CHILDREN OF THE STREET, CHILDREN OF THE STATE: WHO BARES THE CONSTITUTIONAL BURDEN
Abstract
This
paper assesses the perennial denial of facilitation by the government, both
national and county, for children in street situations to enjoy their
socio-economic rights as is their constitutional imperative. By analyzing the
constitution, international statute, domestic legislation, and case laws, the
paper establishes the government's obligation to children in need of special
care. The paper then proceeds to highlight the failure of the government and
the subsequent suffering and vulnerability of the children, given their limited
access to their basic needs as per the dictates of the constitution.
Introduction
The Kenyan Constitution entrenches
the doctrine of the best interests of the child as a paramount consideration in
all matters affecting the child.[1]
In principle, child welfare ought to be the primary determinant of state
action. However, the lived reality sharply contradicts this constitutional
promise. A section of children continues to roam the streets, homeless and
deprived of food, sanitation, healthcare, and basic education.[2]This
persistent condition reveals a structural failure by the State to fulfil its
constitutional obligations concerning children’s rights. Instead, the burden of
care appears to have increasingly fallen on well-wishers and nongovernmental
organizations, which, while playing a complementary role, highlight gaps in the
State’s fulfillment of its constitutional mandate. The consequences of the
state’s indolence are severe: children remain exposed to exploitation,
substance abuse, environmental hazards, and premature death.[3]
Conceptual Framework
A child is an individual who has
not attained the age of 18 years.[4]Street-connected
children have been defined to include any boy or girl for whom the street
(including unoccupied dwellings, wasteland, etc.) has become their habitual
abode and/or source of livelihood, and who are inadequately protected,
supervised, or directed by responsible adults.[5]
Street-connected
children are
also divided into two groups: those who live in the street (spend all their time in the street), and those who
live on the street (those who return
home at night).[6]
However, The Cradle and The Undugu Society of Kenya divided Kenyan
street-connected children into four categories. The first is children who work
and live on the street full-time, living in groups in temporary shelters or
dark alleys.[7]
The second category is children who work on the streets by day but go home to
their families in the evenings.[8]
This category constitutes the majority of street-connected children in the
country. The third category is children who are on the streets occasionally,
such as in the evenings, weekends, and during school holidays. The fourth
category is known as “street families”, children whose parents are also on the
streets.[9]
In Kenya,
street-connected children are treated as fourth class citizen, a nuisance
everyone wishes was dealt with, and at the same time heavily discriminated.
Most people are usually very apprehensive of street children, given their
perceived criminal nature. The most common name for street-connected children
is ‘chokora.’[10]
A very condescending and discriminatory name, contending that all they do is
shuffle through trash and waste and idle around. Street children have no access
to their basic constitutional rights to basic education, shelter, and food, and
are at risk of facing abuse.[11]
Due to a lack of shelter, most of them spend their days cramped up in strategic
corners sniffing glue or begging for money and food, and their night cramped up
in shacks or cuddled up with old rags and sucks. This exposes them to extreme
weather conditions, which have an impact on their health, which is indeed
already exacerbated by the lack of access to health and sanitation. In
addition, county government city council members who view street children as a
disturbance, especially in uptown Nairobi, handle the children ruthlessly, with
others being arrested arbitrarily for misdemeanors such as roaming.[12]
Legal Framework
These
inadequacies of street-connected children are not just poverty but a deliberate
denial of the enjoyment of their constitutional human rights. The
Constitution’s Article 43 strengthens this framework by guaranteeing
socio-economic rights such as housing, healthcare, food, social security, and
education.[13]
Rights that are directly implicated in the lived realities of street connected
children. While Article 20(5) recognizes progressive realization in respect of
socioeconomic rights, it places the burden on the State to demonstrate that
resource constraints justify any limitation.[14]
Financial incapacity alone is therefore insufficient to excuse systemic
neglect. Furthermore, Article 24 provides that a right and fundamental freedom
in the Bill of Rights shall not be limited except by law, and only to the
extent the limitation is reasonable and justifiable in an open and democratic
society.[15]These
provisions collectively impose a constitutional obligation upon the State to
maintain functional child protection systems, including institutional rescue
mechanisms, medical access pathways, regulated alternative care arrangements,
and structured reintegration processes. The obligation is therefore not merely
aspirational but operational, requiring administrative, regulatory, and
supervisory action to give effect to the protective framework.
