The Republic of Kenya is a country in Eastern Africa. It is bordered by Ethiopia to the north, Somalia to the northeast, Tanzania to the south, Uganda to the west, and Sudan to the northwest, with the Indian ocean running along the southeast border.

Kenya is one of the eight member countries of EASSI. The two focal point organsations through which EASSI implements her work in Kenya are:

• Caucus for Women’s Leadership (CWL)
• Women’s Rights Awareness Programme (WRAP)

FOCUSING ON GENDER EQUALITY ISSUES IN KENYA

Social Institutions
Kenya became an independent country in 1963, and was governed from then until 1978 by Jomo Kenyatta. Kenya then became a de facto, and then de jure one party state until political reforms were introduced in 1991. Since then, while elections in Kenya have often been marred by violence, they have generally been considered to be free and fair. However, accusations of vote-rigging following the 2007 elections led to two-months of violence in the capital Nairobi, during which an estimated 1500 people are thought to have died. Kenya is classed as a low-income country by the World Bank.

Kenya is characterized by the co-existence of several legal frameworks which have an impact on women’s status. In response to lobbying, Kenya established the Family Division of the High Court of Kenya to provide special arbitration in cases concerning divorce, maintenance, and family property, and to promote gender-sensitivity training within the judiciary. However the court only exists in the capital city of Nairobi.
A new Constitution for Kenya was approved by 67% of Kenyan voters in 2010. The revised Constitution includes a clause defining discrimination, and stating that the state will not discriminate against any citizen on the basis of a number of social categories, including gender. In addition, as of 2010, a number of other bills designed to protect women’s rights had been drafted including the Family Protection Bill (addressing domestic violence), the Marriage Bill (which seeks to harmonize and consolidate all the substantive marriage laws, give equal legal recognition to all types of marriages and provide for a simplified procedure for matrimonial matters), the Matrimonial Property bill (clarifying married women’s property rights), and the Equal Opportunity bill (outlawing discrimination).

Kenya ratified the Convention on the Elimination of All forms of Discrimination Against Women in 1984, but has not yet ratified the Optional Protocol. Kenya has signed but not yet ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Kenya has a Human Development Index score of 0.509 for 2011, placing it in 143rd place out of a total of 187 countries. The country’s Gender Inequality Index score is 0.627 (130th out of 146 countries). Kenya is placed 99th in the 2011 Global Gender Gap Index, with a score of 0.6493.

Discriminatory Family Code
Previously, marriage in Kenya was governed by four separate chapters of the Laws of Kenya depending on the ethno-religious group of the persons getting married. The New Kenyan Constitution provides that parties to a marriage will be entitled to equal rights at the time of marriage, during the marriage and at its dissolution.

The 2008 Marriage Act provides a minimum age of marriage of 18 for women and men, and the Children’s Act of 2001 expressly forbids early or forced marriage. However, many marriages are not officially registered, but are instead performed under customary or Islamic law, where there is no age limit. Note that the new constitution recognizes customary laws as only as long as they are consistent with the Constitution of Kenya which means that discriminatory practices previously common in customary laws are outlawed. The constitution also provides for equality at marriage, during marriage and at its desolution. A 2004 United Nations report estimated that 17 % of girls between 15 and 19 years of age were married, divorced or widowed. The 2003 Demographic and Health Survey found that 20.3 15.4  % of girls between 15 and 19 were married, divorced, separated, or widowed. It further found that 7.5 % of women aged 20-49 had been married before the age of 15. If the proposed Marriage Bill is passed, it would consolidate existing legislation relating to marriage, making it much easier for married women to understand their rights. It will also allow for the registration of marriages performed under customary law. Polygamy is forbidden in statutory marriages, but allowed in Muslim and customary marriages (an estimated 60 % of total marriages). The 2003 DHS found that 16 % of married women in Kenya shared their husband with at least one other wife. In the event of divorce, only statutory marriage requires that couples follow legal procedures and provides any degree of equality for women. Repudiation is permissible for Muslim and customary marriages, both of which allow husbands to end the union without following official divorce procedures.

