March 24, 2022 Global Indicators Briefs No. 5 Key Ingredients to Women’s Legal Rights in Kenya Catherine Nyaguthii Githae,*+ Emilia Galiano,+ Fredrick J.K Nyagah,*+ and Isabel Santagostino Recavarren+ L egislative reforms to increase gender equality before the law are often long and complex processes. is Brief focuses on a series of reforms in Kenya—speci cally, the adoption of the Sexual O enses Act of 2006, the Employment Act of 2007, and the Protection Against Domestic Violence Act of 2015. Strong evidence, broad coalitions, and incorporating the highest standards based on international best practice in early legal drafts are singled out as the key elements that led to the successful adoption of these landmark laws promoting women’s rights in Kenya. e lessons in this Brief can provide important insights for policy makers, advocacy groups and international organizations involved in the pursuit of legal gender equality in Kenya and other countries. Strengthening women’s legal rights in Kenya compromise among the tripartite interests of government, trade unions, and employer federations—similar lessons can be drawn. On July 25, 2014, a large group of committed women and men marched from Uhuru Park in Nairobi to the gates of the e Brief begins by framing the social, political, and economic Kenyan Parliament. Shouting in unison “jamii bila balaa” (“society context at the time of the reforms. It then highlights barriers and without violence”), they carried with them a petition prepared by a success factors that a ected the passage of these reforms. It coalition of more than 10 civil society organizations. eir concludes with a review of the results and future challenges for objective was to push Parliament to pass the Protection Against activists and policy makers alike. Domestic Violence (PADV) Bill. e Bill was the culmination of more than 20 years of research, advocacy, and lobbying by Kenyan Social, political, and economic factors leading to civil society organizations, as well as a signi cant achievement for reforms the Kenyan Women Parliamentary Association and the Kenya Following two decades of stagnation in per capita income and Young Parliamentary Association (KYPA). It became law on May high economic volatility, Kenya’s economy moved to a path of 14, 2015, and entered into force a couple of weeks later. accelerating growth after 2002. However, not long after, it is Brief focuses on restrictions on women’s economic experienced several adverse shocks, starting with postelection inclusion in Kenya and sheds light on the main lessons learned violence in January 2008, which brought gross domestic product from reform processes, such as the adoption of the PADV Act, that (GDP) growth to a halt, followed by a slow recovery in 2009. lifted some of these barriers in Kenya. e experience in the Economic growth started to rebound in 2010, stabilizing at lower country highlights three essential factors for a successful reform rates than before 2008. Despite hitting a stall in 2020, due to the process: solid data and research, combined with compelling COVID-19 pandemic, it rebound in 2021 and the economic individual stories; broad coalitions; and strong legislative drafts. activity is projected to accelerate in 2022-23 (World Bank 2021; ese were crucially important strategies for the passage of the World Bank 2020). Sexual O enses Act (SOA) of 2006, the Employment Act of 2007, Female labor force participation in the country has been and the PADV Act of 2015. While these reform processes were steadily rising, after a sharp drop in the early 2000s, reaching 72 deeply di erent—with the SOA and PADV Act spearheaded by percent in 2019, close to the male labor force participation rate of civil society organizations1 and the Employment Act the result of 76 percent. e pay gap between women and men has also Affiliations: *Men Engage Kenya Network (MENKEN); + World Bank, Development Economics, Women, Business and the Law. For correspondence: egaliano@worldbank.org; isantagostino@worldbank.org. Acknowledgements: This Brief is part of a series focusing on reforms in seven economies, as documented by the Women, Business and the Law team. Support for the series is provided by the Bill & Melinda Gates Foundation and the William and Flora Hewlett Foundation. The authors thank FIDA-Kenya for significant inputs to the research. This Brief was made possible with the generous and expert contributions of: Diana Gichengo, Human Rights and Equality Lawyer in Kenya; M/S. Judith A. Guserwa, Founder and Managing Partner at M/S. J.A. Guserwa & Co. Advocates, and member of the Law Society of Kenya; Grace Wangechi Kahuria, former Team Leader-Ending Violence Against Women and Girls at the UN Women Kenya Country Office; Hon. Priscilla Nyokabi Kanyua, first Nyeri County Women Representative and Commissioner at the National Gender and Equality Commission (NGEC); Isaac Kiema, National Programme Coordinator for Inclusive Growth Through Decent Work at the International Labour Organisation (ILO); Joyce Miguda Majiwa, Senior Counsel and Lead Consultant for the civil society