Age of Sexual Consent Jurisprudence in Kenya: A Case of the two-faced Janus?


Is it just for a seventeen-year-old to go to prison for having sex with a fifteen-year-old with supposed consent?

While it may be easy to prescribe for this, I guess it is also prudent for the law to protect students from manipulation and sexual exploitation frominter alia their teachers. This situation epitomizes Lord Denning (MR) assertion that while parliament creates in abstract, judges develop jurisprudence from context. The Court of Appeal Judges in the case of Eliud Waweru Wambui v Republic [2019] e KLR had to deal with a conundrum of blanket legislation hence suggesting that lowering the age of sexual consent to sixteen years may be the cure. The Judgement -in part- states that our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.

This has however excited the Kenyan psyche attracting both praise and condemnation alike hence the question where should we face? In this article, the author;

  • discusses sexual consent within the legal and social parameters;
  • discusses legislations that  regulate age of sexual consent in Kenya through different prisms;
  • discusses the merits and perhaps demerits  of lowering the age of sexual consent in Kenya; and;
  • lastly,  he discusses a way forward or lack of it thereof.

Age of Sexual Consent in Context

The age of sexual intercourse consent refers to the age at which a country’s law determines when a person can lawfully engage in sex. This is important as engaging in sexual intercourse does not just come with responsibilities but rather it characterizes a society and brings out its values.  The Black Law’s Dictionary defines consent as an approval, agreement or permission as to some act given voluntarily by a competent person. Consent may be given both expressly or implied hence making it a human rights issue. This discussion illuminates two competing ideas that of autonomy on one side and protecting the greatest number of vulnerable people (Utilitarian theory).

There are many countries around the world with no specific age of sexual consent due to diversity however the countries that have this describe it in the negative- that is it is offensive or unlawful to have sexual intercourse with a person belonging to a specific age. As much as most of these countries cling to the age of 16, there are those some who go as low as 12 years.

In Kenya, the age of sexual consent is set at the age of 18 years. This means that anybody below this age cannot materially give consent to sex. While there may be no consensus on this, 18 years may have been arrived at for the fact that it is the age of majority hence autonomy. This parameter is however presently facing a challenge as the practicality of adolescent sexual escapades betrays the law.

What is the law of the age of sexual consent in Kenya?

The Law of Age of Sexual Consent in Kenya

In Kenya, the age of sexual intercourse consent is governed by the Sexual Offences Act 2006, the Penal code and the Evidence Act. The Sexual Offences Act insists that for a person to give consent for sexual activity, they must have agreed by choice and have freedom and “capacity to make a choice.” There are two issues that the Sexual Offences Act insists on when it comes to consent in sexual activity, thus free will and autonomy. The law requires that one has to make a deliberate decision to want to have sex be it express or implied. Capacity on the other hand, implies age (Age of Majority) and the mental ability.

The Evidence Act deals with the circumstances where one can be deemed to have given consent and those that have not. The issue of age is an important matter especially where there is presumption of consent. The Penal Code on the other hand states the presumption of law that a person under the age of 12 is not capable of canal knowledge.

Customary law which is a significant part of the laws of Kenya in accordance with the Constitution of Kenya (2010) is silent on matters of age of sexual consent. As an African society, most communities advocate for sex as a preserve of marriage however, the age of marriage is one that is left in abeyance. While consent may be a requirement for customary marriage, many times age is not a factor.

International law through the Convention on the Rights of a Child (CRC) does not set an age for sexual consent. There is no consensus on the age of sexual consent as much as most countries set it at 16.  The CRC Committee has stated that countries that have ratified the instrument need to have clear laws on the age of sexual consent. It also recommend the same age for both male and female. The CRC committee further notes that, while setting age of sexual consent, maturity and evolving capacity are factors to consider.

Lowering the Age of Sexual Consent in Kenya

Away from the law that stipulate the age of sexual consent at 18, the society seems to have betrayed the law. Statistics from the United Nations Population Fund (UNFPA) indicate that 28,000, adolescent girls between the ages of 10 to 14 years got pregnant in 2016. This is due to a number of reasons including peer pressur, poverty and lifestyle choices.

Evolving capacities as stated in international law is another factor that Kenya may have to consider. There is an argument that girls and boys today mature faster. They get exposed to sexual activity much earlier and it is therefore foolish for the society to remain static. These changes and the sexually energized Kenyan society today has been attributed to a number of factors including social media-perhaps a story for another day!

Reproductive health and access to reproductive health services is perhaps another reason to consider lowering the age of sexual consent. There are issues on the use of contraceptives that are aligned with the subject matter. Proponents of this argument look at issues such as HIV/AIDS infection rates and insist on the need for comprehensive reproductive healthcare.

As stated in the Eliud Waweru Wambui v Republic [2019] case; there is a feeling that there are many victims of blanket legislation in prison. Men who technically got consent but girls didn’t have capacity. Courts in Kenya have been dealing with this for a long time and maybe there is wisdom as much as it may not be perfect.

Those opposed to this move state reasons including morality, ethics and religion. They also state that the laws that do not give capacity to sixteen-year-olds protect them from exploitation. They assert that while not water proof, these laws have a deterrent effect that protects the society. 

