INTRODUCTION
The Children Act No. 29 of 2022 (hence referred to as the “Act” or “the New Act”) repealed the Old Children Act of 2001 (hereinafter referred to as the “repealed Act”). The new law is progressive in that it reflects and protects children in today’s reality. The objectives of the Act are to give power to Article 53 of the Kenyan Constitution by making extensive provisions on children’s rights, children in need of care and protection, parental responsibilities, alternative care, children in conflict with the law, children services administration, and even the establishment and regulation of the National Council for Children’s Services.
The Act is progressive, informed, and supported by other Acts that speak to children, such as the Births and Deaths Registration Act, the Basic Education Act, of 2013, the Legal Aid Act, of 2016, the Victims Protection Act, of 2014, the Counter Trafficking in Persons Act, 2010, the Sexual Offences Act, 2006, and the Protection Against Domestic Violence Act, 2015.
SIGNIFICANT PROVISIONS
1. Considerations for the Best Interests of the Child
It is worth noting that the first schedule of the new Act includes specific considerations for the child’s best interests. It strengthens the immunity provided by Article 53(2) of the Kenyan Constitution against any adverse actions, omissions, considerations, or treatment meted out to a child.
The second schedule, in particular, is based on the following considerations as a manifestation of a child’s best interests:
- The age, maturity, developmental stage, background, and gender;
- Special needs from taking into account the peculiar nature of each individual child;
- The relationship the child has with the parent(s);
- The viability, adequacy, and duration of the child’s living arrangements;
- Stability in favour of the child;
- Adjustment to the child’s present home, school, and community;
- The capability and viability of shred custody;
This is an important step in codifying fundamental points that should be considered when making decisions about children.
The repealed Act did not provide detailed requirements about a child’s best interests. There was simply a passing reference to it in Sections 4(2) and (3) of the repealed Act. The remainder focused on “judge-made legislation”, legal precedent from other countries, and regional and international treaties, giving a broad scope in terms of the certainty of factors to be taken into account.
2. Criminal Liability of a Child
The Act has resulted in a new development in the criminal arena. There is an entrenched blanket provision in Sections 2 and 221(1) of the conduct that a person under the age of twelve (12) years cannot be criminally responsible for any conduct or omission. Section 2 of the Act recognizes that a child in violation of the law is defined as a youngster under the age of twelve (12) years. Section 221 (2) also states that a child under the age of fourteen (14) who commits an offense is deemed to lack the ability to distinguish between right and wrong until the court finds otherwise.
It is worth noting that this article has effectively supplanted Section 14 (1) of the Penal Code, which states unequivocally that a child under the age of eight is not criminally accountable for any act or omission. Furthermore, subsection 2 of the same law exempted children from criminal culpability unless the court was satisfied that they have the ability to distinguish between right and wrong. In the new Act, this is also increased to 14 years. The increase in the number of years for children in dispute with the law attempts to protect more children who may not be cognitively developed enough to distinguish right from wrong.
3. Legal Aid Fund
When it comes to children’s representation, the Act borrows from and is supplemented by the Legal Aid Act of 2016. Section 96(1), in particular, allows children complainants under the age of sixteen (16) years who require representation to be aided through the legal aid mechanism. In other words, any legal fees incurred as a result of that representation will be charged to the Legal Aid Fund.
The new Act’s detailed provision for the use of the Legal Aid Fund in that specific case is a step in the right direction. In contrast, the repealed Act under Section 77 provided that if an unrepresented child is brought before a court, the court may order that the child be granted legal representation, and any expenses incurred in relation to the child’s legal representation shall be defrayed from monies provided by Parliament. This portion of the repealed statute was nonsensical because it was unclear where the funds would come from. The new Act clearly, unequivocally, and exhaustively demands that legal expenses be split from the Legal Aid Fund.
4. Parental Responsibility
It is important to point out that under Section 31 of Part III of the new Act, both parents and/or guardians of the children have equal parental responsibility.
Equal parental responsibility has long been a cause of dispute, particularly between mothers and fathers upon a divorce. With the enactment of the new Act equal parental responsibility in the maintenance and upbringing of their children is becoming the norm in Court as evidenced in the case of LC v NC [2022] KEHC 12065 (KLR), where the Court determined that that parents have shared responsibility towards maintaining their child irrespective of their marital status.
5. Establishment of the Secretary of the Children’s Services Department
Section 37 creates the office of the secretary of children’s services, which did not exist in the Repealed Act. The secretary’s responsibilities would include, but would not be limited to, regulating, coordinating, managing, and supervising children’s officers in the delivery of welfare and administration of children services, as well as establishing, administering, and maintaining child protection centers, rehabilitation schools, and a remand home in each county.
