UNIVERSITY OF NAIROBI

FACULTY OF LAW

COURSE CODE: GPR 427

COURSE TITLE: CHILDREN AND THE LAW

COURSE INSTRUCTOR: HON DR. NANCY BARAZA AND MS. DOREEN KIBIA

GROUP 6

NAME REGISTRATION NUMBER

GILBERT OTIENO OUKO G34/145180/2022

KELVIN NYARIBO OKIRIGITI G34/3342/2022

ERICK MUTURI NGUMBI G34/3377/2022

JOY MUEKE KALOO G34/3311/2022

FAITH BOSIBORI MOTURI G34/3347/2022

VANISTELROOY OBARE ORINDA G34/3400/2022

CASEY OSERO IBONGIA G34/3479/2022

FAITH WANJIKU NGURE G34/3464/2022

ANN MWENDWA MWANGI G34/3439/2022

ANN WAMBUI MACHARIA G34/3387/2022

LINCOLN NGARI GICHOBI G34/3395/2022

MBABU SUSAN NANCY GAKII G34/144125/2022

JULIET ATIENO BWOGA G34/144608/2022

MITCHEL OJAAMONG G34/144275/2022

SAM OUGO G34/143761/2022

 QUESTION:

HOW EFFECTIVE ARE INTERNATIONAL TREATIES ON CHILDREN’S RIGHTS

WHEN DOMESTIC LEGAL SYSTEMS ARE SLOW TO IMPLEMENT THEM?

I. INTRODUCTION

International treaties on children’s rights were created to give all children clear and enforceable
protections. Instruments such as the Convention on the Rights of the Child (CRC), 1 the African
Charter on the Rights and Welfare of the Child (ACRWC), 2 and their Optional Protocols define
the minimum standards that states must follow to safeguard children’s survival, development,
safety, and participation.3 These treaties set out duties to respect, protect and fulfil children’s
rights, and they guide governments on how to design laws, policies, institutions and budgets that
meet these standards.

When a state signs and ratifies these treaties, it accepts legal responsibility for turning the treaty
rules into practical action through domestic law. 4 This includes passing legislation, creating
institutions such as child protection agencies, allocating resources to education and health, and
ensuring child-friendly procedures in courts, police stations and welfare systems. However,
many countries struggle with this process. The gap between ratifying a treaty and fully
implementing it at home is often wide and slow to close. This gap is influenced by political
priorities, limited budgets, weak institutions, cultural practices, conflict, and slow legislative
reforms.

Because of these challenges, the effectiveness of children’s rights treaties depends on more than
the act of ratification. It depends on whether national governments take active steps to harmonise
domestic laws with treaty standards, whether institutions have the capacity to enforce these laws,

1 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3.
2 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November
1999).
3 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
(adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222.
4 UN Committee on the Rights of the Child, General Comment No 5: General Measures of Implementation of the
Convention on the Rights of the Child (2003) UN Doc CRC/GC/2003/5.

1
and whether courts interpret domestic rules in line with international norms when gaps exist. 5
Monitoring bodies such as the CRC Committee and the African Committee of Experts also play
a role by reviewing state reports, issuing recommendations, allowing individual complaints, and
supporting reforms through technical advice and public pressure.

This essay examines the effectiveness of international children’s rights treaties in situations
where domestic legal systems are slow to implement them. It analyses the legal foundations of
state obligations, the gap between ratification and actual reform, the strength and weaknesses of
domestic institutions, the influence of international monitoring, the real impact on children’s
lives, the barriers that slow down implementation, and the strategies that can help states close
these gaps.

II. PART 1 — The Legal Architecture and Nature of State Obligations

The need to protect the rights of children worldwide led to the adoption of the Geneva
Declaration on the Rights of the Child by the League of Nations in 1924 after continuous
growing concerns on the poor treatment of children spearheaded by activist Eglantyne Jebb,
followed by the 1959 United Nations Declaration on the Rights of the Child. As an outcome of
the growth, the UN declared 1979 as the International Year of the Child, culminating in the
adoption of the United Nations Convention on the Rights of the Child. 6 The adoption of the UN
Convention on the Rights of the Child (CRC) in 1989 (came into force in 1990) and the African
Charter on the Rights and Welfare of the Child (ACRWC) in 1990 has revolutionised the
conception of children’s rights worldwide.

These two instruments have made a radical shift from the doctrine of parens patriae- “the state
as parent’’ and the paternalistic approach of addressing children’s rights and welfare to the
modern-day conception of children’s rights, resulting in recognition of children as beneficiaries
(rather than objects) of human rights.7 The four general principles that provide the foundation of
all other rights are article 2 on non-discrimination, article 3 on the best interest of a child which

5 UN Committee on the Rights of the Child, General Comment No 14: The Right of the Child to Have His or Her
Best Interests Taken as a Primary Consideration (2013) UN Doc CRC/C/GC/14.
6 The CRC was adopted and opened for signature, ratification and accession by UN General Assembly resolution
44/25 of 20 November 1989 and entered into force on 2 September 1990, in accordance with article 49
7 Children rights and the law in East Africa, Prof. (Dr.) Mohammed S. Hussain and Dr. Clement J. Mashamba

2
must be a primary consideration in all matters concerning children, article 6 on Right to life,
survival and development and article 12 on the Right to be heard.

The CRC is a binding multilateral instrument establishing normative frameworks for children's
development, protection, and dignity. The CRC being the most ratified treaty to protect human
rights across the globe, offers an extensive catalogue of civil, political, economic, social, and
cultural rights relevant to all individuals as defined in Article 1 of the CRC.8 It is further
reinforced and cemented by its Optional Protocols (OPs). These are: The Optional Protocol on
the Involvement of Children in Armed Conflict (OPAC), which seeks to protect children from
being recruited and used in hostilities,9 The Optional Protocol on the Sale of Children, Child
Prostitution and Child Pornography (OPSC), which is aimed at combating child trafficking for
sexual exploitation,10 and the Optional Protocol on a Communications Procedure (OPIC), which
establishes a mechanism for individuals to file complaints over CRC violations. 11 These Optional
Protocols acknowledge the existence of inadequacies in the domestic laws and that when
domestic laws are unable to adequately resolve children's rights violations, children have the
right to appeal to an international mechanism tailored specifically to their needs as children.

The Universal Declaration of Human Rights (UDHR) identifies children as entitled to “special
care and assistance.”12 Furthermore, the International Covenant on Civil and Political Rights
(ICCPR) requires States to accord children such protective measures as are required by their
status as minors.13 Similarly, the International Covenant on Economic, Social and Cultural Rights
(ICESCR) guarantees rights to education, health, and adequate living conditions, applicable
equally to children.14 In Africa, the ACRWC contains robust protections against harmful
practices, discrimination, and child marriage, extending beyond CRC standards. 15 African
Charter on Human and Peoples’ Rights (ACHPR),16 Similarly, Protocol to the African Charter on

8 Convention on the Rights of the Child (adopted 20 November 1989) 1577 UNTS 3 (CRC) art 1.
9 Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OPAC) (2000).
10 Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSC) (2000).
11 Optional Protocol to the CRC on a Communications Procedure (OPIC) (2011)
12 UDHR (1948) art 25(2)
13 ICCPR (1966) art 24.
14 ICESCR (1966) arts 10–13.
15 ACRWC (1990) arts 2–21.
16 ACHPR (1981) art 18(3)

3
Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). 17 Collectively,
these instruments constitute a multi-layered and mutually reinforcing framework to that of
domestic laws for children’s rights and not as passive right holders, but as autonomous right
holders both domestically and internationally recognised.

Upon ratification or accession to any of the above treaties or conventions, states are bound by
such treaties under Articles 11–15 of the Vienna Convention on the Law of Treaties (VCLT). 18
Adopting the CRC establishes duties to uphold rights (non-interference), safeguard rights
(regulation of private actors), and fulfil rights (positive measures). 19 Furthermore, Articles 10, 12,
and 26 of the UDHR and Article 24 of the ICCPR uphold children's rights to equality, protection,
and education. When these instruments are read harmoniously, they form a web of
interconnected duties that may contravene both general human rights conventions and treaties
pertaining to minors if the party state chose to obey some and disregard the other.

