Understanding children’s rights from a pluralistic legal context: multi-legalities and the protection of the best interests of the child in rural Kenya

ABSTRACT

This paper is a product of my doctoral ethnographic study among the Kipsigis of Kenya. The research was conducted in Bomet, Kericho and Narok counties. The paper explores the underlying principles and contestations on the best interests principle and how scholars have recently located the best interests principle within legal pluralism. The paper then explores the foundation of Kipsigis customary law and the nature of childhood under the Kipsigis customary system. It also examines the pillars of the best interests principle under Kipsigis customary law such as; the promotion of a harmonious co-existence between the child and the family; guaranteeing the long term interest of the child; adhering to customary obligations of by the parents and a contextual understanding of what is in the child’s best interests. Using the underlying themes identified by scholars and reflected in various human rights instruments, the paper attempts to highlight the (in) consistency between statutory and customary conceptions of best interests and the role that customary law plays in protecting and anchoring the well-being of children.

KEYWORDS:

• Child rights
• legal pluralism
• customary law
• best interests of the child

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Contran’s restated version of the customary law of various communities has formed the ratio decidendi in several family law cases in Court. See for instance, In re Estate of M’murungi M’bwiria [2019] eKLR. See also in re Estate of S M N (Deceased) [2018] eKLR.