Child participation is one of the core principles of the United Nations Convention on the Rights of the Child (CRC). Article 12 of the convention recognizes that children have a right to be heard. According to UNICEF, Child and youth participation in the informed and voluntary involvement of children including those from marginalized groups, children of different ages, and different abilities; in issues that affect them directly and indirectly.
Children’s participation, therefore, is about children having the opportunity to express a view, influence decision-making, and achieve change. It is the informed and willing involvement of children, including the most marginalized and those of different ages and abilities, in any matter concerning them (Save the Children, 2005). There are a number of reasons why child participation is important. These include:
Nevertheless, it is not practical to engage each and every child in decision-making. Efforts should be made to ensure each child has equal opportunities to participate or be represented in making decisions that affect them. Selecting children to be involved in child participation needs to consider representations on gender, child’s age including both older and younger children, ethnicity, children with special needs, religious background, social and economic background, school attendance, rural or urban area residence, According to FHI (2009),
Children’s participation must aim to be:
The Kenyan government has recently introduced a Bill to repeal the Social Assistance Act 2013. The Social Assistance (Repeal) Bill 2020 seeks to repeal the Social Assistance Act 2013, which was assented to in 2013 but has never been operationalized 7 years later. The reason or object of the repeal is to enable the operationalization of the Social Assistance Fund, under draft regulations through the Public Finance Management Act 2012.
The Social Assistance Act of 2013 was passed to enhance the provision of social assistance and related services to vulnerable populations in Kenya. The Social Assistance Act 2013 provides parameters of those who qualify to receive social assistance. It also sets different situations where social assistance may be provided. These include in emergencies, short term or long term basis, and in special circumstances.
The Act also provides for the establishment of a Social Assistance Authority as an institutional mechanism for the provision of social assistance and other key services to vulnerable people.
The government's intention to set up a Social Assistance Fund under the Ministry of Finance and National Treasury is misguided. One wonders why the government is keen to repeal the Social Assistance Act 2013, using regulations under the Public Finance Management Act 2012. In 2019, when the government asked for memoranda on the proposed regulations, civil society stakeholders were categorical that the move to develop regulations on social assistance under the PFMA 2012 should be totally rejected.
Social Assistance is not just limited to providing grants to those in need, but it includes different aspects of social protection and social services. The provision of grants is just one facet of social assistance. Social assistance takes different forms it can be cash grants, food donations of food stamps, food for work, and it could also be cash for work programs among other instruments. The Social Assistance Act 2013 had also anticipated other needs that the beneficiaries have beyond cash, including psychosocial support, rehabilitation, and community development. Moreover, social protection approaches are diverse including a provision (which includes the provision of grants or food items), preventive (cushioning people against risks and shocks for example through insurance), promotive (includes interventions that strengthen livelihoods and productivity), and transformation (which includes policies and programs that promote equity and empowerment including promoting social and economic rights).
It is therefore unlikely that the Ministry of Finance and National Treasury would integrate all these services in the design of the social assistance fund. Social protection goes beyond cash transfers, and this is one reason why its implemented under the Ministry in charge of social services because it requires a holistic approach.
It is also notable that social protection has three pillars which include social assistance (cash transfers, currently consolidated into the Inua jamii program), social security (the National Social Security Fund), and Health Insurance (The National Health Insurance Fund). The other two pillars of social protection, namely the social security and health insurance both operate through substantive laws ;- The National Social Security Act and the National Health Insurance Act respectively. It is highly unlikely that these two pillars will be recreated under the Public Finance Management Act. It has always been our contention that the social assistance pillar remains the weakest link in social protection since the substantive law has not been operationalized. Additional social security and health insurance have through their respective Acts solid institutional mechanisms ( the NSSF and the NHIF Boards).
