed before PHC activities are started in
the
communities. Their role is to oversee the activities carried out. The
information collected is discussed by the VHC to enable
it to implement
appropriate interventions. The VHC oversees the duties of the community health
worker. A health worker from the
nearest health facility technically supervises
the community health worker. Currently, there are 300 VHCs in
community-based health
care. The Government recognizes the role that the
traditional healers play in the health-care system. Research on herbal medicine
is currently being carried out at the Kenya Medical Research Institute (KEMRI),
based in Nairobi.
372. A review of the food policy to address nutrition
issues has been undertaken, but a further review is necessary. When
finalized,
this policy will improve and promote the nutritional status of the
population to a level that is acceptable and consistent with good
health. The
review will include emphasis on subsistence crops as opposed to cash crops. It
will also emphasize droughtresistant
crops and the need for proper storage of
these foods at the community level.
373. The Government has established a
number of programmes that are in various stages of implementation. These
address conditions
and diseases that greatly affected children and women. They
include: PHC approaches, MCH/family planning and EPI.
374. The PHC
approach is central to the operation of these programmes. Its major focus is on
decentralization, integration and community
participation. The interventions by
the Ministry of Health emphasize preventive, promotive and curative programmes.
Adolescent
health programmes lay emphasis on the girl child, because of
complications carried forward into adulthood.
375. There are significant
efforts by the Government, with support from WHO and UNICEF, to control
diarrhoeal diseases. The annual
incidence of diarrhoea is 3.5 to 4.6 episodes
per child, and it is among the top five killers of children. The control of
diarrhoeal
diseases programme (CDD) is currently being implemented countrywide.
It aims at reducing mortality and morbidity through improved
case management
using oral rehydration therapy (ORI). Proportional deaths from diarrhoea have
been reduced from 14 to 9 per cent
of all reported illnesses. The extensive
training of health workers and the establishment of ORT corners at health
facilities have
made this possible countrywide. The use of ORT for the
treatment of dehydration caused by diarrhoea stands at a high 76 per cent
(GOK,
1994).
376. The ARI programme has recently been integrated with CDD
and is currently being implemented in 17 districts. However, the ARI
component
has yet to show an impact, because it has been implemented over a shorter
period.
377. The main objective of the Kenya Expanded Programme on
Immunization (KEPI), is to reduce deaths and illness due to childhood
immunizable
diseases. It has been as positive in its impact as any successful
health programme can be. Knowledge, attitudes and practices on
immunization
among child caretakers are estimated at 90 per cent. Access to immunization is
equally high. Ninety-six per cent of
children 12-23 months old have access to
existing health infrastructure, with minimal urban-rural differences.
Vaccine-preventable
diseases have declined steadily in incidence and prevalence.
This is a result of sustaining a high immunization coverage of more
than 75 per
cent for all the antigens in the past five years. Two consecutive National
Immunization Programmes in 1996 and 1997
recorded a success rate of
80 per cent. This shows that the eradication of poliomyelitis by the
year 2000 is feasible. KEPI has
recently embarked on disease
eradication/elimination programmes initially targeting poliomyelitis and
neonatal tetanus, and reduction
in illnesses and deaths from
measles.
378. Malaria is a major public health problem. Its main impact
is on children under 5 years and pregnant women, particularly those
in
their first pregnancies.
379. Malaria in pregnancy often results in low
birth weight babies. Malaria accounts for 3050 per cent of
childhood illness. The
National Malaria Control Programme aims at reducing
death and illness from malaria through effective case management, personal
protection
and vector control. At community level, malaria control activities
are integrated with those of other disease control within the
Bamako
Initiative.
380. Malaria is now widespread throughout the country even in
areas thought to be malariafree zones. This is due to environmental
pollution
which creates suitable mosquito breeding areas. There is also a high mobility
of people from malaria-endemic to non-endemic
areas.
381. Reproductive
health is one of the programmes of primary health care. Some of the ongoing
projects include provision of contraceptives,
training of health-care providers,
safe motherhood initiative, family planning logistics, and training community
health workers on
community-based contraceptive distribution. The current rate
of contraceptive use is 33 per cent, while knowledge about
contraceptives
is 96 per cent.
382. Adolescent issues have not been
addressed fully. Existing national health programmes focus mainly on children
under 5 years.
They have excluded a large number of children 5-18. This has
led to their being exposed to all forms of injuries owing to lack
of protective
skills and services. The lack of youth-friendly health services threatens the
development of the youth and their survival
because some of them will be victims
of early pregnancy, depression, drug addiction and other social ills. Everyone
has a right
to health and a responsibility to ensure the fulfilment of this
right. This calls for empowerment, particularly in decision-making
and the
control of resources.
383. The participation of children in promoting
their own health is equally important. Child to child approaches have proved an
effective
channel for health education at the community level. Children proved
to be effective communicators in an initiative undertaken to
improve measles
immunization in Kisumu District. This concept can be extended to include
adolescents as peer educators, particularly
in sensitive areas such as STDs and
substance abuse.
384. Early teenage fertility and child-bearing has
diverse negative demographic, socioeconomic and socio-cultural consequences.
Teenage
mothers suffer most from severe complications during delivery. Their
socio-economic advancement, educational attainment and accessibility
to better
job opportunities are also impeded. At the social level, they are more likely
to become outcasts and be relegated to ineffective
roles, especially if they are
unmarried. Therefore, they should be given access to information to help them
make informed choices.
385. Seventeen per cent of teenagers aged 15-19
are mothers, while 4 per cent are pregnant with their first child. This shows a
decline
compared to five years ago when the figure stood
at 21 per cent. Those residing in rural areas, those with less
than secondary school
educations and those residing in Nyanza and Western
Provinces are also more likely to have begun childbearing (KDHS,
1993).
386. Family life education has been addressed to some extent in
the primary school home science curriculum. In secondary schools
it has been
addressed during guidance and counselling, social ethics and biology. Kenyan
cultures do not allow people to talk openly
about sex. Many religious groups
also see it as something that should not be addressed as it promotes
immorality.
387. In some communities, the cultural practice of female
genital mutilation (FGM) is seen as a necessary rite of passage. It is
considered to be an initiation into womanhood for girls. FGM has negative
health implications for girls. Leading NGOs on the advocacy
of the human rights
of women have extensively created awareness of FGM. This has, for example, been
done in the Kisii community,
which has improvised the rite of passage without
necessarily carrying out the operation. This has met with a lot of resistance
from
leaders, including women, who are the custodians of women’s
heritage.
388. In a study carried out by Maendeleo Ya Wanawake
Organization, it was found that 73.5 per cent of the women in
Meru, 98.0 per
cent in Kisii, 96.0 per cent in Narok
and 91.3 per cent in Samburu were circumcised. Of these, 50 per
cent were circumcised at 1015
years. In Kisii, over 50 per cent are
circumcised before the age of 10 years. The most common reason given for
this ritual was
to support “good tradition”.
389. As a
surgical operation, circumcision has negative effects on girls. Post-operative
complications are even more likely to occur
because the operation is usually
performed under unhygienic conditions and without sterile equipment. It is also
performed by untrained
people ignorant of anatomy, who employ different local
substances to heal the wound and stop bleeding. FGM causes immediate and
long-term medical and other complications. Among these are haemorrhage,
infection, scarring, painful intercourse, urine retention
and difficult
childbirth.
390. The Safe Motherhood Initiative (SMI) aims at improving
maternal reproductive health and the reduction of maternal pre-natal death.
It
emphasizes the provision of services to women during pregnancy, delivery
and post-delivery. The programme provides training
to health workers on
the provision of these services, and on emergency obstetric care. Ninetyfive
per cent of mothers receive antenatal
care, 72 per cent from traditional birth
attendants and 4 per cent from doctors. Of those receiving care from
traditional birth
attendants, 23 per cent receive tetanus toxoid
while 90 per cent getting care from doctors receive it during the antenatal
visits
(KDHS, 1993). Birth registration is facilitated by health facilities
which notify births. The child welfare card is a recognized
document for
registration.
391. The Bamako Initiative was initiated in Kenya in 1989
to accelerate the implementation of PHC. It is implemented in nearly 300
communities in 25 out of the 67 districts. The focus of the Initiative is the
community pharmacy around which other health-care
activities are centred.
Communities are mobilized to implement promotive and preventive health
activities alongside community pharmacies.
Development activities are also
implemented within the framework of the Initiative.
392. The
supplementing of vitamin A through capsules to lactating mothers and children
under 5 is going on well. It is integrated
with immunization to minimize lost
opportunities. The Ministries of Education and Health have begun supplementing
vitamin A to pre-school
children at the early childhood development centres
(ECDC).
393. Malaria and respiratory infection accounts for almost 50 per
cent of all reported diagnoses in government health facilities.
Intestinal
parasitic infections and diarrhoea increase this to almost 60 per cent. Chronic
overcrowding in some slums leads to
serious health problems. Up to 80 per cent
of slum households have one room for all household functions. Sleeping in
shifts is
common for many slum dwellers. In urban areas, the proportion of
those with access to safe drinking water is as high as 92 per cent.
Access
in urban slums was 53 per cent, and 42 per cent in rural areas.
The national average was placed at 55 per cent in 1992.
Regional
variations indicate that Nyanza has the least access in terms of piped water
at 9 per cent. This is even lower at the
district level, with 2
per cent in Siaya. Even in the urban areas the cost of water is as high as
K Sh 20 for a 20-litre can. Some
people get water from unsafe sources
such as dams and sewers.
3. Other health sector challenges
394. The health sector has not been able to
expand rapidly to ensure adequate coverage, accessibility and an acceptable
quality of
health services. The low levels of incremental financial resources,
inefficient utilization of existing resources, the emergence
of new diseases and
the growing appreciation of modern health care have made the situation worse.
The share of government recurrent
expenditure allocated to health is projected
to be 9.6 per cent in 1996/97, up from 9.26 in 1979/80. Per capita
expenditures have
steadily declined. Seventy per cent of the current
health budget is tied to staff emoluments, leaving only 30 per cent for
supplies.
395. The existing control mechanisms are organized to cater for
different categories of medical practitioners. The Clinical Officers
(Training,
Registration and Licensing) Act (Cap. 260, Laws of Kenya) requires that
clinical officers work for 10 years before going
into private practice. Their
premises are also inspected by the local medical health officer before the
Clinical Officers Council
approves the clinic for operation. The Nurses Act
(Cap. 257), Laws of Kenya) does not allow nurses to go into private practice,
but this is under review. Pending this change, nurses have opened clinics with
the approval of the Director of Medical Services
through the Nursing Council.
They are also expected to have worked for 10 years. Dental medical officers and
pharmacists are expected
to work for three years before leaving the public
service. The application for a licence is approved by the Medical Practitioners
and Dentists Board which is regulated by the Medical Practitioners and Dentists
Act (Cap. 253, Laws of Kenya). Medical officers
have recently been leaving
the service before the stipulated period. Most of the staff concerned have been
resigning. They are
able to leave public service because they give the
necessary notice. Doctors who become consultants are allowed to run private
clinics
while still in the public service.
4. Constraints
396. There are various constraints to the
provision of health services. The inadequate service deliveries to adolescents
threatens
their development and survival since some of them are caught up in
early pregnancy, depression, drug addiction and other social ills.
Other
constraints include:
(a) The inadequate supply of drugs to health
facilities;
(b) The deployment of the majority of staff to urban areas.
More than 80 per cent of the doctors are based in urban areas, and
only
care for 20 per cent of the population;
(c) The mushrooming of
private clinics which results in many experienced staff leaving the public
sector;
(d) The public’s lack of knowledge about preventive
measures such as proper sanitation and hygiene;
(e) The limited service
provision and access to these services;
(f) The impact of HIV/AIDS on various programmes resulting in an increase in
infant and child mortality;
(g) The effect of HIV/AIDS on the most
productive population bracket.
D. Article 26. Social security
397. The Constitution of Kenya does not mention
the right to social security. Therefore, there is no universal social security
and welfare system in the
country. Nevertheless, there are some limited
legislative measures and policies on social security.
