Committee on Elimination of Discrimination against Women considers report of Kenya

Committee on Elimination of Discrimination
Against Women

19 January 2011

The Committee on the Elimination of Discrimination against Women has considered the seventh periodic report of Kenya on how that country implements the provisions of the Convention on the Elimination of All Forms of Discrimination against Women.

Introducing the report, Naomi Shaban, Minister for Gender, Children, and Social Development of Kenya, said the Government had embarked in earnest on the implementation of the constitution. She expected it to dramatically change the political, cultural, and socio-economic landscape of the country and in particular, the lives of women. The constitution addressed the historical injustices and inequities experienced by women. More fundamentally, the new constitution embraced all the principles of CEDAW. It was a progressive, comprehensive and all encompassing document. It expanded while guaranteeing the nation’s commitment to gender equality, through provisions that countered customary law restrictions on the individual rights and the fundamental freedoms of women that were the hallmark of the old constitutional order.

Questions and issues raised by Experts during the interactive discussion included human trafficking and sexual exploitation, the involvement of women in political and public life, access to education and healthcare for women and girls, sexual offences and gender-based violence against women, and the status of legislation before parliament dealing with family rights. Committee members also asked what was being done to abolish gender stereotypes and what resources were allocated to the Ministry of Gender and other women’s rights mechanisms in the country. The delegation was also asked to provide information on the role of women in post-conflict peace building and the role of traditional courts and customary laws and the impact they had on women and their enjoyment of equal rights. Sexual and reproductive health and access to water and sanitation for women in urban and rural areas were also topics for discussion.

In concluding remarks, Ms. Shaban said that as Africans they planned to maintain their rich culture and over time discard the parts that were detrimental to women. Ms. Shaban reiterated the Government’s intention to comply with all the provisions of CEDAW. The country’s new constitution implemented a framework to address a number of issues regarding gender equality and women’s empowerment and Ms. Shaban assured the Committee that the political will was there and they were moving forward to take advantage of it. Ms. Shaban concluded by saying that she was confident that this political will coupled with the new constitution would enable them to accomplish a great deal.

Also in concluding observations, Victoria Popescu, acting Committee Chairperson, said that the Committee members appreciated cultural diversity, they just wanted to make sure that women benefited from it as much as men. She commended the various bills that had been undertaken to address gender-based violence, access to education, and other issues of equality. A window had been opened, but they needed to open a door which included the full implementation of the new constitution and the enactment of a host of bills that were pending passage. Ms. Popescu urged the State to accede to the Optional Protocol and take further measures to address the concerns of the Committee expressed during this dialogue.

The delegation of Kenya included representatives of the Ministry for Gender, Children, and Social Development, the Ministry of Education, the Ministry of Medical Services, the Kenya Law Reform Commission, and the Permanent Mission of Kenya to the United Nations Office at Geneva.

The next public meeting of the Committee will be on Thursday, 20 January at 10 a.m., when the Committee will begin consideration of the fourth periodic report of Lichtenstein (CEDAW/C/LIE/4).

Report of Kenya

The seventh periodic report of Kenya (CEDAW/C/KEN/7) notes that this report has been prepared in the context of dramatic changes in Kenya’s political, social, cultural and economic environments ensuing from the post election crisis that resulted in widespread violence which was prompted largely by the results of the last presidential and parliamentary (general) elections held on December 28th 2007.

Discrimination against women in Kenya is based on sex and buttressed by a number of other non-gender factors, including political affiliation and ethnicity or tribal origin and has been manifested in many forms, including gender-based violence. The Kenyan Government has taken a number of legislative, judicial, administrative and programmatic actions towards the elimination of discrimination against women in a number of sectors since the presentation of the last country report. In the area of legislation, a number of laws have been passed which explicitly outlaw discrimination against women. For example, the new Employment Act, No. 11 of 2007 which came into force in December 20, 2007 expressly prohibits discrimination and harassment of actual and prospective employees on the basis of sex.

