GENDER, HUMAN RIGHTS AND THE HARMONISED DRAFT CONSTITUTION GENDER Understanding gender influences our perceptions, expectations and the attitudes that we hold. Definitions of Gender terms Definitions form the basis of understanding and conceptualising the inequality in the Society with reference to the political sphere. Gender-refers to the social roles of men and women at a specific time and these are always changing. Sex- is the biological difference between men and women. This cannot be changed unless by biological difference. Roles in society are either biological (cannot be changed and are permanent) or social (roles can be changed and are not permanent). Society has set standards for the behaviour of men and women. Discrimination- Preferential treatment to an individual or group over another based on age, sex, ethnicity or religion. Equality- Sharing of power between women and men in the social economic and political spheres. Gender equality proceeds from the premise that men and women have an equal stake and must be accorded this stake all the time. Empowerment- the process through which those in disadvantaged positions increase their capacities to participate in society and enjoy a status similar to the others e.g. in access to knowledge, allocation of resources, decision making and power structures. The social construction of gender defines the roles and responsibilities of the different sexes. Women are inappropriately burdened with responsibilities and this provides for a space for unequal gender relations. It is important to indentify gender issues that may hinder participation of women in politics, leadership and decision making, including; ·         Family responsibilities and multiple roles ·         Many women often lack confidence and think that they are not as capable as men in certain areas relating to governance ·         Most women are ignorant about campaigns and contesting procedures and processes ·         Job segregation, whereby women are appointed to work under the supremacy of men. This creates a history of disadvantage where gender is the basis of discrimination. Several gender issues lead to the difference in representation in parliament, the judiciary and other organs of governance. There are several strategies that can be used to deal with issues of gender inequality. Affirmative action- Policy, plan, programme or practice designed to combat the effects of discrimination against a particular group and to correct historical imbalances.for example the creation of special parliamentary seats for women is an affirmative action to increase women’s representation in parliament. This is one strategy that ensures women participate in governance. Mainstreaming- Incorporation of a gender perspective into all policies, programmes and activites and consideration of gender as a critical variable in all spheres. This involves asking how all policies affect women is it positive or negative. Advocacy- The act of campaigning on an issue for the sake of seeking a revision of a situation deemed disadvantaged Lobbying- one form of advocacy in which influential people, like legislators, the president or Attorney General are approached with the intention of convincing them on the value of the revision being sought. Examples of this should include the lobbying for revision of laws discriminating against women and creating stiffer penalties for rape.   THE BILL OF RIGHTS Rights and fundamental freedoms   The purpose of the recognition and protection of human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.   The rights and fundamental freedoms set out in this Chapter belong to each individual and are not granted by the State;   Application of the Bill of Rights The Bill of Rights applies to all laws and binds all State organs and all persons. Every person shall enjoy the rights and fundamental freedoms set out in the Bill of Rights, to the greatest extent consistent with the nature of the right or fundamental freedom.   Implementation of rights and fundamental freedoms  It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms .    All State organs and all public officers have the responsibility to understand, and equip themselves to deal with, the needs of special groups within society including women, older members of society, persons with disabilities, children, youth and members of minority and marginalized communities and of particular ethnic, religious and  cultural communities.   Rights and freedoms that may not be limited  There shall be no limitation on the following rights and fundamental freedoms— (a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to a fair trial; and (d) the right to an order of habeas corpus.   Rights and fundamental freedoms Right to life  (1) Every person has the right to life. (2) A person shall not be arbitrarily deprived of life. Equality (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. Freedom from discrimination The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.    A person may not be compelled to indicate or define that person’s ethnicity or race.    Despite clause (1), the State shall take legislative and other measures, including but not limited to affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups as a result of past discrimination.   Gender Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities.   Youth The youth constitute an integral part of society and are entitled to enjoy all the rights and fundamental freedoms set out in the Bill of Rights, taking into account their unique needs.    The State shall take legislative and other measures to— (a) promote the welfare of the youth; (b) ensure political participation by the youth; and (c) protect the youth from cultural practices that undermine their dignity and quality of life.   