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Katiba Institute Article

Women’s Rights And The Constitution By Jill Cottrell Ghai

Women’s Rights And The Constitution By Jill Cottrell Ghai

In discussing women and the Constitution, most attention has been paid to representation of women in Parliament and the county assemblies, and above all the general “principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender” (Article 27(8)) and Article 81.
The National Assembly now has 19% women and the Senate 27% – far higher than ever before, and putting us just above the United States in terms of percentage of women in the legislature. And county assemblies are guaranteed to have one-third women. But a downside is that most women hold some “special seat”. In the National Assembly only sixteen women represent geographical constituencies. Five women party list members, with seven men (sometimes inaccurately called “nominated”) represent persons with disability, youth and minorities. Forty-seven women represent county constituencies. In the Senate all the 18 women are from some sort of party list. And in the counties, the overwhelming majority of women – 680 of them – are from party lists under the scheme to guarantee the constitutional gender balance.
Although many of these women are remarkably well qualified and experienced, other people find it hard to understand their role, and the women sometimes find themselves side-lined or even insulted – called “bonga points” for example. Efforts to implement the two-thirds rule in such a way that women hold the same sorts of seats as men have failed. Current plans mainly focus on extending to the national level the county system of extra, party list, seats. A downside to this is that inevitably there will have to be more (expensive) MPs; if in a future National Assembly there were also 16 women constituency MPs, five “special interest” list members, and the 47 county women representatives, we would need 73 more women members – producing a “bloated house” of 422 – to get no more than two-third male members.
More women in politics, by any route, will make a difference, but this way of doing it will mean that general acceptance that women are as capable as men of holding politically responsible positions, will be longer coming. And the impact of women members will be muted if they are not given fair chances to speak, and to hold positions of influence and responsibility like committee chairs, and the atmosphere of the chamber is not respectful of all members, and rules, like those about sitting hours, work to exclude them from full participation.
One of the keys to achieving change is political parties. The new Political Parties Act says that a party cannot be fully registered unless there is gender balance among its members, and its governing body, and not more than two-thirds of that governing body are of the same gender. What exactly is “gender balance”? There is also a requirement that not more than two-thirds of registered office bearers must be of the same gender if a party is to receive money from the political parties fund. It’s not easy to work out if parties satisfy these requirements. Certainly only one of five officials on the President’s Party’s website is a woman.
The State is supposed to take active steps towards the same two-thirds maximum in appointed state bodies; this includes commissions and even the national and county executives. Commissions satisfy this rule (in fact for a while the Kenya National Commission on Human Rights was unconstitutionally short of men). Some county executives exceed one-third women (a county with only ten executive members will necessarily have 40% if it has one-third (3 would be too few and so the minimum must be 4). Laikipia is an example. At the national level Kenya has more women Cabinet Secretaries (the new nomenclature) than it ever had Ministers.
A court refused to hold that the Supreme Court was not properly formed if it had only 2 women out of 7 (less than 29%). The judiciary as a whole had one-third women, but the Court of Appeal then had none, and the judiciary was top-heavy with men. This is often a problem if you have overall quotas for a large organisation – most women will come near the “bottom”. But the situation is much improved and now about one-third of the High Court Judges are women. This is remarkable – in England as of the middle of last year, only 19% of High Court judges were women. We can say that the Judicial Service Commission is taking notice of the Constitution: “the Commission shall be guided by …the promotion of gender equality”.
It is interesting to see that even business is taking up the challenge of equality, recognising that there are not enough women in senior management positions. Universities and the professions, too, should be examining themselves: do they have “glass ceilings” (through which women cannot pass) or practices and attitudes that effectively hinder women’s advancement? After all, the Constitution says women have “the right to equal opportunities in political, economic, cultural and social spheres”.
The Constitution recognises the right to the highest attainable standard of health – including reproductive health and health care. Abortion is an emotional issue. Generally abortion is not permitted (Article 26), unless it is carried out to save the life or the health of the mother, or if there is a need for emergency treatment, and a medical professional has agreed. Parliament could pass a law to make abortions possible in other situations (for example if the pregnancy is the result of rape). The Constitution does not give anyone a right to demand an abortion.
There is an addition to the African Charter on Human and People’s Rights (the Maputo Protocol) that says counties must “protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.” Kenya signed this treaty, but said it was not accepting this provision. Recently the Ministry of Health said that it was reintroducing guidelines on abortions that had been withdrawn two years ago, designed to clarify when it is appropriate to allow abortion, within the Constitution. Whatever your views on abortion, you must recognise that it is a national tragedy that perhaps 8,000 Kenyan women a year die from abortions and 21,000 are admitted to hospital because of botched, illegal abortions.
It is good to see that the government has accepted that the right to reproductive health does mean access to family planning methods. And the current Health Bill says that there is a right to “including to safe, effective, affordable and acceptable family planning services, except elective abortions” (elective means when the choice is that of the patient, not needed as a result of medical conditions). A distressingly high proportion of Kenyan pregnancies are “unwanted”. If people (and not just women should be involved in this choice) had more choice in the matter of pregnancy, we would expect to see less demand for abortions.
Kenyan women are making progress, though the struggle must continue. And the struggle is as much with ourselves and society as with the power elites. In the last few weeks I have heard how in some communities even women will say “how can she speak when there are men around?”. I have heard a woman say “As a woman, I must take off my shoes” – but a man need not? And I have heard a woman say how delighted she was to be able to sit around a table with men and talk on equal terms (about politics).
– See more at: http://www.the-star.co.ke/news/womens-rights-and-constitution#sthash.ev4IUiex.dpuf

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