Issue Number 01 • January 2010
Issue Number 01 • January 2010
Advocating for the rights of women
A common agenda
Women breakdown ethnic, political, religious, social, economic and cultural barriers to fight for their rights …By Jane Godia
he words ‘common agenda’ can be defined as coming together as a society or community on familiar grounds with a list of things to be done within a specific or particular time. And it is a common agenda that set the tempo for a women’s meeting at the Multi-Media University in Mbagathi to audit the gains enshrined in the Harmonised Draft Constitution. The agenda was that the women would come together and raise their voice about their concerns, interests and rights and how they want their gains pushed. It cannot be forgotten that it’s been a long journey in making the society, and men in particular understand why it was important to have Affirmative Action enacted in the Constitution. This was now part of the Draft and the women could not afford to lose grounds. The women’s common agenda, was in wanting to see the gains in the Harmonised Draft entrenched in the new Constitution that is seeking to give them space to participate in governance by having an influence in policy, legislation and programmes. A common agenda would also provide a platform for common set of demands aimed at achieving gender equality, gender equity, women’s empowerment at sustainable development. Speaking to the Women’s Conference on the Harmonised Draft Constitution,
a moderator on a section on strategic planning said that the women cannot afford not to be together. Prof Peninah Ogada of the Department of Political Science at the University of Nairobi said that every individual making a contribution to the review of the Constitution has an opportunity to own the process. Ogada told the women to remember that for years they have been marginalised but now they have an opportunity to speak in one voice, which is what a common agenda is all about. “Anything and everything that is good for a woman’s welfare is good for the national welfare,” Ogada told the congregation at Mbagathi.
Explain to the grassroots She advised the women delegates that it was their responsibility to go and inform other women in the villages about what had been agreed by others as regards the constitution. “There should be a critical mass coming out of this conference that can explain to the grassroots what the women have agreed on,” said Ogada. The don’s words are echoed by Nominated MP Ms Millie Odhiambo who said that the women must be on a platform of consensus building on their issues, as certain factors such as power structures and succession politics are male heavy.
Ms Asha Ali from Dandora peruses the Harmonised Draft Constitution during the women’s conference at Mbagathi.
Continued on page 2
Kenyan women more matured as they join hands in purpose of unity
ecent events regarding the Constitutional Review process have continued to reaffirm the fact that women have grown in strength and capacity. It’s also a clear indication that they are now capable of engaging from a consciousness of provisions in the Harmonized Draft which favour their position. Their drive to move discussions from peripheral forums into a more mainstreamed medium has largely been guided by a need to ensure that gender issues are not treated from a pedestrian platform by the strongly
masculine political class and structure of leadership. The Women’s Conference of December 14, saw women gather from the eight provinces with an agenda to discuss the Harmonized Draft Constitution. However, it was not the entire chapters of the Draft that interested these women during this key gathering, but sections that seek to empower women into enjoying equal socio-cultural, economic and political opportunities as their male counterparts. It was clearly a critical forum and the issues discussed were grave. Going by previous processes around discus-
sions on Draft Constitutions, namely the Bomas and Wako drafts, the usual anxieties and haste to convene women’s meetings was lacking in this conference attended by more than 400 female delegates. Instead, the mood was more relaxed and the plenary discussions seemed to resonate across the floor. This may largely be due to the fact that the provisions that speak to women echoed what the women movement has been pushing for in decades. The provisions as captured in the Harmonised Draft leave little room, if any, for disagreement within the women movement. In a sense, it was a meeting, in the
strictest sense not to dissect the Harmonised Draft but to send a message that women were together regardless of the perpetual political and ethnic stands that have often marred such crucial processes. Further, the forum proved that indeed women were still keen on a paradigm shift that may elevate them from a minority categorisation into a more mainstreamed arena where they can fully function as equal stakeholders in the society. During the conference the women in their diversity showed purpose of unity driven by the desire for a new Constitution. The forum sent strong
signals that women were in favour of adapting the Draft. The women, without a doubt, sent a strong message that they indeed understood the challenges that would come with them gaining their rights; challenges ranging from the absence of the necessary political good will, the competing vested interests, to the palpable fear of change. Further, from this consciousness, the women put emphasis on the need for dialogue and negotiation; both of which are key if Kenya is to finally achieve a new Constitution that resonates with their needs and thinking.
Issue Number 01 • January 2010
Women join hands for a common agenda
Continued from page 1
“The Harmonised Draft does not tell us what government to choose. It speaks of levels of representation that leaves a lot of room for women to be part of the political process.” Odhiambo is hopeful that the common agenda will deliver the women’s cause if the critical mass of women needed is achieved at the end. “As an MP I would like to see women consolidated in preserving the gains,” said the MP. Odhiambo’s words are echoed by the Sotik MP, Mrs Joyce Laboso, who said that women must join hands for a common agenda. “Before debating on any contentious issues, let us agree on our gains as Kenyan women,” Laboso advised. Chair to the session on parliament, Ms Salome Mungai reminded the women of the fact that they are a special constituency. “Women must join hands because our womanhood stands between us and everything else. We must come together in our shared womanhood.”
Investment for generations The journey to getting a new Constitution has been heavily politicised. However, Ms Alexina Mudi from Kakamega said every woman must remember that the Constitution is an investment for both current and future generations. “As a mother and a woman, we must strive to pass the harmonised Draft to avoid what we let lead us to where we are now and that is poor governance,” Mudi stressed. She said that although the 30 day period was not enough for the document to reach everyone in the grassroots, those who have the Draft should share with others to enable them make recommendations. However, everyone in the plenary was agreed to the fact that they will not fight wars related to other contentious issues in the Draft that had nothing to do with women. Those who spoke, and each wanted to be heard, said they were agreed with what was contained in the Constitution and wanted it taken back to the Committee of Experts but with minimal amendments. The conference was held under the theme “Amaua, katiba ni sasa, (Decide, the constitution is now)”. This was an encouragement to the women to continue fighting for their rights on a single platform. Ms Meryem Aslam, UNIFEM Executive Director who gave a keynote address, said the Draft is not about the Committee of Experts. “It’s the long history of women’s struggle for their rights that have made the women’s gains be entrenched in the Draft Constitution.” She advised the women that although there are many other important issues that the Draft may have left out, there should be an awareness that “women are tired of being denied their rights and are this time round going to ensure that there will be equality for all, men and women.”
Women’s rights recognised Aslam reiterated the fact that women’s rights are recognised internationally and not just by a few individuals. She added: “If what women want is a Constitution that fits them, they should push together and those who have differing opinion can also bring their issues on the table so that as women of Kenya you can all get what you want.” In explaining why it was necessary that the conference be held, Ms Patricia Nyaundi, Executive Director FIDA-Kenya said to the hundreds of women who gathered at the Multi-media University Conference Centre in Nairobi that they were just following to climax on what had been set by other women before them. “We are here today to endorse the achievements of those other women who fought the earlier battles to enable women like you attend such meetings,” said Nyaundi. The women, joined together in diversity and culture, were reminded that the
Ms Meryem Aslam, Unifem Executive Director is joined by Ms Jane Thuo, Executive Director Association of Media Women in Kenya after she delivered the keynote address at the Women’s Conference.
“Women constitute a special constituency and there is commonality among them that they must own their agenda within the Draft Constitution which is a major gain for women because many issues that touch on their gender and lives have been addressed.” Ms Patricia Nyaundi, Executive Director FIDA-Kenya meeting brought them together as representatives of other women so that they could understand what is contained in the Harmonised Draft Constitution and what the women want passed in regards to their gains.
A political statement The delegates were the ambassadors for women in the grassroots and they should make an effort to explain to the others what was passed by their fellow women at the conference. The rationale behind holding the conference, therefore, was to ensure that women’s rights as enshrined in the Draft Constitution are protected. Nyaundi, whose organisation was among 20 others that in one way or the other contributed to the conference, said it was necessary that they hold the conference to make a political statement on certain issues that were contained in the Draft Constitution. “The women constitute a special constituency and there is commonality among them that they must own their agenda within the Draft Constitution,” Nyaundi explained. She added: “This Draft Constitution is a major gain for women because many issues that touch on their gender and their lives have been addressed.” Giving an example of the customary law, Nyaundi said the document is very specific that the constitution shall be supreme over all other laws. Chapter One of the Harmonised Draft, in addressing Sovereignty of the People and Supremacy
of the Constitution states in Article 2 (1): The Constitution is the supreme law of the Republic and binds all State organs at all levels and all persons.” It goes in the same article clause 4: “No law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission
in contravention of this Constitution is invalid.” ”This means that even where people tend to use customs to discriminate against women, the constitution will protect the women.’’ However, she said that while many people tend to downplay the law when it comes to customs, the second step after the Draft has been passed will be constitutionalism, where Kenyans will have to be taught how to respect the law and that they will be answerable to the law of the land. The Constitution is clear on the issue of human rights and dignity for men and women and has a Bill of Rights to this effect. Article 28 (1) on the constitution says: “The Bill of Rights is an integral part of Kenya’s democratic State and is the framework for social, economic and cultural policies.” It goes on in Article 28 (2) to say: “The purpose of the recognition and protection of human rights and fundamental freedoms to preserve dignity of individuals and communities and promote social justice and the realisation of the potential of all human beings.” This in effect is a gain for women because where culture has for instance discriminated against girls going to school; it will no longer be applicable as the girls are now protected by law. Said Nyaundi: “The Constitution spells out the responsibility of each citizen
and everyone is expected to uphold the rule of law.” Article 3 (1): “Every person has an obligation to respect, uphold and defend this Constitution.” Nyaundi was delighted that the conference had achieved its purpose. “The women are convinced that we will get a new document and that they have a role to play in its delivery.”
Taking into account The chairperson of the League of Women Voters, Ms Alice Wahome reiterated the fact that the conference had achieved its objective because at the end of the meeting the women managed to draw a memorandum. Said Wahome; “We are appealing that we all take into account the gains that have been secured and these include provisions such as equality.” She reiterated the fact that the present constitution is very discriminatory to women. “Our work was to secure what is contained in the Draft Constitution and enhance it. That is exactly what we have done and what the women have validated will be taken to the Committee of Experts.” As the conference came to a close, the women had achieved their objective of consolidating a common agenda and with a prime call that they were not going to be shaken in their defence for women’s rights.
t the end of the meeting, the memorandum was read by Mrs Deborah Okumu, Executive Director Caucus for Women Leadership, which in part included:
• Women’s issues were not contentious and will not be reopened in any other fora; • Women support the devolved system of government because it is where they see the space for political participation being opened; • The, women therefore, resolve that if anybody opens up their issues for discussion, they are not ready to discuss the draft again if gender issues are going to be tampered with; • If any party is interested in reopening gender issues, there should be two documents for debate and voting; • The women of Kenya observe that the position of one or two disabled persons in the Senate is an insult and they do not know how it was arrived at as the population of disabled persons keeps on growing; • The women resolved that in the discussion on the Constitution all Kenyans are equal and if parliamentarians feel that they are more important than the rest then they should call for dissolution of Parliament so the Constitution can be discussed equally by all; and • The women resolved that they are going to watch the debate and will name and shame those trying to derail the issues of women’s rights.
Issue Number 01 • January 2010
Audit of Draft puts smiles on women’s faces
…By Rosemary Okello
galaxy of women leaders drawn from across political, regional and professional divides recently assembled in Nairobi and audited each chapter and article of the Harmonised Draft Constitution of Kenya, taking a common position on each one of them which they will then present as their official stand to the Committee of Experts. The women’s meeting came against a backdrop of fears that majority of the women in the country are not engaging in the discussions and debates around the Draft Constitution, yet they are the most marginalised and disadvantaged group. Provisions in the Draft Constitution as captured in their audit, are expected to reverse the past gender injustices and failures, hence why it was important for all women to own this process. Speaker after speaker said the process should not fail and they are prepared to make it a win-win situation for everyone. The Draft recognises issues of gender equality and the marginalisation that women have encountered for many years in political, economic and social spheres. It spells out the steps to be taken to right the wrongs.
