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儿童权利委员会审议肯尼亚的报告（部分翻译）
审议肯尼亚
2016年1月21日
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日内瓦（2016年1月21日）——儿童权利委员会今日结束审议肯尼亚关于落实《儿童权利公约》条款的第三至第五次合并定期报告。
肯尼亚司法部长杰苏·穆伊盖（Guthu Muigai）在介绍报告时表示，肯尼亚这些年来开展了令人印象深刻的倡议，通过制定政策以及法律和机制框架致力于实现儿童权利。肯尼亚在降低婴儿和孕产妇死亡率、控制艾滋病病毒以及促进孕产妇、新生儿和儿童健康方面取得了进展。一些方案使得初等学校和中等学校的入学率升高，立法加强了对儿童的保护，使其免受伤害和暴力，暴力残疾儿童。挑战仍然存在，因为大量人口仍生活在贫困线以下，这引发了童工、性剥削和贩运。约有240万儿童为孤儿，对残疾儿童的歧视和虐待也仍然存在。
在互动讨论中，委员会专家对肯尼亚在立法和通过新的宪法方面取得的进展表示欢迎。他们也对《儿童法》的改革表示欢迎，并鼓励立即完成该改革。然而，他们对立法缺乏落实且为儿童事宜分配的财力资源不足表示遗憾。专家们对暴力侵害儿童表示关切，包括警察对抗议青少年的残暴行为以及实践中仍存在对女童的有害做法等案件。他们鼓励进一步努力解决导致这类暴力以及家庭中的负面陈规定型的传统观念。还提及了残疾儿童的状况、教育质量低、入学率低、难民和移徙者缺乏获得出生登记的途径以及卫生服务的获得不足等问题。
委员会成员兼肯尼亚报告员奥尔加•哈佐娃（Olga Khazova）表示，虽然已取得了进展，但由于需要克服传统陈规定型和做法，重大关切仍然存在。
穆伊盖先生在总结发言中对委员会的参与及其对肯尼亚儿童状况的了解表示十分感谢。他重申了肯尼亚对其在《儿童权利公约》下国际义务的承诺。
委员会主席本雅姆•达维特•梅兹姆尔（Benyam Dawit Mezmur）在会议最后表示，需要最终确定大量关于立法议程的法律，他希望能优先通过关于儿童权利的法律。 他还希望肯尼亚将考虑遵循《儿童权利公约关于设定来文程序的第三任择议定书》。
肯尼亚代表团包括司法部长办公室；东非事务、商业和旅游业秘书处；卫生部；儿童服务国家委员会；首要国家顾问部；和肯尼亚常驻联合国日内瓦办事处代表团的代表。
委员会将在1月22日（周五）上午10点召开下一次公开会议，届时将审议赞比亚的第二至第四次合并定期报告（CRC/C/ZMB/2-4）。
报告
点此阅读肯尼亚第三至第五次合并定期报告：CRC/C/KEN/3-5。
Presentation of the Report
GUTHU MUIGAI, Attorney General of Kenya, said that the report presented today provided substantive evidence of the progress made by Kenya in the implementation of the Convention on the Rights of the Child, and detailed measures taken to secure and safeguard the rights of children to survival, development, protection and participation. Kenya had undertaken over the years impressive initiatives geared towards cultivating the rights of children through the development of policies, and legal and institutional frameworks. The 2010 Constitution enshrined the rights of the child in its articles 14, 21, 43(3) and 53. It defined a child as an individual below 18. The 2001 Children Act, which domesticated the Convention, was currently under review to align it with the Constitution. The National Children Policy, the National Plan of Action for Children 2008-2012, the National Plan of Action for Children 2015-2022 and the Kenya Vision 2030 constituted some of the policies aimed at ensuring the protection of children’s rights. The Ministry of Labour, Social Security and Services was responsible for the implementation and coordination of those policies through the National Council for Children Services.
The infant mortality rate had decreased to 39 deaths per 1,000 live births in 2014. Maternal mortality had also notably decreased to 362 deaths per 100,000 live births. Those numbers were expected to further decrease following the launch of the Beyond Zero Campaign by the First Lady of Kenya, which sought to achieve HIV control and promote maternal, new born and child health. The Government had implemented a number of programmes which had led to an increased enrolment rate both in primary schools and in secondary education. In addition to the Constitution and enacted legislation, the National Children Policy had strengthened the protection of children, including children with disabilities, from harm and violence. Judicial reforms had led to the establishment of additional children courts and improved juvenile justice. Additional measures had been put in place to ensure universal birth registration, including during routine immunization and through the creation of mobile registration centres throughout the country.
Kenya recognized that challenges remained. A large part of the population continued to live under the poverty line, which fuelled child labour, sexual exploitation and trafficking. Approximately 2.4 million children were orphans, of which 47 per cent were due to parental deaths as a result of HIV/AIDS. Kenya continued to increase budgetary allocations to children’s services, including for the provision of care to orphans and other vulnerable children. In 2011, the Persons with Disabilities Fund aimed at assisting families. Discrimination and abuse against children with disabilities was common among many communities, and the Government continued to raise awareness to change negative practices. Legislation prohibited female genital mutilation and child marriages. Further measures to enhance the protection of children included a 24 hour helpline, rescue centres, gender violence recovery centres, legal aid clinics, and child helpdesks in police stations. The Nyumba Kumi initiative sought to prevent the recruitment of children by terrorist organizations.