398. The main
legislation governing social security in Kenya is the National Social Security
Fund Act (Cap. 268, Laws of Kenya).
It requires contributions from persons
who are formally employed. The Widows and Orphans Pensions Act (Cap. 192,
Laws of Kenya)
caters for the interests of widows and orphans. The Widows and
Children’s Pensions Act (Cap. 195, Laws of Kenya) provides
that on
becoming a public officer a man, married or unmarried, is eligible to contribute
voluntarily to a fund for the benefit of
his widow or orphans. The Pensions Act
(Cap. 189, Laws of Kenya) provides for the payment of pension benefits to
the dependants
of a retired civil servant.
1. Context and implementation
399. Currently, public servants reaching
retirement age (55 years) receive a pension. The pension benefits are, however,
inadequate,
and in most cases insufficient to maintain the children of the
retired worker. There are practically no social security benefit
schemes for
the aged, disabled, single mothers and child-headed families, or for those who
have not contributed to the National Social
Security Fund. Health insurance
benefits are available for in-patients who have contributed to the National
Health Insurance Fund.
This is extended to benefit the children of these
families. The informal sector participates in this fund on a voluntary
basis.
400. However, Kenya practises a unique informal social initiative
known as a Harambee. In this system, individuals are responsible for one
another, and for those who are less fortunate. Harambees focus mainly on
health and education. Many communities raise funds to pay school fees for
children, or build extra school buildings.
With regard to health, communities
collect funds to help people who have incurred major medical expenses. The
public response is
very positive. There are also instances where the medical
bills incurred during hospitalization are paid by the community through
Harambees. The Harambee philosophy cuts across tribal barriers,
social status and other boundaries. Health facilities are also built through
similar efforts.
401. Deliberate efforts are now being made to mobilize
parents into forming groups. A few are involved in the advocacy of the rights
of children and adults with disabilities. They have been mobilized as partners
and allies in the movement for the disabled.
402. There are provisions for occupational therapy, physiotherapy and
orthopaedic services for adults and children with disabilities.
These involve
exercises and the repair of gadgets. These services are decentralized. A
partner NGO, Jaypur Footwear, donates free
limbs to children and people with
disabilities.
403. There are many social workers in Kenya attached to
various ministries. The Ministry of Home Affairs, National Heritage Culture
and
Social Services employs social workers who offer social services throughout the
republic. The social workers are given in-service
courses in areas that are not
covered in their basic training. These include rehabilitation of people with
disabilities. The presence
of social workers who work closely with the
communities enhances the welfare of children. Where there are no social
workers, extension
workers perform their duties. Social workers are also
deployed by the Ministry of Health and by NGOs such as FPAK.
404. The
Ministry of Home Affairs, National Heritage Culture and Social Services has
established a crisis desk that receives reports
on the insecurity of children.
This desk helps to promote the social security of children. In addition, there
are NGOs which play
an important role in the social security and welfare of
children. These include the Kenya Red Cross which feeds children in times
of
crisis, for example during ethnic clashes. The Jamaa Home takes care of
pregnant teenagers who are in distress. There are also
NGOs which have
established child welfare homes. The Government has established approved
schools, remand homes and borstal institutions
which accommodate delinquent
children.
2. Constraints
405. The main constraints are inadequate
resources for catering for the needs of children, adults with disabilities and
HIV/AIDS orphans.
This is made worse by the fact that, recently, there has been
an increase in the numbers of disabled owing to disasters such as
ethnic
clashes, the bomb blast and road accidents.
406. The health services
provided to people with disabilities are not adequate or easily accessible.
Personnel to handle the cases
are also inadequate.
407. The number of
children’s homes is also inadequate compared to the demand for services.
The approved schools, especially
for girls, need to be increased to ensure that
young girls do not end up in women’s prisons.
VIII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES:
ARTICLES 28, 29, 31
408. The right to
education for every child in Kenya is provided for but not guaranteed in various
policy and statutory documents.
The most important is the Education Act
(Cap. 211, Laws of Kenya) which is under review. This Act entrusts
the Minister for Education with the administration and management
of formal and
non-formal education, including technical and vocational training
institutes.
409. The following are some of the existing key legal and policy
frameworks:
(a) The Kenya National Examinations Council Act (Cap. 225,
Laws of Kenya) establishes a national body to administer
examinations;
(b) Sessional Paper No. 5 of 1968 on special education for
children with
disabilities;
(c) Report of the Presidential Working
Party on Education and Manpower Training for the Next Decade and Beyond
(1988), which recommended
the implementation of the 844 system of
education to replace the old system of education inherited at
independence;
(d) The Copyright Act (Cap. 130, Laws of Kenya) which
deals with intellectual property rights;
(e) Legal Notice No. 50/1970
which entrust the local authorities (municipalities) with the responsibility of
managing schools in
their areas of jurisdiction;
(f) Master Plan on
Education and Training, 1998-2003.
410. The Government has stated the
aims of education to be:
(a) To impart social skills and attitudes such
as philosophy of life, self-confidence, ambition, interpersonal relationships in
the
family and society, and the exercise of civic duties and
rights;
(b) To impart cognitive skills like reasoning, problem-solving,
precision, initiative and creativity. This enables the child to
operate
intelligently and fairly in society;
(c) To enable an appreciation of
economic production factors, including the interrelationships between them and
social dimensions
(such as governance, demographic factors, health and
nutrition, shelter, the natural environment and
entrepreneurial
skills);
(d) To give education an
increasing impact in institutionalizing scientific agriculture to maximize
yields from available land;
(e) To make education a key tool in
introducing a larger number of the population to other approaches of earning a
living beyond
agriculture;
(f) To use education as a means of providing
technical expertise.
A. Article 28. Right to education, including vocational training and guidance
411. The Ministry of
Education manages education under several levels.
412. Pre-primary level.
There is no legislation governing the conduct of pre-primary education. Early
childhood education in Kenya
begins in early childhood development
centres (ECDCs). The main objective of pre-primary education is to ensure
that all aspect
of a child’s total development are catered for. This
involves basic issues such as health, nutritional care, and the
initial
education of children of 0-5 years. The gross enrolment rate (GER)
helps to assess whether the child’s right to education
in these centres is
facilitated. To date, over 1,064,125 children are enrolled in these
centre. The GER is 35 per cent while the
pupil/teacher ratio is above 50
per cent. The Government’s contribution in this area
in terms of finances is only 0.1 per
cent. There are over
2,300 ECDCs throughout
the country.
413. Early childhood
education programmes at the national and district levels involve integrating
services with others like health
workers, local authorities, social workers and
nutritionists. Teachers at this level undergo in-service courses. However,
only
41 per cent of the total teaching force has been
trained.
414. Areas covered in the in-service courses include child
development, planning, organization and class management, physical and
outdoor
activities, environmental awareness, health and
nutrition.
415. Curriculum materials are developed at the National Centre
for Early Childhood Education located at the Kenya Institute of Education.
This
Centre coordinates the production of cultural-based materials like stories,
riddles and games in various ethnic languages,
and in Kiswahili, the
national language. It also coordinates research on early childhood
education.
416. ECDCs are established and managed by various sponsors
such as parents associations, local authorities, religious and welfare
organizations and private individuals. UNICEF, the Bernard Van Leer Foundation
and the Aga Khan Foundation have assisted in this
programme. The Government is
currently implementing a programme on early childhood development with funding
from, among others,
the Department for International Development of the
United Kingdom and the World Bank.
417. Primary level. Primary
education targets children 6-14 years. The provision of schools, whose numbers
have grown from 6,058
in 1963 to over 16,000 in 1997, encourages the
child’s right to education in primary school. As figure 7 shows, the GER
at
this level has declined from 87 per cent in 1992 to 76 per cent in 1996.
Enrolment is further encouraged through school feeding programmes,
particularly
in ASALs, the abolition of tuition fees, and the provision of subsidized
boarding facilities in ASAL regions.
Figure 7. Gross enrolment rate (GER) in primary schools
Source:
Ministry of Education.
418. The main objective of primary education
is to enable the child to acquire literacy, numeracy and manipulative skills.
It also
aims to develop self-expression, self-discipline, self reliance and
utilization of mental faculties to develop desirable social values
and
attitudes. It also creates an understanding of the immediate environment
and the wider world, and encourages children to appreciate
their own and other
peoples’ cultural heritage.
419. The primary education curriculum
offers a diversified range of subjects including the mother tongue, practical
subjects such
as arts and crafts, home science and agriculture, in addition to
geography, history and civics, English, Kiswahili and mathematics.
Teachers for
this level undergo a two-year pre-service course. By 1997, 91 per cent of
primary schoolteachers had been trained.
420. Secondary level. The
secondary level targets children from age 14. The GER in secondary school
declined from 30.7 per cent
in 1989 to 26.3 per cent in 1996, a decrease of
4.4 per cent within six years. Enrolment has not kept pace with the growth
in the
population of the eligible age (see table 9). There has therefore been a
rising number of adolescents who miss out on secondary
education. There still
exist gender and regional disparities in enrolment. By 1996, female
children constituted 46 per cent of
the total enrolment. This was lower than
the near parity proportion of 49.5 per cent achieved at the primary level. In
terms of
regional disparities, the 1993 GERs in rural districts ranged from 34.2
per cent in Nyeri-Central Province, to as low as 6.8 per
cent in Wajir and 5.9
per cent in Mandera. Female GERs in North Eastern Province were as low as 2.1
per cent in Mandera and 2.2
per cent in Wajir as compared to 18.4 per cent
in Nairobi. The pupil-teacher ratio in secondary school was 95.15 by 1997.
This
is reasonable in terms of offering quality education. Evaluating the
wastage at secondary school level can assess the child’s
right to
secondary education as seen in figure 8.
Table 9. Transition between primary and secondary enrolment
Years
|
Primary Standard 8
|
Secondary Form 1
|
Rates (%)
|
||||||
---|---|---|---|---|---|---|---|---|---|
|
Boys
|
Girls
|
Total
|
Male
|
Female
|
Total
|
Boys
|
Girls
|
Total
|
1991
|
207 300
|
173 700
|
381 000
|
93 727
|
65 069
|
158 796
|
45.21
|
37.46
|
41.67
|
1992
|
195 000
|
198 800
|
393 800
|
81 543
|
69 560
|
151 103
|
45.81
|
34.98
|
38.37
|
1993
|
210 400
|
185 300
|
395 700
|
90 777
|
78 140
|
168 914
|
43.14
|
42.16
|
42.68
|
1994
|
212 500
|
190 300
|
402 800
|
96 360
|
83 650
|
180 010
|
43.34
|
43.95
|
44.68
|
1995
|
211 600
|
194 000
|
405 600
|
97 394
|
85 917
|
183 311
|
46.02
|
44.28
|
45.19
|
1996
|
217 300
|
199 000
|
416 300
|
-
|
-
|
-
|
-
|
-
|
-
|
Source: Adapted from various Economic Surveys.
Figure 8. Enrolment at secondary school
level
ٱ Total
enrolment
Source: Situation Analysis 1998
421. University
level. There are five public universities in Kenya with an enrolment
of 43,591 students in the 1997/98 academic year.
This represents a
remarkable 14.8 per cent increase from the previous academic year. There were
13 registered private universities
in 1998. Four private universities are
accredited by the Government. The enrolment in the private universities shows
gender parity
with female students constituting 50.3 per
cent.
422. Children with disabilities. Children with disabilities are
grossly under-enrolled in Kenyan schools. The Comprehensive Education
Sector
Analysis (CESA) (Republic of Kenya and UNICEF, 1994) estimated that Kenya had
about 750,000 children with disabilities in
the age group 0-16 years. A recent
study estimated that the rate of enrolment in special schools programmes is only
6 per cent of
the eligible school-going population.
