ARTICLES

Caught between progress, stagnation and a reversal of some gains: Reflections on Kenya's record in implementing children's rights norms

Godfrey Odongo

Programme Officer, Wellspring Advisors, New York, United States of America

SUMMARY

The enactment in 2001 of the Children's Act was a significant development in the implementation of international children's rights norms in Kenya. The Act still stands as the first statute which substantially attempts to domesticate Kenya's obligations under any human rights treaty (in this case, the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child). Almost a decade since the Act entered into force, there is a poignant lesson to be learned. This is that in contexts such as Kenya's, where full compliance with international child rights norms requires a process of comprehensive audit of existing laws and policies, not even the enactment of a consolidated law such as the Children's Act suffices. Rather, the process requires a continuous review of all laws, on the one hand, and the putting in place of administrative and other practical measures, on the other. A significant development is the passage of a new Constitution, 2010. However, realising this potential under the new dispensation will require decisive political commitment to ensure the allocation of resources and the institution of practical measures for the implementation of child rights-related laws. The Free Primary Education programme still stands out as an example of a positive measure geared towards addressing the situation of some of Kenya's poor children. The challenge remains of replicating its example to other key areas, including health and child support to poor families. The need for further legal provisions, for example in the area of juvenile justice, the required repeal of laws such as in relation to corporal punishment and the gaps in enforcing existing laws mean that the process of harmonising Kenyan law with CRC and the African Children's Charter is far from complete.

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* LLB (Moi), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLD (Western Cape); godongo22@yahoo.com. This article is an abridged version of a research report commissioned as part of a Pan-African study by the African Child Policy Forum (Addis Ababa, Ethiopia) and is being published here with the Forum's permission.
1 Convention on the Rights of the Child, adopted by the UN General Assembly on 20 November 1989, has been ratified by 192 states - all UN member states apart from the United States, Somalia and South Sudan. More countries have ratified CRC than any other human rights treaty in history.
2 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure adopted and opened for signature and ratification by UN General Assembly Resolution 66/138 of 19 December 2011. As at 23 April 2012, no states had ratified the Protocol although it had been signed by 21. According to art 19 of the Protocol, it will enter into force three months after the deposit of the 10th instrument of ratification or accession.
3 The UN Committee on the Rights of the Child has consistently noted delays in the submission of state reports. However, in a recent examination of reports, the Committee has noted that it receives a large number of reports every year. It has, as an exceptional measure, recommended to some states, such as Kenya, to present consolidated periodic reports.
4 As of April 2012, 46 out of 54 member states of the African Union had ratified the African Children's Charter.
5 Communication 002/009 Institute for Human Rights and Development in Africa (IHRDA) and Open Society justice Initiative (on behalf of Children of Nubian Descent in Kenya) v the Government of Kenya (Nubian children's case). The decision issued on 22 March 2011 and further discussed in sub-sec 4.2 below is available at http://www.ihrda.org/wp-content/uploads/2011/09/002-09-Nubian-children-v-Kenya-Eng.pdf (accessed 2 April 2012).
6 UN Committee on the Rights of the Child, General Comment 5: 'General Measures of Implementation for the Convention on the Rights of the Child' CRC/GC/2003/5 27 November 2003. General Comments are authored by human rights treaty monitoring bodies (including the UN Committee on the Rights of the Child). By their nature (having been made by the treaty-monitoring body after years of experience of examining state party reports and state practice) these comments constitute authoritative elaborations on legal obligations entailed in the provisions of the various treaties.
7 The Act provides that '[t]he best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies'.
8 See para 4.2 below.
9 This provision has since been bolstered in relation to female genital mutilation (FGM) by the provisions of the Prohibition of Female Genital Mutilation Act 32 of 2011, which provides for stiffer penalties in relation to FGM. Under sec 29 of this Act, persons convicted of FGM and related offences, such as aiding and abetting the commission of FGM, are liable to a punishment of a minimum of three years' imprisonment or a minimum fine of Kshs 200 000 (US $2 500) or both imprisonment and fine. Under sec 20 of the Children's Act, the offence attracted a maximum imprisonment term of 12 months or a fine not exceeding Kshs 50 000 (US $625) or both. The new law against FGM has been in legal effect since 4 October 2011.
