Laws and policies that protect the girl child in Kenya and Africa

Upon marking the International Day of the Girl Child on the 11th of October is under the theme : With Her: A Skilled Girl Force, the strides taken to ensure that women and girls are provided equal opportunity in all aspects of life were discussed.

The UN Women contends that “the 1.1 billion girls of today’s world are challenging the status quo. They’re redefining girlhood, and they’re doing so against the odds.” Just what are these odds, you might be wondering.

Challenges Faced by the African Girl Child

According to the Right to Education Initiative, despite progress in the number of girls going to school, women and girls continue to face multiple barriers based on gender, age, ethnicity, poverty, and disability, in the equal enjoyment of the right to quality education. The question we should all be asking ourselves is; are there laws and policies that have been set in place to protect the Kenyan and African girl child

The Kenyan Girl Child

The 2014 Kenya Demographic and Health Survey revealed that 45 percent of women and girls aged 15-49 have experienced physical violence and 14 percent have experienced sexual violence. The Girl Child Network, an organization aimed at empowering girls in East Africa to lead and learn asserts that “before her 18th birthday, one in four girls in Kenya is already married.” And before these girls are married, they’re expected to undergo Female Genital Mutilation (FGM). This is a very painful and dangerous procedure that can cause infection and other complications.

Image: @globalwomenprotected

The African Girl Child

The African girl child is likely to face one or more of these barriers;

  • harmful gender stereotypes and wrongful gender stereotyping
  • child marriage and early and unintended pregnancy
  • gender-based violence against women and girls
  • lack of inclusive and quality learning environments and inadequate and unsafe education infrastructure, including sanitation
  • poverty

Laws and Policies in Kenya Protecting the Girl Child

According to Chege Kibathi & Company Advocates, Chapter Five (5) of the Kenyan Constitution contains the Bill of Rights that offers protection for the safeguards of the individual rights and freedoms for every Kenyan. They postulate however, “that the constitution does not have the rights of children expressly spelt out or guaranteed.”

Here is a list of some of these rights;

The Penal Code (Cap.63 Laws of Kenya)

It defines the Penal system in Kenya by outlining criminal offences and prescribes penalties to them. It protects children, in that acts and omissions, which amount to child abuse, are classified as punishable offences that include:

Sexual abuse – Rape, Defilement, indecent assault, incest (both by males and females) and unnatural offences.

  • Physical Abuse – Common assault, assault occasioning actual bodily harm and grievous bodily harm.
  • Other offences that protect the lives of children include concealment of birth, killing of the unborn, procuration of an abortion etc.
The Children Act (Cap. 586, Laws of Kenya)

This is an Act of Parliament that provides for the rights of children and seeks to enhance the welfare of children in Kenya, including girls. The CA provides for the rights of all children as are provided for in the CRC and the African Charter. They are as follows:

  • Inherent right to life
  • Right to parental care
  • Right to Education
  • Right to religious education
  • Right to health care
  • Protection from child labour and armed conflict
  • Children should also not be recruited in armed conflict or take part in hostilities
  • Right to Name and Nationality
  • Right of Children with disabilities to be treated with dignity
  • Protection from child abuse
  • Protection form harmful cultural rites
  • Protection from the sexual exploitation
  • Protection from drugs
  • Leisure and recreation
  • Torture and deprivation of liberty. – No child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.
  • Right to privacy

Laws and Policies Protecting the African Girl Child

In Africa, there are four human rights mechanisms responsible for hearing cases on gender equality in education. The African Court on Human and Peoples’ Rights (ACtHPR) can adjudicate on the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

The African Committee of Experts on the Rights and Welfare of the Child. (ACERWC) was established by the African Charter on the Rights and Welfare of the Child. It has 41 member states, to which Kenya is a signatory. It is mandated under article 42 of the ACRWC to promote and ensure the protection of the rights of the child enshrined in the ACRWC.

Africa is the only region that has a human rights treaty dedicated specifically to women and girls. Article 12 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa tasks tates parties with the following;

  • Protect women and girls from all forms of abuse, including sexual harassment in schools and other educational institutions, and provide for sanctions against the perpetrators of such practices.
  • Provide access to counselling and rehabilitation services to women who suffer abuses and sexual harassment.
  • Integrate gender sensitisation and human rights education at all levels.

Under the Protocol, states must promote:

  • Literacy amongst women
  • Education and training at all levels, in all disciplines, particularly in the sciences and technology
  • Enrolment and retention of girls in formal and non-formal education settings, including fundamental education programmes

The Protocol also commits States parties to taking action on a number of issues affecting women and girls’ right to education, such as;

  • Eliminate discrimination against women
  • Ban female genital mutilation
  • Set the minimum age of marriage for girls at 18

The right to education of girls is also comprehensively protected by a number of other African treaties. More recently, human rights instruments are explicitly referencing the practice of FGM as an act of violence against women and mandating state parties to prohibit the practice. Some of these human rights instruments aimed at protecting girls and women against gender based discriminations, FGM, right to education, etc. are;

The Universal Declaration of Human Rights, 1948

The International Covenant on Civil and Political Rights (ICCPR) (1966)

The International Covenant on Economic, Social and Cultural Rights (1976)

The Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW), 1979

The Convention on the Rights of the Child (CRC), 1989

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979

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