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More protection or more Harm? A Critical Review of the Child Protection

Framework in Kenya.

By Irene Katunge Nyamu

1. Introduction

This research critically examines the ambivalence inherent in the Kenyan child protection

system, its, biases, assumptions and implications for children in need of care and protection and

their families as they access, assert and negotiate their right to services. Part of the ambivalence

stems from its dichotomous character. On one hand exists the formal, legalistic side considered

vital for institutionalized protection, and on the other is an informal, community based system

that has existed for years in a rapidly changing social-cultural context affected by modernity,

urbanization, and growing poverty. Whereas the former is state sponsored, the latter survives

because of sheer will and benevolence of communities and charitable organizations. By not

providing budgetary allocations to the informal and community based support system, the sate

officially denies its existence and relegates significance, but at the same time understands that

without the subsidization, child protection services as currently conceived (and social protection

in general) would collapse.

Colonial history had the greatest influence on this current impasse as the experiences largely

shaped the social welfare regimes that have emerged in most developing countries (Gough and

Wood 2004; Hall and Midgely 2004). My analysis therefore took a historical view to understand

the residualist nature arising from that encounter in Kenya, as well as its more “modern”

experiences in late 1980s onwards. The latter era involves multi-party democratization efforts in

developing countries. Democratization as a political project emphasized human rights in

general, but adoption of United Nations Convention on the Rights of Children (UNCRC) in 1989

introduced child rights, initiated reconstruction of the definition of childhood in euro-centric

ways, and started re-shaping understanding of child welfare in Kenya.

I adopted the Kenya government’s definition of child protection as “ a set of laws, policies,

regulations and services, capacities, monitoring and oversight needed across all sectors-

especially social welfare, health, security and justice –to prevent and respond to protection

related risks for children”(National Council for Children Services 2010:5). This definition

emphasis both management and prevention approach. Its colonial precursor focused on

“problematic cases” and made no pretense of it’s social control objectives that made visible and

disciplined ‘criminal’ behavior, while ignoring other developmental and parenting challenges not

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fitting this view, expecting family and clans mechanisms to deal with such (Mamdani 1996).

Thus two parallel systems came into co-exist, and the dualism presents tension in the aims and

outcomes of child protection. It raises fundamental questions;

1. Does the current system actually meets users’ needs, and make efforts to prevent

vulnerabilities? Or is it simply reactive and too focused on legal processes, as observed

by Cooper (2012) in her article Following the Law, but losing the spirit of child protection

in Kenya?

2. Is this myopic problematization of children’s welfares creating exclusion of families with

non-abuse histories but nonetheless experiencing difficulties requiring non-legal

interventions? For instance where children are at risk due to long periods of parent’s

unemployment, or history of drugs and substance abuse?

3. How do community-based aims which are accomplished with minimal resources link to

with the more formal aims of the system to bring coherence and mediate challenges

encountered by families and children who have to navigate between these two spaces?

The import of this is that though community care systems can foster solidarity, cohesion

and collective responsibility for social reproduction (Mildred and Plummer 2008:607),

they can similarly obstruct efforts address culturally rooted abuses like child marriages

and sexual abuse occurring within the family or community where kinship ties may still

be strong.

Having been an “actor within the system’’ I am aware of this subjectivity, so from this position I

consciously reflected on my personal experiences as well as those of other practitioners that I

talked to during this exercise, as well as made use of available literature to analyze the realities

of the system.

1. The Child Protection System in Kenya

The colonial administration supplanted elements of the English Common Law where “Parens

patriae, parent of the nation……….assumed responsibility first for orphans and foundlings and

then …..……increasing responsibility for juvenile offenders….”(Fattore et al 2005: 17). Juvenile

correctional institutions were set up for children in conflict with the law. Forced migration and

destitution due to expropriation of land for white farmers, and death of parents during mau

mau resistance left children without parental care. Many children became easy targets for

arrests ostensibly for loitering in ‘non-native reserves’ without proper identification-“Kipande”

(Ministry of Gender, Children and Social Development n.d; Governance, Justice, Law and Order-

GJLOS n.d; Mbugua 2012: 11; Mamdani 1996). Seen as a threat to social, they were locked up

and disciplined under harsh conditions. Typically, funds and commitment were in short supply,

and the colonial administration applied a minimalist model to good effect. After independence

the government made few adjustments to this arrangement beyond rebranding the Department

of Approved Schools to Department of Children Services, currently responsible for child

protection work (Ministry of Gender, Children and Social Development n.d). This inertia is not

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surprising for a post-independent state where “public spending on social sectors was considered

a wasteful diversion from the business of economic growth” (Hall and Midgely, 2004: 4).