423. Data on children with disabilities are rare even within established
reports like the National Development Plan, Economic Surveys
and the Population
Census. The Government funds special education in partnership with donors,
well-wishers, religious organizations
and NGOs which have set up programmes and
schools which cater for children with disabilities (see figure 9). There
are currently
105 special primary boarding schools with an enrolment of just
over 10,370 children. Another 22,000 children, with disabilities
are integrated
in regular schools. There are 52 Educational Assessment and Resources Services
(EARS) centres in 52 districts complemented
by 345 subcentres. The
Government provides personnel for the EARS programme, while the Danish
development assistance (DANIDA) provides
funds for both development and
recurrent expenditure. However, DANIDA has transferred the project to the
Ministry of Education.
The Ministry spends 0.3 per cent of its total budget on
this subsector. This is inadequate to sustain the 34 special schools which
receive government grants.
Figure 9. Special education programmes in Kenya,
1997
Source:
MOE, 1997.
424. Figure 10 shows the number of children assessed by EARS
by 1997. A comparison of the number of children assessed and the available
institutions shows that a majority of the children with disabilities are outside
education and training institutions. A reasonable
number of the children
assessed under EARS programme fit in special schools. However, a larger number
can fit into integrated schools
with some special care. Statistics show that
the Government can integrate children with disabilities within normal schools
because
it is already stretched in its education and training budget. If well
utilized, this option can be used to provide education to
children with
disabilities so as to enable their full participation in society. This measure
will also encourage the acceptance
of such children by people with varying
cultural and religious backgrounds. This will ensure that their right to
education and special
care is observed in accordance with article 23 of the
Convention on the Rights of the Child. As figure 11 shows, there are more
trained teachers than untrained ones. From time to time, in-service training is
conducted. This enables the teachers to respect
and handle children
properly.
Figure 10. No. of children assessed by Education
Assessment and
Resources Services (EARS), by Province,
1997
Source:
MOE, 1997.
Figure 11. Primary and secondary schoolteachers
Source:
Economic Surveys (1993-1997).
425. In general, education is provided
by private and public institutions. In both cases it is expected that children
will be allowed
to participate in administration through the prefect system.
However, school administration is carried out largely by adults through
the
parents and teachers associations (PTAs), boards of governors and the school
administration.
426. Kenyan children, especially those in boarding
schools, spend three quarters of the year away from their parents. The
influence
of teachers on their ethical and moral development is therefore
substantial. The teacher is a role model for the child. In order
to safeguard
the welfare of the child against abuse by teachers who are the principal care
givers, the Government has enacted regulations
to guide their
conduct.
427. The Teachers Service Code of Regulations (Revised) spells
out disciplinary procedures to be followed especially in the interdiction
of
teachers. Disciplinary action against teachers starts with interdiction,
suspension, and eventually removal from the register
of teachers. Acts of
misconduct include assault against the child, carnal knowledge of the child,
making sexual advances, absenteeism
and drunkenness. Teachers can make their
representations to the Teachers Service Disciplinary Committee, or later in
a Teachers
Service Tribunal which affirms or overrules the decisions of the
Disciplinary Committee. Besides interdiction or removal from their
teacher’s register, teachers may also be charged in court for any criminal
offences against the child.
428. Non-formal education. This includes any
organized systematic learning activity outside the formal school system. It
provides
selected types of learning to particular subgroups in the population.
These include children, particularly in areas of agriculture,
family planning
and occupational skills. This is an alternative method to reach those who are
excluded from formal education, particularly
children out of school. A CEDC
survey done by GOK/UNICEF revealed that out of a sample of 1,319 CEDC, 75 per
cent had attended school
at one time or another, while only 28 per cent were
still in school at the time of the survey.
429. The concept of non-formal
education for out-of-school children and adults is not new in Kenya. In
1996, the National Conference
on Education, Employment and Rural
Development emphasized the need for the full mobilization of Kenya’s
human resources through
a coordinated programme for youth and adults. The
Conference also emphasized that people have to be mobilized outside the school
system, as schools constitute only one method of producing a sufficient
volume of educated persons for development. This inspired
the creation of
village polytechnics to provide training opportunities for primary-school
leavers and dropouts.
430. There are two main categories of
non-formal education programmes: those which lead to credits and certificates,
and those which
do not, but provide functional knowledge and skills for
productive work such as Juan Kali (small-scale informal enterprises)
training programmes through apprenticeships. In Kenya this latter category
refers to technical
and vocational education offered in tertiary or post-school
training institutions.
431. There are currently 675 youth polytechnics and youth centres. These
provide technical and vocational education and training
programmes for
primary-school leavers. Students can join youth polytechnics for short courses
even if they have not completed their
primary education. Youth polytechnics are
community based, with some funding from the Government and
donors.
432. Non-formal education includes highly organized types of
skills development centres such as the Undugu Society of Kenya.
There are also literacy centres which are less organized and offer basic
training. These are located in the city slums and remote
rural areas.
Enrolment in the non-formal education sector is likely to witness an increase
because of increasing numbers of children
outside formal education. They have
emerged in the poor residential areas of the cities and towns. Private
individuals or communities
establish them in response to a felt need for the
provisions of education to all children. Children enrolling are mainly children
in need of special protection who have either never enrolled in schools or have
dropped out because of poverty. Informal schools
are flexible. They do not
require school uniforms, age limitations are not very rigid, and there is less
stiff punishment for absenteeism.
Most informal schools, however, lack basic
facilities, are overcrowded, lack qualified teachers, and are excluded from
services
and opportunities available to children in formal
schools.
433. Adult education. The provision of adult education also
enhances efforts towards the provision of quality education for Kenyan
children. Adult education includes programmes of adult literacy,
occupational (vocational skills training) and community programmes.
These
enhance the appreciation in adult learners of the impact of education
on their children.
Therefore, they are a way of creating awareness of
children’s right to education. A parent who is literate increases
productivity,
and this output is ploughed back for the children’s benefit.
Literate parents also understand the nutrition requirements of their
children, which leads to better health. Literate parents are
more likely to
seek special attention for their children with disabilities.
Table 10. Recurrent budgetary allocation to basic
levels of education
Level
|
1991/92
|
1992/93
|
1993/94
|
1994/95
|
1996/97
|
1997/98
|
Primary education
|
309 521 633
|
384 565 176
|
592 254 763
|
18 438 925
|
26 346 917
|
35 044 739
|
School for the handicapped
|
4 186 645
|
4 843 616
|
7 716 817
|
1 529 127
|
2 727 274
|
3 052 189
|
Pre-primary
|
637 155
|
645 138
|
759 857
|
180 456
|
376 642
|
512 359
|
Secondary
|
84 563 735
|
97 240 916
|
168 047 335
|
16 176 868
|
27 117 305
|
32 438 708
|
Overall budget
|
560 999 160
|
628 214 850
|
961 847 540
|
1 039 675 095
|
1 521 245 672
|
1 629 893 500
|
Source: Budget estimates, GOK.
434. Good health and adequate
nutrition are necessary for pupils’ success in learning.
A wellnourished and healthy child has
a higher learning capacity than one
who is malnourished or unhealthy. To enhance the nutrition and health of
children in the school
system, there has been integration of nutrition and
health into the curriculum, the use of schools as centres for community health,
and school feeding and school milk programmes.
B. Article 31. Leisure, recreation and cultural activities
435. Rest is very important for a child’s
development. Before the pre-primary level, the family, especially the mother,
is
responsible for ensuring rest and leisure time for children. In Kenya,
as in other African countries, the child’s welfare
is central. In the
Kenyan education system, school terms are divided by holidays in April, August,
and a long holiday that lasts
from about mid-November to early January. These
ensure approximately four months of rest, particularly for the pre-primary and
lower
primary levels. There are five formal school days a week. The school
curriculum facilitates sporting and recreation by providing
for co-curricular
activities and physical education lessons within the school timetable. Two out
of eight lessons a week are set
aside for physical education in lower secondary
school, and one for upper secondary. However, because of the overcrowded 8-4-4
system
of education, a substantial portion of leisure time is utilized in
homework, particularly for children in upper primary classes and
in secondary
schools.
436. Some aspects of traditional education are still in place.
This embodies traditional recreation activities appropriate for children
of
different ages. This is particularly the case with most rural children.
Traditional games and sports are played alongside modern
recreational
activities. These include swinging of loop (rings around the waist) for girls,
wrestling for boys,
hide and seek for both sexes, and bean bag games.
Today, there is a whole range of modern facilities enabling children to play
games
like football, netball, basketball and to swim. There are regional
differences in the facilities available in urban and rural
areas.
437. The Ministry of Home Affairs, National Heritage, Culture and
Social Services coordinates the various cultural development programmes
in
the country. This ensures promotion of the performing arts, including
drama, music, dance, acrobatics, poetry, sports, arts,
and the development
of a wide range of cultural activities. These cultural activities are
available for those in and out of school.
NGOs and the private sector
agencies also sponsor children’s arts exhibitions and theatre
for recreation and communicating
development messages.
438. Among the
topical themes explored within the Kenya Music and Cultural Festival are the
“rights of the child” and
“disability is not inability”.
The Ministry of Education, through its Performing Arts Section, coordinates
schools’
and colleges’ music and dance festivals from the zonal to
the national level. These festivals portray Kenya’s cultural
diversity
and its appreciation, especially within the school environment.
1. Budget status of children’s education
439. The right to education is severely
affected by the Government’s budgetary allocations to the sector. While
the sector
gets about 80 per cent of the Government’s recurrent
expenditure, it is faced by severe problems because of poor targeting
and
distribution.
440. Even the past distribution of financing has not been
proportionate with enrolment levels. While primary schools have much higher
enrolment rates than secondary schools, they get proportionately lower
allocations. Currently, 57 per cent of public funds go to
primary education,
16.2 per cent to secondary and 20 per cent to post-secondary education. This
distribution is not proportionate
to overall enrolment considering that 89 per
cent of children are enrolled at the primary level, 29 per cent at secondary
level,
and less than 2 per cent at the postsecondary level.
441. The
problem is compounded by the fact that about 85 per cent of recurrent
expenditures goes to general administration and planning,
including
teachers’ salaries. Further, overall recurrent expenditure estimates
account for about 95 per cent of the total
budget of the Ministry of Education,
leaving a mere 5 per cent of allocations for development activities (see Figure
12). This has
severely constrained the ability to equip schools even with the
most basic requirements.
Figure 12. Development budget for basic education services for children, 1993-1998
Source:
Budget estimates, GOK.
2. Measures to ensure quality education
442. Various measures have been put in place to
ensure the child’s right to quality education. These include the
following.
443. High enrolments at the early childhood care and
development centres are encouraged so as to develop the full potential and
talent
of the child. The school milk and school feeding programmes, especially
in ASALs, are expected to raise enrolment rates and increase
retention and
completion rates.
444. The Government has defined its aims of education to
conform with these minimum standards. The Ministry of Education, through
its
inspectorate section, ensures full compliance with curriculum implementation in
all institutions registered by the Ministry,
whether private or public. This
ensures that no institution or body interferes with the liberty of children in
the classroom and
in co-curricular activities. The curriculum is continuously
reviewed to ensure that children are not forced out of school due to
stress.
445. The Government aims at providing quality trained teachers at
all levels of education. This ensures that they can handle children
without
violating their rights. To ensure that schools conform to the standards set for
teaching, safety and health measures, and
the number and suitability of staff,
school inspectors are deployed at the zonal level, including the district and
provincial levels.
446. The Kenya education system is mainly child
centred. It identifies and specifies what the learner will be able to
accomplish
at the end of a given programme. It is therefore more concerned with
learner outcome, rather than with the learning process. The
role of a teacher
is no longer that of an information giver, but of a facilitator and supervisor
of the learning process. The teacher’s
main responsibility is to plan,
organize, direct, coordinate, and control experiences of the learners engaged in
various learning
activities. The 8-4-4 system emphasizes a practical approach
to delivery of the curriculum.
447. The Government’s policy is to
shift resources from tertiary to basic education. This is reflected in the
current trend
where the majority of donor programmes are in primary and
secondary school. These measures include Strengthening of Primary Education
(SPRED) and Primary Schools Management (PRISM) programmes.
448. The
development of respect for the child’s parents, their cultural identity,
language and national values has been implemented
to reasonable levels. In the
early stages of education in the rural schools, children are allowed to learn in
their mother tongues.
