CHALLENGES FACING CHILDREN
By Yashim Butende
Introduction
The Convention on the Rights of the Child builds on four general principles: non-
discrimination, best interests of the child, the child’s right to survival and development and the
child’s opinion. Every child deserves to be protected from any form of violence, abuse of any
nature, exploitation and neglect.
Sexual Exploitation and Abuse
According to the first CRC report there are many indicators of sexual abuse and exploitation
of children in Kenya, including newspaper reports of cases appearing before courts and cases
reported to local NGOs. However, this is only the tip of the iceberg. Many cases are never
reported, particularly where the abuser is someone responsible for protecting the child -
parents, relatives, maids, houseboys etc. Children engaged in child labour, street children and
children in domestic labour and institutions are particularly vulnerable to sexual exploitation.
The UN Committee expressed its concern about Kenya’s large and increasing numbers of child
victims of commercial sexual exploitation.
At the legal level, the Children Act states that a child shall be protected from sexual exploitation
and use in prostitution or coercion to engage in any sexual activity, and exposure to obscene
materials.
Trafficking
Little is said about the sale, trafficking and abduction of children (CRC article 35) in both the
CRC reports. According to the initial country report “the sale, trafficking and abduction of
children have been studied the least. It is believed they have not substantially taken root in
Kenya.”1
Legal Minimum Ages of Sexual Consent and Marriage
The Children Act indirectly defines the minimum age for marriage at 18 since it prohibits the
marriage of any child. The Marriage Act, however, sets the minimum age of marriage at 16
years for girls and 18 years for boys. The same applies under the Hindu Marriage and Divorce
Act. 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 undergoing relevant initiation rites.
1
Initial Country Report, 2000, p. 106.
In Kenya, cultural customs and practices are exempted from the constitutional guarantee to
equal treatment before the law and, hence, children receive differential treatment depending
on cultural/tribal background.2 Even though the enactment of the Children Act is an important
step towards an improved and uniform legislation, the fact that the other family laws have not
been changed means that the problem of discrepancy is still present.
A uniform and clear legislation is of course a very important prerequisite for effective
protection and implementation of children’s right.
Economic Exploitation and Harmful Child Work
Children work in plantations, mines, hawking, in households and also on the street. Most of
this work is hazardous, exploitative and prevents the children from attending school.
As in the case of sexual exploitation, the judicial provisions on harmful child work are not
uniform. According to the Children Act every child shall be protected from economic
exploitation and any work that is hazardous or will interfere with the child’s education. The
Employment Act provides a third regulation, stipulating that employment of children under the
age of 16 in industrial undertakings is prohibited, unless the children are under apprenticeship
or training programmes
Drug Abuse
Closely linked to the problem of street children is the issue of drug abuse. Especially glue
sniffing is rampant among boys and girls living and working on the street. The first CRC report
states that drug abuse is increasing rapidly, both on the streets and in school. The Children Act
provides children with protection from use of different drugs, or from being involved in their
production, trafficking or distribution. Sale of glue to children has been outlawed, as well as
the sale of alcoholic drinks and spirits in sachets.
Children without Sufficient Family Support (CRC Articles 5, 9, 10, 18, 20, 21, 22, 25, 37)
-Parental Guidance and Responsibility
In accordance with the CRC, the Children Act stipulates that children have a right to know and
be cared for by their parents, and gives parents the responsibility of providing their children
with education, guidance, medical care, adequate diet, shelter, clothing etc. However, whereas
the CRC clearly states that both parents have common responsibilities for the upbringing and
development of the child, this is not fully covered in the Kenyan legislation. According to the
2
Written Replies to List of Issues from the Committee on the Rights of the Child, 2001, p. 21
Children Act (Section 24(3)) the parental responsibility for a child born out of wedlock lies
with the mother. The father of a child born outside marriage can acquire parental responsibility
by applying to the court, but is not obliged to. This means that the mother of the child has to
take on a large burden and that the child’s right to parental guidance and protection from both
parents as stipulated in the CRC, is not secured.
-Orphans
According to a report produced by the Kenyan government and UNICEF in 2019, the total
number of orphans3 (between 0-14 years old) in Kenya is estimated to be 3.7 million, which is
12 per cent of all Kenyan children. 54-60 per cent of these children have lost one or both their
parents due to AIDS.4 Most of these children lack proper care and supervision. This has led to
an increased burden and stress for the extended family, which already suffers from
disintegration, but tries to take care of the orphans. The AIDS pandemic has also led to an
increased number of child-headed households, where children as young as 10 to 12 years old
have to take the main responsibility of their siblings.