Understanding of the scope for child welfare has since expanded to embrace child rights, make

sense of emerging forms of abuse and the reality of changing family dynamics. Unfortunately it

would appear the interventions respond more slowly. The 2011/2012 national child helpline

data is indicative of the emerging forms of abuse summarized below.

Table 1: Ten Most Commonly Reported Forms of Child Abuse

Abuse Report 2011 Report 2012

Child Neglect 1589 2806

Physical Abuse 1251 1609

Sexual Abuse 948 1253

Child Labor 497 646

Early Marriage 219 302

Emotional Abuse 147 204

Female Genital Mutilation 92 19

Child Trafficking 46 59

Child Abduction 45 55

Child Prostitution 19 21

Sub-total 4865 6974

Source: Childline Kenya Published Annual Reports 2009-2012

The Constitution and the Children’s Act 2001 form the basis for child protection framing. Article

53 (d) “Every child has the right to be protected from abuse, neglect, harmful cultural practices,

all forms of violence, inhuman treatment, and punishment and hazardous exploitative labor”

(GoK 2002: Article 53 (d)). The Act constitution and domesticates the United Nations Convention

on the Rights of the Child (UNCRC), African Charter on the Rights and Welfare of the Child as well

as a battery of international laws and optional protocols on child labor, adoption, recruitment

of child soldiers, and trafficking. Other laws include Sexual offences Act 2006; Counter -

Trafficking in Persons Act 2010; Basic Education Act of 2012; Employment Act of 2007. Others

are Orphans and Vulnerable Children Policy of 2005, and the National Social Protection Policy of

2013 as well as Framework for The National Child Protection System for Kenya (NCPSK) of

2011. This framework guides child protection work in the absence of a concrete cabinet-

approved policy paper. It is a concrete step towards a more comprehensive system as it

attempts to move away from fragmented approach (such as sexual abuse, or street children

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projects) to integrated care and support1. In theory this is true, and commendably, it took

children’s views into account during its preparation (NCCS 2010: 15).

Main Actors

I classified actors broadly into three categories: State, non-state and family, community, and

children. Under the Children Act there two state-institutions responsible for policy and

management of all child welfare matters- National Council for Children Services (NCCS) and its

lower level representative in the form of Area Advisory Councils (ACCs) and; the Department of

Children Services (DCS).

NCCS makes national policies and has overall responsibility for “supervision and control over

planning, financing, and coordination of child rights and welfare activities and to advice

government on all aspects thereof” (Children Act 2001: Article 32, NCCS 2011: 12). Members

include government specific government departments, private sector and representations from

civil society. NCCS depends on the ACCs as well as children officers in DCS to accomplish its

functions. NCCS is funded through state budgetary allocation heavily augmented by UNICEF and

other NGOs. This undermines its capacity as a policy maker. Embedded in the NCCS structure is

Area Advisory Councils (AACs) with similar composition as NCCS, but in addition, they have

provision to co-opt two children (a boy and a girl) as members.

The Department of Children Services (DCS) is secretary to NCCS and is responsible for

implementation of all policies on child welfare in the country (Children Act 2001: Article 37). The

department has field staff (children officers) working in the districts. I discuss more on DCS in

part 4.

There are contestations between NCCS and DCS. NCCS perceives itself as superior as the policy

maker, though it’s existence dates back 2002 only. DCS with 100 years reluctantly accepts

second position but has ‘power' through control of a comparatively larger budget, staffing, and

extensive network of partners and collaborators who fund some of its programs2.

All there actors function under supervision of these two albeit with some challenges. Figure 1

summarizes the relationship between actors.

The family, Community and children

The law assigns parental responsibility first to parents while the state is secondary (Children

Act Section 23). Although kinship care has been weakened due to modernity, urbanization and

general social rupture, nevertheless it remains vital and both end of the system are heavily

reliant on family and kinship support, without reciprocity for their social reproductive

contributions.

