Still not Safe: More Needs to be done to Protect Children from Abduction and Kidnapping
In the year 2009 and 2010, there was an upsurge on kidnappings and abductions, where children were the main target. The latest reported incident is the kidnap of a boy where the kidnappers have been demanding Ksh. 50 million in ransom. (Daily Nation, Gang that wanted Sh. 50 million free boy, March 25, 2011 at page 5). While the main motivation for kidnappers and abductors has been ransom from the families of the victims in return for their safe return, there have been incidences of loss of life in the process despite families losing money paid to the kidnappers. We all remember the widely covered saddening and shocking kidnapping revelations by the self confessed killer, Phillip Onyancha whose victims were mainly children and women. Among his victims was Anthony Njirwa, a 9 year-old boy whose decomposed remains were found in the forest near Lenana School. (Daily Nation, June 7, 2010). Another disappearance of 9 year-old Nathan Baraza had been an unresolved case until the killer took police to one of his hideouts in Lake Naivasha where the police, even though they have not yet recovered the body, recovered sandals believed to have been worn by the boy when he was lastly seen. (Daily Nation June 7, 2010, p.56, ‘ Police unmask kidnap gang’; Daily Nation June 10, 2010, pp. 1,6,8-9; The Standard June 10, 2010, pp. 1,8-9, ‘Shock of Kenya’s serial killer.’). More remains to be unearthed.
Children have been known to disappear on their way to/from school, from playgrounds in their neighbourhoods, on their way to/from the local shop and even from their homes. These happenings remind us of the chilling reality: there is no safe place for children. Children have been known to have been lured by a neighbour, a family acquaintance, a worker for the family and even house helps. On Sunday 27th March, 2011, it was reported in the news that a house help had disappeared with the two children of her employer. (Citizen, Sunday Live, 28th March 2011, 9.00 pm news). This presents a great challenge to guarantee fool-proof protection for children since kidnappers/abductors are on the prowl in the very environment surrounding a child’s life.
Kidnappers use the families’ vulnerability and fear to get money from them with promise of safe return of their children. This is illustrated in many cases as in the case of 15 year old Eugene Nelson Mandela Ochieng who was kidnapped in the while company of his father in Saika Estate. The kidnappers demanded Sh. 1 million for his release. (Daily Nation, June 30, 2009, ‘Kidnappers demand Sh1m as they seize schoolboy) In a follow up story, Nelson was found unhurt in an abandoned building in Dandora’s Juakali area Nairobi. In some cases, families have discreetly heeded to the kidnappers’ threats and secretly paid the requested ransom without involving the police. This is either because they are pessimistic of police rescuing their relatives or they act out of fear that the kidnappers might harm the victims if they realize that the police are on their tracks. (The Standard October 10, 2009, ‘Horror as kidnappers are on the loose.’)
The kidnap or six-year-old Sudanese boy Emmanuel Agwar Adar in Komarock in September 2009 for instance points to the brutality of kidnapping. The boy was abducted while playing outside his parent’s home after which his captors demanded KES 500,000 in ransom which the family did not pay. The kidnapers eventually killed him and dumped his mutilated body near his grandmother’s house. There are instances where children disappear and are later found dead and nothing is demanded from their parents. The latest of such incidences involves a four year old in Naivasha who went missing for three days and his body found dumped in a pit latrine in unconfirmed circumstances surrounding his death. (The Standard, March 22, 2011, page 25, “Police, residents differ as child’s body found in pit.”)
As a result of increased insecurity in Kenya, guaranteeing safety for one’s child becomes a challenge. As much as parents would want to allow their children to move and play freely, there is no one to trust anymore and parents and guardians need to ensure a constant watch over their children. Those entrusted with the care of children such as househelps, and teachers in the course of the day on the other hand must not let them out of sight. A bigger challenge arises when parents leave their children in the hands of people they barely know.
Need to Bolster Legal Protection for Children from Kidnapping and Abduction
- The Children Act is the primary legislation in Kenya concerned with the rights and protection of children. Regarding protection of a child from kidnapping and abduction, the Act in section 13 recognizes the rights of a child to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person. However, the Act falls short of criminalizing the contravention of these rights as it does not prescribe an offence. The resort to this gap is either a provision in another statute or section 20 on general penalties which is an imprisonment term not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.
