https://orcid.org/0000-0002-3670-6422
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ABSTRACT
Plural-legal societies are often characterized by a clash between various conflicting socio-legal realities. This paper starts by exploring the various contestations in human rights and the clash between rights and moral values. Using fieldwork from the Kipsigis community in Kenya, this paper explores the clash between community customary value systems and the language of rights as contained in child rights instruments. The paper demonstrates the prevalence of care ethics as a customary value system and examines how care ethics is upheld or (violated) in children’s matters among grassroots communities such as the Kipsigis. This research revealed that contrary to universalized notions of child well-being which are anchored on rights realization, children among the Kipsigis attain their well-being through non-rights based approaches that encompass the ethics of care and the ‘do no harm principle’ as well as that of customary entitlements (living rights) whose foundation and enforcement systems are different from universal notions of rights.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Dworkin, Taking rights seriously, 188.
2 Nussbaum, Women and Human Development.
3 Dworkin, Taking rights seriously.
4 Wolgast, “Wrong Rights”.
5 Mary Glendon, Rights Talk, 15.
6 Ibid, 12.
7 Ibid, 14.
8 An Naim, Compatibility Dialectic, 29.
9 Ibid.
10 Abu-Lughod, “Do Muslim women really need saving?”, 786.
11 Goodale, ’’The Practice of Human Rights’’.
12 Makau, ‘‘The Transformation of Africa’’.
13 Ojwang, “Converging Ubuntu Principles,” 60.
14 Makau, “Conflicting Conceptions of Human Rights”.
15 Makau, “The Banjul Charter, @ 352.
16 Van Daalen, “Children’s Rights”.
17 Merry, “Human Rights Law”.
18 Nadan, “Culture and Context,” 45. cf Freeman, ‘‘The Values of Children’s Rights’’; Eekelaar, “The Role of the Best Interests Principle.”
19 Alderson, “UN Convention,” 442.
20 Kittrie, Family Protection and Human Rights, 17.
21 Arneil, “A Critical Analysis of the Child,” 70-71.
22 O’Neill, “Children's Rights,” 455.
23 Ignatieff, The Ordinary Virtues.
24 Ibid.
25 Simon, “United Nations Convention”, 1.
26 Ibid, 2.
27 Ibid, 12–13
28 Wolgast, “Wrong rights,” 25.
29 Ibid.
30 Alderson, “UN Convention,” 442.
31 Simon, “United Nations Convention”, 10.
32 Articles 3, 9, 16, 18, 20, 21, 37, 40 of the UNCRC as well as Article 4 of the ACRWC. The same concept is reflected in Article 5 of CEDAW.
33 Paragraph 4 of General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, accessed from: http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf
34 Tronto, Moral Boundaries.
35 White, “Political Practices of Care,” 430.
36 Herring, Compassion, 159.
37 Stewart, Gender Law and Justice, 48
38 Tronto, Moral Boundaries.
39 Kittay cited in Tong, “Feminist Ethics.”
40 White, “Political Practices of Care,” 430.
41 Ibid.
42 Ibid.
43 Sander-Staudt, “Care Ethics”.
44 Nedelsky, “Reconceiving Rights and Constitutionalism,” 149.
45 Tronto, Moral Boundaries.
46 Herring, Compassion, 159.
47 Held, Meshing of Care and Justice, 128
48 FDG with elders in Bomet, January 2020.
49 Participant observation in Bomet and Kericho, February 2020.
50 FGD with chiefs in Bomet, January 2020
51 Interview with assistant chief in Emurua Dikkir- Narok , February 2020.
52 Multiple interviews and participant observation in Bomet and Kericho, February 2020.
53 Participant observation and multiple interviews in Bomet and Kericho, February 2020.
54 Interview with parents in Emurua Dikkir-Narok, February 2020.
55 Multiple interviews in Emurua Dikkir-Narok County, January 2020
56 Interview with parents in Kericho, February 2020
57 Participant observation.
58 Multiple interviews with elders in Bomet, Februry 2020.
59 See s21 of the Children’s Act, 2001 and Article 31 of the African Charter on the Rights and Welfare of the Child.
60 Interview with parents in Emurua Dikkir, February 2020.
61 Government statistics indicate that 69% of women in Narok County (in which Emurua Dikkir Sub County lies) are illiterate compared to 31% of men. For details see Narok County Government, HIV Aids Strategic Plan.
