By Ibrahim Alubala

Kenya ratified the Convention on the Rights of the Child on 30th July, 1990 and nine years later the African Charter on the Rights and Welfare of the Child on 29th November, 1999. Ratifying the crucial instruments signalled the country’s intention to promote and protect the rights of children.

In 2001, Parliament enacted the Children Act to give effect to the principles contained in the two instruments besides consolidating provisions on children, which were scattered in several pieces of legislations. The Act makes provisions for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; and administration of children institutions.

Several gaps were identified in the Children Act, and by the year 2005, the process of reviewing the Act began. This process has dragged for years, culminating with the publication of the Children Bill 2021 in October this year. The Bill is currently before Parliament awaiting approval.

 Save the Children has been involved in the review process in several ways, including being a member of the National Steering Committee, which has been instrumental in drafting the Bill. As a member of the Committee, we have tapped into our global experience and made several recommendations most of which have been incorporated in the resultant draft.

Together with the Joining Forces Alliance, we have also mobilised children across the country to give their views, which have been very useful in the drafting process. Save the Children further supported the process of engaging the Committee on the Rights of the Child in 2016, where the Committee expressly recommended to the Government that it should “expedite the completion of the harmonization of national legislation and regulations with the Convention, including by adopting new legislation to replace the Children Act (2001), and to ensure the active and meaningful participation of children and civil society organizations in elaborating the new legislation”.

Finally, we have supported several child rights organisations including target county child rights networks to present memoranda on the proposals contained in the Children Bill.

The Bill is a great improvement to the current Act in several regards.

First, several new definitions have been included to address emerging issues including radicalization, online abuse, female genital mutilation, forced circumcision for the boy child, child trafficking among others. The Bill also recognises vulnerable children and provides for how best to address their concerns.

Secondly, the Bill proposes provision of social security to children through an elaborate Child Welfare Fund, which is to be funded through the national exchequer under the aegis of the Public Finance Management Act. The Bill expressly mandates County Governments to establish child welfare schemes and child care facilities in their respective counties besides taking charge of pre-primary education.

The Bill further makes provision of diversion, which essentially means that children who commit minor offences should not be directly taken through the criminal justice system but would be dealt with through community based support systems. It also proposes to raise the age of criminal responsibility from eight to twelve years and makes it mandatory for children in conflict with the law, and those in the legal process to have legal aid. Other than that, the Bill makes it mandatory for police stations to have child protection units to ensure that children are not detained in the same facilities as adults.

On adoption, the Bill has proposed a new concept referred to as “kinship adoption”, allowing a relative wishing to adopt a child to do so using a procedure that is simpler, cheaper and expeditious. The current Act subjects all prospective adoption parents to a similar procedure, greatly impeding kinship adoptions due to the expensive and laborious process. Muslims who wish to take care of children through the Kafallah system, have also been availed this option. Kafallah, is the equivalent of adoption in tandem with Islamic religious practices.

The Bill is progressive and will go a long way in supporting the promotion and protection of child rights in the country. An elaborate advocacy plan has been developed by Save the Children, the Joining Forces Alliance and the National Steering Committee to ensure that the Bill is enacted into law, and eventually implemented for the benefit of all children in the country.