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Article Kenya: Parliament Considering Amendment to the Country's 2001 Children Act

(Oct. 5, 2018) Kenya’s Parliament is currently reviewing a new bill—the Statute Law (Miscellaneous Amendments) Bill, 2018—which seeks to introduce key amendments to the 2001 Children Act. The Bill has recently gone through its first reading in the National Assembly, one of the two houses of the Kenyan Parliament. (Statute Law (Miscellaneous Amendments) Bill, 2018, KENYA GAZETTE SUPPLEMENT, NATIONAL ASSEMBLY BILLS, 2018 (Apr. 10, 2018), Kenya Law website; Children Act No. 8 of 2001 (commencement Mar. 1, 2002), Kenya Law website.)

One of the proposed changes under the Bill authorizes the Cabinet Secretary in charge of implementing the Children Act to deregister existing charitable children’s institutions or refuse to register new ones that fail to adhere to certain standards. (Statute Law (Miscellaneous Amendments) Bill, at 298–300.) Under the current Children Act, a charitable children’s institution is “a home or institution which has been established by a person, corporate or unincorporate, a religious organisation or a non-governmental organisation and has been granted approval by the [National Council for Children Services] to manage a programme for the care, protection, rehabilitation or control of children.” (Children Act §§ 2 & 58.)  Under this Act, it appears that the harshest restriction that can be placed on a charitable children institution is the cancellation of its program by the Council upon the recommendation of the Director of Children Services. (Children Act § 71.)  This may occur if

(a)  the institution is unfit for the care, protection and control of children; or

(b) the children admitted into the institution are suffering or are likely to suffer harm; or

(c) the manager of the institution has contravened any of the regulations made under [the law]. (Id.)

If the Bill is enacted, the Cabinet secretary will have the power to shut down an existing charitable children’s institution or deny registration to a new one if

(a) the lives of children in such institution are in danger or where their continued stay therein is likely to endanger their well being;

(b) the institution or a person involved in the management of such institution in unfit to provide care or protection to the children;

(c) it has been established that the institution does not serve the best interest of the
children therein; or

(d) such institution is in contravention of the Constitution, the Convention on Rights of the Child, the African Charter on the Rights and Welfare of the Child or any other law or international treaties or conventions to which Kenya is a party. (Statute Law (Miscellaneous Amendments) Bill, at 298–300.)

The Bill would also place similar restrictions on adoption institutions. It authorizes the Secretary to “decline to register or cancel the registration” of an adoption society, an institution that facilitates adoptions, under certain circumstances. This would occur if it is established that

(a) the operations of such adoption society are against the best interests of the child;

(b) such adoption society is no longer necessary; or

(c) the operations of such adoption society are in contravention of the Constitution or any other law or any international treaty or convention to which Kenya is a party. (Statute Law (Miscellaneous Amendments) Bill, at 302.)

In addition, the Bill would give the Child Welfare Society of Kenya, a state corporation, a great deal of power over the process of arranging adoptions. It states that “[n]o body of persons shall make any arrangements for the adoption of a child … unless such body is the national adoption society [the Child Welfare Society of Kenya] or any other body registered as an adoption society.” (Id. at 301; State Corporations Act (Child Welfare Society of Kenya) Order, 2014, § 4 (May 21, 2014), Kenya Law website.)

Significantly, the Bill seeks to eliminate payments to an adoption society or anyone else involved in facilitating an adoption. The current Act prohibits adopters, parents, or guardians of a child from receiving any payment in consideration of adopting the child. (Children Act § 179.) However, it permits adoption societies and advocates to receive payment or voluntary donations, stating that the above ban does not apply

(b) to any payment made by or on behalf of an adoption society in respect of the maintenance of a child who has been placed at the disposition of the society; or

(c) to any payment made to an adoption society by the parent or guardian of a child or by any other person in respect of the maintenance of the child, so long as the child is not in care and possession of a person who has adopted or proposes to adopt him, whether under an adoption order or some other order; or

(d) to any payment made to an advocate who acts for any party in or in connection with an application for an adoption order, being payments made in respect of such application; or

(e) to any voluntary contribution made by any adopter or any parent or guardian to an adoption society. (Id.)

The Bill would repeal all these exceptions that permit the making of payments and/or donations.

Children’s rights groups have expressed opposition to the Bill, arguing, among other things, that the central role in matters affecting children that it envisages for the Child Welfare Society of Kenya would essentially “make other institutions irrelevant and could kill them.” (Rhoda Odhiambo, Child Welfare Groups Oppose Law Changes, STAR (May 10, 2018).)

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