POLICY BRIEF
ActualiSing the Rights of the Previously MarginaliSed WOMAN Under the New Constitution
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POLICY BRIEF ActualiSing the Rights of the Previously MarginaliSed WOMAN Under the New Constitution
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1. INTRODUCTION Although the term ‘marginalisation’ is not defined in the Constitution, the policy brief assigns to it, the meaning derived from certain relevant terms defined in the Constitution. These are ‘marginalised group’, and ‘marginalised community’. In terms of Article 260 of the Constitution, ‘marginalised community’ refers to: indigenous community; pastoral community; or a group that by virtue of its small size (or other reason) has not previously participated in social and economic life of Kenya. ‘Marginalised group’ means a group of people who, because of laws or practices were or are disadvantaged by discrimination on one or more of the grounds provided for under the Constitution (these grounds are: sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth). ‘Marginalisation’ therefore refers to the process through which certain groups are rendered marginal, to exist on the fringes of a society’s economic, social, political and cultural life. Marginalised group could include women, the poor as well as cultural, ethnic and religious minorities. It is not difficult to regard women in general as belonging to, or forming a marginalised group when one considers that women have been subject to various ills in the past. Indeed, the struggle for women rights in Kenya has been long. The status of women’s rights has been, and remains less than secured due to various factors such as discrimination, low level of participation in socio-political fields, economic-disempowerment, oppressive cultural practices, low levels of education, lack of access to property and general poverty.
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Marginalised groups, as in the case of women in Kenya, also tend to be socially excluded. The term social exclusion, which is sometimes used interchangeably with ‘marginalisation’, refers to a process by which certain groups are systematically disadvantaged because they are discriminated against on some basis e.g. ethnicity, race, gender, age, disability etc. This definition emphasizes discrimination as a marker of social exclusion. Although some associate social exclusion with poverty, it is a broader concept than poverty, encompassing not only low material means but the inability to participate effectively in economic, social, political and cultural life and in some characterizations alienation and distance from mainstream society.1
II. STATUS OF WOMEN UNDER THE OLD ORDER Women can rightly be regarded as marginalised because their participation in economic, social, political and cultural life has been hampered in a variety of ways. It can be argued that the previous Constitution did not guarantee certain key rights to women on equal footing with men. These include: • Until 1997, section 82 of the previous Constitution dealing with the question of discrimination excluded “sex” as an objectionable ground for discrimination. However, the revision of the Constitution in 1997 included “sex” as an objectionable ground for discrimination in section 82(3) but did not include it in section 82(4) which left women open to discrimination in matters relating to personal law (marriage, divorce, burial, devolution of property on death/inheritance, matrimonial property), an area where they were most vulnerable. • Under the laws on citizenship, a woman could not pass-on citizenship to her husband and also upon marriage to a foreigner; she would lose her own citizenship adopting her husband’s. A woman could not also pass-on citizenship to her children who could however acquire their father’s citizenship (where the wife was a foreigner). 5
• While the Constitution did not bar women from running for public office, they remained poorly represented in elective office as well as appointive positions. Since independence, Parliament has only welcomed a handful of women MPs. This is in part because women generally have not offered themselves to be elected or when they did, faced insurmountable obstacles such as cultural practices, lack of belief that women can lead etc. • In the economic realm, women constitute a huge percentage (more than 50) of Kenya’s agricultural work force, farming mostly for subsistence.2 However, only 1% of women in Kenya own the land on which they work. Although Kenya’s employment laws that are based on the common law do provide for equal pay and equal access, women lack autonomy in the agricultural sector or protection for those of them self-employed in trade or craft industries. This state of affairs has far reaching effects in view of women’s huge role in small-scale farming. • In relation to land, while the provisions of relevant land laws are gender-neutral, their application has been gendered. Land in Kenya is vested in individuals, the government and groups or communities. Each has implications for women’s rights to own, access and use. The practice of male primogeniture, where land is registered in the name of the eldest male head of the household excludes most women from property ownership and weakens the position of women. This is because in the past, the practice has been that no claims can be made against a title-holder. The title-holder is freed from the interference of other parties whose interests are not shown on the register. The rights of use that women have in land were not in a position to be registered and women could therefore interfere with acts of the title-holder.3 • In relation to matrimonial property, the case of Echaria v Echaria4 marked a significant setback for the social, economic, and cultural rights of Kenyan women. The court ruled that for a spouse to receive a share of the matrimonial property on divorce, she has to prove that she had made direct, financial contribution towards the purchase of the 6