Ratified treaties in monist systems such as the Namibia, 20 Malawi,21 Netherlands and France22
automatically form part of domestic law. In Kenya, international treaties form part of the national
pursuant to Article 2 (6) of the Constitution. 23 On the other hand, in dualist systems like that of
the UK, before treaties have a local impact, such treaties must be incorporated by domestic
legislations.24 There is a normative vacuum between international duties and domestic
enforcement in such systems (dualist) when treaties are not incorporated. However, in the same
sense, it is an established principle that a State cannot plead its own domestic law as an excuse
for non-compliance with its duties to international law.25

Just like states are not to plead their domestic law for non-compliance with international law, it is
also prudent to incorporate the mechanisms on how such rights of children are to be realised in

17 Maputo Protocol (2003) art 6

18 Vienna Convention on the Law of Treaties (1969), arts 11–15
19 CRC art 4
20 Article 144 Namibian Constitution.
21 Section 211 of the Malawian Constitution.
22 Grondwet [Constitution] art 93 (Netherlands Constitution)
23 Constitution of Kenya 2010, art 2(6); Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; [2021]
eKLR), paragraphs 124-133.
24 R (S G) v Secretary of State for Work and Pensions [2015] UKSC 16, at [235].
25 Vienna Convention on the Law of Treaties (1969), arts 27

4
relation to the resources available, tailored towards the realisation of such rights. The children's
rights, which are to be realised progressively, draw their authority from Article 2(1) ICESCR,
read together with Article 4 CRC.26 Thus, to fulfil socio-economic rights, states must take
intentional, focused action utilising "maximum available resources." The CRC Committee’s
General Comment No. 5 emphasises that progressive realisation does not permit stagnation or
retrogression.27 General Comment No. 19 elaborates at great length on budgetary obligations that
should be a guide to ensure the realisation of these rights. 28 It is then a principle that progressive
realisation prohibits states from using resource limitations as a general excuse for delay, even
though it permits considerable flexibility. This is very different from those rights which are
deemed to be self-executing, thus judicially manageable in the respective circumstances,
including detention.29

III. PART 2 — From Ratification to Reality: Domestic Incorporation and Legislative

Gaps

In Kenya, international treaties protecting the rights of children, such as the UN Convention on
the Rights of the Child (CRC), have been significantly impacted by delays and gaps in their
domestic application, despite being ratified early. Kenya signed the CRC in 1990 and has made
notable progress in domesticating the provisions of the CRC, especially through the Children
Act. However, these improvements have yet to be fully translated into effective protection and
enforcement of children's rights on the ground.

The ratification of the CRC in Kenya was followed by the adoption of the Children Act (Cap
586) in 2001, which was replaced more recently by the Children Act, 2022, 30 which enhanced
alignment with the CRC in key areas such as basic education 31, health,32 juvenile justice,33 child

26 ICESCR art 2(1); CRC art 4

27 CRC Committee, General Comment No 5 (2003) para 8.
28 CRC Committee, General Comment No 19 (2016).
29 CRC art 37
30 Children Act, Cap 141, Laws of Kenya, 2022.
31 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, art 24.
32 ibid, art 28.
33 ibid, art 37.

5
protection34 and birth registration35. The Act reflects the CRC principles and offers solutions to
violations, including penalties for obstructing child protection officers36.

However, there still appears to be a gap between the legal provisions and the practical
implementation. The Kenya National CRC Report acknowledges the existence of legal reforms
helpful in domesticating the CRC, but further cites perennial issues like resource shortages,
disjointed child protection services and gaps in law coherence 37. Child law is primarily dispersed
in numerous legislations and the legal and policy framework lacks total reflection of the CRC,
which has led to its slow implementation38.

The delay in full implementation of the CRC in Kenya can be explained by several factors such
as a huge legislative backlog and disjointed legislation found in various statutes compared to
having legislation in one statute. Relevant provisions of the children rights are found in many
statutes other than the Children Act. There is the Penal Code (Cap 63, Laws of Kenya) that
includes some criminal offences against children, the Employment Act (No 11 of 2007), which
includes an outline of the child labour, the Basic Education Act (No 14 of 2013) which includes
an outline of processes that allow children to obtain protection orders in an abusive environment,
the Marriage Act (No 4 of 2014) that touches on child marriage and a child parental rights and
the Counter-Trafficking in Persons Act (No 8 of 2010) which includes an outline of child
trafficking. Without a unified and consolidated legal system, there is a challenge in enforcement
and coordination because of various overlapping laws that courts and agencies have to navigate.

Another factor is clashing national interests and scarce budgetary resources for child protection
services. There is also difficulty in the implementation of child-friendly practices of juvenile
justice due to the complexity of reforms in sensitive areas for example, the replacement of
punitive approaches with alternative ways such as mediation, plea bargaining and community

34ibid, arts 19, 34.

35 ibid, arts 7, 8.
36 Children Act 2022, s 39.
37 United Nations Committee on the Rights of the Child, ‘Second Periodic Reports of States Parties Due in 1997:
Kenya’ CRC/C/KEN/2 (20 September 2005)<[Link]
accessed 24 November 2025.
38 Dorothy K Nthiwa, 'Kenya’s Implementation of the United Nations Convention on the Rights of the Child: a
Critical Analysis' (unpublished MSc thesis, University of Nairobi 1999) [Link] accessed
24 November 2025.

6
reintegration meet resistance and shortage of resources. Moreover, there exists weak links
between the police, the judicial system and the child services which lead to slow processing and
poor handling of cases in overloaded systems.

Moreover, socio-cultural attitudes and customary laws occasionally override the provisions in the
CRC and hinder its effective enforcement. There is also lack of coordination between the
government organs and sufficient mechanisms of monitoring and evaluation39.

There are several empirical evidence for these gaps for example the ongoing backlogs and delays
experienced with children's cases in the justice system, where children are occasionally tried by
adult courts40, which is a contravention of the Children Act. Moreover, there is social exclusion
of marginalised children and an example is the lack of access to healthcare and education of
Nubian children who lacked birth registration and nationality rights 41. There are also cases of
old-fashioned practices and harsh juvenile justice even when legislations stipulate rehabilitation
and child-friendly practices.

To assess the implementation in Kenya, it is essential to review the laws and practices in Kenya
through legal audits of national laws against the CRC, shadow reporting of civil societies and
checking the statistics of child-related government service provision. These approaches allow the
UN Committee and independent experts to assess Kenya against the established goals of the
CRC regularly and in order to reveal some ongoing issues in resource and institutional capacity.
There is a need for reform and stricter adherence to timelines to enhance children’s access to
justice meaning legal provisions must be operationalised to become realities 42.

Comparative Analysis

39 Titus Edzo, ‘Justice Matheka Calls for Urgent Reforms to Protect Children in Kenya’s Justice System’ Capital
News (Nairobi, 31 October 2025)
[Link]
justice-system/
accessed 24 November 2025.
40 JMK v Republic Criminal Appeal No 116 of 2011 (Court of Appeal of Kenya, 26 February 2015) eKLR.
41 Children of Nubian Descent in Kenya v Kenya (Open Society Justice Initiative, unreported)
[Link] accessed 24 November 2025.
42 Edzo (n 39).

7
The challenge of translating treaty commitments into meaningful protections for children extends
well beyond Kenya and reflects a broader pattern across the African region. For example, Benin
ratified the Convention on the Rights of the Child in 1990; barely a year after its entry into
force.43 While this signalled an early and seemingly strong commitment to advancing children’s
rights, more than three decades later, significant portions of the CRC remain either under-
implemented or entirely unimplemented.44

For instance, Article 19 of the CRC mandates state parties to take appropriate measures, be they
legislative, administrative, social and educational, to protect children from all forms of
violence.45 To effect this, the state is called upon to establish social programmes to provide
necessary prevention and support mechanisms for children. 46 On the contrary, child protection in
Benin remains severely underfunded and fragmented despite high rates of child marriage, child
labour, and violence against children. From 2019 to 2021, budget allocations to address violence,
abuse and neglect decreased by 40% even though 91% of children aged 1-14 were reported to
have experienced violent discipline.47 The decline is attributable to the meagre allocations made
from the national budget towards child protection. In 2021, core child protection intervention
received just 0.08% of the national budget, reflecting the severe underinvestment that cripples
implementation efforts.48

43 OHCHR, ‘Convention on the Rights of the Child’ (Treaty-body Database)

[Link] <accessed 25
November 2025>
44 UNICEF, From Promises to Protection: Why sustainable investment for child protection is critical to Africa’s
human capital agenda (UNICEF Eastern and Southern Africa Regional Office, June 2025)
<[Link] p11; accessed 25
November 2025
45 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, art 19(1).
46 Ibid, art 19(2)
47 (n 2)
48 UNICEF / Social Watch Bénin, Note budgétaire sur la protection de l’enfant au Bénin 2021 (April 2022)
<[Link]
%C3%A9nin_2021_VF.pdf>accessed 25 November 2025.

8
These challenges are further exacerbated by the lack of a central coordination mechanism or
unified budget framework as funding is scattered across ministries. Efforts by the state to take
progressive measures are further crippled by challenges such as weak planning, coordination and
execution, fueled by the absence of political will and fiscal commitment. This is evident from the
second-generation National Child Protection Policy which was adopted to standardize provision
of services through a minimum package of interventions. 49 However, its progress remains
hampered.

In low-income countries, these implementation deficits are often even more pronounced, as
structural resource constraints, competing national priorities, and limited administrative capacity
significantly hinder the translation of CRC obligations into practice. This has led to reliance on
donor funding to fill the financing gap. For example, in Malawi, local government authorities
heavily rely on donor funding to finance child protection services such as community child
protection structures addressing violence against children. The harm in this is that foreign aid is
often tied to donor interests which upon shifting, significantly affect child protection services.
Dependence on donor funding to protect children and fulfil their rights is unsustainable in the
long run as it is subject to international politics and economic volatility.

