ANTI-DISCRIMINATION COMMITTEE URGES KENYA TO CONTINUE PURSUING GENDER EQUALITY DESPITE REFERENDUM’S REJECTION OF WOMEN-FRIENDLY DRAFT CONSTITUTION

27 July 2007
WOM/1644

ANTI-DISCRIMINATION COMMITTEE URGES KENYA TO CONTINUE PURSUING GENDER EQUALITY DESPITE REFERENDUM’S REJECTION OF WOMEN-FRIENDLY DRAFT CONSTITUTION

27 July 2007
General Assembly
WOM/1644
Department of Public Information • News and Media Division • New York

Committee on Elimination of

Discrimination against Women

Chamber B, 799th & 800th Meetings (AM & PM)


anti-discrimination committee urges kenya to continue pursuing gender equality

 

despite referendum’s rejection of women-friendly draft constitution


Expressing dismay over Kenyan voters’ rejection of a draft constitution that comprehensively addressed gender equality, several members of the Committee monitoring implementation of the Convention on the Elimination of All Forms of Discrimination against Women today called on that country’s Government to press on with wide-scale campaigns to raise public awareness about the importance of empowering women in all aspects of public and private life.


One expert said he was “shocked” that many Kenyans voting in the November 2005 referendum had voted against the draft constitution precisely because of its gender-equality provisions.  Another noted that recent judicial decisions on property rights for divorced couples and parental responsibility for children born out of wedlock were illogical and unfair to women.  Several Committee members expressed concern over the prevalence of polygamy and the fact that marriage and divorce were governed by five different regimes.


Overall, experts of the 23-member Committee on the Elimination of Discrimination against Women, which monitors compliance with the Convention and its Optional Protocol, wondered why Kenya was taking so long to update gender-equality legislation -– much of which was based on British common law -- in accordance with the treaty.


Responding to the Committee’s comments and questions, members of the Kenyan delegation noted that the hotly contested referendum had been highly politicized, with one delegate noting that women had been led to believe that the document’s equality provisions were “not good for them”.  Another delegation member said Kenyans strongly favoured polygamy, and legislating changes to that and other traditional practices that discriminated against women would not be easy.


As she presented the country’s combined fifth and sixth periodic reports, Alicen Chelaite, Assistant Minister for Gender, Sports, Culture and Social Services, conceded that gender equality under Kenya’s present Constitution remained a challenge, but the Government had reinitiated talks on constitutional reform.  It was trying to ensure gender equality and incorporate the Convention’s provisions through minor amendments.


She said the Kenya Law Reform Commission had conducted a comprehensive review of laws on marriage, gender equality and affirmative action.  Some gender issues had been included in bills on equal opportunity, family and domestic violence, while bills on legal aid and access to justice were under discussion.  A recent law making children born out of wedlock the sole responsibility of the mother was unfortunate, but efforts were under way to reverse that decision.  Further, the Penal Code did not adequately address prostitution and was in dire need of review.


Another delegate pointed out, however, that Kenyan legislators had scored a key success in addressing HIV/AIDS, a major challenge facing the country and Africa as a whole, to which women were more vulnerable than men.  The 2006 HIV/AIDS Prevention and Control Act -- a rights-based law and the first in Africa -- made it a crime for an HIV-infected person or AIDS carrier intentionally to transmit the disease to someone else.  A new National HIV/AIDS Control Council, and AIDS committees in virtually every public institution, enabled the Government to coordinate HIV/AIDS activities nationwide.  Officials were now looking at a roadmap to implement the Act.


The Committee will meet again on Tuesday, 31 July, to consider the Republic of Korea’s combined fifth and sixth periodic reports.


Background


The Committee on the Elimination of Discrimination against Women met in Chamber B this morning to take up the fifth and sixth combined periodic reports of Kenya (document CEDAW/C/KEN/6).