Questions by the Experts
HATEM KOTRANE, Committee Member and Rapporteur for Kenya, welcomed progress achieved on the legislative front and the adoption of a new Constitution. He welcomed particularly the adoption of the Law on Marriage, but regretted that it tolerated polygamy. He commended Kenya for signing the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and asked whether Kenya would ratify that instrument soon. He also asked whether Kenya would accede to the third Optional Protocol to the Convention on the Rights of the Child on a communications procedure. He asked when would the revision of the Children Act be finalized, and whether the new text would include provisions on the protection of vulnerable children, particularly orphans.
Mr. Kotrane welcomed the adoption of the National Plan of Action for Children 2015-2022, but regretted its lack of implementation. He asked whether that plan would take into account the difference in delivery of services caused by the decentralization process. How would the implementation of the plan be coordinated, assessed and monitored? Further, he requested information about coordination between the Ministry in charge of children and the National Council for Children Services, including in terms of resources. He noted that Kenya had taken a number of steps to combat corruption, and asked for information regarding specific measures to combat that phenomenon in the fields of health, education, law enforcement and justice. Had there been any prosecutions?
Continuing, the Rapporteur welcomed efforts to increase birth registration, and asked whether a law would be adopted to ensure universal birth registration, including of children living in rural areas, refugees and migrant children. He said that the Committee remained worried about police violence against children in refugee camps, as well as the continuation of sexual violence and harmful practices, including female genital mutilation and forced marriage, against girls. Would the Government adopt a National Plan of Action to effectively prevent and prosecute violence against children?
OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, noted progress achieved in centralizing data collection and dissemination. She regretted however the absence of a comprehensive children’s coordinating body to track the realization of all children’s rights throughout the country. Such a mechanism would allow decision makers to better identify challenges and allocate appropriate efforts and resources to address them. The National Human Rights Commission included a Sub-commission on Children’s Rights, and was, together with the National Gender Equality Commission, in charge of monitoring human rights in Kenya. Were those bodies appropriately staffed and funded? She then expressed concerns regarding restrictions on the activities of civil society and non-governmental organizations. Discrimination remained an issue in practice, which required the State to take concrete measures to implement existing legislation. Early marriages, so-called “wife inheritance” and female genital mutilation were still widespread in rural areas. Furthermore, there had been worrying allegations of violence against persons with albinism. Those practices had to be tackled, she said, including from an economic point of view.
An Expert regretted the lack of clarity regarding the allocation of resources to child-related issues. Increasing investment in children had not followed economic growth, he noted. Gaps between rural and urban areas remained, which risked to lead to discrimination in terms of access to resources.
An Expert expressed concerns regarding the lack of information on civil liberties in the State party’s report. On freedom of expression, she regretted that the views and opinions of children were not often taken into account by those working on child-related issues. Further, she regretted that no measures had been taken to ensure that children enjoyed their freedom of expression and association. Also, there seemed to be restrictions on the right to freedom of religion, with young girls being prohibited from wearing a hijab in schools. Concerns were also expressed regarding the lack of protection of children’s right to privacy, as well as their protection online. To which extent could children participate in public policies?
On violence against children, an Expert echoed concerns regarding alleged police violence in refugee camps, and the use of teargas by police officers against children protesting in schools, and asked about the state of investigation and prosecution on those cases. Domestic violence cases involving children remained a big problem despite the adopted legislation. Was disaggregated data being collected on such cases? Had prosecutions taken place? The prohibition of corporal punishment was welcomed, and details about court cases and prosecutions on such cases were required. The Expert asked about institutions and mechanisms to protect the victims and ensure their reintegration.
Response from the Delegation
The delegation said that Kenya was actively considering the domestication of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Kenya had put in place a moratorium on ratifications as it undertook an overview of its international commitments. That issue would be resolved by the time Kenya would next report to the Committee. On issues covered by that Protocol specifically, a delegate informed that voluntary codes of conduct had been signed by the tourism private sector on issues relating to trafficking and child prostitution. In addition, laws addressed the issue of trafficking in persons.
On the legal and policy framework, the new Children Act had been drafted and contained a comprehensive review of previous legislation addressing children’s issues. The National Plan of Action for Children was the result of a wide consultative process. It was anchored in the Kenya Vision 2030, and guided by the four pillars of the Convention on the Rights of the Child. A monitoring framework was in place to assess its implementation, including at the local level through County Councils.
On coordination, the National Council for Children’s Services worked together with the Ministry of Labour on the implementation of children-related policies. It included an advisory council with representatives of non-governmental organizations and local authorities.
Combatting corruption was a priority for Kenya. A report had recently been issued by the Government, with recommendations and proposals to be considered by the Parliament. In the justice sector, the Government was concluding a vetting process for all its judges, which had led to several dismissals. The same initiative had been carried out for police services. Measures had also been taken to combat corruption in the health and education sectors.
On the participation of children, children assemblies had been created at the local level, composed of only children, with a gender balance and the inclusion of children with disabilities. Those assemblies were controlled by children exclusively, without interference from the adults. Their observations on national polices were considered
at the national level. Additionally, Kenya was actively promoting the participation of its children in regional or international events for youth.
