Ask a lawyer:
My wife was imprisoned with our baby.can I sue the court/prison for violating my baby's rights? The baby was innocent..
Introduction
In Kenya, the rights of children, including those of infants accompanying their incarcerated mothers, are protected under various legal frameworks. The situation you have described raises significant concerns about the welfare and rights of your baby. This response will explore the legal avenues available to you, including the possibility of suing the court or prison for violating your baby's rights.
Table of Contents
Legal Framework Protecting Children's Rights
Rights of Children Accompanying Incarcerated Mothers
Legal Recourse for Violations of Children's Rights
Relevant Case Laws
Conclusion
Sources
1. Legal Framework Protecting Children's Rights
Kenya has a robust legal framework aimed at protecting the rights of children. The primary legal instruments include:
The Constitution of Kenya, 2010: Article 53 of the Constitution guarantees every child the right to parental care and protection, which includes the right to be protected from abuse, neglect, harmful cultural practices, and all forms of violence.
The Children Act, 2001: This Act provides for the care, protection, and welfare of children. It emphasizes the best interests of the child as the primary consideration in all actions concerning children.
The United Nations Convention on the Rights of the Child (UNCRC): Kenya is a signatory to the UNCRC, which outlines the civil, political, economic, social, and cultural rights of children.
2. Rights of Children Accompanying Incarcerated Mothers
The Kenyan legal system recognizes the unique needs of children who accompany their incarcerated mothers. The Kenya Prisons Service has policies in place to ensure the welfare of such children. The recently launched Policy on Care of Children of Incarcerated Mothers aims to create a conducive environment for the realization of the best interests of children aged 0-4 years who accompany their mothers to prison.
Key provisions include:
Ensuring that the living conditions in prisons are suitable for children.
Providing access to healthcare, nutrition, and education.
Facilitating regular contact with family members outside the prison.
3. Legal Recourse for Violations of Children's Rights
If you believe that your baby's rights have been violated, you have several legal options:
Filing a Petition in the High Court: You can file a petition in the High Court of Kenya seeking redress for the violation of your baby's rights. The court can issue orders to ensure the protection and welfare of your child.
Complaints to the Kenya National Commission on Human Rights (KNCHR): The KNCHR is mandated to investigate complaints of human rights violations. You can lodge a complaint with the KNCHR, which can then investigate and recommend appropriate action.
Judicial Review: You can seek a judicial review of the actions of the prison authorities if they are found to be unlawful or unreasonable.
4. Relevant Case Laws
Several case laws in Kenya have addressed the rights of children and the responsibilities of the state in ensuring their welfare:
Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014] eKLR: This case emphasized the state's duty to protect the rights of children and ensure their welfare, even in challenging circumstances.
Parties: Baby ‘A’ (through the mother E A) vs. Attorney General & 6 others.
Outcome: The court ruled in favor of the petitioners, highlighting the importance of the best interests of the child.
Relevance: This case underscores the state's obligation to protect children's rights, which can be invoked in your situation.
Kenya Court Rules Fathers Can Get Custody of Minors: An April 7 court ruling by Justice Joel Ngugi of the Nakuru law courts stated that fathers can be granted custody of young children, upending decades of Kenyan law.
Parties: Not specified.
Outcome: The ruling allowed fathers to be granted custody, emphasizing the best interests of the child.
Relevance: This case demonstrates the court's willingness to prioritize the best interests of the child, which can be relevant in seeking custody or better conditions for your baby.
5. Conclusion
In conclusion, you have the right to seek legal redress if you believe that your baby's rights have been violated while accompanying your incarcerated wife. The legal framework in Kenya provides several avenues for protecting children's rights, and relevant case laws support the enforcement of these rights. It is advisable to consult with a legal professional to explore the best course of action based on the specific circumstances of your case.
6. Sources
By understanding and utilizing these legal provisions, you can take steps to ensure the protection and welfare of your baby.
Answered by mwakili.com