Kenya’s delegation was headed by Maina Kamanda, Minister for Gender, Sports, Culture and Social Services, and also included Alicen Chelaite, an Assistant Minister.  Its other members were Z.D. Muburi-Muita, Permanent Representative to the United Nations; Mary C. Wambua, Assistant Commissioner for Gender and Social Services and Head of the Gender Division,; Collette Suda, Commissioner for Gender and Development; Justice Joyce Aluoch; Robin Achoki of the Office of the Vice-President and Ministry of Home Affairs; Rukia Subow of Maendeleo ya Wanawake; Nancy Baraza of the Kenya Law Reform Commission; Atsango Chesoni, Consultant on Gender, Law and Human Rights; Jean Kamau, Executive Director of the Democratic Foundation, Ltd; and Grace W. Cerere, Stella K. Orina, and John K. Mosoti, all from Kenya’s Permanent Mission to the United Nations.


Introduction of Report


Ms. CHELAITE presented the combined report, saying that since Kenya ratified the Convention in 1984, it had adopted several legislative, administrative and programming measures to end discrimination against women and girls.  Parliament’s 2006 Gender Equality and Development paper provided a comprehensive framework for gender programming.  A plan of action to implement a national gender and development policy was being finalized.


She said the Government had worked to expand and train staff of the Ministry of Gender, Sports, Culture and Social Services, the Department of Gender and Social Services and the National Commission on Gender and Development to better address gender-mainstreaming issues.  The Gender Secretary was charged with formulating and reviewing gender-responsive social development policies, facilitating gender mainstreaming in the public and private sectors, promoting the creation of sex-disaggregated data and facilitating the implementation of international and regional agreements on gender issues, among other things.


Gender equality under the Constitution remained a challenge, she said, noting that, in a November 2005 referendum, Kenyans had voted against a proposed new Constitution, which would have included comprehensive provisions on women’s advancement and gender equality.  However, the Government had re-initiated talks on constitutional reform, and the Convention’s provisions would be addressed through minimum amendments.  As an alternative strategy to push through legislative reforms that would enhance compliance with the Convention, the Kenya Law Reform Commission had conducted a comprehensive review of marriage laws, gender equality and affirmative action laws.


She said Parliament would table several bills calling for legal reforms, including the 2007 Equality Bill, which included a definition of discrimination based on article 1 of the Convention.  The 2007 Employment Bill, which Parliament had yet to debate, outlawed discrimination on the basis of race, colour, sex, language, religion, political affiliation, nationality, ethnicity, social origin, disability, pregnancy, mental health or HIV status.


Through a consultative process, the Government was developing a National Policy and Action Plan on Human Rights, she continued.  The judiciary had made out statutory forms on inheritance matters, which were contained in the Succession Act and readily available to widows and orphans, enabling them to petition courts directly, without the help of a lawyer, for letters of administration.  They could thus access the estates and property of their deceased husband or parent.  The Government was also offering free legal clinics on inheritance, and the Cabinet had approved the implementation of a legal aid scheme to give poor, vulnerable members of society –- notably women -- better access to justice.


The participation of women in key leadership positions had contributed significantly to development, she said.  The constitutive legislation of most national institutions now required that women account for one third of all employers, in accordance with the President’s directive mandating that 30 per cent of all appointments, recruitment, promotions and training be reserved for women.  That would be raised to 50 per cent, ensuring gender parity in decision-making.  Kenya now had 12 women judges and 11 women ambassadors as compared to nine judges and seven ambassadors in 2003.  There were 18 women parliamentarians, the highest number in the country’s history, including two heading key ministries -- Justice and Constitutional Affairs, and Health -– while six women held assistant ministerial rank.


To end gender violence, the Government had set up the first police station specifically charged with assisting women and children victims, and had instituted gender desks in police stations nationwide.  It had also trained law enforcement officers on gender issues and human rights.  The 2006 Sexual Offences Act included definitions of sexual offences, and provisions on the prevention of and protection against harmful sexual acts.  A multisectoral task force comprising key government ministries and civil society had been appointed to prepare and recommend a national policy and guidelines to implement and administer the Act to ensure uniform treatment of sexual offenders.  The Head of State had described the Domestic Violence (or Family Protection) Bill as a priority.