Birth registration was guided by the Constitution of Kenya and by the Births and Deaths Registration Act, which provided that any child below 18 and with unknown parents was presumed to be a citizen and therefore entitled to a birth certificate. There was no discrimination on origin.
The Basic Education Act clearly outlawed corporal punishment in schools.
The Government was committed to combat child marriages, and the Marriage Act was clear that nobody below 18 could marry. Any person marrying a child committed an offense and risked a five-year imprisonment sentence or a $ 10,000 fine. Similarly, sexual intercourse with children below 18 was criminalized.
Follow-up Questions by the Experts
OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, noted that child marriages were often forcibly organized by the parents, and underlined the importance of implementing the legislation prohibiting such practices. She asked whether parents had been prosecuted under those legal provisions. Furthermore, the $ 10,000 fine seemed hardly implementable considering the average income in the country.
An Expert asked whether birth registration was ensured for the Nubian minority in Kenya.
Response from the Delegation
Kenya was the host of the largest number of refugees in the world, including refugees from Somalia, Sudan, the Great Lakes region and other countries. The registration of persons had therefore become necessary to set up verification processes, which aimed at ensuring that persons requesting citizenship were genuinely entitled to those documents. The question of registration was a national security issue. The Government was committed to resolving related issues.
On harmful practices, child marriages and female genital mutilation, a delegate recognized the importance of implementing legislation. Many prosecutions took place against persons marrying a girl or parents facilitating such a union. With the support of civil society organizations, the Government had been very successful in raising awareness on those issues. Violence against persons with albinism remained rare in Kenya, compared to other countries in the region. Kenya had collaborated with other stakeholders, including the media, in educating the public on the rights of persons with albinism. Persons with albinism had also been trained to protect themselves.
There had been an incident of unlawful violence and disproportionate use of teargas by police officers against adolescent protestors. It had been an exception to the rule. Those responsible had been punished.
Kenya was in the process of creating a national database on children. It had finalized the development of indicators that would be subjected to such data collection.
A delegate referred to an ongoing debate about a law to further provide for the management of non-governmental organizations. The intention for that law would not be to restrict their activities, but to further provide a Governmental framework that was transparent and accountable. Such legislation had been made necessary to prevent organizations from working in dangerous remote areas and creating national security issues. Kenya was proud of its vibrant press and civil society.
The allocation of resources to the Ministry of Education was the second largest budget item, and would further increase. The allocation to the health sector had been re-organized to ensure better repartition of health services at the local level. The central Government had provided financial support to local authorities through programmes for maternal health.
Children enjoyed the same freedoms and liberties as adults, subject to some limitations, such as the fact that the religion of a minor was chosen by the parents. A court had prohibited the wearing of religious garments in schools. That case was now before an Appeal Court. Kenya was very proud of its cultural and religious diversity, and the Government would not interfere with that fundamental right.
Questions by the Experts
During the second round of questions, OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, covered family issues. She regretted the persistence of negative stereotypes in the family setting, as well as the authorization of polygamy. She asked whether women could get an annulment of their marriage in case of polygamy. There were 2.4 million orphans in Kenya, she noted. Too many of them were in institutions as family alternative care was not developed enough. Further, there seemed to be no complaint mechanism on those institutions. Did children of mothers in detention have the opportunity to visit them?
Turning to health issues, Ms. Khazova noted significant disparities in the amount and quality of health services between regions, and asked whether any urgent measures could be taken to address emergency health concerns in local areas. Another Expert required details about the legal provisions on abortion, and measures taken to combat maternal mortality amongst adolescents. What was being done to address suicide and drug abuse? Was sexual education provided in rural areas? The Chairperson of the Committee noted that immunization rates had declined, and asked what measures would be taken to address that challenge. An Expert asked what measures had been taken to protect children with mental disabilities.
On education, Ms. Khazova expressed concerns over the growth of unmonitored private education providers, which affected the quality of education. She then asked whether children’s rights were included in the mandatory curriculum in all schools, whether primary education was free of charge for non-citizens, and whether the requirement of birth certificates had led to lower enrolment rates.
HATEM KOTRANE, Committee Member and Rapporteur for Kenya, asked whether recreational activities were available for children, free of charge. Turning to the situation of refugees, he expressed concerns regarding long-term camp policies, which exacerbated insecurity. He asked whether efforts were made to ensure family reunification. Further, he requested information on measures to prevent stigmatization, radicalization and violence against children, which could lead them to joining extremist groups or armed forces. Continuing, he raised questions regarding efforts to combat trafficking. On juvenile justice, he expressed concerns about the age for criminal responsibility being set at 8. He requested clarification about alternatives to detention.
Response from the Delegation
Kenya had established three child protection centres to deal with victims of child abuse. Four rescue centres assisted those victims. Fourteen child protection units had been established within police stations. In addition, the Government had taken steps to train police officers to deal with child issues in a more child-friendly manner. Further, non-governmental organizations ran recovery centres to provide support to children in distress.
Moving to questions relating to the family, a delegate said that the Constitution guaranteed gender equality. Negative stereotypes remained but lay beyond the reach of the Government.
