The Role of African Culture in the Implementation of the UN Convention on the Rights of the Child: The Kenyan Experience.

• Author: Otieno, David Ngira
• Position: Report

The issue of child vulnerability is a concern of many postcolonial African governments. The deplorable conditions under which orphans and other vulnerable children live compounds general family poverty in Sub-Saharan Africa. Governments and international bodies have passed laws to improve the situation of children. However, this paper will demonstrate, the status of children in Sub-Saharan Africa has continued to deteriorate, thus putting into question the effectiveness of these legislations. With a focus on Kenya, this study explores the possibility of a bottom-up integrated approach that is culturally sensitive in tackling the challenges facing children in Kenya.

This study consists of an introduction and five sections. Section one initiates the discussion by exploring the conditions of children in Kenya. Using the Convention on the Rights of the Child (CRC) as a benchmark, the section focuses on children's social-economic rights and the extent of their attainment in Kenya. Section two engages with theoretical discussions about the nature of human rights in general and examines various human rights approaches. It shall explore the philosophical and moral justifications for children rights. Using examples from different jurisdictions, it will demonstrate the differences and contradictions in the conception of childhood. Then the nexus between cultures and human rights in general as well as the history and nature of the CRC is discussed. Section four explains various aspects of Kenyan Culture and how they can be used to guarantee children rights with a particular focus on education, and protection from vulnerabilities and harmful practices like Female Genital Mutilation (FGM). This part also explores how culturally sensitive approaches to development such as community led care facilities, harambee projects, and kinship foster care for orphans and vulnerable children could be used to attain a better life for children. The conclusion summarises the main thematic areas of discussion and highlights future areas of research.

The overall objective of the study is to examine how African culture can be used to achieve the goals of CRC. The specific research objectives were: 1) To investigate whether and to what extent African cultural values are (in)consistent with the CRC; 2) To explore how the changing cultural values alter or reinforce any existing patterns of oppression against children; 3) To examine how African cultural values, national legislations and CRC can be used to develop an integrated approach in dealing with children's rights in Kenya.

The following research questions guided the study; 1) Is there a relationship between African cultural values and CRC; 2) Do the changes in African cultural values alter or reinforce any existing patterns of oppression against children; 3) Can the African cultural values, national legislation and CRC be used to design an integrated approach in handling children's rights in Kenya?

Methodology and Theoretical Framework

This study relies on the secondary research design with both descriptive and analytical approaches. The descriptive approach involved a critical examination of reports, legislations, and policy papers to determine the situation of Kenyan children, while the analytical approach focused on the theoretical and normative positions advanced by various scholars on the subject. This study utilizes qualitative data obtained from various sources, key among them being UN publications, NGO reports, academic articles, and Kenya government reports.

The interest theory of human rights provides this study with a theoretical foundation. The theory, which basically postulates that an individual has a right to something if he has an interest in it, explains the underlying theme in the study; that children have rights to health and education because of the significance of these requirements in facilitating their development.

Summary of the Problem

Whereas many writers have examined the various strategies of improving the situation of children in Africa, little has been done to determine how African culture can be utilized to realize these rights. Much of the literature tends to portray African culture as part of the problem and not solution. (1) This misconception of culture as being retrogressive has resulted into top down programs that are not only ineffective but also culturally and financially unsustainable. Emphasis has thus been put on state-controlled systems and legal approaches that focus on the enactment and implementation of domestic and international laws and policies relating to child welfare. (2) However, the legal approach spearheaded by the UN has failed to emancipate children, and though there is an emerging call for an alternative approach to dealing with children in Sub-Saharan Africa, there seems to be total disregard of the role of culture in the process. Even scholars like Alberto Minujin, Enrique Delamonica, Edward Gonzalez, and Alejandra Davidziuk, who advocate for a more comprehensive approach, have failed to highlight the important role of culture towards the achievement of children's rights. (3) Criticizing the Poverty Reduction Strategy Paper (PRSP), which is one of the main policy approaches advanced by the UN Committee on the Status of the Child, they argue that PRSP ignores the underlying needs of poor families and their children. (4) However, whether expanded to cover poor family or not, PRSP may not offer the ultimate solution because as a national policy paper, it is modelled along global economic principles with no regard to socio-cultural realities. Its use in emancipating children is thus very minimal. Writing about children rights in Kenya, James Jarso argues that the deplorable situation of children in Kenya is due to the failure of the government to implement national and international legislations and conventions. (5) However, Jarso fails to acknowledge the resource limitation that makes the legislative approach ineffective. Moreover, the overly western orientation of some conventions makes them quite difficult to implement without cultural considerations. (6) Other writers have attributed the poor status of Kenyan children to lack of a clear institutional framework, noting that proper institutional framework would help in developing practices that would be beneficial to the children. (7)

Although this perspective sheds light on some missing gaps with regard to government approaches, it fails to take into account the unique socio-cultural realities that underpin the day to day life of African children. Though important, state-run children facilities lack the necessary infrastructure to handle the increasing number of orphans and vulnerable children (OVCs). Such an approach is only effective in handling children issues on a small scale, thus creating the need to go beyond the institutional and legal approaches into a more bottom up, community led, and culturally sensitive approach that would respond to the needs of the increasing number of OVCs.

This study tries to fill this knowledge gap by examining how culture could be useful in realizing children's right. It seeks to explore how various aspects of African culture can complement or inform (but not replace) various government policies and programs in achieving the same.

The Challenges Facing Children in Kenya

According to UNICEF, by 2010, 35 percent of all urban children in Kenyan slums were undernourished, with 2.2 million adolescents found living with AIDS. (8) The high level of HIV is mainly caused by deprivation which compels teenagers especially girls to drop out of school and engage in prostitution. (9) Other persistent challenges include Female Genital Mutilation (FGM), which is practiced by thirty-eight of the forty-two Kenyan ethnic communities, and child labor. (10) Estimates from UNICEF indicate that between 1999 and 2003, 25 percent of Kenyan children were involved in child labor. (11) This is despite the country ratifying numerous international conventions and enacting The Children's Act, 2001. (12) Key factors fuelling child labor are child poverty and the increasing demand for cheap labor. (13) The table below highlights child labor prevalence in Kenya. It is estimated that in total, 926,541 provide labor in various sectors as reflected in the table below.

Though the law stipulates harsh penalties for those who employ children, the above table shows that child labor is indeed prevalent in Kenya. Scholars have criticised the law as being unable to address the underlying factors that compel children to drop out of school into the labor market. (15) There is thus need for a more integrated approach that captures the push factors, such as poverty, which force families to allow their children to join the labor market and compels children in child-headed families to work for their survival. (16)

Whereas remarkable steps have been taken in the education sector, resulting into an increase in enrolment in primary schools, the challenge of retention still remains. (17) Although an impressive 83 percent of all school going age children enrol in schools every year, (18) a significant number drop out in the course of the eight year primary schooling period, with UNICEF putting the figure at three out of every ten children. (19) This is despite the fact that the Children's Act, the UN Convention on the Rights of the Child and the African Charter on The Rights and Welfare of the Child guarantee basic education to children. Key factors associated with the high dropout rate include teenage pregnancy and child poverty. (20) The transition rate from primary to secondary school is also low, with the World Bank noting that only 24 percent of those who finish primary school proceed to secondary school. (21) The low level of transition can be attributed to the high fees for secondary school (in contrast to free education in primary schools). Furthermore, even when available...