She said the 2001 Children’s Act outlawed female genital mutilation and early marriage, though enforcement remained a challenge.  Statistics showed that perpetrators of violence were mainly immediate family members or other relatives, many of whom were breadwinners in the victims’ households.  Many victims were reluctant to have perpetrators arrested for fear of negative socio-economic consequences.  However, the Government had taken steps to ensure arrests and other strategies to involve communities in finding their own solutions to end mutilation.  Non-governmental organizations were also doing their part through community training and awareness-raising campaigns among health professionals, the police and in the media.  Other programmes aimed to train circumcision practitioners to earn their living in other ways.


The introduction of free primary education in 2003 had led to full gender parity in primary school enrolment, she said, adding that the Higher Education Loans Board provided aid for poor, disadvantaged children.  The Gender and Education Policy aimed to eliminate gender disparities, enhance gender equality and increase the enrolment of special-needs children, which was particularly low among girls.


She said strict enforcement of the 2006 Sexual Offences Act and the 2003 Public Officer Ethics Act would ensure that sexual harassment in the workplace was a thing of the past.  The Ministry’s Inter-Ministerial Committee on Grants to Self-help Groups had contributed significantly to the economic empowerment of women.  The Women Enterprise and Development Fund, set up in 2006, aimed to alleviate poverty through the socio-economic empowerment of women.


While Kenya had not ratified the Optional Protocol to the Convention, the Government had set up an inter-agency committee in January 2005 to discuss the implications of ratification, she said.  A stakeholder forum was scheduled for October 2007 in that regard.  A Cabinet memorandum recommended the amendment of article 20(i) of the Convention to enable the Committee to meet more frequently in order to more effectively fulfil its mandate.  Meanwhile, the Government would take all necessary measures to ensure enactment of the Domestic Violence Bill, the Matrimonial Property Bill, the Equality Bill and the Affirmative Action Bill.  It would also make concerted efforts to ensure enforcement of the Children’s Act, the Sexual Offences Act and the Public Officers Act, among other legislation.


Experts’ Comments and Questions


As the experts began with their detailed consideration of Kenya’s reports, several speakers focused on the country’s implementation of the concluding remarks issued by the Committee in 2003, its legislative efforts to promote gender equality, and the Convention’s standing in domestic laws.


CORNELIS FLINTERMAN, expert from the Netherlands, said that when the Committee had considered Kenya’s implementation of the Convention in 2003, a new Constitution was being drafted, and the country had been expected to make a major jump towards legislating gender equality.  Thus, it had been shocking to learn that voters had rejected the new Constitution in 2005, many of them voting against it precisely because of the gender-equality provisions.  With minimum amendments to the Constitution expected to be submitted soon, what impact would they have on gender equality, and what was the time frame for the review of remaining discriminatory provisions in the law?


Regarding the workshops set up to discuss the Committee’s comments, he asked what steps had been taken to implement their conclusions, and noted also that he had some difficulty in understanding the Government’s reasoning for declining to ratify the Optional Protocol.


MARIA REGINA TAVARES DA SILVA, expert from Portugal, said she understood the difficulties facing the Government with regard to acceptance of the proposed Constitution, but some recent judicial decisions seemed to be “illogical and unfair to women”, particularly in the area of family property and parental responsibility for children born out of wedlock.  The rejection of the Constitution and the controversial judicial conclusions underlined the need for wide-scale awareness-raising measures and training of the judiciary and politicians.  Also, the delegation consisted mainly of women.  What role did men play in efforts to advance women’s equality?  They were tired of waiting for equality.


DUBRAVKA SIMONOVIC, expert from Croatia, noted that one of the Committee’s previous recommendations related to the need for the inclusion of more men in the country delegation.  Why was that not the case today? She also asked about the incorporation of the Convention at the national level.


Delegation’s Response


Ms. CHELAITE said the Government had been focusing on reforms and expressed the hope that, following the next elections, Parliament would support its efforts.


Another member of the delegation said gender equality was a contentious issue in Kenya, and the referendum on the Constitution had been highly politicized.  Women had been led to believe that its equality provisions were “not good for them”.  Where equality issues had not been addressed through the Constitution, the Government was now trying to “capture” them through legislation.  The Kenyan Law Reform Commission had taken up those provisions.  Some gender issues had been captured in the Equal Opportunities Bill, which was due for submission to Parliament.  Bills on legal aid and access to justice were now under discussion, and the Commission for Law Reform was focusing on that problem.