- The Sexual Offences Act only comes close in the protection of protection of children from child trafficking for purposes of sexual exploitation in section 13.
- The Penal Code is currently the most comprehensive in as far as prescribing kidnapping and abduction is concerned.
Section 254 defines kidnapping from Kenya as conveying any person beyond the limits of Kenya without the consent of that person, or the consent of a person who is legally authorized to consent on behalf of the kidnapped person such as a parent or guardian.
Section 255 prescribes the offence of kidnapping from lawful guardianship as the taking or enticing of a minor male of under fourteen years or a minor female of under sixteen years of age or a person of unsound mind, out of the keeping of a lawful guardian without the consent of the guardian.
Section256 defines abduction as inducing a person by deceitful means or compelling a person by force to go from any place.
Kidnapping a person from Kenya or lawful guardianship is punishable by felony and is liable to imprisonment for seven years.(Section 257)
Kidnapping or abducting a person for murder, or to dispose of the kidnapped person as to be put in danger of being murdered, is a felony punishable by imprisonment of ten years. (Section 258)
Kidnapping or abducting a person with intent to secretly and wrongfully confine that person is a felony punishable by imprisonment of seven years(Section 259)
Kidnapping or abducting a person so as to subjected or put the kidnapped person in danger of being subjected to grievous harm, slavery, or unnatural lust is a felony punishable by imprisonment of ten years.(Section 260).
Wrongful concealing or keeping in confinement of a kidnapped or abducted person is a felony punishable in the same manner as if the person committing the offence had kidnapped or abducted a person with the same intention, knowledge or purpose (section 261)
Kidnapping or abducting a child under the age under the age of fourteen years with the intention of taking dishonestly any movable property from the child is a felony punishable by imprisonment of seven years (Section 262)
General wrongful confinement of person is a misdemeanour punishable by imprisonment term of one year or a fine of fourteen thousand shillings. (Section 263)
The above highlights show that as much as minimum legal protection is provided for concerning kidnapping and abduction, the same do not meet the optimal standards for the following reasons:
- The provisions and prescribed sentences are lenient as for instance the offence of kidnapping or abducting a person for murder, or to dispose of the kidnapped person being punishable by imprisonment of ten years. Some jurisdictions provide for different types and levels of kidnapping based on for instance the period and purpose of kidnapping. In New York for instance, the law provides for first degree kidnapping which attracts a higher penalty than second degree kidnapping which lacks the aggravating circumstances of the former.
- The law in defining an offence ought to be alive to the impact of an offence on the victim, so that the accompanying penalty is alive to aggravating circumstances gauged on such impact with the effect of enhancing the penalty accordingly. The Penal Code therefore falls short of this reality since as pointed out immediately above, where the offence is carried out to cause death or result in grievous harm of the victim. Yet, the same Penal Code prescribes for death sentence for the offence of murder (section 202), life imprisonment for the offence of manslaughter (section 203), life imprisonment for causing grievous harm (section 231).
- Further, the Penal Code ought not to be restrictive on kidnapping from Kenya, but rather kidnapping within and beyond national borders. This has been a notable progression in other jurisdictions that Kenya needs to move towards.
- It is also important that the law should not be only concerned with arrest of the offenders but also should go further and provide for the confiscation and forfeiture of proceeds of crime. With offences involving or concerned with money as kidnapping to attract ransom, the law should take cognizance of the need to deal with proceeds of crime.
The Children Act also needs to be bolstered with penalties commensurate to the offences created as opposed to a general penalty. Due to this gap, the Act does not offer adequate legal recourse where there are deficiencies in other pieces of legislation
Meeting the Challenge
The police have reported a reduction in the cases of kidnapping and abduction. According to the police, 12 kidnap rings have been cracked. 10 kidnappers shot dead, 20 others arrested and 10 still at large. Police reports also show a reduction in reported cases, with 65 abduction cases reported last year in comparison to 84 cases reported in 2009.
