Did you know that a new children’s act has been passed in Kenya?
The passing of the Children Act 2001 was a monumental step towards the protection of the rights of children and it was deemed to be progressive legislation having been modelled after the African Charter on the Rights and Welfare of the Child.
The legislation has been in place for over 20 years – and it has been clear that there is a need to close some loopholes that have been exploited especially around the adoption of children; also align the legislation with the provision of the Constitution. Article 53 (1) of the Constitution established a firm stance on children that every child has the right to parental care and protection, which includes the equal responsibility of the mother and father to provide for the child whether they are married to each other or not.
The Kenyan Parliament recently enacted The Children Act of 2022 which came into force on 26th July 2022 making a raft of changes. We discuss a few of the key ones.
Age of Accountability
The raising of the age of accountability for minors has been increased from 8 years to 12 years. This means that a child under the age of 12 years shall no longer be held criminally responsible for any act or omission; and a child who commits an offence while under the age of 14 years shall be presumed not to be capable of differentiating between right and wrong unless the Court is satisfied on evidence to the contrary. The law also directs the Inspector General of Police to set up Child Protection Units in every police station and to offer safe, pleasant and child-friendly conditions for children who have committed an offence. In addition, children charged with petty offences will be committed to a community-based system in place of court systems. Under the new Act, incarceration of children will be a last resort as the Act emphasises on diversion of children from the criminal justice system.
Child Welfare Fund
The new law has instituted welfare known as the Child Welfare Fund through the national treasury under the support of the Public Finance Management Act (2012). The Act has explicitly directed County Governments to set up child welfare systems and childcare amenities in their respective counties in addition to taking charge of pre-primary education. A progressive way of safeguarding the right to a fair hearing has been achieved by providing that a child in conflict with the law will have free access to legal aid as they pursue their cases. Noting that the family is the basic unit of society, the Act has offered priority to family-based alternative care as opposed to the institutionalization of children in children’s homes.
Children with special needs
As a way of addressing the needs of children with special needs, the Act has provided for their free education, social care, and medical treatment. In full realization of the above, the Act bestows the county governments and the National government with an active role in the advisory councils which are mandated to make direct budgetary allocations for child welfare schemes. The Act ensures better planning, budgeting, implementation and adequate resource allocation toward child welfare programs. The Act while addressing the issue of free education for the children who are abled differently buttresses article 54 of the Constitution of Kenya on Persons with disabilities (PWDs), which offers them the right to access educational institutions and facilities integrated into society to the extent compatible with their needs and interests.
Adoption Process
With the ever-increasing number of Kenyans opting for adoption, it has become a key area of concern for many as such, the Act has transformed the adoption process by offering alternative care services such as kinship, guardianship, kafalah, foster care, care in emergencies, and temporary shelter. The inclusion of kafalah of Islamic law in the Act relates to the provision of alternative care for children deprived of a family environment. Worth noting is that Islamic kafalah represents one of such compromises in an attempt to accommodate the differences of the various state parties as provided for in Article 20 of the Convection on the Rights of the child. The benefits arising from the Kafalah adoption are but are not limited to offering a family-based solution, as opposed to long-term residential care in cases where children have been abandoned for reasons such as birth out of wedlock and societal stigmatization.
During the process of adoption, the Act has put in place measures to ensure that the wishes of a child are taken into consideration by providing that a child above ten years has the right to decide on whether to be adopted or not through mandatory consent. Further adoption process will no longer be filed without the approval of the Children’s Council of Kenya. The Act prescribes an offence if an applicant proceeds to the filing of the Application without the involvement of the Council. With the above changes, children in Kenya will have an opportunity to speak up and have their rights protected.
Rights of intersex children
Another provision of major importance is the introduction of the rights of intersex children. Unlike its predecessor, the new Act not only recognizes intersex children but goes ahead to mandate that they be treated with dignity and be afforded appropriate medical treatment special care, education, training and consideration as a special need category in social protection services. This is paramount in giving intersex children the necessary assistance and access to special training that was previously lacking. In conformity with the same, birth certificates will now offer the option of “Other” under the Gender provision allowing intersex children the dignity and opportunity to more accurately identify themselves based on gender.
Custody based on age of child
The new Act brings an inclusive approach in the custody of children of tender years when parents separate. In the recent past mothers would automatically get custody of children of tender ages unless contrarily provided, the Act has however brought an inclusive approach in allowing even fathers to be granted custody and further bestowing the court with the discretion in deciding on the best interest of the child on custody.
In conclusion, we consider that the new Children Act is even more progressive than the 2001 version – and has sealed some of the existing loopholes. It continues to strengthen the paramount objective of protecting and upholding the best interests of the child.
Emmanuel Ndirangu & Diana Maimba
8th September, 2022