In a recent case, a court had created a precedent by citing the Convention in its decision, she continued, describing that mention as a major breakthrough.  The Government generally initiated progressive bills, but it had no control over Parliament.  Some 11 billion Kenya shillings had been invested in promoting the new Constitution, but for reasons beyond the Government’s control, it had been rejected.  Efforts were now under way to continue with the process, but due to time constraints, one alternative was to introduce minimal reforms, including those on women’s participation in Parliament.


She said a recent Court of Appeals decision had reversed the gains that women had made through a judicial decision on the equal division of property following divorce.  That judgement had not completely rejected the values of the decision, but it was not the business of the court to make law -– that was the prerogative of Parliament.  To close that lacuna, a matrimonial property bill had now been prepared for submission to Parliament.  A recent law making children born out of wedlock the sole responsibility of the mother was unfortunate, but efforts were under way to reverse that decision.  The Equal Opportunities, Family and Domestic Violence bills represented an attempt to incorporate the Convention into national legislation.


Another delegate said the constitutional review was a matter of priority, but it was a deeply contested process, and it was difficult to determine the time frame for its conclusion.  However, the Government was committed to advance gender equality.  As for ratification of the Optional Protocol, an inter-ministerial committee was considering that issue.


Experts’ Questions


FUMIKO SAIGA, expert from Japan, sought more information about the national machinery for the advancement of women and the monitoring of existing programmes, saying she did not understand which organizations had overall responsibility and authority to coordinate all gender issues.


Delegation’s Response


A member of the delegation said reform of the national machinery had been initiated in 2003 with the Government’s creation of the position of Minister for Gender and the establishment of the National Gender Commission as a lobbying and advisory body.  It had also created the position of Gender Secretary.  However, the Ministry’s budget was “pathetic”, and staffing was a major challenge.  However, the recruitment of gender offices to increase the staff of the relevant departments was now under way.


Experts’ Questions


MAGALYS AROCHA DOMINGUEZ, expert from Cuba, asked what steps had been taken to end sexual stereotypes of women and girls in remote areas with low school enrolment and literacy rates.  What strategies were being developed to end female genital mutilation and sexual violence against elderly and other vulnerable women?


DORCAS COKER-APPIAH, expert from Ghana, asked how Kenya could expect to have an equality bill to deal with issues like divorce, marriage and separation when the Constitution allowed discrimination in those areas.  What was the difference between the Equality Bill and the Equal Opportunities Bill?  Had the Government conducted any research on the link between gender stereotypes and violence against women?


Ms. SIMONOVIC, expert from Croatia, asked what had been the main obstacle to adoption of the Domestic Violence Bill in the past eight years, and why female genital mutilation was prohibited for girls but not for women over 18 years of age.  Were there any plans to prohibit the practice on all women, regardless of age, and to consider it not only as a traditional practice, but also as violence against women?  Criminal courts considered female genital mutilation assault.  Why was the practice not considered to be a more serious crime?


Delegation’s Response


A delegate said the Government had conducted a comprehensive review of school curricula to determine their use of gender stereotypes.  New textbooks and other reading materials had been developed to portray boys and girls, men and women as being capable of playing any role in life, rather than those based on gender.  The Children’s Act outlawed female genital mutilation.


She said education strategies focused on access, retention, enrolment, transition and performance, adding that mobile primary schools had been set up to educate children in remote rural areas.  Kenya had affirmative action for girls in public universities.  The Government would soon implement a paper from the Inter-Ministerial Committee on Female Genital Mutilation, an initiative of the Ministry of Health and development partners, which would create a platform for consultation and reflection.  The Elderly Act addressed the unique needs of elderly persons facing discrimination.


Regarding the difficulty of guaranteeing gender equality through the Equality Bill while the Constitution allowed discriminatory practices, another delegate said the bill tried to capture non-contentious issues, especially those concerning gender equality in elective and appointed posts, but it did not touch much upon the contradiction in article 24.  Until Kenya removed that contradiction, it would be a hindrance.  As for the difference between the Equality Bill and the Equal Opportunities Bill, the title of the former had been replaced with the latter, which addressed broader issues of gender equality.


