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The Role of the CRC in domestic legal orders

A focus on the Kenyan example of new African legislation

Dr. Godfrey Odongo, Kenya/USA

Impact & role of CRC in domestic courts depends on the system applicable for domestication of international treaties.

However the UN CROC has stated that irrespective of monism or dualism as systems child law reform should involve a holistic review of all domestic legislation and related administrative guidance (GC No. 5, para 18)

Status of the CRC

Over 34 constitutions in African countries mention children’s rights; over half specific legislation and nearly a dozen countries have enacted or in process of enacting new legislation post-CRC ratification.

It appears that compared to other treaties such as the UN ICESCR and the UN CAT African states’ record with regard to putting in place legislation is impressive. The case of UN CAT which envisages specific legislation is illustrative – only 7 countries with anti-torture laws.

Kenya ratified the Convention in 1990 and subsequently embarked on a comprehensive law –the Children’s Act, which was eventually enacted in 2001. In Kenya’s case, the first comprehensive law to domesticate a human rights treaty.

Africa and Kenya

On a positive note Kenya’s comprehensive law made an attempt to provide a normative framework as regards a wide breadth of issues and children’s rights: civil and political or economic, social and cultural. As regards ESRs it provided a legal basis for the government’s free primary education program launched in 2003.

Notably it also provided for the primacy of the best interests of the child principle –not just in private matters but public issues as well (section 4 of the Act).

However the enforcement of this principle has not been as straightforward. The effect is that it is not enough to pass such legislation without an overall review of the entire domestic legal order, including, in Kenya’s case the constitutional framework.

Discussing the Kenyan approach-Focus on courts

Sections 24 & 25 of the Act provide[d] that where the parents are not married at the time of a child’s birth, the primary responsibility to care for the child rests with the mother and the father can ‘acquire’ or be enjoined in such responsibility through the father’s consent, acquiescence or court order.

Clearly these provisions seem to run counter to the best interests of the child principle.

A girl sought to impugn these provisions arguing that they were discriminative, citing the CRC, ACRWC. The case R.M, CRADLE versus the ATTORNEY GENERAL. Court refused to grant this prayer on the basis that the discrimination/classification was fair and not unreasonable. Court relied on the then applicable constitutional framework-old Constitution –section 82 which did not incl birth, marital or other status.

Best Interests of children born out of wedlock

According to the Court: “Clear constitutional provisions should prevail over those of the Conventions. It follows that the clear provisions of section 82 [of the Constitution] and the limitations [excluding ‘marital’ ‘birth’ or ‘other status’ from the prohibited grounds for the right to non-discrimination] must prevail and we so hold. It is only where an Act intended to bring a Treaty into effect is itself ambiguous or one interpretation is compatible with the term of the treaty while others are not that the former will be adopted”.

CRC in Kenyan law

Kenya promulgated a new Constitution, 2010 which now has a dedicated child rights clause. Article 53 (1) provides for the ‘equal responsibility of both parents to care for children’. Article 53(2) enacts the best interests of the child principle.

If one may term the decision in RM case as an extreme ‘dualist approach’ the new Constitution Art 2(6) now provides that “any treaty or convention ratified by Kenya shall form part of the law of Kenya”. Interpreted in David Njoroge Macharia versus REPUBLIC – on right to legal aid – in the court words as making Kenya a ‘monist state’.

In a 2013 decision the Kenyan High Court proceeded to declare sections 24(3) & 25 of the Children’s Act unconstitutional on the basis of Article 53 of the Constitution.

Kenyan Constitution, 2010

However the Court did not need to refer or engage with the CRC, ACRWC or international law jurisprudence.

In cases dealing with time limits for criminal cases in which children are accused and pre-trial detention however the situation remains in limbo.

A new monist system or still dualist or shade of both?

CRC; Article 37 limits arrest, detention and imprisonment as a last resort and shortest period of time. Article 40(2) provides for determination of cases of children accused of crimes to be determined without delay.

The UN CROC has interpreted these provisions referring to the pedagogical impact of juvenile justice systems and limiting the chances of stigma (G.C No. 10; para 51). In other words delayed trials and detention not in children’s best interests.

It has called State Parties to enact or set time limits (which should be shorter than those for adults) for cases involving children.

A new monist system or still dualist or shade of both?

Under the Kenyan Children’s Act, the Child Offender Rules, attempted to do that: Rule 12 limiting duration of cases to 3 months for case dismissal (for non serious crimes) and 6 for serious crimes – for the child to be released from detention and 12 months for case to be dismissed.

Rule 10 limits pretrial detention to 6 months.

At the beginning Criminal Courts appeared to apply these rules as provided for. However in the case Kazungu Mkunzo versus REPUBLIC, the Court of Appeal put a halt to this trend.

Court’s rationale: the Constitution at the time, section 77 did not provide for these time limits; the Act itself silent and therefore these Rules were ultra vires.

A new monist system or still dualist or shade of both?

New Constitution; Article 53 (1) (f) provides for child’s right not to be detained except as a last resort and for shortest period of time. Without reference to pre, post or on-trial detention.

A number of cases have since come up for consideration, including CJW versus REPUBLIC (2011) involving a 16 year old charged with defilement. Trial pending for 1 year without starting and accused child sought the dismissal of case and or his release on detention.

A new monist system or still dualist or shade of both?

The Court did not consider the constitutional provision related to detention as last resort and although it is not clear if counsel argued on and cited CRC court did not engage with the views of the UN CROC either.

It characterized the Child Offender Rules on limits to detention and duration of trial as being of ‘guidance’ and that the Rules must give way where “compelling circumstances exist”.

Court held that in such matters involving pre/on-trial bail the criteria was Article 49 of the Constitution which provides for a right to bail if circumstances permit. No distinction btw children and adults.

Proof here that even with the new Constitution and what appears a monist tone what the CRC means will still come up for contestation.

A new monist system or still dualist or shade of both?

Law reform processes must be broad and far-reaching beyond the drafting of specific law. Constitutional framework important.

The question of the applicability of the CRC in the domestic legal order is a nuanced one. It does not merely rest on the dualism versus monism comparison.

Ensuring a synchrony between statutes or legislation; administrative guidance and Constitutions is vital in the context of ongoing child law reform processes.

Conclusion