engagement in the passage of the Protection Against Domestic Violence (PADV) Act, recipient of the Order of the Grand Warrior of Kenya; Virginia Nduta, Executive Director for the Women’s Empowerment Link; Hon. Agostinho Neto, former Member of Parliament for Ndhiwa Constituency and co-convenor of the Kenya Parliamentary Human Rights Association (KEPHRA); and Sis Rose Omamo, General Secretary of the Amalgamated Union of Kenya Metal Workers and Board Member of the Central Organization of Trade Union in Kenya (COTU-K). The team thanks Norman Loayza, Tea Trumbic, and David Francis for guiding the publication process. Nancy Morrison and Jacob Bathanti provided excellent editorial assistance. Objective and disclaimer: This series of Global Indicators Briefs synthesizes existing research and data to shed light on a useful and interesting question for policy debate. Data for this Brief are extracted from the Women, Business, and the Law database and supplemented by interviews conducted over the spring and summer of 2021 with women’s rights experts from local civil society organizations, the public and private sectors, and international organizations in Kenya. This Brief builds on the information collected during these interviews to reconstruct the development of the legal reforms and the success factors that allowed the reforms to pass. These Briefs carry the names of the authors and should be cited accordingly. The findings, interpretations, and conclusions are entirely those of the authors. They do not necessarily represent the views of the World Bank Group, its Executive Directors, or the governments they represent. All Briefs in the series can be accessed via: https://www.worldbank.org/en/research/brief/global-indicators-briefs-series. https://www.worldbank.org/en/research/brief/global-indicators-briefs-series. DECIG – Global Indicators Briefs No. 5 Kenyan women are less likely than men to own accounts at financial institutions or mobile Figure 1 money accounts Financial institution account Mobile money account 0% 30% 60% 90% Female (% age 15+) Male (% age 15+) Source: Global Findex Database 2017. Note: Financial institution account denotes the percentage of respondents who report having an account (by themselves or together with someone else) at a bank or another type of financial institution such as a credit union, a microfinance institution, a cooperative, or the post office (if applicable), or having a debit card in their own name. Mobile money account denotes the percentage of respondents who report personally using a personally using services included in the GSM Association’s Mobile Money for the Unbanked (GSMA MMU) database to pay bills or to send or receive money in the past 12 months. narrowed, with a female-to-male ratio in estimated earned income National Commission on Gender and Development in 2003 and increasing from 68 percent to 72 percent between 2017 and 2021 the Ministry of Gender, Children and Social Development in (World Economic Forum 2017, 2021). Even so, Kenyan women, 2008—ensured the development of policies supporting women’s aged 25–60, are more likely to live in a poor household, especially socioeconomic opportunities. if they are divorced or widowed (Pape and Mejia-Mantilla 2018). While the female labor force participation rate is high, reaching 80 Key reforms toward gender equality in Kenya percent among women aged 25 or older, according to International Labour Organization (ILO) data, most working women are From 1993 to 1998, a government-appointed Task Force for engaged in the agricultural sector, which represents 59 percent of the Review of Laws Relating to Women reviewed the laws, policies, female employment (World Development Indicators). is practices, and customs that constrained women’s equal sectoral segregation has driven large gender gaps in business pro ts participation in society and their economic empowerment and remuneration (World Bank Group 2020). Notably, because (Republic of Kenya 2004). Its key recommendations included a few women have been able to access certain male-dominated review of the Constitution on matters of citizenship and customary sectors, such as construction, few can reap the bene ts of higher practices, the enactment of legislation guaranteeing equality in earnings (Pape and Mejia-Mantilla 2018). Access to business marriage, the improvement of working conditions for women, and opportunities is also limited by the fact that Kenyan women are less the introduction of legal protections from domestic violence. is likely to own land that can be used as collateral (12 percent of work led to the adoption of the Children’s Act in 2001, the women aged 20–49), to use mobile internet, and to access nancial establishment of the National Commission on Gender and services through the mobile phone-based service popular in Kenya, Development in 2003, the development of a Draft Constitution in M-Pesa (Pape and Mejia-Mantilla 2018). e latest data from the 2004, the rst draft of the Domestic Violence (Family Protection) Global Findex Database (2017) report that the percentage of