Towards functional alternative care for children in Kenya
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