Esther Onchana /Legal Week
12 September 2005
column
Nairobi — What does the new Constitution say about the rights of women?
It recognises international agreements as one of the classes of law applicable to Kenya. This means that the Convention on Elimination of all forms of Discrimination against Women (CEDAW), and others on women's rights that Kenya has signed and ratified, will attain force of law. It also provides for full participation of women in public affairs, although it leaves out recognition of marginalised communities whose women require greater attention.
On citizenship, the present Constitution impinges on the rights of women married to foreigners, who cannot pass on their citizenship to children and foreign husbands, while a Kenyan man easily enjoys these rights. The Draft outlaws this discrimination.
A person who has been married to a citizen for at least seven years may apply to be registered as a Kenyan. Such a person is entitled only to application. His or her application can and may be rejected. Entitlement of dual citizenship to Kenyans by birth is also a great feat for women.
Under the Bill of Rights, all persons are equal before the law and have equal protection. There is also protection against discrimination on any ground, including sex, pregnancy and marital status. All persons have a right to healthcare, adequate housing, clean water and decent sanitation. There is also provision for affirmative action, allowing the State to take legislative and other measures to benefit individuals or groups who are disadvantaged.
There is a section that provides specifically for women's rights. It states: "Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social activities" .
Of great importance is the provision that outlaws any custom, law or tradition that undermines the rights of women. Custom and tradition has in the past been used to deny women their personal rights, especially in marriage, divorce and inheritance. It will be interesting, however, to see what jurisdiction contentious religious courts and traditional courts will have in regard to these rights.
In the realm of politics, the Draft requires parties to promote gender equity and equality but it does not state what formula will be used. The section piles together the issues of women with those of other social categories.
Membership to Parliament requires that five percent of MPs be persons with disabilities, a third of whom shall be women. Further, it states that no gender should be more than two thirds in Parliament. But no criterion has been given on how women will be chosen.
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