Legal clinic: Is there a law to protect homeless children?

Dear Eric,

I am a single mother of three boys and one girl. For some time now, I have been struggling financially often having to sleep in the streets because I cannot afford to pay rent even of a single room in the slums. This situation makes me worry about the safety of my children; the streets are rough and predators roam freely.

Is there a law that can help me protect my children? My boys have become independent despite being minors and often scavenge for our food. I wish I could turn this situation around.

Dear mum

This is not to deny that inequalities and inequities exist in the various spheres of formal and informal human interactions. The rights of all human beings, irrespective of their age, gender, sexual and religious orientation, race, nationality, and station in and of life, cannot be derogated. This is summed up in the four characteristics of human rights within the frame of the Universal Declaration of Human Rights of 1948, which characterize them as universal, inalienable, interdependent, and indivisible.

Your concern is a call for measured and objective gender-appreciative reasoning to create, strengthen and sustain safe spaces for both boys and girls in this society. A few policy and legal reminders are necessary to contextualise this conversation.

First, there is a global consensus that only some of the seventeen Sustainable Development Goals (SDGs) can be achieved fully without addressing children's rights, needs, and interests. Secondly, international legal instruments promote and protect children's rights that have been domesticated at regional and country levels. This includes the Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of Children, and the Kenyan Children’s Act of 2022. Thirdly, the world has set aside international days when specific issues affecting children are marked to remind governments and people of their role in safeguarding the wellbeing of children. Such days include the International Day for the Street Children, marked on the 12th of every April. The Blue Umbrella Day that is observed on the 16th of April of every year to raise awareness on how to better care for boys and protect them from sexual violence, besides World Children’s Day, celebrated on the 20th of November.

Violence must never be directed to and at children and is therefore prohibited. The entirety of Article 53 of the Constitution demands that children be protected from harm, abuse, or violence. Clause 2 of this Article states that each action, program, or intervention by government, institutions, people, parents, and society must be informed, formed, reformed, and executed to actualise every child's best interest as a cardinal principle of holistic protection.

Despite the provisions in the law, there is evidence that children, especially among the hard-to-reach and vulnerable communities, continue to suffer with less grace and concern from the wider society. This is worrying because 93% of countries have criminalised sexual acts between adults and female minors, and only 82% prohibit such similar acts between adults and male minors, as revealed by the Out of the Shadows Report of 2022. It is further shown that every eight out of ten street-connected children, especially boys, have experienced one or various forms of sexual violence, yet most remain unreported. The instruments and infrastructure to promote and protect children must adhere to Article 27 (1) of the Constitution, which makes equality the centre piece that guides treatment and benefits that accrue from and before the law.

Faithful, comprehensive compliance and enforcement of the Children's Act in pursuance to Article 53 of the Constitution can constrict opportunities through which children are violated. Clause (1), paragraph (c), provides for the right of every child to get basic nutrition, shelter, and healthcare. This is a mirage for street-connected children. Paragraph (d) is the right to protect children from all forms of abuse, neglect, harmful cultural practices, violence, inhuman treatment and punishment, and hazardous or exploitative labour. While paragraph (e) provides the right to equal parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.

This momentous monologue should re-centre the discourse on children's rights to ensure no child is left behind when violations are contemplated, framed, and addressed. The law must be responsive to both boys and girls to safeguard their inherent dignity, as espoused in Article 28 of the Constitution. It similarly behoves every caregiver, government, and institution to protect them equally. In conclusion, reference to Sustainable Development Goal 16 is essential. Target 16.1 seeks to significantly reduce violence and related death rates everywhere. Target 16.2 anticipates ending abuse, exploitation, trafficking, and all forms of violence against and torture of children. Lastly, target 16. C promotes and enforces non-discriminatory laws and policies for sustainable development. As children continue to face and experience violations, the state of Kenya should urgently and consistently actualise Article 27, Clause (6) by taking take legislative and other measures, including affirmative action programmes and policies to redress any disadvantages suffered by individuals or groups because of past discrimination. Let the boys be targeted in the spirit of the Blue Umbrella Day, as we have continuously done for girls for many years.

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]