KENYA: National Laws

Summary: General overview of Kenya's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Prior to the implementation of the new Kenyan Constitution in 2010, the Convention on the Rights of the Child could be and was cited in national courts to aid in the interpretration of national law.  Ultimately, however, domestic provisions prevailed where clearly inconsistent with the Convention. Article 2(6) of the 2010 Constitution now reads that "[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya". This provision has strengthened the status of international human rights conventions in Kenya, including the Convention on the Rights of the Child, which should now be directly applicable in domestic law and enforceable in the courts.

Constitution: The Constitution of Kenya includes a large number of rights provisions that apply to children as to other citizens, but also a number that specifically address the rights of children:

• Art. 14(4): provides that a child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth
• Art. 15(3): entitles a child who is not a citizen, but is adopted by a citizen, to citizenship upon application
• Art 21(3): creates a duty for all State organs and public officers to address the needs of vulnerable groups within society, including children and young people
• Art. 53(1) creates a number of rights specifically for children, including to compulsory basic education, nutrition, shelter and health care, as well as protections from abuse and limitations on detention
• Art. 53(2): provides that a child's best interests are of paramount importance in every matter concerning the child
• Article 260: defines a child as any individual who has not attained the age of eighteen years
• Schedule 4, Part II, section 9: attributes responsibility for pre-primary education and childcare facilities to the county governments

Legislation: Kenya enacted the Children's Act in 2001, which consolidated several areas of national law with regards to children. Relevant legislation can also be found in a variety of Acts, however, including, but by no means limited to:

• The Children's Act (No. 8 of 2001)
• The Penal Code (amended 2003) (Cap. 63)
• The Borstal Institutions Act 1963 (Cap. 92)
• The Sexual Offences Act (No. 3 of 2006)
• The Employment Act (No. 11 of 2007)
• The Refugee Act (No. 13 of 2006)
• The Education Act 1968 (Cap. 211)
• The Law of Succession Act 1981 (Cap 160)
• The Persons with Disabilities Act (No. 14 of 2003)
• The Births and Deaths Registration Act 1928 (Cap. 149)
• The Infants Relief Act 1874

Legal Research: The Parliament of Kenya maintains an official website, which offers the 2010 Constitution (http://www.parliament.go.ke/index.php?option=com_content&view=article&id=83&Itemid=79) and publishes Bills to be examined by Parliament and its Committees (http://www.parliament.go.ke/index.php?option=com_content&view=article&id=204:bills&catid=46:house-business) as well as details on the legislative progress of Bills. The official website of the Kenya Law Reports also contains searchable databases of legislation and case law (http://www.kenyalaw.org/klr/index.php). In addition, the GlobaLex initiative at New York University has published a comprehensive guide to legal research in Kenya (http://www.nyulawglobal.org/Globalex/Kenya1.htm), and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/kenya.php) and the World Legal Information Institute (http://www.worldlii.org/ke/) have compiled links to relevant legal and governmental resources.

Case law
CRC Jurisprudence
In RM and Cradle v. Attorney General [2006] the High Court of Kenya considered the impact of the Convention on the Rights of the Child on national law in relation to discrimination against children born out of wedlock.

Case Law Research
The website of the Kenya Law Reports contains a searchable database of Kenyan case law (http://www.kenyalaw.org/klr/index.php), and the official website of the Kenyan Judiciary (http://www.judiciary.go.ke/) also publishes the case law of the Court of Appeal and High Court.

Compliance with the CRC
In its 2007 Concluding Observations, the Committee on the Rights of the Child welcomed the enactment of the Children's Act and noted several other positive legislative measure undertaken by the State. However, the Committee expressed concern that a number of areas of national legislation required further amendment to bring them into conformity with the principles and provisions of the Convention on the Rights of the Child.

In depth analysis:
Perhaps the most basic incompatibility of Kenyan law with the Convention on the Rights of the Child is with regards to the definition of the child. In its 2007 Concluding Observations, the Committee on the Rights of the Child raised concern over the various minimum ages for marriage under different laws and that this age differed with regards to boys and girls. The State reported that it intended to address this in its review of the Children's Act, but as of February 2012 no such amendment had been made. However, it should be noted that the 2010 Constitution does now provide a clear definition of a child as any person under the age of 18.

The Committee also expressed concern about gaps in national law relating to other areas of children's rights. With regards to sexual exploitation and trafficking, the Committee urged the State to enact legislation to combat these phenomena. Specifically, the Committee urged the State to set a clear minimum age for sexual consent of boys, enact measures to combat child pornography, and enact the country's draft anti-trafficking legislation. The Committee also recommended that the State ensure that its reforms do not act to criminalise child victims of sexual abuse. The Counter-Trafficking in Persons Act has now entered into force, but has not yet been examined by the Committee. The Committee also urged the State to address the absence of relevant domestic regulations and policies pertaining to economic exploitation and child labour by implementing domestic legislation to protect children from the worst forms of child labour.

In 2007, several aspects of the Kenyan juvenile justice system fell short of the standards set by the Convention. Of particular concern were the very low age of criminal responsibility (8 years), the limited progress in achieving a juvenile justice system outside of the capital, the poor conditions in detention facilities and the detention of children living on the streets merely on the basis of their social status. While the death penalty is prohibited for minors, the Committee expressed its utmost concern that children may still be subject to capital sentences in practice. Accordingly, the Committee urged the State to pursue legislative and practical reforms in these areas to bring national juvenile justice practices into conformity with the Convention and relevant UN guidelines.

Current legal reform projects
As of its 2006 report to the Committee on the Rights of the Child, Kenya reported that it intended to institute reforms in the area of juvenile justice.