By Raisa Okwaras
Article 29 of the constitution of Kenya clearly states that every person, including a child, has the right to freedom and security, including the right not to be treated or punished in a cruel, inhuman, or degrading manner. Yet, children face cruelty and inhumanity while going about their day-to-day activities, hence interfering with their physical, emotional, and psycho-social wellbeing.
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) has African child rights cases on its database. The database currently has three cases of inhuman or degrading treatment towards a child in Kenya. All these cases are of different scenarios yet violate the same right.
One such case was in the matter between R.M. versus the Hon. Attorney General et al: High Court of Kenya 2010. Here, the petitioner was born with both female and male genitalia and the ambiguity of his gender led to him being denied a certificate of birth, an ID card, and travel certificates. After dropping out of school in Class 3 and being in conflict with the law, he was tried, convicted, and sentenced for robbery with violence and sent to Kamiti Maximum Prison in the male prisons.
While in prison, he faced sexual molestation by curious male inmates. In addition, he experienced constant abuse, ridicule, mockery, and inhumane treatment from the male inmates with whom he shared cells and bedding. The petitioner then filed the petition seeking appropriate redress after the violation of his rights. The petition was dismissed except for his right to protection against inhuman and degrading treatment, where he was awardedin damages.
Another case was that by Jemimah Wambui Ikere versus Standard Group Limited and another: Kenya High Court 2013. Here, the applicant held that by publishing pictures, stories, and narrations of her minor children, they committed a violation of their rights to privacy and dignity. By doing so, they also committed acts of cruel, inhuman, or degrading treatment.
Despite the respondents arguing about the vertical and horizontal application of human rights, the court overruled the preliminary objection and allowed the court to proceed to the trial.
The last case under the inhuman or degrading treatment of a child was one by the Kenya National Commission of Human rights and another versus the Attorney General and 3 others: Kenya High Court, 2014. Here, the petition holds that the accused used excessive and unreasonable force, leading to the violation of the rights of the deceased. In return, the court held in favor of the deceased, stating that various articles of the constitution were violated, including article 29.
If you have cases similar to the ones on the ACERWC website, contact them and help make children visible.