The
constitutional framework is operationalized through the Children Act.[16]
The Children’s Act highlights categories of children in need of special care to
include inter alia; who is an orphan and has no guardian; who is found begging,
or receiving alms; whose parent or guardian do not, or is unable or unfit to
exercise proper care and guardianship of the child; whose parents are unable to
provide to them proper care and attention by reason of being intensely engaged
in litigation over custody and maintenance or other related family dispute
prejudicial to the wellbeing of the child; who are being denied education.[17]By
expressly recognizing streetconnected children within this statutory
definition, the Act removes any ambiguity regarding their legal status and
affirms that they fall within the protective scope of state responsibility.
Indeed, street-connected children
are not legally invisible, as the legislators recognize them as children in
need of special care and structured protection. The statutory obligation of the
State to provide care and protection for vulnerable children is expressly
grounded in the Children Act. And as a result, the office of the Director of
Children's Services is given a mandate to safeguard and promote the welfare of
children, investigate cases of neglect or abuse, and initiate care and
protection proceedings before the Children’s Court.[18]
This includes establishing institutional mechanisms for rescue, rehabilitation,
healthcare provision, education access, and reintegration.[19]
Through the care and protection provisions, the Court is empowered to issue
orders placing a child in a place of safety, committing the child to a
charitable children’s institution, directing medical treatment, or facilitating
foster care and rehabilitation.[20]
Beyond definition, the Act provides
structured intervention mechanisms. The Children’s Court is empowered to issue
care and protection orders.[21]These
protection orders could include;
placement in
a place of safety, foster care arrangements, supervision orders, committal to
charitable children’s institutions, and authorization of necessary medical
treatment.[22]
The Director of Children Services is mandated to safeguard and promote the
welfare of children, coordinate protection services, and oversee appropriate
placements.[23]
These provisions demonstrate that the statutory scheme anticipates active and
organized state involvement rather than ad hoc or punitive responses. Care for
vulnerable children is thus institutionalized within the legal framework.
Analysis
Read
holistically, the constitutional and statutory framework constructs a layered
system of protection. The Constitution establishes normative supremacy of child
welfare; the Children Act provides identification and intervention mechanisms.
Consequently, the care of children in need of special protection, particularly
street-connected children, is not an act of charity but a legally mandated
governmental function. Where vulnerable children remain exposed to deprivation,
exclusion, or harm, the issue arises not from a deficiency in law but from
shortcomings in implementation and institutional execution.
The constitutional foundation for
the protection of children in need of special care in Kenya is firmly grounded
in the Constitution of Kenya. Article 43 guarantees every child the right to
free and compulsory basic education, basic nutrition, shelter, and health care,
and protection from abuse, neglect, and harmful practices.[24]
Crucially, Article 53(2) elevates the best interests of the child to a position
of paramount importance in every matter concerning the child.[25]
This formulation removes child welfare from the realm of policy discretion and
situates it within the domain of binding constitutional obligation. The State
is therefore not merely encouraged, but required, to prioritize the welfare of
children in all legislative, administrative, and judicial actions. This
obligation is reinforced by Article 21(1), which imposes a fundamental duty on
the State and every State organ to observe, respect, protect, promote, and
fulfil the rights and freedoms in the Bill of Rights.[26]
The language of fulfilment is particularly significant. It denotes a positive
obligation to take legislative, policy, and administrative measures to give
practical effect to constitutional rights.[27]
The Children’s Act, 2022,
operationalizes these constitutional mandates by classifying them as
'Children in
need of care and protection'.27 Part VIII of the Act requires county
governments to establish and maintain rescue and rehabilitation centers,
provide alternative family-based care (foster care or kinship arrangements),
and coordinate with NGOs for reintegration, prohibiting institutionalization
beyond six months without judicial oversight.[28]
The Children
(Care and Protection) Regulations 2020 further detail procedural safeguards,
requiring children's officers to conduct assessments within 48 hours of rescue,
prioritize family reunification, and report annually to the National Council
for Children's Services on interventions.[29]
Article 54 of the Constitution reinforces these protections by guaranteeing
children's right to education and parental care, prohibiting detention in adult
facilities, and mandating separate juvenile justice systems.