Major donors including the United States, United Kingdom, Germany, the Netherlands and
Norway, have significantly reduced their foreign aid budgets, largely impacting global
development initiatives.50 These impacts are felt by the most vulnerable. For instance, the U.S.
froze aid this year which stifled the provision of ARVs to HIV-positive orphans in Kenya. 51 This
calls for African governments to strengthen domestic financing mechanisms to guard against
external shocks and safeguard the rights and well-being of children.

49 (n 36)
50 Financial Times, Aid’s grim counter-revolution will prove self-defeating
<[Link] accessed 25 November 2025.
51 Associated Press, ‘US aid freeze puts HIV-positive orphans in Kenya at risk’ AP News (7 October 2025)
<[Link]
accessed 25 November 2025.

9
IV. PART 3 — Domestic Institutions, Enforcement Mechanisms, and Judicial
Interpretation

The main domestic institutions governing children’s rights and protection are enshrined in the
Children’s Act 2022, comprehensively in Parts IV to Part VII. It establishes a wide network of
domestic institutions responsible for administering children’s services, protecting vulnerable
children, and ensuring that matters involving children are handled appropriately within the
justice system.

At the administrative level, the Act places significant responsibility on the Office of the
Secretary of Children Services, an office created within the public service and filled
competitively by the Public Service Commission 52. Working with children’s officers and other
staff, the Secretary oversees the overall regulation, coordination, and supervision of children’s
services across the country53. This includes managing children’s officers, remand homes,
rehabilitation schools, and charitable children’s institutions 54. The Secretary also plays a direct
welfare role by investigating and responding to cases involving vulnerable children, intervening
where removal to a place of safety is necessary, and securing appropriate care arrangements for
abandoned or at-risk children55. In addition, the office provides critical support to the courts
through inquiries, assessments, and reports, and may institute proceedings relating to child abuse,
neglect, or maintenance56.

Alongside this office, is the National Council for Children’s Services, a corporate body that
serves as the national policy and regulatory authority for child protection. Its membership brings
together government representatives, the Council of Governors, and individuals from civil
society and the private sector, supported by a competitively recruited Chairperson 57. The Council
advises the Cabinet Secretary on child protection matters, develops policy and codes of conduct,

52 The Children Act 2022, s 37 (1)

53 Ibid s 38 (a)
54 Ibid s 38 (q)
55 Ibid s 38 (k); (l)
56 The Children Act 2022 s 39 (2)
57 Ibid s 43

10
and monitors child welfare programmes run by charitable organizations 58. It also carries Kenya’s
international obligations by acting as the central authority for the Hague Convention on Inter-
Country Adoptions and overseeing the enforcement of treaties relating to children, indicating a
direct policy measure in the enforcement of international obligations 59. In addition, the Council
plays a central role in adoption by licensing agencies, accrediting adoption bodies, and
maintaining registers of children and prospective adoptive parents 60. At the local level, County
and Sub-County Children Advisory Committees assist in coordinating children’s services,
reviewing welfare programmes, sharing information, and monitoring facilities to ensure
compliance with national standards.61

The Act also establishes a number of care and protection facilities designed to meet different
needs. Children Rescue Centers offer temporary shelter for children in need of care and
protection, accommodating them for no more than six months and only when alternative family-
based options are not available 62. Child Protection Units operate within police stations to provide
safe and non-threatening environments for children in conflict with the law, with strict gender
and age segregation requirements63. Charitable Children’s Institutions provide longer-term care,
rehabilitation, and reintegration, though the Act emphasizes that this form of placement is a last
resort64. These institutions must meet strict registration, staffing, and reporting requirements, and
cannot admit a child without a court order65. Children’s Remand Homes serve as places of safety
for children in conflict with the law 66, while Rehabilitation Schools offer structured education,
counselling, and vocational training for children committed by the court, with the commitment
period capped at three years and never extending past the child’s eighteenth birthday.67

WEAKNESSES AND CHALLENGES

58 Ibid s 42 (b); (e); (k)

59 Ibid (a)
60 Ibid (v); (bb)
61 The Children Act 2022 s 54; 55
62 Ibid s 63
63 Ibid s 64
64 Ibid s 67 (2)
65 Ibid s 65; 66; 71 (1) (a)
66 Ibid s 77
67 Ibid s 78; 82 (3)

11
Despite Kenya’s extensive child-protection frameworks, their effectiveness remains limited, as
shown in the UNICEF Kenya Annual Report 202468.

One of the major weaknesses of these institutions is misuse of Institutions and lack of
accountability. Institutional care is often used for reasons other than the absence or death of
parents, primarily driven by poverty, social discrimination, and inadequate access to basic
services. This issue is exacerbated by the perception among donors that funding is perpetuated
by "a picture of a smiling kid at an institution," which locks resources into CCIs rather than
supporting care reform efforts69. There have been instances of misuse of children homes for
fundraising, where the institutions have been used as fund raising institutions and avenues of tax
evasion70.

The second major weakness is financial constraints. The existence and function of children's
institutions, particularly the non-state actors operating them, are heavily dependent on external
funding. Institutional care in Kenya has been historically sustained by foreign financial support.
When funding is cut, the government currently lacks the capacity to fill the funding gap. This
dependency creates fragility and competition among organizations, sometimes leading to
fragmentation of services71.

In domestic legal systems where legislation lags behind international treaty commitments, the
judiciary serves as the primary enforcement mechanism to bridge the gap. Courts typically utilize
three main strategies to enforce the rights of the child: In jurisdictions like Kenya, international
treaties ratified by the State form part of the domestic law. 72 This allows litigants to cite the CRC
or the ACRWC directly, even if a specific Act of Parliament has not yet been amended to reflect
those rights.

68 UNICEF Kenya Annual Report 2024 <[Link]

2024 > accessed November 30th 2025.

69 Lydia Korsgren, ‘The Role of Non-State Actors within the National Care Reform Strategy for Children in Kenya
2022-2032’
70 Brian Sang, ‘ Child-Law-in-Kenya-under-the-Children-Act-2022: A Legal Appraisal of Its
Legislative Advances’ (2024) 2(2) JADR & sustainability 229
71Lydia Korsgren, ‘The Role of Non-State Actors within the National Care Reform Strategy for Children in Kenya
2022-2032’.
72Constitution of Kenya 2010, Article 2(6)

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Courts interpret ambiguous domestic statutes in a manner most compatible with international
obligations. This is often used to expand the definition of "Best Interests of the Child" (BIC) 73.
Beyond simple judgments, courts issue "continuing mandamus" orders, requiring government
agencies to report back on progress made in implementing a court order. The case of Sampurna
Behura v. Union of India874 is a prime illustration of the court's expanded role. In this public
interest litigation, the Supreme Court was concerned with the abject failure of state governments
to implement various provisions of the Juvenile Justice (Care and Protection of Children) Act,
2015. The Court interpreted the domestic statute in light of international conventions,
particularly the CRC, which India has ratified. This allowed the Supreme Court to maintain a
supervisory role over the executive and legislative domains, ensuring a sustained push toward
compliance. The continuing mandamus transforms the court from a mere adjudicator into a long-
term monitor, using its judicial power to compel the executive to perform its positive duties
toward children as mandated by law and international obligations.

In the case of L.N.W v. Attorney General & 3 others (2016) eKLR75the court used international
norms to strike down discriminatory domestic statutes and "fill the gap" left by the legislature.
The issue in contention was guided by Section 12 of the Births and Deaths Registration Act 76
which prohibited the inclusion of a father's name on a birth certificate for a child born out of
wedlock unless the father expressly consented. This effectively denied "illegitimate" children the
right to a complete legal identity and violated the non-discrimination principle, leaving them
with a legislative gap regarding paternal recognition.

Under the CRC Article 7 mandates that every child must be registered immediately after birth.
This act of registration is crucial as it secures the child's rights to a name and the right to acquire
a nationality77. Furthermore, this article emphasizes the importance of family, stating that the
child has the right, "as far as possible," to know and be cared for by his or her parents. Article 6
of ACRWC reinforces this by similarly guaranteeing the child's right to a name and nationality,
73 Looking for the best interests of the child (BIC) in the least expected places: Can it really make a difference?
<[Link]
make-a-difference/> Accessed 25 November 2025.
74 Sampurna Behura v. Union of India 2018
75 LNW v Attorney General & another; [2016] KEHC 7266 (KLR).
76Births and Deaths Registration Act 2022, Section 12
77 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, art 7

13
underscoring the universal significance of these identity-defining elements 78. Under the CRC
Article 2 lays down the overarching principle of non-discrimination in the application of all
rights outlined in the Convention79. It places an obligation on States Parties to respect and ensure
these rights for every child within their jurisdiction, without exception. This means that a child's
rights cannot be withheld or diminished based on any factor related to the child, their parents, or
their legal guardians. The prohibited grounds for discrimination are comprehensive, explicitly
listing race, color, sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth, or other status. This article ensures that all children are treated
equally under the law, regardless of their circumstances or background.

The Court ruled that the birth and registrations act was unconstitutional. The judge reasoned that
the "Best Interests of the Child" overrides procedural statutes. The court did not wait for
Parliament to amend the Act; instead, it acted to fill the protection gap immediately. Section 12
of the Act was declared null and void. The Registrar of Births and Deaths was ordered to allow
the entry of fathers' names for children born out of wedlock, provided there is proof of paternity.
This decision forced a bureaucratic change that the legislature had failed to enact, directly
enforcing the treaty right to a legal identity.

