CHILD ABUSE:THE LAW ON CHILD ABUSE IN KENYA


Definition
Child abuse is broadly defined in many states as any type of cruelty inflicted upon a child, including mental abuse, physical harm, neglect, and sexual abuse or exploitation which is mostly caused by parents or caretakers. Extended families or community members sometimes take in orphaned children solely to gain access to their inherited property or to use them as revenue sources by sending them out to work, steal, or engage in prostitution. Children who do find themselves in homes with foster parents or extended families are sometimes abused, neglected or exploited. There were high levels of prostitution, even among girls as young as nine years old. The father’s brother will come in and take the land after the parents die. His wife sends the children out at night and tells them not to come back until they have 200 shillings. Of course they will fall into prostitution—what else can they do? [1].The specific crimes charged in instances of child abuse can include battery. Children under common law were considered as the property of their parents until the late 1800s.in 1870s child abuse captured the nation’s attention with the news that an 8-year-old orphan named Mary Ellen Wilson was suffering daily whippings and beatings at her foster home. Her plight fell on the attorneys for American Society for the prevention of Cruelty to Animals (ASPCA).they argued that laws protecting animals should not be greater than those laws protecting children. The judge convicted the foster mother to one year imprisonment. The development with the realization of children rights continued with time and across the world. Where each state was required to establish a mandatory reporting laws system.
Child abuse is also a clear and present danger plaguing Africa. In Africa, most of child abuse cases are manifested under polygamous families and extended families where children are left under care.
In Kenya despite the enactment of the Children Act of 2001, cases of child abuse are still rampant due to ineffective implementation of this legislation. However it has also improved many children lives.
Legal representation of children in Kenya is rare as there is no state-paid legal aid system for children who cannot afford the legal fees.
Amsha Africa seeks to build the capacity of young person’s as advocates for protection of orphans and other vulnerable children.
A child who has been abused or neglected may experience a range of problems, such as relationship difficulties, lack of trust of adults, emotional outbursts (or retreat), low performance at school, depression, anxiety, and anger.
In addition to state child abuse laws, all states have child protective services agencies that investigate reports of abuse and neglect of children in a home.
Examples of warning signs of abuse of a child may include:
  • Physical abuse - unexplained burns, bites, bruises, and broken bones or parent's philosophy of harsh physical discipline
  • Emotional abuse - extreme behavior, delayed physical or emotional development, attempted suicide, and belittling by a parent or caregiver
  • Sexual abuse - difficulty walking or sitting, reports of nightmares or bedwetting, sudden changes in appetite, sudden refusal to change in front of others or participate sport activities.
Kenyan courts are trying to handle cases which involve child abuse and exploitation. In the case of STATE of New Jersey, Plaintiff-Appellant, v. Margaret Kelly MICHAELS, Defendant-Respondent. Supreme Court of New Jersey.
The opinion of the Court was delivered by HANDLER, J.  In this case a nursery school teacher was convicted of bizarre acts of sexual abuse against many of the children who had been entrusted to her care.  She was sentenced to a long prison term with a substantial period of parole ineligibility.  In September 1984, Margaret Kelly Michaels was hired by Wee Care Day Nursery ("Wee Care") as a teacher. Level the three-year-old children were housed in the basement and the kindergarten class was located on the third floor.  During nap time, Michaels, under the supervision of the head teacher and the director, was responsible for about twelve children in one of the basement classrooms.  The classroom assigned to Michaels was separated from an adjacent occupied classroom by a vinyl curtain. During the seven month period that Michaels worked at Wee Care, she apparently performed satisfactorily.  We Care never received a complaint about her from staff, children, or parents. But before she resigned parents and teachers began observing behavioral changes in the children. One mother while waking him up for school noticed that he was covered with spots. When being examined by pediatrician the kid said that that is what the teacher did to him during nap time by undressing him and taking his temperature daily. He said that the teacher used his: white jean stuff; which upon investigation was found to be Vaseline. The kid also said that the teacher hurt other two of his classmates. The mother reported and teacher charged for sexual abuse on 163 counts. Some counts were dismissed but was found guilty on others.

