COMMITTEE ON RIGHTS OF CHILD EXAMINES REPORT OF KENYA
The Committee on the Rights of the Child today reviewed the second periodic report of Kenya on how that country is implementing the provisions of the Convention on the Rights of the Child.
Introducing the report, Moody Awori, Vice President and Minister for Home Affairs of Kenya, observed that there were currently over 2 million orphans and vulnerable children in Kenya, the majority as a result of the HIV/AIDS pandemic. In response, the Government had concluded a national policy on orphans and vulnerable children that allowed orphans to be cared for within the community and family setting. That built on an African tradition that the responsibility for a child belonged not just to the family, but to the wider community as well. That social protection mechanism, which had started with 500 families in 2004, had increased to 9,000 families today.
In preliminary remarks, Committee Expert Hatem Kotrane, who served as Rapporteur for the report of Kenya, said that with the political transition in Kenya, a number of political and economic reforms had been undertaken by the Government, and those reforms were beginning to bear fruit. That was evidenced in a number of new laws, and in the ratification of international instruments, among other things. Among the Committee’s remaining concerns were the questions of children’s institutions, healthcare, refugee children, and children in conflict with the law, and those subjects would be addressed in the Committee’s concluding observations and recommendations.
Other Experts raised a series of questions pertaining to, among other things, how the Area Advisory Councils — the district and divisional level bodies responsible for children’s issues — worked and what protection was available for children in areas where there was no such body; the lack of an independent follow-up mechanism for implementation of the Convention; discrimination against children born out of wedlock and concern that the law on birth registration was only available to children born in wedlock; the continuing use of corporal punishment in the home, and in institutions, and the insufficiency of a ban on corporal punishment in schools only; and discrimination against girls.
The Committee will release its formal, written concluding observations and recommendations on the second periodic report of Kenya towards the end of its three-week session, which will conclude on 2 February.
The delegation of Kenya included Ambassador Maria Nzomo, the Permanent Representative of Kenya to the United Nations Office at Geneva, as well as other members of the Permanent Mission; Dennis Afande, the Chairman of the National Council for Children’s Services; and other representatives from the Kenyan Government.
As one of the 193 States parties to the Convention, Kenya is obliged to present periodic reports to the Committee on its efforts to comply with the provisions of the treaty. The delegation was on hand throughout the day to present the report and to answer questions raised by Committee Experts.
When the Committee next reconvenes in public on Thursday, 18 January at 10 a.m., it will consider the second periodic report of Mali (CRC/C/MLI/2).
Report of Kenya
The Children Act, which came into force on 1 March 2002, is a new beginning for the development and effective protection of Kenya’s children, according to the second periodic report of Kenya (CRC/C/KEN/2). Among the Act’s key social welfare provisions is the guarantee of free basic education and the right to health care. The Act also establishes statutory structures to facilitate the administration and safeguard the rights of children, including the creation of the National Council for Children Services, children’s courts and institutions for the reception and care of children in need of care and protection. It requires local authorities to promote the best interests of children within their respective jurisdictions and prohibits discrimination on the grounds of origin, sex, religion, creed, custom, language, opinion, conscience, birth, social, political, economic or other status, race, disability, tribe, residence or local connection. The Act also provides remedies in cases of violation of rights recognized by the Convention, including severe penalties such as imprisonment, fines or both.
The Government has initiated a free primary education programme enabling many children who were out of school to enrol, and has launched a national plan on education-for-all for the period 2003-2015. A uniform code of conduct for children’s officers is now in place, allowing standardized reporting procedures to be introduced. The rights of juvenile delinquents in rehabilitation schools are being promoted, and law enforcement and rehabilitation programmes are being strengthened. A programme for diverting children in conflict with the law from the judicial system is being piloted in Nairobi, Kisumu and Nakuru districts. Adoption rules have been developed and are at the Attorney General’s Chambers for drafting and publication in the Kenya Gazette. The Labour Law Review Committee has also presented its report to the Attorney General, proposing, inter alia, the amendment of labour laws to protect children. At a higher level, the Government of Kenya is in the process of coming up with a new Constitution. The draft Constitution guarantees citizenship by birth, registration and naturalization, and defines children as those persons aged less than 18 years. It also states that children with special needs, including girls, orphans, children with disabilities, refugee children and homeless children are entitled to special protection from the state and society.