However, we must not rest in our laurels on the consolation of the general lull experienced in the incidences of abductions and kidnaps. Effective implementation of the law will only be realized if those who are contravening the law are apprehended and prosecuted. The offices in charge of security therefore have a hard task ahead to move with speed and catch up with the evolving tactics of criminals. The use of advanced technology has been a double-edged sword, providing an opportunity to criminals who have been using especially mobile telephony to demand and extract ransom from their captives’ families while it also provides an avenue for police, with the help of service providers to track down the criminals in certain cases.
We therefore call upon the security and prosecution officers to be vigilant in both investigations and prosecutions, failure of which will result in emboldening criminals to keep advancing with their illegal acts having no fear of repercussions. It has not been lost to the public eye that perhaps with more vigilance by police, more lives could have been saved.
Application of technology in this age therefore becomes a necessary tool for police, other security officers and the public to ensure timely reporting and improve the quality of investigations.Bearing in mind the nature of the crimes of kidnapping and abduction, Kenya needs to urgently put in place an effective and well resourced rapid response mechanism. This is a channel that will not only provide quick access to reporting cases of missing/unaccounted for children but also activate immediate investigation based on information provided at the time of reporting. Many are times when reports of missing children are made when crucial time has passed, giving kidnappers and abductors a wide berth to cover their tracks. As a result of delays, victims suffer harm and even death in the hands of their captors. Speed is key in dealing with cases of abduction and kidnap. The National Child Help Line and the National Crime Research Centre are a good place to start for Kenya so that the same may be upgraded as a centre for information on missing children. For the rapid response mechanism to work there is need for effective coordination among different players from the reporting channels, the media, the police and the members of the public. In this line, Kenya can borrow from successful initiatives in other countries and customize solutions that are responsive to local circumstances.
Sharing of information between the public and relevant authorities is a key element in taking preventative measures against abduction and kidnap. Often families in fear of causing harm to their kidnapped relatives choose to handle the case without involvement of police. Such measures may only offer immediate solution for the family when the victims are released. In the long run, however, more problems arise since criminals continue to use this bait on other vulnerable members of the public. The security offices also need to share vital information with the public to be alert of certain persons or behaviour that would make one fall in the hands of criminals.
We cannot overemphasize the need for proper and consistent documentation of persons by the government. The police need to maintain a profile of all criminals in an easily accessible format so as to be on the lookout for alerts concerning suspected criminals. This will help overturn such consequences as repeated commission of crime as is the case with the serial killer. In a bigger front, the government ought to maintain a databank of information that contains all relevant information concerning a citizen. This is the information that would be useful in providing a background for instance of prospective employees who will be working with or close to children or checking on the background of criminals.
Parents, guardians and all persons who are charged with the responsibility over a child at any given time need to be more alert. Parents need to keep checking on the whereabouts of their children even when in the hands of persons entrusted with their care during their absence. Schools on the other hand have the responsibility of guaranteeing the safety of children in the period that they are in their care. It is also important that all those working in schools and other institutions working with children are persons who do not pose threat to the children. Parents should also avoid situations that make children vulnerable to attacks such as sending them to faraway distances, or during risky hours of the day or leaving them unaccompanied. It is therefore risky to let children walk to and from school unaccompanied by a person entrusted with their care as abductors and kidnappers are on the prowl waiting on such opportunities.
Alive to the dangers that lie everywhere, children should be involved in ensuring their own security. It is important that children are given information that will help them to protect themselves and not be easily lured by criminals. For instance, children should learn that it is dangerous to walk alone, to accept gifts by persons whether or not they are strangers; children should not agree to accompany anyone who requests them to do so without the knowledge and authority of their parents, just to mention a few precautionary measures. Anyone who is therefore charged with the care of a child should make sure that children are provided with critical information that they can employ when in threat of danger, such as, name of their parents/guardians/teacher(s); location of their home/school/church; a telephone number of their parents/guardians including the helpline 116; among others.
Conclusion
We acknowledge that it is a challenge to guarantee fool-proof protection for children, a situation which is made more difficult by the fact that abusers are those who are close to the children. More importantly, however, is the need to heighten preventive and protective measures so as to narrow the berth that criminals are currently enjoying and which has largely reduced response to be reactive, costing the lives of innocent children. We urge the cooperation of all to address a vice that reeks of deeper societal problems.