10 The African Children's Charter makes provision for 'duties' of children in art 31.
11 See GO Odongo 'The domestication of international standards on the rights of the child: A critical and comparative evaluation of the Kenyan example' (2004) 12 The International journal of Children's Rights 419 424, but cautioning, however, that the concept of children's duties is amenable to abuse.
12 Sec 20 provides that '[notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in sections 5-19, such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine'.
13 This too is a landmark legal development, since Kenyan courts have over the time restrictively interpreted locus standi in the sense that only those with a 'sufficient interest' in a matter may have the right to sue in court. This restricted interpretation has been a significant constraint to 'public interest litigation' even in constitutional and civil litigation cases which touch on the enforcement of fundamental rights and freedoms.
14 The Constitution envisages that the economic, social and cultural rights that it guarantees will come into effect immediately from the date when it (the Constitution) came into legal effect (27 August 2010).
15 Art 21 Constitution of Kenya.
16 One of these institutions under art 59 is the Kenya National Human Rights Commission.
17 These four 'key principles' or rights have been identified as forming the core of implementation of CRC; see UN Committee on the Rights of the Child, General Comment 5 (n 6 above); The African Committee of Experts on the Rights and Welfare of the Child, which is responsible for monitoring states' implementation of the African Children's Charter, has also adopted these principles as the key principles for the realisation of children's rights. See Guidelines for Initial Reports of States Parties (Prepared by the African Committee of Experts on the Rights and Welfare of the Child Pursuant to the Provision of article 43 of the African Charter on the Rights and Welfare of the Child) Cmttee/ACRWC/2 II Rev2, 2003, http://www.africa-union.org/child/Guidelines%20for%20Initial%20reports%20_%20English.pdf (accessed 3 April 2012).
18 [1970] EA 578 (Kenya) 41, discussed in Odongo (n 11 above) 422.
19 At the time included as part of the Guardianship of Infants Act, Cap 144 Laws of Kenya, since repealed by the Children's Act.
20 Odongo (n 11 above) 422.
21 UN Committee on the Rights of the Child, Concluding Observations on Kenya's second periodic report, 19 June 2007, CRc/c/KEN/CO/2, para 27.
22 Nubian children's case (n 5 above).
23 In its decision, the Committee cites the report, Kenya National Commission on Human Rights (2007) An identity crisis? A study on the issuance of national identity cards, Nairobi, http://www.knchr.org/dmdocuments/Final%20IDsReport.pdf (accessed 23 August 2011). This report identified and recorded practices indicating discrimination against certain populations in Kenya, including persons of Nubian descent, in the grant of birth registrations and other official identity documents.
24 Nubian children's case (n 5 above) para 40.
25 Nubian children's case (n 5 above) para 57.
26 Nubian children's case (n 5 above) para 46.
27 The African Child Policy Forum In the best interests of the child: Harmonising laws in Eastern and Southern Africa (2007) 36.
28 See The African Child Policy Forum In the best interests of the child: Harmonising laws on children in West and Central Africa (2011) 36, http://www.africanchildinfo.net/site/index.php?option=com_ sobi2&sobi2Task=sobi2Details&sobi2Id=1068&Itemid=59&lang=en (accessed 3 April 2012).
29 Government of Kenya (2005) Kenya second periodic state report to the UN Committee on the Rights of the Child, CRC/C/KEN/2 paras 162-164.
30 Save the Children (Sweden) 'Children's rights in Kenya - An analysis based on the CRC Reports' (2006) http://ecaf.savethechildren.se/Documents/ECAF%20docs/Children's% 20Rights%20in%20Kenya.pdf (accessed 3 April 2012).
31 Concluding observations on Kenya (n 21 above) para 29.
32 J Sloth-Nielsen 'Domestication of children's rights in national legal systems in the African context: Progress and prospects' in J Sloth-Nielsen (ed) Children's rights in Africa: A legal perspective (2008) 57 61. Sloth-Nielsen further discusses the South African High Court's 2006 decision in the case Centre for Child Law & Others v MEC for Education & Others Case 19559/06 (30 June 2006), which dealt with the nature of the state obligation towards children placed by a court in alternative care hostels. The hostels in which the children were hosted were, however, in a poor state, exposing children to inhabitable conditions and environmental and health hazards as a result of exposure to freezing conditions. The Court interpreted the lack of internal limitations in sec 28 of the South African Constitution 1996 to decide that, while children's socio-economic rights were subject to reasonable and proportional limitations to which all human rights under the Constitution were subject, these rights were 'unqualified and immediate'. Hence, the absence of internal limitations made children's socio-economic rights not subject to the availability of resources and legislative measures for their progressive realisation. The Court ordered the authorities to provide each of the children in this case with a sleeping bag, and to put in place proper access control and psychological support. This case is further discussed at http://www.communitylawcentre.org.za/clc-projects/socio-economic-rights/case-reviews/south-african-cases/high-court-cases/document.2009-05-29.2634707373/ (accessed 30 July 2011).