Statutory marriage stipulates that parental authority be equally shared by men and women; however, Muslim and customary marriages are discriminatory in this matter. Following divorce in statutory marriage, mothers typically maintain custody of children until the age of 16 years. In the case of Muslim families, young children usually stay with the mother, but the father is awarded custody of sons older than 7 years and daughters older than 14 years. Custody is almost always awarded to the father when a customary marriage ends in divorce. The Children’s Act of 2001 also stipulates that the children born to unmarried mothers are the sole responsibility of the mother; only when the father claims responsibility or lives with the mother for 12 months following birth does he gain legal responsibility. Women have the same right as men to pass Kenyan citizenship onto their children.

In 1981, Kenya established an inheritance law (The Law of Succession Act) that enforces equality between men and women, but it is not applied to all citizens and some judges do not respect the law, or determine that a property or inheritance dispute should be determined by customary law. For example, judges sometimes rule that married daughters are ineligible to inherit or, in cases in which the heirs are in dispute, they may transfer the affair to an elders council that follows discriminatory customs. Divorced and separated women are vulnerable since courts are free to apply customary law concerning property and maintenance determination. Islamic law is discriminatory in that daughters typically inherit only half of the share to which sons are entitled. Wives receive one-eighth of a husband’s estate if there are children, or otherwise one-fourth. Wives in polygamous Muslim marriages would share the one-eighth or one-fourth. The 2010 CEDAW report notes, however, that in some recent inheritance cases, judges have in fact referred to the provisions in CEDAW and other international legal instruments to rule in favour of daughters receiving an equal share of inheritance.

Restricted Physical Integrity

There is no specific law against domestic violence, and police are frequently reluctant to intervene in what they consider to be a ‘family matter’. According to the US Department of State human rights report, what limited assistance there is available to women experiencing domestic violence is provided by local women’s rights NGOs. Under the Sexual Offences Act (2006), all forms of sexual assault are criminalised, in theory. Widows are vulnerable to wife inheritance and “ritual cleansing” where a man is paid to have sex with her to “cleanse” her of evil spirits associated with her husband’s death. Sexual harassment is against the law, but the law is not effectively enforced. Violence against women is generally accepted by public opinion and women are frequently beaten by their husbands.

A clear majority of Kenyans find intimate partner violence acceptable. Given five reasons why a man might be justified in beating his wife, more than 63 % of men and 67 % of women interviewed for the 2003 Demographic and Health Survey (DHS) agreed with at least one reason. Almost 40 of married women surveyed reported experiencing physical violence at the hands of their spouse, while 25 % of all women reported having suffered from violence in the previous 12 months. Research conducted by a local NGO and reported in the US Department of State’s 2011 human rights report found that 83% of women and girls question had experienced at least one episode of physical abuse. In 2008 official police statistics indicated 627 rapes during the year, but according to the US State Department’s 2010 human rights report, human rights groups estimated that more than 21,000 rapes were perpetrated annually. The police and the justice system rarely prosecute cases of rape, and local women’s rights organisations claim that police reluctance to investigate rape cases, and procedures in handling rape cases act as a significant deterrent to reporting (for instance, requiring that victims be examined by a police physician before any investigation can be initiated). This is compounded by cultural taboos that prohibit discussion of sex, and victims’ fears of retribution. There were widespread reports of rape and sexual assault during the post-election violence in Kenya in 2008, but so far, the authorities have failed to properly investigate or prosecute perpetrators. The 2010 CEDAW report states that at least 1500 women are known to have been raped during the violence, many subjected to gang rape. The report also states that much of the sexual violence was ethnically driven. According to Freedom House, women’s rights groups claim that there is evidence that most assaults were committed by members of the police force. In 2008, the Truth, Justice and Reconciliation Act was passed, to establish of a commission to investigate the violence and enable victims to seek redress.

The government of Kenya banned FGM in 2011. FGM is outlawed in minors under the age of 18 by the Children’s Act of 2001, Section 14, but there is evidence that some communities wait until a girl has reached 18 and then subject her to the custom. FGM is far from being eliminated. It is estimated that between 30 and 40 % of women have undergone FGM; the figure may be lower in urban areas but is much higher in some rural regions. Currently in Kenya, the law does not allow abortion in any circumstances, however in some previous cases, doctors have been permitted to carry out abortions in cases where the woman’s life was in danger. As of 2010, a Reproductive Health and Rights bill was under consideration, which would allow abortion in cases of rape, as well as safeguard the reproductive health of women and girls in Kenya.

