Plural-legalities and the clash between customary law and ‘child rights talk’ among rural communities in Kenya

Abstract

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.