In Supreme Protection of the Child: Reflecting on SCORK’s Jurisprudence on Children Rights

 

The Supreme Court marked its 12^th year anniversary this November under the theme “Introspecting and Reflecting on the Supreme Court’s Jurisprudence: 12 Years of Defending the Constitution.”[1] Coincidentally, November marks the children service month in the Judiciary, where the Judiciary pays more attention in ensuring efficient and expeditious handling of children matters across all courts.[2] Moreover, November 20^th commemorated the International Day of the child.[3]  In light of this, I reflect on SCORK’s contribution to children rights in Kenya through its jurisprudence over its 12 years of existence. 

The Supreme Court has developed some sound jurisprudence advancing children rights in Kenya. These range from rights of children in conflict with the law to child custody and parental responsibility. All this in an effort to enforce and promote Article 53(2) of the Constitution: the best interests of the Kenyan child. Some of the case laws advanced are as follow;

1.      MAK v RMAA Petition No. E003 of 2022[4]

In this appeal, SCORK dealt with the legal concepts around child custody and parental responsibility in Kenya. In summary, the court called on the need to strike a balance between upholding the rights of parents and ensuring the best interests of the child as paramount.

The case arose from a dissolved marriage between the appellant and first respondent, who had a son together. The parties had entered into a parental Responsibility Agreement (PRA), granting the appellant custody and the respondent financial and visitation rights. The dispute intensified after the appellant relocated to the UK with the child, allegedly without the father’s consent. A series of conflicts followed, leading to criminal allegations against the appellant and a UK court decision awarding custody to the respondent. As per the UK decision, the UK court ignored the PRA, deeming it irrelevant to the child’s current circumstances, then. 

At the core of the issues in the Kenyan courts were the questions on; (i) whether PRAs from Kenya, as adopted as High Court Orders, could be disregarded by foreign courts, (ii) How courts ought to balance the child’s welfare against parental rights and responsibilities; and (iii) the extent to which Kenyan courts should defer to foreign judgements in matters involving Kenyan Nationals.

The Supreme Court in upholding the appeal, criticised the High Court and Court of Appeal on their reliance on the UK court’s findings. The Supreme Court emphasised that PRAs, once adopted as court orders, carry legal weight and can only be vacated under Kenyan law. The Court reaffirmed the paramountcy of the child’s welfare under Article 53 of the Constitution, the Children Act(repealed), and regional and international conventions. In doing so, the court held that parental rights and duties are continuous and could only be extinguished with valid legal grounds; and that the PRA in question remained binding as it had not been formally vacated and that none of the parents intended to do so. The supreme court proceeded to outline some factors to consider when determining the best interests of the child that included the existence and status of a PRA. The court noted that the best interest of the child is flexible and adaptable; and dependent on circumstances of the case.

This decision affirms the enduring nature of parental responsibility through PRA’s and emphasises a holistic, child-centric approach to custody disputes including; ensuring that foreign court decisions align with Kenyan constitutional values that include the child’s best interest. 

2.      CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others[5]

The Supreme Court in this matter addressed the tension between protecting children custodial rights and upholding media freedom. The case lays precedent to ensuring the best interests of children remain of greatest importance in all aspects affecting them. 

The appeal originated when media houses, the 1st to 4th respondents, published names, images and identities of minors facing arson charges. The publications revealed sensitive details, allegedly in the public interest- as this is an open justice principle, causing stigma, trauma and alienation for the minors. The minors, through the guardians, sought for redress for violations of rights to privacy and dignity under Articles 31 and 53 of the Constitution. 

Both the High Court and Court of Appeal dismissed the minors’ claims, holding that the public had a right to information and that the nature of their trial overrode their interests as children and did not limit the media’s freedom of expression. In dismissing the lower court’s decisions, the apex court held that Article 53(2) was a right in itself, and not a guiding principle.[6] That the best interests of the child applied in all actions affecting children. The Court found that the media violated legal and ethical provisions by revealing the minors’ identities. Specifically, the actions by the media entities contravened section 76 of the repealed Children Act and the Media Act(repealed), which prohibit publishing details that could expose a child in criminal proceedings. That in fact the freedoms of expression and information under Article 33 and 34 of the Constitution are limited to protect vulnerable groups like children, as stipulated under Article 24.

The court emphasised that the media outlets had the right to attend and report such trial stories involving children, but were limited in terms of the scope of their reporting. The court went ahead to give guidelines for courts to follow while handling children, in conflict with the law, trials. They include: 

a) The child’s dignity, rights, and well-being must be respected at all times, ensuring their right to privacy during arrest, detention, and court appearances.

b) Reporting on children in conflict with the law must avoid revealing their identity, including their name, parents, school, or residence, whether directly or indirectly.

c) Presiding officers must limit courtroom access to individuals permitted under Section 93(4) of the Children Act, 2022, and, when necessary, use Section 93(5) to conduct in-camera hearings; prosecution and defence counsel must assist in ensuring compliance.

d) Courtrooms handling children’s proceedings should be exclusively designated for such cases and not used concurrently for adults.

e) Measures such as obscured or blurred screens must be implemented to safeguard the privacy and confidentiality of children in conflict with the law, victims of abuse, or child witnesses.

f) Children must be referred to by code names, pseudonyms, or initials in all legal cases involving them.

g) Article 50 of the Constitution and Section 235(c) of the Children Act must be followed to ensure the expeditious resolution of cases involving children.

These directives ensure the protection of the child and their right to privacy and fair trial in court processes.

 

Other SCORK decisions have had broader implications in promoting the rights of the child. In the Mitu-Bell case[7] for instance, SCORK acknowledged the unique hardships children face during evictions, including disruptions to education, access to healthcare and basic needs. The Court found the government liable for violating children’s right to education under Article 53 during the demolition process, and emphasised that evictions affecting children must safeguard their access to educational facilities

In conclusion, these landmark rulings reflect SCORK’s unwavering dedication to ensuring justice for vulnerable groups, especially children. As the Judiciary celebrates its milestones, these cases serve as a testament to the Supreme Court's role as a guardian of children’s rights in Kenya, paving the way for a more equitable and child-centric legal landscape.

 

By Teddy Muya, the Managing Editor at the University of Nairobi Law Journal

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[1] Kamau Muthoni, ‘Justice on Trial: A to Z of Kenya’s Supreme Court as It Turns Twelve’ (The Standard5 November 2024) https://www.standardmedia.co.ke/national/article/2001505875/justice-on-trial-a-to-z-of-kenyas-supreme-court-as-it-turns-twelve accessed 21 November 2024

[2] Muya T, ‘Sustaining the Momentum: Children’s’ Rights and the Role of Judiciary’ (Blogspot.com3 December 2023) https://unlawjournal.blogspot.com/2023/12/sustaining-momentum-childrens-rights.html accessed 21 November 2024

[3] UNICEF, ‘World Children’s Day’ (Unicef.org2019) <https://www.unicef.org/world-childrens-day>

 

[4] [2023] KESC 21 (KLR)

[5] PETITION 13 (E015) OF 2022, [2023] KESC 68 (KLR)

[6] See. Centre for Child Law v Minister for Justice and Constitutional Development and Others (CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC); 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) (15 July 2009)

 

[7] Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (eKLR)