Polygamy had always been part of the law of Kenya, which recognized multiple ways of contracting a marriage. The provisions of the family aimed at recognizing a factual situation, rather than enacting polygamy. There had been no request to turn monogamous unions into polygamous ones brought to the attention of the Prosecutor’s Office. Polygamy was rare and people did not enter such union unless they had the resources for sustaining it.
The Charitable Children Institutions Regulation enacted minimum standards for the well-being of children living in those institutions. Children in State institutions were not supposed to stay there over a three-year period, after which they were sent back to their families or were put up for adoption.
Follow-up Questions by the Experts
Experts asked whether polygamous marriages were subjected to a legal authorization process, and requested information regarding guarantees offered to children born of a polygamous marriage.
HATEM KOTRANE, Committee Member and Rapporteur for Kenya, referred to allegations of violations of international human rights law and humanitarian law by Blue Helmets in peacekeeping operations, including cases of sexual exploitation. Had the Government of Kenya investigated such allegations?
With regard to child labour, the Chairperson noted that school was mandatory until the age of 14, while the minimum age for employment was 16, leading to the situation of children between those two ages not being covered by the law.
Response from the Delegation
The issue of polygamy went to the heart of the Kenyan people’s traditions and cultures. It was not an issue the Government would be willing to interfere in.
There was no United Nations Peacekeeping mission in Kenya, a delegate said. The Government had not been made aware of violations of international law by its troops involved in such missions abroad.
The adoption of Kenyan children by foreigners had been prohibited since 2014 to prevent child trafficking. There was no adoption agency in place. Kenya was determined to ensure that children separated from their families were placed in a safe and secure environment, including through adoption. Kenya had to balance the legislation on adoption with the risks of trafficking.
Combatting child labour was a priority for the Government. The Employment Act provided for the prohibition of child labour for all children, and set the minimum age for employment at 16, in compliance with the convention. A Child Labour Policy was currently awaiting approval, and would provide the means of action to implement multi-sectoral and inclusive activities to prevent child labour. Inspections and data collection were being carried out, although the lack of resources required the State to rely on non-governmental organizations as well.
On juvenile justice, a delegate said that the age of criminal responsibility would shift from 8 to 12 after the adoption of a new Children Code. The deprivation of a child’s liberty was only imposed as a last resort.
Turning to health issues, a delegate said that decentralization had provided an opportunity for each county to identify and budget key health-related priorities, therefore better responding to the needs of local populations. The teenage pregnancy rate was 18 per cent, the result of poverty, lack of education, limited economic opportunities, lack of access to contraception, as well as sexual violence. The Adolescent’s Sexual and Reproductive Health Policy had been launched to address those issues. Abortion could only be provided in cases when the life of the mother was at risk. The Ministry of Health provided basic information on how to address drug abuse to health workers.
Progress had been made as regards to combatting HIV/AIDS. Awareness-raising efforts had been made to prevent stigmatization against seropositive persons. Immunization programmes had been strengthened in 2014 and 2015, through the introduction of additional vaccines into the public healthcare system. Although progress had been made, the delivery of water and sanitation services in remote areas remained a challenge, a delegate said.
Follow-up Questions by the Experts
Experts asked what specific actions had been taken to prevent maternal mortality, and to address cholera cases.
An Expert welcomed the adoption of a law on displaced persons, but noted that displaced children in some parts of the country were still in need of protection measures. He asked whether Kenya would join the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. Further, he asked what measures had been taken to address the needs of indigenous children, particularly those forcibly displaced in the context of land-grabbing.
On education, an Expert expressed concerns regarding high drop-out rates among girls.
An Expert reiterated questions regarding measures adopted for children with disabilities abandoned by their families. Further, he asked what measures had been taken to ensure their access to education, whether specialized or mainstreamed.
The Chairperson of the Committee asked whether the large number of Charitable Children Institutions complied with the Convention and minimum standards relating to childcare.
Response from the Delegation
The success rate in terms of detection and treatment of cholera cases had been good, although an adequate infrastructure was lacking. The Government had implemented free maternity services, therefore strengthening the prevention of maternal mortality. Mobile clinics had allowed health services to reach remote areas. County authorities had been encouraged to build new health services.
The National Human Rights Commission had received additional resources and functioned independently.
On education, a delegate said that programmes introduced children to good governance, the Constitution, national values and principles, including human rights, and fundamental freedoms guaranteed by the Constitution. Kenya was undergoing a process of reinforcing the teaching of national values as part as its efforts to combat corruption and promote good governance. The Law on Basic Education required that all children had access to free education, including foreign children and children in refugee camps. Kenya had a long history of private education, and endeavoured to regulate this through the creation of minimum standards.
Kenya was concerned about the radicalization of children, and sought the Committee’s support and advice on how to address this new phenomenon.
Kenya had adopted a comprehensive resettlement programme for internally displaced persons. It had resettled the original and critical mass of displaced persons. There was a huge political commitment to continue working on resolving displacement cases. The eviction of some indigenous communities had been necessary for environment protection reasons. The Government was committed to offer all guarantees in terms of resettlement, with particular attention given to the needs of children.
The Government was determined to avoid placing children in Charitable Children Institutions as much as possible. Guidelines for alternative family care of children had been launched and applied to Charitable Institutions. Awareness-raising activities encouraged alternative care providers to abide by those guidelines.