Previous reviews on the Social Assistance Act 2013 indicate that the proposed National Social Assistance Authority is not tenable; however there is a need for the government to have clarity on the institutional arrangement and governance of social assistance programs, but certainly not an implementation structure under the Ministry of Finance and National Treasury. The Ministry of Finance and National Treasury can form part of the governance structures that enhances the monitoring of funds, but not the direct implementation of such funds. The funds that have been established under the Government Financial Management regulations including the Women Enterprise Fund and the youth funds seem to be limited to the disbursement and repayments of loans.
Since 2004, some of the social assistance programs that have been initiated by the government include the cash transfer programs that have been implemented include the cash transfer for the elderly (OP-CT), cash transfer for Persons with Severe Disability ( PWSD-CT), and cash transfer for Orphans and Vulnerable Children ( CT-OVC), which are now consolidated into one program the inua jamii program.
Cumulatively, the exchequer makes available about 26 billion shillings annually for the cash transfer programs, with each beneficiary entitled to 2000 shillings per month, payable every second month. 1.2 households or 6 million people benefit from the cash transfer programs. The establishment of the Social Assistance Fund under the PFMA amounts to duplicity and will cause confusion with the ongoing social assistance programs.
There have been different legal processes undertaken by the government in a bid to come up with a new law on social assistance and social protection. These processes include Social Protection Council Bill 2014, The Social Protection Bill 2016, The Public Finance Management (Social Assistance Fund )Regulations 2019, and more recently the Social Assistance Fund Bill 2019( under the PFMA 2012) .
The undertaking of various processes in a bid to come up with a social assistance or social protection law in the last five years points to the lack of clarity by the government on how the social assistance pillar of social protection should be undertaken.
Repealing of the Social Assistance Act 2013 to do away with it as provided in the objects of the Social Assistance Fund (Repeal) Bill 2020 will not cure any gaps in that law. Instead of repealing the Social Assistance Act 2013 in order to do away with it, it will be prudent to repeal to enhance it.
The Social Assistance (Repeal) Bill, 2020 proposes the repeal of the Social Assistance Act, No. 24 of 2013 in order to enable the enactment and operationalization of the Public Finance Management (Social Assistance Fund) Regulations made under the Public Finance Management Act, No. 18 of 2012.
Whereas the enactment and repeal of any legislation is within the mandate of Parliament, and Whereas Parliament would be within its powers to repeal the Social Assistance Act, 2013 (the Act), We the Stakeholders in the sector , beseech Parliament to reject the Social Assistance (Repeal) Bill, 2020 (hereinafter called the Bill) and instead opt for amendments to the Act, for the following reasons:
The Bill seeks to repeal a statute enacted pursuant to Articles 21 and 43 of the Constitution of Kenya 2010 (COK 2010) in implementation of human rights and fundamental freedoms and replace the same with an administrative tool for the effective management of funds. Article 21(2) of the COK 2010 commands the state to take legislative measures to achieve the rights guaranteed under Article 43. Article 21(4) also requires that the state enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. It is worth noting that Kenya has signed and ratified conventions obliging it to offer certain social assistance interventions. Such include the Universal Declaration of Human Rights and the ILO Social Protection Floors Recommendation, 2012 (No. 202)
Legislation is defined by the constitution to include An Act of Parliament, or law made under Authority conferred by An Act of Parliament’. Though law, regulations are not Acts of Parliament. The PFMA, though an Act of Parliament, is not a statute enacted for purposes of achieving article 43 rights and cannot therefore be the legislation envisaged under Article 21(2).
Establishing the Social Assistance Fund under a Statute that provides for the effective management of public funds denies and undermines the fact that the Social Assistance is a protected constitutional right and that, therefore, is a tool for the achievement and protection of rights and fundamental freedoms. Conversely, the fund to be created by the PFMA regulations is a tool for effective management of public finances.
Even if, for arguments sake, the effectiveness of a social assistance fund would be enhanced by the application of the PFMA, a statute would still be required to establish the Fund whose sole objective is to protect rights and fundamental freedoms, through addressing the rights and needs of vulnerable groups, in partial discharge of the mandate conferred on the state by article 21(3) and article 43.
