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Published: 3 years ago

Women and The Law: A Spotlight On Recent Kenyan Legislation

This past weekend, I was fortunate to attend the second Atieno Project Unconference and learn about how the law affects women, especially bills and acts written with women in mind, such as The Protection against Domestic Violence Bill (2013) and The Reproductive Health Care Bill (2014). The discussion was lively and informative, and there were parts of both proposed pieces of legislation that stood out to me as outlined below.

The Reproductive Health Care Bill (2014)

This Senate Bill is for an Act of parliament to provide for the recognition of reproductive rights, to set the standards of reproductive health, provide for the right to make decisions regarding reproduction free from discrimination, coercion and violence; and for connected purposes. The Bill, should it pass, aims to promote women’s health and safe motherhood, rapidly and substantially reduce maternal and child mortality rate in Kenya, as well as ensure access to quality and comprehensive provision of health care services to women and children.

National and county governments are required to make available contraception and family planning services, including the options available, counselling, information as to the advantages and disadvantages of the various contraceptive options and general education on contraceptives. This is extremely important as Kenya’s population is expanding at an alarming rate and we may not be able to feed ourselves if this continues (we are still unable to feed ourselves now, but this would get worse). 43% of pregnancies in Kenya are unplanned, which makes sense because contraceptives only have a 46% prevalence rate. Unmet need ranges between 26% – 78% in some areas. This contributes to the high population growth rate as well as poverty levels, so once this Act is in place, it should help mitigate this damage.

The Bill also covers gestational surrogacy. It entitles everyone to gestational surrogacy, making such agreements valid if they are in writing and signed by all parties involved, they are entered into in Kenya, and the surrogate is domiciled in Kenya at the time of agreement. If the surrogate mother is married or in a relationship, her partner must consent. This also applies to the partner of the commissioning parent, if any.

The Bill prohibits reward or compensation in cash or in kind for surrogacy, and one must be the mother to at least one child to become a surrogate. The prohibition of commercialization is to protect disadvantaged women from being used in “surrogacy farms” for profit. There was a gap regarding surrogacy in the Kenyan law, as was shown by this case in which the petitioners WKN and CWW, the genetic parents entered into a surrogacy agreement with JLN, the surrogate mother who underwent In-Vitro Fertilization (IVF). After the twins were delivered at MP Shah Hospital, there was a dispute as to whether the birth mother or the genetic mother should be registered in the Notification of Birth issued by the hospital. In the law (The Births and Deaths Registration Act) birth is defined as “the issuing forth of any child from its mother after the expiration of the twenty-eighth week of pregnancy, whether alive or dead”. The hospital therefore needed guidance from the Director of Children Services as to who the birth mother was. The Director decided that since the children were in need of immediate care and protection, and surrogacy agreements were unregulated by law, the best option was to place them under the care of a children’s home and allow the parents to adopt them after they were six months old, which is why the parents and the surrogate rushed to petition against the children being put up for adoption at the Children’s Court. They also sued the hospital at the Human Rights Court for breach of right to privacy, and the Director for illegally taking the children.

A groundbreaking judgment by Justice Majanja was made: Children born of surrogacy agreements are the same as any other children, and they have a right to certainty of their parentage under the “best interest of the child” principle. Thus, they are entitled to the identity of their genetic parents and, in principle, the registration of the genetic parents as opposed to the surrogate mother as a parent must be allowed. The hospital was found not to be at fault, while the director was found to have violated the fundamental rights of the petitioners, especially since there was no dispute between the surrogate and the parents. Had this Act been in existence, this whole case would not have had to happen.

Another great thing about the Bill is that it stipulates that maternal care shall be provided by medical practitioners, clinical officers, nurses and community health workers, as opposed to just doctors. This is important, especially to women in areas that have little to no access to doctors. It is also beneficial when it comes to making the call to terminate a pregnancy, which is permitted when these trained healthcare professionals, after consulting with the pregnant woman, decide that continued pregnancy is a danger to maternal health, or as a result of pregnancy, the life or health of the mother is in danger. Termination is then allowed once the woman consents, or if it is a minor or mentally unstable person, once the parents/guardians consent.

