Children Rights and the Kenyan Constitution

This is the text of the speech delivered by Prof. Yash Pal Gai on the day of Street Children Celebrations 12th April 2015

Prof. Yash Pal Gai at the Street Children Day Celebrations where he delivered this speech.

Prof. Yash Pal Gai at the Street Children Day Celebrations where he delivered this speech.

The longest chapter of our constitution is about people’s rights. And children have rights too. Infact the constitution says that no one is to be discriminated because of age. This means that no one can say “because you are a child, you have no rights.”

So if you read what the rights are you will find that as a child you are supposed to enjoy most of the same rights as adults. There are just two rights that are clearly not applicable to a child: a child does not have the right to vote and the right to marry. The first one is intended to ensure that before you vote you have some understanding of what politics, elections and decision making are all about. The second one protects children against forced into marriage when they are to young and when they should be in school.

So children have the right to express their opinions, to practice their religion, to health, housing, food and water. They also have a right to privacy and have their dignity respected. But of course, how much rights they have in exercising their rights depends on how old they are. A child of five years will have much less rights in choosing where to go and what to say than a child who is nearly an adult. Children need guidance from parents, teachers and others in society. The purpose of this guidance is to ensure that the child is not harmed because of lack of knowledge or experience and when a child grows up, he or she is prepared to act as a responsible adult because of the wise guidance he or she received when younger. As the child grows and learns the guidance will become less firm, leaving the child to learn, including sometimes through their own mistakes.

The constitution also has a special article on children. It makes some important statements emphasizing that children have rights. One important point is that children have the right to education that is free and compulsory. This is not to punish children but to prevent their parents or others from keeping them out of school. And it also speaks about children who get in the wrong side of the law – saying that they should be detained for as short time as possible, and should not be detained along with adults. This is to protect them from harm and from being educated into crime.

This article ends by saying that the interest of the child are of paramount importance. This means that they are most important. It however does not mean that whatever the child wants must always be done. Other people have rights too including parents and teachers and these cannot be ignored. But what is best for the child must always be in the front of the mind of the officials, the courts, the teachers etc.  especially on occasions when they have to decide something that affects the child.

Our country Kenya has also accepted an international agreement known as the Convention of the Rights of the Child and this is part of the Kenyan Law too. It adds that children have the right to play, to rest and be creative. Children need to understand and adults need to understand as well about two important things about rights. The first is that our rights can be limited. On this I have explained how some of a child’s rights will be limited when they are too young to be able to make their own decisions. Adults too must recognize that their rights too may be limited, sometimes in their own interest and sometimes in the general interest of other people.

You as a child therefore has rights, but equally everyone else has rights too. It makes no sense to insist on your rights if you are not prepared to respect and if necessary to protect the rights of others; adults as well as children.

Having spoken, about the rights of children, I also recognize that not all children are able to enjoy their rights in the same way. Many children in the informal settlements of Nairobi inter alia Mathare, Kibera and Kawangware do not at all enjoy most of their rights. There is a great deal of difference from these children and those living in better off conditions. While others may access better educational facilities, are driven with family cars, have a servant, eat three meals and additional snacks a day, have expensive and unimaginable toys, and probably have a bicycle, a room to themselves where they sleep in comfortable beds, and go for holidays at times at the coast or countries abroad.All these is extremely unfair and in a sense goes against our constitution which wants all children to have equal opportunities.

It is my hope that the lives of the informal settlement children will improve. That they will also go to good schools and that they will have books to read. They will access toys to play with and access regular and healthy food. They will also have the joy of living together with their parents and giving up sniffing glue. They will instead enjoy sporting, reading and being with their families.

The constitution gives the people (including children) the right to petition the government about the difficulties they face and denied rights. They can present to the government the changes they envisage in line with their dignity and security. I advice that you should all meet and send a petition to the president, the governor of your county, and your members of parliament. The Organization I work with, the Katiba Institute would be willing to help you prepare such a petition.


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