It is relevant here to point out that Parliament recognized the Social Assistance Act sought to be repealed as one that sought to give effect to Article 43(1)(e) of the Constitution;. It was thus always the intention of Parliament in enacting the Social Assistance Act that it was creating an instrument for fulfilling the rights and fundamental freedoms in the Bill of Rights. It is also relevant to note that Parliament enacted the Public Finance Management Act for purposes of providing for the effective management of public finances by the national and county governments; the oversight responsibility of Parliament and county Assemblies; the different responsibilities of government entities and other bodies and for connected purposes.
By repealing the Act, Parliament would be removing the one Statute that enforces social assistance as article 43 rights without replacement and replacing it with a regulatory tool for financial efficiency. We opine that this would be improper, ill considered and unconstitutional.
The memorandum of objects and reasons for the Social Assistance (Repeal) Bill asserts that the Bill does not concern county governments as social security is a function of the national government under the constitution of Kenya 2010 (COK 2010).
We take issue with this assertion. The Fourth Schedule, Part 1, line 14 of COK 2010 lists as a function of the national government, Consumer protection, including standards for social security and professional pensions plans. It is this provision, and possibly, as fall back, Article 186(3) of COK 2010 that the mover of Bill relies to assert that Social security is a national government function.
We note on the onset that the COK 2010 refers to standards for social security and professional pension plans. We thus opine that the national government rests at setting standards for social security, not the entire ambit of social security.
That notwithstanding, and without getting into the conceptual debate as to what exactly is meant by social security in COK 2010; whether social security includes social assistance; or whether indeed the authors of the constitution sought to treat social protection, social security and social assistance as interchangeable; we assert that social assistance is a tool, and the Social Assistance Act , 2013 an instrument for fulfilling protected rights and fundamental freedoms.
Given that the protection of rights and fundamental freedoms are mandates to be discharged by all state organs under Article 21(1) of COK 2010, and given that the constitution has to be read as a whole, it is our assertion that county governments have a social assistance mandate.
To that extent, a fund established for the national government, such as funds established under S.24(4) of the PFMA, cannot be a proper and legal mechanism for meeting the objectives of a fund that would serve both national and county governments.
Our assertion is bolstered by the existing practice which has seen counties undertake social assistance interventions without challenge; and by the fact that the diverse nature of social assistance interventions of necessity cuts across the various functions of the two levels of government and defeats an attempt to pigeon hole it as a function of national government.
At best, we see Social Assistance, as a concurrent function of the county and national governments, making the PFMA the wrong instrument to use for its establishment. A sui generis legislation, such as the SSA, is the best way forward.
The Kenya Social Protection Policy 2007 and the review of Kenya Social Protection Policy 2017 both recognize social protection as having three pillars which include Social Security, Health Insurance and Social Assistance. We note that the other two components of social protection are anchored on substantive legislation: – the National Social Security Fund Act, the Pension Act, and the National Health Insurance Fund Act. There is no policy statement or indeed any indication that the National Social Security Fund and the National Health Insurance Fund will be re-created under s. 24(4) of the PFMA. It is however clear that both Funds are subject to the provisions of the PFMA. There is no reason why the Social Assistance Fund established under the Social Assistance Act, 2013 should be disbanded by repeal of the Act, and established under the PFMA while the other funds are not interfered with. We note here that no reasons are given as to why a regulatory establishment of the Fund is preferred over the existing statutory establishment.
It is notable that the implementation of a social assistance programme does not just involve the payment of funds, but has other elements of social rights, and empowerment, which rights must be protected by substantive law. It is also improper for the Treasury under the Ministry of Finance to repeal a law that is under the State Department of Social protection, under the Ministry of Labour and Social Protection. The setting up of the Fund at the treasury appears more like setting a Fund account rather than a social assistance programme that entails intricacies and interventions that promote the social wellbeing of citizens in addition to provision of grants. This calls for amendments to the SSA, 2013, if need be, and not its repeal.