An agency had been established to assist persons with disabilities, including children. In addition, each Ministry had to undertake activities targeting persons with disabilities. Children with serious forms of disabilities required specific attention and support from the State, which was challenging because of the lack of resources. A lot of children with disabilities remained hidden by their families, a delegate said. Awareness-raising efforts were being made to change mind-sets regarding disabilities.
Concluding Remarks
OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, noted significant progress regarding the protection of children’s rights. Significant concerns remained as a result of traditional stereotypes and practices that needed to be overcome. She hoped that the Government of Kenya would take recommendations by the Committee seriously. She then referred to her meeting with Kenyan children some time ago, and acknowledged that they had looked particularly happy. She wished that all children in Kenya looked as happy as the ones she had met.
GUTHU MUIGAI, Attorney General of Kenya, was very grateful for the Committee’s engagement and its understanding of the situation of children in Kenya. He reiterated Kenya’s commitment to its international obligations under the Convention on the Rights of the Child. He then assured that the Government would take remarks by the Committee seriously.
BENYAM DAWIT MEZMUR, Chairperson of the Committee on the Rights of the Child, closing the meeting, said that a lot of laws on the legislative agenda needed to be finalized, and hoped that the legislation pertaining to children’s rights would be passed as a matter of priority. He then hoped that Kenya would consider adhering to the third Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
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报告
点此阅读肯尼亚第三至第五次合并定期报告：CRC/C/KEN/3-5。
Presentation of the Report
GUTHU MUIGAI, Attorney General of Kenya, said that the report presented today provided substantive evidence of the progress made by Kenya in the implementation of the Convention on the Rights of the Child, and detailed measures taken to secure and safeguard the rights of children to survival, development, protection and participation. Kenya had undertaken over the years impressive initiatives geared towards cultivating the rights of children through the development of policies, and legal and institutional frameworks. The 2010 Constitution enshrined the rights of the child in its articles 14, 21, 43(3) and 53. It defined a child as an individual below 18. The 2001 Children Act, which domesticated the Convention, was currently under review to align it with the Constitution. The National Children Policy, the National Plan of Action for Children 2008-2012, the National Plan of Action for Children 2015-2022 and the Kenya Vision 2030 constituted some of the policies aimed at ensuring the protection of children’s rights. The Ministry of Labour, Social Security and Services was responsible for the implementation and coordination of those policies through the National Council for Children Services.
The infant mortality rate had decreased to 39 deaths per 1,000 live births in 2014. Maternal mortality had also notably decreased to 362 deaths per 100,000 live births. Those numbers were expected to further decrease following the launch of the Beyond Zero Campaign by the First Lady of Kenya, which sought to achieve HIV control and promote maternal, new born and child health. The Government had implemented a number of programmes which had led to an increased enrolment rate both in primary schools and in secondary education. In addition to the Constitution and enacted legislation, the National Children Policy had strengthened the protection of children, including children with disabilities, from harm and violence. Judicial reforms had led to the establishment of additional children courts and improved juvenile justice. Additional measures had been put in place to ensure universal birth registration, including during routine immunization and through the creation of mobile registration centres throughout the country.
Kenya recognized that challenges remained. A large part of the population continued to live under the poverty line, which fuelled child labour, sexual exploitation and trafficking. Approximately 2.4 million children were orphans, of which 47 per cent were due to parental deaths as a result of HIV/AIDS. Kenya continued to increase budgetary allocations to children’s services, including for the provision of care to orphans and other vulnerable children. In 2011, the Persons with Disabilities Fund aimed at assisting families. Discrimination and abuse against children with disabilities was common among many communities, and the Government continued to raise awareness to change negative practices. Legislation prohibited female genital mutilation and child marriages. Further measures to enhance the protection of children included a 24 hour helpline, rescue centres, gender violence recovery centres, legal aid clinics, and child helpdesks in police stations. The Nyumba Kumi initiative sought to prevent the recruitment of children by terrorist organizations.
Questions by the Experts
HATEM KOTRANE, Committee Member and Rapporteur for Kenya, welcomed progress achieved on the legislative front and the adoption of a new Constitution. He welcomed particularly the adoption of the Law on Marriage, but regretted that it tolerated polygamy. He commended Kenya for signing the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and asked whether Kenya would ratify that instrument soon. He also asked whether Kenya would accede to the third Optional Protocol to the Convention on the Rights of the Child on a communications procedure. He asked when would the revision of the Children Act be finalized, and whether the new text would include provisions on the protection of vulnerable children, particularly orphans.
Mr. Kotrane welcomed the adoption of the National Plan of Action for Children 2015-2022, but regretted its lack of implementation. He asked whether that plan would take into account the difference in delivery of services caused by the decentralization process. How would the implementation of the plan be coordinated, assessed and monitored? Further, he requested information about coordination between the Ministry in charge of children and the National Council for Children Services, including in terms of resources. He noted that Kenya had taken a number of steps to combat corruption, and asked for information regarding specific measures to combat that phenomenon in the fields of health, education, law enforcement and justice. Had there been any prosecutions?