Way Forward

Like the mythical Greek god-Janus, this case has put Kenya at a cross roads. The Court of Appeal case has stirred a national conversation that perhaps has illuminated the issue. As much as the argument against the recommendation of these judges is understandable, perhaps their wisdom is unmatched. The world keeps evolving; as so; is the society and therefore the law also needs to keep changing. The age of sexual consent for Kenya should therefore be set at 16 years…but I may be wrong.

By;

Ouma Kizito Ajuong

LLB Hons, KUSOL, Dip. Law, (KSL)

Advocate of the High Court of Kenya

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This is what Sports can do for Kenya: My Letter to President Uhuru Kenyatta

Dear Mr. President,

A fool is described as someone who does something in the same way, every time, yet they expect different results. While this definition may not have customary acceptance, it carries with it a lot of scientific and logical sense which Kenya needs to listen to. I am not talking about the numerous scandals and headlines on corruption that colour our dailies. I am not also referring to the huge number of unemployed Kenyan youth. I am in no way talking about the inadequate education system that has turned out to be a train wreck. I am not talking of the nightmares of a poor public health system. Today, I am talking about sports. I seek to interrogate the question of sports in Kenya. As Mr. Rashid Echesa leaves office and Amb. Amina Muhammed takes over; I can’t help but wonder whether Kenya is still doing the same thing in the same manner and expecting a different outcome. What, therefore, do sports mean anything for Kenya? And what can it do for Kenya?

Sports mean different things to different people in Kenya. There is however no escaping the reality that Kenya is a global powerhouse in sports. As much as she is historically known to produce the best long distance runners (Athletics), she has quickly curved out a niche for herself in the world of Rugby. Kenya has something to say with regards to continental club championship as the home of football powerhouse- Gor Mahia. She can always be ever so proud of the likes of Wangila Napunyi who paid the ultimate prize in the ring while representing Kenya at the Olympics. This is just a glimpse of both the historical and present cluster of talent that makes the red, white green and black colours ride high. Unfortunately sports in Kenya go through a number of challenges top among these: lack of infrastructure, resources, poorly organized federation, mismanagement and lack of political support.

Like many of the challenges Kenya faces today, the rain started beating Kenya from the beginning. While sports associations were formed to help grow sports, in Kenya many people with political aspirations found them a fertile ground to mobilize political support. This left the federations hollow with no structures, system or sustainability. The previous regimes have not also taken sports seriously. There has always been very little in terms of budgetary allocation for the ministry and perhaps it is one of the ministries not seen to be important enough to be a loan ministry. Is it true that the sports ministry is one of those “small” ministries that is always given as a reward for political chorines or as a redemption platform for CSs who have failed elsewhere?  If this is true Kenya need not expect different results.

I must insist that managing sports in Kenya is not a walk in the park. It is perhaps one of the toughest ministries as it brings together different aspects and interests of Kenya. This therefore needs people with the right qualifications, skills, drive and perhaps ideas.  If done right, this is what sports could do for Kenya.

Sportsmen and women play a big role as Ambassadors for Kenya. As they put on the national colours and play their hearts out or run it down, they showcase the people, the character and culture of Kenya. As a result of this, Kenya is able to get tourists and investors who are willing hence spur economic growth. Sports business in terms of endorsements and sponsorships play a big part in generating money for the economy. It is not a secret that sports betting companies make a lot of money but as they do, the exchequer gets the tax and sponsorship to a number of sports and club. I must also state that there are a number of people who get their livelihood from sports hence the need to grow the industry. Today unlike the past, sport is a career that a young man or a woman can take on and build their lives. I bet a little more effort in developing sports in Kenya may go a long way in reducing youth unemployment but that’s just a thought. What if Kenya was ambitious enough to build infrastructure and host the next Afcon? 

Sport brings people together. It is never about gender, race or tribe but values of hard work, fortitude, belief and patriotism. Kenyans cannot deny that it is afflicted by tribalism and hatred for the minority and therefore what better way to eradicate this than with sports. The building bridges initiative which is part of your legacy as President can be best driven by sports. In addition to this, sports demonstrate Kenya’s culture. It brings people together to celebrate. Think of the fun, joy, pomp and colour that always accompanies Mashemeji derby in Nairobi and replicate that in the other 46 counties.

There are other benefits such as impacting values and skills and keeping the youth off drugs and other vices. This is because it often gives them an alternative way of life. I have heard of many inspirational stories of sports personalities who used sports to shield themselves from the life in the slums and made it out!

Lastly Mr. President think of the sports model as the model for politics in Kenya, here we walk in as friends, play our hearts out, compete so hard yet walk out as friends; perhaps it is what you desire for Kenya. I therefore urge you to put more thoughts into sports, get more personnel and demand more from your team

Yours faithfully,

Ouma Kizito Ajuong- Advocate of the High Court of Kenya

& Gor Mahia Fan

Tax Relief Regulations for Persons Living with Disabilities (PWD’s) are Simply Unconstitutional


I would like to begin this paper by stating a few irrefutable facts. Firstly, persons living with disabilities (herein PWDs) form a small but significant segment of Kenya’s population. While the numbers 1.3 million; 3.5% of Kenya’s population; (Census 2009) explain the “smallness’’, their significance springs from values of human dignity, legal trends today and best international practices. Secondly, contrary to popular conceptions, disability is for everyone.

