Memorandum on Children Bill 2021

MEMORANDUM BY THE NATIONAL COUNCIL OF CHURCHES OF KENYA TO THE NATIONAL ASSEMBLY (DEPARTMENTAL COMMITTEE ON LABOUR AND SOCIAL WELFARE) ON THE CHILDREN BILL (NATIONAL ASSEMBLY BILL NO 38 OF 2021)

NOVEMBER 2021

The Parliament of Kenya

PO. Box 41842, 00100

NAIROBI

Preamble

Whereas the church in Kenya appreciates the government’s efforts to modernize the legislative framework touching on children, we are concerned that parents, guardians and faith groups, who engage children the most, were not effectively involved in the development this Bill. We now make the following input on the Bill.

Background

Serving as a leading voice of witness to Jesus Christ since 1913, the NCCK is a family of churches and organisations bringing together mor than 16 million Christians united in faith and mission and transforming lives.

The NCCK welcomes the development of the Children’s Bill as this will upscale the legal framework for children to modern realities and put them in tandem with the Constitution of Kenya 2010. The Constitution of Kenya 2010 in Article 45 (1) recognizes that “The family is the natural and fundamental unit of society and the necessary basis of social order and shall enjoy the recognition and protection of the state”. Children are core members of the family, and their welfare, care, protection, as well as wholesome nurture, are essential for sustainability of society.

Considering that family, and by extension society, is a continuum, the rights and responsibilities accorded to any member of the family will of need be required to take into consideration the rights and responsibilities of the other members of the family. As such, legislative framework that focuses on the child should not be blind to the age appropriateness of the rights and responsibilities accorded, and their inter-connectedness to the legal and natural responsibilities of the other members of the family, especially parents and guardians. Such a framework must of essence be considered in the context of the stability, sustainability and peace of a family that would result from a full implementation of the provisions of that law.

Specifically, we consider it essential that the Children’s Bill does not create conflicts in the family, and does not negate parental responsibility or make parenting unnecessarily difficult.

The Need for the Amendments

In view of the foregoing, we urge the National Assembly to consider Children’s rights, care and upbringing as a component of parenting, and in so doing accord to parents and guardians adequate rights and scope to effectively bring up wholesome children.

Character formation happens in the home or family setting, and when parents are crippled from effective character formation, there will of necessity a society whose citizens are indisciplined and irresponsible. The impact of such a citizenry on statehood would be catastrophic.

For this reason, we strongly recommend the following amendments on the Children Bill (National Assembly Bill No 38 of 2021):

Proposals for Amendments of the Children Bill 2021

As detailed in the schedule below, we have identified 8 areas of core concern and recommend amendments. These are:

Definition of Corporal Punishment
Definition of Child
Definition of Intersex
Defilement
Child Welfare Programme
Media Responsibility
Civic Education on Parental Responsibilities
Undefined Responsibilities for Children