Children Children hold a special place in society. It is the duty of parents, the family, society and the State to nurture, protect and educate children. All children, whether born within or outside wedlock, are equal before the law and have equal rights under this Constitution.  A child’s best interests shall be of paramount importance in every matter concerning the child. A child’s mother and father, whether married to each other or not, have an equal responsibility to protect and provide for the child.    Every child has a right to— (a) a name and a nationality from birth and to have their birth registered; (b) parental care, or appropriate alternative care when separated from its parents; (c) free and compulsory basic education; (d) be protected from discrimination, harmful cultural rites and practices, exploitation, neglect or abuse; (e) be protected from all forms of exploitation and any work that is likely to be hazardous or adverse to the child’s welfare; (f) adequate nutrition, shelter, basic health care services and social services; (g) not to be subjected to violence or to be treated or punished in a cruel, inhuman or degrading manner in schools and other institutions responsible for the care of children; (h) not take part in hostilities or be recruited into armed conflicts and be protected from situations of armed conflict; (i) not be arrested or detained except as a measure of last resort, and, when arrested or detained, to be treated in a manner that promotes the child’s dignity and self-worth and pays attention to the child’s rights, including but not limited to the right to— (i) be detained only for the shortest appropriate period; (ii) be kept separate from adults in custody; (iii) be accorded legal assistance by the State; and (iv) be treated in a manner, and be kept in conditions, that take account of the child’s disability, if any, gender and age; (j) have an advocate assigned to the child by the State and at State expense in proceedings affecting the child, other than those contemplated in paragraph (k) if injustice would otherwise result; (k) know of decisions affecting the child, express an opinion and have that opinion taken into account, taking into consideration the age and maturity of the child and the nature of the decision. (7) Children with special needs are entitled to the special protection of the State and society.   Family The family is the natural and fundamental unit of society and the necessary basis of social order.  Every adult has the right to marry a person of the opposite sex, based upon the free consent of the parties. Every adult has the right to found a family. Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.  Parliament shall enact legislation that recognizes— (a) marriages concluded under any tradition, or system of religious, personal or family law; and (b) personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that such marriages or systems are consistent with this Constitution.   Persons living with disabilities  Persons with disabilities are entitled to enjoy all the rights and fundamental freedoms set out in the Bill of Rights, and to be full,participants in society. Persons with disabilities have a right to— (a) respect and human dignity including to be treated, addressed and referred to, in official or private contexts, in a manner and in words that are not demeaning or derogatory; (b) have access to education and to institutions and facilities for persons with disabilities that are as integrated into society as a whole as is compatible with the interests of those persons; (c) have reasonable access to all places accessible to the public, to public transport and to information and communications; (d) use of sign language, Braille and other appropriate means of communication; (e) participate in decision-making at all levels; (f) have equal rights to inherit, access, and manage property; (g) have access to materials and devices to overcome constraints arising from those disabilities; and (h) treatment and opportunities in all spheres of life that are both fair and equal to those of other members of society.   Freedom and security of the person  Every person has the right to freedom and security of the person, which includes the right— (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial, except during a state of emergency (c) to be free from all forms of violence from either public or private sources; (d) not to be subjected to torture in any manner, whether physical or psychological; and (e) not to be subjected to corporal punishment or to be treated or punished in a cruel, inhuman or degrading manner.   Slavery, servitude and forced labour  A person shall not be held in slavery or servitude. A person shall not be required to perform forced labour.   Privacy  Every person has the right to privacy, which includes the right not to have— (a) their person or home searched; (b) their property searched; (c) their possessions seized; (d) information relating to their family or private affairs unnecessarily  or revealed; or (e) the privacy of their communications infringed.   Freedom of conscience, religion, belief and opinion  Every person has the right to freedom of conscience, religion, thought, belief and opinion. Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, observance, including observance of a day of worship, practice or teaching. (3) Every religious community is entitled to establish and run places of education at its own expense and to provide religious instruction for persons of that community in the course of providing the education. (4) Religious observances and religious instruction may be conducted at State or State-aided institutions, if— (a) they are conducted on an equitable basis; and (b) attendance at such observances or religious instruction is voluntary. (5) A person may not be denied access to any institution, employment or facility or the enjoyment of any right, for reasons of that person’s religious beliefs. (6) A person shall not be compelled— (a) to take an oath that is contrary to that person’s religion or belief or that involves expressing a belief that the person does not hold; (b) to take an oath in a manner that is contrary to that person’s religion or belief or that involves expressing a belief that the person does not hold; (c) to receive religious instruction or to take part in or attend a religious ceremony or to observe a day of rest or other observance that relates to a religion that is not that person’s religion; (d) to perform, observe or undergo a rite or a religious practice; (e) to disclose that person’s beliefs or religious convictions; or (f) to engage in any other act that is contrary to that person’s belief or religion.   Freedom of expression  Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.    The right referred to in clause (1) does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or    In the exercise of the freedom of expression, every person shall respect the rights and reputation of others.   Access to information Every citizen has the right of access to— (a) information held by the State; and (b) any information that is held by another person and that is required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to demand the correction or deletion of untrue or misleading information that affects that person.   Freedom of association Every person has the right to freedom of association.  The right extends to the formation, operation and continued existence of organisations.  A person shall not be compelled to join an association of any kind.   Assembly, demonstration, picketing and petition Every person has the right, peaceably, unarmed and without the requirement of permission, to assemble, to demonstrate, to picket, and to present petitions to public authorities.   Political rights Every citizen is free to make political choices, which includes the right to— (a) form, or participate in forming, a political party; (b) participate in the activities of, or recruit members for, a political party; and (c) campaign for a political party or cause. (2) Every citizen has the right to free, fair and regular elections for— (a) any elective public body or office established under this Constitution; and (b) any office holder of any political party of which the citizen is a member. (3) Every adult citizen has the right to— (a) be registered as a voter and to vote by secret ballot in any election and in any referendum; and (b) stand for public office, or office within a political party of which they are a member, and if elected, to hold office.   Freedom of movement and residence Every person has the right to freedom of movement. Every person has the right to leave Kenya. Every citizen has the right to enter into, remain in and reside anywhere in Kenya.   Freedom of trade, occupation and profession  Every person has the right to choose a trade, occupation or profession. The practice of a trade, occupation or profession may be regulated by legislation.   Protection of right to property Subject to Article 82, every person has the right to acquire and own property in any part of Kenya, either individually or in association with others. Parliament shall not enact a law that permits the State or any person to— (a) arbitrarily deprive a person of property of any description; (b) arbitrarily deprive a person of any interest in, or right over, such property; or (c) limit or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds set out in Article 37(1). (3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless that deprivation— (a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Seven; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution or an Act of Parliament that— (i) requires prompt payment in full, of a just compensation to the person, before the property is taken; (ii) allows any person who has an interest in, or right over, that property a right of access to a court of law. (4) Provision may be made for compensation to be paid to occupants in good faith of the land so acquired who may not hold title to that land. (5) The right recognized and protected under this Article does not cover any property that has been unlawfully acquired.   Labour relations  Every person has the right to fair labour practices. (2) Every worker has the right to— (a) fair remuneration; (b) reasonable working conditions; (c) form, join or participate in the activities and programmes of a trade union; and (d) go on strike. (3) Every employer has the right to— (a) form and join an employers’ organisation; and (b) participate in the activities and programmes of an employers’ organisation. (4) Every trade union and every employers’ organisation has the right to— (a) determine its own administration, programmes and activities; (b) organise; and (c) form and join a federation. (5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.   Health  Every person has the right to health, which includes the right to health care services, including reproductive health care. No person may be refused emergency medical treatment.   Education  Every person has the right to education. The State shall institute a programme to implement the right of every child to free and compulsory pre-primary and primary education and in so doing shall pay particular attention to children with special needs. The State shall take measures to make secondary and post-secondary education progressively available and accessible.   