Children’s rights legislation in Kenya: an overview

By Paul Iskander

Introduction

This paper provides an overview of children’s rights, focusing on Kenya orphans. Kenya was chosen from a list of fifteen countries in sub-Saharan Africa, largely due to its recent enactment of the Children Act, 2001, as an attempt to implement the Convention on the Rights of the Child (“CRC”). While the Children Act is not without its faults, it is a comprehensive, ambitious piece of legislation that incorporates nearly all of the rights enumerated in the CRC and includes detailed terms on the enforcement and provision of those rights. At the very least, the Children Act provides an impressive aspirational framework for the protection of children’s rights. The volume of detailed provisions regarding the structure and administration of children’s services demonstrate that the Act is meant to be practical as well as aspirational.

This paper’s goals are chiefly expository: its main task is to bring together disparate (and often difficult-to-find) information on legislation and policy surrounding children’s rights in Kenya, and (where possible) to survey the extent to which this legislation and policy has been successfully implemented. To that end, this paper examines the following:

1)  the background of the AIDS crisis and orphans in Kenya (including the major threats facing Kenyan orphans and vulnerable children);

2)  the best practices, key principles and normative frameworks for the provision of children’s services;

3)  the international law relating to children’s rights; and

4)  Kenya’s domestic legislation on children’s rights.

This paper considers the Kenyan legislation in the context of the aforementioned best practices, key principles, normative frameworks and international obligations, and concludes that although the Kenyan Children Act is not perfect, it does an admirable job of incorporating all of these elements, and could in many regards provide a valuable model for similar legislation in other countries.

Of course, the true test of the Children Act lies in the degree to which its provisions are successfully implemented and enforced. Unfortunately, because the Act is fairly recent, there is relatively little available information on this question, and as such this paper cannot include a comprehensive treatment of this issue. Where this information is available, the paper attempts to detail the success (or lack thereof) with which the Act has been implemented. Regrettably, it was not possible to do so in an exhaustive manner. It would be useful for scholars to perform further research into this question as information becomes more readily available.

Background: the AIDS crisis and orphans in Kenya

Going by numbers alone, the situation for African children who have lost one or both parents to AIDS is dire. In 2000, the United Nations estimated that 13 million children under age fifteen years in Sub-Saharan Africa would have lost their mother or both parents to AIDS by the end of that year.[1] The United States Bureau of the Census projected that by 2010, over 30 percent of all children under age fifteen in five eastern- and southern-African countries will be orphans, largely due to AIDS.[2] By contrast, research indicates that this figure was about 2 percent in most developing countries prior to the advent of AIDS.[3]

While HIV/AIDS is by no means the only major cause of orphaning, a report by the World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) suggests that HIV/AIDS is uniquely destructive, creating a vicious cycle that will impact on the lives of children for generations.

Other epidemics and disasters also cause death on a large scale and leave orphaned children, but the pattern of HIV/AIDS is unique. AIDS is a protracted problem, which does not allow the prospects of a return to normality. Those who should be caring and providing for children and the elderly are the ones who are dying. In the communities hardest hit, there are fewer and fewer able-bodied adults to produce crops or income or to care for children, who are often pushed into poverty. The survival of those already poor becomes even more precarious. The problems are further exacerbated by the fear and stigma of AIDS which make other members of the community unwilling to help.”[4]

Orphans – defined as children who have lost one or both parents – are particularly vulnerable to the cyclical effects of HIV/AIDS. They suffer from emotional trauma and psychosocial distress, lack of parental guidance, poverty, vulnerability to hazardous labour and sexual exploitation, and lack of access to education. Many end up living on the street – a life that brings its own host of risks and dangers. Those orphans who find themselves in homes are often victims of exploitation, abuse, or the simple inability of resource-strapped institutions to provide adequate care and a loving home. These issues are explored in greater detail below.

Risks facing orphans and vulnerable children (OVCs) in Kenya

Emotional trauma and psychosocial distress

After the obvious trauma associated with the illness and eventual death of their parents, orphans suffer further distress when they are deprived of their family environment and thrust into new surroundings. This trauma can be lessened if children are able to stay within their extended families and if they are able to remain with their siblings. Conversely, it is exacerbated when children are removed from familiar surroundings, if they are separated from their siblings, if they are sent to poorly run, poorly equipped or overcrowded institutions, if they end up living on the street, or if they live with foster parents or extended family members who exploit or abuse them. The trauma that AIDS orphans experience is frequently exacerbated by the stigma associated with HIV/AIDS – a stigma which is often imposed by community members and the more distant family members of orphans.[5]

Lack of parental guidance

Without the guidance of a parental figure, children are less able to fully develop socially and emotionally, and risk losing access to their culture of origin.

Poverty

Children orphaned by AIDS lose the caregivers and breadwinners in their families. In a report on the economic impact of HIV/AIDS in Kenya, Futures Group International estimates that the average Kenyan household loses between 58 and 78 percent of its income when one economically active adult dies of AIDS. When a second adult dies, the family loses between 116 and 167 percent of household income – “that is, households incur debt, forcing them to liquidate assets, withdraw children from school or send children away to live with relatives.”[6]

Poverty is in itself a major problem, but it begets further risks and disadvantages. Without an adult breadwinner at home, many children must engage in labour in order to support themselves. This can mean that orphans stop attending school in order to work, that they expose themselves to exploitive or hazardous labour, and that they become vulnerable to street life and abuse.