In the case of In Re I.S. (A Child) v. Director of Children’s Services & Another (2020)
eKLR80it demonstrated the limits of judicial power, where the court acknowledges the rights
involved but refuses to bypass statutory procedure, deferring to the legislature to maintain checks
on child [Link] involved a foreign national who sought to adopt a Kenyan child. The
applicant did not meet the strict residency requirements set out in the Children Act. The applicant
argued that the "Best Interests of the Child81" (BIC) should override the rigid statutory timeline
because the child was already bonding with the applicant.

78 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November
1999) OAU Doc CAB/LEG/24.9/49, Article 6.
79 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, art 2
80 In re M & another (Babies) [2020] KEHC 8349 (KLR)
81 What does the law mean by “best interests of the child”?
<[Link]
Accessed 25th November 2025.

14
The relevant international norms are the CRC under Article 21, which governs adoption
regulations and establishes the paramountcy of the BIC 82, and the Hague Convention on
Intercountry Adoption, which specifically aims to prevent the abduction, sale, and trafficking of
children83. In this specific case, the Court declined to issue the adoption order. While the judge
acknowledged the importance of the BIC principle, the ruling emphasized that courts do not have
the authority to waive statutory requirements, such as residency timelines, even if those
requirements appear inconvenient for the child in that particular instance. The Court asserted that
for the judiciary to set aside these timelines would be tantamount to "legislating from the bench,"
violating the separation of powers. Ultimately, the case serves as a demonstration of the
limitation of judicial enforcement. It highlights the judiciary's caution against using "progressive
interpretation" to bypass established protective barriers, as doing so could unintentionally
dismantle the very procedural safeguards designed to protect children from broader systemic
risks.

V. PART 4 — International Monitoring, Reporting, and Non-Judicial Mechanisms

While international treaties are entered into by states on the principle of good faith meaning
implementation of their obligations is highly dependent on the political good will of contracting
states, there exists various supervisory or monitoring mechanisms at the international level that
help track the progress of the implementation at the national level. These mechanisms include:

1. Convention on the Right of the Child

Article 43 establishes the Committee on the Rights of the Child as a mechanism of examining the
progress made by States Parties in achieving the realization of the obligations in the CRC. 84 State
Parties submit initial and periodic reports under Article 44(3) of the CRC. 85 State parties are
required to submit reports to the committee on the measures adopted to give effect to the rights

82 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, art 21.
83 Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption
<[Link] Accessed 25th November 2025.
84 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, Article 43.
85 ibid,Article 44(3)

15
recognized in the CRC and on the progress made on the enjoyment of those rights. 86 Initial
reports are submitted within two years of entry into force of the convention by a state and every
five years thereafter. 87 The reports ought to contain sufficient information and indicate factors
and difficulties, if any, affecting the degree of fulfilment of the obligations under the
Convention.88

These reports are made widely available to the public by state parties in their own countries by
dint to Article 44(6).89 Through a Constructive dialogue, the Committee reviews the State’s
report and issues Concluding Observations, which contain recommendations for gaps, priorities,
90
and reforms to State Parties concerned and reported to the General Assembly. These
observations are public, offering reputational leverage. However, these Observations are not
legally binding as its enforcement depends on a State's political will and follow-up.91

2. The Optional Protocol on a communications procedure

The Protocol92 provides new competencies to the UN Committee on the Rights of the Child, such
as the individual communications mechanism under Article 5(1) allowing children or
representatives within the jurisdiction of a State party to submit complaints to the committee,
claiming to be victims of a violation by that State party of any of the rights in the Convention
and/ or the Optional Protocols to the Convention. 93 Under Article 6, the Committee has the
power to issue interim measures to state parties at any time after the receipt of a communication
and before a determination on the merits has been reached, in exceptional circumstances to avoid
possible irreparable damage to the victim or victims of the alleged violations. 94

86 Ibid, Article 44 (1).

87 Ibid, Article 44 (1) (a) & (b).
88 Ibid, Article 44 (2).
89 Ibid, Article 44 (6).
90 Ibid, Article 45 (d).
91 Convention on the Rights of the Child: Concluding Observations, Child Rights Connect: CRC Reporting Cycle
[Link] accessed
24 November 2025.
92 Optional Protocol to the Convention on the Rights of the Child on a communications procedure (adopted 19
December 2011, entered into force 14 April 2014) 2187 UNTS 247.
93 ibid, Article 5 (1).
94 ibid, Article 6.

16
While in Article 7 the admissibility of complaints by the committee requires exhaustion of all
available domestic remedies, the rule can be waived where the application of the remedies is
unreasonably prolonged or unlikely to bring effective relief. 95 This guarantees applicants relief to
get access to the committee where domestic remedies are unavailable. Article 11 establishes a
structured follow-up mechanism to ensure that States comply with any Committee’s views and
recommendations issued after determining merits of communications submitted. 96 Under this
framework, a State Party is required to submit a written response within six months, detailing the
measures taken or planned in light of the Committee’s findings. 97

Articles 13 and 14 create a strong inquiry and follow-up system for addressing serious or
widespread violations of children's rights by States. Where the Committee receives reliable
information suggesting such violations, it may invite the concerned State to cooperate in
examining the allegations and to submit prompt observations in response. 98. After reviewing the
State’s submissions and other reliable evidence, the Committee issues its findings and
recommendations.99 The State must then within six months, provide its observations, including
details on actions taken or planned to implement the Committee’s recommendations. 100

3. African Charter on the Rights and Welfare of the Child (ACRWC)

The Charter is monitored by the African Committee of Experts on the Rights and Welfare of the
Child established under Article 32. 101 The Charter establishes a State Reporting Mechanism
under Article 43 requiring state parties to submit initial reports within two years after entry and
every 3years thereafter followed by recommendations. 102 Further, Article 44 establishes a
Communications Procedure that allows individuals, groups and NGOs recognized by the

95 ibid, Article 7.
96 ibid, Article 11.
97 ibid
98 Ibid, Article 13(1).
99 Ibid, Article 13(4).
100 Ibid, Article 14(1).
101 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November
1999) OAU Doc CAB/LEG/24.9/49, Article 32.
102 ibid, article 43 (1) & (2).

17
Organization of African Unity, by a Member State, or the United Nations to file complaints
regarding violations upon which the committee may issue observations and recommendations.103

4. General Comments and Guidelines

The aforesaid Committees also issue authoritative interpretative guidance on specific rights (e.g.,
General Comment No. 5 on General Measures of Implementation), clarifying state obligations
and enhancing normative clarity.104 While UN guidelines and general comments are soft law and
have no binding effect on members of the international community, the Supreme Court in Mitu-
Bell Welfare Society v Kenya Airports Authority & 2 others 105 held that they can be used as an
interpretative tool aimed at breathing life into the Rights under the Conventions and can actually
help fill any existing lacuna under national law. 106 The Guidelines are tools or aids directed to
States Parties to help them in implementing the treaty or better fulfilment of their obligations
thereunder. Each state party is free to make use of the Guidelines, to the extent that is practicable
under its legal system. 107

4.2 Shadow Reports by NGOs, Coalitions and Strategic use

In Kenya, NGOs do not wait for the State report but engage early in UN treaty review
processes.108 They form coalitions to prepare shadow reports for bodies like the Committee on
the Rights of the Child, CRC, the CEDAW Committee and the Maputo Protocol, and participate
in pre-session working groups and briefings. By highlighting issues often sidelined in official
reports such as the statelessness of certain children, the need for emergency childcare services
during crises, or the persistence of corporal punishment, these NGOs ensure that the lived

103ibid, article 44(1).

104 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3, arts 43, 45; Committee on the Rights of the Child, General Comment No. 5: General measures of
implementation of the Convention on the Rights of the Child (CRC/GC/2003/5, 27 November 2003).
105 [2021] KESC 34 (KLR).
106 ibid
107 ibid
108 Committee on the Elimination of Discrimination against Women (CEDAW), 93rd CEDAW Pre-Sessional
Working Group [Link] accessed 24 November 2025.

18
realities of most Kenyan vulnerable children are placed at the centre of international
accountability processes.

Once the Committee issues its Concluding Observations, Kenyan NGOs immediately turn them
into advocacy tools. They widely publicize the UN findings by holding press conferences or
media campaigns and by publishing simplified summaries in local languages. 109 Civil society
then brings these conclusions to the attention of government, parliament and national institutions.
Advocates meet with relevant ministries, human rights commissions and Members of Parliament
often urging legislators to formally table the UN recommendations and question ministers on
their implementation.110 This sustained engagement includes periodic progress reports by NGOs
which keeps the pressure on beyond a single reporting cycle. This blended strategy of shadow
reporting plus targeted advocacy is generally far more effective than passive monitoring.