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Child labor and armed conflict
The Eastern and Southern Africa region has the highest proportion of children involved in child labor in the world - 36 percent of all children between the ages of five and 14. This regional average, however, hides large differences between countries, ranging from 9 percent in Swaziland to 53 percent in Ethiopia.
Under CRC, child protection is defined as prevention and response to violence, exploitation and abuse against children which includes commercial sexual exploitation, child labor and harmful traditional practices such as FGM, early marriages etc.
Most of Millennium Development Goals (MDGs) are interested in protecting children issues. They cannot be achieved without if there is failure to protection of children. Child labor squanders a nation’s human capital and conflicts disrupting the efforts to achievement of universal primary education.
International Labor Organization (ILO) indicates that tens of thousands of boys and girls find themselves fighting adult wars in at least 17 countries in different regions across the world. Some are used as fighters and takes direct part in hostilities while others as supportive roles such as cooking, messengers etc. These children are abducted, forcefully recruited or even personally join so that they can fulfill certain needs.
ILO Convention No 182 defines forced or compulsory recruitment of children of use in armed conflicts as worst form of child labor .even the Rome Statute has recognized the as a war crime which may lead to individuals being prosecuted.
United Nations also has negotiated actions with armed parties to end recruitment of children, release and reintegration programmers be implemented worldwide.
IPEC has implemented projects to reintegrate children who were formerly associated with armed forces and groups in Central Africa., and in Colombia.
Armed Conflict places children at risk of dying, being seriously injured and severely traumatized and even struggling to readapt to ordinary life.
US do not permit compulsory recruitment of children for military services but does allow children at age of 17 to volunteer for services in armed conflict.
Through a statement made by Kenyan Cabinet secretary for ministry of labour,Mr Kazungu Kambi, almost two million children are affected by child labour despite the global reduction in the global number of child lobour cases in 2012,the practice remains key concern for Kenyan authorities, despite the development of of a national action to eliminate child labour that was established in 2004.In Kenya, Employment Act defines a child as one below 18 years. The minimum age for admission into employment under section 56, is the age of 13 years, where children of age 13-16 can be employed to perform light work and 16-18, are considered employable. This Act provides that complaints of child labor are to be made to the office of labor or any officer at the rank of an inspector or above. It further declares child labor as offence and person found guilty is to be imprisoned for not more than one year or be fined  not more ksh.200,000.
Children Act provides that under section 10, children ARE to be protected from economic exploitation, any work that interferes with their education, or harmful to their health or physical and mental and spiritual development. Also fro recruitment to hostilities armed conflict.
The penal code too provides punishment to offences of child abuse such as assault battery, defilement indecent acts among others.
Tedious domestic work, waste picking, agricultural work and commercial sex work have been singled out as the worst form o child labor in Kenya. According to the report  by Cesvi ( an international NGO),Kayole,Dandora,Ruaraka,Mukuru kwa Njenga,Rusinga East,Gembe West are some of the hot spots for these worst forms of child labor. this children are either orphans or those neglected by their parents. They either miss school, or combine school work with long and heavy work which affects their development. Kenyan government should increase the number of labor officers country wide to try and curb this menace which increasing in a worrying rate.
Sexual Exploitation
Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities (regardless of the outcome), indecent exposure (of the genitals, female nipples, etc.) to a child with intent to gratify their own sexual desires, or to intimidate or groom the child, physical sexual contact with a child, or using a child to produce child pornography.
Commercial sexual exploitation of children constitutes a form of coercion and violence against children and amounts to forced labor and a contemporary form of slavery or sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object.
It is not always easy to tell whether a child has been sexually abused. Sexual abuse often occurs in secret, and there is not always physical proof of the abuse. For these reasons, child sexual abuse can be hard to detect.
It is difficult for parents or guardians to protect their children a hundred percent but they can try to ensure that they know the people who come around their children.
Repuplic v daudi mwangi kimani,case no.1804/10, the accused was convicted on two counts of defilement of girls aged 8 years and 10 years. The case of  Medardo Vs Republic ,involved a child victim of sexual assault.  In the cause of the proceedings, the prosecution informed the court that the “complainant” and his father did not wish to proceed with the case. The child victim’s mother stated on oath that they had pardoned the respondent.  The trial court then proceeded to acquit the respondent under Section 204 of the Criminal Procedure Code. The Republic appealed against the decision of the subordinate court on the ground that the basis of the acquittal was an application to withdraw brought by a person other than the complainant. In making its finding on this point, the High Court, sitting as the appellate court noted that: the mother had parental responsibility under the Children Act; the responsibilities enumerated in the Act do not encompass the withdrawal of criminal charges against those alleged to have violated the child’s rights.





[1] Elizabeth Owuor-Oyugi, the director of the Kenyan chapter of the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN-Kenya), stated in 2001 that:


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