This is the case especially in the pre-primary and in the
lower stages of the primary school level. This enhances the children’s
cultural identity and understanding of their language.
449. The system of
education in Kenya prepares the child for a responsible life in a free society.
It ensures that children learn
various subjects as they progress through
different levels of education. This is enhanced further by the learning of
practical subjects
like home science, agriculture, arts and
crafts.
450. In Kenya, the free exchange of cultural values is encouraged
through the establishment of national schools. In these schools,
children from
all Kenyan communities learn together. This enhances cultural integration.
National music festivals and drama competitions
at various levels of education
further enhance integration.
451. The impact of education on children is
also enhanced during various National Scientific Congress competitions.
452. The high cost of textbooks and the demand for multiple-course books are
major factors impeding access to primary education by
children from poor
households. In order to reduce the cost of textbooks for the primary school
sector, the Government launched the
National Policy on Textbook Production,
Procurement and Supply for Primary Schools and the Approved List of Primary
School Textbooks.
These policies provide guidelines for the production of
high-quality textbooks as a basis for improved learning. They allow the
participation of private publishers and set guidelines and criteria for
selecting textbooks for the primary level. Students are
now required to buy
only one textbook per subject per class.
453. Currently, many schools and
colleges have guidance and counselling programmes. At the secondary level,
the Teachers Service
Commission has appointed teacher to head guidance and
counselling departments. Effective guidance and counselling services minimize
various forms of indiscipline.
454. Private educational institutions play
an important role in the provision of education and training. However, some
private schools
are poorly managed, and this affects negatively the quality and
relevance of education and training. Private educational institutions
are
required to
comply with the regulations on the establishment and management
of educational institutions. They are also encouraged to involve
parents by
forming Parents Associations to assist in the maintenance of high standards of
education.
455. Heads of schools are encouraged to maintain open channels
of communication so students can participate in the management and
administration of their institutions. Dialogue is encouraged, and a
prefect/class monitor system is set up involving children in
some
decisionmaking. A number of special education institutions for all categories
of children with disabilities have been established.
These range from primary
to post-school vocational training centres. The integration of children with
disabilities within regular
schools has increased their educational
opportunities and alleviated the threat of isolation. This has created a sense
of dignity
and promoted self-reliance. The Government’s policy on the
education of children with disabilities is clearly spelt out in
the Master Plan
on Education and Training for the Years 19972010. This plan specifically
notes that government policy will be to
encourage the integration of disabled
children in normal schools as much as possible in order to ensure their full
participation
in the learning process.
456. District education and
training boards will be encouraged to establish special schools for children
with severe disabilities.
They must take into account the special needs of
these children when putting up physical facilities. The Government has a
process
of identifying children with disabilities and encouraging families to
enrol them in school. It is also addressing the curriculum
needs for
children with disabilities (e.g. the blind), who cannot fully fit in the
existing 8-4-4 curriculum which emphasizes practical
subjects.
457. Various vocational rehabilitation training centres under
the Ministry have been established. The structural adjustment programmes
currently weaken these.
458. There have been community efforts to
establish a fund for children with disabilities. A Special Education Unit
within the School
Inspectorate of the Ministry of Education was created in 1997.
An Education Assessment Resource Centre in the Ministry of Education
was also
established with the help of DANIDA. The Kenya Institute of Special Education
has also been set up to train teachers in
special education institutions. The
Kenya Integrated Programme with assistance from the European Union and Sight
Savers International
has also been established.
459. Religious beliefs of
the child are respected within the schools system. Religious teaching is also
incorporated within the school
curriculum. Various Church organizations
continue to sponsor the establishment of schools and other institutions of
learning. In
Church-sponsored schools, students from different religious
backgrounds are allowed to enrol without any interference with their
faith.
3. Constraints
460. A number of constraints affect the
provision of quality education. These are described below.
461. Budget
allocations to the education sector constitute 33 per cent of the overall
budget. Budgetary constraints and the introduction
of structural adjustment
programmes by the Government affect the implementation of educational
programmes. They also impact on the
increased participation, retention and
completion by the child of the various levels of education. The provision of
adequate education
facilities like classroom blocks and dormitories, and safety,
health and other regulations are sometimes compromised. With the implementation
of structural adjustment programmes, special education receives a funding of
only 0.3 per cent of the Ministry of Education’s
budgetary
allocations which is inadequate.
462. Disparities along gender and
regional lines create categories of children whose access to education is
limited. There are gender
disparities in favour of boys in the provision of
education, recreational facilities and leisure activities. There are also
differences
between rural and urban areas in terms of leisure and
recreation. However, in terms of playgrounds, urban children are
disadvantaged.
463. Socio-cultural factors limit the success of any
policy aimed at ensuring that the child is enrolled in school. For example,
rites of passage and early marriages inhibit the child’s
development.
464. The policy on non-formal education is not yet
operational. Although guidance and counselling services are provided, their
effectiveness
is hampered because teachers offering these services lack proper
training.
465. The development of the physical and mental abilities of
the child to the fullest potential are limited by the scarcity of recreational
facilities in school and at home, especially in the urban areas. Available
facilities cannot adequately cater for children with
disabilities. There are
very few facilities for training middle-level teachers. This impacts negatively
on talented and gifted
children.
466. There are little data relating to
the actual number of children with disabilities.
467. The 8-4-4 system of
education is crowded in terms of the subjects offered. This reduces the time
for leisure activities, since
the time allocated for these activities is often
taken up in remedial teaching.
IX. SPECIAL PROTECTION MEASURES: ARTICLES 22, 38,
39, 40, 37 (b) - (d), 32, 33, 34, 35, 36, 30
468. In traditional
Kenyan cultures the child’s welfare was a central social and communal
matter. Cultures have had a critical
influence on the child’s right to
protection. But traditional cultures have slowly lost their hold. In their
place, the Government
has put in place social, administrative and legal measures
to safeguard children against economic exploitation like child labour
and other
forms of abuse. Some of the statutes dealing with children make provision with
regard to refugee children, children who
are sexually abused, neglected and
abandoned, those in internal conflicts, those using drugs and psychotropic
substances, and those
deprived of their liberty or in conflict with the
law.
469. The Government protects child victims through administrative
and rehabilitative services. NGOs, religious organizations and
community-based
organizations (CBOs) also assist children in physical and psychological recovery
and in social reintegration.
A. Children in emergency situations
1. Article 22.
Refugee children
470. Kenya
is drafting refugee legislation to harmonize various administrative measures
being undertaken by different agencies. Kenya
is a signatory to the
1951 Convention relating to the Status of Refugees, its 1967 Protocol, and
the Convention governing the Specific
Aspects of Refugee Problems in Africa of
the Organization of African Unity (OAU) (1969).
471. Kenya hosts
about 174,000 refugees. Of these, approximately 92,000 are children (UNHCR,
1998). These are unaccompanied minors,
children of single parents and those
with both parents. The Government gives refugee status to children whether or
not they are
accompanied. The International Committee of the Red Cross (ICRC)
and the Kenya Red Cross trace separated families and reunite them.
472. In collaboration with UNHCR, Kenya has established two refugee
camps: Kakuma in Turkana District in Rift Valley Province and
Daadab in Garissa
District of the North Eastern Province. These cater for displaced children from
Somalia, the Sudan, Ethiopia,
Rwanda and Burundi. The camps have adequate
health facilities for immunization, prenatal care, general health care and
therapeutic
feeding for children under 5 years old. The registration of
new births is continuous in both camps.
473. The Government facilitates
the provision of formal and non-formal education for refugee children with the
assistance of UNHCR,
UNICEF, Radda Barnen CARE International, the Kenya Catholic
Secretariat, the National Council of Churches of Kenya (NCCK), Jesuit
Refugee
Services and Don Bosco. All children of school-going age attend schools,
which run feeding programmes. These programmes have helped
to increase
attendance, enrolment and retention levels.
474. Guidance and
counselling are provided for the children in these camps. This enables their
physical and psychological recovery.
In addition, the camps offer
apprenticeship programmes in tailoring, carpentry and masonry. The trainees in
these programmes are
attached to construction and minor repair works in the
camps, in preparation for their eventual social reintegration.
2. Articles 38 and 39. Children and armed conflict
475. Under the Geneva Conventions Act (Cap.
198, Laws of Kenya) and the Geneva Convention Relative to the Protection of
Civilian Persons
in Time of War (the Fourth Geneva Convention), Kenya recognizes
the need to protect and safeguard the welfare of children in situations
of armed
conflict.
476. Since 1992, Kenya has witnessed conflicts in the Rift
Valley, Western, Nyanza and Coast Provinces. As a result, children were
subjected to physical and psychological trauma.
477. The Government,
UNDP, religious organizations such as the Kenya Catholic Secretariat and NCCK,
and NGOs contributed relief and
rehabilitative services. In mid-1998, the
Government set up a judicial commission to inquire into tribal clashes in Kenya
since
1991. It is mandated to find out the origin, causes and action taken
by police and to recommend the prosecution of persons who may
have committed
offences.
478. A survey by the NCCK in October/November 1993
established that a total of 38,367 families were directly affected by the
clashes
in Uasin Gishu, Bungoma, Mt. Elgon, Trans Nzoia, Turkana, Kisii/Nyamira
and Kisumu districts. It estimated that more than 195,671
children were
directly affected by the clashes. The number increased following fresh clashes
in Migori, Mombasa and Nyambene in
1997.
479. Following these clashes,
thousands of children were orphaned, maimed, raped or sodomized. In other
cases, children abandoned
or disappeared from their homes after they witnessed
their parents being subjected to beastly acts. NGOs and Churches have tried
to
respond to the relief and resettlements needs of the displaced, but few efforts
have been made to meet the needs of the children
affected by the
clashes.
480. In the face of these conflicts, hundreds of families still
live in camps in Nakuru District. In Kiginor camp, there 458 families
with more
than a thousand school-going children. Some of the children, especially in the
lower grades, have totally lost touch with
school, and interest in continuing
with learning. Similar situations exist at Kong asis and Mauche camps
with 267 and 160 families,
respectively. These have more than 1,500
children, most of whom are of school-going age.
481. The clashes adversely affected learning in most schools. The fighting
between Pokots and Marakwets in April-May 1997 interfered
with learning in more
than 20 schools.
482. The clashes led to an increase in early
pregnancies. Girls’ school enrolment decreased, and there was a rise in
early
drop-out from schools between 1991 and 1994. In some cases, girls’
learning opportunities were cut short when they were traded
off as security for
peace. Female children were subjected to mass rape at the height of the
clashes. Because of the clashes, children
have been forced to assume unusual
roles such as caring for those disabled by the conflict, unwanted children, and
those affected
by AIDS.
B. Children involved with the system of administration of juvenile justice
1. Article 40. Children within the system of
administration of juvenile justice
483. The
Constitution and the Criminal Procedure Code (Cap. 63, Laws of Kenya)
provide due process rights in respect of any individual accused of a criminal
offence. These include the rights: to a fair hearing within a reasonable time
by an independent and impartial court established
by law; to be presumed
innocent until proved guilty; to a legal representative of the accused’s
choice; to cross-examine the
State witnesses; to have an interpreter if the
accused cannot understand the language used at the trial; and to appeal against
the
decision of the court. In capital offences, the accused is entitled to
legal representation at public expense.
484. A child is entitled to due
process rights and enjoys additional safeguards provided by the Children and
Young Persons Act which
is the principal statute on juvenile justice in Kenya.
The Act establishes a juvenile court for the purpose of hearing all charges
against persons under the age of 18 years, except where such persons are
charged jointly with adults. There is only one Juvenile
Court in Kenya which is
situated in Nairobi. In other towns adult courts are converted to juvenile
courts on an ad hoc basis.
485. Capacity to commit a crime commences at
the age of 8 years. Between the ages of 8 years and
12 years, a child can be held liable
for an offence if it is proved that he
or she was aware of the offence. Furthermore, a child below the age of
12 years is presumed
to be incapable of committing a sexual
offence.