property during marriage. The Court of Appeal refused to acknowledge non financial contributions, therefore removing the interests of non-salaried or stay-at-home spouses to the matrimonial property if they could not show actual financial contribution, if the property is held solely in the name of the other spouse. Before this, some lower courts were prepared to authorize 50-50 sharing of property. Education is a useful tool in setting girls and women free from historical discrimination and disadvantage. Yet the education of the girl child has long been ignored, or faced serious obstacles including child labor in part attributable to poverty; retrogressive cultural practices such as female genital mutilation (FGM) and early marriages. With regard to access to justice, many women continue to rely on traditional justice and dispute resolution mechanisms because of the limited reach of formal justice, physically and because of costs. The only forms of justice in marginalised and rural areas where most women live are justice systems that discriminate against women them. In many communities, women cannot sit as ‘judges’ or elders to decide the disputes. For some, their grievances have to be represented by male relatives, including husbands against whom such complaints could have been lodged.
III. WOMEN'S RIGHTS UNDER THE NEW CONSTITUTION One of the main gains of the new Constitution relates to the rights and opportunities it provides for women in general. It entrenches the principles of equality between genders and non-discrimination and institutes positive measures (affirmative action) to address the legacy of marginalisation and exclusion. The new Constitution recognizes women as previously disadvantaged group that should benefit from these and other measures to enhance their status in social, economic, 7
civil, political, and cultural terms. It can be argued that in a legal sense, marginalisation of women may well have ended. The challenge remains one of implementation and actualizing these rights. The following sections provide in detail the various provisions and themes that address the marginalisation of women. 1. Women and National Values Unlike the previous Constitution, the entire constitutional framework is today underpinned by certain fundamental principles, which are provided for under Article 10(2). Those that are relevant to issues of marginalisation are: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised. These principles guarantee the inherent dignity of all. While principles and values stand as a pursuit of their own, their main function is to guide the interpretation of specific provisions of the Constitution of legislation (Acts of Parliament, country legislation and by laws). What is crucial for previously marginalised groups is that Article 10(1) provides that the values bind all state organs, state officers, public officers and any person who applies or interprets the Constitution’ as well as any of these when they enact, apply or interpret any law. Similarly, these constitutional values must inform the making and implementation of public policy decisions by organs of state as well as national and county governments. Article 10 can thus be used to invalidate legislation, policy, regulations, administrative directions or other measures that do not accord with these values that the protect the previously marginalised.
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2. Women and Citizenship Citizenship is not important only for a sense of belonging by individuals. It is an umbrella under which one’s rights can be claimed and protected. It is a ‘ticket’ to social, political and economic goods. Without citizenship, one’s claim to these goods can be unfounded and tenuous. The new constitution corrects the discriminatory situation that existed for women in respect of citizenship laws and practices. Kenyan women will now be able to pass on citizenship to their children regardless of whether or not they are married to Kenyans. Article 14 (1) ensures that women will be able to pass on citizen ship to their children regardless of whether or not they are married to Kenyans. Equally, Article 15(1) provides that a person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen. This section does not specify any particular gender therefore implying that unlike in the past a wife can now pass on citizenship to her husband. Article 16 on dual citizenship enhances the rights and position of women especially when they are married to foreigners. 3. Women and the Bill of Rights One of the main gains for Kenyans in general in the new Constitution is a robust Bill of Rights. From the perspective of social exclusion and marginalisation, the Bill of rights forms the basis of claims specific to marginalised groups like women and provides a strong framework of adjudication that can be activated when these rights are breached or when they are threatened. As a whole, the Bill of Rights is envisioned (Article 19) as ‘an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.’ All 9
government action, including policies that touch on previously marginalised groups must accord with the Bill of Rights. Here, some other key provisions in the Bill of Rights that touch on issues of marginalisation are highlighted. § Article 21 (3), states that all State organs and all public officers have the duty to address the needs of vulnerable groups within society among them, women. §
Article 27 (3) guarantees non-discrimination against women by both the state and individuals, it provides specifically that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
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Article 27 (6) obliges the government to take legislative measures and institute affirmative action programmes and policies to redress the disadvantage suffered due to past discrimination. This provision is justification of all affirmative action measures, including reservation of elective seats for women.
