On 6th July, 2022, the Children’s Act, 2022 (hereinafter “The Act”) was assented into law. The Act will take effect on 26th July, 2022. In a nutshell, the Act gives effect to the provisions of Article 53 of the Constitution of Kenya and advances the concept of the best interest of the child as the primary consideration in every decision touching on children. It has elaborated and expounded on a myriad of aspects such as prioritisation of family-based care like fostering adoption, custody, maintenance, guardianship, kingship and Kafaalah that was not as intricate in the now Repealed Children’s Act, No. 8 of 2001 (Hereinafter “Repealed Act”).
The salient features of the new Children’s Act include;
- Best interest of the child – Section 8 and the 1st Schedule
The Act capitalises on the consideration of the best interests of the child in every decision undertaken on behalf of the child being the right to survival, protections, participation and development. It goes further and makes provision for the considerations that ought to be taken into account when determining the best interest of the child. Although the Repealed Act provided for the best interest of the child it did not go further and elaborate on the considerations that ought to be undertaken in taking into consideration the best interest of the child. These include but not limited to;
The age, maturity, stage of development, gender, background and any other relevant characteristic of the child;
Distinct special needs (if any) arising from chronic ailment or disability and;
The relationship of the child with the child’s parent(s) and/or guardian(s) and any other persons who may significantly affect the child’s welfare.
2. Rights of intersex children – section 21
Intersex children are also accorded protection under section 21 of the Act, this is in contrast to the Repealed Act which did not make any provision for such children. The Act recognises that such children ought to be treated with dignity and accorded appropriate medical treatment special care, education, training and consideration as a special category in social protection services.
3. Children in Conflict with the law
a) Institutionalization of children
Section 26 of the Act requires that institutionalization of children in conflict with the law shall only be used as a means of last resort and such children ought to be placed in alternative measures such as placement with family or in an educational setting and or home. This is a welcome provision as it will foster a paradigm shift from Kenya’s over-reliance on institutionalization as a child care and child protection model to a preference towards non- institutionalisation of children who are in conflict with the law.
This provision allows Kenya to adhere to its international obligations under Article 37(b) of the UN Convention of the Rights of the Child, which also advocates for non- institutional means of dealing with children in conflict with the law. It further ensures that the Children Act is aligned with Article 53(f) the Constitution which advocates for the detention of children as a means of last resort.
In the same breadth, this provision will go a long way to complement the Guidelines for the Alternative Care of Children, 2015, which were enacted to reduce reliance on institutional care, enhance family and community care, and provide harmonised national guidance for child care and protection.
Additionally, the Act further expressly provides and offers children an opportunity for diversion. Diversion envisages the channelling of disputes involving child offenders outside the formal court processes into informal community-based structures. The primary objective of diversion includes inter alia;
- Utilising alternative methods of holding children accountable for their unlawful acts or omissions resulting in harm to other persons;
- Promoting the rehabilitation of the child, and re-integration of the child into the family and community; and
- Providing an opportunity to those prejudicially affected by the unlawful conduct of the child to express their views concerning such conduct;
b) Age of Criminal Liability of a child
Under the repealed Children’s Act, the age of criminal liability in Kenya was 8 years. The new Act now raises the age of criminal liability to 12 years.
“A person under the age of 12 years shall not be criminally responsible for any act or omission,” section 221 of the Act reads.
This now means that a person who is under the age of 12 years cannot be held criminally liable for any offence that they commit. This amendment now brings Kenya into conformity with the internationally recognized minimum age of criminal responsibility standards as captured in the African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child which Kenya is a signatory to.
Further, the Act makes provision for the establishment of a special police unit to be designated by the Inspector General who will be in charge of dealing with children matters, investigations and apprehension of children found to be in conflict with the law.
Although Section 14(1) of the Penal Code still makes provision for the age of criminal liability of a child to be under the age of 18 years, the Act supersedes this by providing that it takes precedence to any other inconsistent provision in any other Act. As such despite the Penal Code providing for a lower age of criminal liability under the Children’s Act prevails.
4. Children’s right to assemble, demonstrate, petition and demonstrate in public life
The Act, under section 28, now explicitly recognises children’s right to assemble, petition and demonstrate in public life which was not provided for under the Repealed Act. This means that children are now able to assemble and demonstrate on matters touching on children though the exercise of this right is subject to the rights of others. Further the infringement of this right can be enforced through the institution of proceedings in court. This gives credence to Article 8 of the African Charter on the Rights and Welfare of the Child and 13 of the UN Convention on the Rights and Welfare of the Child.
5. Establishment of the Office of the secretary of children’s services
Section 37 establishes the office of the secretary of children services which was not previously there in the Repealed Act. The duties and roles of the said secretary would include but not limited to; regulating, coordinating, managing, and supervising children’s officers in delivery of the welfare and administration of children services and be responsible for establishing, administering and maintaining child protection centres, rehabilitation schools and a remand home in every county.
6. Establishment of children’s institutions
Section 63 of the Act makes provision for the establishment of children rescue centres in every county for purposes of temporary care of children in need of care and protection pending placement in alternative care. Further it provides that such placement of the said child in the rescue centre shall only be limited to a period of 6 months and a child will be placed in the said institution only when alternative care placement is not available at that particular time. The Act has explicitly elaborated that police stations, remand homes or rehabilitation schools shall not fall within the category of children rescue centres.
Although the Repealed Act recognized that non-Kenyan citizens would be eligible to apply for guardianship of a minor born in Kenya or a resident, the Act, under Part X, now mandates that only Kenyan Citizens are eligible to apply for the guardianship of a minor. This move could be attributable to recent uproar in the country concerning inter- country adoptions which necessitated the imposition of a moratorium premised on allegations that the said adoptions were fuelling child trafficking. This locks out foreigners from seeking guardship of minors and they can only now fall back on inter- country adoptions.
The Act further provides that only in exceptional circumstances can a guardian appointed by court be able to remove the said minor from the jurisdiction of Kenya. However, these exceptional circumstances that the court ought to consider are not elaborated nor expounded. Perhaps these circumstances would be elaborated in the Rules that ought to be formulated by the Chief Justice on guardianship to offer more guidance on the matter.
8. Adoption – Part XIV
The Act has provided for the various types of adoptions which include;
- Kingship adoption- This involves the adoption of a child by a person who is a relative of the child;
- Local Adoption- This involves an adoption where the child is resident in Kenya; or the adopting parent or parents are Kenyan nationals’ resident in Kenya; and
- Foreign Adoption- This involves an adoption where; 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 by operation of the law of the host country to which the prospective parent or parents have a nationality.
The Act further makes provision for children who are eligible for adoption being;
- Child who is an orphan,
- Child who is abandoned and the parents or guardians cannot be traced within a period of three years and;
- Child offered willingly for adoption by their biological parents.
With respect to persons who are eligible to adopt, the Act recognizes that an adoption order can be made in favour of a sole applicant and or two spouses jointly. In the same breadth, those prohibited from adoption are sole male applicants unless they are blood relatives of the said child. Although the Repealed Act expressly prohibited homosexuals from adoptions, the new Act is silent on this issue altogether.
Although the Act recognises inter- country adoptions i.e., adoptions of children in Kenya by spouses who are not citizens of Kenya, it is curious to note that the inter-country moratorium is still subsisting rendering inter-country adoptions unviable. This is explicitly reflected in the 7th schedule of the Act which provides that the terms of the moratorium on inter-country and resident adoptions issued on 26th November 2014 shall apply to matters relating to inter-country adoption under the Act.