ANALYSIS OF THE CHILDREN ACT, 2022
The Children Act, 2022 came into force on 26th July 2022 (Accessed here) and offers hope to children because the repealed Children Act, 2001 was not harmonized to the Constitution of Kenya 2010. This had posed many challenges over the years because the gains offered to children by articles 53, 27 et cetera were not expressly legislated. There was also need to seal the gaps that also existed even before 2010 and also align the Act to the international laws including United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) and the International Labour Organisation’s (ILO) Minimum Age convention and Worst Forms of Child Labour (152). The objectives of Children Act, 2022 are stated in section 3, as to give effect to Articles 27, 47, 48, 49, 50, 51 and 53 of the Constitution on matters relating to children and to give effect to the State’s obligations concerning the wellbeing of children in accordance with international law, treaties and conventions ratified by Kenya. It comes a decade after the not so new Constitution, 2010 but with some visible gains of which we shall only point out a few.
First, it deinstitutionalizes children in conflict with the law by providing for communal rehabilitation and mandatory legal assistance for children in conflict with the law, rather than detention. This is inspired by article 53 of the Constitution, which states that children should be detained as a matter of last resort. Section 26 of the Act states that institutionalization of children in conflict with the law shall only be used as a means of last resort and such children ought to be placed in alternative measures such as placement with family or in an educational setting and or home. This also means that Kenya now will adhere to Article 37(b) of the UNCRC, on that obligation. This provision will go a long way to complement the Guidelines for the Alternative Care of Children, 2015, which were enacted to reduce reliance on institutional care, enhance family and community care, and provide harmonized national guidance for child care and protection. The Act further expressly provides an opportunity for diversion, which means channeling of disputes involving child offenders outside the formal court processes into informal community-based structures. The primary objective of diversion includes inter alia utilizing alternative methods of holding children accountable for their unlawful acts or omissions resulting in harm to other persons. The age of criminal responsibility was raised from 8 to 12 years, to conform the internationally recognized minimum standards in ACRWC and the UNCRC, which Kenya is a signatory to. The Act prohibits imprisonment of children and also death penalty in Section 238. Children with disability, who find themselves in the justice system, will be accorded special care. Further, the Act makes provision for the establishment of a special police unit to be designated by the Inspector General, to deal with children matters and children in conflict with the law.
Secondly, the Act has elaborated child participation in section 28, giving children the voice so that they are not an echo in matters that concern them. Whereas the principle and right to child participation has been in existence, the Act now recognizes children’s right to assemble, petition and demonstrate in public life which was not elaborated before. This is pursuant to Articles 8 of the ACRWC and 13 of the UNCRC. The exercise of this right is subject to the rights of others but denial can be enforced through filing cases in court.
Third, the Act creates additional organs and institutions to actualize children’s rights in Kenya. The Child Welfare Fund has been created under the Public Finance Management Act to actualize article 43(3) of the Constitution. Section 37 of the Act establishes the office of the secretary of children services which did not previously exist. The duties and roles of the said secretary include regulating, coordinating, managing, and supervising children’s officers in delivery of the welfare and administration of children services and be responsible for establishing, administering and maintaining child protection centers, rehabilitation schools and a remand home in every county. Previously, Area Advisory Councils (AACs) were established to specialise in various matters affecting the rights and welfare of children. Now, section 54 of the 2022 Act has created the County Children Advisory Committees and Sub County Children Advisory Committees under Section 55, with elaborate functions and composition stated for the avoidance of doubt. Section 63 of the Act establishes children rescue centres in every county for purposes of temporary care of children in need of care and protection pending placement in alternative care. Further it provides that such placement of the said child in the rescue center shall only be limited to a period of 6 months and a child will be placed in the said institution only when alternative care placement is not available at that particular time. The Act has clearly stated that police stations, remand homes or rehabilitation schools shall not fall within the category of children rescue centres.
Fourth, the Act has also expounded on the best interests principle, which is one of the 4 principles of enforcement of children’s rights. Whereas it had been provided in the repealed Act, Section 8 and the 1st Schedule of the 2022 Act now elaborates this principle and emphasizes that factors applied in the best interests of the child in every decision undertaken on behalf of the child are the right to survival, protection, participation and development. It further provides for the considerations to be taken into account when determining the best interest of the child, which include the age, maturity, stage of development, gender, background and any other relevant characteristic of the child; distinct special needs (if any) arising from chronic ailment or disability and the relationship of the child with the child’s parent(s) and/or guardian(s) and any other significant person to the child.