486. The procedure for hearing a case involving a child is
similar to that applied in other courts, both in terms of applying the
law on
criminal procedure and the law of evidence. The Children and Young Persons Act
provides additional safeguards to a child
by allowing the attendance of his or
her parent or guardian if he or she can be found and resides at a reasonable
distance. Furthermore,
the Act protects a child’s privacy firstly by
restricting the categories of persons who may be allowed into a juvenile court
to members and officers of the court, their advocates, witnesses and others
concerned with the case; parents and guardians; and other
persons specifically
authorized by the court to be present. Secondly, the Act prohibits publication
of the name and address of the
child, the school which he or she is attending,
or any other way to identify the child without authorization from the
court.
487. A child is entitled to bail unless he or she is charged with
murder or manslaughter, or unless it is necessary in his interest
to remove him
or her from association with any undesirable persons; or if his or her release
is likely to defeat the ends of justice.
488. In dealing with every case
of a person under 18 years, the court is required to have regard to his or
her welfare and must, in
a proper case, take steps to remove him or her from
undesirable surroundings and to ensure that proper provision is made for his
or
her maintenance. Words such as “conviction” and
“sentence” must not be used in respect of a child.
489. A
sentence of death must not be pronounced on, or recorded against a person if at
the time the offence was committed he or she
was under the age of 18 years.
Furthermore, a person under the age of 18 cannot be sentenced to imprisonment
except where the court
is of the opinion that he or she cannot be suitably dealt
with in any other way permitted by the law; in such cases the court should
record its opinion and the reasons for it. The imprisonment must be confirmed
by the High Court, and while in prison the child must
be confined separately
from adult prisoners and must not be allowed to associate with them. The
warrant of committal must clearly
show the age of the child. Other ways of
dealing with a young offender include discharge of the offender, probation,
corporal punishment,
payment of compensation or costs, committal to the care of
a fit person or an approved voluntary institution or approved school (if
the
child is less that 15 years of age), and committal to a borstal
institution.
Constraints
490. On of the difficulties experienced in the
administration of juvenile justice is the overlap of discipline and protection
cases.
This weakness arises from the Children and Young Persons Act which does
not provide a clear distinction between a child in need
of protection and a
child in need of discipline. A child in need of protection may easily be
processed through the juvenile justice
system as one in need of
discipline.
491. The child’s due process rights are compromised by
inadequate legal aid services throughout the criminal justice process
and other
support services and structures essential for the expeditious disposal of cases.
For example, the inadequacy of specialized
courts to handle matters affecting
children reduces the time required to focus on children’s
cases.
492. Overreliance on institutionalization of offenders as a
corrective measure has also been identified as a major weakness of the
juvenile
justice system. This weakness is attributable to many factors including the
inadequacy of pre-sentencing reports by social
workers. Besides the high cost
factor in running correctional institutions the imbalance between institutions
which cater for boys
and girls can only mean that girls (who have been allocated
one institution nationally) suffer a greater disadvantage. The use of
non-institutional community options is currently being advocated.
493. The proposed Children Act provides extensive provisions on the
treatment of child offenders which include the right to legal
aid at public
expense where the child is unable to obtain it, and the right to expeditious
disposal of a case. The proposed Act
also outlaws the use of imprisonment and
corporal punishment as corrective.
2. Article 37 (b) - (d). Children deprived of their liberty,
including any
form of detention, imprisonment or placement in custodial
settings
494. Section 72 of
the Constitution guarantees the individual’s right to liberty.
Children’s personal liberty can be infringed only if it is for the purpose
of their education and welfare.
495. Section 73 of the Constitution
outlaws slavery and servitude. This is complemented by sections 264266 of
the Penal Code which make it a criminal offence to buy
or dispose of slaves, to
be a habitual dealer in slaves, or to subject a person to unlawful compulsory
labour.
496. Under section 17 A of the Children and Young
Persons Act, a court may make an order committing a child to the care of a fit
person
or approved society. Children affected include children in need of
protection, discipline and care.
497. In Kenya, the police are
responsible for criminal investigations and arrests. Prosecution is the
responsibility of the AttorneyGeneral.
However, in practice, prosecutions are
sometimes done through the police. The Kenya Police Act (Cap. 84, Laws of
Kenya) contains
general provisions on the conduct of criminal investigations.
It has no special provisions on the conduct of the police in relation
to
children. However, the Children and Young Persons Act requires that accused
persons under 18 years should be kept in remand homes
and not in prison or
police stations. The Children’s Department usually provides advice in
cases affecting children.
498. Under the Children and Young Persons Act,
children may legally be deprived of their liberty where they have been in
conflict
with the criminal law, where they need social care, or are neglected or
abused. In these instances, children may be placed in a
juvenile remand home
awaiting trial. The lack of facilities makes this difficult. For instance,
there is only one officially designated
Juvenile Court in the country. In many
cases, normal courts are converted into juvenile courts. Normal courts lack the
proper atmosphere
for hearing cases involving children.
499. Kenya has
12 juvenile remand homes. These are inadequate to cater for the needs of
all children in conflict with the law. This
means that some children are held
with adults in prison remand homes. This practice violates the spirit of the
Convention on the
Rights of the Child.
500. Kenya has tried to apply the
United Nations Guidelines for the Prevention of Juvenile Delinquency and
the Standard Minimum Rules
for the Administration of Juvenile Justice in the
administration of juvenile justice. There are rules and regulations for remand
homes allowing for contact between children deprived of their liberty and their
families. However, these institutions are few.
This involves long distances
between remand homes and the child’s home. This compromises the
child’s rights. Attempts
have been made to increase the number of
juvenile remand homes and to bring juvenile justice closer to the
child.
501. There is no law guaranteeing prompt legal assistance for
children deprived of their liberty. However, children have the right
to
challenge a decision to deprive them of their liberty. NGOs such as the
Federation for Women Lawyers (FIDA). Kituo Cha Sheria
(Legal Advisory Centre)
and the Law Society of Kenya (LSK) provide legal representation. To improve
this capacity, children’s
officers are currently undergoing para-legal
training at the Kenya School of Law. Approximately 60 officers are
trained every year.
These include children’s officers, police officers,
protection officers and magistrates. Some of these have also been trained
on
juvenile justice administration, prevention of juvenile crimes and treatment of
young offenders by experts from the United Nations
Asia and Far East
Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) in
Tokyo.
C. Children in situations of exploitation
1. Article 32.
Child labour
502. Several
statutes in Kenya recognize the right of the child to be protected from economic
exploitation. There has also been increasing
recognition that child labour
poses serious development problems. A national policy on child labour is
evolving. It is spearheaded
by the Central Organization of Trade Unions (COTU)
and its affiliated unions. These efforts complement the laws on child labour.
The Employment Act (Cap. 226, Laws of Kenya) recognizes that working
children need to be protected and that children should not
be employed in
industrial concerns. It also regulates and controls the employment of children,
their remuneration, hours of work,
rest and leisure, medical care, and health
and safety standards. The Regulation of Wages and Conditions of Employment
Act (Cap.
229, Laws of Kenya) provides for the establishment of wages
advisory boards and wages councils. These regulate wages and conditions
of
public employment. They also specify the wages payable to adults and children
in all types of employment.
503. The Industrial Training Act (Cap. 237,
Laws of Kenya) regulates the training of personnel in industry, and has
provisions touching
on children. It provides, for example, that a person
may offer him/herself as an apprentice or an indentured learner upon attainment
of 15 years. Minors can only do so with the consent of their parents
or guardians. Further, all persons entering into such a contract
should get a
medical examination at the expense of the employer.
504. The Employment
of Women, Young Persons and Children’s Act (Cap. 227, Laws of Kenya)
restricts the employment of children
in certain industrial settings. It
empowers the President to prohibit the employment of children in certain
economic sectors. It
provides penalties for non-compliance. Other laws
touching on child labour are the Trade Unions Act (Cap. 233, Laws of
Kenya), the
Trade Disputes Act (Cap. 234, Laws of Kenya), the Workmen’s
Compensation Act (Cap. 236, Laws of Kenya) the Education Act (Cap. 211, Laws of
Kenya) and the Children and Young Persons Act (Cap. 141, Laws of
Kenya).
505. Despite these laws, child labour is still prevalent in
Kenya. Children work in plantations, mines and quarries, hawking, and
in
households as domestic help. In 1996, Kenya was reported to be among the top
10 African countries in the use of child labour.
It was sixth in terms of
child labour for children aged 10-14 years.
506. Child labour has
its roots in the attitudes of pre-colonial societies. These regarded children
as members of the economic production
unit of the family, as a source of
economic security for the aged, and a welcome help in day-to-day family chores.
The work performed
was regarded as critical to their training, education and
socialization. It also prepared them for adult life in their communities.
However, a new social order and economic policies have pushed men out of their
rural homes. This has resulted in women’s
and children’s
participation in economic labour. This has become entrenched.
507. Kenya
ratified ILO Convention No. 138 on Minimum Age for Admission to Employment
in 1979. The draft Children Bill (1998) tries
further to restrict the
employment of children. Child labour is not “light work” which is
part of the socialization
process of young people. It is work that prevents
children from attending school. It is often performed under conditions that are
hazardous and which hamper the physical, mental, spiritual, moral and social
development of the child.
508. The Government of Kenya signed a
memorandum of understanding with ILO in 1992 at the start of the ILO/IPEC
programmes. In the
programme year 1992/93, IPEC focused on raising awareness
about child labour in Kenya. This attracted many partners such as the
Ministry
of labour and Manpower Development, the Federation of Kenyan Employers (FKE),
the Central Organization of Trade Unions (COTU),
NGOs, local communities and the
media. These partners have initiated action against child labour. There are 22
ILO/IPEC programmes
in Kenya. The Children’s Department has compiled a
Directory of NGOs Combating Child Labour. Kenya participated in the Global
March against Child Labour. Awareness materials including calendars and posters
have been produced both in English and Kiswahili.
509. There are
intensified campaigns against the exploitation of the girl child in all spheres
including child labour. The Girl Child
Network is one of the lobby groups
spearheading this campaign. The Ministry of Labour has a Child Labour Unit that
carries out inspections
on child labour. However, this unit is short of trained
personnel and other logistical support. There are no cases of children
reporting incidents of economic exploitation. Both parents and the children
themselves often condone the practice. In other instances,
children and
interested parties may not be aware of where to report such
cases.
510. There is a gazetted National Steering Committee on Child
labour. It is composed of relevant government ministries, NGOs, trade
unions
and the Federation of Kenyan Employers. The National Steering Committee has
requested funding from ILO/IPEC to enable the
Central Bureau of Statistics to
carry out a survey on child labour. Cases of child labour have been increasing
because of the rising
levels of poverty in the country. The introduction of
costsharing and other user charges in schools has further increased this
practice.
2. Article 33. Drug abuse
511. Kenya is a signatory
to the Single Convention on Narcotic Drugs (1961, amended in 1978), and the
Convention against Illicit Traffic
in Narcotic Drugs and Psychotropic
Substances (1988).
512. The Children and Young Persons Act
(Cap. 141, Laws of Kenya) states that children found buying, receiving, or
in possession of
any drug which is dangerous or habit-forming are in need of
protection. Such children may be taken to a place of safety, or to court,
where
they are committed to an approved school, an approved society or to the care of
a fit person. The Dangerous Drugs Act (Cap.
245, Laws of Kenya) prohibits
the sale and use of narcotics and other dangerous drugs, but it does not contain
specific provisions
for protection from alcohol abuse as this is provided in the
Liquor Licensing Act (Cap. 121, Laws of Kenya) and the Traditional Liquor
Act (Cap. 122, Laws of Kenya).
513. Since the early 1970s there has been
a considerable increase in the use and abuse of various drugs in the country.
Drug abuse
is reported regularly in the papers. Court cases related to drug use
are also common. Drug abuse occurs both in and outside schools.
The major
drugs abused in Kenya are alcohol, tobacco, cannabis, khat and, to a lesser
extent, tranquilizers and volatile solvents
(petrol, glue, and plastics). Glue
sniffing is rampant amongst street children. A chemical analysis by the
Government Chemist Department
in 1992/93 showed that glue is very toxic and
contains substantial quantities of benzene.