Budgeting for Children and the Duty to Allocate Resources: Learning from the Education and Food Crises
Introduction
Kenya has recently been dealing with two critical issues that intimately affect children. Firstly, the food crisis which saw millions of the population going hungry and reported cases of death due to lack of food. The grisly pictures in the media however, elicited massive support from the public that responded to address the crisis. This is not the first time that the country is going through the food crisis, only that it was more extensive. The government was not prepared to deal with the crisis, since the response was reactive, that could not arrest possibilities of loss of life and large-scale hunger.
Secondly, is the issue of education of children resulting from the recent teachers’ strike. The contention between teachers and the government concerned employment of teachers to address the biting shortage. Following the introduction of the free primary school programme, there was an upsurge of enrollment of children in schools which resulted in a huge strain on the teaching personnel. The government has not scaled-up employment of teachers despite persistent calls to address the acute shortage. The estimated average teacher: pupil ratio in schools in Kenya is 1: 50 while there are schools that have a ratio as high as 1: 100; against the internationally recommended ratio of 1: 35. The employment of teachers on contract was introduced as an immediate measure to deal with the shortage. This was initially strongly opposed by the teachers’ unions but eventually accepted on the premise that it was on a temporary basis and more concrete solutions would be taken up. However, things took a turn when the government is said to have diverted funds meant for teacher’s employment to the Ministry of Defence. According to KNUT, the country has a deficit of 79,000 teachers. The government’s initial reaction to the teachers’ demands was that there are no funds.
Legal Obligation of the State to Fulfil a Right
The government has a legal obligation as defined in international legal instruments to which Kenya is a party and national laws, particularly the Constitution of Kenya as follows:
- Article 4 of the International Covenant on the Economic, Social Cultural Rights of 1966 and Article 4 of the Convention on the Rights of the Child: These Treaties call on state parties to take steps, especially economic and technical and to the maximum of its available resources with a view to achieving progressively the rights recognized by the treaties. This obligation has been broken into three elements of:
Positive action to realize the right;
Resource allocation; and
Progressive realization
besides the underlying elements of an obligation of a state to protect, respect and fulfil the right to adequate food and education.
- Article 11 of the International Covenant on the Economic, Social and Cultural Rights provides for the right of everyone to an adequate standard of living, including adequate food, clothing and housing and to the continuous improvement of living conditions. This obligation with regard to right to food has been translated to two obligations:
To facilitate people to realize the right to food by their own means and
To provide the minimum amount of food, where people are not able to access food on their own. This calls on the state to address vulnerability, and it is under this category that children fall.
- The right to education is also defined in Article 13 of the International Covenant on the Economic, Social and Cultural Rights
- The Convention on the Rights of the Child in Article 28 relates the right of a child to food to the responsibility of the state to ensure attainment of the highest standard of health
- The Children Act, 2001 in Section 4 vests the duty to ensure the survival and development of a child on the government and the family. It also restates the principle of the best interests of the child. Section 7 provides for the right of every child to education.
- The Constitution of Kenya also underscores the principle of the best interests of the child in Article 53(2). By recognizing economic and social rights for the first time, the Constitution in Article 43(1)(c) provides for the right of everyone to be free from hunger, and to have adequate food of acceptable quality. The right to free basic and compulsory education is also provided for in Article 53(10 (b). The state has a further obligation to provide social security to persons who cannot provide for themselves and their dependants. This opens up an opportunity for child support and maintenance where the same has not been secured from the parents or guardians.
Towards Realization of a Right: Duty to protect, respect and fulfil
A right therefore creates an obligation on the part of duty bearers. Despite the categorization of human rights, all rights are inter-related and mutually complementing. As such, non-fulfillment of the right to food encroaches on the right to life, since life is lost where basic needs are not met. Similarly, we have encountered other impacts of lack of food including the absenteeism in schools as children are forced to seek means for sustenance. Thus, to realize the rights of all full, a holistic approach needs to be adopted.
Duty of the government to prove lack of resources
The obligation to realize human rights is contingent on the availability of resources. The Constitution is categorical in Article 20(5) that the burden to prove non-availability of resources to realize a right lies on the state, not an individual. For the government therefore to simply state that there are no resources, without actively proving the same, is merely wishing away an obligation to prove that and this amounts to an abdication of duty.
