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KENYA: Proposed Constitutional Amendment Sets Back Women’s Rights

Susan Anyangu-Amu

NAIROBI, Mar 11 2010 (IPS) - Lillian Mutuku, a 34-year-old mother of three, describes her home in Katine area, in Kenya’s Eastern province Tala, as a harsh place to live. The soil is poor, she says, the sun beats down mercilessly and vegetation is sparse.

“People here face a daily struggle to make ends meet and to find water and food for their families. During the dry season it is worse, as the few crops we plant die, making food expensive,” she complained. “Women have to walk many miles a day in search of that precious liquid – water.”

The fact that Kenya’s political parties have been struggling to rewrite the country’s Constitution since February 2008 in an effort to end post-election violence and improve justice means a lot to Mutuku, despite the fact that she fails to understand the document’s legal jargon. She believes the new Constitution will oblige government to ensure her family’s access to food, shelter, water and health care.

“The issues that preoccupy my mind are the daily struggle to provide food for my family and for my children to go to school. While there is free primary education, there are not enough teachers in our area, and so parents are forced to pay 100 Kenyan Schilling ($1.3) per month for private teachers,” Mutuku says.

This is a lot of money for Mutuku, a domestic worker, and her husband, who works as a casual labourer. Between the two of them, they earn about $100 a month, which is hardly enough to sustain their family.

If the Parliamentary Select Committee (PSC), which was established to manage the Constitution review process, has its way, Mutuku’s family will never be able to hold government accountable for access to their basic human rights.

The PSC has been castigated by various women’s rights organisations for diluting the language in the draft document, prepared by a Committee of Experts (COE). The initial COE document guaranteed social and economic rights through the Constitution, but the PSC changed the language of the Bill of Rights, leaving the onus of ensuring those rights to parliament.

The PSC deleted numerous sentences referencing basic human rights, including the right to social security and right to health, including health care services, reproductive health care and emergency treatment. It excluded Kenyan’s right to education, inclucing the right to free and compulsory pre-primary and primary education as well as available and accessible secondary and post-secondary education. Rights to housing, food and water were also taken out of the document.

Lawyer Catherine Mumma terms this as a particularly big loss for Kenyan women who often bear the burden of providing for their families: “The chapter on the Bill of Rights as drafted by the COE was one of the major gains for the women of this country. (A) woman who walks for many hours in search of a hospital and collapses with her baby on the back due to lack of food does not care about the legal jargon in the Constitution. She wants to hear that the government will ensure she has access to basic human rights.”

Speaking at a one-day workshop – organised by several women’s organisations in Nairobi in February to review the COE and PSC drafts – Grace Maingi-Kimani, acting executive director of non-profit organisation Federation of Women Lawyers Kenya said the PSC overstepped its mandate by reviewing the Bill of Rights.

“The PSC did the unthinkable and recommended the deletion of the state’s obligation to domesticate international human rights instruments. They also deleted the provision on social and economic rights and relegated to parliament the sole power to decide through legislation when and how the rights and standards can be applicable in national context,” Kimani explained.

Pricilla Nyokabi, executive director of women’s rights group Kituo cha Sheria, agreed that parliament should be left no option but to reinstate the rights in the draft.

“Entrenching these rights in the constitution would obligate the government to ensure equal provision to all citizens. Should the Constitution state that every person has the right to these services, one can enforce the right where they are not provided for,” noted Nyokabi.

PSC chairperson Mohammed Abdikadir, however, says constitutions should be lean documents that cover the broad principles and values that guide a state. Additional details should be formulated as statutes.

Human rights activists remain skeptical. “Can we really leave (our human rights) to members of parliament who are always bickering? No, we cannot trust them with such fundamental rights,” stated women’s rights activist Miriam Wanjiku.

Currently, the latest draft of the Constitution is reviewed parliament, which has 30 days to debate the document and decide if it will be passed. Parliamentarians need a two thirds majority to alter the wording of the draft.

To prevent the document from being passed as is, a grouping of women’s rights organisations, including FIDA Kenya, Urgent Action Fund, Centre for Rights Education and Awareness, Africa Woman and Child Feature Services, have handed a memorandum to parliament, demanding that the initial document drafted by the COE be retained.

“The women of Kenya demand explicit recognition of their rights in the regional and international human rights instruments that Kenya has ratified,” the memorandum states.


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