Affirmative action During a meeting organised by Kenya Women Political Alliance and attended by international Federation of Women Lawyers (FIDA) Kenya, Caucus for Women Leadership, CREAW, African Woman and Child, Maendeleo ya Wanawake, National Council of Women in Kenya, the women were in agreement that generally the Draft Constitution has captured some of their concerns even though there were articles that were contradicting the spirit of Affirmative Action which is enshrined as a principle in the Draft. Taking the women through the Draft Constitution, Prof Wanjiku Kabira, a lecturer at the University of Nairobi and formerly a commissioner with the Constitutional of Kenya Review Commission (CKRC), reminded them about the long journey they have travelled to make sure that Affirmative Action is enshrined in the Constitution. “For the women, it has been a long struggle to see the issues they have advocated for being reflected in the Harmonised Draft Constitution,” Kabira said.
Salient features Commenting on the hardline positions taken by some politicians on some chapters in the Draft Constitution, Mrs Deborah Okumu, Executive Director of Caucus for Women Leadership, said the women were hopeful that a middle ground will be realised to give the country a new constitution. It was at this point that the women were taken through the Draft, singling out its benefits to them. Auditing the report from a gender perspective, Ms Wambui Kanyi, Executive Director Bridge Africa, tackled clause by clause and article by article of the Draft, bringing out the salient features on each. On the national values and principles, the women are happy that Article 13 (i) guarantees: “Ensuring full participation of women, persons with disabilities, marginalised communities and all other citizens in the political, social, and economic life of the nation. Article 13, Clause 2 (j) provides that the
Delegates at the Women’s Conference on the Harmonised Draft Constitution had an opportunity to audit what the document holds in store. “national values principles and goals include implementing the principle that no more than two-thirds of the members of elective or appointive bodies shall be of the same gender”. In Kenya, where getting into political leadership is very difficult for women, this is a positive step to realising the 30 per cent representation in all political and other decision making organs. On the section on citizenship, Article 17 section 1, 2 and 3 gives a mother the right to confer citizenship to her children, something women have been advocating for in a long time. There are cases where women have found it difficult to get vital documents for their children if the father is not there or if they present applications for such documents as single parents. What will also change is a situation where only men can confer citizenship to their non-Kenyan spouses. Article 18 gives women the right to confer citizenship to their non-Kenyan spouses, a privilege that will now be enjoyed by both genders. On culture, Chapter Five, Article 27 (f) focuses on the protection of the intellectual property. It states: “The State shall support, promote and protect indigenous knowledge and intellectual property rights of the people of Kenya.” This is likely to contribute to women’s economic empowerment as they are the custodian of culture. The women applauded the Bill of Rights on Chapter Six, which they say has contextualised women’s rights within the human rights framework. Article 38 states that women and men have the right to equal treatment including the right to equal opportunities in political economic, cultural and social activities. On the emotive issue of land, women are pleased with how it has been tackled in the Draft. The issue of land
and property is dealt with in Chapter 7. Article 77 (2) f, states that elimination of gender discrimination in laws, regulations, customs and practices related to land and property will ensure women inherit land.
Two thirds majority Equally beneficial to women is Chapter 10 on the Representation of the People. Of particular interest to them is Article 102 (b) which directs the electoral system to also satisfy gender equity in elected bodies. It states: “The electoral system shall satisfy gender equity in elected bodies as provided in Article 13 (2)(j) as it is also provided in Article 125(b) on implementing the principle that not more than two-thirds of the members of elective or appointive
bodies shall be of the same gender. It states: The Senate shall consist of women, elected each two by the regions, the elected members of the county assemblies in each region acting as the Electoral College.” On Memberships of the National Assembly, with sections in Article 126 providing how the women and persons with disability will be elected. Article 126 (c) states: “The National assembly shall consist of seven members who shall be persons with disabilities, no more than four of whom shall be of the same gender.” On devolved government in Chapter 14, women noted that the issue of devolution is one of the major chapters that will have direct positive implication on women’s participation in deci-
sion making. First and foremost it will bring power closer to where majority of the women are. Second, the enshrining of Affirmative Action principle of onethird representation of either gender will greatly contribute towards nurturing women for leadership at all levels.
Gender representation Article 214 (c), for instance, states that no more than two-thirds of the members of representative bodies in each devolved government shall be of the same gender. And within the regional assemblies, Article 216 (3) notes that in electing delegates, county assembly shall take into consideration ethnic and other diversities, including gender representation in the county. But women gathered at the Mbagathi conference were painfully aware that unless there is consensus on the Executive, Devolution and the Kadhi’s Courts, then all these good provisions will not come to fruition. They have, therefore, pledged to work hard to ensure there is a compromise on these issues.
The Draft recognises issues of gender equality and the marginal is at ion that women have encountered for many years in political, economic and social spheres. It spells out the steps to be taken to right the wrongs.
Issue Number 01 • January 2010
Keeping the gender agenda flame burning
…By Joyce Chimbi
t has been a long and winding journey towards a new constitution and to erasing the strongest standing evidence of our colonisation. Among the groups who have continuously felt left at the periphery and have not been empowered by the Constitution; a document which constitutes the principles by which we are governed, are the women. It is against this background of feeling historically wronged that women held a conference in order to critically understand what promises the Harmonised Draft Constitution holds for them when and if it replaces the current Constitution. One such woman is Ms Jane Kagai, a mother of six and a casual labourer who has never concerned herself with matters beyond what her family eats and with their general well being. “And it’s not because I am not concerned with governance but I can barely feed my family, what time do I have to go shout out there in meetings about things that are beyond my understanding,” Kagai says. She adds: “In any case, these struggles against strong forces which seem unconcerned about the challenges women face have been with us for so long. I support the struggle but how much value can I add to the process? I barely manage to feed my children.” It is, therefore, for women such as Jane Kagai that women should strategise to ensure that the Chapter on the Bills of Rights as well as Human Rights and Fundamental Freedoms as they appear in the Harmonised Draft Constitution one day constitute the principles that govern this nation. Further, it is to this end that women need to send a strong message that they indeed understand what is within this document for them.
Remarkable gains During the one day conference, dubbed Amua Katiba Sasa (Decide, the Constitution is now), the women agreed that there are remarkable gains which speak of the years of struggle for the mainstreaming of the gender agenda. In her opening remarks, the Executive Director of the Federation of Women Lawyers (FIDA), Mrs Patricia Nyaundi encapsulated the long drawn
battle for women’s issues to be given the prominence they deserve. “We are seated in this forum, discussing the Harmonised Draft Constitution because women who came before us were beaten, detained and even humiliated, these women knew that they may not enjoy the results of this is long process, but they did it for us,” Nyaundi reminded the women. She added: “It is, therefore, up to us to continue with this struggle and to influence the process of Constitutional review in ways that safeguard our gains.” Indeed the Harmonised Draft Constitution has key segments that count as gains for the Kenyan woman. Under the Citizenship Clause, for instance, a woman can now confer citizenship to her spouse if he is a non-Kenyan, further, if she is married to a non-Kenyan, she can acquire his citizenship while still retaining hers. Article 18 (1) says: 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. It goes on Article 18 (2) to say: “Citizenship is not lost through marriage or on dissolution of marriage.”
Rights to property In addition, under issues of protection of rights to property, a woman cannot only acquire her own property but she can inherit property as well. The inclusion of the Affirmative Action clause is yet another highlight, in it, the promotion of representation of the marginalized groups is to be realised through the enactment (by parliament) of a legislation to promote the representation of the marginalised. Article 44 (1) says: “Minorities and marginalized groups are entitled to enjoy all the rights and fundamental freedoms set out in the Bill of Rights, on the basis of equality, taking into account their identity, way of life, special circumstances and needs.” In particular, the clause refers to groups such as women, the youth and the disabled as well as other minorities and marginalized communities. “All these are striking provisions, but the aspect of safeguarding these gains as the Draft is subjected to very complex political discourses and negotiation remains the greatest hurdle,” explains Saida Ali, Executive Director Young Women Leadership Institute.
A lifeline to new beginning
aving been one of the most devastating events in Kenya’s history, the post-election story and its devastating impact will remain real to many for generations to come,
and for this politician, the story is not any different. Her only crime; contesting on the ‘wrong’ political party while vying for the Karachuonyo seat. “I vied for the parliamentary seat through the Party of National Unity (PNU) ticket in a very hostile environment and this led to my home being set ablaze, I lost everything . . . years of investments,” says Ted Olang’, who contested in Karachuonyo. “It was an unimaginable experience, never in my life had I even dreamt that Kenya could sink to such low levels of destruction, Kenyans rising against Kenyans.” To others like Olang’, the Harmonised Draft Constitution is a life line for rebuilding of nationalism, for unity and for every citizen to rise above politics marred by ethnicity. As told to Joyce Chimbi
A man helps hold a baby as the mother is engaged in the women’s conference. In gender equality and equity, men and women share responsibilities equally. She explains: “This is where we find ourselves with a remarkable document that speaks to the heart of the issues that have hindered women from rising to their full potential, but uncertain of how to protect segments that are very favourable to the women.” The Harmonised Draft Constitution has been applauded for its Chapter on the Bills of Rights. For many, it is a section that appears to have been written with the interests of the ordinary Kenyan. The Bill of Rights as is explicitly mentioned in the Draft “is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies” which basically creates a strong link between democracy and people’s ability to live to their potential and to enjoy their livelihood.
Promote social justice Article 28 (2) says of the Bill of Rights on rights and fundamentals freedoms: “The purpose of the recognition and protection of human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.” Further, the Chapter on the human rights and fundamental freedoms recognizes the need to preserve human dignity and to promote social justice for both the individual and the communities at large. It goes on to say on Article 30 (1): “It is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in this
As every day ushers in new realities of fear, controversies and hopefully consensus, only time will tell whether the political class indeed recognises the historical gender injustices against women, and whether it further realises that the Kenyan woman has been at the periphery for far too long. chapter as appropriate, in the exercise of all their powers and functions.” It is, therefore, a document that resonates with the needs of the Kenyan citizen but one that may not see the light of day unless there is a clear and synchronised political drive emanating from the political class. “Inevitably, Constitution making is a political process, the two main organs are political; the Parliamentary Select Committee and the National Assembly, the Harmonised Draft, if agreed upon by the Select Committee will further be subjected to debate in the National Assembly,” explains Nyaundi. “If they agree on it then we go to the referendum. That is, however, not to say that there is no political will to make this happen. A political process does not necessarily have to have a negative impact, I actually feel that the political mood may align to the needs of Kenyans.” As the 30 days of receiving public views and recommendations came to an end, the period revealed a number of issues ;first, that the Draft seeks to ensure that women participate fully in the affairs of the society even as they purse
their personal growth and development. Second, it brings home the reality that this is the make and break stage for the mainstreaming of the gender agenda in a political environment that is extremely fluid and whose mood may not resonate with the needs of the Kenyan woman. “In spite of these fears I see no reason why we will not succeed in having a new Constitution. Other African countries like Uganda and Zambia have done it, why shouldn’t we?” poses Nyaundi.
Take bold steps As every day ushers in new realities of fear, controversies and hopefully consensus, only time will tell whether the political class indeed recognises the historical gender injustices against women, and whether it further realises that the Kenyan woman has been at the periphery for far too long. For now, women need to keep the gender agenda alive, and take bold steps to penetrate the tables of political decision making and negotiations as Kenyans at large await the fate of the Harmonised Draft Constitution.