62 Participant observation in Bomet, Kericho and Emurua Dikkir-Narok.
63 Although the Penal Code prescribes death sentence for murderers, there practice has been under a moratorium since 1987. However, the issue remains contested. In 2017, the Supreme Court of Kenya ruled that mandatory death sentence as prescribed in section 204 of the penal code, without allowing courts’ discretion is unconstitutional. For details see Francis Karioko Muruatetu & another v Republic [2017] eKLR.
64 Discussion with chiefs and Elders in Narok, February 2020. In the eyes of the community, acquittal by court does not shield one from the customary cleansing processes.
65 Elders and chief in Mogogosiek -Bomet, February 2020.
66 Ibid.
67 Ibid.
68 According to the elders, the nature and circumstances of the murder determined the clan’s intervention. The clan was generally more willing to intervene in cases of manslaughter than in cases of premeditated murders.
69 Conversation with Chiefs and elders in Narok, February 2020.
70 Multiple interviews in Kericho, February 2020.
71 Ibid.
72 Pirie, The Anthropology of Law.
73 Ibid, 26
74 Oomen, “Cities of Refuge”.
75 Interview with Chiefs in Kipkelion- Kericho, February 2020.
76 Ibid.
77 Interview with Chiefs, Sigor-Bomet, February 2020.
78 Conversation with a teenage mother in Emurua Dikkir-Narok, January 2020.
79 Multiple conversations with Chiefs in Bomet, February 2020.
80 Ibid.
81 Conversation with Chief and elders in Emurua Dikkir-Narok, January 2020.
82 Ibid.
83 Conversation with chiefs and elders in Kericho, February 2020.
84 Multiple interviews with elders and chiefs in Bomet, Kericho and Narok.
85 Field note reflection from participant observation.
86 Interview with assistant chief, Emurua Dikkir, January 2020.
87 Interview with Chiefs in, Kapsosian-Emurua Dikkir, February 2020.
88 Aluminium cooking pots.
89 Interview with parents in Sigor, Bomet county, February 2020.
90 Interview with chief and elders in Kaplong, Bomet County, February 2020.
91 Case in Mogogosiek-Bomet.
92 Sander-Staudt, “Care Ethics”.
93 Discussion with chief and elders in Emurua Dikkir-Narok, January 2020.
94 Multiple conversations with elders.
95 For a detailed discussion on the types of care, see White, “Political Practices of Care” and Tronto, Moral Boundaries, 142.
96 Participant observation.
97 Assistant chief-Kaptengecha Bomet, Telephone interview in March 2020.
98 Sections 3-19 of the Children’s Act for a list of rights, cf article 53 of the Constitution.
99 Observation from multiple cases.
100 Tronto, Moral Boundaries.
101 Conversation with elders in Kericho, February 2020.
102 Discussion with Chiefs and elders in Bomet county, February 2020.
103 Conversation with elders in Kaptengecha, Bomet, February 2020.
104 Discussion with elders in Bomet, February 2020.
105 Articles 43, 53 of the Constitution of Kenya, accessible from http://www.kenyalaw.org/lex//actview.xql?actid=Const2010.
106 Telephone Interview with Kipkelion Chief- Kericho, March 2020.
107 Telephone interview with Kipkelion elder-Kericho, March 2020.
108 Conversation with multiple elders and chiefs in Narok, January 2020.
109 Ibid.
110 One of the most prominent borstal institution is in Kakamega County, about 180 km from Bomet.