Presentation of Report
MOODY AWORI, Vice President and Minister for Home Affairs of Kenya, said that, since free and compulsory primary education was introduced in 2003, enrolment had gone up from 5.9 million in 2003 to 7.6 million in 2006, and secondary school enrolment had risen by 19.2 per cent. Children with learning disabilities were integrated into the mainstream school system, using special units as opposed to special schools for children with learning challenges.
On the issue of children with disabilities, Mr. Awori noted that the Government had put in place mechanisms to undertake a nationwide survey by April 2007 on people with disabilities. The Persons with Disability Act (2003) comprehensively addressed the plight of disabled people.
Owing to increased budgetary allocations in the health sector, children under five years of age received free medical care in all government institutions, Mr. Awori said. Immunization coverage had also increased from 46 per cent in 2001 to 71 per cent in 2006.
Mr. Awori underscored that the issue of orphans and vulnerable children was a big challenge. There were currently over 2 million orphans and vulnerable children in Kenya, the majority as a result of the HIV/AIDS pandemic. In response, the Government had concluded a national policy on orphans and vulnerable children that allowed orphans to be cared for within the community and family setting. That built on an African tradition that the responsibility for a child belonged not just to the family, but to the wider community as well. That social protection mechanism, which had started with 500 families in 2004, had increased to 9,000 families today. In addition, the Government had signed the instruments of accession to the Hague Convention on Intercountry Adoption.
With regard to enhancing the administration of juvenile justice, the Chief Justice had gazetted 119 magistrates to handle children’s matters, making it easier for children to access justice. Hand in hand with that, Kenya was endeavouring to divert child offenders from the formal justice system and reintegrate them through community-based rehabilitation programmes, Mr. Awori said.
One of the greatest challenges Kenya faced was the increasing number of children living and working in the streets, Mr. Awori observed. The Government had started an initiative in 2003 to rehabilitate street children under which 6,000 former street children had been rehabilitated and enrolled in different primary schools countrywide and 800 children had acquired vocational skills in various national youth service units countrywide.
In collaboration with the United Nations Children’s Fund, Kenya had initiated a campaign against violence against children in July 2006. The campaign aimed to create awareness on the rights of children, mobilizing the public to take action through the “Stop Violence Bus”. The Bus moved from district to district, urging communities to work with the Government and its partners to stop violence, through, among others, safe schools and community policing. It emphasized access to justice and health services for victims of sexual violence within the critical 72 hours after the attack to protect them against HIV/AIDS and reduce trauma.
Finally, Mr. Awori wished to draw attention to the 2 million Kenyan children engaged in child labour. To address that situation, Kenya had ratified ILO Convention No. 182, on the worst forms of child labour, in 2001. Currently, time-bound programmes sought to prevent, withdraw and rehabilitate children engaged in the worst forms of child labour.
Questions by Experts
HATEM KOTRANE, the Committee Expert serving as Rapporteur for the report of Kenya, noted with appreciation the very high level of the delegation, headed by the Vice President himself. Kenya was on the right path: the Government had instituted a number of programmes to deal with children. He applauded the legislative reform in Kenya with regard to children’s rights, including in the area of adoption, and legislation on sexual violence in 2006. Since the last report, Kenya had also acceded to a number of important human rights treaties which had an affect on children’s rights, notably, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; the Rome Statute; the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; and ILO Convention No. 182, among others.
In that connection, Mr. Kotrane wondered whether Kenya had plans to adopt the Children’s Convention’s other Optional Protocol, on the involvement of children in armed conflict.
A few other questions remained. What was the status of the Convention in domestic law, and could it be raised directly in domestic courts, Mr. Kotrane asked. He would also appreciate clarification on the status and working methods of the National Council for Children’s Services, for example, details of its budget and how it coordinated with other Government institutions and with the private sector.