As much as policy makers and legislative drafters like to think of disability laws as “special laws” for a few people, they always forget the obvious nature of disability. It never comes by invitation. Disability does not knock or choose.  Lastly, it is important to say that as much as tax relief is a privilege, it is not a favor from the State, it is a constitutional right. Those who write tax relief regulations or policy should therefore not behave as if they are doing charity work. It doesn’t make sense that something meant to make life easier for PWDs, has made things even harder.

I am not in any way suggesting that tax relief for PWDs should be done without regulations; I am of course in support of protection of the intergrity and sanctity of the programme, however, regulations that primae facie exhibit stupidity, ignorance and meant to strain  already strained people do not in any way enforce the aforesaid  values. It is premitivity and lack of wisdom that makes one to write regulations that requires PWDs to move back and forth from their employers to the council of persons with disabilities, to the Ministry of Health while ignoring mobility challenges in an era of Huduma Centers. It is preposterous that these regulations require PWDs to go for medical assessment every time they need to renew tax relief certificate as it ignores PWDs with permanent disabilities. This is to say that PWDs with albinism will grow melanin or that amputees will grow limbs within five years of tax relief? The long time it takes (about 4 months) to process tax exemption certificates adds to the illogical and disturbing culture of peripheral treatment of PWDs as aided by these regulations.

My focus however is to demonstrate how these regulations offend the letter and the spirit of the Constitution of Kenya (2010). It is important to note that one of the pillars of the Constitution of Kenya (2010) is elevation, protection and respect of human rights.  It has even gone further to incorporate international norms and instruments in this regards.

The Rights of PWDs are therefore not just given prominence through Article 54 of the Constitution of Kenya (2010) but domestication of   UN International Convention on the Rights of PWDs and its protocols and interpretation of Articles 2(5) and 2(6) of the Constitution of Kenya 2010.

Before I get to the unconstitutionality of tax relief regulations, I would like to define disability from the lenses of the Constitution of Kenya 2010. Article 260 defines disability to include, any physical, sensory, mental, or psychological impairment, condition or illness that has or is perceived by a significant sector of the community to have a long term effect on an individual’s ability to carry out day to day activity. Affirmative Action on the other hand means, any measure designed to overcome or ameliorate an inequality in the system, denial or infringement of a right or fundamental freedom. This therefore means that PWDs are disadvantaged and affirmative action comes in to try and mitigate the situation hence tax relief. How are these regulations unconstitutional?

Economic Rights Perspective

The preamble of the Constitution of Kenya 2010 makes a promise of nurturing the well-being of individuals. Well-being from PWDs point of view is that they should be able to get basic needs and economic empowerment. The difficulties and unique challenges that PWDs go through in school or at work places should not be lost on anyone. It is out of these that they are entitled to tax exemption.  These regulations negate, as oppose to acting as a hand-maiden for this programme. When PWDs are made to go through a winding process between the doctors to the tax man to their employers and a cosmetic disability council, it results to denial of economic rights. It does not make sense that getting a tax exemption certificate takes up to four months. The saddest part of this is that as they struggle to get the certificates or renew them; employers are always happy to tax PWDs. If I did not know any better, I would call that a conspiracy to commit theft by the State.

Right to Human Dignity

The Constitution of Kenya (2010) requires that human worth be respected and protected. Article 28 of the supreme law states that the right to dignity is inherent. As much as the definition of human dignity is amorphous, it boils down to the sense of “humanness.”  

PWDs in Kenya have to deal with issues of dignity and self-worth in an environment that is disability unfriendly.

Asking PWDs who are visually impaired or have mobility challenges to submit their documents and follow up on them; in disability unfriendly buildings like the one that houses the Ministry of Health is not a breach of this right but a disgrace. I am also concerned about the back and forth movements from the employers to the tax man to the Ministry of Health keeping in mind Kenya’s chaotic public transport system. I look at this as very slow thinking from the persons concerned and a disregard of a constitutional principle.

Right from Discrimination

The Constitution of Kenya frowns upon any form of discrimination. Article 27 (4) states that it is against the aspirations of Kenyans to discriminate against anyone – directly or indirectly. Do the tax relief regulations discriminate against PWDs? The simple answer is yes and I will explain. I go with the legal maxim that whoever alleges must prove, but how many times should they be made to prove their disability. A regulation that requires all PWDs to go for medical assessment every time they want to renew their tax relief certificate is discriminatory at best. Making the process too complicated also amounts to putting PWDs on the spot which is discriminatory. I see this as inadequate use of common sense and an attempt to resist creativity from the State.

Rights to Affirmative Action

The Constitution of Kenya (2010) through Articles 27 (5) and (6) recognizes affirmative action- tax relief for PWDs is one such action. The law puts only one condition- it has to be on genuine need. This means that any legislative or regulatory body has the duty to promote the programme and not kill it. When regulations are so stringent to the point that they make other PWDs give up on the process, they breach these provisions.

In Conclusion

As I have stated before, as a lawyer I was taught that the rules of procedure are made to be hand maidens. This means that they need to help substantive provisions. Tax relief regulations for PWDs as presently constituted and enforced are but a mockery to this.

There is need to urgently change this situation and I have a few recommendations:-  

There is need for legislative interventions. I am calling for an amendment of the Persons Living with Disability Act. The Act needs to give parameters to the regulations in line with the challenges and realities of PWDs in Kenya today.