Issue Number 01 • January 2010
Debate on Draft Constitution has eluded Wanjiku …By Rosemary Okello
A woman from the slums in Nairobi. Most ordinary women have been left out of the Constitution debate.
or the past one month the Harmonised Draft Constitution has been in the public gallery where everyone has been expected to give their views and meet the Committee of Experts. One segment of the society, ‘Wanjiku’ — often used in reference to the ordinary woman — has been watching from the sidelines and at times wondering what the noise is all about. Yet every day she is fed with variance opinion from politicians, civil society and religious organisations. Says Martha Rop, a women’s leader from Uasin Gishu: “Women at the grassroots have no clue of what the Draft Constitution is all about. Yet this is a progressive document which can help change their lives.” She adds: “I am afraid that since sensitisation is done through the media and political leadership, when the time for the referendum comes, they may be convinced to vote against the Constitution.” According to Rop, when the Committee of Experts went round the country collecting views from the public on contentious issues, they only went to district headquarters and this marginalized majority of the ordinary women who did not have time or money to reach the venue to hear for themselves what was being said about the Draft Constitution.
Language, and particularly the legalese, has been a major challenge because it has not been simplified and this might be used to confuse women at the grassroots. Take the issue of land for example. The Draft Constitution recommends in Chapter 7 Article 77 (2) f, states: ‘The national government shall define and keep under review a national land policy ensuring that elimination of gender discrimination in laws, regulations, customs and practices related to land and property in land.’ Rop expresses her fears on this article: “This section might be used to confuse women that daughters-in-law will be required to inherit land in their father’s home and also where they are married and this can naturally bring resistance among older women who have grown up to believe that women are not supposed to inherit land.” According to Rop, only a few women understand the gains women have within the Harmonised Draft Constitu-
The issue of Wanjiku has been used over the years that unless the new Constitution is taken to her, then it is not worth the paper it is written on.
tion and how it has expanded the gender equality issues through the Affirmative Action. And since there is already discontent that women have gained so much, women’s organisations are calling for massive civic education where the ordinary women will be engaged on the merits and demerits of the Draft Constitution. “Just like during the Bomas conference where Wanjiku’s voice was loud and clear, there is need for a deliberate attempt to involve the ordinary women in the constitutional debate,” recommends Rop. The issue of Wanjiku has been used over the years and unless the new Constitution is taken to her, then it is not worth the paper it is written on. It is as a result of this that during the Bomas Conference, through the district representations, that ordinary women were given a chance to be part of the delegation through the one-third principle that was adopted then. And there is no time that Wanjiku has ever felt part of the national agenda like during the Bomas conference where they were the most sought after when people were looking for numbers. However, this time round, they are just watching from the periphery and may be wondering if they are really part of the process. “We are in danger of sacrificing the gains of the Constitution come referendum time if we continue ignoring the Wanjikus,” says Rop.
Hope for equitable distribution of resources …By Duncan Mboyah
mong those who believe that the Draft Constitution is offering them reprieve are the rural communities. A lot of argument has been brought forward about unequal distribution of resources. This has been blamed on poor governance. However, with the devolved system of government there is hope that the widening gap between the poor and the rich will be reduced if the Harmonised Draft Constitution is passed. The devolved system of government calls for not more than two thirds of the same gender to any elective body. This could be a clear indication that corruption may be reduced as women have been known to be more responsible in management. Women are also not known to be corrupt. Mrs Jennifer Otieno, Director of Kenya Orphans and Vulnerable Children Network, a delegate at the Women’s Conference on the Harmonised Draft Constitution said that with the current system of governance there has been a big problem as people in positions of power have continued to enrich themselves through corrupt means. This has led to a wide gap between the rich and the poor. She said the Harmonised Draft Constitution seems to be the only salvation for the poor and marginalised populations. Otieno observed that the widening poverty gap has been a leading cause for immorality in the society since young girls have formed a tendency of cohabiting with the rich elderly men. Chapter 14 of the Harmonised Draft Constitution addresses the issue of De-
volved government. Article 213 (c) states: “The objects of the devolution of government are to give powers of selfgovernance to the people at all levels and enhance the participation of the people in the exercise of the powers of the state.” Also agreeable with the system of governance as indicated in the Harmonised Draft Constitution is Ms Deborah Okumu, Executive Director Caucus for Women’s Leadership. “The system of governance that is proposed in the Harmonised Draft is not expensive as politicians would like Kenyans to believe,” said Okumu. She said money that is lost through corruption is enough to run the proposed political hierarchy once the loopholes are blocked. The Harmonised Draft proposes a devolved system of government with regional assemblies. Article 215 clause 2 states: “The principal role of a regional government is to coordinate the implementation, within the counties forming the region, of programmes and projects that extend across two or more counties of the region.” The system of governance also gives room for more women included within decision making organs. It states in Article 214, clause c: “Devolved governments established by this Constitution reflect no more than two thirds of the members of representative bodies in each devolved government shall be of the same gender.” Hopefully, with more women in political decision-making positions poverty and uninhibited corruption will be greatly reduced.
A view of Kibera the largest slum in Kenya where some of the poorest Kenyans can be found. Unequal distribution of resources is a leading cause of poverty with women being the majority of the poor.
Issue Number 01 • January 2010
Draft Constitution breaks down ethnic walls among Kenyan women
The Women’s Conference on the Harmonised Draft Constitution brought together women from all corners of the country. …By Duncan Mboyah & Jane Godia
hey came in droves from all parts of Kenya and trooped to the Multi-Media University (formerly Kenya College of Communication and Technology) Lang’ata, off Magadi Road. As a sign of commitment to the meeting, majority of the delegates who had travelled from outside Nairobi arrived a day earlier. Not to be left out as the conference began, Nairobi residents managed to beat the traffic jam and arrived early to join the rest in readiness to add their voice to the Harmonised Draft Constitution. They were all smartly dressed in their best, looking colourful and pretty. Others were dressed in their traditional outfits. The Maasai looked colourful in their traditional outfits that were broken down with colourful beads that made a jingle as they moved around. The Muslims wore their buibui and hijab — some in the traditional black while others were in bright colours that enhanced their presence.
A common platform The delegates included the young and the old; the educated and the illiterate. What put them on a common platform is that they were all women’s leaders in their own right working for the good of the Kenyan woman irrelevant of which ethnic community one came from. Religion did not stop them from enhancing women’s rights. The first session was led by Mrs Jelioth Karuri, Vice Chair person Maendeleo ya Wanawake. She guided the team of both Christian and Muslim women who led in prayers before the deliberations began.
Right from the beginning, the conference was interspersed by song and dance as women declared that they want to go through the Harmonised Draft Constitution to pass all that was a gain to the Kenyan woman. Larry Liza, entertainer and poet provided a break with hilarious but true words about the condition of the Kenyan woman. He highlighted some very crucial issues on the Constitution that affected the Kenyan woman and which he implored the delegates to pay attention to. Each paragraph that Liza quoted was applauded by the delegates as they agreed with him and ululated to celebrate the mentioned gains. It was clear that the delegates were not going to allow anyone to throw them around. When they felt that the conference session was not going in the direction they expected, the women did not hesitate in expressing their disapproval. However, the delegates would often get carried away and forget that they had less than 12 hours to go through the agenda of the day. Ms Patricia Nyaundi, Executive Director International Federation of Women Lawyers in Kenya (FIDA), had a way of bringing them back on track. When at the beginning the meeting delayed as the women scrambled for copies of the Harmonised Draft Constitution, Nyaundi reminded the
women that they had only a few hours to go through the Draft and bring out the points that would be delivered to the Committee of Experts (CoE). She had to read the riot act to the delegates when majority were eager to have a copy of the Harmonised Draft that was being distributed. The Draft was available in both English and Kiswahili languages.
Missed opportunity The women, who were representative of the areas they came from, were picking as many copies as they could lay their hands on despite being told that there was enough for everyone. Most probably, they wanted to carry copies to the women in the grassroots who may have not had an opportunity to read the Harmonised Draft Constitution. This was a clear indication of how everyone was desperate to know what the Constitution entailed since there was discontent that the copies had not reached everyone countrywide. Nyaundi reminded the women that they are the ones who will be in trouble if they delayed in going back to cook for their families. “Lazima mkumbuke kuwa nyinyi ndiyo mnarudi nyumbani kupikia wazee na watoto. Kwa hivyo mtawacha kufuata kopi ya katiba na tuanze mkutano (Please remember you are the ones going to prepare dinner. So stop fighting over copies of the Draft Constitu-
tion and start the meeting),” Nyaundi reminded the delegates. Throughout the conference the women would express their disapproval when they felt that a speaker was not addressing the right issues that related to the agenda of the meeting. Former chair of the National Council of Women Ms Lillian Mwaura’s views on contentious issues such as the case for the Executive were not well received as the women said that they were only out to discuss issues that affect their gender. Mwaura had asked the delegates to discuss issues of the Presidency, Premiership and Regional Assemblies but the delegates disagreed saying that did not form the objective of their meeting. They accused her of being out of order by raising issues that were not part of the conference agenda. Archbishop Winnie Owiti’s sentiments on reproductive health and marriage were well received but her warning that the proposal gave one denomination priority over the rest threatened to disrupt the process as it boomeranged on her. Some Muslim delegates stood up in protest and marched forward asking her to withdraw that statement. However, quick intervention by Ms Maimuna Abdalla Mwidau, Executive Director League of Muslim Women managed to calm down tempers that were flaring in the plenary.
Throughout the conference the women would express their disapproval when they felt that a speaker was not addressing the right issues that related to the agenda of the meeting. At the end of it all, delegates were all hugging each in appreciation of their role in streamlining the way the country’s Constitution is suppose to be.
In the end, it was agreed that those who wanted to speak would line up and express their views without being interrupted by the delegates. In less than ten minutes, over 100 delegates queued to express their views on women’s gains within the Harmonised Draft Constitution and what it meant for those in the grassroots. Ms Saida Ali, Executive Director Young Women’s Leadership Institute brought the delegates back to the agenda of the meeting by reminding them of the women’s gains in the Harmonised Draft Constitution. These included issues such as citizenship, family life as well as inequality in politics, economics and social responsibility, security, land sexual harassment marriage and women’s representation in the National Assembly, Senate and County authority.
Closed meeting The meeting was graced by former and present women Parliamentarians who all expressed their support for women’s gains in the Harmonised Draft Constitution. Towards the end of the meeting, Mrs Deborah Okumu. Executive Director Caucus for Women’s Leadership read the memorandum of the conference. The women agreed that they will not allow further discussions to the women’s gains and anyone who raises debate should come prepared with an alternative draft to allow them vote for what they want. At the end of it all, delegates were all hugging each in appreciation of their role in streamlining the way the country’s Constitution is suppose to be. They then held a demonstration in protest against the parliamentary Reform Caucus who they accused of trying to derail the women’s gains in the Draft Constitution.
Issue Number 01 • January 2010
Fears that thorny issues could derail women’s cause
…By Jane Godia
lthough women gallantly declared their support for the Harmonised Draft Constitution, fears were expressed over other factors that may derail their agenda. The issue of political affiliation and party leadership continued to rear its ugly head even as the women rejoiced that gender equality and equity was finally going to be achieved in Kenya. Fears were further expressed regarding how the process of getting a new constitution would take shape in a political atmosphere that seemed more concerned with the 2012 agenda. Mrs Caroline Ng’ang’a, a Convenor of the Committee on Representation where women’s issues were discussed during the Bomas Talks, expressed fears that the women’s common agenda may be derailed by party leaders. She said that while the women had come together to support the document, party affiliations still played a big role and may influence the women to take political positions rather than positions that facilitated the attainment of a new Constitution. “Kenyan women have not matured into a common agenda and since our parties are headed by men, no man is going to support the women’s cause.” Kenya being a heavily patriarchal society has left many women with no ability
to make informed and independent political choices. Many are guided by what the male figures in their lives say. This is the fear that could derail the women’s cause when their party heads, who are men or husbands, tell them which way to go in the constitution dispensation. Ng’ang’a further called on women to learn to stand on their two feet and say that “whatever happens they will push for their agenda”. She also expressed fears that if “we do not get the women’s rights enshrined
sages to political parties that they must support the women’s agenda”. Former Nominated Member of Parliament, Mrs Catherine Nyamato expressed her fears with the implementation process. “The implementation method where the final document has to be debated in Parliament is enough reason to raise our fears,” Nyamato explained. She added: “Implementation method is challenging and Parliament could interfere by making amendments.”
