The National Gender and Equality Commission (NGEC) joins the world in commemorating the Day of the African Child (DAC) which takes place every 16th day of June. This is a day to honour and remember the people killed and injured when thousands of ‘black’ school children in South Africa took to the streets, on June 16, 1976, to protest against the inferior quality of their education. This day, is today observed as a celebration of the African child and also as a time to reflect on the opportunities and challenges facing the full realization of the rights of African children. This year the discussion focuses on child friendly justice systems as reflected in this year’s theme, “Access to a child friendly justice system in Africa”
Kenya has made great strides in guaranteeing the rights of the child. Article 53 of the Constitution of Kenya, 2010 outlines the specific rights of a child. Article 53(1) (f) specifically states that; every child has right, “not to be detained, except as a measure of last resort, and when detained, to be held-
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child’s sex and age’.
Article 53 (2) states that, “A child’s best interests are of paramount importance in every matter concerning the child”.
The Children’s Act. No. 8 of 2001, spells out general rights for all children in Kenya. Other laws promoting and protecting the rights of a child include the Basic Education Act. No. 14 of 2013 and the Prohibition of Female Genital Mutilation Act. No. 32 of 2011. Kenya is also a signatory to international and regional commitments on Child rights including the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the child (ACRWC). Further, Kenya has numerous policies guiding design, implementation and evaluation of child-centered programs and interventions.
Despite the robust policy and legal framework aimed at protecting the rights of the Kenyan child, many children particularly those with disabilities and children from hard -to-reach areas, informal settlements, children living on the streets and displacement camps, and those from forest and pastoralists communities face myriad of bottlenecks in access to justice. Most of the bottlenecks and challenges in the justice system are aggravated by lack of institutional and procedural framework, interference of access to justice system by care givers and parents, lack of knowledge and information among care givers and parents on rights of the child, limited resources and investment in child welfare programs, and lack of prioritization of the needs of children. In exercise of our functions that include conducting audits on the status of special interest groups including minorities, marginalized groups, persons with disability, women, youth and children, the National Gender and Equality Commission has commenced a rapid assessment of the status of children living with incarcerated mothers in prisons with an aim of establishing opportunities for protecting and promoting the rights of such children. The preliminary findings of this assessment indicate that lack of adequate financing of prisons’ child welfare programs have resulted in limited guarantee of rights to these children. The children therefore suffer limited access to basic education and play facilities, lack of timely assessment of children with special needs, and in some cases limited access to basic nutrition and health care.
The Commission has finalized a report on the national conversations around minimum age of consent for sex. The discussion that culminated to this report have triggered in-depth discussions, re-examination and interrogation of the Sexual Offences Act, No. 3 of 2006 with a view to offering greater protection to children suffering from sexual exploitation and effective rehabilitation of child offenders. The findings in this report coupled with the Commission’s routine work on promotion of gender equality and freedom from discrimination for special interest groups, point to a plethora of issues that warrant attention by the duty bearers and citizens on matters of access to justice by children. These issues include; the need to firmly protect child witnesses in court to safeguard their privacy, adoption and scaling-up of child responsive budgeting by actors in the child justice sector, adherence to the principle of separation of children ‘offenders’ and children in conflict with the law from adults held in police stations and facilitation of children in need of care and protection.
All child holding institutions including rehabilitation schools, borstal institutions and remand homes must be child friendly. They should also cater for the specific needs of intersex children and children with disabilities. Even as children receive various services within the justice system they must at all times enjoy the right to education, right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labor.
In light of the COVID-19 pandemic, the Commission lauds the Judiciary for embracing Information Communication and Technology (ICT) in the administration of justice among violated children, women and other special interest groups. However, with the implementation of measures to prevent the spread of COVID-19 that include restricted movement, closure of learning institutions, promoting of learning from home and cessation of movement in various areas, children especially girls are more likely to be exposed to sexual gender based violence, harmful cultural practices, child marriages, cyber bulling (as children access digital learning platforms), physical and psychological abuse, and exploitation. Many children fail to access justice due to limited access to help including access to children’s officers, confinement in private spaces, and manipulation of evidence and threats by the perpetrators. It is therefore anticipated that most children in the justice system especially during these times of COVID-19 are unrepresented. Many children therefore continue to suffer from delayed justice, others access help way too late after evidence has been distorted or when their bodily harm is in worse state sometimes beyond repair. The Commission therefore projects that the country should put in measures to deal with many cases of child violations which are likely to surface during COVID-19 recovery period.
During this year’s commemoration of the African Child, the Commission wishes to draw the attention of the Government Ministries, Departments and Agencies (MDAs), parents and Children’s caregivers of the disturbing reports of increasing incidences of offences against children during COVID-19 pandemic period with perpetrators taking advantage of the online learning in schools to lure children to exploitation. We call on all responsible Government MDAs to move with speed to arrest such offenders targeting our innocent children. The Commission further calls upon the State to investigate possible trafficking of children with disabilities for begging in cities and across all towns in the country. The Commission implores the State to similarly ensure the speedy dispensation of court matters involving children including children hurt or killed during law enforcement and those in emergency situations such as children living in refugee set-ups and to avoid negative consequences of prolonged court cases.
The Commission applauds the Directorate of Community Policing, Gender and Child Protection of the Kenya Police Service for setting up a toll free line for reporting SGBV during this time of COVID -19 pandemic. This toll free line: 0800730999 will no doubt go a long way in assisting our children access justice at this time when SGBV cases have been on the rise. The Commission also appreciates the responsiveness of the Judiciary and the Office of Director of Prosecutions (ODPP) for administering justice among violated children despite the many challenges posed by the COVID-19 pandemic. We further acknowledge the work done by the National Council on the Administration of Justice (NCAJ) special taskforce on children matters in coming up with solutions to many challenges that obstruct access to justice by children.
The Commission urges Parliament to expedite enactment of the Care and Protection of Child Parents Bill, 2019 whose passage will among other objectives facilitate child-parents access to education and care for their children. The Commission also calls for the speedy enactment of the Children’s Bill 2018.
In conclusion, the Commission wishes to call upon all actors in the justice system to look at the full range of circumstances under which children come into conflict with the law. This includes the interaction of children with the justice system as they (children) come in conflict with the law and as they (children) seek redress for violation of their rights, and as they also give evidence in the justice process. We additionally call upon all stakeholders to be alive to the best interest of the child of Kenya especially with respect to children’s access to justice.
I wish to assure the children of Kenya, their parents and caregivers that the Commission remains committed to promoting the rights of the child in all spheres of life.
Dr. Joyce M. Mutinda (PhD)