The Kenyan Law Reform Commission has now refined and redrafted various bills which are progressive to women’s rights. The Bills have been submitted to the Cabinet for approval and thereafter they will be presented to parliament for debate and enactment. This is in recognition of the need for women’s protection on matters concerning marriage and family and the complications, contradictions and inequalities caused by the existence of various marriage laws. Courts in Kenya have directly applied CEDAW provisions as legal authority in a number of cases to determine pertinent matters concerning women including forced marriages and property inheritance following the CEDAW requirement that women shall not be discriminated against.

The Division of Gender and Social Development has conducted a study on female genital mutilation in Kenya to form the basis of its activities targeting the elimination of the practice. In its Situation Analysis, the Department found that female genital mutilation is still practiced in Kenya and that overall, 32 per cent of women were reported to have undergone female genital mutilation in 2003, which presents a slight reduction compared to 38 per cent in 1998. The Government has taken a variety of legal and administrative measures, including Presidential decrees to outlaw the practice, which persists for various reasons, including: rite of passage, ensuring marriagaebility, family honour, controlling sexuality, religious requirement and cultural and ethnic identity.

Presentation of Report

NAOMI SHABAN, Minister for Gender, Children and Social Development of Kenya, presenting the seventh periodic report of Kenya, noted that the Government of Kenya had embarked in earnest on the implementation of the constitution. She expected it to dramatically change the political, cultural, and socio-economic landscape of the country and in particular, the lives of women. The constitution addressed the historical injustices and inequities experienced by women. More fundamentally, the new constitution embraced all the principles of CEDAW. It was a progressive, comprehensive and all encompassing document. It expanded while guaranteeing the nation’s commitment to gender equality, through provisions that countered customary law restrictions on the individual rights and the fundamental freedoms of women that were the hallmark of the old constitutional order.

Ms. Shaban informed the Committee that very soon parliament would take measures, including affirmative action programmes and policies, to redress disadvantages suffered by individuals in the past. Legislative measures would also be undertaken to ensure that representation of all in elective and appointive bodies were not more than two thirds of the same gender. These provisions were already being observed in the various commissions being established.

Ms. Shaban went on to say that Kenyan women had experienced discrimination through the delay of the enactment of crucial gender bills which had been in and out of parliament. However, these bills would be reintroduced in parliament because they were underpinned by the new constitution. The Government had generated several bills which were due to be considered by parliament, including: the Marriage Bill; the Matrimonial Property Bill; the Family Protection Bill (domestic violence); and the Equal Opportunities Bill. All these bills were the product of the collective efforts of numerous stakeholders.

A matter of great concern to Kenyan women, according to Ms. Shaban, was the unequal treatment on issues of nationality. The new constitution not only allowed Kenyan women to confer citizenship upon their foreign husbands and children, but for the first time it allowed dual citizenship. Further, women would no longer lose their citizenship through marriage or upon dissolution of marriage. In addition, the constitution guaranteed non-discrimination with regard to all laws including personal laws in the areas of marriage, divorce, adoption, burial and succession by stating clearly that, “every person is equal before the law and has the right to equal protection and benefit of the law.”

Ms. Shaban then outlined other measures that had been taken to help women including: the establishment of the Women’s Enterprise Fund to facilitate women’s access to credit; the establishment of the Social Protection Fund targeting women and men in extremely poor households; the establishment of the Orphans and Vulnerable Children Programme, which provided financial support to poor and vulnerable households with orphans; the establishment of the Youth Enterprise Fund targeting youth aged between 18 and 35 years; the establishment of the National Development Fund for Persons with Disabilities, which provided funds for entrepreneurial skills; and the implementation of the Economic Stimulus Programme to revamp the economy following post-election violence.

Regarding education, Ms. Shaban said that the introduction of free primary education had significantly increased the enrolment of girls at the primary school level. Gender parity had been achieved at the national level and the removal of tuition fees at the secondary school level had made education more accessible and affordable. As a result, the proportion of students in institutions of higher learning had increased. In addition, the constitution guaranteed compulsory and free basic education.

