Learning lessons from Kenya’s ratification process

In early 2003, Equality Now hosted a conference of women’s groups to organise a campaign to lobby the African Union (AU) to adopt a protocol on women’s rights. The lobbying was successful and the finished document (The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa) was officially adopted by the AU on 11 July 2003 in Maputo.

On 25 November 2005, having been ratified by the required 15 member nations of the AU, the protocol entered into force. Of the other 53 member countries in the AU, the heads of states of 45 countries signed the protocol. As of December 2009, 27 countries had ratified and deposited the protocol. Kenya was among the countries that had signed, but not ratified the protocol.

THE JOURNEY

In May 2007, during the 41st Session of the African Commission on Human and Peoples' Rights held in Accra, Ghana, the Kenyan government reported that it had ratified the protocol. The exact words of the minister for justice and constitutional affairs at the time were: ‘I can confidently say that the instrument will be deposited by the end of June.’ Nothing came of the minister’s pronouncement.

The State Law Office did confirm that the protocol was debated and received cabinet approval for its ratification. The approval, however, was said to be subject to reservations - particularly regarding article 14 on the issue of reproductive health rights. (The Protocol explicitly sets forth the reproductive right of women to medical abortion when pregnancy results from rape or incest or when the continuation of pregnancy endangers the health or life of the mother).

The office of the secretary of cabinet and head of civil service also confirmed that there was a cabinet approval and that it was communicated to the foreign affairs ministry back in May 2006. The latter was expected to prepare and deposit the instrument for ratification. It was frustrating that the legal office in the ministry had been giving contradictory information, with claims that the approval had been communicated but got ‘lost’, yet other sources claiming no such approval had been received.

In Kenya, while strides have been made towards protection of women’s rights, violations still remain rampant. In particular, violence against women continues to be trivialised and does not receive priority in government policies.

Reproductive health continues to defer to societal values. Funding to address women’s issues is constrained by conditionalities and power dynamics. A number of policies and laws have sought to protect the rights of women, but many of these remain only in draft form: the Marriage Bill, the Matrimonial Property Bill and Family Health and Reproductive Bill all contain provisions for stronger protection of women’s rights. The Gender Policy, The Children’s Act, The Employment Act; The Land Policy; The National Human Rights Policy; The Sexual Offences Act and the Education Act all have provisions that seek to enhance women’s rights.

On the road to implementing the protocol, numerous lessons were learnt. Top of the list was the need for there to be a clear roadmap on the ratification process. There was no clarity on this process. This allowed various stakeholders to avoid taking responsibility for the implementation process and instead engage in a blame game.

Another lesson learnt was the need for synergy, since different institutions had different areas of expertise, as well as different contact points, which together could have given an effective push for the ratification of the protocol. The SOAWR network, spearheaded by The Coalition on Violence Against Women was an effective lobby group, which exerted the necessary pressure on the government to ratify the protocol.

The third lesson learnt was about the new and innovative ways in which pressure could be exerted on government to ratify the protocol. Previously, short of engaging the relevant ministries in the process, organisations were at a loss as to how to force ratification. Methods such as analysing already domesticated laws that add weight to such strategies were used to bargain for a more favourable outlook.

Fourth, popularisation of the protocol came in handy. FEMNET had radio shows on a local media station in the national language, Kiswahili. The Crossroads drama had six episodes and was part of the popularisation of the protocol. Each episode ran for 20 minutes and highlighted key women’s rights issues contained in the provisions of the protocol. The discussants were SOAWR members who highlighted the key messages after each episode and also answered questions.

Timing was of the essence and this is the fifth lesson. Kenya was hosting the African Women’s Decade. The use of this platform allowed pressure to be exerted on the government to ratify the protocol. The lesson here was in learning to take advantage of opportune meetings as a way of building international pressure on the government.

The protocol is fairly holistic in its approach to women’s rights. It will act as a catalyst for fast tracking change as it gives women an avenue to make claims. Its African focus offers an opportunity to take an indigenous perspective on gender. Since it has a reporting requirement, this will improve accountability. As a recommendation for the rights enshrined in the protocol to be realised, national action plans supported by budgetary allocation and human resource capacity are necessary for effective implementation.

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* Regina Mwanza is programme officer (regional advocacy) for The Coalition on Violence Against Women-Kenya (COVAW-K)
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