Housing Every person has the right to accessible and adequate housing and to reasonable standards of sanitation.   Food Every person has the right to be free from hunger and to adequate food of acceptable quality.   Water  Every person has the right to clean and safe water in adequate quantities.   Environment Every person has the right to— (a) a clean and safe environment; (b) have the environment protected, for the benefit of present and future generations, through legislative and other measures that— (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources; and (c) access information about the environment.   Language and culture Every person has the right to use the language, and to participate in the cultural life, of that person’s choice.    A person shall not compel another person to perform, observe or undergo any cultural practice or rite.   Access to justice The State shall ensure access to justice for all persons and where any fee is required, it shall be reasonable and shall not impede access to justice.   Fair hearing Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, where appropriate, other independent and impartial tribunal or body. Every accused person has the right to a fair trial, which includes the right— (a) to be presumed innocent until the contrary is proved; (b) to be informed of the charge with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence; (d) to a public trial before a court established under this Constitution; (e) to have the trial begin and conclude without unreasonable delay; (f) to be present when being tried unless the conduct of the accused makes it impossible for the trial to proceed; (g) to choose, and be represented by, an advocate and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (i) to remain silent, and not to testify during the proceedings; (j) to adduce and challenge evidence; (k) not to be compelled to give self-incriminating evidence; (l) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; . Human Rights and Gender Commission  There is established the Human Rights and Gender Commission. The functions of the Commission are to— (a) Promote respect for human rights and develop a culture of human Rights, development of human rights in all sectors, monitor the implementation of human rights programmes; seek redress for human rights violation LAND AND PROPERTY   Legislation on land  Parliament shall enact legislation to—   (e) Regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and at the termination of marriage; (k)Protect the dependants of deceased persons holding interests in any land including the interests of spouses in actual occupation of land;   Political Parties Fund The purpose of the Political Parties Fund is to provide financial support to registered political parties. - A political party with at least one seat in the National Assembly or a county assembly shall be eligible for financial support from the Fund. -A party shall not be eligible for financial support from the Fund if more than two thirds of its registered national office holders are of the same gender.   THE LEGISLATURE Parliament of Kenya shall consist of the Senate and the National Assembly.   Membership of the Senate The Senate shall consist of— (a) members elected one each by the counties, (b) women elected two each by the regions, the elected members of the county assemblies in each region acting as the electoral college; (c) persons with disabilities or falling within the category of youth, elected one each by the regions; (d) the Speaker, who shall be an ex officio member.    Nothing in this Article shall be construed as excluding women from contesting an election under clause (1)(a).   Membership of the National Assembly The National Assembly shall consist of— (a) members elected one each by the constituencies as may be provided by law; (b) women elected one each by the counties, each county comprising a single member constituency; (c) seven members who shall be persons with disabilities, no more than four of whom shall be of the same gender; (d) seven members elected by marginalized communities, marginalized groups and workers; and (e) the Speaker, who shall be an ex officio member.    Notwithstanding this Article, no more than two thirds of the members of the National Assembly shall be of the same gender.   DEVOLVED GOVERNMENT Devolved governments established by this Constitution reflect the following principles— (a) devolved governments shall be based on democratic principles and the separation of powers; (b) devolved government shall have reliable sources of revenue and autonomy to govern and deliver services effectively; and (c) no more than two thirds of the members of representative bodies in each devolved government shall be of the same gender.     Members of county assembly  A county assembly consists of— (a) members elected one each for the wards, either directly or through proportional representation, with such boundaries, as are prescribed by Act of Parliament, passed after taking account of recommendation of the Independent Electoral and Boundaries Commission; (b) such number of special seat members, in proportion to the votes received by each political party under clause (1)(a), as to ensure that no more than two-thirds of the membership of the assembly are of the same gender; (c) such number of members of marginalized groups, including persons with disabilities, minorities, older persons and youth, in proportion to the votes received by each political party   Gender balance and diversity Not more than two-thirds of the members of any assembly constituted under this Chapter are to be of the same gender.