KENYA: Children's Rights References in the Univeral Periodic Review

Summary: A compilation of extracts featuring child-rights issues from the reports submitted to the first Universal Periodic Review. There are extracts from the 'National Report', the 'Compilation of UN Information' and the 'Summary of Stakeholder's Information'. Also included is the final report and the list of accepted and rejected recommendations.

Kenya - 8th Session - 2010
6th May, 9am to 12pm

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National Report
Compilation of UN information
Summary of Stakeholder compilation
Accepted and rejected recmomendations

National Report

29. At the regional level, Kenya has ratified the African Charter on Human and Peoples’ Rights; the African Charter on the Rights and Welfare of the Child; the OAU Convention Governing Specific Aspects of Refugee Problems in Africa; the OAU Convention Against anti-Corruption; and The Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights.

30. Kenya is a dualist state requiring domestication of international instruments in the national arena through legislation by Parliament. In this regard, the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and recently the Convention relating to the Status of Refugees and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa have been fully domesticated by the promulgation of the Children’s Act (Chapter 586 of the Laws of Kenya) and the Refugees Act (No. 13 of 2006) respectively. The provisions of these laws are closely modeled on those of the international and regional instruments, with necessary exceptions as necessitated by the circumstances of Kenya.

46. Kenya has begun realizing some of the gains of universal free primary education (FPE). School enrolment is on the increase and the number of children joining secondary schools has increased. This has been aided by the enactment of the Children’s Act which provides for the penalizing of parents or guardians who fail to take their children to school.

47. Measures to ensure that the most vulnerable children are not left behind have been put in place including school-feeding programmes, a bursary and book funds to help retain the poor and vulnerable in schools. Under the FPE programme, additional capitation grants are provided to children with special needs enrolled in public schools, units and other institutions to ensure their effective integration.

48.The Government is also offering free tuition for secondary education.

52. In 2008, the African Report on Child Wellbeing rated Kenya as one of the top most child-friendly African Governments. This is due to putting in place appropriate legal provisions to protect children against abuse and exploitation, allocating a relatively higher share of the national budget to provide for the basic needs of children and success in achieving relatively favourable well being outcomes as reflected in the children themselves. Kenya has also fully domesticated the Convention on the Rights of the Child (CRC.

53. According to the World Bank, Kenya is one of the ten most unequal societies in the world, with the richest tenth of households controlling more than 42 percent of the country’s income while the poorest tenth survive on less than one per cent. Poverty remains a major impediment to both the fulfillment of basic needs and the realization of the full potential of many Kenyans, particularly women and children. The population in absolute poverty is estimated at 45.9% (2007). The economy has been characterised by stagnation in economic growth in the last two decades. Currently, approximately 56% of Kenyans live below the international poverty line of less than $1 per day. According to the Kenya Economic Report 2009, the number of Kenyans depending on others is 84%.

64. Child labour continues to be one of the most serious challenges facing most children in Kenya today. It has been practiced in Kenya for a long time, although its magnitude and nature have changed over time. In the 1980s and 1990s, child labour was widespread in agricultural and fisheries sectors, but more recently, it has spread more rapidly to other sectors notably, domestic service, the informal, and commercial sexual exploitation of children. The Children’s Department, in collaboration with others, has engaged hoteliers in signing of the international Code on Sexual Exploitation of children in the tourism sector.

65. Strategies to mainstream child labour issues in national development both downstream (direct support) interventions and upstream interventions (legislative and policy). The strategies will focus on prevention, withdrawal, rehabilitation and integration. A national child labour survey and a policy on child labour will be developed to facilitate implementation of the said interventions.

100. Despite the domestication of the Convention on the Rights of children with the passing of the Children’s Act in Kenya, children continue to be subjected to sexual violence, prostitution, trafficking, labour and other forms of violations. While critics charge that the Children Act is far from perfect in its design and its enforcement, it remains a positive step that gives Kenyan children enforceable rights against adults and the government. The Government is committed to ensuring that the Child is protected from all harmful practices and violations.

101. In a special way, the Government has taken measures to protect orphaned children since they 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. To militate against this, the Government has put in place the Cash Transfer for Orphans and Vulnerable Children (CT-OVC) Project. This uses cash transfers to strengthen the ability of vulnerable households to protect and care for OVC, ensuring that orphans stay within their communities.