514. Although no study has
been undertaken, there is evidence of considerable smoking among children in
urban areas. The Government
is concerned about this habit.
515. The
Government commissioned a survey in 13 districts in Kenya in 1997. This
indicated that only 1 per cent of the total sample
of CNSP were using
drugs. This was considered to be a gross underestimate. Qualitative
information indicated that a substantial
number of street children take drugs,
particularly petrol and glue. Child prostitutes also take drugs. Many of the
children also
peddled drugs along with other items. Children in eastern Kenya
are used in the harvesting of khat.
516. Drug abuse is increasing
rapidly, especially among street and school-going children. The effect of
drugs on users is similar
to narcotics. Drug abusers include caretakers
drugging children with sedatives intended for use by adults, or sharing
narcotics
and alcoholic drinks with them.
517. The law addressing drug
abuse and trafficking, especially as it relates to children, is inadequate,
particularly with regard
to the handling of drug traffickers and the treatment
of the children involved.
518. There are no provisions dealing with the
exploitation of children in the production, sale and use of narcotics and other
dangerous
substances. This allows children to be used with impunity in the
production khat in Kenya. However, most measures are not rehabilitative
since
they deal with children caught buying, receiving, selling or in possession of
any drug considered dangerous or habit forming.
3. Article 34. Sexual exploitation and sexual abuse of children
519. The Penal Code (Cap. 63, Laws of
Kenya) defines rape in section 139 an unlawful carnal knowledge of a woman
or a girl without
her consent, or if such consent is forcibly
obtained.
520. The key statutes which deal with this aspect of
exploitation are the Penal Code and the Children and Young Persons Act. The
Penal Code makes it an offence to rape or defile girls under 13 years and
boys under 16 years, and to detain boys under 14 years
of age.
Homosexuality, incest and living off the earnings of prostitution are also
offences. The Children and Young Persons Act
provides for intervention
where a child has been sexually assaulted. It also provides for intervention
where the child belongs to
the same household as another against whom any
offence has been committed. It also provides for cases where a child belongs to
the
same household as a person who has been convicted of an offence against a
child. Such a child is considered to be in need of protection
and can be taken
to a place of safety by an authorized officer. The Act does not provide for
direct action by members of the community
who can only report to authorized
person.
521. There are several indicators of sexual abuse and
exploitation of children in Kenya. These include newspaper reports of cases
appearing before various courts and those reported to local NGOs like the
African Network for the Prevention of and Protection against
Child Abuse and
Neglect (ANPPCAN). However, this is merely the tip of the iceberg. Both male
and female children are sexually abused.
Boys are victims of homosexual
relationships. The majority of the sexual abuses are of female victims usually
less than 10 years
old. In a big proportion of the cases, sexual abuse
occurs several times before being discovered or reported. Sexual abuse in
itself
is detrimental. This is worsened by repeated questioning and court
appearances.
522. Vulnerable children include those in homes, those
engaged in child labour, particularly street boys and girls, children in
domestic
labour and children in institutions. Sexual abuse and exploitation of
children in the homes occurs in the form of molestation, defilement
and rape by
people responsible for protecting them. These include parents, relatives, maids
and houseboys. Such cases particularly
those involving incest, are rarely
reported.
523. Male members of households have subjected girl children in
domestic labour to sexual exploitation. The number of cases increases
as more
girls enter this sector. Children in institutions may be subjected to
molestation, defilement and rape. Street children,
especially girls, are
exploited, defiled and raped by adults. In many cases, sexual abuse leads to
HIV/AIDS.
524. The causes of sexual abuse among children include
vulnerability in families, lack of proper childcare and poverty. These push
children to child labour and cause AIDS which leaves children without the
protection of their parents. Urbanization, overcrowding
and unemployment are
further causes of sexual abuse. Girls are particularly
vulnerable.
525. The Children Bill provides for the protection of a child
from sexual exploitation and abuse. This includes protection from exposure
to
obscene material, prostitution and involvement in pornography.
526. In
addition, the Government has established a Crisis Reporting Desk in the
Department of Children’s Services for sexually
abused, neglected and
abandoned children. Plans are at an advanced stage to start a Peace House for
sexually abused children in
Nairobi.
527. A number of NGOs and CBOs
including the Anti-Rape Organization and legal agencies such as FIDA, Kituo Cha
Sheria and the Public
Law Institute help women or families to sue in cases of
molestation, defilement, or rape. These organizations also create awareness
about this problem and ways to combat it. However, their capacity cannot cope
with the cases. The organizations work closely with
the
Government.
528. Kenya participated in the World Congress against
Commercial Sexual Exploitation of Children held in Sweden in 1996. As a
result,
a National Plan of Action was developed jointly between the Government
and NGOs under the auspices of End Child Prostitution in Kenya
(ECPIK). A number
of activities have been undertaken concerning child sexual abuse and
neglect.
529. A coalition on child rights and child protection
spearheaded by the ANPPCAN regional office has been established. The coalition
brings together various actors including the Children’s Department, the
Ministry of Information and Broadcasting, the Ministry
of Education, the
Ministry of Labour, the Family Life Counselling Association of Kenya and the
Child Welfare Society of Kenya. The
coalition has achieved the
following:
(a) Establishment of protection and reporting
desks;
(b) Hiring of a part-time legal protection officer;
(c)
Creation of Peace Houses for Abused Children who require physical, psychological
and social reintegration;
(d) Holding provincial workshops with the aim
of sensitizing and creating awareness in the communities on issues related to
sexual
abuse and exploitation;
(e) Producing a lot of advocacy materials
and circulating them countrywide.
4. Article 35. Sale, trafficking and abduction of children
530. The sale, trafficking and abduction of
children have been studied the least. It is believed that they have not
substantially
taken root in Kenya. The Penal Code (Cap. 63 Laws of Kenya),
section 142, defines abduction as forcible detaining or taking away
a woman
of any age with the intent to marry or carnally know her. The Penal Code is
reinforced by the Marriage Act (Cap. 150, Laws
of Kenya). Any person in
Kenya who compels, or induces by deceit and person to go from any place is
guilty of abduction. Children
are protected against crimes related to any kind
of trafficking.
531. It is also a criminal offence to import, export,
remove, buy, sell, or dispose of any person as a slave in Kenya. These
provisions
safeguard children from sale or exchange. It cannot be denied that
these crimes occur. The media have sometimes reported, and recaptured
stories
of the sale of newly born babies in hospitals and orphanages. A Children’s
Home featured prominently in the press in
June 1998. This matter is currently
before the court.
Article 39. Development of rehabilitation programmes for physical and psychological recovery and social reintegration
532. There is no specific information on
rehabilitative programmes for children affected by the tribal clashes. However,
there are
services for children in conflict with the law.
533. There are
three categories of juvenile offenders’ institutions in Kenya. These are
approved schools, borstal institutions
and probations hostels. These handle
children offenders. They vary in capacity, sex, age, nature of offences and
regional distribution.
They are run by different ministerial
departments.
534. There are 11 approved schools: Kabete, Othaya,
Gitathuru, Wamumu, Machakos, Kericho, Dagoretti, Kakamega, Thika, Likoni and
Kirigiti. Kirigiti Approved School, in Kiambu District, receives girls
while Kericho, Thika and Dagoretti Approved Schools are for
junior offenders.
The rest are for older boys. An attempt is made to classify the children in
terms of their rehabilitation needs
such as protection, discipline or
care.
535. Kenya’s Approved School programme has existed since
1943. In the last seven years, these institutions have handled a steady
annual
population of 4,800 (within the 1015 age bracket) out of which 300 are
girls held at Kirigiti Approved School. Without exception,
children are
committed to the institutions through the juvenile courts.
536. Approved
schools offer a number of Governmentfunded services within their wider
rehabilitation programmes. The annual budgetary
allocation for these programmes
is not adequate.
537. Formal education, following the normal school
curriculum and syllabus, and non-formal education and general literacy courses
are provided in approved schools. Many children have benefited by sitting for
the Kenya Certificate for Primary Education (KCPE)
and the Kenya Certificate for
Secondary Education (KCSE) examinations. Those who make it to secondary schools
have the opportunity
to join middle-level colleges and
universities.
538. Over the years, a culture of good discipline has
evolved. There is extensive use of psychosocial services, spiritual guidance
(chaplaincy) and counselling by social workers and teachers.
539. Some of
the institutions are provided with qualified health provider personnel -
clinical officers, nurses and visiting doctors.
They receive equipment and
funds to procure drugs and vehicles to enable them to respond efficiently to
emergencies.
540. Approved school programmes emphasize vocational
training. These give the children survival skills either for self-employment
or
salaried engagement. In nearly every case, children are certified through
government trade tests for artisan’s craft/trade
courses. These cover a
wide range of vocational skills. The approved schools, with a few variations,
offer courses in building,
electricity, leather work, handicrafts, chemical
processing, food processing, automotive/metal work, textiles, and animal crop
production.
541. The other institutions involved in juvenile justice
administration are the borstal institutions and probation hostels. These
offer
comparable services to those in approved schools. There are currently two
borstal institutions in the country: Shimo La Tewa
in Mombasa and
Shikusa in Kakamega. Borstal institutions have a capacity of 500 boys
aged between 16 and 18 years. These children have committed
very serious
offences like felony, rape, and involvement in drug abuse, narcotics and
psychotropic substances. Discipline is highly
regimented within the borstal
system.
542. There are few probation hostels in Kenya. These can hold
252 children at any given time. Shanzu in Mombasa, Nairobi, Eldoret
and
Nakuru probation hostels are the only four such institutions in Kenya. The
hostels are established to offer temporary placement
for young offenders of
1416 years for a period of less than 12 months. They ensure the
safety of children whose lives the juvenile
courts believe will be in danger if
they are released back into the community. Borstal institutions and probation
hostels have similar
programmes of rehabilitation to those in approved schools.
Children in these institutions who perform well in KCPE examinations
are given
chances to join those from approved schools at Kabete Secondary School, which is
run by the Children’s Department.
543. The three categories of the
juvenile justice system have inadequate trained personnel. The state of
repair of physical infrastructure
varies from one institution to another.
However, there are adequate recreation and playing facilities. Sleeping and
feeding conditions
are generally satisfactory.
544. The effectiveness of
the reform programmes offered in the approved schools, borstal institutions and
probation hostels is significant
in terms of character reformation, usable
vocational skills, self-reliance, and physical and psychological
recovery.
545. The fully fledged welfare sections in the institutions
give vital support through guidance and counselling. This helps the children
to
adjust and reform, and prepares them for return into the communities when they
are released.
546. Besides government rehabilitative services, Kenya
hosts nearly 600 local and international NGOs, community-based and religious
organizations which have programmes for CNSP. These include formal non-formal
education and training, health, counselling, shelter,
advocacy, combating child
labour, recreation, family and community socio-economic support, and spiritual
and moral guidance.
547. The activities of these organizations are spread
all over the country. However the majority are in the major towns where the
bulk of CNSP are found. These include street children, children in employment,
those sexually abused, child prostitutes, and orphaned
and abandoned children.
NGOs and religious organizations complement the efforts of the Government. This
is especially significant
because the budget allocation of key government
ministries related to services has been drastically reduced. Although most NGOs
and religious organizations have resources, it is difficult to coordinate their
work. It is expected that effective coordination
will be instituted under the
Children Bill (1998), which provides for the creation of the National Council of
Children’s Services.
548. Follow-up and after-care services lasting
for two years and targeted at social reintegration for released inmates show
that the
institutional programmes are effective. Follow-up services involve
provisions of counselling and guidance both to and with parents
or guardians.
They help to sustain the ex-inmates’ confidence. After-care services also
attempt to link these children with
prospective employers. They also serve as
linkages between ex-inmates, NGOs, the Department of Social Services, and the
Kenya Union
of Small and Medium Entrepreneur and Traders Organizations (KUSMET).