With regard to health, Ms. Shaban said that a number of interventions had contributed to an increase in life expectancy. Significant progress had been made in combating HIV/AIDS through the development of the National HIV/AIDS Strategic Plans. There had been an increase in the number of facilities providing care and treatment services as well as improved awareness and prevention. The latest data showed that the HIV/AIDS prevalence rate in the country was reduced from 14 per cent in 1999 to 6.3 per cent in 2010.

Kenya had also developed a National Framework Toward Response and Prevention of Gender Based Violence, aimed at addressing the problem of violence against women. Concrete measures undertaken had contributed to the reduction of gender based violence cases in Kenya, including: the establishment of gender desks in police stations; capacity building of law enforcement officers; sensitization of communities on prevention and response to gender violence; education of the public on gender based violence; and the development of information, education and communication materials as campaign tools.

Ms. Shaban concluded by saying that the interventions she outlined might seem like little steps, however if they were judged against the historical record they represented significant progress. They must not lose fact that the realization of gender equality and empowerment of women was a process.

Questions by Experts

A Committee member started the questioning by asking the delegation to clarify the Government’s stance on the Optional Protocol to the Convention and whether there was any discussion on the ratification of the protocol. The Committee member expressed concern about the delay in ratifying a number of family law bills, and asked for an indication for the time the Government had in mind for the enactment of important bills that had been pending for a long time. Also, did the Government plan a review of domestic laws, many of which contained direct or indirect discriminatory provisions?

The next speaker asked about the constitutional and legal framework as it related to family law and the different types of marriages that currently existed under Kenyan law. There were civil courts but also traditional and customary courts and tribunals that dealt with inheritance and divorce. There seemed to be no provision that allowed for appeals of decisions from these courts and for constitutional law to override customary law. How did the Government plan to deal with an Islamic family system that in some instances contravened the equality provisions of the new constitution?

Turning to post-election violence, the delegation was asked if there was any system of reparations to women who suffered under this violence. Was there an institutional mechanism for coordination?

Response by Delegation

Responding to questions, the delegation said, with regard to laws that contained discriminatory provisions, that the constitution guaranteed equality between men and women and any law that was contravened the constitution was null and void.

In terms of discrimination in traditional courts, this was the choice of Muslims where both parties consented to the use of such courts. The decisions of these courts could be appealed to the High Court of Kenya.

There were procedures in place for reparations for victims of post-election violence. The Truth, Justice and Reconciliation Act contained provisions for reparations for women and the Commission was in place. Also, the civil courts could order compensation for victims of sexual or other violence.

The delegation agreed that the ratification of the Optional Protocol would go a long way in solidifying women’s fundamental rights and freedoms. The Government was looking at ratifying it with the utmost speed and the delegation hoped the next time it came before the Committee the Optional Protocol would be ratified.

In terms of pending legislation and the slow pace of adopting certain bills, the delegation was happy to report that since this legislation was underpinned by the constitution, the Government had no choice but to pass these bills and to do so speedily. The new implementation schedule of the constitution set a timeframe of five years for passing the family law bills, but due to the urgency of these bills as well as the fact that some of them have been awaiting approval since 1972 the time frame would be shorter for these bills to go to parliament. There was a punitive clause in the constitution which required the parliament to pass bills within a certain timeframe and if it did not act within the time frame the parliament could be dissolved. The Kenya Law Reform Commission had also been allocated sufficient funds to ensure that all stakeholders had a chance to read and weigh in on the laws and that the laws complied with the full letter and spirit of the constitution. In terms of the discriminatory clauses in the current Law of Succession Act, these would be reformed in keeping with the provisions of the new constitution.

The delegation said Kenya was the home of many refugees because it was bordered by Somalia, Sudan and Uganda which had all seen problems in years past. Thus, Kenya had some experience in dealing with internally displaced persons, refugees and detainees. Following the post-election violence the Government worked with some UN agencies and had responded to the emergency phase very quickly. The State had also established a resettlement fund for internally displaced persons and to date more than 350,000 people had been able to return home.

Questions by Experts

In a second round of questions and comments, Experts asked whether any perpetrators of post-election violence had been prosecuted.