Ms Alice Wahome
Mrs Caroline Ng’ang’a
in the Constitution now; we will have lost our rights and fight forever”. Chairperson of League of Women Voters, Ms Alice Wahome, expressed concern with the Parliamentary Reform Caucus that was trying to make contentious, women’s issues in the Constitution. “There has been an attempt to make women’s issues contentious and this is saddening particularly when it is coming from a group of parliamentarians who represent both men and women.” She further said that political interests can derail the whole process and “we are, therefore, sending out strong mes-
Ms Jennifer Masis
She cautioned the women to guard against the changes that MPs could make. A convenor of the Transition Committee during the Bomas talks, Mrs Jennifer Masis, also expressed her fears over what will transpire when the document gets to parliament. “The fear we have as women is that for the first time almost everything discussed during the Bomas Talks has been included in this document and this may be reason enough to derail the process.” Masis also expressed concern over the lack of a time frame. “With the Bomas Draft there was a time frame of when all the women’s gains would come in force but this is not clear in the Harmonised Draft Constitution,” Masis said. She added: “What is in the Draft is just a schedule of when the events will be handled.” However, Nominated MP, Ms Millie Odhiambo is hopeful that the women know what they want although no one can stop them if they drift from the women’s cause. “Nobody can stop the women if they want to take a different route from what the conference agreed on.’’ However, the women agreed that it has been a long and tortuous journey and they will not allow ‘minor issues’ to derail their purpose of unity as well as their focus on a Constitution that speaks to their needs.
Keep off our gains, women warn MPs …By Jane Godia
omen will not allow parliamentarians to jeopardise the gains they have achieved in the Harmonised Draft Constitution. Without mincing words, the women who came together at a Women’s Conference on the Harmonised Draft Constitution with an objective to audit what they would like passed by the Committee of Experts warned legislators to keep off their gains. The women said the parliamentarians owed it to them to make sure that the women’s rights gains are respected and passed without opposition. As the women passed resolutions as to what they supported in the Draft Constitution, they remained cautious of the fact that Parliament would play a key role in determining the final amendments. Nevertheless, the women were not shy in expressing their views as to what they would like Parliament to do, also showing an awareness of the discontent with the Parliamentary Reform Caucus that has given an indication of opposing some of the women’s gains in the Draft Constitution. However, Nominated Mp Ms Millie Odhiambo said the women should be conscious of the fact that most male MPs do not understand what Affirmative Action is all about. Odhiambo said that to this end, “as women MPs we have had to create awareness on Affirmative Action among our male colleagues’’. She explained: “It has, therefore, been a great task of constantly negotiating with male MPs at all levels that include the floor of the House and at the various committees to preserve the women’s gains which could be lost.” Mrs Caroline Ng’ang’a, a convenor of People’s Representation during the Bomas Talks said that parliamentarians should not personalise the Constitution, “The ‘me’ agenda that is common among legislators
should not feature in this discussions,” she said, adding, “Politicians should not discuss the document at the grassroots if they are not ready to create true awareness and should therefore leave it to the women to do civic education on the constitution.” She reiterated the fact that the women are a powerful force and have the numbers that can help put pressure on politicians to support them. “As women we can effectively negotiate with politicians rather than allow them to divide us on political grounds.” In this light, there are fears that despite women showing support of their gains in the current Draft Constitution, this may be affected by their allegiance to political affiliations. To which Odhiambo said that the women should have a consensus building on their issues; which is what had brought them together in the first place. Majority of the delegates were aware of the fact that MPs are accountable to them and should in all essence support the gains that the women have enshrined in the Draft Constitution. “We are going to make the parliamentarians accountable to us so that they can pass the Draft when it gets to Parliament,” Ng’ang’a reiterated. Ms Fatma Ali Saman, a principal from Mandera said that women must take charge of their agenda. She regretted the fact that women, have had to rely heavily on politicians “who are actually our workers, as women we are the ones who must set the agenda for politicians in this country”. She stressed on the gains in the Draft and said that the platform for them to lobby must be women’s issues, “Women must negotiate for their issues even at party level and with their MPs,” she said adding, “Women must be sincere in this process and not mix their personal issues with the constitutional review agenda to enable them pass the Draft Constitution.” A convenor for the Transition Committee during the Bomas Talks, Mrs Jen-
nifer Masis, reiterated the fact that it was important for the women to come together as they had been discriminated against in many areas. Masis recommended that women must monitor their issues throughout and must at no time waver. “Women are encouraged to support the women’s gains and they must not be derailed .They should also ensure that their recommendations are taken in by the Committee of Experts.” The conference was also attended by former women parliamentarians. Those present included Mrs Catherine Nyamato and Mrs Jayne Kihara. Nyamato regretted the fact that women have spent almost 20 years on capacity building yet nothing conclusive and effective has come from these meetings, “As women we meet and agree on so many issues but when we meet male politicians they distract us from our issues.” She asked the women to think care-
fully about the role of Parliament in the Constitution making and consequently, how women can best work with them, “Already we have men fighting women over allocation of seats. Women must lobby to ensure all their issues are passed by the parliamentarians,” Nyamato advised. Former Naivasha MP Mrs Jayne Kihara said that previously women had not spoken in unity and it is important that they unite and support the Draft Constitution. The women’s conference was also graced by current parliamentarians who included Sotik MP Dr Joyce Laboso, and nominated MPs Millie Odhiambo and Sophia Abdi. Abdi briefed the women on what has been going on among parliamentarians and warned the women to remain keen on the review process. She told the women that the male politicians had agreed to share the 44 Senate seats on a 50 per cent basis.
However, she said that this was agreed to merely because there is no financial gain to those sitting on the Senate. Although the Senate will essentially have 50 seats, six of these have been preserved for special groups that include the youth and people with disabilities. Abdi further told the women that they had every right to hold the MPs accountable, “You must stick to what you want,” she said. Laboso appealed to the women to join hands and stand together for a common agenda, “Before speaking of other contentious issues let us agree on the gains that are there (in the Draft) for the Kenyan woman,” she advised. But the message to the MPs was clear; Do not mess with our gains, said the women as they held a peaceful demonstration to show their dissatisfaction with the Parliamentary Reform Caucus.
Members of Parliament Millie Odhiambo (left) and Joyce Laboso listen keenly to what the women want.
Issue Number 01 • January 2010
VOX P OX Kenyan Woman interviewed delegates at the Women’s Conference on the Harmonised Draft Constitution and this is what they told Kevinnah Loyatum:
Young women laud benefits, point out gaps
Afya Rama, Mvita “Majimbo issues must to include women’s representation as senators to bring out women’s and children’s needs. I feel the quorum in Parliament at any given time should be not more than 26 MPs to be able to pass a motion. It’s not practical to have 222 MPs and only less than a third can pass a motion.”
Monicah Eregae, Turkana North “I am satisfied with the work done by the Committee of Experts in regard to women’s concerns. I am urging all the women to give more input and support the Harmonised Draft Constitution. Most importantly, I’m happy that the women in this country were able to meet and seal a deal before the exercise comes to a close.”
Asha Ali, Dandora “When we talk about Kadhi’s Courts, I suggest we have lawyers to represent clients. Second, we need lawyers who are familiar and knowledgeable with Sharia law and Islamic culture so that judgement will not favour a certain section, gender or class of people. It’s a high time for women to start working together from the grassroots level regardless of their religion or culture.”
Mary Etiang, Teso “In most countries the private sector is scrambling for women professionals to be managers or company secretaries among other professions. Even in Kenya today they have began to realise the strength of a woman, one of being committed and so the Harmonised Draft Constitution is giving a chance to the women of this country to build Kenya through participation in core decision making power.”
Samburu “Land has been a major concern for Kenyans and women in particularly. When it comes to land ownership, economic activities like group ranches among the Masaai or Samburu communities for example, no woman is a beneficiary. What if you are a single mother or young and ambitious? You will just watch and languish in poverty because in the first place you have no right from the community’s view. In the Harmonised Draft Constitution, it should be included that women have a right to own and contribute to the community equally.”
Stellah Chelimo, Marakwet “Sincerely speaking I have not read everything in the Harmonised Draft Constitution but I have been keen on issues that touch on gender. Chapter 6 of the Bill of Rights, Article 62 they should include a number three  saying women of Kenya should enjoy the benefit to sanitary towels.”
Young women who attended the conference consult over the deliberations. Below; Ms Njoki Wamai, chairperson of the advisory committee at the Young Women Leadership Institute. …By Oloo Janak
omen’s gains in the Harmonised Draft Constitution cannot be underestimated. They benefit girls and women, the young and old, the illiterate and educated. This is why when a conference was called to sieve what women are like to benefit from the Draft, the young women were not left out. The young women delegates present lauded the gains saying the document had attempted to address a number of critical areas that women had fought for in a long time. Among the gains they pinpointed were the enhanced representation at different levels including the National Assembly, Senate and on the devolved levels proposed in the document. The provisions on citizenship, they said, addressed concerns especially of Kenyan women who were married to nonKenyans or those who had children with non-Kenyans. However, the young women pointed out to a few gaps that they felt needed to be addressed. Ms Njoki Wamai from the Young Women Leadership Institute said the gains were important but that the Draft had failed to make specific provisions that cater for the young women as a constituency, arguing they had been lumped together with older women and the youth. “As young women, we are in a catch 22 situation. We recognise that the provisions are generally good for women but inadequate in dealing with our needs,” said Wamai. “We would like to see specific provisions for young women in accessing economic opportunities as well as those addressing concerns over early marriages and pregnancies,” Wamai said, adding, “In many cases young women are included in general terms — women, youth or gender — when we would like to see specific mention of ‘young women’ in the document.” She said young women had developed memoranda to be presented to the Committee of Experts detailing their concerns.
Another young woman, Ms Wilkister Wanjiru said they wanted clear provisions on children born out of wedlock and responsibility put on the father so that women, especially the young girls in school, are not abandoned by men who impregnate them. “Men must be held responsible when they make young girls pregnant and we would like this enshrined in the Constitution,” said Wanjiru. Similar views were expressed by Ms Isabella Lesimirdana from Samburu East, who felt that the Draft had addressed issues of property inheritance which has been a thorny issue among many African communities. “For the pastoralist communities, the Draft will help many young women who are often forced into marriages to benefit from property inheritance even when they are divorced,” Lesimiradana said. She explained: “Many young women have been denied the opportunity to own property in our communities and
the Draft addresses this adequately.” She felt the Draft Constitution should get a nod from women because it has made provisions for inclusion into various leadership positions at different levels through affirmative action. “As you can see from the Draft, the counties and the regions will have women leaders, something that will ensure women from communities that have often been reluctant to elect them emerge without much problem,” said Lesimirdana. Other areas that she felt had been adequately addressed include the marriage age, choice of husband, right to education for all children including girls and proper health care as well as both pre and post natal care. However, she felt that the Constitution needs to protect women who resist forced marriages or choose to leave abusive marriages. Lesimirdana had issues with lack of clarity in decision making over group ranches saying young women had no channels for influencing decisions made by elders. “The Draft needed to give space to women where they could make an input in how the group ranches are utilised as part of allowing them to influence use of land resources.” The women expressed a wide range of views on the Draft but were unanimous that whatever shortcomings it contained, it was time to deliver a new constitution adding that the Committee of Experts had tried to balance competing interests to deliver the harmonised draft. Ms Cynthia Mutere from Busia wanted the Constitution to be clear on Kenya’s national boundaries. She said Kenyans in general, and women in the fishing industry in particular, had suffered because of territorial claims by neighbouring Uganda. Uganda has been embroiled in a tussle with Kenya over border issues, especially within Lake Victoria where it has claimed five islands, the most prominent being Migingo, which is a rich fishing ground.