Prioritization of resources
On prioritizing resources to needs, the Constitution in Article 20(5)(b) states that the state has a duty, in appropriating resources, to ensure widest possible enjoyment of a right having regard to the prevailing circumstances including the vulnerability of particular groups who mostly include children. The diversion of the education funds to the Defence Ministry negates the government’s argument that there are no resources. The unpreparedness to deal with the food crisis, as evidenced by reactive responsive measures points to a lack of prioritization of resources bearing in mind prevailing circumstances and vulnerable groups. The fact that children can die or risk dying due to starvation is a serious indictment on planning on the part of the government.
The right to life is inherent in every person, and when that right is threatened by failure of a duty on the part of the government, lack of respect for life is brazenly apparent. Before the drought hit the country, Kenya had been aware of the impeding drought due to the prolonged failed rains among other factors. This had been preceded by long rains that caused havoc through floods. Despite this warning, no attempts were made to harvest the water to reserve for dry periods. Despite this warning, Kenya was caught up again, without plans for protecting its population from starvation.
Progressive realization of human rights
The Constitution again lays out an obligation on the State to manifest progressive realization of human rights. This principle is alive to the fact that certain rights may not be achieved immediately or over a short period of time. This may be due to resource constraints, but in such instances, the state is required to ensure that it achieves the best it can within its means. It also requires that despite the various constraints, the realization of the rights should be gradually progressing over time. This is therefore to be realized through increased commitment of resources to ensure that over time, the right is achieved.
The fact that Kenya faces drought thus at the risk of being in similar circumstances requires adoption of strategies that minimize the impact on the population when drought hits. Since this is not a new problem, Kenya ought to be at a level where long-term measures have been adopted to avert future crises. With regard to education, the fact that free education has been rolled out, means, under this principles, that the education so provided should not be compromised since free education must also maintain high quality standards. Failure to preserve quality, amounts to a ‘claw-back’ approach that would also lead to wasted resources if quality education for children is not assured. Provision of free education in this context needs to be complemented by appropriate resources, human, financial and infrastructural resources. Furthermore, the right to education is not only basic education but basic, quality education. Quality is realization by investment of appropriate resources.
An obligation cannot therefore entail measures that regress on the intended realization, and failure to provide resources for the education sector, is, in this instance, regressive, and is not a manifestation of the duty to ensure progressive realization. In essence, the principle rules out deliberately regressive measures which impede the realization or the goal to realization of a right. Recurrence of a violation or non-realization of a right; for instance recurring instances of starvation is an example of non-adherence to the principle. Thus, even in the context of strained resources, they should be targeted to the vulnerable. The same approach should have been used in addressing the food crisis which is a compounded problem that impacts on other rights.
Consideration of the best interests of the child in state planning
The principle of the best interest of the child is entrenched in the Children Act and the Constitution, further raising the benchmark for ensuring the protection of the rights of the child. The influence of international human rights standard is positively evident. This principle requires that the best interests of the children be the primary consideration in all actions whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Kenya is yet to ensure that children are protected from hunger and that their food security is guaranteed. The fact that women and children bear the brunt of violence, conflicts and other calamities and cases of children dying of hunger point to the fact that the country is yet to accord the principle of best interests the primary attention it deserves. Before the reallocation of education funds to the Defence Ministry, the primary question ought to have been: is this in the best interests of a child?
Conclusion
Further, through an appreciation of the interdependence and indivisibility of human rights, the government can fully appreciate the importance of integrated and sector wide approaches in setting aside budgetary allocations based on priorities. Budgeting plays a primary role towards the achievement of rights of children. Thus, in all planning process affecting children and for the various sectors, the planning authorities ought to internalize the principle of the best interests of the child to guide prioritization of resources for children and progressive realization of the rights of children. Planning for children should not be seen as a burden on resources, rather as an investment in the future of the country for sustainability. Being alive to these concerns also means that the issue is not forgotten once the crisis-moment passes, rather, long-term measures are adopted to avoid a recurrence.
Press Releases
(Jan. 15, 2012) On 19th December 2011, the United Nations General Assembly adopted a new Optional Protocol to the UN Convention on the Rights of the Child establishing a complaints procedure for violation of children's rights.
