Examining child labour in the digital age and the status of legislation in Kenya: Gaps, progress and possibilities


By Esther-Blessing Nasimiyu

A child is a gift to mankind.[i] To many, children are the true embodiment of hope, continuation and innocence. These flowery remarks found the discussion on the interconnection of three essentials: children, money and the digital space. On a daily basis, pictures depicting children are plastered on the internet. Aren't you just tempted to click that subscription bell or that like button every time a child does something adorable? However, have we ever paid heed to the fact that that innocent laugh, careless tumble or ridiculous dance may be orchestrated? That beyond the lens of a seemingly happy family, is an overworked child?

The constant evolution of the digital environment has enhanced lives and provided countless opportunities and children have not been left behind in the digital migration. The Disrupting Harm survey indicated that 67% of Kenyan children aged 12 to 17 used the internet as at 2021.[ii] The use of the digital space by children had been confined to entertainment, education and socialization.[iii] However, they have become economic actors in the digital space through content creation, inadvertently leading to their exploitation.[iv] This situation is worsened by inadequate legal safeguards that shield children from exploitation in Kenya and globally.[v]

Lack of social awareness is a factor that is hardly considered in digitized child labor. A case in point is the proposed Tiktok ban by Bob Ndolo who sent a petition to the Office of the Speaker of the National Assembly in August 2023.[vi] Peddling of inappropriate content to minors was a major concern in the National Assembly whereas exploitation of children in creating content was hardly considered.[vii] In this regard, showcasing the internet as a shiny new toy is an understatement of epic proportions. The digital environment has revolutionized crime and mutated the forms of violations directed towards children, including child labour.[viii]

Child labor can be defined as exploitative, hazardous or inappropriate work which places the child's wellbeing at risk.[ix]A child is defined as any person under the age of eighteen years.[x] The African Charter on the Rights and Welfare of the Child (ACRWC) reiterates the obligation set out by the ILO Convention on the right to protection against child labor.[xi] Kenya has partially fulfilled its positive obligation imposed by these international instruments by setting the minimum age of employment at sixteen.[xii] However, lack of legislation providing for the minimum age of employment and clear definition of activities that children can engage in is reprehensible. In addition, the government is yet to stipulate working hours and acceptable working conditions for children. The rise of the digital age has built a firm foundation for income generation through self-generated content with children generating up to $26 million annually.[xiii] Therefore, a breeding ground for digitized child labour at home is enhanced due to the depicted gap.

The author acknowledges Kenya's strides to remedy the legislation gap by enacting the Children Act in July 2022. The Act places an obligation on relevant Cabinet Secretaries to make regulations prescribing terms, conditions and types of activities children can engage in within a year of its commencement.[xiv] This provides a window for the crafting of regulations that address the novel concepts of child labor. Income generating activities by children in the digital space should be highly considered and the practice regulated as a protection mechanism.

It is quite concerning that the four walls that are ideally supposed to provide protection and comfort to children are the very grounds that breed exploitation and abuse. The best interests of children are disregarded as income generation is prioritized. Never mind that it may have negative and irreversible effects on the child's mental, moral and psychological growth and development.[xv]

Exploitation of children by known persons is not a recent phenomenon. However, the digital space has accelerated this exploitation and legislation has been rendered inept in adequately addressing the situation.[xvi] Parents and legal guardians tasked by law and the order of nature to shield their children have been reduced to online managers, videographers, script writers and directors. Lives of children are monetized without their input and their rights including the right to privacy violated on a daily basis.[xvii] Cameras have replaced toys in the hands of parents and the child's interests exchanged with the constant need for viewers and likes. This negates a suitable condition for growth and development and the mental toll on children is yet to be voiced.

The issue at hand may be dubbed a 'first world problem'. However, with internet penetration standing at 32.7 percent in Kenya and cellular mobile connections amounting to 117.2 percent of the total population[xviii], re-assessment is necessary. It is no secret that some children have involuntarily become employees with the internet and their 'parents' serving as co-masters.

In conclusion, a multi-sector approach is necessary in regulating internet service providers, social media platforms and parents themselves with the best interests of the child as the primary consideration. Additionally, awareness creation is vital in sensitizing children from the ills associated with digital exploitation.

[i] Bible Society of Kenya, Holy Bible: Revised standard version, Bible Societies Resources Ltd, 2016, 573, Psalms 127: 3.

[ii] ECPAT INTERPOL and UNICEF, Disrupting harm in Kenya: Evidence on online child sexual exploitation and abuse, Global Partnership to End Violence against Children, 2021, 23.

[iii]Melissa Morris, Kidfluencers and conundrums: the rising need for internet policy that addresses child labor and safety, 1 (1) The Motley Undergraduate Journal, Calgary, February 2023, 117.

[iv] UNCRC General Comment No.25: Children rights in relation to the digital environment, 2 March 2021, CRC/C/GC/25, para 112.

[v] ECPAT INTERPOL and UNICEF, Disrupting harm in Kenya: Evidence on online child sexual exploitation and abuse, 1.

[vi]National Assembly Hansard Report, 15 August 2023, 3.

[vii] National Assembly Hansard Report, 15 August 2023,4; Oscar Ochieng and Kithinji Nturibi, 'More than meets the eye in a bid to ban Tiktok' Business Daily, 24 August 2023 - <https://www.businessdailyafrica.com/bd/opinion-analysis/letters/more-than-meets-the-eye-in-bid-to-ban-tiktok--4345616> 12 September 2023.

[viii] Jonathan Clough, Principles of cybercrimes, Cambridge University Press, United Kingdom, 2015, 7.

[ix] Children Act (No 29 of 2022), section 2.

[x] Constitution of Kenya (2010), article 260.

[xi] African Charter on the Rights and Welfare of the Child, 25 July 2000, CAB/LEG/24.9/49, Article 15; International Labor Convention on the minimum age,23 May 1979, No.138, Article 7(3).

[xii] Employment Act (2007), section 53.

[xiii] Vanessa Cezarita Cordeiro, 'Kidfluencers and social media: The evolution of child exploitation in the digital age' Humanium, 23 February 2021 - < "Kidfluencers" and Social Media: The Evolution of Child Exploitation in the Digital Age - Humanium> 1 October 2023.

[xiv] Children Act (No 29 of 2022), section 18(4).

[xv] Prof Eva Lievens, Prof Simon van der Hof, Prof Ton Liefaard, Dr Valerie Verdoodt and Ingrida Milkaite, The child right to protection against economic exploitation in the digital world, Submission to the Committee on the Rights of the Child in view of their intention to draft a General Comment on children rights in relation to the digital environment, 2019, 3.

[xvi] Clough, Principles of cybercrimes, 7.

[xvii] Morris, Kidfluencers and conundrums: the rising need for internet policy that addresses child labor and safety, 117.

[xviii] Simon Kemp, 'Digital 2023 Kenya' Datareportal, 13 February 2023 -<https://datareportal.com/reports/digital-2023-kenya> on 20 June 2023. 

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