She said the Domestic Violence Bill had been redrafted, following consultations with the public on the kind of bill they wanted and the settlement criteria they wished to see included.  Lawmakers also wanted to draft it in such a way that most Kenyans could understand it, as the older text was less comprehensible.  This year, the Law Reform Commission had called for the expedited drafting and adoption of bills so that drafts did not languish for years in the Attorney-General’s office.  Six million Kenyan shillings had been earmarked for that, with the goal of sensitizing Parliament on the need to take action on bills as soon as possible.


Turning to the question of age discrimination, another delegate said the National Commission on Human Rights was conducting a study on ageing, which would be completed in two months.  The disaggregated data collected would be presented to Parliament, where it would be compiled and released as a concrete report on the subject.


Follow-up


In a round of follow-up questions, several experts elaborated further on their previous questions.  Ms. SAIGA, expert from Japan, said that, judging from today’s responses, the Equal Opportunity Bill did not contain controversial provisions.  Would it be in compliance with the present Constitution, which did contain discriminatory provisions?  It was also very important to make clear who exactly was responsible for implementation within all relevant structures.


Ms. COKER-APPIAH, expert from Ghana, noted that women and girls comprised the largest number of refugees and displaced persons, and asked what measures were in place to protect them and to punish perpetrators of sexual violence against them.  Were there plans to decriminalize prostitution in Kenya, and what impact would the country’s universal birth registration campaign have?


Delegation’s Response


On ratification of the Optional Protocol, a delegation member said it would allow for communication and inquiry procedures.  Civil society and non-governmental organizations had advised the Government on the need to ratify the instrument, and it was to be hoped that a clear response could be included in the next report.


Another delegate representative said the recently enacted Sexual Offences Act sought to deal with all cases of sexual violence.  It also applied to refugees and internally displaced persons.


Regarding prostitution, a delegate said the country lacked an adequate legal framework to address that question, which was currently a crime under the Penal Code.  However, existing legislation was ridiculous because it punished the woman and not the man.  The Penal Code was in dire need of review, and the Law Reform Commission was looking into it.  The Commission had recently been revitalized and was now considering a large number of bills, including efforts to establish unified and comprehensive family and marriage legislation.  Current legislation was represented by a variety of customary, religious and State laws, many of them based on British common law.  Trafficking in people was recognized as a crime, and the Government had recently initiated significant efforts to sensitize the public through government agencies, the media, and tourist industry representatives.


Another delegate said the Ministry of Gender also dealt with sports, culture and social services, but gender issues received priority.  The Office of the Gender Secretary headed the Department of Gender, formulating relevant plans and policies, identifying main priorities, and promoting gender mainstreaming in all ministries and other offices.


Ms. CHELAITE added that time was needed to implement the Government’s long-term gender-equality goals, particularly taking into account that Kenya had some 45 ethnic groups and other communities.  The Government was increasing its gender budgeting and promoting microfinancing for women in rural communities.  The country’s development partners and non-governmental organizations also played an important role in campaigning for women’s issues.


Experts’ Questions


MERIEM BELMIHOUB-ZERDANI, expert from Algeria, expressed regret that voters had rejected the proposed new Constitution and urged the Government to press on.  What was extremely important was political representation of women, whose voices needed to be heard.  The Government must pursue that goal in order to increase women’s role in decision-making.  A bill that would make political parties ineligible for funding unless a certain number of its women members were elected was of great importance.  The country also needed more female ministers, magistrates, political leaders, lawyers and public servants.


ZOU XIAOQIAO, expert from China, asked if delegation was considering lobbying high-level officials or providing them with training on articles of the Convention.  Who had participated in training programmes conducted in partnership with the United Nations Development Fund for Women (UNIFEM), and what impact had they had on the trainees?


Ms. TAVARES DA SILVA, expert from Portugal, asked the delegation to elaborate on the difficulty of achieving affirmative action, noting that such policies might require a constitutional amendment, though not for reasons of increasing the number of parliamentary seats for women.