Mishandling of Education Funds: the Ultimate Losers are Children
(Nov. 16, 2011) Recently, the Finance Ministry announced that the government had decided to refund donors of money that was lost through misappropriation of funds meant for the Education Ministry. Increased Suicide Cases
Increased Suicide Cases among Children Portend Deeper Underlying Problem
(Sep. 21, 2011) Late last year and early this year, we encountered a string of reported cases of children committing suicide for various reasons. In one instance, two girls committed suicide over poor KCPE results.
Budgeting for Children and the Duty to Allocate Resources: Learning from the Education and Food Crises
(Sep. 21, 2011) Kenya has recently been dealing with two critical issues that intimately affect children. Firstly the food crisis which saw millions of the population going hungry and reported cases of death due to lack of food. The grsily pictures in the media, however, elicited massive support from the public that responded to address the crisis.
Still Not Safe: More Needs to Protect Children from Abduction and Kidnapping
(Mar. 29, 2011) In the year 2009 and 2010, there was an upsurge of incidences of kidnappings and abductions. The latest reported incidence is the kidnap of a boy where the kidnappers have been demanding Ksh. 50 million in ransom.
Assent to and Implementation of the Law to Combat Human Trafficking an Urgent Necessity
(Sep. 24, 2010) The CRADLE expresses concern the continuing delay in assenting to the law to address human trafficking in Kenya. Kenya continues to be a thriving ground for trafficking in persons especially children.
TSC Guidelines on Protection of Pupils/Students from Sexual Abuse: A Good Step but not Enough
(Jun. 21, 2010) The issue of sexual abuse of children by teachers continues to be a concern as it has been severally highlighted in the media and encountered by The CRADLE in the course of its work on child protection.
Mishandling of Education Funds: the Ultimate Losers are Children
Recently, the Finance Ministry announced that the government had decided to refund donors of money that was lost through misappropriation of funds meant for the Education Ministry. The Finance Ministry has tried to justify this on the basis that the refunded money comprises of costs that were ineligible. The misappropriation of the education funds is a manifestation of how the rights of the child are violated on account of poor governance. Since the revelations of the misappropriation of the free education funds, there have been poor attempts at bringing the persons responsible to book. The decision by the government to refund the money is on one hand admission of wrongdoing and on the other hand, an unwillingness to deal with the real issue and in particular, protecting the wrongdoers.
The fact that the Ministries of Finance and Education do not agree on the handling of the issue is a lot telling. If indeed what the Ministry of Education represented is true, that the monies that were refunded could have been fully accounted for; then the real truth behind the issue is yet to be uncovered. It should not be lost to the attention of all that prosecution is yet to be commenced of all persons who misappropriated the funds as documented in the audit report that was made public earlier in the year. The government is supposed to be the guardian of the rights of the child. The Children Act (which mainstreams international standards on the rights of the child) provides in Section 4 that
Every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child.
This duty is also reiterated under the Convention on the Rights of the Child. Furthermore, the government has the obligation to state to protect, respect and fulfill the rights of the child, in this case, the right to education. Specifically, this duty, as stated in Article 4 of the International Covenant on the Economic, Social Cultural Rights of 1966 and Article 4 of the Convention on the Rights of the Child entails the duty to take steps, especially economic and technical and to the maximum of its available resources with a view to achieving progressively the rights recognized by the treaties. Furthermore, Section 7 of the Children Act provides that every child is entitled to education the provision of which shall be the responsibility of the Government and the parents. This responsibility includes management of resources towards the realization of that right. When the government therefore decides to refund money due to misappropriation, it amounts to a breach of trust and responsibility to the child.
The cost of corruption on the rights of the child is often ignored, yet the child is the ultimate loser when the funds for realizing their rights are not spent according to the intended purposes. The government therefore fails in its duty since an obligation cannot therefore entail measures that regress on the intended realization.
A question that is normally and certainly not in the mind of decision makers in this issue that directly concerns children is the consideration of the best interests of the child. Guided by this principle, the manner of handling the money would have ensured that in no way do children miss out on opportunities presented by the donor support of the education sector. Furthermore, the ideal process would require that persons responsible for appropriating monies to ineligible uses are held responsible and on top of prosecution, be made to pay back such monies. Government authorities ought to internalize the principle of the best interests of the child to guide prioritization of resources for children and progressive realization of the rights of children.