1 Speech by Director of Children Services, Mr. Ahmed Hussein at the Launch of the , 18

th December 2011 at New

Stanley Hotel Nairobi. 2 Personal Experience as a member of the NGO Child Participation a Sub-committee of NCCS (2006-2009).

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The law also recognizes the agentive nature of children thanks to lobby efforts of NGOs .They

make claims to rights, and entitlements through their insertion into Area Advisory Councils,

children’s clubs and parliaments. DCS allocates funds to support children’s parliament activities

from time to time and NGOs sponsor clubs and children’s conferences (Childline Kenya 2010;

National Council for Children Services 2011; Mildred and Plummer 2008:607). Such efforts are

laudable, but not enough to color mounting evidence of obvious state lethargy on matters of

children, seen as less important for instance through delays by cabinet to approve the national

child policy or poor resourcing of NCCS.

Figure 1: Organizational Structure of the National Child Protection Framework

Source: The Framework for National Child Protection System for Kenya (NCCS 2011: 12)

Non-state Actors

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Civil society organizations (CSOs) and the private (business) sector play a complementary role by

championing child rights and financing projects such as UNICEF’s support for the Orphans and

Vulnerable Children Cash Transfer (OVC-CT) program. Because of financial bargaining power,

they exert influence on state’s policy choices, sometimes to the detriment of children on

account of fragmentation, different standards and outcomes, and outright conflicts. CSOs are

considered part of the formal system or in the middle, mediating between the formal and

informal. Some CSOs such as adoption agencies have formal agreements with DCS to undertake

specific functions, while the running of the national child helpline is done jointly by DCS and

Childline Kenya, an NGO.

The Private sector on the other hand is seen to have one role- of funding or support to some of

the child welfare projects. Some have long term corporate social responsibility projects, for

instance Equity Bank’s Wings to fly program which provides scholarships to extremely poor but

academically gifted children.

2. The System in Action: Emphasis on Problem not prevention

I use three case studies to illustrate DCS’s bias towards management above prevention, and

how children negotiate though the spaces, especially without external mediation. The first case

study is of the national child helpline which is formal but at the same time offers a useful

mechanism for linkage with the informal. The other two are from an ethnographic study in the

slums of Mombasa (Kosteln et al.2013), and aims to show how families access and experience

the system.

Case Study 1: Helpline 116

DCS partnered with Childline Kenya (CLK) to set up and operate a 24 hour helpline as a response

to escalating violence against children especially at family level. When children call, cases are

discussed and referred to children officers at the helpline and in the field to take action. But for

counselling and other family support services unrelated to abuse CLK has to put invest its own

resources3. Children and parents are using the service to good effect. They can call anytime for

free and talk to professional counselors, psychologists, social workers, lawyers) on any matter of

concern regarding children. The helpline team follows up all cases. DCS is gradually taking over

full management of 116 based formal agreements with Childline 4 (See also CLK 2011, 2012).

3 Discussions with Senior Children Officer (helpline 116) Mrs. Rhoda Mwikya and as my Personal experience

working as Childline Kenya (2006-2013). 4CLK has a 10 year Agreement with DCS. There are 10 government officers at 116. See also

http://www.childlinekenya.co.ke/

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Figure 2: Accessing formal child protection services via the national helpline (Source, Childline

Kenya 2011 campaign poster)

Case study 2: Community response to Right to Education

In a rurl poor community, parents have to find inovative solutions and may never go out of their

communty to find assisntance as depicted in fiure 3. This can be positive ifor solidaity if lasting

solutuons are found. The problem thouhg that often it is is not fully resolved and may recur if no

additional suport is offerd and this is where the state could come in.

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Figure 3: Pathways to Guaranteeing the Right to Education (Source: Kostenly et al. 2013: 100)

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Case study 3: Violence and the Formal System

Community members can easily get frustrated by bureaucratic the formal spaces. The entry

needs to be easy and supportive for all whenever they need to move within the two spheres.

Figure 4: Rape in the Village (Source: Kostenly et al. 2013: 104)

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3. Tensions between the Formal and Informal First, there is biased allocation of resource favoring the formal. Popular historical view that social welfare was about “pathologies such as crime, prostitution, and helping those who could not literally help themselves such as disabled……… infirm or orphans” (Hall and Midgely 2004:4) affirms it. ). Budgetary support for children ranks low on the national agenda. World Bank’s restrictions have made it worse (Mbugua 2012:13) Less than 30% of the national annual budget (recurrent and development) goes to general social provisioning (prisons, women, and youth). UNICEF et al (2006) observed that “although resources for children are increasing………..not keeping pace with other sectors” (UNICEF et al 2011:20).