104. In 2003, the government introduced the Universal Primary Education (UPE) policy which has significantly increased enrolment rates in the country. However, an estimated 1.3 million children remain out of school. Strengthening and ensuring effective implementation of policy reforms in the education sector to eliminate barriers to quality basic education remains a priority.

UN Compilation

1. In 2007, the Committee on the Rights of the Child (CRC) urged Kenya to ratify the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.10 The Committee on Economic, Social and Cultural Rights (CESCR) recommended that the State withdraw its reservation to article 10, paragraph 2, of ICESCR.11 In 2008, the Committee Against Torture (CAT) encouraged Kenya to consider making the declaration under article 22 of the Convention.12

10. UNCT reported that the policy environment aimed at advancing human rights has been enhanced over the past three years.25 CRC was concerned that the adoption of a national plan of action on children remained pending.26

17. CEDAW was concerned that the Constitution does not provide equal citizenship rights for women.43 CRC expressed concern at the de facto discrimination faced by children born out of wedlock, children infected with HIV and/or affected by HIV/AIDS, orphans, street children and children born of Kenyan mothers and non-Kenyan fathers.44

22. The HR Committee was concerned that there is a large but unspecified number of individuals under sentence of death and that the death penalty applies to crimes not qualifying as “most serious crimes” within the meaning of ICCPR.51 CRC was particularly concerned that although the death penalty is outlawed for children, according to some reports children are still being sentenced to death.52 The HR Committee77 and CRC78 noted with concern allegations of trafficking of

32.children and instances of child prostitution. The HR Committee was concerned about Kenya’s failure to prosecute and punish trafficking offences and to afford adequate protection to victims.79 CRC urged Kenya to establish a comprehensive national policy and guidelines governing adoption in compliance with the Convention.80

33. CRC expressed deep concern at the large number of street children, the denial of their right to education and health care, and their vulnerability to various forms of violence, including sexual abuse, exploitation and arbitrary and abusive arrest.81

35. CRC was concerned that in certain instances children are treated as adult offenders and that limited progress has been achieved in establishing a functioning juvenile justice system outside the capital.86 CAT87 and CRC88 were concerned that the age of criminal responsibility is set at 8 years of age. CAT recommended raising it as a matter of urgency in order to bring it in line with international standards.89

50. CRC noted with concern the absence of domestic regulations or policies concerning child labour.114 It noted reports of consistent and serious problems regarding the economic exploitation of children and of the number of children involved in hazardous work.115 In 2003, the ILO Committee of Experts recalled the importance of establishing the minimum age for admission to employment or work in all sectors, including agriculture.116

74. CRC urged Kenya to seek technical assistance from a number of international bodies regarding intercountry adoption, violence against children and child labour.159

Stakeholder Information

8. KSC recommended that Kenya finalize the Policy on Child labour and enhance programmes preventing children from joining the labour market and rescuing and rehabilitating children who are engaged in labour.16

24. Global Initiative to End All Corporal Punishment on Children (GIEACPC) noted that corporal punishment is legal at home but that the current draft review of the Children’s Act 2001 may repeal this provision. Corporal punishment is prohibited in schools and in the penal system while there is no explicit prohibition in alternative care settings.50 GIEACPC recommended that Kenya enact prohibition of all corporal punishment, including through the repeal of article 127 of the Children Act.51

30. KSC recommended that Kenya amend the Constitution and the Children Act to provide safeguards for children in conflict with the law, introduce Child Protection Units in all police stations and introduce proper police accountability.63

58. EPN reported that free primary education was introduced in 2003 and free secondary education in 2008.128 JS4 reported that this resulted in overstretched facilities, overcrowding in schools, scarcity of schools in some regions and other costs for families.129 EPN mentioned similar issues in lower Eastern Province.130

59. EPN recommended that Kenya develop an educational policy that ensures that the quality of education is guaranteed.131 KSC further recommended that Kenya establish a legal framework to regulate and ensure that quality education is compulsory and accessible to all, especially poor, marginalized and vulnerable groups; recruit more teachers to meet the demand or alternatively employs a multi-shift programme in schools; establish stricter measures, proper accountability, transparency mechanisms and greater public participation in the administration of bursary and education funds.132 KSC also recommended that Kenya finalise the Special Needs Education Policy to ensure that all children with disabilities receive necessary support.133