Issue Number 01 • January 2010
Draft gives the family unit due attention
…By Musembi Nzengu
f there was a place where the family unit was given the recognition it deserves, then it is in the Harmonised Draft Constitution. Addressing the issue of family specifically, many married couples, children and even single parents now have a platform from which to defend themselves in relation to family matters. Giving the family due attention, Article 42 (1) states: “The family is the natural and fundamental unit of society and necessary basis of social order.” The article addresses the issue of one’s right to marry but stresses on the fact that: “Every adult has the right to marry a person of the opposite sex, based upon the free consent of the parties”.
This law has definitely dealt a blow to marriages of same sex. It has also dealt a blow to relationships where one partner feels superior to the other. However, the biggest blow is to forced marriage because there has to be consent for marriage. The law, therefore, is a great benefit to girls from communities that normally force girls who have undergone female genital mutilation to be married off early and normally to older men. Women at the Conference on the Harmonised Draft Constitution were all agreed that this article provided a great gain on gender equality and protected them in cases where they have had to lose property. A number of women said the law elevates them from the position of being underdogs to being equal partners with their
Celebrations to mark a wedding at the Coast. A wedding forms the beginning of a family which has been stressed as key to society in the Draft. spouses. Article 42(4) states: “Parties in a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.” This means that even when divorced, one is entitled to inherit property from their husbands. Previously this was not the case. According to Ms Wambui Kanyi, Executive Director Bridge Africa, women have the right to share property in equal terms with their spouses as opposed to the previous situations where they played second fiddle. “All marriages are recognised in the Harmonised Draft Constitution including those gobbled up traditionally or personal
law and the come we stay arrangement,” said Kanyi. Article 42 5 (a) states: ”Parliament shall enact legislation that recognises marriages concluded under traditional, or system of religious, personal, or family law; and 5 (b) goes on to state: “Parliament shall enact legislation that recognises personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that such marriages or systems are consistent with the Constitution.” Although the Draft allows partners in marriage to enjoy equal rights and terms, Rev Winfred Odhiambo of the Or-
ganisation of African Instituted Churches in Kibera said there was need to enshrine legislation to ensure the woman was subordinate to her husband. She cautioned that although women can marry foreigners who will then acquire citizenship for them, it would be improper for Kenyan women to have engagements with foreigners hiding behind the mask of marriage when they have hidden agendas or worse still are criminals. However, Odhiambo said she was impressed with the Draft Constitution for the mere fact that women had been guaranteed the right to inherit their spouses’ property such as land and estates as opposed to the current Constitution that discriminated against women. Bishop Winnie Owiti, on behalf of the Christian women from Nyanza said she was concerned about Article 42 (3) that gives every adult a right to found a family. Owiti said this clause was silent on the issue of same sex association. She said the clause should be amended to read: ‘An adult shall not marry another of the same sex’. On the issue of equality in a marital union, Owiti proposed deletion of the clause and that it be replaced with a more acceptable one reading;“The provisions of the chapter on equality shall be qualified to the extent strictly necessary for the application of religious laws to persons who profess the said religion in matters of personal status, marriage, divorce and inheritance.” However, the women said that the law must be clear in discouraging marriage of underage girls. Ms Mumina Konso from Isiolo said there was need to entrench the official minimum age of marriage age to discourage wedding to underage girls. Konso said underage marriages had continued unabated in many parts of the country and it was important that those who aspire to marry underage girls are discouraged by law. “We need laws that protect girls from child marriages since the current legislation and statutes appear to be too weak on that front,” said Konso.
Enshrine minimum age of marriage in final document, women urge …By Duncan Mboyah
arly and forced marriages have been a great undoing to girls, particularly those who would like to further their education or marry a man of their choice. This may soon come to an end if the Harmonised Draft Constitution is passed and if the gains as regards women’s rights are not amended. However, within the document are some sticking issues that need to be addressed by the Committee of Experts. Though not directly enshrined in the Constitution, girls as young as nine years old have found themselves on the marital bed because there has been no proper law guiding the minimum age of marriage. This has not only impacted negatively on their education but has also affected their socio-economic life. Common knowledge has it that an educated woman will make better informed choices about the kind of life she wants. For instance, she would be able to decide on the number of children she wants and her desired spacing. An educated woman has a better standard of livelihood compared to a woman without education or one with minimal education. If the Haramonised Draft Constitution is passed , the women would like to see to it that 18 is set as the age limit for marrying off young girls as currently
enshrined in the Children’s Act 2001. This is an age that most girls are probably be in when doing their last year of second secondary schooling. Saying that it would be the only way to protect young school girls from early marriages, Ms Patricia Nyaundi, Executive Director Federation of Women Lawyers (FIDA) recommended that all those found preying on young girls should punished so that the vice can be eradicated. “This is the only option to tame the menace as some parents have in the past participated in marrying off their primary school going daughters in exchange to dowry at the expense of the rights of the girls,” she noted. The only law that speaks of age of marriage is found in the Children’s Act 2001. But according to Ms Fatma Yusuf from Samburu, the Children’s Act is currently not effective as it is independent and lacks backing from the Constitution. Addressing delegates at the Women’s Conference, Yusuf said that only recently four girls were married off to elderly persons and no action was taken yet the Children’s Act exists. While the Harmonised Draft Constitution has been praised as containing gains that women have rightfully fought for, the issue of child marriages must be given due attention. Delegates to the conference asked that part of the recom-
mendations to the Committee of Experts include the call to include the minimum age of marriage for girls. Women’s rights, they said, must be protected from all fronts. Article 36 (1) on the chapter of the Bill of Rights states: “Every person is equal before the law and has a right to equal protection and equal benefit of the law.” The women said, if the minimum age of marriage is not included, then certain gains that are included in the chapter on the Bill of Rights will be meaningless. It is for such reasons that the women leaders recommended that the Gender Commission be delinked from the Human Rights Commission and that each operates as an independent commissions. They argued that the Gender Commission was the only platform that addressed issues of women’s equal rights by treating women as a special constituency. “It is wrong to combine Gender and Human Rights commissions as one entity yet gender issues are broad and deserve to be an independent body,” they argued. In the Harmonised Draft Constitution, the Committee of Experts recommend the formation of various commissions including the Human Rights and Gender Commission to protect the sovereignty of the people.
A Turkana woman with her child. Girls from the marginalised community such as the Turkana are among the victims of early and forced marriages.
Issue Number 01 • January 2010
A sigh of relief from families divided by borders …By Duncan Mboyah and Musembi Nzengu
he issue of citizenship got clear cut attention with a whole chapter on it being accorded space in the Draft Constitution. The Harmonised Draft Constitution has dedicated Chapter Four to citizenship with issues ranging from right from retention of existing citizenship; acquisition of citizenship; citizenship by birth; citizenship and marriage; citizenship by naturalisation; children found in Kenya and adopted children; dual citizenship; deprivation of citizenship; residence; responsibilities of a citizen; to legislation of a citizenship. The biggest beneficiaries in all this are Kenyans who have been married to nonKenyans or women who have had children fathered by non-Kenyans. And to those like Ms Catherine Omanyo there is every reason to celebrate. She says: “Though it has taken too long, the citizenship issue as addressed in the Draft is good news for many women in this country.” Omanyo, a women’s leader from Busia District is married to a British citizen. She has not benefited from dual citizenship as it is not enshrined in the current constitution. She looks forward the Draft being passed as it will allow her family to enjoy their presence in Kenya as equal citizens. Addressing the Women’s Conference on the Harmonised Draft, Omanyo narrated her ordeal in trying to acquire citizenship for her husband and children in vain. “If the Harmonised Draft Constitution is passed, it will allow my husband to settle here and also allow me to participate actively in politics because I will be fully recognised by the local community,” she said. Omanyo who hails from Nambale Constituency in western Kenya, previously attempted to vie for a parliamentary seat but her candidature was not approved as she was viewed as ‘unmarried’ and, therefore, unfit to represent the people. She has been forced to make frequent
and I was forced to pay visits to Britain where her for a dependency pass on husband lives with her chila monthly basis that forced dren since they have not been the family to allow him rerecognised as citizens of this locate to US after attaining country. age 14,” explained Keino. “I have been called upon For Keino’s son to visit to disown my Kenyan passKenya, he has to apply for port and acquire a British one visa to be allowed entry into but I have not been in a hurry the country. However, if the to make the change since Kedocument is passed then nya is my country of birth,” those like Omanyo’s and she said. Keino’s family will definitely In the Draft, Article 18, have every reason to smile. clause 1, states: “A person The Draft Constitution who has been married to anstates that a person born outother citizen for a period of at side Kenya is a citizen if, at least seven years is entitled, the date of the person’s birth, on application, to be regiseither the mother or the father tered as a citizen.” of the person is a citizen who It goes on in clause 2 to was born in Kenya or by regstate: “Citizenship is not lost istration or naturalization. through marriage or the disKeino urged delegates at solution of marriage.” the Women’s Conference on This gives an assurance to the Harmonised Draft ConKenyans who marry foreignstitution to push legislators ers and live in those countries to approve the document as that their citizenship will reit contains gains that women main intact. have been clamouring for in The Draft further recomthe past 20 years. mends that a person who is a “Contentious political citizen does not lose citizenissues should not be used to ship by reason of acquiring the derail the new constitutional citizenship of another country. dispensation this time around. This also applies to those who Pass it first and let us amend may have lost their citizenship it later,” she said. earlier by acquiring citizenMs Esther Keino, whose son is treated as a nonThe Draft allows resiship of another country. Kenyan is happy that he can now apply and get dency to persons getting This will definitely a into the country on condiKenyan citizenship. positive move especially to tions prescribed by or unKenyans in the Diaspora and citizens of other countries. der an Act of parliament specifically those who have Former nominated Member of Par- governing entry and residency. acquired the American Green Card. However, there are those who felt that Article 21, clause 2 states: “A person liament Dr Esther Keino supports the who as a result of acquiring the citizen- chapter on citizenship citing herself as the chapter on citizenship had some gaps ship of another country ceased to be a being a victim of the current Constitu- that needed to be addressed. Ms Margaret Nyathogora from Nyeri felt that the Kenyan citizen is entitled, on application, tion. The former legislator narrated that Draft had a loophole in allowing foreign to regain Kenyan citizenship.” However parliament will have to en- a child she had while pursuing studies spouses to become citizens. She felt that act legislation providing for conditions in the United States was denied a birth if they grew in numbers they would most upon which citizenship may be granted right in Kenya for the simple reason that likely take over the country’s leadership from the indigenous through election or to individuals, other than individuals re- he was born outside the country. “My son travelled on a tourist visa appointment. ferred to in clauses (1) and (2) who are
“Legislation must be put in place to bar such people from seeking positions of leadership in Kenya or even taking up appointments that are meant for the natural citizens,” reiterated Nyathogora. She is supported by Bishop Winnie Owiti of the Voice of Salvation and Healing Church in Kisumu who took exception with Article 18 that addresses citizenship and marriage. “Such a law will give many foreigners an excuse of flooding our country in the guise of being spouses yet they may have ulterior motives that would interfere with our internal security,” said Owiti, adding that the clause needed to be looked at again. Owiti also took issue with Article 20 that provides for a child found in Kenya and of less than eight years and whose nationality and parentage is unknown to be presumed to be a citizen of Kenya by birth. “Making children whose origin or birth place is unknown would more likely open a Pandora’s box and make Kenya a dumping place for people who do not want to take up parental responsibility and will lead to population explosion that will put a strain on our resources,” said the clergy woman. The same sentiments were echoed by Ms Zaibuni Hassan who felt that allowing a foreigner to marry in Kenyan girl and wait for seven years to become a citizen has some gray areas that needed clarification. “I just wonder what would happen if the foreigner takes off after leaving behind his wife with children before the seven years for him to qualify for citizenship are over?” Hassan wondered, and posed: “And since he is not a citizen, what law will be used to make him take up parental responsibility?” All in all, the issue of citizenship is welcomed by those who are in relationships with non-Kenyans, and as loopholes are addressed, all are hoping that Kenyans will appreciate the need to have their children and spouses included as a part of citizenry.
