Promoting child rights in Kenya - Pelastakaa Lapset ry

More documents

Recommendations

Info

4.4 Review of the Children ActThe efficacy of a law or policy can only be ascertained through its implementation; a fact that alsoapplies to the Children Act. Over time sections of the Act that pose a challenge to fullimplementation of children’s rights at a practical level have been identified by stakeholders in thesector. The following are some of the reasons that have been given as a justification for the reviewof the Act:- The apparent overlap of the role of NCCS and the DCS and by implication AACs which hasat times led to duplication and conflict of roles.- To provide for a higher age of criminal responsibility to one that is in harmony with UNCRCand ACRWC. Current established minimum age of 8 years as provided for in the PenalCode is in contravention of internationally accepted standards.- Kenya’s accession to the Hague Convention on Inter-Country Adoption in 2007 requires areview of the Act to ensure that adoption including inter-country adoption and foster careplacement as provided for in the Act protect children from child trafficking and other crimes.- To ensure consistency between the Act and new legislation (including Constitution 2010).It is in this context that in 2006 the KLRC as part of its mandate to review laws sought for inputfrom stakeholders on the review of the Act. The children sector held several consultation forumsorganised by the Legal and Policy Sub-Committee of the NGO Child Rights Committee to discussshortcomings in the Act. The recommendations were submitted to the KLRC which forwarded themtogether with those from other stakeholders to the AG. This culminated in the Children Law(Amendment) Bill of 2007. However, stakeholder consultation was not considered comprehensiveenough and due to the fact that the Commission continued to receive proposals for amendments, itrequested the AG to suspend finalization of the Bill to allow for adequate stakeholder input.To move the process further a workshop was held in 2010 to provide a forum where stakeholderswould express their concerns about the draft Children Law (Amendment) Bill, 2007 and to makefurther contributions and proposals for amendment. 41 Presentations were made on theexperiences of other African countries including Tanzania and South Africa as well as internationallaw developments and good practices. The participants were led through the identification of keyareas of priority for law reform and in separate thematic working groups discussed the proposals.After the workshop a team representing the stakeholders present was formed and it refined therecommendations during subsequent meetings organised by NCCS and UNICEF. Other meetingswere held with stakeholders to receive more input.4.4.1 Aligning the Children Act with the Constitution of Kenya, 2010The enactment or review of a Constitution as the supreme law calls for the review of existinglegislation which must conform to the provisions of the Constitution. The Constitution, particularlyArticle 53 provides for the rights of children. To ensure that the provisions of the Children Act were41The workshop was held on 20 th - 22 nd April 2010, in Naivasha and was organised by UNICEF Kenya in conjunction with thegovernment of Kenya through the Ministry of Gender, Children and Social Development.34
in conformity with the Constitution the Children’s Legal Action Network (CLAN) as the convenor ofthe Legal and Policy Sub-Committee organised meetings for CSOs to examine the provisions ofthe Children Act Amendment Bill, 2007 vis a vis those of the Constitution and propose amendmentsaccordingly. The meetings were held in 2009 and 2010.With input from stakeholders the KLRC prepared The Children Law (Amendment) Bill, 2010. TheBill has taken long to be passed by Parliament due to what some stakeholders consider as lack ofpriority by government and the political establishment. It is also clear that the sector has not beenunited enough to lobby for the passing of the Bill in a sustained manner. 424.5 Other key laws relevant to child rights and child protectionThough the Children Act is the main legislation addressing children rights and welfare in Kenyaother key laws have also been enacted to further protect children. Of importance is that theConstitution also addresses the provisions addressed in these laws, hence according children evengreater protection. 434.5.1 The Sexual Offences Act, 2006Violence against children, including sexual violence continues to be experienced by children allover the country. It robs them of their childhood and impacts on their enjoyment of other rights. Theenactment of the Sexual Offences Act was preceded by many years of intense lobbying by CSOsand female Members of Parliament who wanted sexual offences to be viewed as more than“offences against morality” as the Penal Code provided. The CRADLE was a member the CSOgroup lobbying for enactment of a law to address sexual offences. There were concerns about therise in cases of sexual nature many of which targeted very young children as well as the seeminglylenient sentences meted out by courts. Other concerns were with regard to the requirement bycourts that the evidence of victims be collaborated to prove rape and other sexual offences. Thelaw then recognized few forms of offences of a sexual nature and victims reporting crimes of asexual nature lacked protection.The CRADLE took the lead in the development of a draft Sexual Offences Bill which was handed tothe Attorney General in September, 2004 and tabled in parliament as a private members Bill. It wasenacted into law in July 2006.In its preamble, the Act states that this is “An Act of Parliament to make provision about sexualoffences, their definition, prevention and the protection of all persons from harm from unlawfulsexual acts, and for connected purposes.”42A Child Justice Bill has also been drafted under the auspices of The CRADLE though the view of some organisations in thechildren sector is that it is premature as the issues it proposes to address are either contained in existing legislation or in theproposed Children Law Amendment Bill, 2010. It also appears that there has not been wide consultation in the sector regarding theproposed Bill.43The Bill of Rights provides the right to life; equality and freedom from discrimination; human dignity; slavery, servitude and forcedlabour; privacy; freedom of conscience, religion, belief and opinion; freedom of expression; freedom of the media; access toinformation; freedom of association; economic and social rights; language and culture; fair administrative action; access to justice;and fair hearing.35
Page 5: EXECUTIVE SUMMARYThe United Nations
Page 8 and 9: The team held several consultation
Page 10 and 11: KEY DEFINITIONS USED IN THIS DOCUME
Page 12 and 13: emergency responses. This was in li
Page 14 and 15: Working closely with the ministry i
Page 16 and 17: Timely development of a National Pl
Page 19 and 20: The Initial State Party Report on t
Page 21 and 22: At the end of the workshop it was a
Page 23 and 24: presentation to the Department of I
Page 25 and 26: map for the process and a standard
Page 27 and 28: Collaboration between State and Non
Page 29 and 30: after ratification and thereafter a
Page 31 and 32: 3.3 Lessons Learned Incorporating t
Page 33: stakeholders were sensitized on the
Page 37 and 38: campaigns in order to adhere to and
Page 39 and 40: Administrators such as chiefs have
Page 41: Upon finalization the Bill was hand
Page 44 and 45: Since Kenya gained independence in
Page 46 and 47: After engaging with government and
Page 48 and 49: the Rights of the Child has identif
Page 50 and 51: After input from stakeholders the G
Page 52 and 53: In the last decade, issues addresse
Page 54 and 55: 7. Conclusions and Overall Recommen
Page 56 and 57: REFERENCES1. African Charter on the
Page 58 and 59: i) The Street Families Rehabilitati
Page 60 and 61: Annex 2:Key Non State Actors and Pr
Page 62 and 63: Annexe 3:Profile of authorsREV. AMB

Promoting child rights in Kenya - Pelastakaa Lapset ry

Create successful ePaper yourself

Delete template?

Save as template?