Child abuse rampant despite new law

Child protection measures in Kenya are currently not implemented effectively and fully. Compliance with such legislation would increase if the magnitude of the problem and better knowledge about the factors that put children at risk was available.

Additionally, involving stakeholders, especially agencies charged with protection, as well as involving affected children, will highlight the issues and thereby promote adherence to protection policies. Kenyan children, child activists and children organisations are pinning their hopes on the implementation of the Children’s Act to improve the lot of the nation’s youth.

The Act, which came into effect on 1 March 2002, puts in place full safeguards for the rights of the child. Its passage was a giant stride in harmonising the national laws with international agreements which Kenya has signed such as the UN Conventions on the Rights of the Child (CRC).

There is hope that the new legislation will dramatically change the inattention, neglect and abuse towards child rights. The Act outlaws any form discrimination of children, and forbids Female Genital Mutilation (FGM), child prostitution, and child labour, among other forms of abuse.

The Children’s Act has immensely improved the lives of many Kenyan children plagued with high illiteracy levels, frequent rape cases and child labour since it guarantees children the right to health and medical care, provision of which is the responsibility of the parents, the extended family and the government.

Nonetheless, there are still a number of problems to surmount. Kenya’s severe economic and social difficulties have prevented the full realisation of children’s rights and there is concern over the inadequate enforcement of legislation to ensure the “physical and mental integrity” of all children.

Rights and advocacy groups are alarmed about the physical and sexual abuse of Kenyan children, including commercial sexual exploitation; the increasing burden of HIV/Aids on orphans that prematurely forces them into adult roles; continuing incidences of FGM; and the inadequate access to education, especially for girls.

In the meantime, a combination of economic and social factors is forcing more and more children to continue pouring into the streets throughout the country. Eighty percent of children appearing before the juvenile court are street children with some arrested for committing crimes, and some taken in to be ‘processed’ by the care and protection system.

Although the care and protection system is conceptually separate from the criminal justice system, the two systems appear to merge in practice. Both groups of children are picked up off the streets by the police, are held in the same police cells, and are treated similarly at courts.

There is no specialisation within the police regarding arrested children. Commonly, children are held in police cells for 48 hours before appearing in court. Within this period, police rarely contact their parents to inform them of the first court appearance.

Then there are unnecessary delays after the court postpones hearings, sending the children back to the police cells. Child rights activists are concerned about the length of time that elapses between the first appearance and the conclusion of cases.

Furthermore, the over-crowded court rolls ensure that the cases drag on. This is worrisome, particularly where children are held in the Juvenile Remand Home, or where those that are 15 years and older are held together with adults in adult remand centres awaiting trial.

Legal representation of children is rare, and there is currently no state-paid legal aid system. Legal aid to children who cannot afford lawyers is yet to be structured with clear provisions on how it will be funded.

Positively though, an NGO, Children Legal Action Network (CLAN) sees the legal representation of children as an important cause, and some lawyers in private practice have already embarked upon such work.

In spite of the hitches that mar the administration of justice, the Children’s Act, has eliminated the need to read separate child laws simultaneously. The legal framework supports Juvenile Courts, although such courts are not really “separate” (only Nairobi has a Juvenile Court at present).

Favourably, imprisonment is rarely used, and is done away with under the new law. In addition, children do not get criminal records. This makes their reintegration as productive members of society easy.

The prevalence of serious or violent crime amongst Kenyan children is very low. A difficulty, though, is that poverty-related crimes - the majority - are amongst the most difficult to prevent without broad reaching socio-economic reform.

Child labour - which is directly linked to poverty - is among the major drawbacks. It has prevented children from developing their potential to earn higher incomes later in life, and will slacken national economic growth in the long term.

There are an estimated three to four million child labourers in Kenya, many whom work in hard conditions, negatively affecting their health, education and development. In some sectors of the Kenyan economy, children comprise 70 percent of the labour force, many working in violation of national and international laws.

The Coalition on Child Rights and Child Protection in Kenya blames the stagnation of the economy and the poverty in Kenya for the rising incidence of child abuse - child labour, sexual exploitation, physical and mental torture, neglect and abandonment - in the country.

The coalition, which brings together government departments and NGOs, estimates that Kenya has over 600,000 of the world’s 100 million abused children, a situation that may worsen if poverty levels among women and children continue to rise.