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“I raise up my voice not so that I can shout- but so that those without a voice can be heard…We cannot all succeed when half of us are held back.”

Malala Yousafzai

The global women’s movement, universally known as the feminist movement is arguably the most conspicuous voice among the marginalized groups worldwide. To this extent, women have even been dubbed the winners of the ‘Oppression Olympics’ as the vocalization of their rights tend to overshadow the plights of the other marginalized groups. Women in Kenya have, since the 1980’s, participated in the feminist movement in a bid to secure their rights despite the gender-retrogressive provisions of the former Constitution. The dawn of the new century found Kenyan women at the peak of this movement and the 2010 promulgation of the new Constitution acted as a catalyst for the inclusion of women in public spaces, dismantling of patriarchal structures and general gender mainstreaming processes in Kenya. In light of the Constitution’s tenth anniversary, this article is a reflection of how far the Kenyan women’s movement has come since the pre-2010 period, the saving grace that was the 2010 Constitution and whether or not the gender equality promise of this law has been fulfilled.

The former constitutional dispensation was, to say the least, blind to the plight of women. This situation was coupled with patriarchal political structures that did not acknowledge the gender disparity that existed in the society at the time. The previous Constitution ignored sex discrimination in its anti-discriminatory clause and banned the enactment of any law that was ‘discriminatory’ in the sense that it addressed the issues of a particular group. This amounted to a classic example of dejure discrimination, i.e., discrimination perpetuated by the law. For instance, the laws on citizenship prejudiced against women in that it allowed men to pass their Kenyan citizenship to their foreign wives and children but denied women the same right. Further, the laws on marriage and inheritance were bias against women. In addition, there existed a plethora of legislations that out rightly perpetuating gender discrimination. However, the onset of the 1975-1985 UN Decade for Women which culminated in Nairobi and the eventual Beijing Declaration and Platform for Action, catapulted the struggle for equality for women in Kenya. In addition, the coming into force of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and subsequently the Maputo Protocol, gave the momentum for the fight for the rights of women in Kenya.

Towards the end of the 1990’s, women in parliament begun to table gender responsive bills and debates before parliament. However, these continued to bear negative outcomes due to the low number of female parliamentarians which remained below 4%. However, some of these progressive gender bills saw the light of day. The beginning of the 21st century saw the enactment of several legislations such as the Children Act in 2001 which contains provisions protecting the girl child against derogatory cultural practices such as early marriages and female circumcision. The Sexual Offences Act of 2006 was also enacted to protect women and girls from sexual violence and bring perpetrators to book; and the Employment Act of 2007 which contains provisions prohibiting any kind of discrimination in the workplace. These laws were evident of the continued activism of women both in parliament and civil society.

The promulgation of the 2010 Constitution marked the onset of a series of gender-responsive laws as it is centered on the principle of equality. Right from the preamble, the Constitution recognizes the principle of equality as one of the national values. The equality clause, Article 27, acknowledges the right of equal treatment of men and women in all spheres of life. Further, it lists sex, pregnancy and marital status as prohibited grounds of discrimination. This clause concludes by mandating the state to take legislative and other measures to ensure the execution of these gender equality provisions including the two-thirds gender principle. This principle requires elective and appointive bodies to adhere to the two-third gender threshold in their membership composition. In addition, throughout the Constitution, there are provisions that are aimed at the furtherance of gender parity in specific areas such as the public service, devolution, family, parliament, constitutional commissions, and political parties, among others.

