December 16, 2008

VII. Legal Framework

National and international law obliges the Kenyan government to protect the rights of all children, and specifically children living with HIV.

On the international level, Kenya is a state party to the major human rights treaties, all of which contain important protections for children. Kenya has ratified the Convention on the Rights of the Child (CRC),[326] the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[327] On the regional level, Kenya has ratified the African Charter on the Rights and Welfare of the Child[328] and the African Charter on Human and Peoples' Rights.[329]

On the national level, key protections are laid down in the Constitution and in the 2001 Children's Act.[330] The Children's Act aims to implement international law, by "[giving] effect to the principles of the CRC and the African Charter on the Rights and Welfare of the Child."[331]

International law provides important protections to children, including protection from discrimination, and the right to health, protection, and care. All actions undertaken by the State and by private institutions shall be done in the best interests of the child.

Protection from discrimination

The CRC protects children from discrimination of any kind "irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."[332] The Committee on the Rights of the Child has interpreted "'other status'... to include HIV/AIDS status of the child or his/her parents(s)."[333] The African Charter on the Rights and Welfare of the Child and other international treaties ratified by Kenya state a similar right to non-discrimination.[334]

The Kenyan constitution contains an anti-discrimination clause,[335] and the Children's Act provides protection against discrimination "on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status [emphasis added], race, disability, tribe, residence or local connection."[336] The 2007 HIV/AIDS Prevention and Control Act, which is not yet in force, contains a range of protections against discrimination on the grounds of a person's actual, perceived, or suspected HIV status.[337]

The child's right to the highest attainable standard of health

All children have the right to enjoy the highest attainable standard of mental and physical health under the CRC and the ICESCR.[338]

The ICESCR obliges states to take the necessary steps to ensure that health services are available, accessible, acceptable, and of good quality.[339] Availability comprises the availability of functioning healthcare services, medical personnel, and drugs, as well as safe water and sanitation. Accessibility means that health facilities should be accessible for everyone, without discrimination, and located within safe physical reach and economically affordable; it also comprises the right to seek and receive information on health services. Acceptability means that all health facilities need to adhere to ethical standards, including the principle of confidentiality.[340] The right to the highest attainable standard of health also imposes an obligation on states to take steps necessary for the prevention, treatment, and control of epidemic and other diseases.[341]

The child's right to health is further grounded in the CRC, which obliges states to take measures to diminish infant and child mortality, and to ensure the provision of necessary medical assistance and health care to all children, with an emphasis on primary health care.[342] The Committee on the Rights of the Child, in its General Comment on HIV/AIDS and the Rights of the Child, has emphasized states parties' obligations to "ensur[e] that children have sustained and equal access to comprehensive treatment and care, including necessary HIV-related drugs, goods, and services on a basis of non-discrimination."[343]

The child's right to enjoy the best attainable state of physical, mental, and spiritual health is also stated explicitly in the African Charter on the Rights and Welfare of the Child in language that is similar to the CRC.[344] Among other provisions, it stipulates that states parties must "ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care."[345]

The right to the highest attainable standard of health is subject to "progressive realization," under which states parties have a "specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of [the right]."[346] In doing so, states must guarantee certain core obligations as part of the right to health. These include, among others, ensuring nondiscriminatory access to health facilities, especially for vulnerable or marginalized groups; providing essential drugs; ensuring equitable distribution of all health facilities, goods and services; ensuring reproductive, maternal, and child care; taking measures to prevent, treat, and control epidemic and endemic diseases; and providing education and access to information for important health problems.[347]

The right to health care of internally displaced people is also explained in the Guiding Principles on Internal Displacement. They state that all wounded and sick displaced people shall receive the medical care and attention they require, without discrimination. Additionally, "special attention should also be given to the prevention of contagious and infectious diseases, including AIDS, among internally displaced persons."[348]

The right to health care is not enshrined in the Kenyan constitution, but is in the Children's Act of Kenya:

Every child shall have a right to health and medical care the provision of which shall be the responsibility of the parents and the Government.[349]

The law describes it as a parental duty to provide medical care and defines lack of such care as neglect.[350] The state, through its children officers and other appointed officers, also has direct responsibility of providing health care when a child needs it:

(1) If it appears to an authorized officer… that a child is in need of medical care, he shall forthwith take the child to a registered health institution, and such health institution shall provide the appropriate treatment, care and necessary hospital accommodation for the child.… (4) Any expenses incurred in connection with the medical treatment or hospital accommodation of a child under this section shall be defrayed out of public funds.[351]

The HIV/AIDS Prevention and Control Act explicitly protects the right to health of persons living with HIV, stating that "every health institution… shall facilitate access to healthcare services to persons with HIV without discrimination on the basis of HIV status." It also translates international law into national law, stipulating that the government shall, "to the maximum of its available resources, take the steps necessary to ensure access to essential healthcare services."[352]

