Unfortunately, this is not the case for all the children.
According to surveys, child labour is still rife and rampant in Kenya today. This could be attributed to many factors not limited to poverty, ignorance, cultural practices and exploitation.
Efforts towards preventing economic exploitation of children have not achieved much. In other instances, children have even been exposed and forced to join armed conflict, by being given ammunition and being instructed to fight in the name of protecting the community and livestock.
All this is happening under a legal framework aimed at protecting the rights of children. The blame can therefore be levelled against the government and its machinery, for failing to protect the rights of the child.
Economic exploitation of children happens more often than not in some of our households today, either knowingly or unknowingly. Some of us got some needy children from upcountry, in the name of wanting to help them get a better education, or rescuing them from poverty but end up doubling them up as house helps.
This, whichever way you look at it, is child exploitation and it goes against the guaranteed rights and freedoms of children under the laws of Kenya. Children are humans too who need their rights to be respected and upheld as well.
The Children’s Act, Section 10, provides that every child shall be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. The act defines child labour as any situation where a child provides labour in exchange for payment and includes:
· any situation where a child provides labour as an assistant to another person and his labour is deemed to be the labour of that other person for the purposes of payment;
· any situation where a child's labour is used for gain by any individual or institution whether or not the child benefits directly or indirectly; and
· any situation where is in existence a contract for services where the party providing the services is a child whether the person using the services does so directly or by agent.
The Children's Act further provides that no child shall take part in hostilities or be recruited in armed conflicts, and where armed conflicts occurs, respect for and protection and care of children shall be maintained in accordance with the law.
The constitution in article 53 provides that every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.
The Geneva Declaration of the Rights of the Child of 1924 article 4 provides that the child must not be put in a position to earn a livelihood, and must be protected against every form of exploitation.
Principle nine of the UN declaration of the rights of the child provides that the child shall be protected against all forms of neglect, cruelty and exploitation.
The child shall not be admitted to employment before an appropriate minimum age; he shall in no case be caused or permitted to engage in any occupation or employment which would prejudice his health or education, or interfere with his physical, mental or moral development.
This does not however mean that children cannot work entirely, the employment act of 2007 stipulates the age which children can be allowed to work, the form of work they should engage in and the possible working hours that they can work.
Section 56 of the employment act provides that no person shall employ a child who has not attained the age of 13 years whether gainfully or otherwise in any undertaking.
It further provides that a child of between 13 and 16 years of age may be employed to perform light work which is not likely to be harmful to the child’s health or development; and not such as to prejudice the child’s attendance at school,
Perhaps the persistence of child labour can be attributed to the lack of proper punitive measures to deter people, and the lack of educating the public on the dangers of exploiting children.
The punishment provided under section 64 of the employment act is vague. It does broadly define the extent of child labour, hence leaving a lot in the dark. It mainly focuses on the employment of children in industries and children in the worst form of labour practices.
The Penal Code does not provide a proper statement of offence of engaging in child labour. This can be deemed to be an upset to the efforts to curb the vice, since it is not easy to prosecute offences relating to child labour. As a result, the vice has continued unabated.