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National law and policies on minimum ages – Kenya

 

According to the CRC, laws and policies must be directed to the best interest of the child. This is especially so in provisions that aim to safeguard the child against exploitation or an early end to childhood, i.e. in the instances where children are most vulnerable and at risk. Yet such safeguards are often ignored and different areas of legislation found to clash with each other. What happens if the age for the end of compulsory education is 14 but the minimum age of employment is 12? Or vice versa? What if a girl can be married before school leaving age - will she then return to school? And who ensures schooling in prisons, when in reality education should protect children from incarceration?

 

 

 

 

With 192 parties to it, the Convention on the Rights of the Child (CRC) is the most widely ratified UN treaty. Each State Party must submit periodic reports to the Committee on the Rights of the Child, which uses this process to monitor State compliance with the treaty. The vast majority of the information on minimum ages presented on these pages is taken directly from such reports (occasionally, if these failed to include relevant information concerning minimum ages, other components of the reporting process - such as the Committee’s Concluding Observations - were consulted). States Parties’ reports constitute self-assessment by governments and are therefore authoritative sources, emanating directly from those empowered to make decisions. Using this type of sources also permits a range of actors to hold governments accountable for the standards which they report under the CRC. The sections of these reports have been reproduced faithfully, and readers are encouraged to make use of the full original text, available here.

 

Individual country reports are often written by diverse parts of the government, and frequently run to more than 100 pages. Moreover, within some states’ legal systems there are various recognised sources of law, which frequently generate conflicting minimum ages. Distilling precise numbers out of such documents is therefore a precarious task. While we would encourage cross-country comparison, we would also stress the danger that those countries with a more honest engagement with the reporting process might come off worse when compared with those which would mis-represent the degree of compliance, whether wilfully or not. For a full explanation of the principles that guided us in our analysis, please visit the introductory pages here.

 

Sources:
2nd periodic report: CRC/C/KEN/2, 4 July 2006
Initial report: CRC/C/3/Add. 62, 16 February 2001
 
Minimum age for the end of compulsory education
From 2nd report
69. Section 7(2) of The Children Act states that every child is entitled to free basic education, which shall be compulsory. There is no provision in The Children Act setting the minimum age for commencement and end of compulsory basic education and neither does the law set out a minimum legal age for end of compulsory education.
From initial report
Information unavailable
 
Minimum age for admission to employment
From 2nd report
66. A Task Force on Labour Laws has come up with recommendations on children in employment in a draft Employment Bill. The Bill, which seeks to amend labour statutes in Kenya, has provisions on protection of children including protection from the Worst Forms of Child Labour. This is in line with the Optional Protocol on the CRC on children participating in Armed Conflict and the ILO Conventionand corresponding Recommendation.The Bill defines a child as a person below the age of 18 years, in harmony with The Children Act. However it allows employment of children from the ages of 13 to 16 years for light work and defines those of 16 to 18 employable. The Bill does not clearly define the parameters for this employment. It does not define light work and does not provide protections for children in such employment.
67. The Employment Act (Cap 266) prohibits the employment of children under the age of 16 in industrial undertakings unless they are under apprenticeship or training purposes.
From initial report
94. Under the Employment Act (Cap. 226, Laws of Kenya), the minimum age for employment in an industrial undertaking is 16. This restriction does not apply to employees who belong to the same family as the employer -- unless the undertaking is dangerous to the life, health or morals of the persons employed. A child under the age of 16 may also be allowed to undertake industrial work if he/she is an apprentice under the Industrial Training Act (Cap. 237, Laws of Kenya). There is no legal minimum working age in the agricultural and services sectors, and for domestic work. Kenya ratified ILO Convention No. 138 on Minimum Age for Admission to Employment in 1979. That convention specifies 15 years as the minimum age for employment. The provision is linked to the number of years required for the completion of compulsory education. […] 18 […] is the minimum age required for a person to enter into a legal contract. Under the Trade Unions Act (Cap. 233, Laws of Kenya), children below 16 may not participate or be represented in trade unions.
 
Minimum age for marriage
From 2nd report
63. The Children Act indirectly defines the minimum age for marriage as 18 years by prohibiting the marriage of any child. However, there are other statutes in place that have different minimum ages for marriage namely, The Hindu Marriage and Divorce Actand the Marriage Act.These statutes provide that the minimum age for marriage for a girl is 16 and minimum age of marriage for a boy 18. Customary law and Islamic law, Sharia, allow for persons under the age of 18 to be married.
101. Early marriage is still a common occurrence in this country owing to customary laws that allow marriage of children especially after certain rites of passage such as circumcision. After circumcision, many girls are encouraged to leave school and get married. The inconsistent laws mentioned under the legal and policy frameworks compound the situation.
From initial report
93. For purposes of marriage, several statutes are applicable. The Marriage Act (Cap. 150, Laws of Kenya) sets the minimum age of marriage for girls at 16 years, and 18 years for boys. In both cases, parental consent is required. This applies also to marriage under the Hindu Marriage and Divorce Act (Cap. 157, Laws of Kenya). In Islamic law, a person is free to marry on attainment of puberty. Under customary law, some communities deem a person ready for marriage after he/she undergoes the relevant initiation rites or after puberty.
 
Minimum age for criminal responsibility
From 2nd report
64. The legal age of criminal responsibility is 8 years according to the Penal Code. Between the age of 8 and 12 years, a child is presumed not to be criminally responsible for his or her actions unless it can be proved that at the time of doing the act or making the omission, the child had the capacity to know that he or she ought not to do the act or make the omission.
From initial report
485. Capacity to commit a crime commences at the age of 8 years. Between the ages of 8 years and 12 years, a child can be held liable for an offence if it is proved that he or she was aware of the offence. Furthermore, a child below the age of 12 years is presumed to be incapable of committing a sexual offence.
 
Sources:
2nd periodic report: CRC/C/KEN/2, 4 July 2006
Initial report: CRC/C/3/Add. 62, 16 February 2001