Regarding the 2003 change from the Standing Committee on Human Rights to the Kenya National Commission on Human Rights, had any complaints made directly by children or their parents been received by the latter body? Mr. Kotrane wanted to know whether the new body had any mechanism to directly receive complaints by children.
On the issue of age requirements, what was being done to equalize the marriageable age for girls (16) and boys (18), and to raise the age of criminal responsibility from eight years of age, where it currently stood.
Finally, regarding religious freedom, the Children’s Act recognized the right to freedom of thought, conscience or religion. However, Mr. Kotrane wished to draw attention to reports that children in care in charitable institutions, which apparently accommodated some 25,000 children, were not allowed to freely practise or pursue their minority religions.
Other Experts raised a series of questions pertaining to, among other things, how the Area Advisory Councils — the district and divisional level bodies responsible for children’s issues — worked and what protection was available for children in areas where there was no such body; the lack of an independent follow-up mechanism for implementation of the Convention; discrimination against children born out of wedlock and concern that the law on birth registration was only available to children born in wedlock; the continuing use of corporal punishment in the home, and in institutions, and the insufficiency of a ban on corporal punishment in schools only; discrimination against girls, who were statistically the most susceptible to be victims of acts of violence, in particular sexual violence including forced marriages, and to be excluded from education; information on programmes for children of marginalized or remote communities, especially pastoralist communities; services for refugee children; reproductive health services for adolescent girls; plans to give access to information to children; and children’s right to privacy in institutional settings.
Response by the Delegation
Responding to these questions and others, the delegation said that, with regard to the Optional Protocol on the sale of children, child prostitution and child pornography, that document had been signed by the Government on 8 September 2000; however, it had not been ratified. That was because they were still discussing the issue of how that Protocol would be implemented. The consultation process was in its nascent stages. Within the next 12 months it should be ratified and the domestication process started, the delegation hoped.
The Convention on the Rights of the Child was domesticated in Kenya through the enactment of the Children’s Act, which embodied all of its provisions. However, the delegation pointed out, the Convention could also be directly invoked in the courts. There was a programme for judges to raise their awareness about the Convention, and some 200 judges had been trained in the programme last year. As a result, the Convention had been directly invoked in a number of cases, notably a case in which a child sued for support.
The Kenya National Human Rights Commission was mandated to receive direct complaints from children, the delegation confirmed. Children’s services had received a number of complaints that had been directed to the Kenya National Human Rights Commission, including complaints about institutions.
On the issue of coordination, there was overlap between the National Council for Children’s Services and the Department of Children’s Service. The Children’s Act also had some gaps that had to be addressed. Therefore the Law Reform Commission was reviewing the Children’s Act comprehensively, and the delegation believed in that way the issues of gaps and overlap would both be cleared up.
On children born out of wedlock, the delegation agreed that the Children’s Act distinguished between children who were born in and out of wedlock, and it was hoped that that discriminatory provision would be addressed in the ongoing legislative review. As the Act spelled out rights and duties for parents regardless of their marital status, in practical terms children born out of wedlock were able to enjoy the same rights as those born in wedlock when their cases were taken to the courts, by proving paternity, for example, by a DNA test.
Regarding foster care, in Kenya a child had to be legally committed to a charitable institution as a preliminary to being remanded to foster care, the delegation explained. In practice, children were often in informal foster care with extended family members without ever going through the institutional care stage. The problem with that was that benefits, including financial benefits, were based on the legal registration for foster care.
The Area Advisory Councils inspected charitable homes, the delegation explained, in conjunction with a child health officer. They ensured that the conditions in the home were in conformity with the Children’s Act. The regulations were clear: children taken into care had to have access as best as possible to the religious services and instruction of their faith, in cases where the child’s religion was known.
A cash transfer programme had been established to deal with children in foster care, and it was hoped in that way to regularize many foster care situations. That was particularly developed to cater for situations in which a child was orphaned and taken on board by their extended family, generally grandmothers.
Regarding the right of the child to be heard, the delegation pointed to the existence of children’s rights clubs in various schools and the Children’s Cabinet, as well as the care taken to involve children in regulations and rules made concerning them. In that regard, he noted that children participated in preparing the second periodic report presented today.