4.2.1 Role of Shadow Reports in Exposing Gaps and Providing Data

Shadow reports are produced by NGOs, coalitions, and National Human Rights Institutions to
complement or critique State reports to treaty bodies. The success stories often hinge on strong
NGOs with capacity, funding, and legal expertise. States with weak civil society or restricted
civic space may see limited impact, meaning treaty monitoring risks being symbolic. States’
official reports may under-report or omit problematic areas such as discrimination, birth
registration, and violence.111 Shadow reports highlight these omissions using independent data,
case studies, and field testimonies.

Despite shadow reporting being a powerful tool, its effectiveness depends on capacity. A 2015
case study conducted by Harir on UNEP, highlights that although UNEP is a large organisation,
it still has heavy reliance on external voluntary contributions, and that conditional donor ties and

109 ISHR Academy, Following up with Treaty Bodies [Link]

with-treaty-bodies accessed 25 November 2025.
110 Ibid
111 Udayanda, S. Social exclusion, and mistrust of state-led early childhood care and education policies:
Aqualitative case study in the estate sector of Sri Lanka. Early Child Development and care, 193(13-14), 1385-1402
[Link] (Accessed 30th November 2025)

19
bureaucratic policies make funding fragile.112 It identifies important challenges for NGOs such as
competition from other NGOs, conditional donor ties, and bureaucratic donor policies. Kenya
Community Development Foundation is one of the small local NGOs in Kenya as described in
the 2025 review of African NGOs. They suffer from shrinking donor funds, dependency on
external donors, and lack of capacity staff to maintain long-term operations. 113 There is also a
risk of overburdening civil society, therefore, repeated reporting cycles demand sustained effort,
and burnout can compromise quality.

Instances where reporting/NGO pressure led to legislative/regulatory action.

a. Kenya Nubian Children’s Nationality

In IHRDA & OSJI v. Kenya, the African Committee on the Rights and Welfare of the Child
found that Kenya had violated multiple Charter rights by denying children of Nubian descent
birth registration and nationality.114 In its landmark 2011 decision the Committee recommended
legislative and administrative reforms which included ensuring that stateless Nubian children can
acquire a Kenyan nationality at birth and that the birth‐registration system be applied non
discriminatorily.115

In response, NGOs such as the Institute for Human Rights and Development in Africa and OSJI
organized public dialogues and media campaigns to press Kenya’s government to implement the
ruling.116 The government has since taken some steps such as recognizing Nubians as a Kenyan
community and reforming registry procedures, but full compliance still remains elusive. A study
observes that Kenya has not fully implemented the Nubian minors’ decision, and Nubian and
other marginalized children still face lengthy vetting processes for IDs that put them at risk of

112 Harir M. (2015), Challenges Faced by NGOs In Mobilization of Funds for operations; The case of UNEP,
United States International University Africa
113 [Link] Accessed 30th
November 2025.
114 Institute for Human Rights and Development In Africa (IHRDA) and Open Society Justice Initiative (OSJI) on
Behalf of Children of Nubian Descent in Kenya V. The Government of Kenya (ACERWC Communication No.
002/Com/002/2009).
115 ibid
116 Institute for Human Rights and Development in Africa (IHRDA), Fostering implementation of decisions of
African regional human rights mechanisms [Link]
of-african-regional-human-rights-mechanisms accessed 24 November 2025.

20
becoming stateless.117 This case shows how coordinated NGO advocacy leveraging a treaty-body
decision can spur legal and policy change, even if implementation proceeds slowly.

b. South Africa- Ban on Reasonable and Moderate Chastisement

In Freedom of Religion South Africa v Minister of Justice and others,118 the Constitutional
Court unanimously held that the common-law defence of reasonable and moderate chastisement
of parental corporal punishment was unconstitutional. 119 The Court found that any amount of
physical punishment of a child which involves the causing of displeasure, discomfort, fear or
hurt and therefore violates the child’s constitutional rights notably the right to dignity as
enshrined under section 10120 and freedom from violence provided for by section 12(1)(c).121

NGOs also played a key role. In the case before the Constitutional court, the Dullah Omar
Institute joined the Global Initiative to End All Corporal Punishment of Children and the Parent
Centre as amici curiae, presenting evidence on the harms of spanking and positive parenting
alternatives.122 The Court agreed that less-restrictive means exist and that the archaic
chastisement defence could not be justified in a modern constitutional order. In its words,
preserving that defence ‘speaks quite forcefully against” children’s rights and ‘violates’ those
rights unjustifiably, child’s best interests are of paramount importance in every matter
concerning the child as provided for under Section 28(2). 123 The effect is that parents no longer
enjoy a legal shield for corporal punishment. Importantly, the government and Parliament have
since moved to codify the ruling: a draft Children’s Act amendment explicitly banning corporal
punishment is under discussion, and officials have pledged to promote positive parenting in line
with the judgment.

117 Julie I Lugulu, ‘Update on Kenya’s implementation of the decision in the Nubian minors’ case’ (2022) 6
Kabarak Journal of Law and Ethics.
118 Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others,
Constitutional Court, [2019] ZACC34.
119 Ibid
120 Constitution of the Republic of South Africa 1996, Section 10
121 Constitution of the Republic of South Africa 1996, Section 12(1)(c)
122 Dullah Omar Institute, ‘DOI Intervenes as Amicus Curiae in Corporal Punishment Matter’ Dullah Omar
Institute Journal [Link]
matter accessed 25 November 2025.
123 Constitution of South Africa 1996, Article 28(2)

21
VI. PART 5 — Practical Impact on Children’s Lives: Measuring Effectiveness

Choosing Indicators and Understanding Methodological Caveats.

Evaluating whether international children’s rights treaties have translated into better outcomes
requires the use of measurable indicators that reflect changes in children’s daily realities. For this
assessment, commonly used indicators include under-five mortality and infant mortality, national
rates of malnutrition and stunting, school enrolment and completion levels, birth registration
coverage, child marriage prevalence, reported cases of abuse or neglect, and the number of
children in detention.124 These indicators align with the core obligations under the Convention on
the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child to
safeguard children’s survival, development and protection.125

However, relying on these indicators presents several methodological challenges. First,

attributing positive or negative trends directly to treaty implementation is difficult, as
improvements may result from economic growth, political reforms, or donor-funded programmes
rather than compliance with international obligations. Secondly, the effects of treaty-inspired
reforms are rarely immediate; legal and policy changes often take years to influence service
delivery or shift harmful social norms, creating unavoidable time lags. 126 Thirdly, many states
face gaps in data availability, especially in rural or conflict-affected areas, limiting the reliability
of national comparisons. Finally, external factors such as conflict, epidemics, inflation, and
displacement may distort data trends, making causal analysis cautious and context-dependent.

For empirical evidence, reliable data sources include UNICEF’s State of the World’s Children,
Demographic and Health Surveys (DHS), Multiple Indicator Cluster Surveys (MICS), and the
World Bank’s World Development Indicators. These repositories offer comparable time-series
data that can be used to illustrate pre- and post-reform trends in mortality, education, protection,

124 World Policy Analysis Center, 'Assessing Compliance with the CRC: Indicators of Children’s Rights' (WPAC,
2023) <[Link]
%20CRC%20_%20Indicators%20of%20> accessed 30 November 2025.
125 UN Committee on the Rights of the Child, General Comment No 5: General Measures of Implementation of
the Convention on the Rights of the Child (2003) UN Doc CRC/GC/2003/5, paras 1–12.
126 Ann Skelton, ‘The Role of the Courts in Ensuring the Implementation of Children’s Rights’ (2018) 26 IJCR 1.

22
and birth registration, thereby strengthening the assessment of how effectively treaty obligations
have been translated into practical change.127

The political will and governance of a state are essential in tipping the scale when it comes to the
practical implementation of international children’s rights treaties. 128The mere ratification of the
international treaties only establishes the formal commitments but without intentional dedication
by the government to align with the treaty standards, substantive change remains elusive. 129
Political good will can be demonstrated in a number of ways, for example, establishing oversight
bodies to ensure that the treaties are complied with, prioritizing the welfare of children through
funding and enacting compliant legislation.130 Countries that demonstrate high levels of political
commitment tend to have robust implementation strategies hence better results in terms of
impacts. They have better reporting to the treaty bodies and stronger civil society partnerships
which translate into tangible developments.131

Civil societies have a crucial role as well in advancing the implementation of international
children’s rights treaties. Non-governmental organisations, community groups and advocacy
networks usually fill the gaps that have been left by the state. They do this by providing legal
assistance, delivering essential services to the children directly and also help in monitoring
government compliance and reporting abuses of children rights. This way, the civil society acts
as a bridge between the frameworks and the implementation in the grassroot levels where access
by the government as well as capacity is weak.132 The success of these initiatives by the civil
societies is dependent on the environment in which they work. With enabling environments that

127 UNICEF, State of the World’s Children (annual reports) <[Link]

children>
accessed 30 November 2025.
128 Save the Children UK, 'UN Convention on the Rights of the Child (UNCRC)' (5 December 2018)
<[Link]
child>accessed 30 November 2025.
129 Eurochild, 'Children’s Rights: Political will or won’t?'<[Link]
[Link]> accessed 30 November 2025.
130 Vanderbilt Journal of Transnational Law, 'Implementing the U.N. Convention on the Rights of the Child' (n.d.)
[Link]
accessed 30 November 2025.
131 ibid
132 UNICEF, 'Civil Society and Children's Rights', (2024)<[Link]
society> accessed 30 November 2025.