Clause	Provisions in the Bill	Stakeholder Proposal	Rationale
2	Definition of Intersex	The section should be deleted as there is no reference to an intersex child in the body of the Bill	There is no reference to an Intersex Child in the body of the Bill so there is no need to provide a definition in Section 2 Should the Bill be amended to make provisions for the Intersex Child, then it should be defined as: “means a child with a congenital disorder of sex development in which development of the chromosomal, gonadal or anatomic sex is atypical leading to ambiguous genitalia making it difficult to identify their sex at birth and before development of secondary sexual characteristics at puberty.” Should the Bill be amended to make provisions for the Intersex Child, the following medically-supported definitions should also be included to provide clarity on the children that these provisions relate to: “Sex” means either male or female; “sex of upbringing” means the temporary sex assigned to an intersex person at birth or at the earliest opportunity following birth for purposes of naming and upbringing and before the onset of the secondary sexual characteristics and establishment of the definitive sex; “male intersex” means the temporary male sex assigned to an intersex person for the purpose of naming and upbringing before puberty and establishment of the definitive sex on development of the secondary sexual characteristics; “female intersex” means the temporary female sex assigned to an intersex person for the purpose of naming and upbringing before puberty and establishment of the definitive sex on development of the secondary sexual characteristics
2	Definition of Child	Amend by substituting the word “individual” with the word “person”	This shall harmonize the definition of Child with the definition contained in the Constitution
23(3)(b)(i)	(i) torture or other cruel and inhuman or degrading treatment, including corporal punishment	Amend by inserting the word “excessive” immediately before the phrase “physical force”	The provision curtails the use of any physical force by parents during disciplinary processes, even where the pain and discomfort occasioned on the child does not cause any bodily harm and is merely sufficient for corrective action as recognized on Section 154(6). Without the amendment, the Subsection will be inconsistent with the parental responsibility to enforce discipline that is provided for in Subsection 154 (6) of the Bill.
14(1)	Every child shall have the right to freedom of thought, conscience, religion and religious education, subject to appropriate parental guidance, and in the best interest of the child	Amend by deleting the word “appropriate” immediately before “parental guidance”	Without the amendment, the provision will curtail the capacity of parents to provide religious guidance to children by enabling children to overrun parental guidance by declaring it “inappropriate”
14(2)	Religious guidance and education should not curtail enjoyment basic rights and freedoms	Delete provision in entirety	This provision will curtail religious guidance that parents can give to their children. Empowering children to overrun parental guidance threatens family cohesion and undermines parental authority. .
15	Contains provisions relating to right to healthcare services and information.	Amend by deleting all references to “reproductive health”	We are opposed to opening up reproductive health rights to children. Such will promote sexual activity in children, thereby negating protection of children from molestation. These provisions are similar to the Reproductive Health Bill that was rejected
15(4)(e)	Access to information that affirms human dignity in human relationships and promotes sexual risk avoidance	Delete provision in entirety	We are uncomfortable with this provision and recommend its deletion because: (i) Children are a vulnerable group and need guidance. Access to such information would have a counter effect by arousing their sexual appetites (ii) The generality of the provision would require children are allowed to access information that promotes sexual deviant behaviours leading to conflicts in the family (iii) The Bill does not define the objective or purpose of children accessing such information (iv) The Bill does not define the scope of information referred to, its compatibility with cultural and religious practices and beliefs (Constitution of Kenya 2010 Article 11), or its age appropriateness (v) Scientific evidence shows that long-term use of family planning methods has negative effects on the reproductive health of humans, and early promotion of the same to children will have negative impacts on them
17(4)	The Cabinet Secretary may, in consultation with the Cabinet Secretaries responsible for matters relating to labour and education, make Regulations prescribing the kind of work in which a child of between thirteen and sixteen years of age may be engaged and the terms and conditions of that engagement	Amend to replace the word “may” with “shall” Amend to replace the word “sixteen” with “eighteen”	The provision should require the Cabinet Secretary to make the regulations, and not leave it to their discretion. This will ensure that children who are engaged in any labour are adequately protected. The age at which one ceases to be a child is eighteen years, so it is not clear why this provision is pegged at sixteen years. The children aged seventeen years should also be covered by the Regulations.
19(1)	A child with disability shall, in addition to the rights guaranteed under the Constitution, have the right to be treated with dignity, and to be accorded appropriate medical treatment, special care, education and training free of charge or at a reduced cost	Amend by deleting “or at reduced cost”	Training for children with disabilities should be free just like basic education
20(3)	Without prejudice to the generality of subsection (1), any person who, through any electronic system, network, or other communication technology –	Amend by adding the words “television, radio, social media, social networks” immediately before the words “or other” At 20 (3)(c) expressly mention betting as an mobile phone vice.	Television, radio and social media are big influencers on children and are being used to harm and abuse and indoctrinate children. They should be expressly mentioned for avoidance of doubt.