Another Committee member pointed out that despite the fact that women had to agree to go to traditional courts this choice did not mean they agreed to be discriminated against. So were these traditional courts required to follow the constitution?

Response by Delegation

Responding to those questions, the delegation said that major reforms of the judiciary were being undertaken by the Government to increase confidence in the judicial system. One of the issues in addressing post-election violence had been that people did not trust the judicial system so that was one reason it was being reformed, to better address those issues.

Historically, the traditional courts were part of the pre-colonial arrangements signed with the British and then the first post-colonial government of Kenya, both of which agreed that the traditional courts would be protected. It was also an issue when drafting the new constitution. While these courts did not conform to the provisions of CEDAW, the Committee had to understand the unique situation of Kenya and the difficult time the State had experienced and their unwillingness to go through another difficult time by trying to abolish these traditional courts for Muslims. All of this was tied into their colonial experience and the agreements that Great Britain had made and which they still had to honour, because trying to do away with these courts threatened to stall the constitutional talks.

Questions by Experts

In a further series of questions and comments, Experts asked about the staff, budget, and other resource allocations for the Department of Gender as well as the National Human Rights and Equality Commission. At the local level, would there be gender and social development agents in all 206 districts? What were the strengths and powers of scopes of all the bodies dealing with gender equality and who was responsible for the coordination of all their projects and programmes?

A Committee member asked about the possibility of the State taking temporary special measures to improve things like women’s access to healthcare and education as well as participation in political life.

In terms of violence against women, a Committee member said they had received information that sexual violence was underreported and thus was difficult to address. Could the delegation provide any information on the Sexual Offences Act such as how many cases had been reported and how many prosecutions had been undertaken? The Committee member expressed concern that a provision in the Sexual Offences Act which punished false claims of sexual violence would deter women from reporting abuse.

Gender stereotypes impacted women’s ability to enjoy their lives and their rights in both the private and public spheres, and provided the bedrock for discrimination. Kenya’s report said there were comprehensive strategies in place to deal with gender stereotypes; could they elaborate on these strategies? Changing mentalities took a long time and took a lot of reflection on women’s roles.

A Committee member expressed concern about the fact that the Family Protection Law had not been passed, while domestic violence cases had gone up between 2003 and 2010. A bill prohibiting female genital mutilation was also awaiting approval and there were areas of Kenya where this practice was still being carried out. What was the Government doing to curtail this practice in all areas of the country?

Committee members also asked about violence in schools, sexual violence against women in slums, and the role of religious and tribal leaders who needed to be included in any efforts to abolish gender stereotypes.

Was there any intent to establish a law to combat human trafficking? Was Kenya a member of the Palermo Protocol? Did the State have a national action plan on this or a commission that coordinated the State’s response?

The next Expert spoke about tourism in Kenya and the increase in child prostitution in those areas where tourism was highest and what was being done to combat it. This was often due to the poor economic conditions of families, so what was the State doing to spur economic development so these families did not need to rely on prostitution as a source of income. The Expert also asked for information on measures the State party had taken to prevent prostitution and exploitation and why had the Government not taken any steps to develop programmes for the rehabilitation of women.

Response by the Delegation

The delegation said that the Department of Gender and Social Development coordinated gender mainstreaming in national development processes and this was done through the establishment of gender focal points in ministries. At the district level, these were managed by women and men who were trained and qualified in gender mainstreaming. To augment the efforts of the Ministry, the National Commission on Gender and Development was established in 2003 and advocacy was the main job of this agency. The jobs of these mechanisms were to mainstream gender and promote and protect the rights of women. These agencies worked with civil society organizations, private sector and other stakeholders. A new entity was created and the National Commission on Gender and Development was merged into the National Human Rights Commission, but now there was a move underway to make it separate again. These agencies had the capacity to deliver their mandates, despite the continuing challenge of funding for national women’s machineries.