Furthermore,
international legal instruments to which Kenya is a party explicitly provide
for state responsibility for children in need of special care. For instance,
the Convention on the Right of The Child provides that, states parties
undertake to ensure the child such protection and care as is necessary for his
or her well-being, taking into account the rights and duties of his or her
parents, legal guardians, or other individuals legally responsible for him or
her, and, to this end, shall take all appropriate legislative and
administrative measures.[30]
The statute proceeds and states that a child temporarily or permanently
deprived of his or her family environment, or in whose own best interests
cannot be allowed to remain in that environment, shall be entitled to special
protection and assistance provided by the State.[31]
The statute further reinstates the child's best interest doctrine by providing
that, in all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities,
or legislative bodies, the best interests of the child shall be a primary
consideration.[32]A
similar sentiment is shared by the African Charter on the Rights and Welfare of
the Child[33]
These statutes lay an obligation on the state to adopt comprehensive, rights-based
strategies to prevent and respond to children in street situations.
In addition, international statutes
such as the Convection for the Rights of the Child provide care for children in
need of special care[34].
Such care could include, inter alia, foster placement, kafalah of Islamic law,
adoption, or, if necessary, placement in suitable institutions for the care of
children. When considering solutions, due regard shall be paid to the
desirability of continuity in a child's upbringing and to the child's ethnic,
religious, cultural and linguistic background.[35]
Shortcomings
There appears
to be a disconnect in government’s implementation of the protection of
streetconnected children. This is evidenced by the ever-increasing number of
street children in the streets of Nairobi. A number of the short comings are
explained herein.
Despite this elaborate framework,
implementation remains challenged by resource constraints and policy gaps; for
instance, the right to shelter under Article 53(1)(c) is undermined by
evictions and inadequate urban planning in Nairobi.[36]
Judicial precedents, such as RM v
Attorney General, have affirmed these obligations, ordering the state to
provide shelter and rehabilitation, underscoring the justiciability of
street-connected children's rights.37 Street children in Kenya face
innumerable hardships and dangers in their daily lives. In addition to the
hazards of living on the street, these children face harassment and abuse from
the police and within the juvenile justice system for no reason other than the
fact that they are street children.[37]
Overall, Kenya's legal architecture positions street children as rights-holders
with direct recourse, though effective protection demands enhanced budgetary
allocation and interagency coordination.
The failure
of the government to fully secure the street children's human rights has been
occasioned by the following factors; first, the criminalization approach of the
street children has done nothing but make them apprehensive of any government
olive branch extended to them. Due to lived experience and stereotypes,
street-connected children view law enforcers and government as villains seeking
to knock them off their perch and confine them in government mental facilities.
This situation has been made worse by the manner in which police officers and a
section of the general public treat street children like criminals, not
deserving to be free and roam the streets. This has soured the relationship and
broken-down trust, which has resulted in street children preferring to remain
in the streets rather than to be taken by unknown people. As the adage goes,
better the evil you know.
Secondly, the street-connected
children, due to a lack of civic education or any form of formal education,
have been blind to their rights.[38]They
lack the awareness that the Kenyan Constitution places an obligation on the
state to take up the responsibility of children in need of special care. This
has made them continue to roam the streets, without food and education, and even
resort to crime as a means of meeting their daily basic needs. Furthermore, the
government bodies charged with responsibilities of caring for these children
have been largely dysfunctional due to the underfunding by the government
budget.[39]
The bloating number of street-connected children exceeds the forecast number of
street children, which has resulted in the exhaustion of their resources. This
means that many more street children cannot be taken care of, denying them
their human rights and exposing them to the perils of a lack of sanitation and
medical care. The ever-increasing cost of living continues to force a lot of
families to the street, unable to afford to have a roof over their head and
food on the table.
Recommendations
The State
must move beyond declaratory commitments and operationalize its constitutional
and statutory obligations through structured, adequately funded interventions.
This includes establishing coordinated rescue, rehabilitation, healthcare,
education access, and reintegration mechanisms specifically tailored to
street-connected children. Budgetary allocations should be ring-fenced and
transparently monitored to prevent policy stagnation at the implementation
stage. Further, inter-agency coordination between child protection services,
county governments, and law enforcement must be institutionalized to ensure
that interventions are rights-based rather than punitive. Legislative
clarification may also be necessary to eliminate ambiguities that enable administrative
inaction.