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Article 43 (1) (a) provides for the right to health including reproductive health to all. While one can point out as a key gain for women, the entire framework of socioeconomic rights in Article 43 of the Constitution (health, water, food, housing, social security) provides a major tool by which government must use to intervene actively in society to advance equality, human dignity and social justice. The major beneficiaries will be previously marginalised groups.
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Article 45 (3) provides that parties to a marriage will be entitled to equal rights at the time of marriage, during the marriage and at its dissolution. Article 53 (1) (e) assures that parental responsibility shall be shared between parents regardless of marital status.
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4. Women and Land Property rights are expressly dealt with under Article 40 of the Constitution. It gives every person the right to own property anywhere in Kenya. In addition, Article 60 (1) f) provides that elimination of gender discrimination in law, customs and practices related to land and property in land is one of the core principles of land management. This provision aims at curing injustices attributable to customary practices and laws and ensures equal and equitable access to land and property. Article 60 also makes provision for the application of the National Land Policy. The Policy provides, among others, for equitable access to land; security of land rights, sustainable and productive management of land resources, transparent and cost effective administration of land. This will benefit not only women but Kenyans in general. The right of women to matrimonial property is guaranteed at Article 68(1) (iii) which states that; “Parliament shall enact legislation which shall regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage” This Article recognizes the injustices especially cultural, women have continuously faced in relation of matrimonial property. Article 60 (1) (f) eliminates gender discrimination in relation to land and property and gives everyone including women the right to inheritance and unbiased access to land. For its part, Article 68 (c) (iii) provides for the enactment of legislation for the protection of matrimonial property with special interest on the matrimonial home during, and upon the termination of the marriage.
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5. Women and Politics The new Constitution is a major boost in guaranteeing the rights of women in general to participate in public affairs of the country and also be adequately represented. The new Constitution recognizes women as a disadvantaged group of persons and provides for such measures as affirmative action to ameliorate the gender inequalities that have been persistent in the country, especially with regard to political participation and representation. Article 27 (6) obliges the government to take legislative and affirmative action programmes and policies to redress the disadvantage suffered due to past discrimination. For its part, Article 27 (8) seeks gender balance in elective and appointive bodies by obliging the State to ensure that no more than two-thirds of the members of such bodies shall be of the same gender. To this end, it provides that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. This inclusiveness (of either gender) is affirmed in respect as a principle in the electoral system under Article 81 (b). The Article reinforces the one-third requirement for either gender in elective bodies. This provision will significantly increase women participation in political life. Currently, women only hold 21 out of 222 Parliamentary positions. Under Chapter 8 on the Legislature, Article 97 (1) (b) reserves 47 special elective seats in the National Assembly for women while Article 98 (1) (b) reserves 18 seats for women in the Senate to be nominated by political parties (of the 18, one shall represent the youth and one the disabled).
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Article 100 (a) which is on promotion of representation of marginalised groups, recognizes women as a marginalised group and obliges Parliament to enact legislation to promote their representation in Parliament alongside youth, persons with disabilities and other minorities. The Constitution also provides basic principles by which political parties must operate Under Article 91(1), every political party are required, among other things, to respect the right of all persons to participate in the political process (including minorities and marginalised groups) and promote human rights and fundamental freedoms, gender equality and equity. 6. Appointive Positions/Public Service The ‘not more than 2/3 rule’ in Article 27(8) applies also to appointive offices. In terms of the composition of the Public Service, one of in the Public Service the core values and principles (Article 232 (1) (i)) is the provision of equal opportunities for appointment, training and advancement of previously marginalised groups including women (as well as ethnic diversity and disabled). 7. Women, Culture and Religion As noted, women and girls have suffered under a variety of harmful cultural practices such as FGM, wife inheritance, early marriages and exploitative practice of dowry. Under the new Constitution, (Article 2 (4)), any law (including customary law) that contradicts the Constitution is invalid and will be declared null and void. Customary laws that have discriminated against women are invalid and will be declared as such if a case came to court.