Regarding affirmative action, there was a presidential directive in 2006 that women had to make up 30 per cent of the civil service. After the directive, they had not yet reached 30 per cent, but they were getting closer. This was also required by the new constitution, so people would not be able to ignore this. They needed to improve the number of women in elected posts. The current Political Parties Act did not reflect the idea of affirmative action for women in political life and consequently all existing 700 pieces of legislation would undergo an audit to ensure that they complied with the new constitution and either a new piece of legislation would be passed or an amended piece of legislation would be enacted.

Turning to the Female Genital Mutilation Prohibition bill, the delegation hoped it would pass and not be delayed. There were also targeted programmes to address the prevalence of female genital mutilation, including working with elders to change the culture in their communities. They also worked with religious leaders and organizations to delink religion and female genital mutilation.

The delegation then answered questions posed about human trafficking and child prostitution. Parliament had passed the Counter-Trafficking Act criminalizing human trafficking. The act specifically stated that a victim could not be prosecuted and this had not been the case in the past. The other thing the act sought to do was to waive court fees for victims who wanted to pursue a case in civil court. There was also resettlement compensation and the trafficker was required to repay their victim. A programme had been developed that allowed women who were prostitutes to come up with projects they could pursue to help sustain themselves so they did not have to rely on prostitution.

On the issue of child prostitution, the delegation said it had been abolished in the Children’s Act.

Questions by Experts

In a round of follow-up questions, Experts asked for an answer on the staff and budgets for the women’s rights mechanisms in the country and whether they had evaluation mechanisms in place to monitor the achievement of various government bodies in reaching gender parity.

Experts also asked for information on prosecutions for sex offences and whether the Kenya Women’s Parliamentary Association would ever become a parliamentary commission.

Response by the Delegation

The delegation said that the Kenya Women’s Parliamentary Association would not become a commission. The State was separating the Gender Commission from the Human Rights Commission so that gender issues would not be lumped into human rights issues and would receive the attention they deserved.

The delegation said that in the past the Ministry of Gender had been underfunded which prevented it from carrying out its mandate. The delegation did not have the exact figures for budgetary allocations, but the systematic underfunding had contributed to the under capacity of the agency.

There was a tourist police department that took care of issues surrounding tourists and sex trafficking and since the Government had involved hoteliers as a stakeholder, the number of complaints and offences had gone down significantly because hoteliers no longer let rooms to people for such activities.

Questions by Experts

In a further round of questions, Committee members asked what was done to protect women running for public office who might be exposed to physical danger. How many women were members of the Truth, Justice and Reconciliation Commission? A member noted that currently parliament had only 9 per cent women in its ranks, but it was unclear why some were appointed and some were elected. There were also few women ambassadors. Was anything being done to improve voting systems to allow women to rise to positions of responsibility in politics and the judiciary? Did political parties receive State support and if so was there any requirement that they have greater female representation?

Did the existing legislation on transmitting nationality need to be revised, or were the constitutional provisions regarding this directly applicable and already being enforced?

Response by the Delegation

Responding to these questions and issues, the delegation said there was a National Cohesion and Integration Commission in Kenya that addressed hate or inciting speech and people could be taken before a court of law and this applied to people who said things about female candidates and exposed them to danger. This was very important to note considering the post-election violence and the difficulty in getting women to run for office after that. There were 47 seats reserved for women in the National Parliament, plus whatever seats they could pick up in elections against men. This should allow women to reach the goal of 30 per cent in parliament. There were also seats reserved for persons with disabilities and young people. There was an independent Electoral Commission in place and women made up approximately 30 per cent of this body.

They needed to heighten awareness and public education to protect women’s right to vote and be voted for.

In terms of citizenship, the delegation was happy to note that the new constitution did away with the discriminatory laws that prohibited a woman from conferring her nationality to her children with a foreign born husband or to her foreign born spouse. The constitution also allowed women to maintain their citizenship whether they married or divorced. Some provisions came into effect immediately upon promulgation of the constitution and they did not have to wait for legislation, such as a woman who gave birth to a baby with a foreign husband. There were other provisions however that needed laws to be passed for administrative reasons before they could go into effect. The constitution envisioned that legislation coming into being in one year and the Department of Immigration was already working on the draft legislation to operationalize the new provisions on citizenship.

