Constitutional Referendum Part IV

The next presentation by Dannitah Ghita from the League of Kenyan Women Voters dealt with the status of women in the constitution. She felt that overall there was a “net loss” for women when you compared the Bomas Draft with the Wako Draft. She listed the following as some of the gains for women:

o Citizenship – women can now confer citizenship on a spouse or a child, however, in Bomas was automatic but in Kilifi is not guaranteed but is subject to approval.
o Bill of Rights – recognizes that women and men have equal rights (section 38).
o Specific protection for property rights
o Affirmative action – 1/3 of the party lists reserved for women (but less than what was proposed in Bomas in terms of its application e.g. Bomas extended to government commissions).
o At no time shall parliament consist of more than 2/3 of one gender.
o Constitution supercedes customary law where it conflicts as far as discrimination against women.

Some of the losses:
o Under Bomas, gender balance was a criteria for political party funding. Kilifi/Wako, mentions gender balance as important but not mentioned as a specific criteria.
o Abortion is not permitted without an act of parliament even in cases where the woman’s health is in danger.

3-part cribbed from FES handout comparison.

1. Current Constitution

– Bill of Rights does not accord emphasis to the rights of women.
– Provisions on citizenship discriminate against women (sec 89 and 90)
– Legal status of women negated by exceptions relating to recognition of customary law in respect to personal law matters.
– Gender equality only recognized with respect to nominated MPs.
– No party funding and no links to gender balance
– No guaranteed seats on constitutional commissions or other public bodies.

2. Bomas Draft
– Bill of Rights emphasizes the rights of women and minorities – Chapter 6
– Prohibition of any law (including customary law) that treats men and women differently.
– Property rights of women accorded recognition and protection
– At least 1/3 of the affirmative action seats reserved for women. Representation in the senate include at least two women from each region (lost in Kilifi)
– Gender balance to be a criterian for political party funding.
– Guaranteed seats on constitutional commissions and other public bodies (lost in Kilifi)

3. Kilifi/Wako Draft
– Bill of Rights emphasizes right to equal treatment and the need for special measures to redress imbalances.
– Prohibition of any law (including customary law) that treats men and women differently.
– Property rights of women accorded special protection.
– Special seats for women and at least 1/3 of the party list seats reserved for women
– Gender equality and equity required in principle but no relationship to party funding
– No guaranteed seats on constituional commissions or other public bodies.