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Under Article 11, the Constitution recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and the State is required to promote it. However, the Constitution bans negative aspects of culture. In relation to child rights under Article 53 (1) (d), every child has the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labor. In terms of Article 44 (3), a person shall not compel another person to perform, observe or undergo any cultural practice or rite. Harmful cultural practices that affect the welfare of children and youth are also outlawed (Article 55 (d)). The State must take all measures to protect youth from such practices. All the above provisions protect women and girls who have suffered in the application of various harmful cultural practices. 8. Women in Devolved Government Women have remained largely invisible in leadership positions in the political arena. This is despite the fact of their numerical strength. The devolution framework in the Constitution confronts the challenges faced by women in accessing political power. •
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Article 175 (c) reinforces the one-third principle, noting that no more than twothirds of the members of representative bodies in each county government shall be of the same gender. Under Article 177 (1) (b), although each Ward in the County will elect one representative, once an election has been held, enough women or men will be nominated (special seats) to ensure that the county Assembly meets the onethird rule.
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These provisions entrench gender balance, gender equity and women empowerment. They give women a chance to participate in governance and the ability to influence legislation, policy and other important governmental (county) programs at the local level.
In general, devolution is one of the major mechanisms that will empower women in a variety of ways. • First, it brings power closer to where majority of women are because of their removal from urban centers, the potential impact is great. • Second, the affirmative action measures (the minimum one-third principle) will greatly contribute towards nurturing women for leadership and enhance substantive participation at both national and local level. • Thirdly, in view of the competence of country governments — agriculture, local health, planning and other relevant sectors — direct disbursements of funds from the national government center if well used will benefit women greatly as they form the backbone of the rural economy. 9. Women and Socio-Economic Rights Article 43 of the Constitution provides for various socio-economic rights: to the highest attainable standard of health; to accessible and adequate housing, and to reasonable standards of sanitation; adequate food of acceptable quality; safe and adequate water; social security and; education. The inclusion of socio-economic rights in the Constitution is one of the most revolutionary aspects of our progressive Constitution. It is one of the things that identify it as a transformative Constitution: a constitution that can be used by government to intervene actively in society to transform society and lives, especially those of the previously marginalised groups like women, ethnic minorities and the poor.
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10. Access to Justice for Women The new Constitution provides for the right of access to justice (Article 48). This right is considered to have three elements: cost of litigation; geographical distance from institutions of justice; and procedures and processes within these institutions. Under the new dispensation, there is clear attempt to enhance access to justice by previously marginalised groups, including ethnic minorities (see a separate policy brief on access to justice). To summarize, the rules on who can go to court have been changed: anyone can litigate on the bill of rights and the Constitution. Public interest litigation is allowed, meaning that one can litigate on behalf of others. Fees for filing cases like these have been removed. More courts are being opened in marginalised areas. For instance, North Eastern Province has its first High Court (in Garissa) since independence! Review of procedures will also ensure that the proceedings in Courts don’t create a barrier to access to justice. While traditional justice systems that discriminate against women have been recognized by the Constitution (Article 159), they must conform to strict conditions. The mechanisms are now regulated by the Constitution and could be subject to further regulation by an Act of Parliament (see separate policy brief). This will ensure that they don’t offend against constitutional values and human rights.
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IV. THE ACTORS The Executive The government, in particular the executive (at national and county levels), is the central actor and the main duty bearer in terms of ensuring that the promises made in the Constitution to women and other previously marginalised groups are realized. The Judiciary The judiciary is a key institution that will guarantee the rights of women. It plays the twin role of ensuring that the rule of law is adhered to and followed to the letter and ensuring the effective protection of human rights. It plays the role of safeguarding the rule of law, adjudicating disputes, holding government to account in respect of human rights obligations. Civil Society Civil Society organizations have been at the forefront in advocating for women rights and making a variety of interventions that advance women’s rights including input into legislative and policymaking processes, reporting violations, civil education and litigation. The civil society has been a key actor in shaping the new Constitution; in particular the process of ensuring women rights are adequately protected.