In terms of women and the judiciary, there had been improvements in this area since the last reporting period. There were 10 women serving as High Court judges out of 49 judges. Women also served at the various levels of magistrates in which women held between 20 and 30 per cent of these positions, which were considered high level posts. The Judicial Service Commission was in place and there were three women serving on the nine-person body. There was no female judge sitting on the Court of Appeals at this time because the woman who held a position there had been elevated to the International Criminal Court. The CEO of the Truth, Justice and Reconciliation Commission was a woman. Women also served as ambassadors and first secretaries, but they did not reach the one-third threshold so Kenya would continue to work on increasing those numbers.

Municipalities were very important as they served as training grounds for women, including city councils and town councils. The delegation expected to see more women in elected positions after the next general election because the provisions of the constitution requiring gender parity would be in effect.

Questions by Experts

In additional questions and comments, Experts said there was conflicting information on girls’ participation in education. Some numbers showed parity between boys and girls at the primary level, while other numbers showed that girls had not achieved parity and the gap between genders was growing. Could the delegation provide net and gross enrolment rates for both the primary and secondary levels? One reason for this lag seemed to be the financial constraints of families, but if there was free, compulsory primary education then this should not be such a factor. Another reason for lower school enrolment rates for girls seemed to be forced marriages and early pregnancies also seemed to be another as well as sexual abuse by teachers and harassment of girls in school. Were those teachers who assaulted children prosecuted in proportion to their abuses? Also, what was the re-entry policy for girls who had had kids?

What was being done to improve opportunities for women in the labour market, as well as cut down on sexual harassment in the workplace? What was being done to address women who worked in the informal sector, which was often looked down upon and conferred a low status? Enterprises run by women were often smaller, with less capital and usually run from home. Women entrepreneurs also usually had less education and fewer skills than their male counterparts. What policies or strategies were envisioned to provide women entrepreneurs with training, credit and access to markets?

A Committee member pointed out that the law on sexual and reproductive health rights had not yet been adopted. Could the delegation update the Committee on the status of this law and the main obstacles to its passage? If there was no law on sexual and reproductive health then how did the Government plan prevention policies and raise awareness? Lack of education and access to sexual and reproductive healthcare could also lead to unsafe abortions; such abortions accounted for up to 35 per cent of maternal deaths in Kenya, according to the report. The State’s response to the list of issues said that abortions were allowed under certain written laws, but which laws were these? There were laws that said the right to life began at conception so this further clouded the issue.

In terms of HIV/AIDS, there had been a decline in the prevalence rate between 1999 and 2010, but there was concern over the prevalence rate among pregnant women which at 6.8 per cent continued to be high. The HIV/AIDS prevalence rate was three times higher among women aged 15 to 19 than for their male cohorts and four times higher among young women aged 20 to 24 than men of the same age. What were the monitoring aspects of the National Action Plan on HIV/AIDS?

Could the delegation provide information on the access to sanitation and healthcare for women living in slums and internally displaced persons settlements? Female genital mutilation had been outlawed under the new constitution, but the law prohibiting it had not been passed yet and it was unclear when it would go into effect. According to documents, female genital mutilation had been outlawed for all women and it was banned for women under 18; what was the difference and why this distinction?

An Expert said the question of land and access to water was a key issue. What was being done to address these issues in rural areas? Direct and indirect discrimination against indigenous persons was also an issue and had a double negative effect on women from these communities. Did women play a role in sustainable development policies, seeing as how they were very connected to the land and were affected by any policies concerning it? Desertification, deforestation and access to water were all key issues. How did women who did not have national identity cards seek employment?

Response by the Delegation

Responding to questions on girls’ access to education, the delegation said that the net enrolment rate in 2010 was 90.7 per cent for girls and 94.8 for boys and the 2010 completion rate was 88.3 per cent for males and 82.2 for girls. The gender parity index for school enrolment was 0.95. Since the promulgation of free primary education the enrolment rates had gone up significantly. There were no statistics for the re-entry policy of girls who had had children, but this was something that had been discussed. The problem was identifying girls who were pregnant or who had had children and approaching them about staying in school. There were 253 mobile schools in the north-eastern provinces to reach children in those areas.