Further Questions by Experts
During the second round of questions, the Rapporteur said he did not understand fully the figures regarding children in charitable institutions. According to Kenya’s written responses, there were 10,568 children in such care in 2004 and then 25,867 in 2005. What accounted for that more than doubling of children in institutional care in the space of one year?
Regarding education, although there had been great improvement in school enrolment, there did not appear to be a corresponding increase in the percentage of children completing their secondary education.
Other Experts asked further questions on topics including, among others, the large gender gap in enrolment of refugee children in schools, with a much larger number of boys than girls enrolled; the apparent drop in breastfeeding; children treated as adults in matters of criminal proceedings; access to specialized juvenile justice in all areas of the country; programmes to combat malnutrition; adolescent reproductive health services, in particular in view of the fact that abortion was illegal in Kenya; programmes to eliminate female genital mutilation; and reports that children had been sentenced to the death penalty.
An Expert wanted to know the Kenyan policy regarding family reunification in the case of refugee or displaced children and whether Kenya was contemplating ratification of the 1951 Refugee Convention. Another Expert was concerned about the situation of Somali children fleeing violence who were blocked from entry into Kenya, and asked for clarification on Kenya’s policy with regard to Somali refugees.
On drug abuse, while an Expert was impressed with the comprehensive statistics on tobacco use among children, she was not aware of any statistics on drug abuse, and she therefore asked for further details.
Response by Delegation
Responding to those and other questions, Mr. Awori said that with regard to the Refugee Act, the bill had been accepted by the President just 15 days ago, and would be implemented gradually. Most of the concerns raised by the Committee should be addressed by that Act.
Regarding the closure of Kenya’s border with Somalia, Mr. Awori recalled that every country’s first priority had to be the welfare of its own citizens. No country could be more sympathetic with Somalia’s plight, and Kenya should be credited with having brought some semblance of government in Somalia after a 16-year absence. Others had made it impossible for Somalia to have a stable Government, and some of them had tried to cross the border into Kenya. Those trying to cross would be vetted carefully. He regretted that, inevitably the children, like in every conflict situation, might have to suffer, but that was not Kenya’s intention.
Another member of the delegation, responding to questions on the issue of rising infant mortality rates, pointed out that the figures in question were based on the Kenya demographic health surveys of 1998 and 2003; they would need to have the figures from the next survey, due this year, before they really knew where they were now. However, the authorities had also been concerned about the negative trend in infant mortality, and had included a focus on reversing that trend in their health strategies through 2010.
Breastfeeding rates were quite low, the delegation said, but the fact of HIV/AIDS had made the issue harder to deal with than ever; even health workers had been confused on the issue. The Government was undertaking to raise awareness to encourage breastfeeding, including through community mother-support groups.
Turning to adolescent health, in 2003 they had developed the adolescent reproductive health policy, the delegation said. They had simplified the materials for dissemination to the youth, which they distributed along with a simplified version of the health survey 2003. A school health policy and draft guidelines were formulated to address child health and adolescent health in the school and larger community.
Regarding drug abuse, the delegation noted that tobacco abuse by children was the subject of study and concern; often it was a question of graduating from tobacco to other drugs. Also, the sale of alcohol to children was prohibited, and that law was enforced, the delegation affirmed.
The delegation reported that there had definitely been improvement in the area of lifting the stigma for children with HIV/AIDS. There was continual sensitization on the issue of HIV, led by the office of the President through the Emergency Plan for AIDS Relief, but all Ministries had AIDS control units and non-governmental organizations were also working in this area.
Mr. Awori wished to complete the response on adolescent reproductive health by confirming that abortion was indeed illegal in Kenya, and it was likely to remain so. One of the many reasons why the new draft Constitution had been rejected 18 months ago was that it was thought that it would allow abortion in the country. So it was unlikely that abortion would be legal in Kenya, for both cultural and religious reasons, for quite some time.