Real gains for Muslim women
Muslim women were not left out of the deliberations and they are happy with what will achieve if the Harmonised Draft is passed. …By Deka Abdi
he period of debate for the Harmonised Draft Constitution is long over but for Muslim women the celebrations will go on for a long time if the Harmonised Draft Constitution is passed.
On average, Kenyan women are yet to achieve equal opportunities in all sectors and are still battling overt and covert discrimination, but Muslim women are especially disadvantaged. Doubly so. This is because most of them live in North Eastern and Coast provinces, areas that have historically
been marginalised in terms of resource allocation as well as education and employment opportunities. According to Ms Halima Abdi of the Pastrol Women for Peace (PWP), a nongovernment organisation based in Mandera, the Harmonised Draft Constitution brings the dream of equal opportunity closer to Muslim women especially in the North Eastern Province. Said she: “Historically, women of NEP have lived on the periphery of national life but the Draft Constitution assures me that through a devolved government, we will be able to access more national resources than before.” In the current constitution, it is the central government which determines how much resources will go to a particular area and Muslim women in the NEP and Coast Province have always felt short changed. She explained that a devolved government will create more opportunities for women to serve in the government and participate in decision making. Traditionally, political offices have been the preserve of men among the Muslims, but the Draft Constitution will definitely change the dynamics, so Abdi believes. “As a woman from a minority ethnic and spiritual community, I feel that I will have the same rights as women from Nairobi or Kisumu or other parts of the country,” she reiterated. Abdi is not alone in this line of thinking. For Mama Janet Bete, a councillor in the Mombasa Municipal Council, the document represents a significant gain for
Muslim women in the region in terms of the Kadhis’ Courts. “I am happy that despite massive efforts to expunge the Kadhis’ courts from the Draft Constitution, the Committee of Experts saw it wise to retain it as it is. That in itself is victory for us,” she said. Bete reiterated that without the Kadhis’ Courts, Muslim women will suffer a severe setback as the courts handle cases in relation to Islamic law on issues such as marriage, inheritance and divorce. Under the Kadhis’ Courts, the rights of women to inherit property and be treated with respect within marriage is assured. However, Bete is eager to see more reforms in the courts to make them more responsive to women’s needs. “We also want to be allowed to have lawyers who understand Islamic law to help us in the cases instead of having us argue cases out of court without the proper knowledge,” she added. This view is shared by Ms Afya Rama, a gender activist from Mvita Constituency who thinks that the Kadhis’ Courts should be allowed to have appeal courts just like the other courts. “Right now if you don’t feel satisfied with the decision of the Kadhi, you have nowhere to turn to except to the secular courts which are not competent in handling Islamic issues,” she said. Nonetheless it is agreed by the majority that the Harmonised Draft Constitution has significant gains for the Muslim woman, among other women in Kenya. According to Ms Subi Hussein Haji, Executive Director of Womankind Kenya, a women civil rights group based in Garissa, “Muslim women have gained significant-
ly in the Draft Constitution together with other Kenyan women”. She explained: “If the devolved form of government materialises, women will have most posts to fill. That is also true in the two-chamber house where the number of women representatives will increase significantly.” Subi is worried that currently there are very few women leaders from the Muslim community in senior political offices but is hopeful that this will change if proposed structure of government is passed. However, she decried the fact the Draft Constitution retains the number of Kadhis’ Courts at only 17 saying that number falls short of meeting the existing needs. “If a woman in Mandera has a serious case to be resolved by the Kadhis’ courts, she has to travel hundreds of kilometres to the provincial headquarters in Garissa. That’s not fair because it is expensive and inconvenient,” she argued. She added that Muslim women who are disabled have also gained from nondiscrimination and equality clauses in the Draft Constitution. Nominated Member of Parliament, Ms Sofia Abdi also stressed that the Draft Constitution was strong on defending the rights in minority groups which includes Muslim women. “As Muslim women, our political party is women and our tribe is women and wherever we are we will have more energy to fight for our rights because we are assured the Draft Constitution is firmly behind us,” she said.
Issue Number 01 • January 2010
Women from the marginalised communities have been greatly disadvantaged over land and property rights. They are hopeful that the Draft if passed will work to their advantage.
Marginalised communities see a ray of hope …By Paul Mwaniki and Jane Godia
eep down at Sieku village in Laikipia North District Mrs Sarah Lekorere has returned from a 12 kilometre journey in search of water for domestic use. This is how her day goes by as she manages among other chores that include collecting firewood and going to the market. She has accepted her role in the marginalised and highly conservative community. However, Lekorere understands less of what the Harmonised Draft Constitution is all about and has only heard people talk about it. But she remembers in 2005 when a referendum was held and she was told how to vote. Even then she did not understand the document in discussion. “I only heard of the Constitution when there was the ‘orange’ and the ‘banana’ and we were told how to vote by our councillor,” Lekorere recalls. When asked if she has heard anything concerning the Harmonised Draft Constitution, Lekorere says she has only heard people discuss it or on the radio but cannot tell exactly what it is about.
Extensively mentioned Lekorere is just one of many other people in the rural communities who may not understand what the Draft Constitution is all about. However, the marginalised communities have been extensively mentioned in the document. Article 44, Part two of Chapter Six that deals with the Bill of Rights addresses issues of minorities and marginalised groups. Article 44, clause 1 states: “Minorities and marginalised groups are entitled to enjoy all the rights and fundamental freedoms set out on the Bill of Rights, on the basis of equality, taking into account their identity, way of life, special circumstances and needs.” Delegates at the Women’s Conference on the Harmonised Draft Constitution who are from the marginalised groups said the document is fair to the pastoralists. According Mrs Rodah Rotino from West Pokot, the Draft is friendly to the marginalised groups. Rotino, who is the Executive Director of Kenya Pastoralists Empowerment Programme based in Pokot, said a devolved government is particularly important to the marginalised communities because it
will allow resources to be enjoyed by all. “This is important because some people have had their resources taken away without them getting any royalties,” Rotino elaborated. The Devolved Government is tackled in Chapter 14 of the Draft. Article 213 (e) states: “The objects of the devolution of government are to protect and promote interests and rights of minorities and marginalised groups at all levels.” It goes on in clause g: “...ensure equitable sharing of national and local resources throughout Kenya.” This defines Rotino’s train of thought and the fact that the marginalised peoples will reap greatly from the new Constitution. “Now people coming from areas where resources are exploited will benefit and many children will go to school as parents will have money in their pockets.” The new Constitution, it is believed, will make the marginalised groups be entrenched in policy and decision making. There is also a provision that women have been recognised by government and for the marginalised women it is definitely a great benefit. In the Bill of Rights, Article 38 states: “Women and men have the right to equal treatment including the right to equal opportunities in political, cultural, economic and social activities.” Rotino, who fights against retrogressive culture, that is particularly common among the marginalised communities, appreciates the fact that law will now defend the rights of the child, and particularly the girl child who is often under the threat of harmful tradition such as female genital mutilation and early marriage. “There is a clause to be referred when we go to court,” Rotino said. Article 41 98) in the Bill of Rights states: The State shall take legislative and other measures to implement the provisions of this Constitution and of international instruments and standards on the rights of the child.” Rotino also noted the fact that education is now free for everybody. However, she said it would be good to have an education system that takes into consideration the pastoralists’ ways of life.” Early and forced marriages are very common among marginalised communities. The greatest victims to this retrogressive culture being girls. Rotino reiterated the fact that early
marriages do not allow girls to complete school or make an informed choice about what they would like for themselves. “The law must also put in place the minimum age of marriage particularly for the girls so they can finish school,” she said, adding: “This is a weapon that a girl can use to delay marriage and make an informed choice when she is more mature.” Rotino’s sentiments are supported by Ms Jennifer Koinante, Executive Director of Yiaku Peoples Association who said that the Constitution should state clearly the right of the girl child and define a mechanism as to the age of marriage. “Although the Constitution clearly states the rights of children in Article 41, most of them barely reach Standard Eight as they are married off at Standard Six or below,” said Koinante.
Harmful practices Under Article 41 (6)(d), the Draft states: “Every child has a right to be protected from discrimination, harmful cultural rite and practices, exploitation, neglect or abuse.” Koinante explained: “The clause is written there in black and white but on the ground that is different, the girl child has continued to suffer even in the eyes of the people who are supposed to take care of them including government officers.” The gains for the marginalised communities are not lost Ms Jennifer Masis who comes from among the Sabaot community. She says the fact that women can now inherit property is a gain to all women, but in particular those from the marginalised communities and is happy that women can now inherit property. Article 77 2(f0 states that: “The national government shall define and keep under review a national land policy ensuring elimination of gender discrimination in laws, regulations, customs and practices related to land and property in land.” “Land rights and property inheritance is a gain to the marginalised communities where previously women and girls had no right to inheritance,” Masis said. However, Ms Agnes Leina, coordinator of Coalition of Violence Against Women (COVAW) in Laikipia North District regretted the fact that the
“The law must also put in place the minimum age of marriage particularly for the girls so they can finish school. This is a weapon that a girl can use to delay marriage and make an informed choice.” —Rodah Rotino Harmonised Draft arrived only five days before the expiry of the one month set for the public to read and give their views to the Committee of Experts. “The Draft was distributed to the few people who were present at the venue of the celebrations whose percentage is very small as compared to the whole population of the district,” noted Leina. She argued that the government had literally done nothing in distributing the document or and giving civic education to the illiterate majority among the marginalised communities. She noted that the marginalised communities continue to be suppressed even on national issues which need every citizen to be aware including those in the Draft Constitution. In many homes, she said, radios are owned by the men and women have no say over this rare
means of communication. “Women especially among the pastoral Maasai and Samburu communities will never know what is going on because despite having the radios at home. It’s the men who decide when to tune it off and on and even which station to listen to,” said Leina. The issue of land which is extensively addressed in the Draft is sensitive among the marginalised communities especially in Laikipia north and Samburu where they argue that their communal land was taken by white settler in the name of ranches and they are questioning whether they will ever get it back. The issue of land that has been dealt with in Chapter Seven Article 80 (1) which states: “Community land shall vest in and be held by communities identified on the basis of ethnicity, culture, or community of interest.”
Historical injustices Said Leina: “The government has been taking us round and round on the issue of community land which we are usually confused with the leasehold which is captured under Article 82 (2) which gives only 99 years for lease.” She added: “We want the final draft to consider this as a historical injustice and capture this issue as serious matter.” The issue of the referendum to which the Draft will eventually be subjected to is not lost to women from the communities. Ms Jane Meriwas, a human rights activist in Samburu said there will be a repeat of what happened in 2005 referendum where members of the marginalized communities were told how to vote. “I don’t see a difference between the last referendum and any other that might be coming simply because our people have not seen this document and read it,” argued Meriwas. She added that despite a few organisations in the region having done their best to educate the people, little could be done within the given one month for the public to read and scrutinise the document since the area is vast. However, those from the marginalised communities who have read the document are agreeable to the fact that if passed, the Harmonised Draft Constitution will benefit them greatly.