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V.
RECOMMENDATIONS General Recommendations 1. All legislation that has a bearing on the enjoyment of rights promised in the Constitution across political, economic and social sectors should be enacted and implemented fully, in particular, laws relating to representation of women at national and county levels as well as affirmative action measures and land. 2. Effective and sustained monitoring of the legislative agenda by the Commission for the Implementation of the Constitution (CIC) and parliament’s Constitutional Implementation Oversight Committee (CIOC) is necessary. 3. Active enforcement of the Constitution (through a variety of measures,) including public interest litigation is required to ensure that duty bearers meet their obligations relating to minority rights and issues. 4. There should be training of judges, magistrates, police, and other relevant local and national officials in relation to the new legal regime relating to previously marginalised groups, in particular women. 5. Public education and awareness raising, key aspects in realizing the benefits promised to previously marginalised groups, should be conducted extensively with a view to familiarizing beneficiary groups and the public with these rights as well as promoting change of attitudes and perceptions about women and their roles in society.
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6. Measures should be taken to enhance access to education, especially for the girl child. At primary level, factors that hamper access should be eliminated. This includes the cost of textbooks, lack of food for children especially in pastoralist areas with inclement weather. The government should work towards enhancing access to secondary education. 7. Creation of leadership forums that target women, girls and members of previously marginalised groups is urged. This will cultivate leadership and enhance political participation, in particular in leadership positions. Recommendations Specific to the Judiciary Past experience shows that the judiciary is one institution where the rights of women have been violated. As an example, the discriminatory Echaria v Echaria was cited above. Today all organs of state, including the judiciary have been made subservient to the Constitution. 1. With the new Constitution, it is the role of the Judiciary to act as a restraint against executive and legislative abuse of power, but also to promote the goals of transformation that advance the rights of previously marginalised groups, including women. 2. Justice must be made accessible to all, especially to poor rural women who currently live beyond the reach of formal justice in terms of  geography, cost and prohibitive procedures and conventions. 3. The judiciary should zealously apply the Constitution, guided by the values and principles that now underpin the new legal system.
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4. Judicial officers should be educated and trained on issues that relate to the rights of women and how to handle cases on such in light of the new Constitution. 5. Judicial officers such as judges and magistrates need to be sensitized on the international instruments ratified by Kenya that safeguard the rights of women.
Recommendations Specific to Civil Society 1. Public awareness campaigns should be launched to inform the public and beneficiary group about the new constitution and what it portends for women’s rights and welfare. 2. Civil society should be at the forefront in lobbying legislators to pass Bills that are already in before Parliament touch of various issues relating to women. 3. CSO should engage appropriately to inform the content of the new laws. 4. The civil society should set up programmes for community sensitization to encourage the change of social attitudes towards domestic violence, women ownership of land issues, and to educate communities on women rights. 5. Civil Society should develop strategies and take measures to exercise oversight over government in matters that touch on women. Such measures include: lobbying and advocacy; participation and facilitating participation by minorities in legislative processes at national and county levels; use of public complaints mechanisms to advance minority concerns; petitioning various bodies with monitoring mandates; and public interest litigation where appropriate
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6. Civil Society should begin public interest litigation in respect to areas where women have suffered marginalisation and discrimination such as matrimonial property and land rights. 7. CSOs should be at the forefront in the fight for inclusion of women in appointive and elective office.
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Bibliography
See K Duffy, Social Exclusion and Human Dignity: background Report for the Proposed JA Oduol, ‘Do Customary Issues Have a Role to Play in a Modern Constitution?’ in Asegedech Ghirmazion et al. (eds) Perspectives on Gender Discourse: Gender and Constitution-‐Making in Kenya (2002) 38, 45. 1 2
Benschop, Marjolein, Rights and Reality: Are Women’s Equal Rights to Land, Housing and Property Implemented in East Africa? (UN-‐HABITAT), Nairobi (2002). 3
Echaria v Echaria, Civil Appeal 75 of 2001, (2007) eKLR (C.A.) (Kenya).
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