There is need to mainstream the process so that it is faster and easier fop ;PWDs. One stop shop like Huduma center where PWDs can get everything done may be one quick solution.

Even as Kenya prepares for a census in 2019; there may be need to invest in a data base with information for PWDs. Those with permanent disabilities may be registered once to avoid redundancies and bad jokes currently encountered.

By:

Ouma Kizito Ajuong

Advocate   

A case for mental health awareness as a means to access to justice

Aug 10-IPJDDying to be heard: Mental Illness impairs prisoners’ ability to articulate themselves during self-representation in court.

Our prisons are full of troubled minds…

Mental health care and awareness is deemed a luxury even for free citizens. The situation is especially dire for incarcerated persons. Stone walls and iron bars serve as a deterrent to proper mental health care provision, under the guise of proper retribution for past wrongs/offences.

Mental health conditions represent a different level of need altogether when compared with physical health needs among prisoners.

It is in light of the above that humane treatment of incarcerated persons suffering from mental illness is largely uncharted territory. Diagnosis of such ailments is often by untrained prison staff who more often than not fail to properly identify which mental ailment is suffered and subsequently, which proper treatment should ensue.

Some of the psychiatric conditions suffered by inmates include schizophrenia, bi-polar disorder and last but most commonly depression. This is as reported by some human rights officers that work within Kituo Cha Sheria’s Prison Justice centres.

The presence of mental illness and access to justice do tie in together in several ways. First and foremost, it impairs their (psychiatric cases) ability to articulate themselves during self representation in court. The vulnerability of their mental frame does not allow them to anticipate or prepare well for such instances. Self representation in court requires a degree of self awareness i.e. during cross examination. Therefore one can only imagine the negative effect an afflicted mind offers in such scenarios.

Secondly, the thought process behind taking certain decisions whilst in the trial process is greatly impaired if one suffers psychiatric ailments. Decisions such as which plea to take during arraignment, plea bargaining, the decision to appeal or seek for judicial review become difficult and open to unwarranted external influence. This almost always leads to a negative outcome if such persons are not sufficiently guided.

Thirdly, such conditions generally deteriorate if left neglected and this is certainly what happens during incarceration or remand detainment.

One would say that some of these conditions indeed do develop specifically because of the inmates’ new found condition behind bars.

A key case in point depression– an internal assessment of the new found situation that the now detained inmate finds themselves in often leads to dark depressive feelings such as hopelessness, despair and discontent. Such feelings   often externally manifest themselves through  dangerous behavioural traits  such as attempts at  suicide, aggression towards fellow inmates and all in all reckless behaviour.

Knowing our own minds is difficult even at the best of times. This is more so for those suffering mental /psychiatric conditions. Assembling this insight should then encourage the appreciation of the need to assist marginalised groups of persons such as inmates and remandees- a group of persons for who mental health care is a remote luxury. Given the strong relation between mental health and criminal behavior, the public health system has a great deal to gain from better mental health treatment among inmates, particularly in reducing the costs associated with high recidivism rates.

It is our hope as Kituo Cha Sheria that during this year’s International Prisoners’ Justice Day, mental health will be an issue that is fully appreciated as a need that should be met. It is only on the basis of this realization that mentally/psychiatrically afflicted inmates will be afforded much needed   relief and sufficient care.

Stand in solidarity in support of prisoners’ human rights today!

By:

Samantha Oswago

AGCP-Kituo Cha Sheria

Is the Law Effective in the Fight against Corruption in Kenya?

Opinion BlogIs the Law Effective in the Fight against Corruption in Kenya?

Literature review in the subject of corruption paints a picture of a phenomenon that is not only feared but also frowned upon. This may be because of its dynamic nature and ability to spread its tentacles through the social, political and economic spheres of society. Whether it is liked to a cancerous tumour or an enemy in the battle field, the bottom line is corruption is undesired. In Kenya, the conversation on the fight against corruption has lasted lifetimes. As much as corruption is not black in colour, it is one of the major attributes of the independent Kenya. Many pundits and political commentators have therefore openly attributed corruption to a bad colonial system Kenya inherited. While this may be true, fifty- years down the line, it is more of a very old and tired argument that helps Kenyans to blame other people for their mismanagement.

Historical records put the year 1956 as the first time an anti-corruption legislation were enacted in the country.  The Prevention of Corruption Act Cap 65 of the Laws of Kenya was enforced by a police unit known as the Anti-corruption squad up until 1993. This was because these were just preventive measure to protect the young nation from the dangers of corruption. However, today corruption has transformed into a vice causing irreparable damage to the country. Kenya’s economy is doing badly and she is in debt, she has institutions that are not trusted by the citizenry and a political class that either thrives in corruption or have failed in dealing with the vice.

Corruption is broadly defined as dishonest and illegal behaviour mostly by those in position of power. Acts like abuse of office, favouritism, sexual exploitation and bribery fall squarely within the domain of corruption. This article is dedicated to the law and how it has helped or may help in fighting graft.

The Constitution of Kenya (2010) is the first stop. Like any other written Constitution in the world, it lays down the governance structure, history and the aspiration of the people.