Issue Number 01 • January 2010
Bomas spirit prevails in the Harmonised Draft
…By Joyce Chimbi
Document enhanced from previous debate …By Jane Godia
he review of the Constitution of Kenya has been greatly political. It has been a long journey that began with the Constitution review talks at the Bomas of Kenya. It is this process that culminated into another draft document managed by the Attorney General, Mr Amos Wako. This document, labelled The Wako Draft, raised the review talks a notch higher by sending Kenyans to the ballot to decide whether this document reflected the kind of Constitution that Kenyans have been agitating for. That was in 2005, and now Kenyans, particularly the women of Kenya; who have fought long and hard for gender equality, are looking at what the Harmonised Draft Constitution has in store for them. Speaking at the National Constitutional Conference for Women, all female participants, most of whom were part of the Bomas Talks, are agreeable to the fact that the Harmonised Draft Constitution has included favourable clauses that are also contained in the Bomas document. Mrs Jennifer Masis, convenor of the Transition Committee at the Bomas Talks, says women’s issues in Bomas were passed without contention, “The gains in the Harmonised Draft Constitution to a large extent resonate with those passed at the Bomas,” says Masis. However, she is greatly concerned with wordings in the current document. “In Bomas we didn’t speak of people of the same sex, instead if an issue touched on women it was said to be for women.” In addition, Masis says that the current document lacks a defined time frame as to when the gains can be enforced. “In the Bomas Draft there was a time frame in which all the gains would come into force. However, in the Harmonised Draft, there is only a schedule but they do not say when the gains will be enforced.” Masis further points out that the merging of the Gender Commission and the Kenya Human Rights Commission was not in the Bomas Draft. She says that by merging the Gender Commission with the Human Rights Commission, will negatively affect how effectively women issues can be raised and managed. She reiterates: “We wanted an independent Gender Commission that would address women’s issues.” These views are supported by Mrs Caroline Ng’ang’a, who was the Convenor of People’s Representation in Bomas where women’s issues were discussed. Ng’ang’a argues: “The Gender Commission should have been left to stand on its own to give space to the fight for women’s rights.” She says that as far as women’s issues are concerned, the Harmonised Draft has, in a way, been enhanced from the Bomas document. It is from this perspective that women who were part of the Bomas Draft, as well as those versed with the 2005 process, agree that this document (Bomas Draft) echoes the current Harmonised Draft Constitution.
lthough Kenyan women constitute the majority population, these numbers have remained largely ineffective in the agenda to elevate women into the top level as the society’s stakeholders. Women, except for a minority who have managed to penetrate a strongly patriarchal society, have remained mere spectators, standing at the periphery as men set the agenda in the economic, socio-cultural and political arena. But even as discussions on the Draft Constitution continue to take shape, there is need to reflect on the Bomas Draft which in a sense instigated the remarkable gains for women that may constitute the new Constitution we now seek. It, therefore, begs the question whether the Bomas spirit is in this new Constitutional review or if it has all been washed away with time.
Gender lens “Indeed some time has passed since the 2005 Bomas Draft but I see a very clear transition, speaking strictly through a gender lens, from the process then to this new process,” explains Ms Fatima Ali Saman, an educationist, who was a delegate at the National Constitutional Conference that marked the Bomas talks. She adds: “The issues that touch on women in the current Draft are in tune with those that we pushed for in the Bomas Draft.”
Women delegates at the Bomas talks. The Harmonised Draft has borrowed heavily from the Bomas document: Below: Ms Saida Ali, Executive Director Young Women Leadership Institute. However, in spite of what Saman sees as a clear synchrony, she also sees a potential problem. “In the Bomas Draft, the Gender Commission and the Human Rights Commission were to be independent bodies unlike now where we find them combined in the Harmonised Draft,” “The current Gender Commission under the Ministry of Culture and Social
Services has been less than effective. For one, it lacks funds to make things move. A Commission such as this needs to stand and run independently for it to be effective.” The merger of the two key Commissions, she says, denies the Harmonised Draft an opportunity to treat gender imbalances as historical injustices. “In the Bomas Draft, the corrective clauses such as the Affirmative Action were mentioned together with a qualifier, which clearly indicated where we are coming from, the current Draft lacks qualifiers.” But many are finding it hard to separate the Bomas Draft from the Harmonised Draft Constitution. “The Bomas spirit is still alive,” explains Saida Ali, Executive Director of the Young Women Leadership Institute. “What we need to do as stakeholders in order to build into the Bomas Draft gains which are still evident in the new Draft is to strategise on development and movement building,” says Ali. She adds: “The optimism we had in 2005 is still there which shows that there is a consciousness about what it is that Kenyan women want to have included in a new constitution.”
Different spirit However, Ms Lillian Mwaura, a senior Lawyer in Nairobi and a former aspirant in Kiambaa constituency, defines the spirit that drove the previous draft differently. “The Bomas Draft was about beating what was seen by many as a tyrannical leadership and Kenyans were united in any agenda that could overthrow that form of leadership,” Mwaura explains. She intones: “The Wako Draft was ethnic, it was driven by an agenda to fight a certain community. The Harmonised Draft is driven by an entirely different spirit, people feel that if it becomes a Constitution then it will put food on the table, give them better jobs and generally improve the standards of living.” This, Mwaura says, is what a document that govern people should seek to facilitate, to ensure that every individual can fully develop to the highest
potential whether it is economic, social or political. But Ms Ted Olang’, a former aspirant in Karachuonyo sees a complete disconnect in terms of drive between the 2005 process and the place where we now stand in as far as the Constitution review is concerned.
Feel strongly “Most of the women in Kenya live either below the poverty line or just above it. Their expectations are immediate, they just want to see results and want them quick. Expecting that women still feel strongly about the new process as they did then (2005) is a tall order,” says Olang’. “In fact I feel a sense of disillusionment from this cadre of women. They have pressing needs of basic survival yet the process of Constitutional making is political and as it is with many other political processes, it’s long, longer than they can perhaps have patience for.” But even in the assumption that the Bomas spirit is still burning, having favourable provisions in the Harmonised Draft with regard to women such as the facilitation of their representation in political processes is a key but basic step nonetheless as Ms Patricia Nyaundi, Executive Director, Federation of Kenya Women Lawyers (FIDA) explains. “Moving to constitutionalism, where the issues in the Constitution come alive in people’s life is not automatic, it calls for civic education and a lot of resources.” Nyaundi says: “We are, therefore, in a complex situation, but one that can lead to Kenyans finally enjoying a new Constitution if there is understanding that against 222 parliamentarians, the over 30 million Kenyans can negotiate for a document that speaks for them and with them.” Nevertheless, as the clamour for a new Constitution gains momentum by the day, whatever dichotomy and or synchrony there is between the Bomas spirit and the current drive for a harmonised draft, it is still very clear that women have a consciousness that the country needs a document that rights the long standing historical gender imbalances.
Issue Number 01 • January 2010
Women unhappy over proposal to merge gender and human rights commissions …By Rosemary Okello
The BPfA calls on governments to put in place institutional structures and mechanisms to accelerate implementation of gender policies. The Gender Commission is one of them. “For us, an independent Gender Commission will help the government focus specifically on gender related issues,” said Mrs Deborah Okumu, Executive Director Caucus for Women Leadership. The gains of having a Gender Commission cannot be overstated. It will not only come up with relevant policies, but also monitor the way gender is mainstreamed in the various ministries, including the budgeting processes. It will also look into the issues of leadership and how such leadership impacts on the allocation, access and utilisation of resources, particularly by women, who have been marginalised for a long time. By putting in place Affirmative Action in the Harmonised Draft, an autonomous Gender Commission will be in a better position to follow-up on the implementation of this clause, the women leaders argued. The Gender Commission in Kenya was established with a mandate to coordinate, monitor, implement and provide general oversight to gender mainstreaming in all ministries and parastatals and to advise government. It would also promote a culture of accountability for gender equity and equality.
hile Kenyan women have widely praised the Harmonised Draft Constitution on safeguarding their rights, they are disappointed that these very rights are being watered down by Article 76 (1) and clause (2) (j). The provisions of these two areas indicate that the Gender Commission will now be under the Commission on Human Rights, giving it less visibility and force to chart and implement gender issues, argued women attending the one day conference to debate the Harmonised Draft Constitution. The women are worried that the merger will water down the Gender Commission to one of the programmes within the Human Rights Commission, an approach that is likely to impact negatively on funding and implementation of programmes. They now want the Gender Commission, which was constituted by an Act of Parliament, to be autonomous and elevated to a Constitutional Commission. “Putting the Gender Commission together with the Commission on Human Rights is undermining the issues pertaining to Gender,” argued Mrs Martha Rop, a women’s leader from Rift Valley.
Potential for development According to the women, the importance of Gender Commission should not be underestimated especially if the country hopes to harness the potential of both men and women in development. “A Gender Commission, if given proper structures and the requisite resources, will be responsible for ensuring gender equality and gender responsive governance,” said Ms Wambui Kanyi, Executive Director Bridge Africa. The women argued that at a time when Kenyans are in the process of redefining a social contract with their Government in the form of a new constitution, it should not be lost to leaders and the Committee of Experts that Kenya is signatory to the Beijing Platform for Action (BPfA).
A woman from the marginalised Borana community. Many women like this will have a lot to loose if the Gender Commission is merged with the Kenya Human Rights Commission.
The Commission was set up to uphold the principles and process of fairness and justice in the distribution of resources between men, women, boys and girls. It would also promote and pursue equal opportunities for women, men boys and girls. The Commission, therefore, provides oversight in gender mainstreaming, looking into monitoring as well as advising and lobbying government. The Commission initiates lobbying for and advocating for legal reforms on issues affecting women and formulate
laws, practices and policies that eliminate forms of discrimination against women and all institutions, practices and customs that are detrimental to their dignity. The Commission also institutes proposals and advice on the strengthening of institutional mechanisms which promote gender equity and equality in all spheres of life, and in particular, access to and benefits in education and healthcare, nutrition, shelter, employment and control of economic and national resources.
Strategic priorities It determines strategic priorities in all socio-economic, political and development policies of the government and advises on their implementation. The Commission conducts research activities on gender issues; carry out investigations on gender-based rights and violations and forward them to the relevant authorities; and receive and evaluate reports made by government ministries and other sectors on gender mainstreaming and woman’s issues. All these would be lost if the Gender Commission is merged under the Human Rights Commission. Countries such as Tanzania which has a Gender Commission has made it clear in its 2000 Policy on Development for Women and Gender that women should have a representative body, which is nonpartisan, free from religious, cultural and political ties to oversee women’s development. In South Africa, the aim of the autonomous Gender Commission established in 1994 was to promote gender equality, to advise and make recommendations to Parliament in regards to any laws or proposed legislation which affects gender equality and the status of women. It is in this regard that Kenyan women are recommending for an autonomous Constitutional Gender Commission that will oversee the formulation and implementation of policies and work plans designed to uplift the status of women in this country.