Bill, and the writing of a memorandum by the Ministry of Labour female holders of a mobile money account is 8 percentage points and Manpower Development on women’s inclusion in lower than male account holders, 69 percent compared to 77 employment planning (Republic of Kenya 2004). e Sexual percent (see Figure 1). O ences Act of 2006 and the new Employment Act of 2007 tackled rights and protections for women in the workplace. With regard to women’s political participation, the Speci cally, the SOA contains protections for women from sexual momentum generated by the prospect of Kenya’s rst multiparty harassment in employment, while the Employment Act ensures elections in 1992 propelled women to increase their mobilization equal compensation and women’s ability to return to work after e orts, develop clear political platforms, and focus national pregnancy. attention on the reforms needed for their socioeconomic empowerment (Owuor 2016). In February 1992, the National On August 27, 2010, Kenya promulgated a new Constitution Council of Women of Kenya (NCWK), in partnership with that contains landmark reforms for women’s freedom of movement FEMNET (the African Women's Development and (Women, Business and the Law 2012). e new Constitution also Communication Network), convened the rst National Women’s establishes that customary law in Kenya is no longer exempt from Convention with the goal of coordinating action and de ning joint constitutional provisions on nondiscrimination and is to be objectives ahead of the upcoming elections. Since winning 6 out of considered void if inconsistent with the Constitution. Until this the 200 seats in the 1992 elections, women’s representation in the reform was enacted, customary law prevailed in matters of National Assembly has grown steadily, reaching 21.8 percent in the marriage, property, and inheritance, and was completely exempted latest elections of 2017 (Box 1). Increasing representation, coupled from constitutional principles of nondiscrimination and equality with the establishment of dedicated institutions—such as the (Women, Business and the Law 2012). 2 DECIG – Global Indicators Briefs No. 5 In 2012, Kenya passed both the Land Act and the Land marriage, setting the minimum age at 18 for both boys and girls. Registration Act. e former prohibits discrimination in land Finally, in 2015, the PADV Act was enacted, introducing for the transactions and protects rights to the matrimonial home. e rst time in the country protections against domestic violence. latter recognizes spousal rights over matrimonial property as an overriding interest in land, requires joint registration, grants an Success factors and lessons learned from the interest in land to a spouse who has worked the land, and requires reform process both spouses’ consent for transactions involving matrimonial property (Women, Business and the Law 2014). In 2013 the e reform process in Kenya is characterized by three essential National Assembly enacted the Matrimonial Property Act which factors: data and research, broad coalitions, and strong legislative established partial community of property as the standard drafts based on internationally recognized standards. ese matrimonial regime and guaranteed equal rights to both spouses in approaches were pioneered by activists and policy makers dedicated the administration of joint property (Women, Business and the Law to strengthening women’s rights. eir e orts were based on 2016). While these reforms improved the property rights of lessons learned from previous national experiences and informed by women, they stopped short of addressing inequalities in inheritance good practices from other countries. Each approach will be rights for female and male surviving spouses, as established by the discussed next in turn, along with relevant examples from the Law of Succession Act of 1972 (sec. 36(1)) and in contrast with reform processes that led to the adoption of the Employment Act, constitutional provisions. In 2014 the National Assembly passed the SOA, and PADV Act. e lessons can be adapted to other the Marriage Act, which removed all exceptions to the legal age of countries’ unique political and socioeconomic context. Box 1 Women’s growing political representation in Kenya A signi cant innovation of the new 2010 Constitution quotas for the composition of the National Assembly and the was the introduction of political quotas for women (Arts. 27, Senate’s membership, reserving 47 seats for women in the 97-98). According to Article 27 “the State shall take legislative lower house (one for each of Kenya’s counties) and 16 seats and other measures to implement the principle that not more for women in the upper house. Political parties are also than two-thirds of the members of elective or appointive bodies required to nominate Members of Parliament (MPs) shall be of the same gender.” is provision extends to the representing special interests (equally divided between men judiciary, the legislature, and local governments (Women, and women). Business and the Law 2014). Articles 97 and 98 establish Table