23
respect the freedom of association as well as sustainable funding, international legal standards
stand a greater chance at translating into meaningful improvements or children rights and lives. 133

Cases Where Treaty-Prompted Reforms Improved Outcomes

Despite the challenges of attribution, several countries demonstrate clear instances where the
ratification of international children’s rights treaties has contributed to measurable improvements
in children’s lives. These examples illustrate how aligning domestic legislation with treaty
obligations, particularly the CRC and the ACRWC, can strengthen institutional frameworks,
expand services, and ultimately improve outcomes in health, education, and protection.

A prominent example is Rwanda, where post-genocide reforms were heavily influenced by

obligations under the CRC and the African Charter. Following the enactment of the 2012 Law
Relating to the Rights and Protection of the Child, the government expanded community-based
health insurance, strengthened birth registration systems, and institutionalised free basic
education.134 As a result, under-five mortality fell significantly over the following decade, and
primary school completion rates rose steadily. UNICEF and independent evaluations consistently
attribute part of this progress to the integration of treaty standards into national policy
frameworks and budgetary priorities.135

Similarly, Kenya’s 2001 ratification of the ACRWC and 1990 ratification of the CRC informed
both the 2010 Constitution and the Children Act 2022, which clarified state obligations on free
and compulsory basic education, protection from harmful cultural practices, and the
administration of juvenile justice.136 These reforms coincided with substantial gains in birth
registration, reductions in female genital mutilation (FGM) among girls aged 15–19, and
increased access to schooling, especially after the introduction of free primary education in
2003.137 Although economic growth and political reforms also played a role, periodic reports to

133 ibid
134 Republic of Rwanda, Law Relating to the Rights and Protection of the Child (Law No 54/2011).
135 UNICEF, ‘Rwanda Country Office Evaluation Report’ (UNICEF 2020).
136 Constitution of Kenya 2010, arts 53–54; Children Act 2022 (Kenya).
137 Kenya National Bureau of Statistics, Kenya Demographic and Health Survey 2022 (KNBS 2023).

24
the CRC Committee show that Kenya adopted these measures expressly to fulfil treaty
obligations, demonstrating that international norms can influence domestic policy direction. 138

A further example is Brazil, where the 1990 Estatuto da Criança e do Adolescente (ECA) gave
constitutional force to CRC principles. The ECA mandated decentralised child-protection
councils, expanded social assistance, and prohibited the detention of children for “status
offences”.139 Over the next two decades, Brazil recorded steady declines in child labour and
improvements in school enrolment, much of which scholars link to the operationalisation of CRC
standards through integrated social policies such as Bolsa Família. 140 This illustrates how strong
domestic institutions, supported by treaty-driven norms, can yield sustained progress.

These examples collectively show that treaties can have meaningful practical effects when states
undertake deliberate harmonisation, invest in child-focused services, and build institutions that
give legal commitments to the operational force. They also illustrate the value of tracking
specific indicators, such as mortality, education enrolment and birth registration, to capture
changes following legal and policy reforms inspired by international obligations.

Cases Where Little Practical Change Occurred Despite Ratification

While international treaties on children’s rights set strong normative standards, their practical
effectiveness varies significantly across jurisdictions. In several states, ratification has produced
limited measurable improvement due to persistent structural barriers, inadequate resources,
political instability, or cultural resistance. These cases illustrate that the existence of a legal
framework alone does not guarantee substantive change in children’s lives.

South Sudan provides a clear example. Although the country ratified the CRC and the ACRWC
in 2015, ongoing conflict, weak state capacity, and chronic underfunding of social services have
severely constrained the realisation of children’s rights. 141 Indicators such as child marriage,
malnutrition, and out-of-school rates remain among the highest globally, with little improvement

138 UN Committee on the Rights of the Child, ‘Concluding Observations: Kenya’ (2016) UN Doc
CRC/C/KEN/CO/3-5.
139 Brasil, Estatuto da Criança e do Adolescente (Law No 8.069/1990).
140 F de Souza and M Rizzini, ‘The ECA and the Transformation of Child Protection in Brazil’ (2018) 26 IJCR 45.
141 UN Committee on the Rights of the Child, ‘Concluding Observations: South Sudan’ (2018) UN Doc
CRC/C/SDN/CO/1.

25
over the last decade.142 Reports by the CRC Committee attribute these challenges not to a lack of
formal commitment but to systemic insecurity, limited administrative structures, and the absence
of functioning child-protection systems that can translate treaty obligations into practical
protection.143 This demonstrates that treaties have limited effect where the foundational
conditions for implementation, stable governance and minimum social-service capacity, are
absent.

A different pattern emerges in India, where the CRC has been ratified since 1992 but persistent
social norms and uneven policy implementation have slowed progress in key areas. Despite
legislative reforms such as the Prohibition of Child Marriage Act 2006 and the Protection of
Children from Sexual Offences Act 2012, child marriage and child labour remain widespread in
several states.144 Scholars note that although India has a comprehensive legal framework aligned
with the CRC, enforcement is inconsistent and frequently undermined by cultural practices, local
power dynamics, and gaps in child-protection personnel. 145 As a result, treaty-inspired reforms
have not yielded uniform improvements, showing that legal harmonisation alone is insufficient
without simultaneous efforts to shift societal norms and strengthen enforcement mechanisms.

A further example is Nigeria, which ratified the CRC in 1991, but where domestic incorporation
remains uneven because the Child Rights Act 2003 applies only in states that have individually
adopted it.146 As of recent reports, several northern states have not fully domesticated the Act,
limiting children’s protection from early marriage, neglect, and harmful practices. 147
Consequently, national indicators show persistent disparities in girls’ education, birth
registration, and health outcomes between states that have embraced CRC-aligned reforms and
those that have not. The CRC Committee repeatedly highlights that the absence of uniform

142 UNICEF, South Sudan Country Statistics (UNICEF 2023).

143 Ibid.
144 Government of India, Prohibition of Child Marriage Act 2006; Protection of Children from Sexual Offences
Act 2012.
145 MY Abraham, ‘Implementation Gaps in India’s Child-Protection Regime’ (2019) 7 Journal of Child Rights
Advocacy 112.
146 Child Rights Act 2003 (Nigeria).
147 UNICEF Nigeria, Situation Analysis of Children in Nigeria (UNICEF 2022).

26
implementation significantly undermines the practical enjoyment of rights guaranteed under
international law.148

Across these contexts, the limited impact of international treaties arises not from deficiencies
within the treaties themselves but from domestic constraints, conflict, uneven incorporation,
cultural resistance and underinvestment. These examples underscore the importance of strong
political will, adequate resources, and sustained social change for international commitments to
translate into tangible gains for children.

VII. Barriers to Effective Implementation: Political, Cultural, Economic, and Structural

Factors

International treaties such as the Convention on the Rights of the Child and the African Charter
on the Rights and Welfare of the Child set ambitious standards to protect children’s rights to
education, health, protection, and participation. Yet in many countries, these commitments
remain largely aspirational because domestic reforms are slow, institutions are under-resourced,
and cultural or political barriers often prevent meaningful change. This section examines the
major obstacles, including political, economic, social, and structural factors, that hinder effective
implementation and show why ratification alone is not enough to secure real protection for
children.

Political barriers

Political conditions shape both the urgency and the sincerity with which international children’s
rights standards are domesticated149. Children's rights are generally not prioritised150. Within
government agendas, children are politically invisible. They do not participate in elections and
cannot serve as organized lobby groups. Political elites therefore find little electoral incentive to
expend political capital on reforms that require difficult conversations or challenge established
148 UN Committee on the Rights of the Child, ‘Concluding Observations: Nigeria’ (2010) UN Doc
CRC/C/NGA/CO/3-4.
149 UN Committee on the Rights of the Child, ‘General Comment No 5: General Measures of Implementation’
(2003) UN Doc CRC/GC/2003/5, para 1.
150 B Mezmur, The Status of Children’s Rights in Africa: Progress and Challenges (2016) 23 African Human
Rights Law Journal 5, 12–14.

27
interests.151 Symbolic ratification is easy, but the hard administrative and legislative work that
follows is often postponed.152 There is also a lack of political will. This frequently undermines
implementation. Governments may ratify treaties to satisfy international partners, gain
diplomatic legitimacy, or appear aligned with global human rights norms. Once ratification is
complete, domestic reform can quietly stagnate. Ministries responsible for children’s rights tend
to be weak, underfunded, and politically marginal. Without high-level backing from the
executive or parliament, implementation efforts drift.153

Political instability is another contributing factor, since revolving governments and fragile
coalitions tend to obstruct reform [Link] leadership changes rapidly, long-term
projects like children’s law reform lose continuity. Each administration resets priorities. This is
evident in countries emerging from conflict or experiencing recurrent political turmoil, where
stabilization and security consistently overshadow social reform 154. For instance, South Sudan,
despite ratifying the Convention on the Rights of the Child in 2015, has been unable to undertake
comprehensive legislative reform155. Continuing conflict, displacement, and shifting leadership
priorities have prevented alignment of domestic law with treaty standards 156. In such
circumstances, the treaty exists symbolically but does not meaningfully protect children.