Continuing, the Rapporteur welcomed efforts to increase birth registration, and asked whether a law would be adopted to ensure universal birth registration, including of children living in rural areas, refugees and migrant children. He said that the Committee remained worried about police violence against children in refugee camps, as well as the continuation of sexual violence and harmful practices, including female genital mutilation and forced marriage, against girls. Would the Government adopt a National Plan of Action to effectively prevent and prosecute violence against children?
OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, noted progress achieved in centralizing data collection and dissemination. She regretted however the absence of a comprehensive children’s coordinating body to track the realization of all children’s rights throughout the country. Such a mechanism would allow decision makers to better identify challenges and allocate appropriate efforts and resources to address them. The National Human Rights Commission included a Sub-commission on Children’s Rights, and was, together with the National Gender Equality Commission, in charge of monitoring human rights in Kenya. Were those bodies appropriately staffed and funded? She then expressed concerns regarding restrictions on the activities of civil society and non-governmental organizations. Discrimination remained an issue in practice, which required the State to take concrete measures to implement existing legislation. Early marriages, so-called “wife inheritance” and female genital mutilation were still widespread in rural areas. Furthermore, there had been worrying allegations of violence against persons with albinism. Those practices had to be tackled, she said, including from an economic point of view.
An Expert regretted the lack of clarity regarding the allocation of resources to child-related issues. Increasing investment in children had not followed economic growth, he noted. Gaps between rural and urban areas remained, which risked to lead to discrimination in terms of access to resources.
An Expert expressed concerns regarding the lack of information on civil liberties in the State party’s report. On freedom of expression, she regretted that the views and opinions of children were not often taken into account by those working on child-related issues. Further, she regretted that no measures had been taken to ensure that children enjoyed their freedom of expression and association. Also, there seemed to be restrictions on the right to freedom of religion, with young girls being prohibited from wearing a hijab in schools. Concerns were also expressed regarding the lack of protection of children’s right to privacy, as well as their protection online. To which extent could children participate in public policies?
On violence against children, an Expert echoed concerns regarding alleged police violence in refugee camps, and the use of teargas by police officers against children protesting in schools, and asked about the state of investigation and prosecution on those cases. Domestic violence cases involving children remained a big problem despite the adopted legislation. Was disaggregated data being collected on such cases? Had prosecutions taken place? The prohibition of corporal punishment was welcomed, and details about court cases and prosecutions on such cases were required. The Expert asked about institutions and mechanisms to protect the victims and ensure their reintegration.
Response from the Delegation
The delegation said that Kenya was actively considering the domestication of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Kenya had put in place a moratorium on ratifications as it undertook an overview of its international commitments. That issue would be resolved by the time Kenya would next report to the Committee. On issues covered by that Protocol specifically, a delegate informed that voluntary codes of conduct had been signed by the tourism private sector on issues relating to trafficking and child prostitution. In addition, laws addressed the issue of trafficking in persons.
On the legal and policy framework, the new Children Act had been drafted and contained a comprehensive review of previous legislation addressing children’s issues. The National Plan of Action for Children was the result of a wide consultative process. It was anchored in the Kenya Vision 2030, and guided by the four pillars of the Convention on the Rights of the Child. A monitoring framework was in place to assess its implementation, including at the local level through County Councils.
On coordination, the National Council for Children’s Services worked together with the Ministry of Labour on the implementation of children-related policies. It included an advisory council with representatives of non-governmental organizations and local authorities.
Combatting corruption was a priority for Kenya. A report had recently been issued by the Government, with recommendations and proposals to be considered by the Parliament. In the justice sector, the Government was concluding a vetting process for all its judges, which had led to several dismissals. The same initiative had been carried out for police services. Measures had also been taken to combat corruption in the health and education sectors.
On the participation of children, children assemblies had been created at the local level, composed of only children, with a gender balance and the inclusion of children with disabilities. Those assemblies were controlled by children exclusively, without interference from the adults. Their observations on national polices were considered
at the national level. Additionally, Kenya was actively promoting the participation of its children in regional or international events for youth.
Birth registration was guided by the Constitution of Kenya and by the Births and Deaths Registration Act, which provided that any child below 18 and with unknown parents was presumed to be a citizen and therefore entitled to a birth certificate. There was no discrimination on origin.
The Basic Education Act clearly outlawed corporal punishment in schools.
The Government was committed to combat child marriages, and the Marriage Act was clear that nobody below 18 could marry. Any person marrying a child committed an offense and risked a five-year imprisonment sentence or a $ 10,000 fine. Similarly, sexual intercourse with children below 18 was criminalized.
Follow-up Questions by the Experts
OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, noted that child marriages were often forcibly organized by the parents, and underlined the importance of implementing the legislation prohibiting such practices. She asked whether parents had been prosecuted under those legal provisions. Furthermore, the $ 10,000 fine seemed hardly implementable considering the average income in the country.
An Expert asked whether birth registration was ensured for the Nubian minority in Kenya.
Response from the Delegation
Kenya was the host of the largest number of refugees in the world, including refugees from Somalia, Sudan, the Great Lakes region and other countries. The registration of persons had therefore become necessary to set up verification processes, which aimed at ensuring that persons requesting citizenship were genuinely entitled to those documents. The question of registration was a national security issue. The Government was committed to resolving related issues.
