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Faculty of Law | University of the Western Cape

Research Portal

Faculty of Law | University of the Western Cape


Kenya leads the way in dismantling the 'orphan industrial complex'

Published: 06 October 2020 | Written by Julia Sloth-Nielsen

Kenya has taken significant steps to place family-based care at the centre of its child-protection system. This is a break from the decades-old practice of privately-run institutions providing care for children, a practice which has persisted largely as a result of poverty, lack of access to services and education, disability, and family breakdown. As Kenya returns to traditional responses to separation of children from caregivers, there are still nevertheless an estimated 45,000 children in 654 institutions throughout the country, most of which are privately run.

Building on alternative guidelines for care introduced in 2014, Kenya announced plans in 2017 for a long-term action plan to end the institutionalisation of children. It also placed a moratorium on the registration of institutions.

Institutionalisation is inherently harmful to a child’s development and well-being. This is because it places children at increased risk of neglect and physical and sexual abuse as well as exploitation. Children living in institutions are also more likely to suffer developmental delays that result in poor mental health, academic failure, and increased chances of behavioural problems later in life.

Research also shows that the majority of children living in institutions have families and are often placed in care due to poverty.

The UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the Constitution of Kenya all recognise the family as the natural and fundamental unit of society and the necessary basis of social order. In this sense institutionalising children runs counter to Kenya’s traditional approach to children being cared for by extended families or friends in their own communities.

Kenya's national policy efforts have been deepened even further. Recently, the governor of one of Kenya's 47 counties signed a declaration at Leiden University to protect the rights of children. This is the first time a county governor has taken significant steps to address this particularly vulnerable population -- a problem which inherently requires local solutions to address the drivers that lead children to be institutionalised in the first place.

Following the promulgation of the new constitution in 2010, Kenya adopted a devolved system of government which provides for the distribution of powers and resources from the national level to the counties. Devolved governments have obligations to safeguard and promote the welfare of children by coordinating and aligning children’s activities into county government plans and mobilising resources on behalf of children, in addition to specific and powers and functions transferred to the county governments, such as pre-primary education, health, development, and the running of children’s care facilities.

Strengthening families, not institutions

Weak governance of the child-protection sector in a number of countries across Africa contributes to the institutionalisation of children and the violation of children’s rights. This is exacerbated by lack of access to social services and by poor oversight of the registration and inspection of institutions.

The same is true in Kenya and in Murang’a County, where more than 600 children are known to live in institutions, with poverty acting as the main driver of institutionalisation. The other contributing factors are disability, family breakdown, alcoholism and child abandonment.

The Leiden Declaration sets out a series of commitments to protect children by reforming the way in which children are cared for in the county, which is situated in central Kenya. The governor’s commitments include enacting a Children’s Bill to enhance protection, strengthening the county’s social work force, and establishing a children’s office and ombudsperson.

In this context, it is worth noting that institutions have become lucrative money-making businesses in a number of countries. Reflecting a phenomenon that has been called the 'orphan industrial complex', residential care institutions, which are often not registered with authorities, are being fuelled by money obtained through donations, 'voluntourism' and, sometimes, public funds.

The recruitment of children to orphanages for the purpose of exploiting them for financial gain is child trafficking and taking place in a number of countries, as highlighted in the 2018 US Department of State Trafficking in Persons Report. Prosecutions are seldom forthcoming, if at all.

Murang’a County is not immune to this problem. Child trafficking to institutions in Murang’a County, as well as other forms of abuse and exploitation, are well-documented.

Against this background, there is added significance to the current Kenyan care reforms and local initiatives such as the Leiden Declaration, which are designed to end institutionalisation and strengthen family-based care.

Reforms felt across Africa

Kenya is not alone in the reform of care systems for children. Countries across the world are dismantling institutional care, redirecting resources towards family support, and strengthening other forms of family-based alternative care. These include kinship and foster care.

Rwanda, for instance, is poised to make the country institution-free, having already closed 29 of the 35 institutions in the county. Neighbouring Uganda has also taken important steps in the same direction. Last year, not a single child was admitted to a children’s home in the pilot district of Tororo.

Sudan, a predominantly Muslim country, has similarly committed to a system that explicitly rejects institutional care. As a result, it has strengthened its care system, called kafala, and provided preventive services.

Change starts at the local level, as Murang’a County in Kenya is doing to ensure that children are protected. This is precisely what is needed across the globe.

Julia Sloth Nielsen Profile Un 

About the author: Julia Sloth-Nielsen is Professor of Law at the University of the Western Cape and the chair of Children’s Rights in the Developing World at the Child Law Department at the University of Leiden in the Netherlands. Read more