The New Children’s Act 2022 puts Kenya on the map as one of the countries with the most progressive laws to ensure the protection of the wellbeing of children. The Children’s Act of 2022 is an improvement from 2001 Children’s Act in the following aspects;

 Age of criminal responsibility:

Section 221(1) of the 2022 Act raises the age of criminal responsibility to 12 from 8 which was in the previous Act. While the penal code has not been amended to comply with this new law, the new Children’s act supersedes it when addressing the issue of criminal responsibility.

 Children in conflict with the law:

Section 226 of the 2022 Act advocates for the use of alternative methods of holding children accountable for their unlawful acts or omissions resulting in harm to other persons

Additionally, it provides that after committing small crimes, children in conflict with the law are diverted to community-based systems rather than being processed through the legal system.

It advocates for the reconciliation and re-integration of the child into the community.

As they move through the legal system, all children who are in legal trouble will have access to free legal representation.

 Children with Special needs:

Children living with disabilities are dignified under the 2022 Act at section 20. The Act guarantees for children with special needs to be treated with dignity, and to be accorded appropriate medical treatment, special care, education and training free of charge. Additionally, it calls for the State to establish such institutions or facilities including child care facilities, health facilities and educational institutions as may be necessary to ensure the progressive realization of the right under this section 20.

 Recognition of the rights Intersex children:

Intersex children are also accorded protection under section 21 of the Act, this is in contrast to the Repealed Act which did not make any provision for such children.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 recognizes 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.

Children born out of wedlock:

The new 2022 Act recognizes children born outside wedlock to have equal rights as other children. This was not a concept acknowledged in the 2001 Act.  Section32 of the 2022 Act clearly stipulates that the parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.

 Family based care:

The Children Act of 2022 favors family-based alternatives to institutional care for children over placing them in children’s homes. It recognizes that the family is the basic unit to promote the best interests of the child. The law has been amended to allow for kinship adoption, which is a much quicker and less expensive way for a relative to adopt a child from his or her line.

Guardianship:

Section 122(3) of the 2022 Act limits guardianship appointment of children to only be available to Kenyan Citizens. This defers from the 2001 Act at section 102(3) which provided that even a non-citizen could be granted guardianship. This addressed the concerns of cases of child trafficking.

Participatory rights:

Section 28 of the 2022 Act recognizes that every child has the right, peaceably and unarmed, to assemble, demonstrate or present petitions to public authorities, and to freely participate in matters affecting children through lawfully established forums, associations, and assemblies at the national and county levels. This is in line with 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.

 Corporal punishment:

The 2022 Children’s Act at section 25(3) prohibits corporal punishment as it provides that any person who subjects the child to torture or other cruel and inhuman or degrading treatment, including corporal punishment commits an offence and shall, on conviction, be liable to the offence under the Prevention of Torture Act. The previous 2001 act did not specify corporal punishment on its provision of protection from abuse at section 13.

 The Office of the Secretary of Children’s Services:

Section 37 of the 2022 Act establishes the office of the secretary of children services which was not previously in the 2001 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.

 PITFALLS

Firstly, there has been inadequate awareness on the new children’s act which limits its implementation. This can be clearly observed in the continuous cases of corporal punishment at homes and learning institutions yet this is an offence as per the new act.

 The lack of effective coordination with other laws in particular the penal code has not been amended to align with the new 2022 Act on the age of criminal responsibility. This creates a degree of uncertainty in the implementation of the law.

 On guardianship, the 2022 Act 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, the Act does not elaborate on possible circumstances that the court might consider as exceptional.

There are insufficient resources in the management of established institutions to conform with the provisions under the new Act.

 Restorative justice and diversion has not been fully embraced in our society, it would require much more strict conditions to enforce this.

By Wanjiru Wainaina

Lawyer