To complement the constitutional provisions on gender, several policies and legislations have been instituted to further the gender agenda. After 2010, a plethora of laws promoting women rights have been enacted to execute the constitutional provisions and to reverse some of the inequalities historically affecting women. These include the Prohibition of Female Genital Mutilation Act of 2011 which specifically protects the girl child from the practice of genital mutilation and The Citizenship and Immigration Act of 2011, now allowing women the same rights to women to pass their citizenship to their spouses and children. Further, in the area of family law, The Matrimonial Property Act of 2013 and The Marriage Act of 2014 emphasize the equality of the parties of a marriage before, during and after the resolution of the marriage. Another major gain for women under the Matrimonial Property Act was the inclusion of non-monetary contribution in the computation of the aggregate contribution to the marriage in the event of divorce. The Protection Against Domestic Violence Act, 2015 is also one of the statutory instruments enacted to provide relief for the victims of domestic violence which is one of the plights that disproportionately affects women in Kenya. Similarly, a number of policies and institutions were deployed to respond to the gender issue and imbalances that existed. These include National Policy on Gender, Equality and Development, the National Land Policy, the National Policy for the Eradication of Female Genital Mutilation, the National Reproductive and Health Policy, the Gender Policy in education, the Gender Directorate in the Ministry of Devolution and Planning under the presidency and the National Gender and Equality Commission.

Notably, since the promulgation of the Constitution, the number of women in politics, power and decision-making in Kenya has risen. This is attributed to the two-third gender principle in the Constitution as well as the subsequent legislations furthering this rule like the Elections Act and The Political Parties Act of 2011. Also, there is a number of special seats reserved for women in the National Assembly, the Senate and other positions. The first general elections under the umbrella of the new Constitution were held in 2013. During these elections, more women entered the National Assembly although only 16 women were elected to serve constituencies compared to the 290 available seats. On the other hand, no women were directly elected in the Senate although several women contested for the positions. However, 18 women entered the Senate through proportional representation by way of women-only party lists. The County Assemblies attained the set threshold of affirmative action as out of the 1450 county assembly members, 76 were women. In addition, the number of women in top positions in ministries, constitutional commissions, the judiciary and Non-Governmental Organizations increased significantly. The next general elections in 2017 saw the increase of women in elective posts. For instance, the first three women were elected as governors and three others as senators.

Undoubtedly, the women movement has largely benefited from the gender responsive provisions of the 2010 Constitution. The decade has been fruitful with regards to the laws, policies and institutions that have been put in place to ensure the protection of the rights of women and the reversal of the historic gender inequalities. However, despite these advances in gender mainstreaming, the situation of women in Kenya still has a long way to go to attain effective equality, especially among women from marginalized groups and economically challenged backgrounds. This can be attributed to the problematic implementation process of these gender progressive laws. The first impediment to the full implementation of these provisions is the retrogressive implementation of some of the laws by the judiciary. For instance, in the constitutional reference by the Attorney General in 2012 filed for an Advisory Opinion from the Supreme Court (the highest ranking Court in Kenya) on whether or not the two-third gender rule should be actualized immediately or progressively. The Court ruled in favour of the later, disregarding the fact that the principle was set up as an affirmative action to reverse the discrimination of women in the leadership and decision making sphere and therefore called for immediate execution.

Further, the application of the principle was also challenged in the case of the Federation of Women Lawyers in Kenya (FIDA-K) & 5 others v AG & Another where the proposed composition of the Supreme Court judges was challenged with regards to the adherence to two-thirds gender principle. This Petition was dismissed on grounds that the state had not yet developed the machinery for the implementation of the two-third gender rule and it was therefore beyond the purview of the judiciary. In addition, the existence of other systems of law which co-exist with formal law such customary law, has slowed down the full realization of the rights of women in Kenya. For example, the practice of Female Genital Mutilation persists in some communities despite the existence of the Anti-FGM Act, the Children Act and the Prohibition of Domestic Violence Act which categorically prohibits the practice of this act. Other challenges to implementation include the lack of political goodwill, inadequate budgetary allocation towards implementation programmes and lack of coordination among the various stakeholders.

All in all, women in Kenya have come a long way in terms of the legal recognition of their rights and the enactment of legislation and development of policies that ensure these rights are upheld. The promulgation of the Constitution in 2010 has seen the increase in the participation and representation of women in public spaces and the establishment of gender sensitive private law systems in the last ten years. However, these laws have experienced challenges in implementation which is a backward step in the journey towards gender mainstreaming in the country. As we reflect upon these developments, it is high time that better implementation strategies are developed so that the constitutional dream of gender parity becomes a reality.

First published on The Youth Café website

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