How can the law protect children living out in the streets?

street children

Street children playing in the streets of  Mombasa on December 5, 2021.  The recent few months have seen an influx of urchins to some sections of the city where they were initially not allowed. 

Photo credit: Kevin Odit | Nation Media Group

Wakili, I am often disturbed when I see women begging in the streets with their children, especially older children of school-going age. What can be done legally to protect the children given the parents are obviously unable to give them proper care?

Dear concerned reader,

The presence and bulge of street connected communities in the country represents several other dynamics that are not necessarily of legal nature. It is difficult to ascertain why there are as many people begging and roaming the streets of this country.

There is a rebuttable (challengeable) presumption that poverty is the driver for many people headed and living on the streets. Claims of finding and fending for social comfort and economic survival are common. Whatever the motivations, the problem seems to affect men and women dissimilarly, subject to a number of factors, but primarily the degree of vulnerability or powerlessness of an individual or group. For this reason, children tend to bear the brunt of the difficult street life, either as coerced agents of begging or other vices of violence, including non-attendance of school.

 Article 20 (1) of the Constitution categorically states that the Bill of Rights applies to all people in the country equally, in a measure that also binds all state and its attendant institutions as stated at Article 21. It further provides that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. Therefore, the government as provided at Article 20 (3-b) is given the responsibility to adopt interpretation of the Bill of Rights in a way that favours enforcement of the fundamental rights and freedoms. It is easy to argue that the opposite is true, since there are as many people living desolate lives, some manifesting in the streets, despite several court decisions such as the Supreme Court ruling in the matter of Mitu-Bell Welfare Society v. Kenya Airports Authority, SC Petition 3 of 2018.

Often, laws whether good or bad, tend to create implementing agencies. The growing number of children connected to the streets is an indication of a failed, overwhelmed or non-responsive system. Children are protected by Article 53 of the Constitution. It is given at Sub-Article 2 that every and each decision, program, action or inaction must be in the best interest of the child. There are mechanisms to ensure that children in need of care and protection do not suffer any harm or become victims of harmful pathways, as detailed in the children’s Act to be repealed once the new Children’s Bill (2021) receives Presidential Assent.

 This is in addition to provisions under Article 43 that award every person the right to the highest attainable standard of health, health care services and reproductive health care; accessible and adequate housing, and to reasonable standards of sanitation; freedom from hunger, and to have adequate food of acceptable quality; clean and safe water in adequate quantities and social security.

A child found living in the streets becomes an immediate concern of the adult society around them. In the corridors of legal response, such a child is considered to be one in need of care and protection. The relevant government institution, which in its realm of operation requires to have an effective referral pathway owing institutional inadequacies, is the Department of Children Services housed in the Ministry of Interior and Coordination of National Government. This department alongside other state and nonstate agencies have a mandate to rescue, rehabilitate and reintegrate children resident in such horrible circumstances. However, the person who commences the child protection process could be anyone including individuals with no such mandate, save for the sense of humanity, love and dignity. When such a process begins, it is referred to as case management, which is the assistance given to a child (and their family, if at all), through direct support and referral to other services for comprehensive intervention in risky situations.

In accordance to the Guidelines for Child Protection Case Management and Referral in Kenya of 2018, this consists of intake, assessment, planning, implementation, monitoring, review of case plan and closure of the case with the aim of delivering quality services to the child and the family. Case management is a demonstration of a multi-sectoral approach by all child protection stakeholders including national, county government, civil society organizations, community, family and children to address child protection concerns.

Although this approach has the potential to accrue sustainable benefits of an effective private-public partnership initiatives, the difficulty to govern Child Charitable Institutions (CCIs) from being corridors of other violations such as human trafficking and violent extremism reduces the vibrancy to protect vulnerable children. In conclusion, it should be understood that street connectedness is caused by various factors, that require interventions that are beyond tokenistic social protection measures, and therefore cannot be remedied by good laws alone.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]