Children

Child Rights Programming Interventions: Reinforcing Realization of KNCHR’s Mandate.

The Constitution of Kenya, 2010 places great emphasis on Access to Justice by all, specifically, it provides for rights the Child extensively in Article 53 and reiterates importance of the Child’s best interest consideration in every matter concerning the child. The same is provided for in the Children’s Act of 2001. Access to justice as pertains to Children’s remains a critical tool of enhancing safeguards to child rights as espoused in various legal instruments. It is for this reason that the KNCHR has designated a specific child rights focal point to enhance mainstreaming of child rights programming and ensure swift action to resolve child rights violations and interventions.

The Kenya National Commission on Human Rights mandate to realize child rights is informed by;

Article 59 2 (d) of the Constitution and Section 8 of the KNCHR Act, 2011 is mandated to; receive complaints, investigate, redress, monitor and report on observance of human rights in all spheres of life both public and private. Exercise of the Commission’s mandate includes the protection and promotion of children noting that children are first humans, notwithstanding the characteristics of human rights that recognise rights as inherent, indivisible, interdependent and universal. In short, realization of one right depends on the other and vice versa hence the National’s Commission mandate is to enhance the realization of the entire chapter 4 of the Constitution.
UN General Comment No. 2 of 2002, which speaks to the importance of the role of NHRIs in the Promotion and Protection of the Rights of the Child. This comment directed specific recommendations to KNCHR to put in place strategies and structures for effective realization of child rights in a more prominent way rather than generalizing this under the human rights umbrella.
Mandate accorded by other enacted Laws; such as the Persons deprived of liberty Act, the protection against torture Act,
Membership in Strategic partnership and advocacy National platforms on various child rights accountability working groups/networks, membership to National taskforces, advisory boards relevant to child rights protection and promotion as well as NANHRI’s partnership.
Affiliate membership to regional mechanisms like the African Commission on human and people’s rights; and obligations bestowed by Attorney General such as reporting under the Convention on the Rights of Persons with Disabilities.

The Commission strategies to enhance specific focus on realization of children rights commenced with appointment of a focal point for child rights who informed the mainstreaming of aspects of child rights programming in the core programmatic interventions.Currently, the Commission continues to strengthen child rights programming and realization of child rights by embracing the mainstreaming chid rights work in its core programmatic interventions which includes; receiving complaints on child rights violations, investigations, securing appropriate redress, promotion of economic social cultural rights, conducting research on child rights issues, monitoring compliance of state with international and regional treaties, advocacy for institutional reforms, conducting public awareness and capacity building for government actors, partnership with key stakeholders such as complaints handling referral partners, membership in key Government platforms like the National Council for Administration of Justice (NCAJ) Taskforce on children matters, taskforce on alternative justice system, National Legal Aid Board; all aimed at enhancing the realization of children rights in Kenya.

Success Stories

Between August, 2015 and August, 2017, the National commission secured justice for more than 720 children through processing of their complaints, investigations, referral and resolution of reported complaints successfully using Alternative dispute resolution mechanisms, referral through complaints handling and referral partnership and some by filing in court using public interest litigation. Some of the successes reported from the PIL strategy that have contributed to the human rights jurisprudence on promotion and protection of child rights is as shown in table below.

Table : Cases on children's rights litigated by the Kenya National Commission on Human Rights for the period August 2015 to August 2017.

NAME OF THE CASE	ROLE PLAYED BY THE COMMISSION	ISSUES CANVASSED IN THE CASE	DECISION OF THE COURT
Baby ‘A’ (Suing through Mother EA) & another versus Attorney General & 6 Others (2014)	Interested Party	Whether failure to register intersex children during birth due to an indeterminate sex amounts to discrimination and is a violation of the rights to legal recognition Whether corrective surgery carried out on intersex children without rules and regulations to govern conduct of surgery violates the right to physical integrity and the right to self-determination of children.	On the question of registration of Baby ‘A’ the court dismissed the case of the petitioner that Baby A was not registered because he was not assigned a sex at birth. However, the court recognised the need for law reform to ensure registration of intersex children. The court directed the state to come up with appropriate legal framework governing issues related to intersex children based on internationally accepted guidelines. The directive was given upon the court’s recognition that there is no legal framework on intersex person in place. The court ordered for the Attorney General to report within 90 days on the status of the organ, agency or institution responsible for collecting and keeping data on intersex children and persons generally. The AG was also to report on the status of a law regulating the place of inter-sex persons as a sexual category and guidelines for corrective surgery on inter-sex person
LNW versus Attorney General & 3 Others (2016)	Amicus Curiae	Whether section 12 of the Registration of Births and Deaths Act allowing fathers of children born out of wedlock to decide whether to include their names in the child’s birth certificate amounts to discrimination and whether the provision violates the best interest of the child principle.	Section 12 of the Registration of Births and Deaths Act which has the effect of differentiating between children on the basis of whether they were born in or out of wedlock amounts to unfair discrimination and violates article 27 of the Constitution of Kenya
JLN & 2 others versus Director of Children Services & 4 Others (2014)	Interested Party	Custody of children born out of surrogacy agreements. Whether children born out of a surrogacy agreement are in need of care and protection and therefore need the intervention of the director of children services?	Any action taken on children born out of surrogacy including custody of the child must be weighed against the best interest of the child principle. A determination of whether a child is in need of care and protection must be weighed against section 119 of the Children’s Act and the best interest of the child principle. Therefore it is not all situations in which a child born out of surrogacy agreement renders them in need of care and protection The court recognised that there is no legal framework to govern issues concerning children born out of surrogacy agreements and therefore in order to secure their rights, it was fundamental duty of the state to provide a legal framework for such children.