Kenya’s supreme law recognizes corruption and lays down the frame work to eradicate it. The Preamble to begin with, recognizes the aspiration of Kenyans and the values of intergrity and the rule of law. Article 1 gives sovereign power to the people of Kenya and not to State officers or people in power. Article 10 (2) further elaborates on the national principles and values of governance which include: transparency, rule of law and intergrity. Chapter Six on leadership and intergrity, sets out responsibilities for those in State offices, outlines a code of conduct, sets the rules on financial probity and restrictions on their actions. The Constitution of Kenya, 2010 ultimately is set with separation of power both vertically and horizontally that gives checks and balance that prevent abuse and ultra vires use of authority hence prevent corruption.

Is the Constitution effective? The supreme law gives the general framework and guidelines- and to that end it is very sufficient. The only gap is with the areas where Parliament is required to enact legislation. The standards of legislations from Parliament seem to have watered down the anti-corruption agenda

Kenya has signed and ratified a number of International conventions on the fight against corruption. These include UN Convention against Corruption (2003), AU Convention on Prevention and Combating corruption (2003). Further, Kenya joined its East Africa Community partners in forming the East African Association of Anti-corruption Authorities (2007). These instruments make Kenya an international player when it comes to the war against corruption. There is however need to domesticate these instruments and implement the law and recommendations.

The Parliament of Kenya has also enacted a number of legislations that help in fighting corruption. The Ethics and Anti-corruption Commission Act, sets up the anti-graft body which is meant to teach, set policy, vet public officers and prosecute corruption. However, this body and the mother law have not been effective for lack of capacity and insufficient political goodwill.

As much as the EACC is set to fight corruption it cannot do that effectively when they depend on other bodies for investigations and prosecution. The Anti-Corruption and Economic Crimes Act (ACECA), 2003 is the parent punitive Act that deals with issues of corruption. It is a break-away from the Penal Code as there was need to maximise the sentences as the State pays more attention to these offences. The Proceeds of Crime and Anti-Money Laundering Act, 2009 is a legislation that was made so as to try and reverse the effects of corruption. It protects public funds from public officers who love to pilferage funds

The Leadership and Integrity Act and Public Officers Ethics Act, 2003 are meant to regulate behaviour of those entrusted with public office. They are drafted from the background that leadership is a privilege and those in leadership need to be of the highest standards of intergrity. These Acts of Parliament have however not been effective. There is need to amend the laws so as to make those in leadership transparent about their wealth businesses and interest. The legislations should also bind public officers to certain qualifications and education standards.

Government Management Act, 2004 and Public Procurement and Disposal Act, 2005 deal with public money and procurement procedure. They are meant to ensure that taxes from Kenyans are put to good use however there have been loopholes in the legislations that have been exploited and therefore the need for amendments.

 In conclusion, the law is very broad and other than a few changes it is perhaps effective. The people whose work is to implement the law need to be more effective. Paraphrasing the words of former US President Obama… “while we may not be perfect, we can desire to be more perfect, step after step, mile after mile.”

By:

Ouma Kizito Ajuong’

Advocate    

Confronting Double Marginalization: A Brief for Women Living with Disabilities in Kenya

Confronting Double Marginalization

This is a case of strengthening the weak, speaking for the voiceless; lifting the down trodden. It is about seeking a better proportionate society. It is about the values of fairness, equity and equality. As I write to the Courts of public opinion, to policy makers, to Government and today’s intellectuals; I only hope to make a case for these over-burdened and yet forgotten Kenyan population. I must state that I am not seeking sympathy or charity, rather, I  seek to illuminate the subject so much so as to illicit responses from a people who have decided to sit on their conscience and a Government that sees no harm in dragging their feet on matters women living with disability. I therefore hope that by the time I put a full stop to this paper, I will have put forth a convincing argument and offered solutions on how to confront the burden of double marginalization facing women living with disability in Kenya. Through this brief, I therefore seek to define the concept of marginalization, discuss the philosophical angle of the concept and finally look at marginalization through different subjects in the Kenyan society today.

Marginalization is defined as the treatment of a person or a group of people as insignificant or peripheral. Women living with disability are marginalized for reasons of being the “weaker sex” and for being “disabled”. There are a number of reasons advanced for this however, cultural and political reasons stand out. It has been asserted that nature and nurture breed’s power which in turn creates the majority and minority. The political solution for resolving the resultant conflict is affirmative action which unfortunately is seen as a favour rather than a right. There are other theories such as the economic theory of Neoliberalism that attribute marginalization to free market. Women with disabilities are disadvantaged due to inter-alia access and economic capacity. The theory of inclusion also recognizes the differences in the society and the cultural constrains as a result of marginalization.

International law through Article 6 of the Convention on the Rights of Persons with disabilities recognizes that girls and women with disabilities face multiple and intersecting forms of discrimination. The preamble focuses on particular susceptibility that these women have to contend with. They include; violence, abuse, negligence and maltreatment.

The Constitution of Kenya (2010) is based on the values of equity and non-discrimination.

This is a significant improvement from Kenya’s previous Constitution under which a person could not get justice for discrimination on the basis of being a woman, person living with disability or both. The preamble of the Kenyan Constitution (2010) therefore highlights equity as a value of both governance as well as society in Kenya. The same principle is found in Article 10 (b). The Constitution of Kenya (2010) is further particular in Article 20(4) (a) on promotion and protection on the values of equity and equality. This is a qualification of Article 19(3) which gives the rights within the Constitution to individuals rather than the State. The Bill of Rights also recognizes vulnerable groups, therein women with disabilities in Article 21(3) and creates an obligation for the State to protect them.