Regarding sexual assaults in school, the Sexual Offences law made it a crime to have sex with a child below the age of 18 and anyone who did this was prosecuted, including teachers. Any allegations of sexual abuse in schools were investigated and if substantiated the teacher was removed from their post and stricken from the teachers’ registry. It was also an offence for a teacher to fail to report child abuse.

It was an offence to marry a child below 18 years of age and where a child was forcibly married the police went in and removed her from that situation.

Turning to the issue of the labour market, the delegation said that the Government was in the process of collecting data on female employment within the formal market. Female employment had increased, mostly at the private level. In terms of equal pay for equal work, the constitution now guaranteed the right to labour relations within the basic constitutional framework. Equal pay for equal work was applied in the civil service, but it was still a challenge in the private sector where women earned 83 per cent of what men earned. With regard to sexual harassment, the law required that every workplace with more than 20 employees have a sexual harassment policy.

The delegation said the informal sector had been a challenge and this employment was unstable and wages largely unregulated. The Government of Kenya had put in place various funds to help women start and grow their businesses, including skills training and grants.

Committee members had asked about access to water and sanitation and the delegation said this process had been recognized by the Government and it had developed several initiatives to assist people in the most poverty stricken areas to improve the basic living conditions of urban slum dwellers. If these initiatives and pilot projects went ahead as planned, they would provide a boost for those people living under very difficult conditions. Budgetary support had also been increased for the Ministry of Water to reduce water borne disease by increasing access to clean drinking water. The delegation said it would be able to provide more information at its next appearance before the Committee.

As regards reproductive health, the delegation noted that most of the obstacles to the passage of the sexual and reproductive health bill had been addressed by the new constitution. Non-governmental organizations and other organizations had also set up several programmes for sex education and educating young adults on how to deal with unwanted pregnancies. In terms of unsafe abortions, there was training for health workers on educating patients on the prevention of pregnancy and how to deal with abortions when they occurred. There were written policies within the Ministry of Health that dealt with abortions as well as other laws and policies.

Concerning HIV/AIDS, the delegation said it was true that women in the reproductive age group were more vulnerable to contracting the disease and the State was encouraging prevention and HIV/AIDS awareness, the use of female condoms, and the use of condoms among men. There was an emphasis on ABC: abstinence, be faithful, condoms. The National AIDS Control Council was part of the Office of the President because AIDS had been declared a national disaster in 1999 and it had received additional funding from the Global Fund.

In terms of policies to empower women, female genital mutilation had been outlawed in Kenya and it was illegal to practice it. Female genital mutilation for girls was considered a rite of passage after which point the girl was considered an adult and ready for marriage. This contributed to girls dropping out of school and had adverse health consequences such as difficulties giving birth and thus affected maternal mortality and morbidity; for those reasons it was outlawed. However, there were many older women who supported themselves by performing female circumcisions and some people said they should be compensated for their loss of income. Other people felt this would only legitimize the practice and thus these women should find alternative means of supporting themselves. The Ministry of Gender had been very successful in convincing communities to replace female genital mutilation with alternative rites of passage.

Tuition in secondary schools was free, although students had to pay other fees. The issue of identity cards had been a difficult one, but there were registry offices even in border areas to enable people to register and get their identity cards.

Questions by Experts

In a round of follow-up questions Experts asked whether there was adequate space for every child in secondary school. Another Expert reiterated their request for clarification on the distinction between outlawing female genital mutilation and banning it for children under the age of 18.

Response by the Delegation

The delegation said that there was a fund that had built so many secondary schools and additional classrooms that the capacity was there, but they had to work on enrolment for girls at the secondary level because they often dropped out to stay home and take care of older relatives or children.

Concerning female genital mutilation, the delegation said it was true that the law outlawed female genital mutilation below 18 years. For women older than 18 years, they could choose to do it. This had to do with politics in the country because when it came to this law it was men who were arguing that women should be circumcised, so even passing this law was a real struggle.