Mr. FLINTERMAN, expert from the Netherlands, asked why discrimination in the citizenship rights of women had not ended.  Were the courts aware that the Constitution must be interpreted in light of Kenya’s obligations under international law, including the Convention?  Single women required their fathers’ consent and married women that of the husbands in order to obtain passports.  Did the Constitution address that matter?  It was important to end that discriminatory practice.


Delegation’s Response


A delegate said it was indeed critical to increase women’s participation in political decision-making, noting that the Political Parties Bill would open the way for more women to be involved in political parties, thus, increasing their political voice and, hopefully, their numbers in Parliament.


A constitutional review currently under way would bring about minor reforms, she said, adding, however, the reason reform was taking so long was that Kenyans lived in a patriarchal society that determined how quickly women’s gains could be negotiated.  The implementation of reforms requiring women to hold 30 per cent of the posts in key government agencies had been very significant in bringing women into the National Human Rights Commission, the Law Board and other key institutions.  Regarding citizenship, the draft constitution that Kenyans had rejected in the November 2005 referendum would have given women equal citizenship rights, and campaigns to change the existing law were continuing within the Government and civil society.


Many civil society groups and development partners were creating sensitization programmes, another delegate said.  For example, the “Wise up” campaign launched by the National Commission on Human Rights and non-governmental organizations aimed to educate women on the need to increase their numbers in Parliament.  The Equity Bank and the United Nations Development Programme (UNDP) office in Kenya had set aside 5 billion Kenyan shillings to be accessed by women candidates.  Hopefully, by the time a new Parliament was installed, many more women would occupy parliamentary seats.


Another delegate said more than 100 women were interested in contesting for Parliament, and about 300 women more in running for local government seats.  Three women were seeking the Presidency.  That increase was due in part to the sensitization programmes and assistance provided by Kenya’s development partners and non-governmental organizations.


Follow-up


In a round of follow-up questions, Ms. ZOU, expert from China, asked about the time frame foreseen for achieving the set quotas of 30 to 50 per cent women’s participation, while Ms. SAIGA, expert from Japan, wanted to know more about nationality and the issuance of passports.


Responding to those queries, a member of the delegation said the affirmative action directive on public service positions had taken immediate effect for all subsequent appointments.  A clear constitutional amendment was needed to address discrimination in the present legislation on nationality issues.


Experts’ Questions


Ms. ZOU, expert from China, welcomed the Government’s achievement of free elementary schooling, but noted the persistence of traditional prejudice against girls’ education, whereby many families preferred to keep girls at home.  What was being done to convince such families that there was value in educating girls?  How were government policies on compulsory education monitored?  She also requested additional sex-disaggregated statistics on the education system and information about girls who left school due to early marriage or teenage pregnancy.  What measures were in place to facilitate young mothers’ return to school?


Delegation’s Response


A delegation member cited free elementary education as one of the country’s main achievements, adding that one of the policy’s consequences was increased enrolment in school and gender parity at the primary level.  Kenya intended to introduce compulsory secondary education next year.


Regarding discriminatory cultural practices and prejudices, she said a gender and education policy was in place, but school attendance by girls was still relatively low in some parts of the country, especially in remote rural areas.  When parents had to pay for primary school education, they tended to give preference to boys, but they had no excuse for keeping girls home now that primary education was free.  Efforts were being made to bridge the gender gap in education and to sensitize the population to the importance of girls’ schooling.  Mobile schools and school feeding programmes were important in that regard and many other incentives were being introduced.


Affirmative action was being introduced in public universities, while early childhood, adult and continuing education policies also sought to promote girls’ and women’s education, she said.  However, teenage pregnancy and early marriage remained a problem, though the Government promoted a policy of readmitting young mothers to school.   Kenya was making efforts to promote the Millennium Development Goal of eliminating illiteracy by 2015.  The Ministry of Education was working with other sectors to achieve higher enrolment of girls and ensure that education was free for all by 2015.


Another delegate added that the provincial administrations had been instructed that all children must attend school and parents found in contempt of that policy could be penalized under the Children’s Act.  Under a separate Act, on HIV/AIDS prevention, HIV/AIDS courses were now taught at schools, another delegate said, noting, however, that sexual education faced much resistance.