Accepted and Rejected Recommendations

The following recommendations were accepted by Kenya:

101. A - 101.11. Set up mechanisms to implement the national child act, which incorporates the Convention on the Rights of the Child and which is considered a positive step that grants applicable rights to Kenyan children (Libyan Arab Jamahiriya);

A - 101.12. Continue to implement the core elements of the Children's Act, which is a great step forwards in the achievement of the Millennium Development Goals (Angola)

A - 101.17. Include in the national action plan for the promotion and protection of human rights continued attention to and focus on children and an emphasis on ensuring their right to health and education (Saudi Arabia);

A - 101.19. Adopt a national plan of action on children and children's rights (Germany);

A - 101.47. Undertake more effective measures to address the problems of impunity, violence and trafficking in women and girls, including through the strengthening of law enforcement and the judicial system and intensive media and education programmes aimed at increasing public awareness on the rights of women (Malaysia);

A - 101.50. Strengthen protection for women and children against violence and exploitation (Australia);

A - 101.59. Adopt a comprehensive national policy aimed at the fight against child prostitution and the trafficking of children (Uruguay);

A - 101.60. Take all appropriate measures to ensure for street children, who are vulnerable to various forms of violence, appropriate care and protection (Slovenia);

A - 101.62. Develop an administration of justice policy that would address principles of access to justice and public interest education, and take reform measures to address corruption, in particular within the judicial system (Germany);

A - 101.70. Raise the age of criminal responsibility in order to bring it into line with international standards (Czech Republic);

A - 101.71. Adopt and implement measures necessary to address the needs and challenges of juveniles in prison custody, including raising the minimum age of crime responsibility, in line with international standards (Slovakia);

A - 101.85. Establish a comprehensive national policy and guidelines governing adoption in compliance with CRC (Germany);

A - 101.86. Further promote the law on the minimum age of marriage at 18 years (Holy See);

A - 101.90. Undertake a study on child labour at the national level with the support of the International Labour Organization and other partners to look at the issue of child labour, and enact as quickly as possible legislation focused on the prevention of child labour and the removal of its victims from the workplace, as well as their rehabilitation, social reintegration and education (Uruguay);

A - 101.91. Take effective steps to address child labour (Azerbaijan);

A - 101.92. Improve access to reproductive health services for pregnant women (Turkey);

A - 101.94. Redouble its efforts to save mother and child (Holy See);

A - 101.98. Pursue the implementation of the national programmes for alleviating poverty and improving living conditions, which will result in improvements in the lives of Kenyan children (Libyan Arab Jamahiriya);

A - 101.103. Place emphasis on linking the objective of poverty eradication to those of eliminating child labour and increasing school enrolment (Sudan);

A - 101.109. Strengthen its educational policy to guarantee the required quality of education, accessible to all members of its population, especially the marginalized and most vulnerable groups (Slovakia);

A - 101.110. Develop education policies that ensure quality education, particularly for the poor, marginalized and vulnerable segments of its population, and request international assistance to that end (Bolivia);

A - 101.111. Formulate an educational policy aimed at combating illiteracy, with particular emphasis on the education of the girl child (Niger);

A - 101.112. Develop and implement a specific education policy which would cover all children with special needs (Ireland);

A - 101.113. Continue to develop programmes and measures aimed at ensuring quality and free education and health services for its population (Cuba);

A - 101.126. Seek the support of the international community and cooperate with it to formulate policies aimed at further broadening access to free and compulsory education, particularly for children from poor households (Indonesia);

The following recommendations were rejected by Kenya:

103. R - 103.2. Strictly ensure that the death penalty is not imposed for children, and declare an official moratorium on executions with a view to abolishing the death penalty (Australia);

The following recommendations are pending by Kenya:

102. P - 102.7. Extend an open and standing invitation to all special procedures, and sign and ratify the Optional Protocols to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Social, Economic and Cultural Rights (ICESCR), the Convention on the Rights of Persons with Disabilities (CRPD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance (CED) and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OP-CRC-SC) (Spain);