To­wards func­tional al­ter­na­tive care for chil­dren in Kenya

Nairobi Law Monthly - - Analysis - HAR­RIET KANAIZA AKIBAYA

On Jan­uary 21, 2016, the Govern­ment of Kenya, led by the At­tor­ney-gen­eral Prof Githu Muigai ap­peared be­fore the Con­ven­tion on the Rights of the Child Com­mit­tee of Ex­perts to give a re­port on the im­ple­men­ta­tion of child rights in the country. Among the key con­cerns for the Com­mit­tee was that the country had lagged be­hind in the for­mu­la­tion of a pro­gres­sive le­gal and pol­icy frame­work, to guar­an­tee chil­dren who are not within fam­ily set ups proper care.

The Com­mit­tee urged the Govern­ment to take steps aimed at en­sur­ing that the re­view of the Chil­dren Act, a process which has been on­go­ing for close to ten years, is fi­nalised ex­pe­di­tiously. This pa­per seeks to ex­am­ine kafala, guardian­ship, fos­ter care and adop­tion which are some of the recog­nised forms of al­ter­na­tive care for chil­dren. It also seeks to make a num­ber of rec­om­men­da­tions.

Kafala is a re­li­gious form of al­ter­na­tive care that is prac­tised by per­sons pro­fess­ing the Is­lamic faith. Un­der the ar­range­ment, an in­di­vid­ual or a fam­ily un­der­takes the duty of car­ing and pro­tect­ing a child be­sides mak­ing pro­vi­sions for the child’s ba­sic needs, thus es­sen­tially hav­ing both the cus­tody and main­te­nance as­pects re­lat­ing to the child.

What Kafala en­tails

In its most rudi­men­tary mean­ing, the word refers to a “spon­sor­ship sys­tem” where the kafil (adop­tive par­ent) agrees to sup­port the mak­foul (adopted child) un­til s/he is of age. The verb takafala is an Ara­bic word mean­ing to take care of an orphan by pro­vid­ing all their ba­sic needs (food, cloth­ing, ed­u­ca­tion). The rules gov­ern­ing kafala (Is­lamic adop­tion) are dis­tinct thus ren­der­ing the re­la­tion­ship dif­fer­ent from what is com­monly prac­ticed by non-mus­lims.

The Con­ven­tion on the Rights of the Child, which Kenya has rat­i­fied, ex­pressly recog­nises the prac­tice un­der Ar­ti­cle 20(3) by en­cour­ag­ing stake­hold­ers to take cog­nizance of the child’s eth­nic, re­li­gious, cul­tural and lin­guis­tic back­ground be­fore plac­ing them to al­ter­na­tive fam­ily care.

Rais­ing a non-bi­o­log­i­cal child is al­lowed and, in the case of an orphan, even en­cour­aged. The child, how­ever, does not be­come a “true child” of the “adop­tive par­ents”. The child in this case re­tains their own bi­o­log­i­cal fam­ily name and does not as­sume the name of the “adop­tive fam­ily”. Among Mus­lims, the ex­tended fam­ily has a strong net­work. It is thus rare for an orphaned child to be aban­doned with­out a rel­a­tive to care of them. Cases of chil­dren be­ing placed to al­ter­na­tive care are how­ever no­table dur­ing times of war, famine, or catas­tro­phes when fam­i­lies may be sep­a­rated.

It is crit­i­cal to note that whereas the Con­ven­tion on the Rights of the Child ex­pressly em­braces kafala, the Chil­dren Act is silent on its ap­pli­ca­tion. The re­view of the Chil­dren Act needs to cap­ture the prac­tice in the leg­is­la­tion to en­able those

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