Experts’ Questions


RUTH HALPERIN-KADDARI, expert from Israel, sought additional information on women’s employment and on gender and age differences in various occupational groups.  It was apparent that there was an apparent wage gap in Kenya, and many women did not demand equal pay for fear of reprisals.  What was being done to promote women’s employment, particularly in the informal and private sectors?  What chances of adoption did measures proposed in the proposed Employment Bill have?  She also asked about legislation to protect women against sexual harassment in the workplace.


Delegation’s Response


A delegation member said the proposed Employment Bill would apply to both the private and public sectors, adding that the bill sought to protect women’s right to employment in both sectors.  The area of wage differences needed more attention.


Experts’ Questions


Ms. AROCHA DOMINGUEZ, expert from Cuba, asked about the main cause of death among girls aged under five years, and programmes in rural areas to prevent HIV/AIDS among women.  Why were infection rates among women aged 15 to 24 higher than those of men of the same age group?  What kind of sexual education programmes did Kenya have in schools and for children not in school?  Had any progress been made in increasing girls’ and women’s access to family planning?  Was abortion a leading cause of death?


Ms. COKER-APPIAH, expert from Ghana, asked about the treatment of pregnant women and whether women who had suffered botched abortions refused treatment or were treated poorly in hospitals.  Most Government HIV/AIDS programmes were not directly targeting the socio-economic and cultural factors that caused HIV/AIDS among women.  Did government strategy take into account the gender-based vulnerability of women and girls?  What measures were there to ensure equitable access to health care and women’s reproductive rights?


Delegation’s Response


Regarding HIV/AIDS strategies, a delegate said poverty had “done Kenya in”.  Most HIV/AIDS programmes were implemented with support from donors, mainly the World Bank.  Still, much had been achieved to control the epidemic, and Kenya had set up a National HIV/AIDS Control Council that had performed tremendously well.  Every public institution had an AIDS committee, which enabled the Government to coordinate HIV/AIDS activities nationwide.  There was also a peer review mechanism.


Combating the pandemic was a big challenge in Africa as a whole, she said, pointing out that Kenya had been the first country in the continent to pass HIV/AIDS legislation.  The 2006 HIV/AIDS Prevention and Control Act criminalized intentional transmission by an infected person.  The Act was a rights-based approach, and studies indicated that women were more vulnerable to HIV/AIDS than men.  Kenya’s National Strategic Plan included gender mainstreaming, but some cultural practices, like the “inheritance” of widows, dragged the programme down.  However, the strategy was going well overall.  HIV/AIDS had been recognized as a human rights issue and the Government was now looking at a roadmap to implement the Act.


Turning to child mortality, she said it was in fact quite high due to inadequate health facilities, poverty and low education levels among parents.  A 2007 government directive had waived maternity fees in all public dispensaries and health centres, which was just the first phase of the programme.  More could and would be achieved.


Broadcasting radio programmes on reproductive health in local languages was among the Government’s efforts in the area of health, she said.  Voluntary testing and counselling centres were in place as part of the effort to stop the spread of HIV/AIDS.  In general, the country had many good policies in place, but implementation was a problem.  It was to be hoped that, with donor support, those policies could be implemented.


Regarding abortion, a member of the delegation said that according to a recent study, some 5,000 women died each year from complications arising from unsafe abortions.  As for access to abortion, it was now available only when two doctors deemed it necessary and advised accordingly.  Beyond government efforts to make abortions more accessible, there was a need to review existing legislation.


Among the reasons for high maternal mortality rates was limited access to health services, another delegate said, stressing that access was not only about money –- but also about the quality of care, supply problems and the attitude of providers.  To deal with some of those concerns, the Government had initiated training for health providers, started disseminating best practices and set up youth-friendly facilities.


Experts’ Questions


ANAMAH TAN, expert from Singapore, noted that about 80 per cent of the country’s women lived in rural areas and asked for more details about educational and development programmes in those rural areas, women’s land rights, and their access to credit, among other things.