NAME OF THE CASE

ROLE PLAYED BY THE COMMISSION

ISSUES CANVASSED IN THE CASE

DECISION OF THE COURT

Baby ‘A’ (Suing through Mother EA) & another versus Attorney General & 6 Others (2014)

Interested Party

Whether failure to register intersex children during birth due to an indeterminate sex amounts to discrimination and is a violation of the rights to legal recognition

Whether corrective surgery carried out on intersex children without rules and regulations to govern conduct of surgery violates the right to physical integrity and the right to self-determination of children.

On the question of registration of Baby ‘A’ the court dismissed the case of the petitioner that Baby A was not registered because he was not assigned a sex at birth.

However, the court recognised the need for law reform to ensure registration of intersex children.

The court directed the state to come up with appropriate legal framework governing issues related to intersex children based on internationally accepted guidelines. The directive was given upon the court’s recognition that there is no legal framework on intersex person in place.

The court ordered for the Attorney General to report within 90 days on the status of the organ, agency or institution responsible for collecting and keeping data on intersex children and persons generally. The AG was also to report on the status of a law regulating the place of inter-sex persons as a sexual category and guidelines for corrective surgery on inter-sex person

LNW versus Attorney General & 3 Others (2016)

Amicus Curiae

Whether section 12 of the Registration of Births and Deaths Act allowing fathers of children born out of wedlock to decide whether to include their names in the child’s birth certificate amounts to discrimination and whether the provision violates the best interest of the child principle.

Section 12 of the Registration of Births and Deaths Act which has the effect of differentiating between children on the basis of whether they were born in or out of wedlock amounts to unfair discrimination and violates article 27 of the Constitution of Kenya

JLN & 2 others versus Director of Children Services & 4 Others (2014)

Interested Party

Custody of children born out of surrogacy agreements.

Whether children born out of a surrogacy agreement are in need of care and protection and therefore need the intervention of the director of children services?

Any action taken on children born out of surrogacy including custody of the child must be weighed against the best interest of the child principle. A determination of whether a child is in need of care and protection must be weighed against section 119 of the Children’s Act and the best interest of the child principle. Therefore it is not all situations in which a child born out of surrogacy agreement renders them in need of care and protection

The court recognised that there is no legal framework to govern issues concerning children born out of surrogacy agreements and therefore in order to secure their rights, it was fundamental duty of the state to provide a legal framework for such children.

Partnerships

The Commission has continued to participate in strategic partnerships and platforms where advocacy for legal, policy and administrative reforms have been strengthened in order to enhance safeguards on for children rights in Kenya.

Combating Statelessness.

KNCHR has continued to complement Government’s efforts in reducing children statelessness and advocacy for the stateless persons. This is in pursuant to a decision of the African Committee of Experts on the Rights and Welfare of the Child, requiring Kenya to end its discriminatory practices with respect to issuance of National Identity cards and birth certificates. This case was supported by the KNCHR’s research on stateless persons and the effect to enjoyment of human rights titled, “Out of the Shadows towards ensuring the Rights of Stateless Persons and Persons at risk of Statelessness in Kenya (2010).”In partnership with the UNHCR working group on stateless persons, the Commission worked to highlight the Makonde’s continued statelessness; this led to their naturalization hence securing the rights of the Makonde’s children to enjoy their right of citizenship and identity.

Review of Bills

Notably, the commission has been involved in review of the Children Bill 2017 and the Nairobi City County Childcare Facilities Bill, 2017 with a view to ensuring compliance with the African Charter on the Rights and Welfare of the Child as well as the United Nations Convention on the Rights of the Child.

Intersex Rights

The Commission has conducted a study on the rights of inter-sex persons in Kenya with a view to guiding its work on advocacy for legal and policy reforms in Kenya. The study documents human rights violations suffered by inter-sex persons and children in Kenya and makes recommendations to various stakeholders towards protection their protection. The Commission continues as a member and joint secretary to coordinate funding and implementation of activities of Intersex persons Taskforce with the aim of making recommendations that will enhance safeguards and rights of intersex children.

Elections and Children

The commission collated data on rights violations that directly concerned children. The commission documented 10 electoral related deaths of children, disruption of learning activities during school calendar due to political campaigns and 15 cases of election related sexual and gender based violence.(See reports titled; ‘The Fallacious Vote: A Human Rights Account of the 2017 Political Parties Primaries (May 2017) and ‘A Mirage at Dusk: A Human Rights Account of the 2017 General Election (September 2017) and ‘Still a Mirage: A Human Rights Monitoring Report on the 2017 Repeat Presidential Election (November 2017).’

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