Why media can no longer invade privacy of a child with impunity

The Nairobi Children's Court

The Nairobi Children's Court. Under the Children Act of 2001, the right to privacy of a child was subject to “parental guidance”.

Photo credit: File | Nation Media Group

You’ll probably recall the news of a matatu that was stopped by police along the Karatina-Nairobi Road carrying students who were allegedly intoxicated and were said to be having sex in the vehicle amid loud music. The officers searched the students and found bhang hidden in under garments of MWK, a girl.

What caught the attention of the public and overshadowed the seriousness of the offence, according to a court report, was the posting and wide circulation of nude images of MWK in the media. The images exposed her private parts and breasts and sachets of bhang hidden under her panties and bra.

The incident illustrates dramatically what can go wrong when the rights of a child in conflict with the law are not respected. She sued because her constitutional rights, including her right to privacy, were violated. She told the court that the police officers forced her to unbutton her blouse, remove her pants and then pose for photographs.

Infringed her privacy

Her lawyer argued that the police, among other things, infringed her privacy and acted against her best interests as a child. Justice John Mativo ruled in her favour and awarded her Sh4 million damages.

The incident, which took place on August 15, 2015, would probably not happen today. The law on the rights of children—persons under the age of 18—is now so well known. It has also been renewed and tightened.

Under the Children Act of 2001, the right to privacy of a child was subject to “parental guidance”. In practice, that meant the media could publish pictures and information about a child with parental consent. Under the Children Act, 2021, which has repealed the old law and was assented to by President Uhuru Kenyatta recently, on July 6, the child’s right to privacy is virtually absolute.

‘Reasonable supervision’

No person is now allowed to subject a child to arbitrary or unlawful interference with their privacy. Parents or legal guardians have the right to exercise only “reasonable supervision over the conduct of their children”.

The right to privacy is most pronounced when children commit offences—or, as judges prefer to say, “are in conflict with the law”. According to the new law, a child offender has the right to privacy during arrest, investigation of the offence and at any other stage of the matter. Nobody is allowed to release any information for publication that may lead to the identification of the child offender during arrest, investigation or trial.

Any person who releases such information commits an offence and is liable to a fine of up to Sh500,000 or to a term of imprisonment of up to 12 months, or both.

Even under old law, the media were not allowed to publish the identity of a child, or even that of the child’s family, in a court case. Nor could they publish any information that might have led to the identification of the child or the child’s family. This included the publication of pictures that would lead to such identification.

No disclosure of particulars

That is still the case. But the new law makes it doubly sure. The Registrar of the Children’s Court is required to mark all records of the court concerning a child to indicate that they shall only be available to any person without disclosure of any of the particulars regarding the child’s identity.

The principal object of the Children Act, 2021 is to align with the Constitution, international and regional treaties and instruments dedicated to the promotion and protection of the rights of the child. The Act gives effect to Article 53 of the Constitution by providing, among other reforms, that “a child’s best interests are of paramount importance in every matter concerning the child”.

In “Guidelines for Journalists Reporting on Children”, UN agency responsible for protecting children’s rights, Unicef, sets out principles and guidelines to help journalists report on children’s issues without compromising their protection. One is to respect the dignity and rights of the child in every circumstance. Another is to protect the best interests of the child over any other consideration. That is what the new law sets out to achieve.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected] Call or text 0721989264


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