Children's Rights and the new Constitution in Kenya

On 27 August 2010, Kenya promulgated into law a new Constitution which was overwhelmingly supported at the national referendum on the 4th of the same month. Besides ushering in a new political and democratic dispensation, the new Constitution lays down a normative and structural framework for the protection of human rights in Kenya.  The new Constitution has a comprehensive Bill of Rights which sets out both the general rights extending to citizens in general and those of specific groups including children, the youth and persons with disabilities. The mini bill of rights for children is set out at article 53. Some key aspects of the new law on children are highlighted in this article.

Departing from the conventional limitations on socio-economic rights, article 53 of the Constitution creates immediate obligations upon the State to fulfil socio-economic rights of children. In effect, the government is henceforth bound to deliver healthcare, education, nutrition and shelter to all children irrespective of budgetary implications. The new duty on the State with respect to education for instance will be greater than that provided for in the Children Act, which vests responsibility on both parents and government.

On parents’ duty to support their children, the Constitution now stipulates that both the father and the mother, whether married to one another or not, have an equal responsibility to provide for their child. This provision is essential in light of the fact that the Children Act does not hold the father of a child born out of wedlock liable for the maintenance of such child. While awaiting review of all existing law to streamline it with the new Constitution, it is arguable that it is now possible to challenge the constitutionality of sections 24 and 25 of the Children’s Act in court.

The new Constitution in article 14(4) provides for a presumption of citizenship for children found in Kenya if they are or seem to be eight or less years old and if their nationality and parents are not known. This provision raises concern in view of the instability in the region and the potential that many unaccompanied children may find themselves in Kenya and hence may qualify for citizenship.  The possibility of abuse of this article is pre-empted by article 17(2) which stipulates that where fraud, false representation or concealment of any material facts by any person is used in this respect, or the nationality or parentage of the person becomes known, revealing that the person was a citizen of another country, or was older than eight years when found in Kenya, the citizenship would be revoked. Arguably however, the implementation of article 17(2) will be challenging.

In tandem with international children’s rights, the new Constitution establishes in Kenyan law internationally acclaimed principles on the rights of children, such as best interests of the child which is now to be paramount in every matter concerning children. It further recognises age as a ground for discrimination, which is critical to the application of the rest of the rights recognised in the Bill of Rights to children. The new constitutional framework creates room for strategic litigation affording an opportunity to enhance jurisprudence on children’s matters. Building on the seemingly narrow scope covered by article 53 of the Constitution, it is possible to develop extensive jurisprudence for children as has happened in other progressive jurisdictions. Hence, the new law is a sound foundation for streamlining the rights of children in Kenyan law both now and in the future.