Vulnerability to hazardous and exploitive labour

Children orphaned by AIDS face serious economic need, and often must work in order to support themselves. According to a 2001 Human Rights Watch report,

It is safe to say that eastern and southern Africa will have a disproportionate number of…working children by 2015 unless immediate action is taken to reverse this trend.[7]

…

A recent study by UNICEF on HIV/AIDS and child labor in eastern and southern Africa concludes that AIDS plays an important role in pushing a significant percentage of Kenya’s estimated 3.5 million working children into the labor market.[8]

These orphans often become vulnerable to hazardous and exploitive labour. For example, many orphaned children – especially girls – are sent by their new guardians to work as domestic labourers (i.e. housemaids). This work is fraught with the risk of exploitation and abuse, as a 2000 study by TEMAK found.[9] Human Rights Watch describes the study as follows:

In this study, of the twenty-five girls aged nine to sixteen years who were interviewed in depth, eighteen were HIV-positive. Of those eighteen, most had worked in several homes and reported being sexually abused in all or most of them. Fifteen of the girls said their first sexual experiences were coerced and were with their employer or someone in his family or circle of friends. All but one of the HIV-positive girls did not know about HIV/AIDS or how to protect themselves from it. UNICEF and the ILO’s International Programme on the Elimination of Child Labour (IPEC) have documented the hazards of domestic labor, especially for girls, in many parts of the world.[10]

Orphaned children also commonly perform farm work on commercial tea and coffee plantations. Sexual abuse, beatings and severe work-related injuries are not uncommon.[11]

Children affected by AIDS can also be drawn into illegal work. Observers such as Human Rights Watch, for example, cited an interview with a child who was sent into the streets by her dying mother to steal.[12] This is particularly risky due to the often-abusive treatment of young offenders and street children by the police and the justice system in Kenya.[13]

Lack of access to education

Children affected by AIDS also suffer from diminished access to education. Affected children must often stay home from school to care for sick and dying parents, and then remain out of school in order to work to replace the deceased parents’ income. Until the recent abolition of school fees in Kenya, many orphans were kept out of school because they lacked the economic resources to pay the required fees. According to Human Rights Watch,

A … study by several university-based researchers and ICROSS, an NGO based in Kenya, compared over 5,200 children whose parents died of AIDS with the same number of age-matched children who were orphaned by other causes. In this study, children orphaned by AIDS had significantly lower rates of school enrolment and retention than did other orphans. They also suffered higher rates of severe and moderate malnutrition and were more likely to be in child-headed households.[14]

Affected children also suffer from ignorance and prejudice surrounding HIV, and this prejudice has had a negative impact on their access to education. In 2003, schools in the wealthy Karen district outside Nairobi refused to admit HIV-infected orphans living at Nyumbani Children’s Home, East Africa’s largest orphanage for AIDS-affected children. (Nyumbani officials said the schools had offered various excuses for the exclusion, claiming variously that the schools were full and that they were not equipped to handle HIV-positive children.) Only after a court battle, in which Nyumbani accused the schools of discriminating against the children on the basis of their HIV status, was a solution reached. High Court Judge Martha Koome ordered talks between Nyumbani and the Ministry of Education, which resulted in an agreement granting the children access to the schools in question.[15] This outcome is a positive sign, offering hope that the legal system can be successfully used to provide redress in discrimination cases, but it also provides evidence that misunderstanding and discrimination continue to haunt children affected by HIV/AIDS.

Vulnerability to street life

Children who are orphaned often find themselves without any kind of parental or substitute care. If they end up on the street, their suffering compounds itself and further increases the chances of HIV infection, leading to a vicious cycle. Without financial support and a secure home, children must often work to stay alive. This frequently leads to dangerous work (including sex work, which increases the chances of HIV infection), and means that they cannot attend school, keeping them trapped in a cycle of poverty.[16] Many street children are also at risk of substance abuse, which – in addition to its own inherent risks – can increase the likelihood of contracting HIV. A WHO/UNICEF report concluded that

…AIDS has become another factor pushing children onto the streets, as parents die and relatives are unable or unwilling to provide care. Some street children are involved in sniffing glue or solvents, and their level of sexual activity is high, bringing the risk of sexually transmitted diseases, including AIDS.[17]

Kenyan street children have often been victimized by the police who are charged with protecting them. A 1997 Human Rights Watch report stated that:

Police tend to view street children as hardened criminals, who must be treated with severity. Police also abuse and exploit the children for their own personal gain. Children we interviewed said they were frequently harassed, beaten, and had their money taken from them by police on the streets. Girls in Nairobi reported being sexually propositioned or coerced into having sex with police. The level of abuse is rising to a dangerous level. In recent years, there have been alarming incidents of police use of lethal force against street children resulting in death.[18]

Abuse, neglect and exploitation

Children who do find themselves in homes with foster parents or extended families are sometimes abused, neglected or exploited. Extended families or community members sometimes take in orphaned children solely to gain access to their inherited property or to use them as revenue sources by sending them out to work, steal, or engage in prostitution. Elizabeth Owuor-Oyugi, the director of the Kenyan chapter of the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN-Kenya), stated in 2001 that: