Discrimination of Women through Cultural Practices:Focus on Women in the Kenya TJRC Report

The formation of the Kenya Truth Justice and Reconciliation Commission (TJRC) was a recommendation of the Kenya National Dialogue and Reconciliation Committee after the aftermath of the 2007 post electoral violence. The commission was formed in 2008 with a mandate to investigate past human rights abuses since independence in 1963 until February 2008. Its constituting Act (the Truth, Justice and Reconciliation Commission Act, act no. 6 of 2008) gave the commission the mandate to carry out investigations, to foster truth telling and reconciliation; reparations for victims; gender justice and elements of institutional reforms. It would also recommend prosecutions of those found responsible for gross violations of human rights.

In its final report, the Commission places a special focus on women. The Chapter on Gender and Gross Violation of Human Rights: Focus on Women highlights the different ways that women experience historical injustices and gross violation of human rights.  It also focuses on the special burdens such injustices and violations placed on women as well as the resilient, even triumphant, spirit that many women exhibited in the face of such adversity. In this chapter, the report starts by commenting on the unequal status of men and women in Kenya. It avers that ‘Women have always constituted slightly more than half of Kenya’s population. Despite their strength in numbers, they have not enjoyed equal status with men.’[1]The report states that with the recent constitutional, legislative and institutional reforms aimed at tackling gender discrimination, women have made a gradual advancement but they still continue to be subjects of discrimination.

A testimony by Florence NabwalaWanamole confirmsthe status of women within the Bukusu ethnic community. In this community, preference is given to the boy child. Florence narrated that:

‘The Bukusu girl child is marginalised from the time she is born. When the mother goesto deliver in hospital or at home and the family hears that it is a baby girl, they fold their faces and start saying they wish she had been a boy. If this woman continues getting female children up to the third or fourth born, the husband will not discharge her from hospital. Even her mother in-law will not go for her. They will leave her there because she only bears girls and she is bringing shame to the community. A female child in the Bukusu community starts being discriminated right from birth.’[2]

From this statement we can see that a female child is born into a society that is structured to discriminate her. Thus discrimination against women in Kenya finds justification within cultural spheres.

According to the report discrimination against women has often been manifested through cultural practices. Some of the practices include the payment of dowry or bride price, widow inheritance, child marriages and female genital mutilation.The Commission heard stories of women who testified before it as being victims of these negative cultural practices. These women found the practices undermining as they keep them in a subordinate status and exposes them to human rights violations. One woman who testified on the subject of bride price stated that:

‘Dowry payment has contributed to the abuse [of women]. Some have commercialized it by saying, ‘my daughter is a university graduate, so bring Ksh 400,000 as dowry’, and you can see people discussing as if they are selling something and the men are the ones who discuss, not even the women. […] When it comes to the dowry of our daughters, we should be the ones to talk, not them and it should be minimal, just to seek blessings and not for somebody to think that they own you. Because they paid that dowry, now you are his property. No, we do not want to be the property of somebody.’[3]

Other practices noted by the commission include disinheritance, preference for boys, polygamy, cultural traditions relating to burial and chastisement of wives. According to the commission, greater consequences of violations of human rights were felt by the most vulnerable women. These include: women with disabilities, women living with HIV/Aids, women in the rural areas and women from minority and indigenous communities.

The Commission finds that although discrimination is deeply rooted in patriarchal cultural practices, the state failed to curb these practices. The Commission notes that the state can play a very important role in eliminating this practices as well as empowering women. Among its many recommendations, the TJRC calls on the government to the Gender and Equality Commission to step up measures to raise awareness about harmful cultural practices that adversely affect women’s enjoyment of human rights.

By Brenda Mwale

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[1]The Trith Justice and Reconciliation Report Vol 2C at Page 1.

[2] The Trith Justice and Reconciliation Report Vol 2C at Page 19.

[3]The Trith Justice and Reconciliation Report Vol 2C at Page 20.

A Woman’s Rights Perspective on Gender Equality and Discrimination under the Kenyan Constitution

World over, the problem of equality and gender discrimination has been central to any women’s rights debate. Several human rights instruments embody the stance that discrimination against women is unlawful and against the fundamental principles of equality and human dignity[1].  States are therefore mandated to take all necessary measures to eradicate discrimination and otherwise promote equality. Such measures may include legal and policy processes. In Kenya, there has been remarkable development in the realization of women’s rights. One of the greatest achievements is the recognition of their rights under the Constitution, which is the supreme law of the land. Such recognition is a stepping stone for further expansion in enjoyment of women’s rights in the country.

One of the basic tenets of the Constitution important to the subject of women’s rights is that of equality. In its Preamble, the Constitution recognizes the aspiration of all Kenyans for a government based on values of human rights, equality, freedom, democracy, social justice and the rule of law. The Constitution proclaims that every person is ‘equal before the law and has the right to equal protection and equal benefit of the law.’ It goes on to elaborate the issue of equality by stating that equality includes the full enjoyment of all rights and fundamental freedoms[2]. From a gender perspective therefore, both men and women have an equal right to fully enjoy the fundamental rights and freedoms enshrined under the Constitution. In the same light, Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

In connection to the issue of equality, the Constitution prohibits discrimination on all grounds including sex. Whichever form of discriminations 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’ is prohibited. [Emphasis]

At the International level, the United Nations Convention on the Elimination of all forms of Discrimination against Women specifically prohibits discrimination on grounds of sex. It further declares and I quote

 “… discrimination against women violates the principles of equality of rights and respect for human dignity, [It] is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, [Discrimination] hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and if humanity…”

We can therefore deduce that the Kenyan Constitution is in line with international norms as far as the ‘subjective prohibition’ of discrimination is concerned. In a bid to ensure the accomplishment of gender equality and non-discrimination, the Constitution establishes the Kenya National Human Rights and Equality Commission whose functions  include inter alia to ‘promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development’. Accordingly, the Commissions role in furthering women’s right is pivotal. This is because for a long time women have been victims of discrimination and in some instances agonized by their unequal status before the law.

Clearly from the aforesaid, it is evident that the Constitution addresses the plight of women concerning equality and discrimination. It provides a clear-cut operative law which can be used to challenge discrimination and also formulate laws that are not gender biased. However, it is not enough to only mention guarantees of equality. To ensure that it is achieved, the law ought to be implemented according to the legislators’ intentions. This will ensure that women are not bared from enjoying their rights due to discrimination.

 By Brenda Mwale

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[1] United Nations Convention on the Elimination of all forms of Discrimination

[2] See Article 27 of the Constitution. 

Real Exploitation of Women in Kenya

For the past five years, Achieng(not real name), a 35-year-old widow and mother of six, has sold fish on the Kenyan shores of Lake Victoria; like many women in the fish trade, Achieng often has to have sex with fishermen in order to get the best catch of the day, a system known in the local Luo language as 'jaboya'.

"When you are a woman and you want to get into the business of selling fish, you must be ready to lose your pride and use your body for bargaining," she told IRIN/PlusNews. "Being ready to give sex as and when it is needed by the fishermen... it guarantees your survival here on the beach."

'Jaboya' has long been associated with the high levels of HIV infection in Kenya's western Nyanza Province, where HIV prevalence is over 14.9 percent, double the national average of 7.4 percent. It is even higher among fishing communities. The Kenya HIV Prevention Response and Modes of Transmission Analysis 2009 reported that HIV prevalence among fishing communities stands at 30 percent, while an estimated 25 percent of all new infections in Nyanza are attributed to this group.

An estimated 27,000 women are involved in the fish trade in Nyanza either directly or indirectly, according to the Ministry of Fisheries.

Achieng says she is aware of the risks, but the immediate needs of her family override any concern she may have about contracting HIV.

"You know you can get HIV... but then you remember you have a family that needs to be provided for, and you say, let me die providing for them," she said.
According to Charles Okal, the provincial AIDS and sexually transmitted infections coordinator for Nyanza, while efforts to reach out to fishing communities with HIV prevention messages have begun to show results, the continued poverty of women means they remain vulnerable to 'jaboya'.

"Fish trade that goes along with sex-for-fish continues to be one of the greatest challenges in the prevention of HIV in Nyanza... There are still challenges which involve the economic and social vulnerabilities of the women involved in the trade," he said.

Economic empowerment

A recent donation of six boats to women's groups in Nyanza by the US Peace Corps shows some of the ways 'jaboya' can be addressed; the women are able to fish for themselves, eliminating dependence on fishermen.

"When you have nothing, those who have something must tell you to bend over backwards for them. Now we have boats and we will no longer be at anybody's mercy," Millicent Onyango, one of the beneficiaries of the US Peace Corps' "No Sex for Fish" project.

According to Okeyo Owuor, director of the Victoria Institute for Research on Environment and Development, which is part of the initiative, empowering women economically is key to ending the dangerous fish-for-sex trade. "These women need fish but they don't own any boat. This means they have to play along with whoever has the boat and these are men who will demand for sex before giving any fish. But when you empower them to own the boat, then they have the ultimate power to say no to sexual demands," he said.

"Six boats might look small but many such initiatives can make an impact in ending the sex-for-fish trade if replicated over time. It is important to start from somewhere," he added.

Many of the women trading in fish across Lake Victoria's landing sites have formed groups to help them save money to buy their own fishing equipment.

"We want to help ourselves by putting some of our savings aside so that when we have enough, we can buy our own boats and nets and help each other. So we will have nearly all women who are at the beaches own a boat either individually, or as a group," said Lillian Rajula, the leader of one such group.

According to Nyanza AIDS coordinator Okal, economic programmes must go hand in hand with other HIV prevention methods like the promotion of voluntary medical male circumcision, condom use and behaviour change communication. 

"Apart from the need to empower the women, behaviour change communication targeting men is important so that they look at the women as business partners and not sex partners; these kind of efforts are ongoing and are being embraced, albeit slowly," he said.

By Sreejesh Kaipully