This and other agencies assist in providing further vocational
training, of
tools and equipment to engage in the informal sector, and non-collateral capital
to enable the children eventually to
go into productive self-employment. They
also help to smooth the transition into normal life in society.
549. Frequent rural-urban migrations and the precarious settlements of
the urban poor in temporary slums where changes of residence
are never planned
have hampered aftercare services.
5. Article 36. Other forms of exploitation
550. There is no law regulating sports agents
or sports bodies involved in the development of young talent in this field. In
most
cases, sports agents and bodies do not take the overall physical and mental
development of children into account, thus exposing them
to
exploitation.
551. The same applies to children involved in the media.
It is unlikely that their informed consent is sought before involving them
in
media activities such as teledrama. Where parental consent is sought, monetary
considerations, rather than the best interest
of the child may be the driving
force.
552. Children are denied their freedom of leisure by extra
coaching which has been introduced in many schools during weekends, after
formal
school hours and during holidays. In some instances, teachers, especially in
rural schools, send children to run unofficial
errands. These include making
tea, fetching water and firewood, and weeding. In this way children are removed
from their classwork.
This denies them very valuable time for study and
recreation.
553. HIV/AIDS orphans have been exposed to exploitation by
relatives and other members of society, either as sources of cheap labour
or
other illicit activities. Attempts have been made to sensitize society on the
rights of the child. KAACR is involved in setting
up child rights clubs in
schools. Currently 33 child rights clubs have been set up in Nyanza and Nairobi
provinces.
554. The Kenya Girl Guides Association has integrated child
rights in its training manuals. With support from Radda Barnen, the association
has produced a Rights of the Child Handbook. Badges and certificates are
awarded on completion of suggested activities which enhance the understanding
and practice of the rights
of the child as specified in the Convention on the
Rights of the Child.
D. Article 30. Children belonging to a minority or an indigenous group
555. Kenya has more than 43 different ethnic or
tribal communities. Each of these has its culture or language. In matters
relating
to personal laws, the communities have freedom to do things according
to their traditions and customs, except where these are repugnant
to morality
and justice.
Constraints on special protection measures
556. Decreasing budgetary
allocations to social services since the freezing of the Enhanced Structural
Adjustment Facility in the
early 1990s has led to a serious drop in the
standards of the provision of services to children. Educational and vocational
training
facilities in most of the government rehabilitation centres are
seriously themselves in need of rehabilitation. There are also inadequate
educational and training materials.
557. Field services are affected by
the shortage of vehicles. This hampers case investigations in most
districts.
558. The Government increased the number of children’s
officers in the Children’s Department by 96 new posts in 1997.
However,
most of the new districts operate without officers, since there have not been
adequate funds to set up offices. Other
relevant government departments are
faced with similar problems.
559. In spite of the existence of many NGOs
involved with the delivery of services to children, coordination amongst them is
inadequate.
This has led to the duplication of services, which has minimized
their impact. Many NGOs in Kenya face severe financial and training
constraints.
Annex
THE WAY FORWARD
I. GENERAL MEASURES OF IMPLEMENTATION
A. Article 4
1. Many
groups such as lawyers, the defence forces, immigration officers, health and
social workers, magistrates, police, religious
leaders, parents,
parliamentarians and other policy and decision makers need to be sensitized on
the Convention.
2. While some teachers have been trained on the
Convention, there is a need to train more so that each school has a trained
teacher.
There is also a need to sensitize heads of schools and management
boards of schools on the Convention. The Convention should also
be incorporated
in the school curriculum.
3. There is a need to translate the Convention
into various vernacular languages, to air more radio programmes and produce
additional
information, education and communication materials.
B. Article 42
4. A review of the Kenyan Constitution is in
process and the following issues will need to be
considered:
(a) Incorporation into national law of treaties and
conventions already ratified;
(b) Make reference in the Constitution to
children’s rights.
Expenditures on basic social services
5. There is a need to clearly identify
children’s activities in the budget so that a clear analysis can be done
on the proportion
that is spent on children. This may call for the
sensitization of budgetary officers on child rights issues so that they are not
addressed on an ad hoc basis.
II. DEFINITION OF THE CHILD
6. The definition of the child needs to be
harmonized. The Children Bill contains a standard definition of the child.
Strategies
that build on positive traditional functions of the society in
defining the child should be adopted.
7. The Constitution of Kenya should
be amended to include the definition of a child. It should also make specific
reference to the rights of children.
8. In order to effectively implement
the definition of the child in the Convention and the proposed Children Bill,
public awareness
campaigns should be intensified.
9. Kenyan marriage laws
should be harmonized in order to protect the girl child, and made compatible
with the definition of the child
stated in the Convention.
10. The
principle of the best interests of the child as enshrined in the Convention
should always be a primary consideration in defining
a child in Kenya.
III. GENERAL PRINCIPLES OF IMPLEMENTATION
A. Article 2
11. There is a need
to speed up legislative reforms as recommended by the Task Force on the Laws
Affecting Women, and that on Laws
Affecting Persons with
Disability.
12. Concerted efforts should be made to sensitize the public
on discriminatory laws, policies, customs and practices.
B. Article 3
13. The Children Bill has attempted to ensure
that the best interest principle is addressed during judicial adoption and
guardianship
proceedings. However, resources should be availed to realize
this.
14. The principle of the best interest of the child should be among
the determining factors in considering and formulating development
policies and
programmes.
15. To contain the growth of slum dwellings and their
attendant problems, urban planning policies and regulations need to be reviewed
and enforced. Also, land policy and legislation need to be
reviewed.
16. Improvement of the agricultural sector and the provision of
services and infrastructure in the rural areas should be stepped up
to
discourage rural-urban migration and the proliferation of slums in urban
areas.
C. Article 6
17. The Government should reconsider the
effects of structural adjustment programmes on the provision of basic health
care and its
impact on children.
18. The rights to survival and
development should be made enforceable under the law.
19. There is a need
for more programme intervention, including sensitization and public awareness on
survival and development rights.
20. Costs related to HIV/AIDS tests in
the provision of maternal and child health services should be waived.
D. Article 12
21. Children’s rights should be included
in the training curriculum of all professionals dealing with
children.
22. School managers should promote and encourage
children’s participation in decisionmaking processes within the school
environment.
23. Dialogue that gives an opportunity for children to
express themselves within the family should be encouraged. Resources are
required
for a public awareness campaign to promote this.
IV. CIVIL RIGHTS AND FREEDOMS
A. Articles 7 and 8
24. The following
areas should be addressed to ensure that all births are registered and all
children have equal nationality rights:
(a) It should be a national
policy that questions on civil registration are included in national census and
household surveys. If
possible, independent surveys should be conducted
periodically to determine areas of need;
(b) The system of registration
should be computerized. The records should also be microfilmed, in order to
preserve the identity
of children;
(c) Personnel involved in
registration should receive further training, and the existing workforce
expanded;
(d) There should be more coordination between government
departments, NGOs and other organizations that provide essential services
like
issuing identity cards, education, health and insurance, among others. This
should create a linkage between registration and
services and would be an
incentive for registration;
(e) Awareness campaigns should be stepped up
through the use of mass media and information, education and communication
materials
that target different cultural values and norms. More emphasis should
be put on rural areas;
(f) Investigations on the background of destitute
children should be stepped up by the Children’s Department and other
actors,
so that the right to registration is respected;
(g) Service
providers at the grass-roots level such as traditional birth attendants should
be involved in sensitizing people and
reporting births occurring at
home;
(h) The current laws on citizenship should be revised so that the
right to Kenyan citizenship is accorded to all children born of
at least one
Kenyan parent.
B. Article 14
25. More should be done to encourage a change
in attitude in order to ensure full harmony between religious and cultural
practices
and individual freedom of choice.
26. The right of children of
minority communities to enjoy their own culture and to practice their religion
and language should be
protected. This will help to achieve the obligations
specified in the Convention of guaranteeing and promoting the freedom of
religion,
thought and conscience of children.
C. Article 17
27. There is a need to monitor public places
where children have easy access to information that is inappropriate for child
audiences.
This should be accompanied by penal sanctions. Although the
broadcast media give guidelines for films and television programmes
shown,
parents and guardians must take responsibility for monitoring the programmes
watched by children in their care.
28. There is a need to recognize
non-formal communication modes, especially folk media and popular theatre, as
channels for voicing
children’s concerns.
D. Article 37 (a)
29. Kenya has ratified the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is
expected
that this will soon be made applicable domestically to allow full
implementation of the provisions of that Convention in Kenya.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Article 5
30. There should be
more capacity-building for social welfare officers serving families. This is
necessary for effective counselling
services which prepare youth for responsible
parenthood.
31. Existing community-based services should be made widely
available to families. This requires increased funding for development
programmes, with the aim of reaching more deserving families.
32. New
community-based programmes to support families in their obligations to bring up
their own children should be developed.
33. There needs to be more
support for district children’s advisory committees to strengthen existing
ones and to establish
others.
B. Article 9
34. Programmes to address children whose
fathers are imprisoned need to be explored since some of the fathers are the
sole breadwinners.
35. Projects and programmes addressing ex-convicts
should be strengthened to ensure the economic empowerment of parents after they
serve jail terms; this will enable them to support their
children.
36. There is an urgent need to address the problem of older
children who may not be taken in by government, NGO or private institutions
for
the duration of their mother’s incarceration, and who are normally left to
fend for themselves.
37. The Extramural Penal Programme is a step in the
right direction as opposed to jail terms for mothers charged with minor offences
like illegal hawking and beer brewing.
38. More programmes to
rehabilitate child offenders outside institutions should be developed by
strengthening community-based rehabilitation
systems.
39. Children’s participation and opinions are very
important in matters that affect them. For their own protection, they should
be
consulted more in decisions about separation.
40. Ways and means of
reuniting children separated from their families by tribal conflict should be
explored.
C. Article 10
41. Cases of families wanting to be reunited
outside the country should take into account the child’s best interest.
The Immigration
Department should work closely with the Children’s
Department to ensure that the plight of children of mixed nationality is
given
due consideration.
D. Article 18
42. The application of the Guardianship of
Infants Act provides a compromise between various cultures and is in conformity
with the principles expressed in the Convention. However:
(a) It is
necessary to resolve the conflict arising from the application of different
standards to children of monogamous and polygamous
unions, and those of
cohabitees and single parents;
(b) Uniform legislation on children
irrespective of their cultural background should outline specifically what
constitutes parental
rights and responsibilities. This should achieve a much
higher level of protection for all children than they currently enjoy;
(c) Kenyan courts have applied the common law presumption of marriage where
parents have cohabited for more than four years. Elopement
should be treated
similarly. This should apply in situations where people have contracted
monogamous marriages which they have not
dissolved before entering into stable
cohabitation with other partners. The children they have within such
cohabitation deserve
protection;
(d) Counselling programmes should be
set up to help reunite the family after the imprisonment or retirement of
immigrant workers.
These will enable the parents effectively to resume
responsibilities over their children after their absence;
(e) There is a
need for counselling estranged couples to appreciate and maintain ties with
their children.
E. Article 19
43. There is a need to harmonize organs dealing
with abuse cases with respect to the prosecution of offenders and the treatment
of
abuse victims.
44. Officials handling children’s matters,
especially the police, hospital personnel, pathologists, court prosecutors and
magistrates,
should be sensitized to ensure that justice is done in child abuse
cases.
45. Local authorities should enhance programmes for children with
disabilities.
46. Referral systems should be strengthened to enhance the
channels for reporting child abuse cases. To encourage more people to
report
such cases to the relevant authorities, Crisis Desks and Peace Houses should be
made readily available in all provinces and
districts.
47. More research
about abuse is required to ensure that appropriate interventions are effected.
Relevant statistics, i.e. of abused
children and agencies offering services,
should be made available. Further, the root causes of abuse should be
established and addressed.
48. Witness protection programmes for
witnesses in abuse cases should be established.
49. Counselling services
for parents of children with disabilities should be more readily available to
stem the abuse directed at
children in need of special protection (CNSP),
especially by family members.