B1.1. Women’s representation in the National Assembly (1992–2022) and Senate (2013–22) Legislature Constituencies Elected Quota for Nominated Nominated Women/Total date women Women members women members representatives National Assembly 1992–1997 188 6 n/a 12 1 7/200 1997–2002 210 4 n/a 12 5 9/222 2002–2007 210 10 n/a 12 8 18/222 2007–2013 210 16 n/a 12 6 22/222 2013–2017 290 16 47 12 5 68/349 2017–2022 290 23 47 12 6 76/349 Senate 2013–2017 47 0 16 4 2 18/67 2017–2022 47 3 16 4 2 21/67 Source: CREAW 2019; IPU Parline Database. n/a – not applicable, indicating no applicable provision. e 2013 elections, the rst held under the new legal not been fully realized yet. It has been a source of litigation in framework (2010 Constitution, Elections Act of 2011, and front of the Supreme Court of Kenya twice since the Political Parties Act of 2011), saw a marked increase in the Constitution’s enactment. More recently, the National representation of women in Parliament, mainly thanks to the Assembly failed to enact the Constitution of Kenya quota for women representatives. Since then, there has been (Amendment) Bill 2018, also known as the Gender Bill, a clear trend toward greater representation of women, thanks which would have ensured the implementation of the to a more conducive legal framework (political parties must principle and the allocation of seats in Parliament (Muthoni comply with the two-thirds rule if they want to receive Kamuru 2019). Despite the fact that women’s political funding) and political mobilization at the local level. representation in Parliament went from 3.6 percent in 1997 to 21.8 percent in 2017, the attainment of the two-thirds rule at said, the implementation of the two-thirds remains one of the main battles for human rights principle in the National Assembly and in the Cabinet has organizations in the country. 3 DECIG – Global Indicators Briefs No. 5 Evidence-based reform process backed by data, research, Actions Act. In the same year, legislative drafts of these acts were and compelling individual stories made available for public participation, followed by Parliamentary readings. All the acts, with the exception of the Fair Administrative Research and data about the Kenyan labor market, private Actions Act (enacted in 2009), were approved by the National sector competitiveness, and employment issues were key for each of Assembly and enacted in 2007. the parties to the employment legislation negotiations. Arguments substantiated by evidence and data were critical to meaningful A similar role was played by data about intimate partner discussions around the draft legislative texts. Similarly, data on the violence. Following a National Violence Against Women Survey pervasiveness and economic cost of gender-based violence (GBV) (NVAWS) undertaken in the United States, studies on the provided the evidence to call for speci c protection measures to be prevalence and impact of gender-based violence were carried out by established. Of equal importance, according to Members of the Kenya National Bureau of Statistics and the National Gender Parliament and civil society organizations interviewed, were the Equality Commission, with the support of UN Women (NGEC individual stories of workers and the voices of the victims and 2014). e US study revealed that victims of intimate partner survivors of violence. Advocates for reform used individual stories violence in the country lost nearly eight million workdays of paid and data to develop compelling arguments to sway undecided MPs, work, equivalent to more than 32,000 full-time jobs, and almost build public support, and broaden coalitions in favor of the reform 5.6 days of household productivity as a result of violence per year process, eventually ensuring the adoption of the legislation in (National Center for Injury Prevention and Control 2003). e Parliament. 2014 Kenya Demographic and Health Survey, carried out between May and October 2014, highlighted the endemic issue of e reform process to review and overhaul Kenya’s labor laws, gender-based violence, nding that nearly half (45 percent) of for example, was data driven from the start. e tripartite Kenyan women aged 15–49 had experienced physical violence at Taskforce, appointed by the Attorney General in 2001, carried out some point in their lifetime and almost half of all women who were extensive consultations to identify current issues among employers or had been married experienced at least one form of intimate and employees. In addition, research carried out by NGOs like the partner violence (Kenya National Bureau of Statistics 2015). A Kenya Human Rights Commission helped expose the poor 2016 report, published by the National Gender and Equality working conditions of women workers, who were often forced to Commission, estimated that Kenya could be losing about 46 work overtime, with unfair compensation, and with limited billion Kenyan Shillings annually to gender-based violence, protections from sexual harassment and repetitive strain injuries equivalent to approximately 1.1 percent of the country’s GDP (Kenya Human Rights Commission 2012). e extreme stories of (NGEC 2016). Preliminary ndings from this research were used women working in precarious jobs in the cut- ower sector were during advocacy e orts and also referenced during the deliberations used, along with data, to advocate and in uence both MPs and in Parliament in support of the adoption of the PADV Act. members of the trade unions. Research and ndings from the consultation guided the development of the legislative drafts and Reforming laws by building partnerships amendments. Broad coalitions were highlighted by many of the stakeholders In April 2004 the Taskforce submitted draft texts for ve interviewed as a success factor. As stated by Hon. Priscilla Nyokabi proposed laws to the Attorney General: the Employment Act; the ( rst Nyeri County Women Representative and Commissioner at Labour Institutions Act; the Labour Relations Act; the the National Gender and Equality Commission), “Reforms are Occupational Safety and Health Act; and the Fair Administrative about heavy lifting, they require many more lifters, everybody Table 1 A decade of reforms in Kenya measured by Women, Business and the Law 2005-2015 Year WBL index Indicator Law Reform description score 2006 58.1 Workplace Sexual O ences Kenya enacted legislation protecting women from sexual Act of 2006 harassment in employment. It also adopted criminal penalties for sexual harassment in employment. 2007 75.6 Parenthood Employment Act Kenya prohibited the dismissal of pregnant workers. It also of 2007 introduced paid paternity leave. Pay Employment Act Kenya mandated equal remuneration for work of equal value. of 2007 It also eliminated the ban on women's employment in mining and in industrial undertakings at night. Workplace Employment Act Kenya prohibited gender discrimination in employment. of 2007 2013 78.1 Assets Matrimonial Kenya recognized the value of nonmonetary contributions to Property Act household income and welfare. of 2013 2015 80.6 Marriage Protection Against Kenya enacted legislation protecting women from domestic Domestic Violence violence. Act of 2015 Source: The WBL index scores 35 data points across eight indicators composed of four or five binary questions, with each indicator representing a different phase of a woman’s life. Indicator-level scores are obtained by calculating the unweighted average of responses to the questions within that indicator and scaling the result to 100. For each question, Yes = 1 and No = 0. Overall scores are then calculated by taking the average of each indicator, with 100 representing the highest possible score. 4 DECIG – Global Indicators Briefs No. 5 pushing from their end.” ese can be seen at play on several levels, framed it as legislative draft against men and questioned the especially in the reform process leading to the PADV Act. Popular rationale for the bill itself. “We do not want to create laws to support for the PADV Act, secured through the active involvement manage our bedrooms,” one MP said during parliamentary debate, of the media and the wide dissemination of data and stories on the while another claimed that “there is nothing like ‘sexual abuse’ prevalence of gender-based violence, helped to strengthen the sense between a husband and wife,” and a third member warned that “we of urgency and momentum for the reforms, which had been are trying to introduce activism in our homes.” Main sources of lingering for years. Better coordination among civil society disagreement were the de nitions of economic and psychological organizations, led by the Women Empowerment Link, maximized violence, and the powers granted to the police by the bill. In the advocacy impact by creating a united front for engagement with response to this, the media campaign “jamii bila balaa” (“society the MPs, who could identify a clear constituency and coordinated without violence”) was launched to reframe the bill as an set of requests for the reform. At the same time, this alignment instrument meant to protect families and ensure prosperity by streamlined partnerships with donors and international preventing violence in the home. organizations, which helped by funding research, convening activities, and supporting advocacy work. Coalitions were also key Several male MPs advocated in favor of the legislation and inside Parliament to ensure that the legislation would not be seen as helped to push back against the arguments raised during the favoring a speci c segment but society as a whole. It was crucial readings of the bill. Among them were Hon. Samuel Chepkonga, that male lawmakers also supported the bill. is was accomplished who was Chair of the JLAC; Hon. Agostinho Neto, a member of through an alliance between the Kenyan Women Parliamentarian the JLAC and Delegated Legislation Committee; and Hon. David Association, Kenya Young Parliamentarians Association, and the Ochieng, also a member of the JLAC. Eventually, they greatly Kenya Parliamentary Human Rights Caucus. e repositioning of helped to secure the needed majority for the approval of the bill, the PADV Bill as a piece