Incorporation of the Best Interests of the Child Principle in Kenya’s Climate Change Regime: an Analysis

Abstract

The existing child protection legal framework, under both international and domestic regimes in Kenya is robust. Children are no longer defined from the perspective of being objects of care, attention and welfare, but from the perspective of being right holders whose views are important. This notwithstanding, children continue to bear the greatest brunt of the impacts of climate change, culminating in serious setbacks on the realization of their rights, which scenario if not given due attention, may translate child rights to paper rights. It is, however, unfortunate that in the formulation and implementation of the climate change regimes the world over, the rights of children are persistently ignored. This disregard violates the principle of the child’s best interests and children’s right to be involved in decisions that impact their lives. This study examines the extent of incorporation of the principle of the best interests of the child in Kenya’s climate change regime. This was done by first analyzing the interface between climate change and best interests of the child. The study further highlights the extent to which the child’s best interests are incorporated in the international climate change regime. In addition, the incorporation of best interests of the child in Kenya’s national climate change legal framework is analyzed. This study is anchored on the Human Vulnerability Theory, which is premised on the empirical realities of the human condition as a complex subject with different growth stages from birth to old age. These stages interact with the law uniquely, depending on the vulnerabilities of the physical embodiment of each stage, meaning that the law and more specifically the climate change regime, should be tailored to be sensitive to the vulnerabilities of childhood. Ultimately, the study makes recommendations for legislative, policy and administrative interventions required to achieve the incorporation of best interests of the child in Kenya’ climate change regime.