Reading the title, you might be tempted to say: “Some people want to find a constitutional angle to everything!”
It is true that the Constitution cannot solve every social issue. But, in fact, we at Katiba Institute do believe that it provides a framework for resolving many issues, especially those that involve conflicts of rights and interests.
Many countries give nursing mothers the right to breastfeed at work. In the Republic of Ireland and South Africa, that right exists only for six months after the birth. In China, the right exists for a year.
In increasing number of countries, laws give women a right to breastfed wherever they themselves have a right to be. In Scotland, it is a crime to prevent anyone feeding a child, including breastfeeding, anywhere the public are allowed to go, whether they have to pay or not. So a park, a shopping mall or a restaurant would be included. Many US states also have laws on these lines. Various countries of the South also have laws on breastfeeding in public. It comes as a bit of surprise to discover that women in Germany were only recently ( 2016 ) pressing for law to protect breast feeding in places like restaurants.
The Health Act requires all employers to establish decent places where women can breastfeed or express milk. And they must give women time to do so. Unfortunately, the Act (which is already in force) is unrealistic because it does not distinguish between types and sizes of business — some may have no fixed work place.
Women who demonstrated in Nairobi on Tuesday were supporting a new Bill that repeats the Health Act provision with more detail. There is still the problem that every employer is covered. Is it progressive because it applies until the child is two years old? The Bill also provides that public places must provide spaces for babies’ changing rooms. Oddly, it says this requirement applies to those places with a maximum occupancy of 30 people — does it mean minimum, like a restaurant with space for 30 customers or more? It does not say these places must allow breastfeeding. Let us hope Parliament will amend the Bill to ensure it is comprehensive and workable.
In fact, there is a good case that there is already a right to breastfeed, under the Constitution.
No one may be discriminated against on any ground, including sex (Article 27 ). If a woman is refused some service — such as eating in a restaurant — because she is breastfeeding a child, is this sex discrimination? Some countries have a law that makes it clear that it is. We do not. But courts in some countries have protected breastfeeding women, and their babies, under constitutions that ban simply “sex discrimination”. In New Mexico (USA) a judge held there was a right — even for a woman prisoner — to breastfeed. The New Mexico Constitution just says “Equality of rights under law shall not be denied on account of the sex of any person.”
It used to be argued that discrimination means treating a person with a particular characteristic unfairly in comparison with a similar person without that characteristic. Such an argument would continue: If a restaurant refuses to allow all women to breastfeed, it is not discriminating; it treats all breastfeeding women equally. There is no discrimination on the ground of sex. The Supreme Court of Canada showed what nonsense this was nearly 30 years ago. That case involved pregnancy. The Court said: “Pregnancy discrimination is a form of sex discrimination simply because of the basic biological fact that only women have the capacity to become pregnant.”
To discriminate on the basis of breastfeeding is equally sex discrimination.
In fact our Constitution bans discrimination on any ground, not just those listed. But discrimination may be allowed if there is good reason: If an important purpose is to be achieved and the right affected is restricted as little as possible. So what is the purpose of limiting women’s right to breastfeed in a restaurant, for example?
Some people object. Why do they object? They feel offended. They think it is not right, traditional, respectable or even modern. They think women should be modest and not show their parts that are not usually shown in public. Breasts make them think of sex. The last is a result of distorted values: breasts developed to feed babies are viewed as sex objects, a perception that leads some young women to deprive their babies of the best food. I would argue that there is no right not to be offended, in the way the Constitution recognises rights to important values like equality, speech and health.
Weigh the sensitivities of those who don’t like to see a feeding breast against the values served by allowing the women to breastfeed. The latter include the health benefits to the child, the psychological benefits to the mother, while allowing the mother to remain a full participant in society. A later Canadian Supreme Court referred to “the disadvantage and exclusion from mainstream society the [Charter of Rights] is intended to remedy”. Isn’t that what our Constitution tries to achieve? Is there any doubt on which side the factors weigh more heavily?
Our Constitution has other relevant provisions including the right to have one’s dignity respected. This is violated by a refusal to be allowed, like any other adult person, to eat in a restaurant. It is violated by expecting a woman to feed her child in a toilet or a cupboard.
The Constitution says that a child’s best interests are of paramount importance in every matter concerning the child. The evidence is strong on the benefits of breastfeeding.
The Constitution recognises the right to health. All of us, including restaurants, have the duty to respect that right — not to interfere with it or obstruct it. The state must protect it — including, as it is trying to do, by requiring employers to provide facilities. It must promote it — including by educating people about the value of breastfeeding. And it must, when necessary, fulfil it, by making positive arrangements to make it possible — in public workplaces, prisons and Parliament, for example. Yes — including Parliament; last year an Australian Senator did just that.
Various international law agreements are relevant, and apply to Kenya according to the Constitution. Kenya is not a party to the Maternal Protection Convention, which adds to the right for time to breastfeed this: Employers must ensure breastfeeding women are not required to perform work risky to the health of the mother or child. But Kenya is a party to the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the Women’s Convention, all of which, many would argue, imply support for breastfeeding.
Indeed the UN Committee’s General Comment on the first says: “Special measures should be taken to promote community and workplace support for mothers in relation to pregnancy and breastfeeding.” In fact, our Constitution itself gives enough support without the need to go to international law.
Kenya has made remarkably good progress in expanding breastfeeding. And our laws are reasonably progressive.
Our Constitution is also progressive. It explicitly bans discrimination on the grounds of pregnancy. This article argues it bans discrimination on the basis that a woman is breastfeeding, and requires acceptance, indeed encouragement, of breastfeeding on the basis of the rights of the child and the right to health, among others.
Even without any new law, women should be recognised as having the right to breastfeed anywhere they are allowed to be. This would include restaurants, parks, prisons, legislatures, university lecture rooms, and churches. Does this shock you? If so, please ask yourself why.
The Constitution recognised that the main obstacle to rights often lies within society not the state. Attitudes, as well as law, need to change.
By JILL COTTRELL GHAI