of legislation ensuring the safety and which went through its third and nal reading while many of the security of families more broadly, rather than only women, also female MPs were in New York for the meetings of the United helped secure support from men. Nations Commission on the Status of Women (CSW). On March 24, 2015, the PADV Act was nally passed, thanks to the tireless One of the turning points for the PADV reform process work done by both civil society organizations and Members of occurred in the summer of 2014. Advocates were concerned about Parliament, who were able to coordinate and in uence lawmakers the future of the PADV bill ahead of its second reading in to achieve a decisive majority, and through the eventual support of Parliament in August 2014. It was feared that without strong MPs who initially opposed the bill. public support, the bill would undergo several amendments that would render it unusable or shelve it again, as had happened several International and regional best practices set high times since 1999. Eventually, a coalition of civil society standards for legal reform organizations, legal activists, the donor community, the Kenya Young Parliamentary Association (KYPA), the Kenya Broad coalitions are only successful if they can rally behind Parliamentary Human Rights Association (KEPHRA), and the strong legislative drafts. Drafts are robust when they Kenya Women Parliamentary Association (KEWOPA) came comprehensively address existing issues. As explained by Hon. together to ensure that the bill would have enough support among Agostinho Neto, former Member of Parliament for Ndhiwa the public and inside the National Assembly. A key role was played Constituency and co-convener of the Kenya Parliamentary Human by supporting MPs, one of them Hon. Priscilla Nyokabi, at the Rights Association (KEPHRA), “It is easier to remove than to add.” time Nyeri County Woman Representative, Deputy Chairperson Evidence from research and data, recognized international best of the Justice and Legal A airs Committee (JLAC), and a member practices, international conventions, and the experience from of the House Business Committee. e work of advocates like her countries that had already undertaken reforms were all considered in the National Assembly ensured the cooperation of crucial during the process of drafting legislation. International committees, such as the JLAC, the Labour and Social Welfare organizations, such as the ILO and UN Women, played a Committee, and the House Business Committee. particularly strong role here, providing opportunities to learn from, and convene around, international and regional best practices. e Among civil society organizations, a catalytic role was played donor community also supported the drafting process by allocating by the Women Empowerment Link (WEL), which brought funding to bring on board experts who could draw from and adapt together di erent women’s organizations with the goals of aligning examples of leading legislation from other countries. e Sexual their advocacy e orts and in uencing lawmakers. WEL’s O ences Bill, for instance, bene tted from the engagement of civil involvement focused on increasing women’s political participation society organizations and international organizations that and securing access to policy makers. Previous attempts to get the supported a comparative analysis of the legislation on sexual bill approved had failed because of a lack of coordination and violence in Australia, Ghana, South Africa, Tanzania, and the momentum. Building on this lesson learned and on the United States. After Hon. Justice Njoki S. Ndung’u, a member of momentum from the enactment of the 2010 Constitution, WEL the National Rainbow Coalition at the time, gave notice in mobilized women from all 47 counties, asking them to voice their September 2004 that she intended to bring a motion on sexual opinions and needs in relation to gender equality. In addition, o enses through a private member’s bill in the 9th Parliament, the WEL partnered with organizations like the Men Engage Kenya bill underwent several rounds of drafting (Association for Women's Network (MENKEN) to identify, mobilize, and convene male Rights in Development 2007). e Sexual O enses Bill was champions in Parliament through workshops and by organizing reviewed by the Justice and Legal A airs Committee (JLAC) and discussions. Findings, materials, and key messages were amended extensively between August 2005 and March 2006, prior disseminated to lawmakers and to the public through the media, in to the parliamentary debate. Additional changes and amendments order to equip MPs with robust arguments and strengthen public were put in place before the nal passing in the National Assembly support for the reform. International organizations such as UN in July 2006 (Onyango-Ouma, Njoki Ndung'u, and Birungi Women and the International Rescue Committee (IRC) played an 2009). e nal draft eventually borrowed heavily from the Sexual important convening role, facilitating discussions among civil O ences Act, 2003 of the United Kingdom. is experience society organizations and policy makers. ey also provided highlights how important it is for drafters and advocates of draft funding, technical expertise (including international standards and legislation to identify the inalienable elements that cannot be best practices), and informational material. compromised without losing the essence of the reform, along with components that allow more exibility, to leave room for the While support for the bill grew steadily, there still was not a natural process of lawmaking, which is often characterized by majority of MPs ready to adopt it. e MPs opposing the bill negotiations and compromise. 