On harmful practices, child marriages and female genital mutilation, a delegate recognized the importance of implementing legislation. Many prosecutions took place against persons marrying a girl or parents facilitating such a union. With the support of civil society organizations, the Government had been very successful in raising awareness on those issues. Violence against persons with albinism remained rare in Kenya, compared to other countries in the region. Kenya had collaborated with other stakeholders, including the media, in educating the public on the rights of persons with albinism. Persons with albinism had also been trained to protect themselves.
There had been an incident of unlawful violence and disproportionate use of teargas by police officers against adolescent protestors. It had been an exception to the rule. Those responsible had been punished.
Kenya was in the process of creating a national database on children. It had finalized the development of indicators that would be subjected to such data collection.
A delegate referred to an ongoing debate about a law to further provide for the management of non-governmental organizations. The intention for that law would not be to restrict their activities, but to further provide a Governmental framework that was transparent and accountable. Such legislation had been made necessary to prevent organizations from working in dangerous remote areas and creating national security issues. Kenya was proud of its vibrant press and civil society.
The allocation of resources to the Ministry of Education was the second largest budget item, and would further increase. The allocation to the health sector had been re-organized to ensure better repartition of health services at the local level. The central Government had provided financial support to local authorities through programmes for maternal health.
Children enjoyed the same freedoms and liberties as adults, subject to some limitations, such as the fact that the religion of a minor was chosen by the parents. A court had prohibited the wearing of religious garments in schools. That case was now before an Appeal Court. Kenya was very proud of its cultural and religious diversity, and the Government would not interfere with that fundamental right.
Questions by the Experts
During the second round of questions, OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, covered family issues. She regretted the persistence of negative stereotypes in the family setting, as well as the authorization of polygamy. She asked whether women could get an annulment of their marriage in case of polygamy. There were 2.4 million orphans in Kenya, she noted. Too many of them were in institutions as family alternative care was not developed enough. Further, there seemed to be no complaint mechanism on those institutions. Did children of mothers in detention have the opportunity to visit them?
Turning to health issues, Ms. Khazova noted significant disparities in the amount and quality of health services between regions, and asked whether any urgent measures could be taken to address emergency health concerns in local areas. Another Expert required details about the legal provisions on abortion, and measures taken to combat maternal mortality amongst adolescents. What was being done to address suicide and drug abuse? Was sexual education provided in rural areas? The Chairperson of the Committee noted that immunization rates had declined, and asked what measures would be taken to address that challenge. An Expert asked what measures had been taken to protect children with mental disabilities.
On education, Ms. Khazova expressed concerns over the growth of unmonitored private education providers, which affected the quality of education. She then asked whether children’s rights were included in the mandatory curriculum in all schools, whether primary education was free of charge for non-citizens, and whether the requirement of birth certificates had led to lower enrolment rates.
HATEM KOTRANE, Committee Member and Rapporteur for Kenya, asked whether recreational activities were available for children, free of charge. Turning to the situation of refugees, he expressed concerns regarding long-term camp policies, which exacerbated insecurity. He asked whether efforts were made to ensure family reunification. Further, he requested information on measures to prevent stigmatization, radicalization and violence against children, which could lead them to joining extremist groups or armed forces. Continuing, he raised questions regarding efforts to combat trafficking. On juvenile justice, he expressed concerns about the age for criminal responsibility being set at 8. He requested clarification about alternatives to detention.
Response from the Delegation
Kenya had established three child protection centres to deal with victims of child abuse. Four rescue centres assisted those victims. Fourteen child protection units had been established within police stations. In addition, the Government had taken steps to train police officers to deal with child issues in a more child-friendly manner. Further, non-governmental organizations ran recovery centres to provide support to children in distress.
Moving to questions relating to the family, a delegate said that the Constitution guaranteed gender equality. Negative stereotypes remained but lay beyond the reach of the Government.
Polygamy had always been part of the law of Kenya, which recognized multiple ways of contracting a marriage. The provisions of the family aimed at recognizing a factual situation, rather than enacting polygamy. There had been no request to turn monogamous unions into polygamous ones brought to the attention of the Prosecutor’s Office. Polygamy was rare and people did not enter such union unless they had the resources for sustaining it.
The Charitable Children Institutions Regulation enacted minimum standards for the well-being of children living in those institutions. Children in State institutions were not supposed to stay there over a three-year period, after which they were sent back to their families or were put up for adoption.
Follow-up Questions by the Experts
Experts asked whether polygamous marriages were subjected to a legal authorization process, and requested information regarding guarantees offered to children born of a polygamous marriage.
HATEM KOTRANE, Committee Member and Rapporteur for Kenya, referred to allegations of violations of international human rights law and humanitarian law by Blue Helmets in peacekeeping operations, including cases of sexual exploitation. Had the Government of Kenya investigated such allegations?
With regard to child labour, the Chairperson noted that school was mandatory until the age of 14, while the minimum age for employment was 16, leading to the situation of children between those two ages not being covered by the law.
Response from the Delegation
The issue of polygamy went to the heart of the Kenyan people’s traditions and cultures. It was not an issue the Government would be willing to interfere in.
There was no United Nations Peacekeeping mission in Kenya, a delegate said. The Government had not been made aware of violations of international law by its troops involved in such missions abroad.