Fifth, intersex persons in Kenya had been long alienated but are now acknowledged. Section 21 of the Act now provides that intersex children ought to be treated with dignity and accorded appropriate medical treatment special care, education, training and consideration as a special category in socialprotection services.
Sixth, the 2022 Act has defined child labor in a different way from the repealed Act. Section 2 states that “child labour” means work done by a child which (a) is exploitative, hazardous or otherwise inappropriate for a person of that age; and secondly, places at risk the child’s well-being, education, physical or mental health, or spiritual, moral, emotional or social development. In contrast, Section 10(5) of the repealed Act laid emphasis on payment (child employment) rather than all work done by children. Section 18 of the 2022 Act provides against child labour and states that the Employment Act shall be applied with necessary modifications in addition to, and not in substitution for, the provisions of this Act relating to child labour. This means that the Children Act takes precedence, which offers some sort of clarity. Section 18(4) has now mandated the Cabinet Secretary responsible for labour to, within one year of the commencement of this Act, in consultation with the Cabinet Secretaries responsible for matters relating to children affairs and education, make Regulations prescribing the terms and conditions of work and the kind of work that may be engaged in by children in 2 age categories, children between 13 and 16 years; and children between 16 and 18 years. This is in compliance with the ILO Minimum age Convention (138) which sets a distinction on light work and age variations.
Seventh, guardianship. Although the repealed Act recognized that non-Kenyan citizens would be eligible to apply for guardianship of a minor born in Kenya or a resident, the 2022 Act, under Part X, now mandates that only Kenyan Citizens are eligible to apply for the guardianship of a minor. This move could be caused by the recent uproar in the country concerning inter- country adoptions which caused a moratorium; it was feared that the said adoptions were avenues for child trafficking. This locks out foreigners from seeking guardianship of minors and they can only now rely on intercountry adoptions. The Act further provides that only in exceptional circumstances can a guardian appointed by court be able to remove the said minor from the jurisdiction of Kenya. However, these exceptional circumstances that the court ought to consider are neither stated nor elaborated. Perhaps these circumstances shall be elaborated in the expected rules to be formulated by the Chief Justice on guardianship, for clarity.
The eighth gain is adoption – Part XIV. The Act has introduced a new concept of kinship adoption and also elaborated the various types of adoptions. Kinship adoption means adopter is a relative of the child), local adoption (adopting parents are Kenyan nationals’ resident in Kenya) and foreign adoption ( where the adopting parents are Kenyan nationals with dual citizenship; the adopting parent or parents are foreign nationals whether or not resident in Kenya, the adopting parent or parents are not Kenyan nationals but are biologically related to the child and/or the adopting parent or parents were once Kenyan nationals but have lost their nationality). Worth noting that although the repealed Act expressly prohibited homosexuals from adoptions, the new Act is silent on this. Although the Act recognizes inter- country adoptions i.e., adoptions of children in Kenya by spouses who are not citizens of Kenya, it is worth noting that the inter-country adoption moratorium is still in force, because the 7th schedule of the Act provides that the terms of the moratorium on inter-country and resident adoptions issued on 26th November 2014 shall apply to matters relating to inter-country adoption under the Act.
Generally, the Act seems to acknowledge the socio-cultural realities in Africa where communal systems work better for children’s welfare. the African way of life. (Further reading here). The scholarly works of Kaime (2009) titled The African Charter on the Rights and Welfare of the Child: a Socio-Legal Perspective suggest solutions derived from practicing communities’ supplemental welfare networks for the children’s survival and development, giving examples from South Africa, such as formal church groups, informal gossip networks and communal water or beer points et cetera which impact a child’s overall well-being. The Act has also embraced alternative dispute resolution mechanisms to a great extent, informed by article 159(2) of the Constitution. These include reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
Some gaps were left unaddressed in the Act, but with the above gains, the future is luminous for children. We must therefore celebrate the gains but also; look for avenues to address the gaps by amendments over time.
“We do not inherit the earth from our ancestors, we borrow it from our children” – Native American Proverb.