5 DECIG – Global Indicators Briefs No. 5 As a result, the Sexual O enses Act of 2006 condensed into —Hon. Priscilla Nyokabi Kanyua, rst Nyeri County Women one law provisions that had been spread across di erent legal Representative and Commissioner at the National Gender and instruments, such as the Penal Code, the Criminal Procedure Equality Commission (NGEC) Code, and the Criminal Law Amendment Act of 2003. e SOA criminalizes and clearly de nes sexual o ences, establishing paths e legal reform process in Kenya has been the result of and procedures for prevention and protection. It further introduces ever-increasing participation by women in the public sphere, minimum sentences and innovative measures, such as a DNA data coordinated activism of a vibrant civil society, and the bank, a registry of convicted sexual o enders, and the extension of strengthening and establishment of dedicated institutions. It was liability to companies for multiple types of sexual o ences, in driven by evidence and research, broad coalitions, and well-drafted particular those directed against children. In an e ort to ll the legislation that led to signi cant reforms and the expansion of gaps not addressed by the Sexual O ences Act of 2006, the PADV rights and protections for women. e comprehensive overhaul of Act introduced protections speci cally targeting intimate partner the country’s labor laws was crucial to establish a series of rights and violence. Among the notable provisions introduced are: the protections for Kenyan workers in general, and for women possibility for third parties to le protection order requests; a more employees in particular. Similarly, addressing gender-based exhaustive de nition of domestic violence (which includes violence in the private and public spheres was also critical to ensure physical, psychological, sexual, and economic abuse); and the women’s health and safety, as well as their more active participation ability to claim compensation in cases when a victim of domestic in both private and public life. violence su ers personal injuries, damage to property, or nancial To date, these reforms have also encouraged the development loss as a result of the abuse. of various national policies to ensure the establishment of vital e Employment Act of 2007 is another example showing the services, data monitoring processes, and institutions to support the importance of robust and comprehensive drafts, especially when implementation of the legislation. One example is the National considering its provisions and policies on equal pay and leave. e Policy on Gender and Development (2019), which identi es key new Employment Act, Law No. 11 of 2007, repealed an obsolete issues and policy actions on a host of di erent areas, from women’s text from 1976 and introduced several rights and protections, active participation in the economy to sexual- and gender-based including provisions establishing three months of maternity leave violence (GBV). In the areas of GBV and female genital mutilation for women and two weeks of paternity leave for men; the de nition (FGM), the government renewed its commitment during the 2021 of sexual harassment in employment and the requirement for Generation Equality Forum by pledging to take action in four areas employers (with more than 20 employees) to adopt a policy on the by 2026: aligning domestic legislation with international standards matter; the prohibition of discrimination in employment and ensuring its implementation; monitoring and researching GBV (recruitment, training, and promotion) “on grounds of race, to boost evidence-based programming; adequately resourcing and colour, sex, language, religion, political or other opinion, nancing GBV prevention, response, and support services; and nationality, ethnic or social origin, disability, pregnancy, mental strengthening partnerships with civil society organizations to status or HIV status”; equal remuneration for work of equal value; develop multisectoral approaches. Another example is the ird and the prohibition of the dismissal of pregnant workers. Finally, Generation Decent Work Country Programme 2021–2024, which the Act also eliminated the ban on women’s employment in mining highlights the persistent economic attainment gaps for women and and industrial undertakings at night. prioritizes access to decent jobs and economic opportunities for vulnerable groups, including women (Ministry of