Another departure from the colonial document is Article 27 that deals with issues of discrimination. It however further goes to specifically admonish discrimination on grounds of gender and disability in Article 27 (4). Affirmative action is a right and obligation of the State as provided for under Article 27 (6). It is meant to ensure that these marginalized groups such as women living with disabilities participate in matters of governance, education, get health services amongst others. Article 56 creates an extra safety net as it classifies minority groups while Articles 27 (4) and (5) demonizes both direct and indirect discrimination. The Parent Act of parliament is also against discrimination and protection of women with disabilities in different aspects of life.

As much as the Constitution of Kenya (2010) is very expansive on disability rights, essential issues such as decent and accessible accommodations are absent. The law is however pretty good. My argument therefore still remains that with regards to women living with disability, these laws have largely remained beautiful words on paper. The next part of this paper is to look through different aspects of their lives which include: civic and political life and participation, education, employment, health and reproductive health services and offences against women living with disabilities in Kenya (physical vulnerability).

Participation of Women with Disabilities in Civic and Political life in Kenya

Participation of women living with disability in civic and political life in Kenya has two main components thus; voting and representation. Article 38 of the Constitution of Kenya (2010) gives these people the right to vote as well as participate in politics.

The electoral management body is therefore under obligation to ensure that women with disabilities, who are Kenyan citizens and of sound minds are facilitated. Although the IEBC has always made an attempt to facilitate this, there is still a lot that needs to be done.

As a commission; the IEBC always tends to ignore women who especially have mobility challenges. It is strange that when conducting census or immunization programs, the concerned institutions are wise enough to be mobile but it is so hard when it comes to the registration of voters and voting itself. This is besides the fact that some of the polling stations are inaccessible.

The Constitution of Kenya (2010) in Article 91 demands of political parties to reflect the face of Kenya. This means that all political parties ought to embrace these women and articulate their issues. As much as most political parties have a population of PwD’s, my concern is with their cosmetic nature. Which of these political parties does disability advocacy? Which political party has presented a policy paper or an implementation framework on disability rights? Which of these political parties keeps disability institutions in check? The answer to all these questions is most likely –none; hence the need for this paper.

Representation of women with disabilities is the other side of the coin. As much as the definition of representation is amorphous, political representation always means three things, advocacy on issues, legislation and implementation. The fight for affirmative action in Kenya by women can be traced back to 1961.  This is when a few women nominated to the Legislative Assembly began the fight for greater women representation. The momentum did not really pick up till the 1990’s; then known as the great awakening. This propelled the international fora such as the Beijing conference in 1995. Through the years issues of gender equality and affirmative actions have been canvassed, however, women with disabilities have always been in the periphery. The Constitution of Kenya, 2010 is concerned about women living with disability in leadership hence reserved seats through nomination as provide for in Articles 97 (1) (c); 98, (1), (a), (b), (c) and 177 (b) (c). This is perhaps an affirmation to the statistics that no woman living with disability has ever been elected to political office. This is attributed to factors like lack of finances, violence and cultural stigma.

The bigger question is whether political representation for women living with disabilities as it is, is working. How many pieces of legislations have been sponsored by these women who have the privilege to represent the others? I am not aware of any woman with disability who is an active advocate of matters like education, health, reproductive health or sexual and gender based violence. There is a big concern that as much as these women are living with disabilities, they may not be in touch with their constituency. I appreciate patience but as Kenya lets systems grow organically, perhaps it’s time to give women living with disability a chance to elect their own leaders as opposed to nominations from political parties.

Barriers to Education for Girls and Women Living with Disability in Kenya 

Women and girls with disabilities in Kenya face a myriad of challenges which result in low numbers of the educated. Statistically, only 41% of girls with disabilities complete primary school, compared to 50% of boys and men with disabilities. The percentages get lower with regards to secondary school and higher education.

Internationally, the UN Convention on the Social, Cultural and Economic Rights recognizes the Right to Education in Article 13. Article 13 (2) prescribes primary, secondary, higher education and fundamental education for all. The convention is further elaborate on development of schools which is fit for women with disabilities. Article 24 of the UN Convention on Person with Disabilities is elaborate on the right to basic education.

This is a means to ensure dignity and a progressive life for PWDs. The State has obligation to ensure that educational institutions are accessible. The law contemplates adjustment of curriculum so as to fit PwDs. The same rights are stated in the Constitution of Kenya 2010. Article 54 (1) (b) gives the right to access educational institutions and facilities that may foster compatibility. The Basic Education Act provides for free and compulsory education in Section 24. It goes further in Section 44 to regulate special needs education which applies to girls and women with disabilities. Section 18 and 19 of the Persons with Disabilities Act also gives the right to education and free education to persons with disabilities.

In spite of these progressive laws, the path towards free compulsory education is still a work in progress. This is because of a number of reasons besides slow implementation of the laws. Women and girls living with disabilities face higher level of poverty. Researchers in this area attribute this to structural inequality in resource distribution. The few of these women who manage to get to higher education have asserted that the grants and loans by Government are still not enough for them to study comfortably. Risk of sexual abuse and violence is another challenge for women and girls with disabilities. This is because they are physically vulnerable. Women and girls living with disabilities are ‘easy prey’. Discrimination is the other challenge. Women with disabilities are discriminated against and stigmatised. There is always a feeling that PwDs and more so women are not capable of grasping academic content or leadership.  A good example is in Kenyatta University where a special seat is created because PwDs are seen as incapable of leadership.