33 Constitution of Kenya, 2010, ch 16, secs 255-257.
34 See, generally, J Sloth-Nielsen 'The contribution of children's rights to the reconstruction of society: Some implications of the constitutionalisation of children's rights in South Africa' (1996) 4 The International journal of Children's
Rights 323 327-328.
35 For a general discussion on possible tension between children's rights norms and public pressure relating to child/juvenile justice, see, generally, GO Odongo 'The domestication of international law standards on the rights of the child with specific reference to juvenile justice in the African context' unpublished LLD thesis, University of the Western Cape, 2006.
36 This interpretation is implicit in sec 23(2) of the Act which clarifies what constitutes 'parental duties'.
37 Sec 24(3)(a).
38 The Children's Act provides in sec 25(1): 'Where a child's father and mother were not married at the time of his birth, the court may, on application of the father, order that he shall have parental responsibility for the child; or the father and mother may by agreement ('a parental responsibility agreement') provide for the father to have parental responsibility for the child.'
39 GO Odongo 'Domesticating international children's rights norms: The Kenya case study' in S Lagoutte & N Svaneberg (eds) Women and children's rights: African views (2011) 61 83.
40 High Court Civil Case 1351 of 2002, reported in [2006] eKLR (Rose Moraa case).
41 FIDA-Kenya (undated) 'Research on the implementation of gender-related laws' 20, http://fidakenya.org/wp-content/uploads/2011/02/Analysis-of-gender-discriminatory-laws-in-kenya.pdf (accessed 6 August 2011).
42 As above.
43 See EZ Ongoya 'The emerging jurisprudence on the provisions of Act No 8 of 2001, Laws of Kenya - The Children's Act' (2007) 1 Kenya Law Review 214 221224, http://78.136.28.31/klr/fileadmin/pdfdownloads/Elisha_Paper.pdf (accessed 5 August 2011).
44 This is the import of sec 25 of the Act as upheld by the court decision. See 'Judges shield love fathers from cost of care: Little girl loses case over right to upkeep' Saturday Nation 2 December 2006.
45 FIDA-Kenya (n 41 above) 19.
46 As above.
47 Eg, art 2(5) of the Constitution provides that 'the general rules of international law shall form part of the laws of Kenya'.
48 In the Rose Moraa case (n 40 above), the court adopted the long-held strict interpretation by courts of Kenya's dualist legal approach to treaties holding that the direct provisions of a treaty, including CRC and CEDAW (and the relevant treaty interpretation as regards the right to non-discrimination), requires a corresponding domesticating legislation/statutory provisions in order to apply as Kenyan law. Sec 82(4) of the old Constitution permitted discrimination against women in marriage, inheritance, adoption and other matters of personal law under customary law and was widely criticised for its legalisation of gender-based discrimination contrary to the right to equality. It inherently stood in conflict with a number of other laws, including the Children's Act 2001, which provides for, among others, the best interests of the child principle. Because of the doctrine of the supremacy of the Constitution (in art 3 of the previous Constitution, Constitution of Kenya 1969, as subsequently amended), the Court in the Rose Moraa case opined that, in the event of a conflict, the provisions of the Constitution were superior to those of the Children's Act.
49 Sec 25(2) provides: 'Where a child's father and mother were not married to each other at the time of his birth but have subsequent to such birth cohabited for a period or periods which amount to not less than twelve months, or where the father has acknowledged paternity of the child or has maintained the child, he shall have acquired parental responsibility for the child, notwithstanding that a parental responsibility agreement has not been made by the mother and father of the child.'
50 Civil Appeal 178 of 2000 (In the High Court at Mombasa), reported in [2010] eKLR.
51 As above.
52 As above.
53 Secs 186 & 191 respectively.
54 The Act goes further than CRC (art 37) and the African Children's Charter (art 17), both of which outlaw the use of life imprisonment and not all forms of imprisonment as the Act does.