The adoption of Kenyan children by foreigners had been prohibited since 2014 to prevent child trafficking. There was no adoption agency in place. Kenya was determined to ensure that children separated from their families were placed in a safe and secure environment, including through adoption. Kenya had to balance the legislation on adoption with the risks of trafficking.
Combatting child labour was a priority for the Government. The Employment Act provided for the prohibition of child labour for all children, and set the minimum age for employment at 16, in compliance with the convention. A Child Labour Policy was currently awaiting approval, and would provide the means of action to implement multi-sectoral and inclusive activities to prevent child labour. Inspections and data collection were being carried out, although the lack of resources required the State to rely on non-governmental organizations as well.
On juvenile justice, a delegate said that the age of criminal responsibility would shift from 8 to 12 after the adoption of a new Children Code. The deprivation of a child’s liberty was only imposed as a last resort.
Turning to health issues, a delegate said that decentralization had provided an opportunity for each county to identify and budget key health-related priorities, therefore better responding to the needs of local populations. The teenage pregnancy rate was 18 per cent, the result of poverty, lack of education, limited economic opportunities, lack of access to contraception, as well as sexual violence. The Adolescent’s Sexual and Reproductive Health Policy had been launched to address those issues. Abortion could only be provided in cases when the life of the mother was at risk. The Ministry of Health provided basic information on how to address drug abuse to health workers.
Progress had been made as regards to combatting HIV/AIDS. Awareness-raising efforts had been made to prevent stigmatization against seropositive persons. Immunization programmes had been strengthened in 2014 and 2015, through the introduction of additional vaccines into the public healthcare system. Although progress had been made, the delivery of water and sanitation services in remote areas remained a challenge, a delegate said.
Follow-up Questions by the Experts
Experts asked what specific actions had been taken to prevent maternal mortality, and to address cholera cases.
An Expert welcomed the adoption of a law on displaced persons, but noted that displaced children in some parts of the country were still in need of protection measures. He asked whether Kenya would join the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. Further, he asked what measures had been taken to address the needs of indigenous children, particularly those forcibly displaced in the context of land-grabbing.
On education, an Expert expressed concerns regarding high drop-out rates among girls.
An Expert reiterated questions regarding measures adopted for children with disabilities abandoned by their families. Further, he asked what measures had been taken to ensure their access to education, whether specialized or mainstreamed.
The Chairperson of the Committee asked whether the large number of Charitable Children Institutions complied with the Convention and minimum standards relating to childcare.
Response from the Delegation
The success rate in terms of detection and treatment of cholera cases had been good, although an adequate infrastructure was lacking. The Government had implemented free maternity services, therefore strengthening the prevention of maternal mortality. Mobile clinics had allowed health services to reach remote areas. County authorities had been encouraged to build new health services.
The National Human Rights Commission had received additional resources and functioned independently.
On education, a delegate said that programmes introduced children to good governance, the Constitution, national values and principles, including human rights, and fundamental freedoms guaranteed by the Constitution. Kenya was undergoing a process of reinforcing the teaching of national values as part as its efforts to combat corruption and promote good governance. The Law on Basic Education required that all children had access to free education, including foreign children and children in refugee camps. Kenya had a long history of private education, and endeavoured to regulate this through the creation of minimum standards.
Kenya was concerned about the radicalization of children, and sought the Committee’s support and advice on how to address this new phenomenon.
Kenya had adopted a comprehensive resettlement programme for internally displaced persons. It had resettled the original and critical mass of displaced persons. There was a huge political commitment to continue working on resolving displacement cases. The eviction of some indigenous communities had been necessary for environment protection reasons. The Government was committed to offer all guarantees in terms of resettlement, with particular attention given to the needs of children.
The Government was determined to avoid placing children in Charitable Children Institutions as much as possible. Guidelines for alternative family care of children had been launched and applied to Charitable Institutions. Awareness-raising activities encouraged alternative care providers to abide by those guidelines.
An agency had been established to assist persons with disabilities, including children. In addition, each Ministry had to undertake activities targeting persons with disabilities. Children with serious forms of disabilities required specific attention and support from the State, which was challenging because of the lack of resources. A lot of children with disabilities remained hidden by their families, a delegate said. Awareness-raising efforts were being made to change mind-sets regarding disabilities.
Concluding Remarks
OLGA KHAZOVA, Committee Member and Rapporteur for Kenya, noted significant progress regarding the protection of children’s rights. Significant concerns remained as a result of traditional stereotypes and practices that needed to be overcome. She hoped that the Government of Kenya would take recommendations by the Committee seriously. She then referred to her meeting with Kenyan children some time ago, and acknowledged that they had looked particularly happy. She wished that all children in Kenya looked as happy as the ones she had met.
GUTHU MUIGAI, Attorney General of Kenya, was very grateful for the Committee’s engagement and its understanding of the situation of children in Kenya. He reiterated Kenya’s commitment to its international obligations under the Convention on the Rights of the Child. He then assured that the Government would take remarks by the Committee seriously.
BENYAM DAWIT MEZMUR, Chairperson of the Committee on the Rights of the Child, closing the meeting, said that a lot of laws on the legislative agenda needed to be finalized, and hoped that the legislation pertaining to children’s rights would be passed as a matter of priority. He then hoped that Kenya would consider adhering to the third Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
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