Munene Njoroge
The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ('Maputo Protocol') was adopted on 17 July 2003. As we commemorate the twentieth anniversary of the adoption of the Maputo Protocol, it is essential to reflect on the progress made in implementing this ground-breaking instrument within the Kenyan context. The Protocol has undoubtedly played a crucial role in promoting and protecting Women's Rights in Africa. This post critically examines the achievements, challenges, and obstacles in implementing the Maputo Protocol in Kenya.
It is essential to underscore that Women's Rights have been recognised and guaranteed in various international human rights instruments, notably the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women among others.
Kenya is one of the forty-two out of the fifty-five countries in Africa that have ratified the Maputo Protocol. The Maputo Protocol forms part of the laws of Kenya by dint of Article 2(6) of the Constitution of Kenya, 2010. Accession to the Protocol heavily reinforces Kenya's national legislative framework on protecting and promoting gender equality and empowerment. As such, Kenya undertakes to protect, respect and fulfil Women's Rights as the Protocol provides.
Kenya has taken significant steps towards advancing gender equality and Women's Rights in line with Article 2 of the Maputo Protocol. One notable achievement is enacting the Sexual Offences Act in 2006, which criminalises various forms of violence against women and provides survivors with legal recourse. Additionally, Kenya has made strides in addressing gender-based violence by establishing specialised courts, known as Gender-Based Violence Recovery Centres, to handle cases involving violence against women. These centres provide a safe space for survivors and offer comprehensive support services, including legal aid, counselling, and medical assistance.
Regarding marriage, Kenya has taken fundamental steps in complying with Article 6 of the Maputo Protocol. First, the Constitution of Kenya, under Article 45, acknowledges that the right to marry can only be guaranteed to adults. As such, persons under 18, defined by the Children Act of 2022, are excluded. In effect, child marriages are prohibited. Second, the Marriage Act of 2014 recognises four types of marriages, Civil, Christian, Islamic, and Customary, which take place with the free and full consent of the parties. Third, Article 45(3) of the Constitution guarantees that parties to a marriage have equal rights before, during and at dissolution. Section 7 of the Matrimonial Property Act 2013 provides that upon dissolution of a marriage, parties are entitled to a share of the property equal to their contribution, whether monetary or non-monetary. The contribution has been defined under Section 2 of the Matrimonial Property Act, where non-monetary contribution includes domestic labour, for instance, childcare, companionship, running of the home and other joint family responsibilities. These laws, in place, show Kenya's commitment towards equality.
The Employment Act of 2007 is equally in consonance with the non-discrimination principle underscored under Article 2 of the Maputo Protocol. The legislation offers substantial safeguards against discrimination in every facet of employment.
Furthermore, the Kenyan government has implemented various policies and programs to increase women's social and political participation, such as the two-thirds gender rule, which seeks to ensure equitable representation of women in decision-making. The Maputo Protocol mandates state parties to take appropriate legislative, institutional and other measures to ensure equality. The former Chief Justice, David Maraga, gave an advisory to the head of state to dissolve the twelfth Parliament over failure to implement the two-thirds gender rule, contrary to the provisions of Article 81 of the Constitution of Kenya.
Despite the progress, Kenya faces several challenges in fully implementing the Maputo Protocol. One significant hurdle is the persistence of cultural norms and practices perpetuating gender inequality. Deep-rooted patriarchal attitudes limit women's access to education, economic opportunities, and decision-making roles. Harmful practices like female genital mutilation and early marriage continue to affect the lives of many girls and women, particularly in rural areas. However, there is light at the end of the tunnel, seeing the Prohibition of Genital Mutilation Act of 2011 in force. The Act applies to many perpetrators and imposes relatively severe penalties.
Another challenge is the need for more allocation of resources to implement gender-related policies effectively. Limited funding for programs promoting women's empowerment and combating gender-based violence hinders their successful implementation. The lack of adequate resources often leads to a gap between policy intentions and on-the-ground realities, hindering the achievement of gender equality.
Political commitment and accountability remain crucial concerns. While Kenya has developed various gender equality frameworks, the implementation and monitoring mechanisms need strengthening. Ensuring political will, effective coordination among government agencies, and meaningful engagement with civil society organisations are vital for translating policies into tangible outcomes for women.
In as much as there has been a development towards implementing the Maputo Protocol, it is noteworthy that Kenya, upon its accession to the Maputo Protocol, made a reservation specifically regarding Article 14 (2) (c) of the Protocol, citing reliance on Article 26(4) of the constitution of Kenya 2010. Article 14 (2) reads, 'State parties shall take appropriate measures to 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.' The High Court had an opportunity to intervene in the interpretation of Article 26(4) of the Constitution, indicating that despite the constitutional prohibition on abortion, certain circumstances allow for exceptions. According to Article 26 (4) of the Constitution, abortion is permissible when emergency treatment is necessary or when a qualified healthcare professional determines that the mother's life, mental, psychological, or physical health is at risk. Equally, abortion is permissible where any other law permits it. The Sexual Offences Act, under section 35(3), allows abortion in instances of sexual violence. As such, the reservation that Kenya has placed on Article 14 (2) (c) of the Maputo Protocol is contrary to Article 26 (4) of the Constitution of Kenya, and hence, this post implores the Government of Kenya to lift the reservation.
The Maputo Protocol has undoubtedly contributed to significant advancements in promoting and protecting women's rights in Kenya. However, challenges persist, necessitating continued efforts to realise gender equality fully. By addressing cultural barriers, strengthening legislation, increasing resource allocation, and fostering collaboration, Kenya can pave the way for a more inclusive and equitable society. As we celebrate the twentieth anniversary of the Maputo Protocol, let us renew our commitment to advancing women's rights and achieving gender equality in Kenya and beyond.
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The Constitution of Kenya 2010.
The Children Act 2022.
The Employment Act 2007.
The Matrimonial Property Act 2013.
The Sexual Offences Act 2006.
The Prohibition of Genital Mutilation Act 2011.
Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women's Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR
In the Matter of CJ Petition Nos. 1-5 of 2019 & 1 of 2020 (Consolidated).