55 There are a number of examples between 2002 and 2007 where courts have proceeded to impose (contrary to the explicit prohibition) the death penalty and prison sentences on child offenders for capital and other offences. Two examples illustrate this point. In the case Peter N Lugulai v Republic, Nakuru HC Criminal Appeal 363 of 2002 (unreported), discussed in Ongoya (n 43 above) 225, a magistrate's court sentenced a 16 year-old offender to death upon a finding of guilt in relation to the capital offence of robbery with violence. On appeal, the High Court overturned the conviction of the child on the basis of a lack of incriminating evidence. In relation to the death penalty, the Court stated that the Children's Act (sec 190(2)) was explicit in its inapplicability to children even in the event of a finding of guilty. The other example is the case CKL v Republic, Kericho High Court Criminal Appeal 104 of 2004 (unreported), discussed in Ongoya (n 43 above) 225. In this case, a child offender who was 17 years old at the time of committing two offences of arson and assault had been sentenced by a lower court to serve concurrent prison sentences of 18 months and three years, respectively, for the offences. On appeal, the High Court declared that the custodial sentences were illegal as sec 191 of the Children's Act prohibited the imposition of the sentence of imprisonment on child offenders.
56 Concluding observations on Kenya (n 21 above) para 68; UN Committee on the Rights of the Child 'Concluding Observations on Kenya's initial report', CRC/C/15/ Add 160, 7 November 2001, para 22.
57 Concluding observations on Kenya (n 21 above) para 68(a).
58 Although CRC and the African Children's Charter do not specify such an age explicitly, the UN Committee on the Rights of the Child has recommended the age of 12 as the minimum age states should set in this regard. See UN Committee on the Rights of the Child, General Comment 10: Children's Rights in Juvenile Justice,
CRC/C/GC/10, 25 April 2007 paras 32-33.
59 Art 40(3) and the UN Beijing Rules on the Administration of Juvenile Justice (Rule 11) which encourage diversion at all stages of the criminal justice procedure.
60 Eg, in R v SAO (a minor) [2004] eKLR, in which the High Court enforced the provisions on time limits by ordering the release on bail, pending trial, of a 13 year-old girl charged with murder. The Court cited the inordinate delay at the start of the trial in applying the provisions of the Child Offender Rules. In Victor Lumbasi v Republic, Bungoma High Court Criminal Case 57 of 2006 (unreported), the High Court held that, irrespective of the nature or seriousness of the criminal charge, including the capital offence of murder, unless there are militating circumstances, bail should ordinarily be granted to an alleged child offender. The Court also held that where a child is not released on bail, the Court may make an order for his or her detention in a children's remand home until the case in heard and determined which in any event must be within 12 months from the date of plea. In Republic v Wambua Musyoka Machakos High Court Criminal Case 24 of 200 (unreported), the High Court ordered the immediate release on bail of a suspected offender after an eight-month duration of the trial on the basis that the Child Offender Rules under the Act set a 12-month time limit within which to complete criminal trials involving alleged child offenders.
61 Eg, in Republic v Matano Katana Mombasa High Court Criminal Case 33 of 2004 (unreported) and Republic v ST (a child), Nakuru High Court Criminal Case 144 of 2003 (unreported). In both cases, the High Court decisions interpreted the purpose of the explicit wording of the Child Offender Rules (Rule 12) which set a time limit of three months for the trial of children for non-capital offences and one year for capital offences to be a safeguard to prevent delays in the completion of criminal cases involving alleged child offenders. According to the Court's decisions, the Rules provided trial courts jurisdiction to grant bail pending the hearing and disposal of cases against children, especially where there was a delay. The Court was of the view that, despite the prescriptive nature of the Rules, which set a time frame within which to complete the trial process, the Rules did not have the effect that cases regarding children accused of committing offences would have to be halted based on these time limits.
62 As provided for under CRC (art 40) and the African Children's Charter (art 17) and in the subsidiary legislation - the Child Offender Rules promulgated by the Minister in charge under the Kenyan Children's Act.
63 Court of Appeal, Criminal Appeal 239 of 2004, [2006] eKLR http://www.kenyalaw.org/family/all_cases.php?pageNum_Recordset1=1 &totalRows_Recordset1=111 (accessed 23 April 2012).