Cultural issues also come to play. There are many who still believe that persons with disabilities are either an embarrassment or a bad omen. This coupled with the patriarchal attitude that a woman has no place in school gives women with disabilities very few chances. Physical access, accommodation and transport are the other challenges. These refer to halls of residence which are inaccessible with no washrooms, classes and hostels with no ramps or elevators, and lack of transport to and from classes. These make education a hard task for these people. Lastly, there is the challenge of lack of equipment. This mostly affects visually impaired persons in the name of braille materials.

The jury is still out on whether to integrate schools or to have specials schools. The pros and cons however keep the debate going; women with disabilities need to be educated. There are children still on the streets and women who are ambitious but have no way to get an education and get ahead in life.

Decent work, Employment and Social Protection for Women with Disabilities in Kenya

According to the Kenya National Survey for Persons with Disabilities the number of persons with disabilities stands at 1.7 million. The rate of disability in Kenya is 4.6% and women take up 19% of this population. This is relatively the number of Kenyans who are not just discriminated against but denied employment and a chance to make a living as women with disabilities have an employment rate of 29% compared to 50% for their male counterparts.

The Constitution of Kenya 2010 in Article 54 (2) provides for affirmative action when dealing with matters employment. The Government has an obligation to ensure that at least 5% of every elective and nominated positions are filled by PWDs. Article 41 is further elaborate on labour rights which also apply to these women. The International Convention on Social Cultural and Economic Rights discusses work and employment as a right which should be granted to citizens without discrimination as stated in Articles 3 and 6. Work and employment for PwDs are also covered under Article 25 of the UN Convention on the Rights of Persons with Disabilities. This instrument enumerates the rights to work to include: inter- alia, prohibition of discrimination, safety and healthy working conditions, just and favourable working conditions, reasonable accommodation and access to labour unions and industrial action.

The Persons Living with Disabilities Act is also very elaborate on employment. It is a domestication of the international instrument. The Act via Section 12 through to 17 touches on aspects of employment for PWD’s. The Employment Act, Occupational Safety Act and the Industrial Relation Act are in consonance with the idea of work and employment of women with disabilities.

Work and employment for women with disability has had an interesting history. For a long time, PwDs have only been known for vocational jobs. As much as the attitude is gradually changing, there are a number of challenges. Accessibility is one of the major challenges that women with disabilities face. As it is with educational institutions, work places are not accessible hence a big problem for employment of these women. The other challenge is the cultural attitude that women living with disability cannot perform certain duties. Studies show that employers are always very delicate with PwDs and avoid giving them tasks that are assumed to be difficult. The other challenge is lack of equipments which mostly affect those with visual impairment. These can be changed through implementation of the law and working progressively.

Health and Reproductive Health for Women with Disabilities in Kenya  

While health may refer to a state of no illness or injury, reproductive health refers to a state of complete mental, physical, emotional and social well-being in relation to maternal condition, sexuality and reproduction. Reproductive health is broad to include; new born babies health, family planning and STIs. Women with disabilities, particularly in developing regions suffer from HIV/AIDS and maternal conditions. Those who are of a reproductive age are at a higher risk of adverse pregnancies compared to women without disabilities.

Women with disabilities are also susceptible to negative health indicators such as obesity, mental distress and asthma. Health and reproductive health are both progressive rights within the law. As the saying goes health is wealth-the Constitution of Kenya, 2010 advocates for the highest attainable standards of health in Article 43 (1) (a). The framers of the constitution were aware of the GDP of Kenya; however, there is need to always be progressive.

The International Convention on Social, Cultural and Economic Rights through Article 12 (2) (a) advocates on reduction of still births. The State has obligation to ensure that both the new borns or mothers are protected and deaths are reduced.

The UN Convention on the Rights of Persons with Disabilities does not directly discuss reproductive health however; Article 25 is broadly dedicated to health which ought to be free and accessible to PWDs. The legal instrument also touches on the right to privacy under Article 22. Health is also a crucial component of the Persons with Disabilities Act as indicated by Section 20 of the Act.

In spite of the law, there are a number of challenges that face women with disabilities in Kenya.  There is a sense of “shame” that comes with women with disabilities.

Many people like to assume that women with disabilities do not engage in sexual intercourse and therefore do not want to engage in these conversations. There is also a bigger challenge when it comes to those women with visual impairment or hearing impairment. This is because most hospitals are not equipped or have personnel who have skills to communicate or understand these people.

These issues are therefore always ignored and swept under the carpet. There is a lot of work that is needed if Kenya was to achieve providing reproductive health rights for women with disability.

Violence against Women and Girls Living with Disabilities in Kenya

Global statistics indicate that women are generally exposed to violence as opposed to the men. Women living with disability carry a bigger burden due to stigmatization and vulnerability due to their disability. The kinds of violence that these women face include; isolation, rape, defilement and forced medical procedures. This is against the subject matter of the Convention on the Elimination of all forms of Violence and Discrimination Against Women (CEDAW). CEDAW may not generally talk about women with disabilities however; there is a general obligation to protect women. The same goes with the other international instrument such as the Convention for the Rights of Persons with Disabilities (CRPD); the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

The Constitution of Kenya, 2010 and the Sexual Offences Act are also not particular on women living with disability; however, the spirit is to protect women from violence and sexual exploitation.