6. Intersex children
After many years of exertion and struggle, children and parents of intersex children can finally breathe a sigh of relief as the new Act officially recognizes them. Section 2 of the Act has elaborately defined intersex children to mean a child with a congenital condition in which the biological sex characteristics cannot be exclusively categorized in the common binary of female or male due to inherent and mixed anatomical, hormonal, gonadal, or chromosomal patterns, which could be evident prior to, at birth, in childhood, puberty, or adulthood.
In the case of ‘A’ (Suing through the Mother E A) & another -v- Attorney General & 6 others [2014] eKLR in order to establish laws to safeguard intersex people as a category of marginalized people, the Court ordered that data on intersex persons living in Kenya be taken into consideration, demonstrating recognition of the special circumstances of intersex people.
Section 7 of the new Act directs the Principal Registrar of Births to take steps toward the registration of intersex children as such. Furthermore, Section 21 states that an intersex child has the right to be treated with dignity and to receive appropriate medical treatment, special care, education, and training, as well as to be considered as a special need category in social protection services. Finally, Sections 26(3) and 64(3) of the Act emphasize the need of having separate holding facilities and children’s protection units that are gender separated.
For context, it’s important to bear in mind that the repealed Act did not address the rights of intersex children as a unique and distinct group, leaving them vulnerable.
7. Adoption guidelines
The Act allows for many sorts of adoptions, including:
- Kinship adoption – The adoption of a child by a relative of the child.
- Local Adoption- This is an adoption in which the child is a Kenyan native or the adoptive parent or parents are Kenyan nationals living in Kenya; and
- Foreign Adoption- This refers to adoptions in which the adopting parent or 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 due to the law of the host country to which the prospective adoptive parent or parents have moved.
The Act also provides for children who are eligible for adoption to be;
- A child who is an orphan;
- A child who has been abandoned and whose parents or guardians cannot be located within three years; or
- A child who has been willingly offered for adoption by their biological parents.
8. Protection from Cyberbullying and Online Sexual Exploitation
Children must be protected in the modern world due to the rise of social media and the internet.
Cyberbullying was not provided for in the repealed Act while Sections 22(4), (5), and (6) of the new Act clearly establish provisions aimed at protecting children against cyberbullying. The Computer Misuse and Cybercrime Act Number 5 of 2018 must be read and supported by these clauses.
A person convicted of cyberbullying, stalking, or sexual exploitation of a kid online faces a sentence of imprisonment of up to 10 years, a fine of up to two million shillings, or both.
9. The Right of Children to Assemble, Demonstrate, Petition and Demonstrate in Public
Section 28 of the Act now expressly recognizes children’s right to assemble, petition and demonstrate in public, which was not included in the Repealed Act. This means that children can now organize and demonstrate on issues affecting children, however, the exercise of this right is limited by the rights of others. In addition, violations of this right might be enforced by the commencement of legal actions. This new provision validates Article 8 of the African Charter on the Rights and Welfare of the Child as well as Article 13 of the United Nations Convention on the Rights and Welfare of the Child.
10. Family-centered care
The Act focused and encouraged family-based care through fostering, adoption, custody, maintenance, guardianship, kinship care and kafaalah etc. Adoptions involving relatives would now be considerably speedier and less complicated, as a child’s best interests may sometimes be to remain within the family lineage. Further, the Act of 2022 prioritizes family-based alternative care over institutionalization of children in Children’s Homes.
11. Social Security Right
With regard to all reasonable expenses incurred in connection with alternative care and other social security programmes designated, Section 12(7) of the new Act directs the Cabinet Secretary with responsibility for finances to establish a fund under the Public Finance Management Act No. 18 of 2012 to be known as the Child Welfare Fund in order to facilitate the the attainment of the right guaranteed by Article 43(3) of the Constitution.
12. Guardianship
Whereas the Repealed Act acknowledged that non-Kenyan citizens might apply for guardianship of a child born in Kenya or a resident, the new Act now stipulates that only Kenyan nationals can petition for guardianship of a minor under Part X.
This action could be attributed to the country’s recent outrage over inter-country adoptions, which forced the installation of a moratorium halting the same based on suspicions that the adoptions were fueling child trafficking. This prevents foreigners from obtaining guardianship of youngsters, and they must now rely on inter-country adoptions, once the moratorium is lifted.
CONCLUSION
The evolving nature of the Act is remarkable and the changes made go a long way toward protecting children in the modern society. The Act paints a clear picture of its intention to improve child safety by promoting the child’s best interests.
The Act also promotes adequate resource allocation to child welfare programs, effectively co-ordinates all stakeholders in the child protection sector so that children can better access the services that they provide, protects children’s right to parental care and includes alternative care services, and, in the spirit of devolution, it makes provisions for the roles of county governments in discharging their mandate towards the administration of child welfare. These include crafting policies on children’s issues, constructing childcare facilities, and promoting children’s access to pre-primary education, play, and recreational centers.
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