64 Children's Act, Child Offender Rules, Rules 12(2) & (4).
65 Discussed in sec 6 above.
66 Art 53(1)(f) provides for a child the right 'not to be detained, except as a measure of last resort, and when detained, to be held (i) for the shortest appropriate period of time'.
67 Draft Child Justice Bill 2010, art 59.
68 In General Comment 8: The right of the child to protection from corporal punishment and other cruel and degrading forms of punishment, CRC/C/GC/8, 2 March 2007, para 11, the UN Committee on the Rights of the Child defined 'corporal' or 'physical' punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting ('smacking', 'slapping', 'spanking') children, with the hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, eg, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion.
69 See J Stavropoulos Violence against girls in Africa: A retrospective survey in Ethiopia, Kenya and Uganda (2006); The African Child Policy Forum; ANNPCAN Kenya From physical punishment to positive discipline: Alternatives to physical/corporal punishment in Kenya (2005). An earlier study is the 1999 study by Human Rights Watch 'Spare the child: Corporal punishment in Kenyan schools' 1 September 1999, http://www.unhcr.org/refworld/docid/45d1adbc2.html (accessed 30 April 2012).
70 Concluding Observations on Kenya (n 21 above) para 34.
71 Concluding Observations on Kenya (n 21 above) para 35.
72 L Kurki 'International standards for sentencing and punishment' in M Tonry & S Frase (eds) Sentencing and sanctions in Western countries (2001) 339-340, interpreting the views of the UN Committee on the Rights of the Child in relation to arts 19, 28(2) & 37 of CRC (prohibiting all forms of abuse of children by parents, any form of cruel, inhuman and degrading treatment and punishment and obliging states to ensure all forms of school discipline conforms to human dignity). This interpretation has recently been reiterated by the Committee; see UN Committee on the Rights of the Child, General Comment 13: The right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011 para 17.
73 Sec 191 (2). Sec 18(1) on the prohibition of torture, cruel and inhuman treatment is also relevant for the prohibition of corporal punishment.
74 Criminal Law (Amendment) Act 5 of 2003.
75 Sec 55 of the Prisons Act, ch 90 Laws of Kenya allows for the imposition of corporal punishment on any male inmates (except inmates held under sentence of death or pursuant to a civil penalty). Sec 36 of the Borstal Institutions Act, ch 92 Laws of Kenya allows for the imposition of corporal punishment on male inmates, including boys held within Borstal institutions.
76 Legal Notice 56 of 2001 - The Education (School Discipline) Regulations 2001.
77 Constitution of Kenya, 2010, art 20(1).
78 Art 2(4) of the Constitution provides that '[a]ny law, including customary law, that is inconsistent with this Constitution, is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid'.
79 In the absence of corresponding provisions in Kenya's criminal law, the prohibition of all forms of corporal punishment in all settings requires the legal enactment of the necessary penal proscription in order for there to be a legal basis for criminal prosecution of individuals and other actors who may violate this prohibition.
80 Concluding Observations on Kenya (n 21 above) para 35.
81 Recent government documents such as the government of Kenya Kenya economic survey 2011 - Highlights (2011) 38 (on file with author) indicate the total number of primary schools in the country as of 2010 to be 27 489. Of these, there were about 20 000 public (state) primary schools in the country as of July 2011 - an increase of about 11% since 2003. See T Muindi 'Teacher truancy short-changes pupils' The Daily Nation 20 July 2011 68.
82 See Odongo (n 39 above) 72.
83 Kenya second periodic state report (n 29 above) para 401.
84 Government of Kenya (n 81 above) 38.
85 T Bold et al 'Free primary education in Kenya: Enrolment, achievement and local accountability' (2009) 10, http://www.economics.ox.ac.uk/Members/tessa.bold/work/Kenya%20CSAE% 20Conf%20Mar09.pdf (accessed 10 August 2011).
86 See, generally, 'Improving institutions for pro-poor growth' University of Oxford 'Lessons from Kenya's introduction of free primary education' (2009) http://www.iig.ox.ac.uk/output/brief¡ngpapers/pdfs/üG-briefingpaper-03-kenya-primary-education.pdf (accessed 1 August 2011).
