Kenya has performed fairly well in latest global rankings on country response to child sexual exploitation and abuse but experts are warning the statistics may be a façade to a deeper underlying crisis waiting to explode.
In the latest “Out of the shadows Index 2022” ranking researched and developed by the Economist Impact, Kenya came position 21 out of 60 countries, with South African being the only African nation that beat it.
SA was number five after UK, France, Sweden and Canada in that order of best countries for children to live.
Kenya floored countries like Malaysia, Italy, China, Russia, Nigeria and Argentina. Cameroon tailed at position 60 as the worst place for a child to live in the context of the report, followed by Niger and Uzbekistan.
In prevention of child abuse rankings, Kenya dropped by one point moving to position 22 in a race won by Canada and once again, shamefully led from the bottom by Niger followed closely by Cameroon.
In response rankings, Kenya went back to position 21 of the 60. Indonesia leapt from position eight in the overall ranking to lead this category. Once again, the good old Cameroon tailed, followed by Uzbekistan.
“Kenya currently has a robust policy framework that addresses child sexual exploitation and abuse. We have to commend the government for fast- tracking these policies in 2022, especially the revised Children Act (2022. However, a key gap is the lack of awareness among communities, civil society organisations, and government departments on these policies, Tsitsi Matekaire, Global Lead for Ending Sexual Exploitation at Equality Now says.
Out of the five categories that informed the assessment, Kenya ranked 5th in the national capacity and commitment category and 7th in the protective and legislation category out of the 60 countries.
In the same rankings, however, Kenya was ranked one of the poorest countries in terms of aligning its national laws to international human rights conventions for protection of children against sexual exploitation and abuse.
In this particular score, Kenya was the only country that scored less than 30 percent in terms of ratification of relevant international agreements on rights of a child. Sixty countries across the globe were sampled with France, Italy and Peru presenting the “best environment.”
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The determination was arrived after weighting the average of the countries implementation of the Convention on the Rights of the Child and its various optional protocols. They also considered other international human rights instruments relating to children affairs.
“Despite the widespread ratification of international conventions, the level of harmonisation between domestic law and international standards remains a challenge,” says the report researched and developed by the Economist Impact.
The CRC is the most popular convention which enjoys a near-universal ratification. All countries, except the US, have ratified it. The report cites the Convention provisions on juvenile justice as a case in point where Kenya has failed.
While the Convention only requires states to establish a minimum age of criminal responsibility, its Committee on the Rights of the Child has since recommended that states set this minimum age to at least 14.
For the longest and even now, Kenya’s penal code provided for a minimum age of criminal responsibility of eight years. It also provides that a person under age of 12 is not criminally responsible for their actions unless it is proved that they had the capacity to know what they were doing.
However, Section 221 of the Children Act 2022 which was signed into law last year raises these two thresholds to 12 years for the minimum age for criminal responsibility and below 14 years for qualified responsibility.
In its 2019 recommendation, the CRC committee complained of “unacceptably low” minimum age of criminal responsibility, insisting on the 14 years, two above Kenya’s 12.
“Documented evidence in the fields of child development and neuroscience indicates that maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 13 years due to the fact that their frontal cortex is still developing,” the committee observed.
Because of this, children at that age are unlikely to understand the impact of their actions or to comprehend criminal proceedings. They are also affected by their entry into adolescence which is characterized with rapid brain development.
The committee also condemned the state practice, as Kenya’s, where there are two minimum ages (12 and 14 for the Act, 8 and 12 for Penal Code), and urged states to set one appropriate minimum age. It said this dual threshold leaves much to the discretion of courts resulting in discriminatory practices.
“Initially devised as a protective system, it has not proved so in practice,” the committee said.
Kenya counts in other areas of positive trends. For instance, it is included in 96 percent of sampled countries who have criminalised production of sexually explicit material containing a child, in Children Act 2022.
Kenya has also enacted a minimum age of consent for sex at 18 and has stuck with it despite intense pressure for review. Critics argue the limit places children under 18 who engage in consensual sex on the receiving end, especially boys many who are languishing in jails on defilement charges.
The principle behind the age of consent, however, is the appreciation that children and adolescents do not always fully understand the consequences of engaging in sex at a young age. The provision therefore protects them from possible abuse and from unwanted consequences.
On implementation of policies and programmes to combat the scourge of child sexual exploitation abuse, Kenya did not score so well. Of the 60 countries, it came a distant 45.
In this score, countries were gauged on among others whether they had education programs aiming to help children understand and respond to sexual abuse, whether they produced guidance for parents on strategies to prevent child sexual abuse and whether they involved healthcare providers in identification and referral for perpetrators of violence against children.
The study noted appalling lack of school-based education on dating violence. Dating violence is a type of intimate partner violence between young people in a social or romantic relationship.
“Programmes addressing this type of violence, which work to instil healthy relationship dynamics and reduce victimisation amongst peers, are found in 58% of the countries assessed,” the report said.
Similarly, only four countries- Canada, UK, Germany and Sweden- had specific running programmes for people troubled with sexual thoughts about minors. In Kenya, stories of elder persons targeting minors for sexual abuse are rife and dissipate as soon as suspects are arrested.
The study found that most countries sampled had a good score on short term responses to child sexual exploitation and abuse such as helplines to report abuse. The countries, however, had very little long term support system for victims and survivors.
On justice processes for children, the study found that across the world the risk of re-traumatising the child while in the process of seeking justice were too high. While many countries, including Kenya, provided for specialised mechanisms to provide justice for children, they were more in paper than in practice.
“A significant number of countries (80 per cent) have also established child-friendly court processes, but these vary in specificity and alignment with internationally recognised best practices,” the report says.
Some countries like Guatemala are way ahead. Children give evidence only once. Their statement is then to be used in the following stages of the process, without limiting their right to participate and be heard.
“Questions addressed to children must always be made through a facilitator and moderated by a judge, to avoid re-victimising questions. All statements must be carried out in a way that avoids putting the child through unnecessary trauma,” report says.
Others like Albania insist that a child be accompanied by a person they trust. The child can also have a psychologist lead the process and attend the entire interviewing process, which must be carried out through closed circuit television.
Almost all countries sampled, 85 per cent, were found not to be in the habit of re-evaluating their justice system performance in adjudicating child abuse cases.