As the world prepares to celebrate the 30th anniversary of the United Nations Convention on the Rights of the Child (UNCRC), which is ratified globally, with the exception of USA, we need to acknowledge the privileged position our Constitution has placed on the rights and interests of the Kenyan child.
Article 3 of the UNCRC provides that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’
This does not in any way imply that the child’s interests will always dominate decision making.
Rather, it means that the child’s welfare is of great importance, which will customarily dictate the outcome.
However, this particular provision is way below the threshold set by Article 53(2) of the 2010 Kenyan Constitution that states that ‘a child’s best interests are of paramount importance in every matter concerning a child’.
This means that the child’s interests are supreme, over and above any other consideration.
It cannot be gainsaid that there is so much to be achieved by adherence to the UNCRC’s 54 articles and its three additional protocols, with the first protocol restricting involvement of children in armed conflict, while the second prohibits the sale of children, child prostitution and child pornography.
The third additional protocol extensively provides for the child’s communication rights.
However, a state with more comprehensively encompassing provisions for the realisation of children rights either in its statutes or in international law in force therein shall not be affected by the Convention.
Indeed, underscoring its respect for superior national standards, Article 41 of the UNCRC states that ‘where a state provides better protection of children’s rights than the articles in the Convention, then those laws should apply’.
In the case of Kenya, therefore, although the UNCRC forms part of the Kenyan law by virtue of ratification and incorporation vide Article 2 (6) of the Constitution, in this particular case, applying Article 53 (2) of the Constitution would afford the Kenyan child a much higher degree of protection than Article 3 of the UNCRC.
Regrettably, issues of policy and the practice on the ground are not always in tandem.
Nevertheless, today’s children are arguably not where we were 30 years ago in terms of education and better healthcare.
I still remember my mother traversing rivers and ridges with us in tow or on her back all the way from our home in Kamwangi, Gatundu North, to Ngorongo, the nearest health centre where we would wait for the ‘needles to be boiled’ in a kettle as a way of disinfecting them, practically, before we could get injected, panicking long before our turn.
Although there is still much to be done, especially in some parts of the country, if the State can progressively build on the gains made so far, then there is hope for a holistic better tomorrow for the Kenyan child.
We were all once in the children’s shoes, so let us do what is right by them irrespective of where they come from or their gender.
As Nelson Mandela says, ‘a nation should not be judged by how it treats its highest citizens, but its lowest ones.’
Dr Macharia (PhD) is an advocate of the High Court of Kenya. [email protected]