Although the level of contraceptive knowledge among all Kenyan women, including married women, tops 95 %, actual prevalence rates are much lower. Just 55 % of married women aged 15 to 49 reported ever using any modern method of contraception as a method of family planning in the 2003 DHS, and only 31.5 % reported current usage. Nearly 58 % of married women who were not using contraception at the time of the survey indicated that they planned to use in the future, but 38 % indicated that they had no intention to ever use contraception. Among these women, the top reasons included religious objections, fear of side effects, and a desire for more children. Overall, 15.8 % of married women reported an unmet need for family planning services for either birth spacing or limiting the number of children they bore. According to the 2010 CEDAW report, the government had set aside funds for the financial year 2008-2009, in order to provide all women in Kenya with free access to contraception.

According to data from the DHS survey for 2008-2009, 79.5% of girls and 75.3% of boys under two had received all their basic vaccinations. Under-five mortality rates were higher for boys than for girls, as well rates of malnutrition. This would indicate no pronounced son preference in regard to early childhood care. Slightly more boys than girls aged 5-14 appear to be engaged in economic activity, according to the Kenya Integrated Household Budget survey. There was hardly any difference in the amount of time girls and boys engaged in economic activity spent per week. However, this survey does not reveal the amount of time children spent on unpaid domestic labour.

According to the 2008-2009 DHS, 3.1% of men aged 20-24 had received no education at all, compared to 7.2% of women in the same age bracket. Secondary school completion rates for men and women in the same age bracket were 25.2% and 17.8% respectively. Overall, this would indicate some preference towards sons in regard to access to education. The male/female sex ratio for the total population in 2012 is 1. There is no evidence to suggest that Kenya is a country of concern in relation to missing women.

Restricted Resources and Entitlements
The Constitution guarantees equality of ownership rights for all Kenyan citizens. Women are free to buy, own and sell assets as they choose. However, in practice women’s access to land and access to property other than land are severely restricted by customary law, which essentially prohibits women from owning or inheriting land and other forms of property. Women in Kenya are granted “life interest” in property rather than full ownership, which prevents them from using it as collateral for bank loans or from disposing of it as they see fit. In the event of her husband’s death, this “interest” disappears upon remarriage. In fact, women hold title to somewhere between one and 5 % of land in Kenya, although there are variations between regions. Even when women are able to acquire assets, their husbands often act as intermediaries in the transaction. The National Land Policy adopted in December 2009 calls for the government to repeal existing laws and outlaw regulations, customs and practices constituting discrimination against women and children in relation to land ownership and inheritance rights, but to what effect remains to be seen. Since they rarely have assets of their own, Kenyan women cannot provide the collateral required by lending institutions, making it difficult for them to acquire credit. Additionally, women face a range of difficulties in accessing microcredit services including a lack of capacity in terms of management skills. The 2010 CEDAW reports that all the major commercial banks in Kenya now have at least one financial credit or mortgage product targeting women, and that the government has initiated several schemes to enable women to obtain credit, including microcredit.

Restricted Civil Liberties
There do not appear to be any legal constraints on women’s freedom of movement in Kenya. Previously existing requirements that women secure their husband’s or father’s consent before obtaining a passport have been removed. However, cases are reported of husbands refusing to let their wives travel or visit friends: of the women interviewed for the 2008-2009 DHS, 26.3% reported that their husbands usually had the final say in deciding whether they were allowed to visit family and relatives.

Freedom of speech, assembly and association are generally respected in Kenya. There are many active women’s rights organisations, who have been central in pushing for cases of sexual violence during the post-election violence in 2008 to be investigated, as well as providing support to victims of this and other forms of violence against women.
Women and men enjoy the same rights to vote and stand for election in Kenya, although women standing for public office often face hostility. Despite the fact that a record number of women ran for office in the local and national elections of 2007, only 22 of the 224 seats in Kenya’s parliament, just over 9% were filled by women. Women also hold 7 of the 40 ministerial positions in government.

Despite a September 2007 pledge to reserve one-third of civil service positions for women, they have not yet implemented that policy. At least in public surveys, a majority Kenyans indicate that they believe that men and women are equally capable as political leaders, such as the 62 % that provided this answer in a 2007 Pew survey.
Female employees in Kenya are entitled to three months of paid maternity leave, and their employers are required to pay 100 % of their wages during their leave. Fathers are entitled to two weeks paternity leave. There are no other protections for pregnant women written in law. However, the majority of employed women work in the agriculture and informal sectors, which likely means that they are ineligible for social security benefits.

Co-sourced from Wikigender