A window of opportunity for Nyanza …By Oloo Janak
hile Nyanza prides itself for having produced the first woman MP and the first woman mayor in Kenya, the province is now lagging behind all others. In the current and past Parliament the electorate failed to elect women to represent them in Parliament. Neither did the major parties that are popular in the region consider nominating women candidates. However, there is a ray of hope if the Harmonised Draft Constitution will pass the gains on women’s rights. Nyanza women attending the conference on the Harmonised Draft Constitution vowed to support the document saying it held the promise of offering space for women leaders in political decision making to emerge from a region which does not have a single woman legislator in the current parliament. The women said culture and dominance of the political party structures by certain powerful individuals had conspired to reverse gains that the region had made since independence in trail blazing women’s leadership. “We have a chance as women to rise again to national prominence as was the case in the 1960s to the late 1990s when Nyanza provided acclaimed women
Mrs Grace Ogot was MP for Gem. leaders to Parliament and other levels of leadership,” said Ms Margaret Omondi. Nyanza is recognised for having produced the first elected African woman mayor and MP in the 1960s. Mrs Grace Onyango was the first African Kisumu mayor after independence in 1963 and later became the Kisumu Town MP in 1969. Other women leaders were Mrs Phoebe Asiyo who was MP for Karachuonyo between 1979 and 1997, Mrs Grace Ogot who represented Gem Constituency between 1983 and 1992. There
was nominated MP Mrs Catherine Nyamato, from Kisii in the 1990s. At the civic level, there have been some women leaders including Mrs Jane Were heading Homa Bay County Council and Ms Turphosa Nyamusi, as mayor in Migori among other women councillors. However, it has been intriguing that Nyanza lost its position to the extent that in the last two parliaments there has been no elected or nominated woman MP in the region. The rest of the country including North Eastern Province, Coast, Rift Valley, Central and Eastern all have women MP. With Nyanza in the same camp is Western which is not gender sensitive in parliamentary representation. “The political parties’ structures have not been friendly to women. We can’t blame culture entirely because this had been overcome given the number of women who have been elected in the past,” said Omondi.
Nyanza is recognised for having produced the first elected African woman mayor and MP in the 1960s.
The Draft Constitution provides specific seats for women at county, regional, National Assembly and the Senate, making it possible for areas that could not previously elect women for various reasons to do so. “This is our joy because we will now be visible and get a chance to contribute to decision making at various political levels,” said Ms Caroline Okere, a delegate from Migori. However, Ms Lucy Machuki, from Kisii expressed concern over the system of government saying it would have been better to provide for only one centre of power to avoid confusion. “The gains for women are there but if the government cannot work well because of confusion and struggles at the top, then we need to get this clarified. Wrangles between the Prime Minister and the President can paralyse the country,” she argued. She also expressed concern over the role of the regional governor to manage the affairs of the provinces saying abolition of the provincial structure of governance and its replacement with an elected one could have challenges. However, she supported the Harmonised Draft Constitution but called for various safeguards in areas that could bring conflict.
Mrs Phoebe Asiyo who was MP for Karachuonyo
Issue Number 01 • January 2010
For the disabled, more could be done
…By Paul Mwaniki
efore Rose Museo Munyau was involved in an accident that made her start using crutches, little did she know of the challenges the physically handicapped undergo. Though she had met several people who in their lifetime were using crutches, Mrs Munyau confesses being a woman with temporary disability has also helped her understand the suffering a mother who is disabled passes through every day. It is this temporary disability that enabled her to come out clearly against what the Draft Constitution has to offer to this neglected section of the society. Although she commends the work done by the Committee of Experts, Munyau says more could have been done for persons with disabilities. The issue of disability is discussed on the Bill of Rights which is on Chapter Six of the Harmonised Draft Constitution. Article 43 has come out clearly on recognising persons living with disabilities. It states: “Persons with disabilities are entitled to enjoy all the rights and fundamental freedoms set out in the Bill of Rights, and to be full participants in society.” The chairperson of Disability Civil Society Coalitio, Ms Salome Kimata, says the Harmonised Draft Constitution has elaborated on the rights that should be given to this group. Currently the population of persons with disabilities stands at slightly more than 3.8 million people in Kenya. Furthermore under Article 43 (3), the Draft gives special provision for women living with disabilities. It states: “The State shall take legislative and other measures, including special provisions for women, to ensure that persons with disabilities enjoy all the rights referred to in clause (2). For instance Clause 2 (b) states: “Persons with disabilities have a right to have access to education and institutions and facilities for persons with disabilities that are as integrated into society as a whole as is compatible with interests of those persons.” Clause 2 (f) says: Persons with disabilities have a right to have equal rights to inherit, access and manage property.” However, Kimata says the Draft has generalised the disabled without taking into consideration that there are different types of disabilities all of which need different attention. “The Draft put all of us together in one basket and referred to us as persons living with disabilities not knowing that we have sub-sectors of the blind, albinism, autism, deaf, deaf-blind, mentally challenged and physically handicapped that all have special interests,” noted Kimata. She said that the Constitution should come out clearly on the issue of seats which are to be shared with the youth. The issue has already brought controversy between the two groups. Article 125 (1c) in Chapter 11 that speaks of the Legislature states: “The Senate shall consist of person with disabilities or falling within the category of youth, elected one each by the regions.” Kimata argues that persons living with disabilities cannot be categorised in the same group with the youth. She would like to see the two delinked. “We do not know why the Draft puts us together with the youth when it comes to the issue of sharing seats in the Senate. We want this clause amended before the final document is released and every group considered differently,” she said. However, all is not lost for persons living with disability. Kimata is happy
Above: Women with a hearing and speaking challenges (seated left) have the deliberations translated for them. Below right: Ms Rose Koweru, who is visually challenged, is led into the conference hall to join in the deliberations over women’s gains in the Harmonised Draft Constitution.
with Article 126 (1) (c) which gives seven seats in the National Assembly and the consideration it has given in terms of gender. It states: “The National Assembly shall consist of seven members who shall be persons with disabilities, no more than four of whom shall be of the same gender.” “The section is very clear and the number is well taken care of but there were attempts by the members of Parliament to reduce these seats which we strongly condemn and hope the Committee of Experts will not take seriously,” Kimata reiterated. The chairperson of the Kenya Union of the Blind women chapter, Ms Rose Koweru said that the Brailles provided to them were not enough and this made reading and understanding the Draft a difficult task. “It was very difficult to get a Braille copy of the Draft and most of the blind people had to rely on other people who got access of the written document,” said Koweru, who did not read the Draft herself. She said only audio CDs of the Draft Constitution were supplied with assistance of the various organisations that deal with the blind. “The audio CDs we received enabled us understand the Harmonised Draft but this could only be used by those who have CD players,” she lamented, adding, those in the rural areas do not know anything about the document. She also took issue with the written draft that did not consider the section of albinism who cannot read small font
and there was no alternative with large fonts. On the issues of the seven seats in the national assembly, Koweru felt that the seats were few yet there were more than eight provinces in the country. “The seats cannot even be shared per province because they are not adequate. It has not even considered constituencies. We urge the experts to consider this in the final draft,” she urged. Kimata said when it comes to guaranteeing membership of the National Assembly a figure seven (7) is specified. In respect of other public positions, a five per cent ratio is provided with progressive realisation. They resolved that fixed numbers be removed and the percentage ratio applies with a minimum of five percent (at least). They want the principle of progression to be accordingly removed and the enjoyment of right to be immediate. Other things that persons with disability looked into include provision for children with special needs to access free primary education with an explicit declaration of free universal accessible and quality education for all people with disability from preprimary to university as well as provisions for court interpreter for persons with intellectual disabilities among others. However, women living with disability noted that the Harmonised Draft Constitution captures the enduring collective aspirations by Kenyans for a democratic constitutional order.
“It was very difficult to get a Braille copy of the Draft and most of the blind people had to rely on other people who got access of the written document.”— Rose Koweru, a visually challenged woman who did not read the Draft herself.
Issue Number 01 • January 2010
Women’s recommendations on the Harmonised Draft Constitution as presented to the Committee of Experts The Harmonised Draft Constitution was released on the November 17, 2009 pursuant to Section 32 (1) (a) (i) of the Constitution of Kenya Review Act, (hereinafter referred to as the Act). Section 32 (1) (a) (i) provides inter alia:The Committee of Experts shall ― (a) Upon preparation of its report and the Harmonized Draft Constitution referred to in section 30 ― (i) Publish the Draft Constitution for a period of thirty (30) days; and (ii) Ensure that the report and the Draft Constitution are made available to the public; (b) Upon the expiry of the period provided for in paragraph (a) (i), review the draft Constitution and incorporate the views of the public; Regarding the review, Section 4 of the Act sets out its object and purpose as followsa)
Guaranteeing peace, national unity, and integrity of the Republic of Kenya in order to safeguard the well-being of the people of Kenya;
Establishing a free and democratic system of Government that guarantees good governance, constitutionalism, the rule of law, human rights, gender equity, gender equality and affirmative action;
Recognising and demarcating divisions of responsibility among various state organs including the Executive, the Legislature and the Judiciary so as to create checks and balances between them and to ensure accountability of the Government and its officers to the people of Kenya;
Promoting peoples’ participation in the governance of the country through democratic, free and fair elections and the devolution and exercise of power; Respecting ethnic and regional diversity and communal rights including the right of communities to organise and participate in cultural activities and the expression of their identities; Ensuring the provision of basic needs of all Kenyans through the establishment of an equitable framework for economic growth and equitable access to national resources; Promoting and facilitating regional and international co-operation to ensure economic development, peace and stability and to support democracy and human rights; Strengthening national integration and unity; Ensuring the full participation of people in the management of public affairs; and
B. RECOMMENDATIONS A proper assessment of the Harmonised Draft reveals bold provisions that upon its promulgation and implementation will enhance the status of women; however, the following adjustments ought to be considered to enhance the many gains that have been highlighted in the annexed audit
1. CHAPTER 5: CULTURE The chapter on culture should include an express provision outlawing cultural practices that affect women adversely.
2. CHAPTER 6: BILL OF RIGHTS Article 76 of the Draft creates the Human Rights and Gender Commission which merges the two existing commissions. It is the proposal of the Women’s Movement that the Gender Commission be separated from Human Rights and to be granted equal status as contemplated under Chapter 18 that deals with Commissions and Independent Offices.
3. CHAPTER 13: JUDICIARY
Committing Kenyans to peaceful resolution of national issues through dialogue and consensus. A close scrutiny of the Harmonised Draft reveals specific gains for women in the following areas:-
Although Article 13 (2) (j) requires the implementation of the principle of representation of two-thirds of members of elective or appointive bodies not to be of the same gender, we recommend that a similarly explicit provision be included in the Chapter on the Judiciary to guarantee women’s presence in this important arm of the Government.
Supremacy of the Constitution – Chapter One.
National Values, Principles and Goals – Chapter Three.
Citizenship Chapter Four.
Bill of Rights – Chapter Six.
Land and Property – Chapter Seven.
Leadership and Integrity – Chapter Nine.
5. Gender equality as Cross-cutting Issue.
Representation of the People – Chapter Ten.
Legislature – Chapter Eleven.
Even within the groups that have been historically marginalised, the women within such groups are doubly marginalised because of their gender. Therefore, gender equality must be made explicit in all such groups including the persons with disabilities, the youth, the elderly, the marginalised groups and any other group.
4. CHAPTER 14: DEVOLVED GOVERNMENT While representation to the Senate and National Assembly under Articles 125 and 126 respectively guarantees women’s representation in clear and specific terms, the proposed representation in the Regional and County Governments is not as explicit. It is recommended that a system of election that guarantees women’s gains such as appropriate proportional representation be considered and adopted.
10. Judiciary - Chapter Thirteen. 11. Devolved Government – Chapter Fourteen.
12. The Public Service – Chapter Sixteen.
It cannot be gainsaid that the Harmonised Draft heralds a new era, however, the proposed amendments can immunise the gains from the vagaries of discretion.
13. Commissions & Independent Offices – Chapter Eighteen.
Executive Director: Ms Rosemary Okello-Orlale Managing Editor: Jane Godia The Kenyan Woman is a publication of African Woman and Child Feature Service E-mail: email@example.com www.awcfs.org
Oloo Janak, Duncan Mboyah, Musembi Nzengu, Deka Abdi, Joyce Chimbi and Paul Mwaniki
Design & layout by: Noel Lumbama (Noel Creative Media Limited)
This paper is produced with support from The United Nations Democratic Funds (UNDEF)