AFRICANEWS

ChildRights

Kenya

Kenya government yet to enact the Child Bill

In 1995, in order to be in line with the 1989 UN Convention on the Rights of the Child, Kenya drafted a Bill on the welfare of children. But six years down the line, the parliament has yet to turn it to a law leave alone on debate it.

Kenya may soon find herself in trouble for having failed to undertake all appropriate legislative measures to domesticate the UN Convention on the Rights of the Child of 1989. After more than a decade, the country's parliament has yet to pass a collective law to implement the Convention, which Kenya ratified in July 1990.

And with a Special Session of the UN on children slated for September, this year the urgency for the country to come up with such legislation is great. But even so, a Bill drafted to that effect has yet to be debated in parliament. The delay goes back to 1991 when the Attorney General, Amos Wako, directed the Kenya Law Reform Commission (KLRC) to review the existing laws concerning the welfare of children and make recommendations. This was so since the constitution of Kenya does not specify the methods for transforming international treaties into municipal law. For a treaty to apply, parliament must pass an enabling act to give effect to it. Although the Commission had, as far back as 1984, embarked upon a similar review, the process was only speeded up after Kenya's ratification of the Convention. A team of 13 persons was constituted and produced a report in May 1994. One of the key recommendations was the enactment of a Children Bill and the amendment of other relevant statutes not codified under this Bill. A cabinet decision thereafter led to the publication of the Children Bill (1995).

The objects of the Bill were to promote the well-being children, implement the provisions of the Convention, promote the welfare of the family, assist parents in the discharge of their parental responsibilities and establish and promote the use of services and facilities within the community designed to advance the well-being of children. Although the Bill was immediately tabled in parliament, it never went through the second reading after MPs pointed that it lacked sensitivity to religious concerns, lack of provisions on social security, free and compulsory education, the problem of disabled children and those accompanying their mothers to jail and protection of the girl child from a variety of disadvantages. It was sent back to the AG for redrafting. But above all, parliament went on recess and the Bill became moribund. It is against this background that the Children Bill 2000 was published five years later but parliament went on recess again debating on it. With a few revisions it is now known as the Children Bill, 2001.

However, there is a growing concern that the Bill may not see the light of day. "Unless the AG rushes to table this Bill, parliament may not enact it in the current session", says Ms Joyce Umbima, Executive Director of the Kenya Alliance for the Advancement of children Rights (KAACR), a local child rights NGO. When parliament was recalled from recess in March, the Bill was among the ones to be debated. But no such debate has taken place. With elections coming next year, there are fears that it may not be enacted by the current parliament forcing it to wait the next session in 2003. �There is very little parliament can do within the remaining time considering that there are other equally urgent Bills pending before the House,� says Onyango Oloo, a Nairobi advocate.

But the Director of Children's Services in the Office of the Vice-president and Ministry of Home Affairs, Heritage and Sports, Sammy Ole Kwallah is optimistic that it will be passed in time. "I am confident that the AG will table this Bill and it will be passed before parliament is dissolved", enthuses Kwallah who is also Kenya's representative to the preparatory committee of the UN General Assembly Special Session on Children (UNGASS). Indeed, there is apprehension that if the Bill is not enacted, Kenya might have nothing to present at the UNGASS which is set to meet in New York between September 19-21 this year to review the achievements since the adoption of the 1990 World Declaration and Plan of Action on the Survival, Protection and Development of children and the 1989 UN Convention on the Rights of the Child.

But even more worrying is the fact that people have not been sensitised on this very important Bill. As it is now, not even the children themselves know about it. John Mwangi, a street boy in Nairobi does not hide his ignorance of the Bill. "What do you mean by Children Bill? I don't know what you are talking about", he retorts. Leah Bosire 14, a class seven pupil at a Nairobi Primary School is equally not aware of such a bill. "I have never heard about it", she says innocently. Even the parents don't seem to know. "Does such a Bill really exist?� poses Moses Lutome, 50, a motor vehicle mechanic in Nairobi. In a bid to solicit support for the Bill, the Department of Children's Services recently organized a workshop for media practitioners aiming to publicise the Bill during which Kwallah said that MPs will be picked soon in batches of 50 to attend sensitisation workshops.

The Bill is a proposed law to promote the well being of children and unlike the three previous statutes, which gave conflicting definitions of a child. It will also replace these statutes namely; The Children and Young Persons, The adoption Act and The guardianship of infants Acts. It covers key definitions, the rights of the child, parental responsibility, administration of children's services, children's institutions, children's courts, custody and maintenance, guardianship, Judicial orders for the protection of children, children in need of care and protection, foster care placement, child offenders and miscellaneous provisions.

It has also come up with certain milestones like the definition of a child who has now been defined as a boy or a girl aged below 18. Abuse of the child can also be physical, sexual or mental. It also states that children have a right to life and says the government and family will be responsible for ensuring the child's survival and development. Every child has a right to name and national identity. Children with disabilities will be treated with respect and will be given the necessary medical care and education free of charge or at a reduced cost. It also states that children should be protected from torture, cruel punishment or unlawful arrest or jailing. It also states that no child offender shall be subjected to corporal punishment.

However, certain parts have already raised a hue like Section 21 (3), which states that mothers shall have parental responsibility for all children born out of wedlock. This might encourage men to father children and run away from responsibility but Kwallah says that this section sought to develop good morals. "Women should control themselves and in this era of birth control they should only get pregnant if they are married", he asserts. However, Mrs. Wambui Njuguna, Director of programmes at the African Network for the Prevention and Protection Against Child Abuse and Neglect (ANPPCAN) disagrees. "It takes two to have a baby. The Bill is so unfair on women considering that some young girls who are not even aware of birth control methods are lured into sex by older men who then leave them holding the baby". The Bill also states that couples in a polygamous union will not be allowed to adopt a child. "I do not see any sense in that. I am a potential polygamist and I could be having six wives with only three children. I should therefore be allowed to adopt and extra child", says Ibrahim Lethome, an advocate from the Supreme Council of Kenya Muslim (SUPKEM).

The Bill has also omitted some sections from the African Charter on the Rights and Welfare of the child, which Kenya has ratified. For example, Article 31 of the Charter talks about responsibilities of the child. Ms Catherine Tongoi, ANNPCAN's legal officer observes: �Much as we have to respect children's rights, such rights should be accompanied by responsibilities. I strongly feel that this Article should have been incorporated in the Bill.� Another omission is the privacy of the child contained in Article 10 of the same Charter.

All in all, the Bill is comprehensive enough as it touches on various issues, which were not covered by its predecessors. With its enactment, children will have a right to leisure and right to live with parents. Early marriage and female circumcision will be considered as child abuse and a child who is pregnant shall be considered as one in need of protection and care. A section of the legislators are already upbeat that the Bill will be enacted before the current parliament is dissolved. Opposition legislator Njeru Kathangu says he will vote for it. �As a parent, I will fully support this Bill and I hope there is still enough time for it to be debated�. The ruling party - KANU's acting Chief Whip Simeon Mkala is equally confident. �We still have several months ahead of us and I will lobby for support in the House to ensure that this important Bill is passed�. But only time will tell.

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