Additionally,
the judiciary and oversight bodies should adopt a more robust accountability
framework to ensure compliance with child protection obligations. Strategic
litigation, periodic audits of child welfare institutions, and mandatory
reporting obligations can strengthen enforcement. Community-based approaches,
including partnerships with civil society and rehabilitation-focused programs,
should replace ad hoc displacement strategies that merely relocate rather than
resolve the vulnerability of street-connected children. Ultimately, sustainable
reform requires not only legal compliance but a deliberate shift from reactive
management to proactive social protection grounded in dignity, equality, and
the best interests of the child.
Conclusion
In conclusion, the Kenyan
Constitution protects the constitutional social and economic rights of all
children. The Constitution further provides that the best interest of the child
is the utmost guiding principle in matters concerning children. However, behind
these flowery words of the law, the grim reality is that street children have
been ignored by the very government to which the constitutional imperative to
protect the children lies. The burden of caring for these children in need of
special care lies with the state, and expeditious action be taken to correct
this perennial neglection of street children which has seen to it that their
future has been jeopardized by a myriad of factor inter alia lack of basic
education, exposure to drugs, lack of medical care and exposure to extreme
weather condition. The symbolic recognition of these children's rights has done
nothing to ameliorate their condition, and it is imperative upon the government
to take positive action, including affirmative actions to rehabilitate and
reintegrate street-connected children back into society.
[1] Constitution of Kenya, Article 53
[2] Nairobi's Street Children: Hope
for Kenya's Future Generation?' (The New Humanitarian, 23 February 2007) https://www.thenewhumanitarian.org/feature/2007/02/23/nairobi-s-street-children-hope-kenya-s-future-generation
accessed 13 April 2026.
[3] Ibid
[4] Constitution of Kenya Article 260
[5] See UNICEF, Background Paper on
Street Children (UNICEF 1988).
[6] Nairobi’s Street Children: Hope
for Kenya’s future generation (n 2).
[7] ibid
[8] ibid
[9] ibid
[10] ibid
[11] ibid
[12] Juvenile Injustice: Police Abuse
and Detention of Street Children in Kenya
(https://www.refworld.org/reference/countryrep/hrw/1997/34952)
[13] CoK Article 43
[14] Ibid, Article 20(5)
[15] Ibid, Article 24
[16] Cap 141, 2022.
[17] S143
[18] Ibid, s145(1)
[19] Ibid, s145 (3)
[20] Ibid, s145(5-8)
[21] Ibid, s147
[22] Ibid, ss 146, 147, 148, 154-156
[23] Ibid, s37
[24] CoK, Article 53 (1)
[25] Ibid, Article 53 (2)
[26] Ibid, Article 21 (1)
[27] International Covenant on
Economic, Social and Cultural Rights (ICESCR),1966 Article 2(1) 27
Children’s Act 2022 ss 3, 93, 95, 105
[28] Ibid ss 93-109
[29] Children (Care and Protection)
Regulation 2020
[30] Convection on the Right of The
Child, Article 3(2)
[31] Convection on the Right of The
Child, Article 20 (1)
[32] Convection on the Right of The
Child, Article 3(1)
[33] Article IV(1)
[34] CRC, Article 20 (3)
[35] Ibid
[36] Judy Gitau, A Critic of the Right
to Shelter for street Children in Kenya (2024) 28 Law, Democracy &
Development 37 RM v attorney
General eKLR High Court 2025
[37] Human Right Watch, Juvenile
Injustice: Police Abuse and Detention of Street Children in Kenya
[38] Juvenile Injustice: Police Abuse
and Detention of Street Children in Kenya
(https://www.refworld.org/reference/countryrep/hrw/1997/34952)
[39] David Blumenkratzn: In Defense of
Street Children
(http://www.oneofusproject.com/street-children-ii)
[i] Generate
an Image which elucidates this topic: CHILDREN OF THE STREET, CHILDREN OF THE
STATE..." prompt. Gemini, Google, 13 Apr. 2026, gemini.google.com.
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