Conclusion and Recommendations

Through this paper, I have gone through the idea of marginalization of women living with disability. I have delved into the philosophy, the laws and challenges that come with confronting marginalization. I may not be conclusive however, it touches on the main areas of concern and the following are my recommendations:-

  • The concept of mainstreaming the law- women with disabilities touch on different aspects of life hence the need to make sure that there are always specific laws to protect them. The Sexual Offences Act, the Health Act, may be amended to narrow down to sexual violence against women with disabilities and of course impose a bigger penalty.
  • The Constitution of Kenya, (2010) and the Disability Act need to be implemented. The Government through relevant institutions need to develop a plan and statistics.
  • There is also need to do advocacy awareness and advocacy on matters affecting women living with disability in Kenya. This comes from the space that there is always room to improvement.
  • County Governments also ought to take an active role in demanding for these Rights. They are responsible for taking services to the people and hence push the agenda of women living with disability in Kenya.
  • The functions and budgetary allocation of the NationalCouncil for Persons with Disabilities should also be increased to enable decentralization and work. Part of the complaint has always been that the funds are not enough to work on matters women with disabilities.
  • Political parties and international players may also be brought to the fold to ensure that these matters are not just for persons with disabilities but institutionalized.
  • Learning from the best experiences is also another recommendation that may help in advancing the disability agenda. Kenya should be ready to learn from other jurisdictions such as India .

By:

Ouma Kizito Ajuong’

Advocate

Knowing Your Community Land Rights

Opinion Blog

Recognition, Protection and Registration of Community Land Rights

Community land is land which vests in and is held by communities identified on the basis of ethnicity, culture or similar community of interest under the tenure systems of either; (a) customary (b) freehold (c) leasehold (d) or such other tenure system recognized under a written law.

Every person has the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya, in accordance with Article 40 of the Kenyan Constitution.

Customary land rights, including those of community land, have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer for example, subject to Article 40 (3) of the Constitution and the Land Act, no interest in, or right over community land may be compulsorily acquired by the State except in accordance with the law, for a public purpose, and upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.

To register a community land, the Cabinet Secretary of Lands, in consultation with the respective county governments, develop and publish in the Gazette a comprehensive adjudication programme to ensure that the process of documenting, mapping and developing of the inventory of community land is transparent, cost effective and participatory with the members of the community.

The person responsible for the registration of community land is the Community Land Registrar.

The process of registering community land involves the Cabinet Secretary of Lands by a notice in the Gazette; appoint an adjudication officer in respect of every community registration unit to facilitate, in consultation with the respective county governments, the recording of community land claims, demarcation of community land and delineation of boundaries. Upon adjudication, the title relating to community land is issued to the registered community by the Community Land Registrar.

Community land maybe held as; communal land; family or clan land; reserve land; and any other category of land recognized under a written law.

Administration and management of community land

A registered community must have a community assembly which shall consist of all adult members of the community. The community assembly shall elect between seven and fifteen members of the community assembly to constitute the community Land Management Committee for the administration and management of the community land.

Any decision of a registered community to dispose of or otherwise alienate community land is binding if it is supported by at least two thirds of the community assembly, while all other decisions of the registered community shall be by a simple majority of the members present in a meeting.

Nature of community land title

Upon registration of a community land, the community is issued with a Certificate of Title which gives the community the absolute ownership of that land together with all rights and privileges attached to the land.

This certificate is considered by courts as factual evidence that the person named as proprietor of the land is the absolute and indefeasible owner

Conversion of community land

A registered community shall, before the conversion of registered community land into either public, private land or any other category of land, seek and obtain approval from two thirds of the community assembly for instance;

  • Community land may be converted to public land by compulsory acquisition; transfer; or surrender.
  • Community land may be converted to private land through transfer; or allocation by the registered community.
  • Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act, 2012 (No. 6 of 2012).
  • Private land may be converted to community land by transfer; surrender; operation of the law in relation to illegally acquired community land; or operation of any other written law.

Special rights and entitlements in the community land

A registered community may upon application and with approval of the members of the community assembly, allocate part of its registered community land to a member or a group of members of the community for exclusive use and occupation for such period as the registered community shall determine.

These occupations may include (a) farming areas; (b) settlement areas; (c) community conservation areas; (d) access and rights of way; (e) cultural and religious sites; (f) urban development; or (g) any other purpose as may be determined by the community, county government or national government for the promotion of public interest.

However, an individual entitlement shall not be superior to community title in any way.

Environment and natural resources management

Natural resources found on community land shall be used and managed sustainably and productively; for the benefit of the whole community including future generations; with transparency and accountability; and on the basis of equitable sharing of accruing benefits among the community members.

Settlement of disputes relating to community land

For purposes of settling disputes and conflicts involving community land, registered communities are encouraged to use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms and internal dispute resolution mechanisms set out in the respective community by-laws.

The methodologies used in dispute resolution over community land include,

  • Mediation
  • Arbitration
  • Judicial proceedings

 

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria