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Cover Story

Women’s Gains under the new Constitution: Does reality match expectation?

Volume 16, Issue 1  | 
Published 07/06/2019
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By Prof. Jill Cottrell Ghai

The constitutional vision

The overall vision in the Constitution is of a Kenya where everyone is equal and equally respected.

Women and men have the right to equal treatment, including equal opportunities in all spheres of life (Article 27). And it is specially forbidden to discriminate on the basis of sex, pregnancy, marital status and dress.

Re ‘socio-economic rights’: health, education, food, water, housing and social security are the rights of everyone. But because women are often even more deprived than men, these rights may be particularly valuable for women. These rights are only required to be achieved progressively. The state must not wait for ever to do anything, but miracles are not required.

Article 56 requires affirmative action programmes to help minorities and marginalised groups (including women) participate in all aspects of life, including governance, special opportunities in educational and economic fields and for access to employment as well as reasonable access to water, health services and infrastructure (like roads).

Political parties must respect and promote gender equality and equity, must not ‘seek to engage in advocacy of hatred on any such basis’ nor ‘engage in or encourage violence or intimidation’. Women usually suffer the most from political violence.

After the 2010 Constitution

Public bodies

The Constitution envisages that ‘every public body will have not more than two-thirds of its members of the same gender’ (Article 27(8)).  Only for county assemblies does the Constitution say how this is to be done. The constitutional provisions have certainly had some impact. Now, in elected bodies, there are:

Body (total members in brackets)

Directly elected (total membership;  % women)

County members

List members for special interests (total)

Top-up list women (counties) and list women (Senate)

Total women (overall total; % women)

National Assembly

23 (290; 7.9)

47*

5(12)

 

75 (349; 21.5)

Senate

3(47; 6.4)

 

2(4)*

16*

21(67; 31.3)

Governors

3(47; 6.4)

 

 

 

3(47; 6.4)

County Assemblies

96(1,450; 6.6)

 

90 (188; 48%)

559*

745 (2197; 34)

Note: * indicates mandatory provision for women

Grand Total    844 (2640; 32%)

             

 

Results are very varied. In Nandi five of the 30 ward seats were taken by women—far better than the national average for any class of directly elected seat. But supposedly sophisticated Nairobi has only four women out of 85 ward members.

The low percentage of directly elected women in races where both sexes can vie is disappointing. However, in 2017, overall more women were directly elected than in 2013: up from 84 for county wards to 96, from zero to three for Governors and for Senators, and 23 MPs for ordinary constituencies up from 16 in 2013. But in 2007 7.27% women were elected for constituencies, little worse than the 7.9% in 2017. Parties hesitate to nominate women as candidates for these seats because they have ‘their own’ - county women - seats.

There is some sign that women can make a transition from county woman representative to constituency MP, and from list woman MP or Senator to directly elected.  But it is a slow process.

There are methods that would ensure the two-thirds rule in Parliament without amending the Constitution, but male MPs see these as depriving them of ‘their’ seats.  Maybe they prefer methods that introduce women in special seats, with less credibility than men. They prefer to amend that Constitution to provide extra seats. But somehow MPs have managed to stay away from the house whenever the issue has come up for a vote, nearly four years after a deadline set by the Supreme Court for passing the law.

Progress needs parties to cooperate. A court case has decided that next time the IEBC must ensure that parties put up no more than two-thirds male candidates. This would be an improvement, but no guarantee that the two-thirds rule is met.

Most women representatives have problems their male colleagues do not face. Forty-seven represent counties equal to between two and 17 constituencies. Many have no geographical constituency: five list members in the National Assembly, 17 in the Senate and 559 in county assemblies.

Appointed bodies

Many Governors appoint only three women out of 10 county executive members. Honourable exceptions are Kisumu, Uasin Gishu and Kisii with four. Three out of 10 is 30% - not one-third.

Nationally, President Uhuru Kenyatta has never complied with this rule. Currently just 25% of the Cabinet are women. In 2017, Justice Onguto held that the make-up of the cabinet violated the Constitution; this is likely to return to court soon.

There has been a good deal of improvement in the courts. The Supreme Court and Court of Appeal have about 29% women members, the High Court about 40% and the magistrates nearly 50%. However, cases about the composition of the Supreme Court, with two women and seven men (over 70% men) have been unsuccessful.

The Public Service Commission’s Diversity Policy of 2016 undertakes that every public service institution will implement the two-thirds principle. Overall women are 30% of the public service. Independent Offices and Commissions have 41% women. Of Principal Secretaries, 29% are women. But among the new ‘Cabinet Administrative Secretaries’ 2 of the 12 are women. Seventeen of the 47 (26%) County Commissioners are women while 5.2% of the chiefs and 8.6% of assistant chiefs are women.

The police do have a policy of respecting Kenya’s diversity in recruitment but it will be a long time before the threshold of one-third women is reached:  about15% are women, and seven out of 46 county commanders are women.

More women work in the ‘Human health and social work activities’ sector: 80,200 to 58,800 men. Over 40% of probation officers are women. About 47% in the education sector are women. While numbers of men and women primary school teachers are roughly equal, in 2016 75.8% of primary heads were men. However, in 2010 85.5% of heads were men.

Private sector

Women are far less likely to be in waged employment than men. Women constitute under 20% of the boards of both listed and unlisted private companies.  Not only are women less engaged in the formal, wage economy, but when they are employed they earn less - on average about two-thirds what men earn. 

Kenyan women still bear the lion’s share of childcare responsibilities. Kenyan law is gradually moving in the direction the Constitution would suggest. Maternity leave is still limited (three months) and in practical terms available to few. There is provision for two weeks paternity leave (in the Employment Act since 2008), and new legislation provides for time and facilities for breastfeeding at work.

Marriage and family

The Bill of Rights says that marriage must be based on the free consent of the parties. The parties to a marriage have equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage (Article 45).

Many women were disappointed by the recognition of polygamous marriages in the new Marriage Act, and by the (predominantly male) MPs’ rejection of any requirement that an existing wife’s permission was necessary before another wife was taken. However, the latter provision was declared unconstitutional by Justice Mumbi Ngugi in 2015.

The existence of the kadhi courts, preserved by the Constitution and now more extensive than before, enable a Muslim woman to escape from a marriage that is not working, if the husband is not willing to divorce her.

Parliament must pass a law to protect the matrimonial home ‘during and on the termination of marriage’ (Article 68). The Land Act (s. 79(4)) says the ‘matrimonial home’ cannot be mortgaged without the consent of both spouses. Unfortunately, this does not seem to prevent the home being sold without the consent of one spouse, and so does not fully implement the Constitution. The Matrimonial Property Act (s. 7) says that matrimonial property belongs to both spouses according to the contribution of each to acquiring it. There was some disappointment with a 2018 court’s rejection of an argument that on divorce the property must be divided 50:50.

Gender Based Violence (GBV)

The constitutional right to be free from violence had women particularly in mind. But domestic and other violence remains serious, including at election times, as a Human Rights Watch report on the 2017 elections showed.

Many police stations now have gender desks, while all stations are supposed to have officers dealing with gender based violence (GBV). The Ministry of Health has also developed guidelines for the response to victims of GBV. The obligation of the police and other authorities to protect women against sexual violence, or at least to investigate when such offences were alleged, was asserted by the court in the ‘160 girls’ case in 2013.

The Protection against Domestic Violence Act passed in 2015 gives the courts power to make protection orders to prevent violence, even to keep a partner away from the joint home.

The (pre-Constitution) Sexual Offences Act does not penalise marital rape, reflecting a very outdated view of marital relationships. The High Court might well decide that this is incompatible with the Constitution’s provisions on equality, including in marriage.

Progress there definitely is. Full equality and full respect are still elusive.

Jill Cottrell Ghai

Former university law teacher, and has a particular interest in human rights. She has been an adviser on several constitution making processes. She is also a director at Katiba Institute.

Website: awaazmagazine.com

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