20(3)(c)	in any other way, subjects a child to online abuse, harassment or exploitation, whether through social networks, playing online games or by use of mobile phones or other electronic devices,	Amend by adding the word “or betting” immediately after the word “games”	Betting is a major and addictive vice among the youth and children. It should be illegal for any person to recruit children to bet
20(3)(d)	We propose that a new subclause be added after (c)	Add a new clause that reads “(d) broadcasts or causes to be broadcast on terrestrial, cable or internet-based television or radio channel, obscene or adult-rated material during the watershed hours when children programmes are normally viewing or listening to those channels”	This is to protect children from exposure to sexual, violent, obscene or other destructive content
21(1)(a)	In the case of a male child, forced circumcision	Delete provision in entirety	We recommend that the provision be removed due to the following considerations: (i) The Bill does not define forced male circumcision, thereby exposing parents, guardians, medical workers and other care givers (ii) Scientific research promotes male circumcision and therefore it is not clear what the rationale for this provision is (iii) Male circumcision often happens before a child is eighteen years old, so this provision will expose parents to being jailed for actions meant to protect the health of their children (iv) Male circumcision has been shown to have health benefits, and therefore should not be categorized as a harmful cultural practice
25(2)	Without prejudice to the generality of subsection (1), parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children	Amend by deleting the word “reasonable”	The right to privacy is very wide, and this should be balanced with a right to parents and guardians to supervise their children. Without the amendment, other actors would have the freedom to expose children to harmful materials or practices by accusing parents of being “unreasonable” when they seek to deal with the issue. The unamended provision will hinder effective parenting.
26(1)	Every child has the right to peaceably assemble, demonstrate or present petitions to public authorities, and to freely participate in matters affecting children through lawfully established forums, associations, and assemblies at the national and county levels.	Amend by introducing two new subclauses to read: (a) The exercise of this right will be age-appropriate (b) The children intending to exercise this right will inform the Inspector General of Police prior to the demonstration (c) The Inspector General will ensure that adequate security is provided to children exercising this right	The addition of the two sub clauses will ensure that the demonstration is age appropriate, that safeguards for the security of the children is assured, and that they must get consent of the Inspector General just like adults to picket so that there are controls.
26(3)	In addition to the rights guaranteed under subsections (1) and (2), every child shall have the right to express his or her views in all matters affecting them, and have those views heard and given due weight in accordance with the child’s age and maturity.	Amend by deleting the word “all” appearing immediately before “matters”	The unamended provision will make parenting very difficult since children will be questioning every decision of the parent or guardian. Parental responsibility, which incudes assertion of authority and supervision, should be protected.
26	Add new subsection (4) after (3), then renumber the current subsections as appropriate	Add a new subsection to read: “The rights guaranteed under subsections (1), (2) and (3) shall be exercised voluntarily by each participating child, free from undue influence, coercion, inducement or enticement by any person.”	Insertion of the new subsection is necessary to ensure voluntary participation
26(6)	The Cabinet Secretary may issue guidelines to give effect to this section.	Amend by substituting the word “may” with “shall”	The provision should require the Cabinet Secretary to make the regulations, and not leave it to their discretion. This will ensure that children who participate in demonstrations or picketing are adequately protected.
35	Functions of the Cabinet Secretary	Amend by inserting a new sub section (h) after (g) that reads: “Provided that the powers conferred on the Cabinet Secretary under this section shall be exercised while having regard to the right of parents and guardians to exercise parental responsibility over their children.”	This will account for the overriding responsibilities of parents as set out in the Bill.

Conclusion

In conclusion, we in in the NCCK urge The National Assembly to consider that the character of the nation is shaped by the character of the children, who are formed within the family and societal setting. For this reason, parenting is one of the most important institutions and processes in the nation, and requires utmost care and protection. The Bible is very cognizant of this, and provides for the safety and appropriate upbringing of children. Proper parenting and its outcomes are summarized in the scripture recorded in Ephesians 6: 1 – 4 – “Children, obey your parents in the Lord, for this is right. Honor your father and mother – with is the first commandment with a promise – that it may go well with you and that you may enjoy long life on the earth. Fathers, do not exasperate your children; instead, bring the up in the training and instruction of the Lord.”

On our part, we remain committed to supporting parenting and child upbringing in the country.

Signed on this 1^st day of November 2021 at Jumuia Place, Nairobi, on behalf of the Member Churches and Organizations (attached) of the National Council of Churches of Kenya:

Rev Canon Chris Kinyanjui

GENERAL SECRETARY

NCCK MEMBER CHURCH