Turning to the issue of children’s justice, another member of the delegation said that children charged with capital offences were currently held and tried with adults. However, it was hoped that as a result of the current judicial review of juvenile justice, those children would be brought within the ambit of the children’s courts. The Sexual Offences Act 2006 gave protection to children testifying in such cases, such as being able to give evidence without having to confront the perpetrator of the crime, or to give evidence via one of their parents. With regard to the charge that children had been sentenced to the death penalty, there was an absolute prohibition against the death penalty for children and the delegation had no knowledge of such a case. If it happened by mistake, then the prison authorities had the ability to raise the issue and the sentence could be amended. In practice, children who appeared in court were given legal representation. There was a non-governmental organization called the Cradle that provided representation to children. However, it ought to be the responsibility of the Government to guarantee legal counsel, and the delegation expressed the hope that in the future that situation would be addressed.
Further Question by Experts
In a third round of questions, the country Rapporteur remained concerned about the rights of a Kenyan child with a non-Kenyan father. Also, he wished to know what provisions there were for working mothers to care for their children, such as maternity leave.
Other Experts asked about what happened to children in prisons, including children born in prison; and whether street children were jailed merely because of their homeless status.
Further Responses by the Delegation
In response to the third round of questions, the delegation noted that a child could get maintenance from a non-Kenyan father through the Kenyan courts.
Children were kept with their mothers in prison when it was in the best interests of the child, for example for infants who were breastfeeding. Older children were taken into protective custody until their parents were released.
The delegation said that, generally, under the juvenile justice system, children convicted of a crime could be held in rehabilitation schools for a maximum of three years. For capital crimes, however, children were held at the President’s discretion, and only he could set the length of their sentence.
Regarding the large increase in the number of children in institutions, the delegation said that one thing that had led to the increase were the new regulations for such institutions. The number of children in institutional care had also been underreported in prior years, a problem that had been corrected through tighter registration procedures.
On education, the delegation said that, among the measures to keep children in school, Kenya had issued bursaries for needy children to ensure that secondary school fees would not be an obstacle to staying in school. With regard to special needs education, efforts had been undertaken to have a teacher in every school that had had special needs education training. That goal should be met by the financial year 2007/08. Girls who became pregnant were allowed a “maternity leave” and could come back and take up their education at the same level at which they stopped. However, these girls were not allowed to return to the same school.
Turning to the budget for children, the delegation pointed out that there was no specific allocation for children in the budgets of the various ministries, such as the Ministries of Health and Education. However, of the total Government budget of KES 550 billion (Kenya schillings), the share that went to agencies providing social services for children was KES 155 billion, or approximately one third of the budget.
Concerning the statistics that showed a larger number of boys than girls in refugee camps enrolled in school, that had not been as a result of discrimination. The fact was the numbers cited came from a refugee camp that had been set up for boys, the delegation explained.
On family reunification, the Government was working closely with the UN Refugee Agency, the International Organization for Migration and the embassies of the countries concerned, and had issued travel documents and visas so that refugee children could be reunited with their families. The Refugees Act also contained a provision for family reunification, the delegation confirmed.
The Children Act outlawed female genital mutilation. However, the delegation regretted that the practice remained quite prevalent. For that reason a national plan of action on female genital mutilation had been developed to accelerate the elimination of that phenomenon, with time-bound targets to ensure that the issue was discussed, addressed and eliminated throughout the country.
Preliminary Remarks
HATEM KOTRANE, the Committee Expert serving as Rapporteur for the report of Kenya, in preliminary concluding remarks, said that five years ago they had examined Kenya’s initial report at a time when that country had been facing very difficult conditions. Since then, with the political transition, a number of political and economic reforms had been undertaken by the Government, and those reforms were beginning to bear fruit. That was evidenced in a number of new laws, and in the ratification of international instruments, among other things.
Kenya’s report had been very objective, and had recognized the constraints Kenya faced to children’s further development, Mr. Kotrane noted. Among the Committee’s remaining concerns was the question of children’s institutions, and they would be recommending that children should be placed in families and not in institutions wherever possible. Healthcare, refugee children, and children in conflict with the law would be other subjects of concern that would be addressed in the concluding observations and recommendations the Committee would be issuing at the end of its session.
For use of the information media; not an official record
CRC07004E