Delegation’s Response


A delegation member replied that national agricultural policy emphasized the role of women in the rural economy.  One strategy involved working with communities to sensitize women on their rights.  Efforts were being made to ensure women’s participation, improve their access to credit, and stop men from collecting all family wages.  Enforcement of existing policies was difficult, but there was an effort to promote women’s involvement in rural programmes.  The Women’s Enterprise Fund would go a long way towards ensuring women’s access to resources.  Dissemination of the national land policy was a joint government-civil society project.


Another delegate said the majority of small-scale farmers were women, but most policies in the past had been geared towards large-scale farming.  The Government’s new policy was directed at reorienting services and training personnel who could reach the rural population and increase awareness of small business needs.


Women often worked on land they did not own, she continued, adding that the Women Enterprise Fund would help empower women in terms of land ownership.  Providing funding for women with little or no collateral, the Fund was the Government’s success story, another speaker added.  To make people aware of its existence, ads were placed in newspapers.  The Government was issuing grants to women with special needs and, at the grass-roots level, District Social Development Committees also sought to reach women.


Follow-up


Responding to a follow-up question regarding protective measures for women, whose employment rights had been violated, a member of the delegation cited trade unions, labour courts and the Human Rights Commission.  Some civil society organization also dealt with legal aid in the labour sector.  Another delegate said the Human Rights Commission also provided mediation services.


Another delegate said the Employment Act before Parliament addressed the protection of complainants.  Complaints could also be filed with a Parliamentary House Committee.


Experts’ Questions


Ms. BELMIHOUB-ZERDANI, expert from Algeria, asked what progress had been achieved in elaborating new family legislation, noting that under current laws, women could hold high positions of power, but in their personal lives, they were not allowed to marry as they wished.  There were five or six regimes covering marriage and divorce, including Christian, Muslim, Hindu, civil and African customary law.  The Convention had been established to combat discrimination and ensure full equality between men and women, but Kenyan women faced discrimination at various levels.  It was important for the country to have a single civil code for all groups, with religious services supplementing civil procedures, should people so desire.


Ms. TAN, expert from Singapore, said she shared those concerns and asked also about polygamy.  How many wives was a man allowed under customary law, and did they all have the same rights?  What happened to a wife upon divorce?  Did she get a share of family assets?  Were those issues addressed by the Law Reform Commission?  How did the Matrimonial Property Bill provide for the protection of women?  She also noted that while the numbers of cohabiting couples were increasing, Kenya had no laws on such unions.


Ms. HALPERIN-KADDARI, expert from Israel, said that unless women enjoyed equal rights in family life, the Convention was not worth the paper it was printed on.  Would discriminatory provisions be abolished by the new law?  She also asked about women’s right to the custody of children under customary law, children born out of wedlock, enforcement of the abolition of early marriages, women’s succession rights under sharia law, and the practice of “bride price”.


Delegation’s Response


A delegate conceded that the number of legal regimes governing marriage had been a problem, saying the Law Reform Commission was trying to come up with a single comprehensive Marriage Act, which was pending approval on 13 or 14 August.  Polygamy was a very complicated issue as most Kenyan men were polygamists.  There was no comprehensive marriage law to date because women dared to say “don’t touch polygamy”.  A task force had surveyed people nationwide and found that most Kenyans favoured polygamy.  There was no limit to the number of wives a man could have.  The delegation was recommending the registration of all marriages and that all married women be entitled to marriage certificates.


She said the proposed Marriage Act would define matrimonial property.  In case of divorce, both spouses would receive an equal share of the matrimonial home and accompanying land.  Proof of a spouse’s contribution was needed for property acquired during marriage.  The Children’s Act obliged both parents to provide economical support for children born out of wedlock.  As for cohabitation, increasing numbers of young people were opting to live together without getting married.  The proposed Marriage Act addressed contentious issues arising when couples separated, such as property and parental responsibility, while the current law permitted girls as young as 16 to marry provided they received parental consent.  But the Children’s Act banned marriage for girls under 18.  The new Marriage Act would harmonize that.


Another delegate said the delegation was well schooled in the Convention and wanted to implement it fully, but any attempt to force Kenyans to accept laws they did not want would not work at all.


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For information media • not an official record
For information media. Not an official record.