The child's right to information, participation, and confidentiality in health care

The CRC provides for the child's right to "seek, receive and impart information of all kinds."[353] A child's views should be given due weight in accordance with the age and maturity of the child.[354] In particular, children and their parents should be informed and supported in the use of basic knowledge of child health.[355] The Committee on the Rights of the Child has stated that children "have the right to access adequate information related to HIV prevention and care, through formal channels… as well as informal channels."[356] This includes the right of a child to know his or her own HIV status. The Committee emphasizes that effective HIV/AIDS prevention requires states "to refrain from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information...."[357] Healthcare services provided should be responsive to the needs of children, according to the Committee,

[As] children are more likely to use services that are friendly and supportive, provide a wide range of services and information, are geared to their needs, give them the opportunity to participate in decisions affecting their health, are accessible, affordable, confidential and non-judgmental, do not require parental consent and are not discriminatory.[358]

Adolescents also have the right to participate "actively in planning and programming […] their own health and development."[359] If they are of sufficient maturity, informed consent shall be obtained from the adolescent her/himself, and parental consent shall not be necessary.[360]

At odds with the Committee's position (and as discussed above in Chapter VI), current guidelines on testing in Kenya require anyone under the age of 18 to seek parental consent for testing, unless they are married, pregnant, a parent, or engaged in behavior that puts them at risk. The pending HIV/AIDS Prevention and Control Act retains the same approach and would turn this guideline into national law.

International law requires states to protect children against "arbitrary or unlawful interference" with privacy,[361] and in national law The Children's Act protects the right to privacy in article 19. The Committee on the Rights of the Child has commented that states must protect the confidentiality of HIV test results, and that information on a child's HIV status may not be disclosed to third parties, including parents, without the child's consent.[362] Interpreting the parallel provision of the ICCPR, the Human Rights Committee further specifies that states must take effective measures "to ensure that information concerning a person's private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant." Individuals have the right to request rectification or elimination of files containing incorrect personal data or data collected or processed contrary to the law.[363] States parties should enact laws or regulations to ensure that confidential advice concerning medical treatment is provided to adolescents so that they can give their informed consent.[364]

Food as a determinant of health

The right to health embraces a wide range of socioeconomic factors that promote conditions in which people can lead a healthy life. This includes foodand nutrition.[365] Hence, states are obliged to ensure equal access for all to the underlying determinants of health, such as nutritiously safe foodand potable drinking water.[366] The Committee on the Rights of the Child has also stated that comprehensive treatment and care includes good nutrition.[367]

The right to food is also set out in the ICESCR and the Guiding Principles on Internal Displacement in a more general way. Everyone has a right to an "adequate standard of living," including "adequate" or "essential" food.[368]

The child's right to protection and care

Under the CRC, the state has an obligation to realize the child's right to an adequate standard of living.[369] At the same time, the convention also emphasizes the responsibilities of caregivers. Parents, guardians, and other persons in whose care a child finds himself or herself, have the "primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development."[370]

The CRC requires states to take all appropriate measures to protect children from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardians(s) or any other person who has the care of the child."[371]

The African Charter on the Rights and Welfare of the Child has similar protections against all forms of torture, inhuman or degrading treatment, neglect, injury, or abuse.[372] Children who are deprived of their family environment, or whose best interests do not allow them to remain in that environment, are entitled to special protection and assistance provided by the state. The state must ensure alternative care of the child, which can include foster placement, adoption, or placement in suitable institutions for the care of children.[373]

In Kenyan national law, under The Children's Act, children are "entitled to protection from physical and psychological abuse, neglect, and any other form of exploitation including sale, trafficking or abduction by any person."[374] A child that is, in his or her best interest, separated from his parents by a court order shall be provided with the best alternative care available.[375] When one of the parents dies, the remaining parent shall exercise parental responsibility alone or together with a testamentary guardian appointed by the deceased parent.[376] If both parents die, parental responsibility shall be exercised by a testamentary guardian appointed by the parents or court, or in absence of this, a relative of the child.[377]

Protection against arbitrary disinheritance

The Universal Declaration of Human Rights stipulates that "[e]veryone has the right to own property alone as well as in association with others"and "no one shall be arbitrarily deprived of his property."[378] The right to property is also protected under article 14 of the African Charter on Human and Peoples' Rights, which provides that "[property rights] may only be encroached upon […] in accordance with the provisions of appropriate laws." International law also requires that all rights be implemented in a nondiscriminatory way.[379]

Kenyan inheritance law contains more specific protections for children.[380] The Law of Succession Act states that when both parents die and do not leave a will, the property will be administered by an appointed adult until the oldest child is 18.[381] The law states that no one other than the administered person "shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person."[382] If there is no one else to administer the property, the Office of the Public Trustee is meant to ensure that the property is put in trust until the eldest surviving child reaches majority.[383]

[326] CRC, ratified December 20, 1990. The latest review on the national implementation of the rights of the child was conducted in 2007, Committee on the Rights of the Child, Second Country report, CRC/C/KEN/2, July 4, 2006; Committee on the Rights of the Child, Concluding Observations Kenya, CRC/C/KEN/CO/2, June 19, 2007.