Labour 2021). While the intention of reform proponents is always to set the highest standards, negotiations and the need to safeguard crucial When reforms encompass solid data and research, broad partnerships can lead to compromises. e nal text of a law may coalitions, and strong legislative drafts, as discussed, results can be in some instances represent a signi cant improvement, all the while seen on the ground and are revealed by economic indicators, such not matching the original intent of the reformers. One such as those measuring female labor force participation and the gender example can be found in the area of maternity leave, where Kenya pay gap. Despite reforms and economic progress, however, women still falls short of the 98-day threshold established by the ILO in Kenya continue to be disproportionately a ected by high Maternity Protection Convention No. 183. As the government was poverty rates and still face obstacles to exercise their voice and not prepared to cover the costs of such bene ts when the agency. Employment Act was drafted, the administration of maternity leave e success factors and lessons learned identi ed throughout bene ts is currently still a responsibility of the employer. Despite this Brief can guide the Kenyan civil society, private sector, and the e orts of the legislators, the negotiations between the members government in addressing existing gaps and emerging challenges. of the tripartite Taskforce (government, Federation of Kenya In the area of employment this may include alignment with the Employers, and Central Organization of Trade Union in Kenya) ILO Maternity Protection Convention No. 183, which Kenya has resulted in the adoption of 90 days (three months) of maternity not yet rati ed. is standard establishes a minimum threshold of leave and two weeks of paternity leave. Nonetheless, securing three 98 days of maternity leave paid by the government. E orts should months of leave versus the original two established in the 1976 also focus on establishing provisions that help new parents better Employment Act was considered a success for women. balance childcare responsibilities, as highlighted by a recent Another example of legislative gaps comes from the PADV petition led by Dr. Benjamin Magare Gikenyi in front of the Act. As adopted, the law fell short of the expectations of the original High Court of Nairobi requesting that the court extends paternity drafters and civil society organizations that supported it, due to the leave to three months. With regard to the SOA, one of the topics amendments that removed important clauses and implementation under discussion for possible reform is decriminalizing and provisions during the process in Parliament. Rules of procedure, removing penalties for consensual sex undertaken by adolescents. initially included in earlier drafts of the bill, were dropped and their Scholars and CSOs recommend that Kenya's legislation be absence meant that there were severe gaps in the enforcement and reformed to create a legal regime that protects juveniles from sexual implementation of the law, visible especially in the lack of capacity violation without victimizing or criminalizing those adolescents of the judiciary, prosecution o cers, and the police. (Centre for Reproductive Rights and FIDA Kenya 2019; Njue and Materu 2021). In 2020, the Chief Justice and Chairman of the Next steps toward meaningful implementation of Rules Committee nally approved the rules of procedure for the reforms implementation of the PADV Act, lling a legislative gap highlighted by civil society organizations. Advocacy groups still “Reforms are not an end but a means to an end. We need to lament the lack of budget allocation for e orts to prevent prepare for both the legislation and its implementation." gender-based violence and protect victims, which has resulted in 6 DECIG – Global Indicators Briefs No. 5 insu cient awareness and lack of services. Speci cally, counties are e developments of the past decades have shown that change expected to establish shelters, counseling services, and safe spaces is possible and can be e ective. But lling remaining gaps will but lack funding to do so. e allocation of resources and the require the continued participation and representation of women in public spaces and decision making, as well as the concerted e ort establishment of key services for survivors of violence is even more of civil society organizations, policy makers, international pressing in light of the fact that gender-based violence is being organizations, and the private sector. exacerbated in all its forms by the COVID-19 crisis (HRW 2021; UN Women 2020). In the rst half of 2020, GBV cases jumped by Notes 92.2 percent when compared to 2019, with the most common 1 Such as the Federation of Women Lawyers in Kenya (FIDA forms of GBV recorded by authorities being murder, sexual Kenya), the Kenya Human Rights Commission, Men Engage o ences and de lement (National Crime Research Centre 2020). Kenya Network, and Women’s Empowerment Link. 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