Lastly, competing legislative agendas. Bills on taxation, national security, infrastructure, or

electoral reform dominate parliamentary time. Children’s rights legislation is frequently pushed
to the margins of the legislative calendar, causing multi-year delays. For instance, during
Kenya’s period of intense constitutional and electoral reforms between 2007 and 2010,
children’s rights legislation was delayed157 as Parliament focused almost exclusively on political

151 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice
(Chicago UP 2006) 82–84.
152 Ibid; S Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff
1999).
153 M Freeman, ‘The Future of Children’s Rights’ (2000) 14 Children and Society 277.
154 UNICEF, The State of the World’s Children 2016 74–75.
155 Human Rights Council, National Report Submitted in Accordance with Paragraph 5 of the Annex to Human
Rights Council Resolution 16/21: South Sudan (2016) UN Doc A/HRC/WG.6/24/SSD/1.
156 UN Committee on the Rights of the Child, ‘Concluding Observations on South Sudan’ (2017) UN Doc
CRC/C/SSD/CO/1, paras 6–10.
157 Republic of Kenya, Children Act 2001 (delay in implementation noted during constitutional reform 2007–
2010)

28
restructuring and national cohesion158. This demonstrates how easily child-focused reforms are
overshadowed by politically sensitive national agendas.

Economic barriers

Even where political commitment is present, economic constraints slow implementation.

Children’s rights obligations require significant resources, including trained personnel, shelters,
child-friendly courts, legal aid, and effective oversight. Many governments struggle to fund these
systems because budgets are absorbed by debt, security, and infrastructure. As a result, reforms
progress slowly or remain only partly implemented. This gap is clear where states enact strong
laws but fail to finance the institutions needed to operationalise them. Kenya illustrates this
problem. The Children Act 2001 aligned domestic law with the Convention on the Rights of the
Child, yet many provisions took over a decade to implement because county children’s offices
lacked staff, funding, transport, and training 159. Reports from the Department of Children’s
Services repeatedly noted that legal guarantees exceeded available resources.

In some states, donor dependence creates further complications. Child protection systems may
rely on international organisations or non-governmental actors for key services. This leads to
fragmented implementation, unequal regional coverage, and short-lived programmes vulnerable
to donor priorities and funding cycles. Malawi offers a striking illustration of donor
dependence160. Many child protection functions rely on Save the Children, UNICEF, and other
partners. When donor funding cycles shift, essential services such as safe shelters, community
child protection committees, and violence referral mechanisms become unstable 161. Although
Malawi has ratified children’s rights treaties, the state’s financial dependence on NGOs produces
uneven implementation from district to district 162. A further factor is the gap between
international obligations and domestic capacity. Many treaties set ambitious universal standards

158 J Todres, ‘Emerging Limitations of the Convention on the Rights of the Child: Addressing Legal Pluralism’
(2011) 33 Human Rights Quarterly 1
159 Children Act 2001 (Kenya); UNICEF, Kenya: Children’s Rights Profile (UNICEF 2012).
160 UNICEF, ‘Malawi Child Protection Strategy 2012–2016’ (UNICEF Malawi 2012).
161 Ibid
162 Ibid

29
without accounting for the limited resources of low income states, 163which produces a continuing
divide between treaty expectations and what governments can realistically finance.

Social and cultural barriers

In many countries, customary and traditional norms hold strong authority. These norms regulate
marriage, guardianship, inheritance, discipline, and family structure 164. When treaty obligations
conflict with customary practices, resistance emerges 165. Patriarchal social structures pose a huge
challenge. Reforms that promote gender equality or empower girl children may be perceived as
threats to male authority or established family hierarchies 166. Cultural expectations around
obedience, discipline, and family privacy sometimes frame children’s rights as unwelcome
intrusions167. This slows societal acceptance and reduces the pressure on governments to
implement reforms quickly168. One visible example relates to child marriage. In Tanzania, despite
ratifying the Convention on the Rights of the Child, laws allowing girls to marry at 14 under
customary and religious norms persisted for many years 169. Cultural support for early marriage
slowed reform significantly, demonstrating how powerful social norms can override treaty
obligations.170

Religious institutions also often influence public opinion and political decision-making 171. When
treaty provisions are considered inconsistent with religious doctrine, governments may introduce
reservations or implement selectively. Sensitive areas include adoption, reproductive health,
sexuality education, and the autonomy of adolescents. 172 Stigma and social invisibility

163 UN OHCHR, Report on Obstacles to the Effective Implementation of the Rights of the Child (2021) UN Doc
A/HRC/47/31
164 J Oloka-Onyango, Law, Custom and Women’s Rights in East Africa (Fountain Publishers 2020) 45–48.
165 UN Committee on the Rights of the Child, ‘General Comment No 5: General Measures of Implementation’
(2003) UN Doc CRC/GC/2003/5, para 20.
166 Sylvia Tamale, ‘Exploring the Contours of African Sexualities’ in S Tamale (ed), African Sexualities, 15.
167 B Mezmur, ‘The African Children's Charter and the CRC: Complementary or Competitive?’ (2008) 10 Int J
Child Rights 448, 456.
168 UNICEF, The State of the World’s Children 2016 72–74.
169Law of Marriage Act (Tanzania) (Cap 29), ss 13–17
170 Rebeca Z Gyumi v Attorney General [2016] High Court of Tanzania at Dar es Salaam, Misc Civil Cause No 5
of 2016; See ‘Tanzania: Child Marriage Ruling Victory for Girls’ (Human Rights Watch, 8 July 2016)
[Link] accessed 24 November 2025.
171 A An-Na’im, Islam and the Secular State (Harvard UP 2008) 104–112.
172 UN Committee on the Rights of the Child, ‘General Comment No 4: Adolescent Health and Development’
(2003) UN Doc CRC/GC/2003/4.

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contributes to child abuse, particularly sexual abuse 173, is often hidden or treated as a private
matter. Communities may discourage reporting or silence victims to protect family honour. This
reduces data availability, weakens public demand for reform, and allows governments to
downplay the urgency of implementing treaty obligations174.

Structural and legal complexity

Legal systems that incorporate multiple sources of law face particular challenges 175. Where
formal statutory law coexists with customary law, religious law, or provincial law, harmonizing
these systems with treaty obligations requires extensive consultation and negotiation. Law
reform often requires drafting by specialised commissions, inter-ministerial coordination, public
participation exercises, and parliamentary debate 176. Each stage introduces potential
bottlenecks177. Governments sometimes exploit these procedural requirements to delay politically
sensitive reforms while avoiding criticism 178. The most prominent example is Nigeria 179, where
each state must separately domesticate the Child Rights Act. More than a decade after national
enactment, several states had not adopted it 180. Children in these regions remained governed by
older, less protective legislation181. This structural arrangement means that national ratification
does not automatically translate into nationwide protection182.

Deliberate institutional inertia as domestic institutions can delay implementation by interpreting

treaty obligations narrowly, refusing to harmonise regulations, or adopting overly cautious

173 WHO, Responding to Children and Adolescents Who Have Been Sexually Abused (2017) 5–7.
174 UN Committee on the Rights of the Child, ‘General Comment No 13: The Right of the Child to Freedom from
All Forms of Violence’ (2011) UN Doc CRC/C/GC/13, paras 31–33.
175 B Mezmur, The Status of Children’s Rights in Africa: Progress and Challenges (2016) 23 African Human
Rights Law Journal 5, 12.
176 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice
(Chicago UP 2006) 82–84
177 Ibid
178 Ibid 84-85
179 Child Rights Act 2003 (Nigeria); see also UN Committee on the Rights of the Child, ‘Concluding Observations
on Nigeria’ (2015) UN Doc CRC/C/NGA/CO/3-4, paras 8–9.
180 ibid
181 Ibid
182 UN Committee on the Rights of the Child, ‘General Comment No 5: General Measures of Implementation’
(2003) UN Doc CRC/GC/2003/5, para 22.

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approaches to change.183 Courts, too, may hesitate to apply international children’s rights norms
directly, especially where domestic statutes appear silent or ambiguous 184 Formal delaying tactics
also such as reservations, interpretive declarations, slow publication of implementing
regulations, or partial enactment of key statutes. 185 These strategies create the appearance of
progress while maintaining the status quo. South Africa provides an illustrative case. While the
country has strong constitutional and statutory commitment to children’s rights, 186 the process of
amending conflicting laws through parliamentary committees and public participation processes
187
has been slow. Reforms relating to corporal punishment, adoption, and social services took
years to pass due to procedural requirements.188

VIII. PART 7 — Strategies for Strengthening Effectiveness: Legal, Policy and Advocacy
Solutions

For laws to achieve their intended purpose, reforms must be implemented to improve
effectiveness of children laws in Kenya. The following are key recommendations aimed at
strengthening the effectiveness of the laws, ensuring that they move beyond being just written
laws to delivering justice and safeguarding the rights of all citizens, especially children.