[327] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, acceded to by Kenya March 9, 1984; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc A/6316 (1966) 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Kenya May 1, 1972; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, acceded to by Kenya May 1, 1972; Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948).

[328] African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), November 29, 1999, ratified July 25, 2000.

[329] The African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, acceded to by Kenya January 23, 1992, http://www1.umn.edu/humanrts/instree/ratz1afchr.htm (accessed  September 8, 2008).

[330] Constitution of Kenya, adopted 1963, amended 1999, http://www.usig.org/countryinfo/laws/Kenya/Constitution.pdf (accessed October 6, 2008), Chapter V; The Children's Act, art. 5.

[331] The Children's Act, introduction.

[332] CRC, art. 2.

[333] Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, CRC/GC/2003/3 (2003), para. 7.

[334] See ICCPR, art. 26; ICESCR, art. 2; CEDAW, art. 2. The UN Commission on Human Rights in 1995 concluded that discrimination on the basis of AIDS or HIV status is prohibited in that it is covered by the term "or other status" in the ICCPR and other UN human rights instruments. Commission on Human Rights, The Protection of Human Rights in the Context of Human Immune Deficienc y Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS), Resolution 1995/44, adopted without a vote, March 3, 1995.

[335] Constitution, art. 83.

[336] The Children's Act, art. 5.

[337] HIV/AIDS Prevention and Control Act, January 2, 2007, art. 31.

[338]ICESCR, art. 12; CRC, art. 24; CEDAW, art. 12.

[339] Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, E/C 12/2000/4, (2000), para. 12.

[340] Ibid.

[341] ICESCR, art. 12(c).

[342] CRC, art. 24.

[343] Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, para. 28. The committee notes, "It is now widely recognized that comprehensive treatment and care includes antiretroviral and other drugs, diagnostics and related technologies for the care of HIV/AIDS, related opportunistic infections and other conditions, good nutrition, and social, spiritual and psychological support, as well as family, community and home-based care."

[344] African Charter on the Rights and Welfare of the Child, art. 14.

[345] African Charter on the Rights and Welfare of the Child, art. 14, para. 2 (b).

[346] Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, paras. 30, 31.

[347]Ibid., paras. 12, 43, 44.

[348] The Office of the High Commissioner for Human Rights, Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, February 11, 1998, principle 19.

[349] The Children's Act, art. 9.

[350]Ibid., arts. 127 (2), 23. Article 23 defines parental responsibility.

[351] Ibid., art. 121.

[352]HIV/AIDS Act, art. 19.

[353] CRC, art. 13.

[354]Ibid. art. 12.

[355] CRC, art. 24(2)(e).

[356] Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the rights of the child, para. 16.

[357]Ibid.

[358] Ibid., para. 17.

[359] Committee on the Rights of the Child, General Comment No. 4: Adolescent health in the context of the Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/4 (2003), paras. 39(b), 39(d).

[360]Ibid., para. 32.

[361] CRC, art. 15; ICCPR, art. 17.

[362] Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, para. 24.

[363] CCPR, General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17), 08/04/88, para. 10.

[364]Ibid., paras. 32, 33.

[365] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest attainable Standard of Health, paras. 4, 11.

[366] Ibid., paras. 36, 43.

[367] Committee on the Rights of the Child, General Comment No. 3 (2003): HIV/AIDS and the rights of the child,  para. 28.

[368]ICESCR, art. 11, speaks about "adequate" food. The UN Guiding Principles on Internal Displacement, art.18, speaks about "essential" food.

[369] CRC, art. 27.

[370] Ibid., art. 27.

[371] Ibid., art. 19.

[372]  African Charter on the Rights and Welfare of the Child, arts. 16, 25.

[373] CRC, art. 20. This provision reinforces article 24(1) of the ICCPR, which guarantees every child "the right to such measures of protection as are required by his status as a minor."

[374] The Children's Act, arts. 13, 15.

[375]Ibid., art. 6.

[376] Ibid., art  27 (1).

[377] Ibid., art  27 (1).

[378] UDHR, art. 17.

[379] African Charter on Human and People's Rights, art. 14.; CEDAW, art. 2.

[380] Law of Succession Act, Chapter 160 of the Laws of Kenya, July 1, 1981, http://www.kenyalawreports.or.ke/kenyalaw/klr_app/frames.php (accessed June 16, 2008).

[381]Ibid., section 41. The court appoints the legal guardian or another individual to administer the estate under a procedure outlined in section 7 of the Fifth Schedule to the act.

[382] Ibid., section 45(1).

[383] Ibid., art. 41.