Questions by Experts

In additional questions and comments, Experts asked whether polygamy would still be legal in light of the new constitution and the pending family law. If yes, how would this be in line with the constitution? An Expert reiterated a question regarding the criminalization of marital rape. What constituted marital property; did it include tangible and intangible property? What were the current provisions for child custody and child support? Would Muslim provisions on inheritance continue to be exempt from laws on equal inheritance for women and girls? Could the delegation also provide information on wife inheritance?

Response by the Delegation

In order to understand the question of polygamy, the Committee needed to understand the history of the country. There were four systems of marriage in Kenya: customary, civil, Christian and Muslim. Civil and Christian marriages were introduced as part of colonialism. Customary marriages were a recognized form of marriage and one of its basic essentials was polygamy, so as long as customary marriages were recognized polygamy would be recognized. The difference was that some people chose to follow Christianity so they lived in monogamous households and those people who chose not to follow the Christian or civil marriage laws were free to marry under African customary or Islamic law. All of these had been entrenched in the constitution so polygamy was not unconstitutional. If they tried to outlaw one or more of the types of marriages, there would be huge sectors of the country that would be upset. As legislators, what were they to do with children born in polygamous relationships or property acquired as part of polygamous relationships? Until people decided to convert to civil marriages, they had no choice but to recognize polygamous marriages.

In terms of marital rape, the Government had tried to introduce marital rape as a crime in the Sexual Offences Act but this was rejected so right now it was not an offence.

The delegation was happy to report that the constitution would enrich the Children’s Act so that equal parental responsibility was required of both parents; both parents had to support the child whether they were born in or outside of wedlock. In terms of wife inheritance, people argued that the original intention was good because if a woman was widowed the family had to step in to look after the vulnerable widow and her children, but this was no longer required and hopefully the new constitution would allow these practices to die a natural death.

In terms of the applicability of gender equality provisions of the constitution, the delegation said Muslims were exempt from these requirements.

Questions by Experts

In a final round of follow-up questions, an Expert reiterated that according to the Convention polygamy was inherently unequal and as a signatory to the Convention Kenya needed to find ways to eradicate this practice. It should look at what other States in similar situations had done to eradicate the practice.

Was there anything being down to address the migration of rural women to urban areas which contributed to growing slums and urbanization and by extension problems with sanitation?

Were all marriages, regardless of the type, required to be registered on the civil registry?

Response by the Delegation

There were a number of initiatives to empower and mobilize rural women and to help them set up income generating activities so they would not have to move to urban areas, the delegation said. Rural poverty was very strong and could be debilitating, but moving to urban areas was not necessarily an answer for this and often continued the cycle of poverty.

The delegation said that as women became more empowered they would make strides in education, politics, and businesses and this would cut down on polygamy because one of the reasons women chose to enter polygamous marriages was their low economic status.

The only marriages that were registered in the civil registry were civil marriages, but in the future Christian, Muslim, Hindu and customary marriages would receive marriage certificates and be registered as well.

Concluding Remarks

In concluding remarks, NAOMI SHABAN, Minister for Gender, Children and Social Development of Kenya, said that as Africans they planned to maintain their rich culture and over time discard the parts that were detrimental to women. Ms. Shaban reiterated the Government’s intention to comply with all provisions of CEDAW. The new constitution had implemented a framework to address a number of issues regarding gender equality and women’s empowerment and Ms. Shaban assured the Committee that the political will was there and they were moving forward to take advantage of this political will; coupled with the new constitution they were confident they would be able to accomplish a great deal.

Also in concluding observations, VICTORIA POPESCU, acting Committee Chairperson, said that the Committee members appreciated cultural diversity, they just wanted to make sure that women benefited from it as much as men. She commended the various bills that had been undertaken to address gender-based violence, access to education, and other measures for equality. A window had been opened, but they needed to open a door which included the full implementation of the new constitution and the enactment of a host of bills that were pending passage. Ms. Popescu urged the State to accede to the Optional Protocol and take further measures to address the concerns of the Committee expressed during this dialogue.
__________

For use of the information media; not an official record