Second, DCS has a chronic shortage of staff. 695 out of a total established capacity of 1277 officers for

20 million children cannot cover the demand. Without officers below the district as well, officers meet

the deficit through AACs and 450 volunteers (Ogoti 2010), and by multi-tasking. Their job description is

too broad, it reads like a para-professional’s tool book for all trades (see GOK-Children Act Article 38a-s).

The community also makes in-kind and cash contributions (such as religious organizations, and business

community). One professional remarked to me “a casual observer might laud this as positive community

participation because some volunteers are local heroes-like a woman I met in Narok; heavily pregnant at

the time and sparing no effort and expense in following up abuse cases but, such gains are short lived”5.

Service quality is compromised in spite of the zeal of most volunteers, and sometimes even crimes

against children are conclusively at village level for fear of stigma in the case of rape or teenage

pregnancies, prohibitive costs, or unfriendly service like the police (Plan International 2012:8 Kostelny et

al. 2013: 104-106, Plan International 2012; Cooper 2012: 489). The structural issues remain unaddressed

and neither does the victim get comprehensive care.

Third, aspiration conflicts occur between the state and various non-state actors, especially on account of

contradictions between the community’s and the state’s definition of the goal(s) of intervention (Mildred

and Plummer 2008: 606, UNICEF et al. 2011). As a result, the outcome of interventions may be the very

opposite of what a family wants, for instance separation, imprisonment of a negligent mother, or forced

reintegration of runaway children back to families that threaten their wellbeing (Cooper 2012).

Conversely, because historically services were designated for “problematic” families, the notion still

persists among citizens so that they may not readily seek help. Even worse is that such services may

simply not be available in districts or costly if sought privately. This reduces possibility for early

preventive interventions as families may hesitate to label themselves “problematic “ even where they

recognize need for assistance to cope, ruling out self-identification and enrollment.. Indeed many

children have been murdered in the last two years by parents who might have benefited from family

support programs (Nyasato 2012l Ngeta 2012)

Fourth, the system is rigid, unresponsive and gender biased. Like its colonial predecessor, it has

embedded the kinship foster care system within its strategy on de-institutionalization of child welfare

services from orphanages. DCS put moratorium on registration of children’s homes in 2005 advising

that orphaned children should, to the extent possible be cared for by family members, this directive was

not accompanied by support for such families, unless they were already enrolled in the Orphans and

Vulnerable Children-Cash Transfer (OVC-CT) program. This program is only available in selected districts,

has strict targeting, provides about US 20 per household with orphans as long as they attend school. It is

not clear if this amount does enough to improve orphans’ lives or to reduce the financial burden placed

5 Personal Communication with Dr. Celestine Musembi, a Family Law Researcher (8

th January 2014).

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on foster parents as there is not additional social support to alleviate the added stress on grandparents

for the intergenerational conflicts taking care of young people from another generation brings.

Finally, the gender dimension needs examination. Failure by state to provide comprehensive preventive

care overburdens relatives, especially women and poorer households who must now take on kinship

foster care responsibilities for orphans. Whereas affected children benefit from continued attachment to

family, it often puts them at greater risk of malnutrition, dropping out of school and abuse if they are

placed in an already constrained household (Gatobu 2012). In ways akin to perverse incentives, some

poor relatives may take orphans for extra benefit or exploit them for labor. There is evidence of

increased incidences of such abuse in the extended family setting (Childline Kenya 2009/2010).

Conclusion:

The contemporary child protection system is still suffers colonial nuances, with the continued

expectation that the kinship structure will provide subsidies when in reality this structure is on the verge

of collapse. It is ravaged by pressures from an ageing population that has to take care of its young who

are rendered vulnerable by poverty and disease (HIV/AIDS, as well as a social protection system that

refuses to conform to rapid social changes and demands. This system is also distinctly gendered and

insensitive to citizens need for support. For instance, whereas kinship foster care has benefits, it needs

to be supported as a state obligation to children who should ideally be under the charge of the state. The

state should not externalization social reproduction costs, as this constitutes double taxation. Future

research work may be necessary to examine options available to effectively guarantee children and

family security and stability.

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