What Kenyan law says about reporting child abuse

By  Moraa Obiria

Senior Gender Journalist

What you need to know:

• A teacher’s quick action after noticing signs of abuse helped trigger an intervention that rescued a 10-year-old girl and ultimately led to her father’s conviction.
• Kenyan law places a responsibility on anyone with reasonable cause to believe a child is at risk to report suspected abuse and seek protection.

On May 26, 2019, a woman left for church, leaving her 10-year-old niece and two daughters at home with her brother. The niece was her brother’s daughter. When the woman returned that evening, she found the children at home.

The following morning, she prepared the children and escorted them to school. But that evening, her niece did not return home. When she made inquiries, she learnt that the girl had left school earlier than usual. She later discovered that the child had been taken to a children’s home.

Why?

When the girl arrived at school that morning, her teacher noticed that she appeared to be in pain and smelled of faeces. Concerned, the teacher referred her to another teacher, who reported the matter to the headteacher.

A community health volunteer was subsequently informed that the girl had allegedly been defiled. She immediately went to the school and took the child to Kilimani police station. They were referred to Capitol Hill police station, where a report was filed. Statements were recorded and the child was issued with a P3 form, which was completed at Nairobi Women’s Hospital, where she was examined.

The examination established that the girl had been sexually abused by her father, who had penetrated her anus. The chain of intervention, from the teacher who noticed that something was wrong, to the community health volunteer, police and medical personnel, helped rescue the child and secure her safety.

The girl’s father was eventually arrested and put on trial at the Milimani Chief Magistrate’s Court. On July 30, 2021, the court delivered its judgment in Criminal Case No 13 of 2019, Republic v AAM, convicting him and sentencing him to life imprisonment.

Aggrieved by both his conviction and sentence, AAM appealed to the High Court at Milimani Law Courts, Nairobi. On June 16, 2023, the High Court set aside the life sentence and resentenced him to 30 years’ imprisonment, calculated from the date of his conviction.

“Thus, in my view, Section 329 of the Criminal Procedure Code gives judges and magistrates, in appropriate cases, [the discretion] to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed,” Judge D Kavedza observed in the judgment.

“In that regard, I find life imprisonment shatters all the hopes of the appellant for rehabilitation or having another chance to start afresh.”

The duty to report

The failure by any person to report a case of child abuse is itself defined as child abuse under the Children Act (Cap 141). Section 145 of the Act further states that a person who has reasonable cause to believe that a child is in need of care and protection may report the matter to the nearest authorised officer.

The authorised officer is then required to take the necessary steps to secure a court order for the care and protection of the child in a place of safety or other alternative care provided for under the Act. The law sets out various circumstances in which a child may be considered to require care and protection.

These include children who have been sexually abused or are at risk of sexual abuse or exploitation, including prostitution or pornography. The law also protects children who have undergone or are at risk of female genital mutilation or forced male circumcision.

It covers children whose lives or safety are threatened by a family member, those who are victims of human trafficking, and those living in overcrowded, unhygienic or dangerous conditions. It also protects children who are exposed to violence, are pregnant or responsible for another child’s pregnancy, or are mentally or terminally ill.

Reporting is not limited to parents

The responsibility to report suspected abuse does not rest with parents alone. For instance, Mabera Sub-County Children’s Officer Janet Robi said she placed a girl under care after receiving a report of alleged defilement in June this year.

Janet said she first encountered the case while handling a separate matter involving an abandoned nine-month-old child. According to her, the mother of the abandoned child went to her office and alleged that an elderly man was defiling a 12-year-old girl.

“I took up the defilement case and referred it to the police gender desk for investigation, which prompted the arrest of the perpetrator,” she said.

As these cases show, teachers, health workers, relatives, neighbours, community volunteers and other concerned people can help connect children at risk with protection services and provide a pathway to justice for crimes committed against them.