KENYA: The Draft Optional Protocol to the UNCRC with an Individual Complaints Procedure

How can a child defend itself against its own unjust nation? And what can a mother do when confronted with blatant injustice yet there are no more avenues of complaint left and all national legal options have been exhausted? Up to now, very little. And that must change. To bring about this change there is need to strengthen the international instrument for the protection of the child (the United Nations Convention on the Rights of the Child- UNCRC) through an optional protocol allowing for individual complaints mechanism. The individual complaints procedure is a monitoring instrument of the United Nations applied to secure respect for human rights and in four international human rights conventions its use has long been the norm. In case of human rights abuses, this makes it possible for a single person or their representative, to legally demand their rights at UN level. The pre-condition is that they first must have exhausted all avenues of legal recourse in their own country.

In 2001, Kindernothilfe started an initiative to strengthen the rights of the child. In consultation with representatives from non-governmental organizations, government ministries, and committees of the United Nations, Kindernothilfe is seeking to establish an individual complaints procedure both for children and adolescents. To push the process forward, Kindernothilfe has developed a draft optional protocol based on experience gained with the complaints procedures contained in other Conventions.

Currently, there is a core group of agencies supporting the establishment of a communications procedure under the UNCRC, including; World Vision International, Save the Children Alliances, the Global Initiative to end all Corporal Punishment of Children, CRIN, Kindernothilfe and the World Organization Against Torture (OMCT). A number of Kenyan organizations have through Kindernothilfe, linked up to this international group to push for this initiative and formed the Individual Complaints Procedure Working Group. They include The CRADLE, Kenya Aids NGO Consortium (KANCO), the Coalition of Young Kenyan Voters (CYKV), Center for Rights Education and Awareness (CREAW), Childline Kenya, FEMNET and Kituo cha Sheria.

On 31st July 2007, The CRADLE together with all the other members of the ICP Working Group organized a National Conference on ‘The Draft Optional Protocol to the Convention on the Right of the Child with an Individual Complaints Procedure’ at the Sarova Panafric Hotel in Nairobi, Kenya.

The National Conference helped participants to understand the necessity for an Individual Complaints/Communications Procedure for the UNCRC and its effects on the children in Kenya, to understand the process of lobbying for an International Human Rights Instrument, to discuss possible strategies for lobbying for an Optional Protocol to the UNCRC with an Individual Complaints Procedure at various levels, to develop a Plan of Action towards such a campaign and discuss the Draft Optional Protocol.

The conference was officially opened by Honorable Martha Karua, the Minister for Justice and Constitutional Affairs. In her speech, she acknowledged the gap in the UNCRC and expressed support for this initiative. She stated the government’s commitment to promote and protect the rights of children by focusing to provide affordable, speedy, relevant and effective access to justice in justice systems.

Participants underpinned the need for an Individual Complaints procedure under the UNCRC as a key mechanism for monitoring states compliance with international treaty obligations and further as a boon for victims of human rights violations. The background discussion was laid by key presentations on, ‘A Case for an Optional Protocol for individual complaints’ by Ms. Catherine Mumma followed by Mr. Wanjau Muriu with a paper on the “The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.” The discussions were further informed by a comparative analysis of best practices under other international human right instruments notably CAT, CEDAW, ICERD and ICCPR. Thus the need for this complaints procedure could not be overemphasized if the rights of the child, as enshrined under the UNCRC, were to be accorded equal measure.

Participants considered a Draft Optional Protocol to the UNCRC with an Individual Complaints Procedure and highlighted the following key elements for an effective instrument (1) the inclusion of the non-reservation clause, (2) both individuals and non-governmental organizations to have access to this procedure and (3) statutory representation for all individuals under the age of eighteen (18) years.

In conclusion the Conference mandated The Working Group to co-opt members at its discretion while The CRADLE was given a go ahead to continue co-ordinating the process under the overall direction of the Working Group. The Working Group was tasked to develop clear terms of reference (ToRs) that include a lobbying strategy, creating awareness of and popularizing the process and co-ordinating the entire process.

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