F. Article 20
50. Able persons should be encouraged to take
an extra child on a fostering or adoption basis. The public should also be
sensitized
on the plight of the homeless child. The Children Bill has set out
provisions on foster care placement, and provides for penalties
in case of
contravention.
51. Sponsorship and outreach programmes should be explored to encourage
homecommunitybased rehabilitation aimed at ensuring continuity
of family
ties.
52. There is a need for those involved in the fostering process,
such as children’s officers, social workers, care givers in
institutions
and counsellors for prospective foster parents, to receive professional
training.
53. The appreciation of foster care should be strengthened by
sensitizing the public on what foster care is. It should be emphasized
that
while fostering is temporary, adoption is permanent.
54. There is a need
for arrangements to be made for children in alternative care systems to have
proper identity - from birth certificates
to identity cards - in order to
safeguard each individual child’s right to a name and nationality.
Need for a national survey of CNSP to capture remaining districts
55. The rules and regulations for
children’s homes developed by the Children’s Department should apply
to all children’s
homes regardless of their
registration.
56. Consideration should be given to increasing the number
of children’s officers to enhance the Children’s Department’s
monitoring role as defined in the Children Bill (1998).
57. Kenya should
consider acceding to relevant international treaties like the Hague Convention
to ensure the supervision and monitoring
of adopted or fostered children, or
those placed under the care of fit persons leaving the country. Records of such
children should
be maintained by the Children’s Department and made
available for perusal by approved officers.
G. Article 21
58. Although the Children Bill goes beyond the
provisions of the Adoption Act, a system of crossborder supervision and a
requirement
for regular reports on the progress of the children should be
established. Coordination of adoption matters should also be undertaken
by the
National Children’s Council.
59. Counselling services for mothers
should be available so that they can make an informed choice for adoption
instead of abandoning
their children.
60. Adoption should be looked at as
being in favour of children rather than being solely in favour of the adopters.
Children with
disabilities and those who are HIV-positive can, and should,
benefit from adoption.
61. The process of adoption should be made easier.
More organizations should be encouraged to accept the challenge of offering
quality
adoption services by applying to be recognized as approved adoption
societies.
62. Agencies wishing to be approved as adoption societies should be vetted
seriously to verify their capacity to facilitate
adoption.
63. Prospective adopters should be thoroughly screened to
verify their fitness to adopt children.
64. All adoptions should be
undertaken in the best interests of the child.
H. Article 25
65. Existing Children’s Department and
Probation Department case committees should be strengthened and aftercare
services enhanced.
66. The review of children in institutions should not
be left to the institutions alone, but should involve the community to ensure
the effective return and reintegration of such children.
67. The
constitutions of voluntary and NGO institutions should allow for case review
committees to include the local children’s
officer.
68. Training on
the need for periodic review of placement as an integral part of rehabilitation
should be undertaken. This would
ensure that children benefit from placement in
the various programmes, and that they are entrusted to the care of alternative
caregivers
if this is considered necessary.
VI. BASIC HEALTH AND WELFARE
A. Article 6
69. Surveys should be
done on the nutritional status of CNSP, street children, children with
disabilities, and children aged 5-18
years.
70. Advocacy should be
stepped up on the effect of cultural practices on the nutritional status of
children. Advocacy on other indicators
like intensified micronutrient
deficiencies, clean water and availability of toilet facilities should also be
intensified.
71. There is a need to advocate for flexible working hours
for mothers during the first six months after birth. Mechanisms should
also be worked out with the Ministry of Labour to extend maternity leave from 60
working days to 90 working days, and for paternity
leave of 10 working
days.
72. Causes of maternal mortality should be identified and safe
motherhood initiative activities intensified, especially in regions
with high
mortality rates.
73. There should be a system of comprehensive ante-natal
care to provide HIV testing and counselling.
74. Sign language should be made the third national language to cater for the
deaf.
75. A monitoring mechanism should be established to facilitate the
writing of the next report.
76. More research should be done on
socio-cultural factors that are detrimental to motherchild health such as STDs,
HIV /AIDS and
breastfeeding.
B. Article 18
77. The Government should come up with a policy
that addresses the issue of CNSP, including street children. This should focus
on
their health and education while in the streets, reintegration with their
families and assistance to such families.
78. Such a policy should also
state the requirements needed by individuals or groups wanting to begin
intervention programmes for
these children. It should also curb practices which
are likely to exploit the very children they are supposed to assist.
C. Article 23
79. In the forthcoming population census (1999)
data on children and people with disabilities need to be collected analysed and
disaggregated
according to gender, age and disability.
80. A
comprehensive healthcare programme needs to be established to address the needs
of children and people with disabilities.
81. Initiatives of the Kenya
Society for the Blind and the Association of the Physically Disabled of Kenya
should be spread throughout
the Republic.
82. The Government should
subsidize the equipment and apparatus required by children and people with
disabilities. The Government
should therefore provide extra resources for the
cost of health care provision to people with disabilities.
83. Special
clinics for different handicaps need to be brought closer to the communities.
Medical staff should be educated on the
need for urgent treatment of diseases
that cause handicaps.
84. The Government should look into the concerns of
children with multiple disabilities and children with cerebral palsy, since
there
are no existing provisions to address them.
85. There should be
intensive advocacy on the Convention, addressing particularly children with
disabilities.
86. Parents of children with disabilities should be trained
to enable them to take care of such children.
87. The constitutional
review process should take into consideration the plight of children and people
with disabilities. In addition,
the draft Bill on People with Disability should
be enacted.
D. Article 24
88. The
Government’s commitment to facilitate the provision of safe water and
adequate sanitation should be adequately reflected
in the budgetary allocations
for preventive health care.
89. The major constraints to be overcome to
attain the child’s right to the highest standard of health and medical
care include:
(a) Poverty at the household level and hence low
expenditure on health services;
(b) Inadequate resource allocation to the services, e.g. drug supplies.
Kenya has an Essential Drug Supply Programme which supplies
drugs in the
district health facilities through zonal depots;
(c) The constant lack of drugs affects the utilization of health
services, including promotive and preventive care.
Other health sector challenges
90. The Health Policy Framework should be
implemented to waive cost-sharing for CNSP, for example street children. To
facilitate
this, street children should have some sort of
identification.
91. The food policy should be reviewed to include
nutrition issues and should be implemented immediately.
92. Refresher
training for village-based volunteers and primary healthcare workers in Turkana
should be completed.
93. The establishment and administration of a reward
system in cross-border cases in collaboration with Global 2000 and the Carter
Center, Nairobi, should be facilitated.
E. Article 26
94. The policy of the fund for the disabled
should change from the charity approach to a revolving fund to instil
responsibility in
the beneficiaries.
95. Owing to the increased abuse of
the harambee spirit, there is a need to have a policy defining its areas
of operation.
96. Efforts are being made to increase trainee intake in occupation therapy,
physiotherapy and orthopaedic technician and technology
courses in order to cope
with the demand. Incentives need to be given to these groups to retain them in
service. Resources to run
the service efficiently should also be
provided.
97. Training and recruitment of social workers should be
stepped up. In-service training for other extension workers should be
undertaken
as was done in the Embu Institute of Administration. Such workers
need incentives to boost their morale. It is also necessary to
facilitate their
movement since they cover long distances.
98. The Crisis Desk in the
Children’s Department needs to be decentralized and comprehensive
publicity given to it. The possibility
of extending it to NGOs and youth groups
should also be explored.
99. The Children’s Department should look
into the establishment of coordinating mechanisms for service providers, so that
data
collection and services provision are well organized. Ways of improving
the children’s homes should be look into.
F. Article 27
100. School feeding programmes currently cover
ASAL districts in the country. However, since the school milk programme is
national,
arrangements should also be made to replace it with a national school
feeding programme where all pupils in public schools are provided
with
lunch.
101. The school milk programme needs to be overhauled if it is to
meet its objectives. Since funds are inadequate, it should target
a smaller
population covering children up to standard four.
102. If the school milk
programme is replaced by a national programme to cater for a midday meal in all
public schools, there will
be a need for inter-ministerial collaboration to
discuss ways and means of sustaining the new feeding programme.
103. More
logistical resources need to be allocated to the programme.
Housing
104. Housing has not been given the attention
it deserves. The Government, through the relevant ministry, should come up with
housing
plans which avoid congestion and are affordable for poor families.
Developers should be encouraged to undertake the construction
of more affordable
housing projects.
105. There is an urgent need to establish the number of
street children who actually live on the streets, and those with alternative
shelter.
106. The Matrimonial Causes Act should be reviewed to address
this concern comprehensively.
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES
107. Increased funding should be provided to
strengthen the formal education sector programmes and limit the emergence of a
parallel
non-formal system. However, there is a need for increased coordination
between government agencies and organizations providing education
and training
especially in the non-formal sector.
108. The social dimension strategy
of education introduced by the Government and aimed at cushioning students from
poor families so
as to retain them in schools, should be used to promote the
interest of children with disabilities.
109. A policy guideline on the
re-entry of girl mothers to school to ensure that fewer girls drop out of school
should be introduced.
110. The school feeding programme should be
pursued, together with nutrition and health programmes, to enable and enhance
completion
rates in schools, especially in ASALs. Owing to the high costs
involved, further donor funding is required.
111. There is a Master Plan
on Education and Training which emphasizes future priorities in terms of the
provision of education.
112. A commission has been appointed to review
the education system to ensure access, quality and relevance of the education
provided,
and children’s future needs. The curriculum will be
strengthened to cater for children with disabilities. It will take into
account
special needs and remove any discriminatory practices, especially in relation to
practical subjects.
113. Increased child participation in decision-making
in the school should be promoted so as to curb indiscipline in
schools.
114. The education system should intensify the appreciation of
cultural diversity in the school setting through increased integration
of
children from various regions, communities and backgrounds in national,
provincial and district schools.
115. A policy and legal framework to
enhance the provision, maintenance and safeguarding of recreational and leisure
facilities, including
playgrounds and public parks, should be created.
Awareness of the rich and varied cultural heritage in Kenya should be increased
through the radio. The full participation of children in leisure, recreational
and cultural activities in the formal and informal
sectors should be encouraged,
having regard to age, gender balance, children with disabilities and regional
balance.
116. Sensitization is being intensified in the family to enable
the girl child to have equal time for play, leisure and recreation
activities.
117. The Government is encouraging greater participation of United Nations
agencies, NGOs, the private sector and the community in
the provision of
education and related services and facilities. In order to accommodate growth
in enrolments while conserving development
resources, existing schools will be
expanded to full capacity, multi-stream institutions before new schools are
established. The
possibility of developing double shifts in high population
density areas should be considered.
VIII. SPECIAL PROTECTION MEASURES
118. There is a need to intensify the creation
of awareness on child rights and the municipal laws relating to children,
especially
once the Children Bill becomes law. This should involve children
themselves and the general public. It should be done through such
means as
simplification and translation of the Convention and child
laws.
119. Mechanisms need to be established to prevent ethnic conflicts
and to safeguard children if such situations occur.
120. The Government
will need to intensify training for juvenile justice administrators at all
levels. Assistance from the international
community will be required in this
area, and should include the improvement of facilities for caring for children
in conflict with
the law.
121. The Government, in collaboration with NGOs
and workers’ and employers’ organizations, will seek support to
improve
the conditions of child labour. The draft National Policy on Child
Labour should lead to a sessional paper on the conditions and
minimum age of
employment.
122. Government and NGO rehabilitation centres need to be
strengthened to cater for children who abuse drugs and those who have been
abused. Kenya will need support to establish new, and strengthen existing,
crisis centres for such children.
123. There is a need for more resource
allocation for follow-up and after-care services in order to improve
reintegration and rehabilitation
services for children in need of
protection.
124. Mechanisms should be established to enable children to
have legal representation.
125. There is a need to set up and strengthen
community-based rehabilitation for juvenile offenders.
126. Mechanisms
for the care and support of HIV/AIDS orphans should be established at the
grass-roots levels.
- - - - -
[*] The Government of Kenya transmitted
copies of all the government documents, studies and statutes referred to in the
report. These
are available at the secretariat.
GE.01-40557 (E)
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