There have been different legal processes undertaken by the government in a bid to come up with a new law on social protection including social assistance. These processes include the Kenya Social Protection Policy 2007, The Review of the Kenya Social Protection Policy 2017, The Social Assistance Act, 2013, the Social Protection Council Bill 2014, The Social Protection Bill 2016, and recently The Public Finance Management (Social Assistance Fund) Regulations 2019. These processes points to the lack of clarity in the government on how the social assistance pillar of social protection should be undertaken. We fear that the repeal leaves social assistance pillar of social protection, and the rights of Kenyans, even more vulnerable.
We have had opportunity to review the draft regulations under the Public Finance Management (Social Assistance Fund) Regulations, 2019. While we concede that the same are subject to ongoing discussions among stakeholders, we discern in regulations issues of concern that support our insistence that the Social Assistance Fund be established by an Act of Parliament. These include:
The regulation calls for the administration of the Fund under the Treasury. We opine that any administration of the Social Assistance Fund would require staff with experience in social and psychosocial development. Implementing a social assistance fund under the Ministry of Finance will therefore greatly disenfranchise the beneficiaries.
Since 2004, some of the social assistance programmes that have been initiated by the government include the cash transfer for the elderly (OP-CT), cash transfer for Persons with Severe Disability (PWSD-CT) and cash transfer for Orphans and Vulnerable Children (CT-OVC). These are now consolidated into one programme the inua jamii programme. Cumulatively, the exchequer makes available 30 billion shillings annually for the cash transfer programmes, with each beneficiary entitle to 2000 shillings per month, payable every second month. 1.2 households or 6 million people benefit from the cash transfer programmes. The Fund established under the PFMA regulations has a proposed Fund of 2 billion. It is not clear whether this fund will be used for the same purpose as the inua jamii programmes, and therefore be a duplication, or whether this is a replacement fund, in which case the funds allocated are far from adequate.
The draft regulations create a conundrum in governance of the Fund. Apart from the confusion and ambiguity caused in implementation between the Principal Secretary Finance and the Principal Secretary in charge of Social Assistance, the Board created which is both an oversight board and an executive board, a factor that hinders transparency and will no doubt create a lot of confusion in the implementation of the social assistance programmes.
We reject the repeal of the Social Assistance Act 2013 as proposed in the Social Assistance Repeal Bill 2020. We have severally proposed the amendment of the Social Assistance Act 2013, and in case of a repeal, the objects of such a repeal should not be to do away with the substantive legislation on Social Assistance, but rather to strengthen the provisions of such a law, including extending protection to the beneficiaries of social assistance programmes.
We attach herein our previous submissions to different processes.
Endorsed and Signed by the following:
Name
Organization
Logo/Stamp
Email
Helen Mudora
Africa Platform for Social Protection
Hmudora@africapsp.org
Erastus Maina
HelpAge International – Kenya
erastus.maina@helpage.org
Dr. Samuel Kabue
Social Protection Actors Forum (SPAF)
Samuel.kabue@gmail.com
Monica Kinyanjui
Women for Dementia Africa
(WDA)
monica@womendementiaafrica.org
Anjeline Okola.
Ecumenical Disability Advocates Network
EDAN
aokola@edan.or.ke and info@edan.or.ke
Tom Oketch
La Vie Foundation
tomoketch@gmail.com
Titus Abworo
Age Concern Foundation
titusabworo@a-cf.org
Pst. Noah Nsubuga
Sholder Trust
noah@sholder.org
Rebecca Mbuti
BasicNeeds Kenya
Rebecca@basicneedskenya.org
Rasto Atsienga
Glowamo Organization
rasto85@yahoo.com
Elijah Mwega
KARIKA
karikaageing@yahoo.com
Lucy Njoki
County Trackers Elderly Foundation
lucythaithinjoki@gmail.com
Pauline Makwaka
Senior Womens Citizen for Change
pmakwaka@yahoo.com
Dated: Nairobi, Wednesday, 8th July 2020
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