Children who have been left orphaned are eligible for government assistance under the
Children Act. However, even though the legal provision is there, the societal burden to provide
services like orphanages, health care and education is overwhelming and the government does
not have the full capacity to implement this provision.5
Children’s Rights to Non-discrimination (CRC Articles 2, 23, 30)
children in Kenya are discriminated against in different ways. The Children Act states that no
child shall be subjected to discrimination on the grounds of sex, disability, origin, race, religion
etc. Furthermore, the Act provides protection from harmful cultural rites, such as female
circumcision.
-Children with Disabilities
The current Constitution is silent on the issue of discrimination on the basis of disability.6
According to the initial CRC report, this has sometimes been interpreted as if it is lawful to
discriminate against people with disabilities (!). At the time of submission of the first report
there was no progressive legislation that allowed differential treatment for disabled. The report
3
The Second CRC report defines an orphan as a child who has lost one or both parents. Second Periodic Report, 2005, p. 47.
4
Second Periodic Report, 2005, p. 48.
5
Kenya NGO CRC Coalition, 2001, p. 18-19.
6
The referendum draft Constitution identified the issue of persons with disabilities as a human rights issue, providing protection for the
rights of these persons and emphasising their inherent dignity as human beings.
admits that violations of the rights of children with disabilities have persisted over the years,
referring it
-Children Born Out of Wedlock
Children born out of wedlock also face discrimination, both in terms of material provisions
and cultural attitudes, as well as judicial provisions.7 Kenyan children with married parents are
entitled to better parental care in terms of maintenance from both parents than those who are
born outside wedlock. Where there is no marriage, the child has no right to be maintained by
its father, unless the father has acquired parental responsibility in accordance with Section 25
of the Children Act.8 In addition, the mother of the child has no right to be maintained by the
child’s father, but is nevertheless expected to take care of the child. According to the first CRC
report, children born out of wedlock are better protected and taken care of in the rural areas,
where customs and family ties are strong, than in the urban environment.
Children’s Right to Health and a Good Physical Environment (CRC Articles 7, 16, 24,
27)
-Female Genital Mutilation
In some communities in Kenya, the cultural practice of female genital mutilation (FGM) is
considered a necessary rite of passage to womanhood. According to the first CRC report as
many as 70 per cent and even up to 98 per cent of the girls are circumcised in some areas (Kisii,
Narok and Samburu being in top).9 FGM often have negative physical effects on the girl child,
including post-operative complications, haemorrhage, infection, urine retention and difficult
childbirth. The most common reason given for conducting the female circumcision is the
support of “good tradition”.10
Children’s Right to Adequate and Relevant Education (CRC Articles 28, 29, 31)
7
All four systems of family law in Kenya (Islamic, African Customary law, Hindu law and English law) distinguish between children born
outside from those born inside wedlock. The current Constitution protects these four statutes and considers them equal. Initial Country
Report, 2000, p. 60. The referendum draft Constitution, however, contained the provision that all children, whether born within or
outside wedlock are equal before the law and have equal rights.
8
Section 25 of the Children Act states: “Where a child’s father and mother were not married at the time of his birth the court may, on
application of the father, order that he shall have parental responsibility for the child, or the father and the mother may by agreement (‘a
parental responsibility agreement’) provide for the father to have parental responsibility for the child.” 67 According to the first CRC
report, 42 per cent of the population resides within 4 km of a health facility and 75 per cent within 8 km. Initial Country Report, 2000, p.
77.
9
Initial Country Report, 2000, p. 80.
10
Ibid.
List of References
Reports
Government of Kenya: Initial Country Report, CRC/C/3/Add. 62, 13 January 2000
Government of Kenya: Written Replies to List of Issues from the Committee on the Rights of
the Child, 2001
Government of Kenya: Second Periodic Kenya Country Report on Implementation of the UN
Convention on the Rights of the Child 1998-2004, 2005
Kenya NGO CRC Coalition: Supplementary Report to Kenya’s First Country Report on
Implementation of the UN Convention on the Rights of the Child, March 2001
Legal Documents
The Children Act, No. 8 of 2001.
The Children (Charitable Children’s Institutions) Regulations, 2005 (yet to be gazetted).
(Regulations under the Children Act)
Convention on the Rights of the Child. Adopted by the United Nations General Assembly 20
November 1989. Entry into force 2 September 1990.
United Nations Standard Minimum Rules for the Administration of Juvenile Justice. “The
Beijing Rules”. Adopted by General Assembly resolution 40/33 of 29 November 1985.