Another area in which the Bill excels is that it provides for the reproductive health of adolescents. This is a big issue in Kenya, given that 103 out of every 1000 pregnancies are attributed to girls aged between 15 – 19 years. Reproductive health services are to be made adolescent friendly, and parental consent is not necessary. This ensures that adolescents will feel freer to seek medical care when pregnant. Children aged between 10 – 19 years old must have counselling and signed consent from their parents to begin contraceptive use. The Reproductive and Child Health Care Board will be tasked with providing reproductive/sexual health education and information to adolescents, facilitate provision of non-judgmental, affordable, comprehensive and confidential reproductive health services, as well as policies to protect them from physical and sexual violence and discrimination. The Bill also provides for a Reproductive and Child Healthcare Tribunal that will hear and determine matters and complaints arising from the breach of this Act.

The Protection against Domestic Violence Bill (2013)

This National Assembly Bill is for an Act of parliament to provide for the protection and relief of victims of domestic violence, to provide for the protection of a spouse and any children or other dependent persons, as well as matters connected to these. Kenya currently has no legislation on domestic violence, an oddity in the global legal scene.

The Bill is very progressive, as it defines clearly relationships and situations under which domestic violence may occur, and strives to protect potential and actual victims. Domestic violence is defined as violence, or threat of violence against a person, or imminent danger to this person by someone with whom they are, or have been in a domestic relationship with. Violence is widely defined, and includes widow cleansing, virginity testing, interference from in-laws, damage to property, stalking, economic abuse, emotional or psychological abuse, and sexual violence within marriage, among others. A single act may amount to abuse, as well as a number of acts that form a pattern of behavior. Domestic relationships include marriage (ongoing or previous), sharing a house, family relationships, engagement (ongoing or previous), co-parenting, as well as close personal relationships. Unfortunately, however, it does not include house helps, as this is an employer-employee relationship.

A protection order is the final order made by the court in a matter concerning domestic violence. It applies to the person for whom it is made and their children. It can remain for up to five years, after which it can be renewed, and breaching it holds a fine of up to Sh. 100,000 or imprisonment. An application for a protection order may be made by the person under the threat of violence, or by a representative, such as one’s employer, relative, fellow employee, neighbor, guardian of a child or a guardian appointed by the court, a religious leader, a medical practitioner, counsellor, police officer, an NGO for victims of domestic violence among others. An interim protection order may also be made on application without notice, outside ordinary court hours if a delay would result in the risk of harm or undue hardship to the applicant or his/her children. Such an order prevents the person against whom it is taken from following, watching, loitering near or preventing access from places, occupying the same land/building as the protected person without express consent or making any other contact unless it is an emergency, relating to custody of a minor or under any special conditions. This will make victims of domestic violence feel physically safer.

The Bill obligates the police officer to whom domestic violence is reported to advise the complainant on all available measures of relief as well as their rights to apply for such relief, which is a good move given the callous manner in which many police handle cases of domestic violence. It also permits the complainant to request an officer of the same gender, as they may be more empathetic, and make the complainant feel at ease. Such a police officer is also permitted, unlike before, to make an arrest and prefer charges without a warrant on suspects of assault. The Inspector General of Police is also tasked with ensuring that police are well-trained on domestic violence matters, that they respond fast and efficiently and without causing fear.

The Bill also protects children from psychological abuse, deeming one an abuser if he/she exposes the child to physical, sexual or psychological abuse of a person with whom he/she is in a domestic relationship with. The person on the receiving end of the abuse will however not be found to be an abuser as well. The Bill recognizes, rightfully so, that children are also victims of domestic violence.

Another triumph is that it mandates the Cabinet Secretary for health, in partnership with county executives, create policy to provide temporary emergency shelters for victims of domestic violence. This policy shall also address public education and awareness, research and development on domestic violence, availability of psychological support and legal aid. Subsequently, any person that believes that domestic violence is being/has been committed may report it, and may not be intimidated for doing so. They may also not face disciplinary action for doing so, unless it is proven that the information is false.

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These Bills may be late, but at least they are existent now. Societies usually evolve faster than their structures, and the law has to play catch-up. What we can do now as the Bills are discussed in parliament is share them with our networks so as to educate them on what would change if/when they become Acts of parliament, as well as to help them hold leaders and members of their societies accountable. To follow their progress, please use the Bills tracker tool.

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