1. Harmonizing and reforming child protection laws

Kenya has many legal frameworks that provide for the rights of children such as the constitution
of Kenya of 2010 and the Children Act of 2022 and other customary laws. However,
inconsistencies persist between these statutory laws and international laws such as the UN
Convention on the Rights of the Child . An example is in the Children Act, 2022 under Section
13 guarantees every child free and compulsory basic education, reflecting Kenya’s commitment

183 B Mezmur, ‘The Implementation Gap in Children’s Rights in Africa’ (2013) 11 International Journal of
Children’s Rights 231, 234.
184 R Hodgkin and P Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd edn,
UNICEF 2007).
185 UN Committee on the Rights of the Child, ‘Concluding Observations on South Africa’ (2016) UN Doc
CRC/C/ZAF/CO/3-5, para 12.
186 UN Committee on the Rights of the Child (n 11) para 11
187 African Union, Agenda 2040: Africa’s Agenda for Children (ACERWC 2016).
188 ibid paras 11–12; see also B Mezmur, Children’s Rights in Africa: A Legal Perspective

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to universal access. However, the Basic Education Act, 2013 under Section 29 permits schools to
impose levies and fees beyond tuition. This contradiction undermines equity, limiting vulnerable
children’s access to education. To avoid this, review and amendment of child protection laws
should be done to remove the inconsistencies. Particular attention should be paid to eliminating
statutes or customs that perpetuate discrimination against children in order to strengthen
enforcement and access to justice189.

Reforms should also be done to remove outdated provisions that perpetuate discrimination or
impinge on the child’s best interests such as the Basic Education Act, 2013 under Section 29
which permits levies beyond tuition, yet the Children Act, 2022 Section 13 guarantees free
compulsory education

2. Strengthening child protection institutions

Laws alone are insufficient without institutions for administration and oversight. The Children
Act, 2022 and Constitutional devolution have established the National Council for Children’s
Services and county child protection units. Kenya’s 2025/26 budget allocates KSh 151.5 billion
to education, with KSh 28.9 billion for junior secondary schools. Despite this, allocations remain
relatively low compared to overall expenditure (KSh 4.239 trillion), largely due to debt
servicing, recurrent costs, and competing priorities. Past budgets show similar underfunding of
child-focused sectors. Building on this foundation, the state should allocate dedicated budget
lines for child protection, ensuring resources reach both national and county levels for effective
service delivery190.

County governments should establish more rescue centres, rehabilitation schools, and family
support services, especially in rural areas where vulnerabilities are exacerbated by poverty and
cultural practices.

189 Harmonisation of laws on children in Africa a Continental Study. Available at:

[Link]
accessed 24 November 2025.
190 Child Protection Systems Strengthening Approach 2021 September ... Available at:
[Link] Protection Systems Strengthening .pdf (Accessed: 24 November
2025).

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Recruitment and continuous training of children’s officers should be considered in order to
enable smooth running of the institutions and effective protection of children.

3. Improving child participation mechanisms

Despite legislative support, children’s voices are often excluded from decisions that affect them
in the community forums. Establishment of child participation mechanisms in schools, local
government, and justice systems should be initiated to ensure that children's voices are also
heard. Periodic feedback sessions with children in alternative care should also be encouraged to
inform service improvement191.

4. Procedural reforms for child-friendly justice

Adversarial legal procedures frequently traumatize child victims and fail to guarantee their
rights. Kenya should legislate special measures such as in-camera hearings, use of
intermediaries, and recorded or video-link testimony for child witnesses in sexual abuse and
exploitation cases. Diversion programs for juvenile offenders should be encouraged, prioritizing
restorative justice, counseling, vocational training, and community reintegration over punitive
measures192.

5. Targeted measures against harmful cultural practices

Practices such as child marriage, female genital mutilation and discriminatory kinship care
persist in Kenya despite legal prohibitions. To address this monitoring and investigation of
harmful practices within county child protection units and social service agencies, clear
pathways for referral and intervention should be strengthened. The government should also
support survivor-centered care, including medical, psychosocial, and legal assistance193.

191 Guidelines on child participation. Available at:

[Link] Guidelines on Child Participation_English.pdf
(Accessed: 24 November 2025).
192 (PDF) child-friendly justice and procedural safeguards for children in criminal proceedings: New momentum
for children in conflict with the law? Available at: [Link]
friendly_Justice_and_Procedural_Safeguards_For_Children_in_Criminal_Proceedings_New_Momentum_for_Child
ren_in_Conflict_with_the_Law (Accessed: 24 November 2025).
193 Embark on a whole of society approach in Tackling Harmful Cultural Practices in Kenya (2024) Amnesty
Kenya. Available at: [Link]
cultural-practices-in-kenya/ (Accessed: 24 November 2025).

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 6. Implementation of national child protection data systems

Monitoring progress and accountability remains weak due to fragmented data. It is essential to
establish a real-time, integrated data system for child protection, tracking cases, service
provision, institutional outcomes, and budget expenditure. This can be done by all children’s
service institutions reporting regularly to NCCS, with independent inspection and public
disclosure of findings. Regular, reliable data collection and analysis on child protection issues is
key for accountability and planning194.

We propose a comprehensive implementation timeline that outlines short-term, medium-term,

and long-term actions; identifies monitoring indicators to track progress; and presents targeted
advocacy strategies.

REFORMS’ MONITORING INDICATORS

For reforms in Kenya's child protection system to ensure measurable impact, strong monitoring
and evaluation must lie alongside implementation.

To begin with, a Legal Alignment Index should be used to gauge the degree of harmonization
that Kenya's domestic legal frameworks have with international and regional instruments on
children's rights, such as the UN Convention on the Rights of the Child and the African Charter
on the Rights and Welfare of the Child. Regular legal audits and policy reviews would provide a
basis for measuring this alignment and identifying areas where domestic law still falls short of
global standards.

It is essential to also develop an Institutional Capacity Score to measure operational readiness

and professional competence in key institutions for child protection. This indicator would
investigate training, staff deployment, and interagency responsiveness through structured skills
assessments and institutional surveys. Enhancing institutional capacity is at the core of ensuring
that reforms do not remain merely symbolic but are effective in operations.

Thirdly, a Service Accessibility Rate would indicate the share of children who have access to
basic welfare, health, and education services. It shall be obtained from the government’s
194 National child policy implementation plan. Available at: [Link]
10/National Child Policy Implementation Plan 2020-2025 (1).pdf accessed 24 November 2025.

35
administrative data, community reports, and field surveys to ensure comprehensiveness. This
acts as a proxy to see whether child protection reforms translate into real social gains for
vulnerable populations across various counties in Kenya.

A fourth indicator, Inter-agency Coordination Effectiveness, will determine the strength of

collaboration among governmental departments ie. NCCS, NGO’s, and CBO’s. This will be
tracked by periodic reviews of meeting outcomes, joint action plans, and qualitative assessments
of the interagency engagement. Effective coordination is essential for eliminating duplication,
closing service gaps, and ensuring that interventions reach children at risk.

Finally, a Public Awareness Level indicator will track the level of understanding and
assimilation of children's rights norms by the Kenyan public. Opinion polls, media analyses, and
focus group studies are some of the tools that will be used to measure changes in public
perception. Awareness needs to be raised at household, school, and community institutional
levels for entrenching this culture of child protection in the social fabric.

Together, these indicators offer a multidimensional framework for accountability. They ensure
that the legal commitments are matched by measurable progress in institutional capacity and
public understanding. These indicators should be updated periodically after every major policy
reform and reviewed independently through oversight bodies.

ADVOCACY STRATEGIES

In order to lessen and eventually close the gap between our treaty obligations and the reality on
the ground, we must be intentional about both national and regional advocacy. Locally, this
begins with using the media more strategically inorder to challenge misleading narratives and
remind the public why international children’s rights standards matter in our daily lives. At the
same time, real change must be rooted in the grassroots. When community leaders, teachers,
religious groups, and local organizations understand these rights and speak about them
consistently, they have an effect of generating the kind of pressure that pushes national decision-
makers to act.

Regionally, Africa needs to take a more assertive place in global advocacy spaces. This
essentially means building partnerships with donors and international agencies which are willing

36
to invest in modernizing children’s rights systems, while ensuring those investments align with
local priorities and produce measurable outcomes. It also requires showing up, regularly and
confidently in global forums, where sharing our lived experiences can attract broader support and
reinforce the urgency of reform.

If we commit to this kind of coordinated advocacy, both at home and across Africa, we stand a
real chance of turning international promises into everyday protections,ensuring that children’s
rights are not only acknowledged in law but genuinely upheld in practice.

IX. CONCLUSION

International treaties on children’s rights are effective only when states translate their
commitments into concrete domestic action. Ratification provides a strong legal foundation, but
real protection depends on timely legislation, functional institutions, adequate resources, and
active monitoring. Where governments act with consistency and political will, treaties lead to
measurable progress in health, education, protection and participation. Where delays, weak
institutions or cultural barriers persist, the value of these treaties remains largely symbolic.
Strengthening implementation therefore requires coordinated legal reform, better funding, strong
oversight mechanisms, and sustained engagement from courts, civil society and international
bodies to ensure that the rights guaranteed on paper become real for every child.

37