87 A July 2011 study by a Kenyan NGO cited by Muindi (n 81 above) found that student performance in public schools was poorest in arid and semi-arid rural Kenya and rural parts of Western Kenya.
88 See UNFPA 'State of the world's midwifery, 2011 - Kenya country situation' (2011), http://www.unfpa.org/sowmy/resources/docs/country_info/profile/en_Kenya _SoWMy_Profile.pdf (accessed 23 August 2011).
89 Kenya is yet to abolish the imposition of user fees in public health institutions. The applicable government policy still requires the standard payment of Ksh 10 (US $0,08) to access the lowest health unit (dispensary) and Ksh 20 (US $0,16) for access to health centres. For many low-income families, these standard payments are beyond their reach and often entail a balancing of expenditure between health care and other basic needs such as food.
90 Government of Kenya and UNICEF 2009 Situational analysis of children, young people and women in Kenya: Securing Kenya's future in the hands of children and young people, Nairobi: GoK/UNICEF (2009) 128.
91 J Sloth-Nielsen 'A developing dialogue - Children's rights, children's law and economics: Surveying experiences from Southern and Eastern African law reform processes' (2008) 12 Electronic journal of Comparative Law 4.
92 These are mainly the World Bank, UNICEF, the Swedish International Development Co-operation Agency (SIDA) and the UK Department for International Development
(DFID).
93 JH Bryant 'Kenya's cash transfer programme: Protecting the health and human rights of orphans and vulnerable children' (2009) 11 Health and Human Rights http://www.hhrjournal.org/index.php/hhr/article/viewArticle/174/259 (accessed 15 August 2011).
94 As above.
95 MN Wabwile 'Rights brought home? Human rights in Kenya's Children Act 2001' in A Bainhaim & B Rwezaura (eds) The international survey of family law (2005) 393 413.
96 Kenya's Second Periodic Report (n 29 above) para 328 stated that at least 56% of Kenyans lived below the poverty line.
97 Bryant (n 93 above).
98 As above.
99 See UNAIDS UNAIDS Report on the Global AIDS Pandemic, http://www.unaids.org/globalreport/ (accessed 10 August 2011). The report defines 'orphans' as children aged under 18 who have lost one or both parents to AIDS.
100 Act 3 of 2006, providing stiffer penalties for sexual offences and criminalising various forms of sexual offences against children and adults. The Act has been in legal effect since 21 July 2006.
101 Act 8 of 2010 providing for harsher penalties in relation to the trafficking in persons. The law has been in legal effect since 13 December 2010.
102 Act 32 of 2011 (n 9 above) which provides for harsher penalties for the offence of female genital mutilation/cutting.
103 See, generally, Federation of Women Lawyers in Kenya (FIDA-K) (2009) Implementation of the Sexual Offences Act - A Research Report.
104 See, generally, African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN) Report of the Conference on Child Trafficking, Nairobi, 17 August 2006.
105 Government of Kenya and UNICEF (n 90 above) 137.
106 As above.
107 As above, citing Government of Kenya Kenya Demographic and Health Survey 2008/9 (2009).
108 A joint 2009 government-UNICEF study estimated that there were 700 000 street children in Kenya. This study uses an expansive definition of street children to include children working in the streets; see Government of Kenya and UNICEF (n 90 above) 130.
109 In respect of discrimination faced by children from minority groups in relation to birth registration and the right to a nationality, see generally KNCHR (n 23 above).
110 PO Alila & JM Njoka 'Child labour, new and enduring forms from an African development policy perspective', cited in Government of Kenya and UNICEF (n 90 above) 140-141.
111 As above.
112 See P Kameri-Mbote 'Custody and the rights of children' in K Kibwana & L Mute (eds) Law and the quest for gender equality in Kenya (2000) 161-181. Different terms were used to refer to children within the legal system, including terms such as 'infant', 'young person', 'juvenile', 'minor', etc.
113 Concluding Observations on Kenya's Second Periodic Report (n 21 above) para 22. The Hindu Marriage and Divorce Act, ch 157 Laws of Kenya and the Marriage Act, ch 150 Laws of Kenya provide that the minimum age for marriage for a girl is 16 and the minimum age of marriage for a boy 18 (in relation to Hindu and Christian marriages). Customary law and Islamic law (applicable for personal matters under Kenyan law) allow for persons under the age of 18 (without necessarily setting minimum ages) to be married.