July 11 was the 20th anniversary of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, the Maputo Protocol, which recognises comprehensive rights for women and girls in Africa. Adopted by the African Union in 2003, it reflects African nations' commitment to gender equality, human rights and social justice.
It addresses the unique challenges faced by African women by requiring elimination of discrimination and promotion of access to education, healthcare, and economic opportunities. It guarantees extensive rights to women, including the right to take part in political processes, to social and political equality with men, improved autonomy in their reproductive health decisions and an end to harmful traditional practices such as female genital mutilation.
By June 2023, 44 out of the 55 African Union member states had ratified the Protocol with the Republic of South Sudan, being the 44th to do so. Kenya ratified (that is finally agreed to) the Protocol in October 2010. The Protocol forms part of the laws of Kenya because of Article 2(6) of the Constitution of Kenya.
The Protocol in Kenya
The Protocol is not just part of Kenyan law; much of it is mirrored in the Constitution. For instance, its prohibition against discrimination against women in the Protocol is consistent with the provisions in Article 27 of the Constitution on equality and freedom from discrimination. Article 27 (6) of the Constitution obligates the government to develop laws, including affirmative action programmes and policies to address the past discrimination that women have faced.
There has been an increase in women’s participation in political and decision-making processes through national gender and development strategies as envisioned by Article 9 of the protocol. Article 27(8) of the Constitution provides that the state must make laws to implement the two-thirds gender principle.
Articles 90, 97, 98 and 177 are constitutional provisions that take concrete steps to achieve this principle in elected bodies. The recognition of the right to dignity in the Protocol is also reflected in Article 28 of the Constitution. The Protocol’s requirement that women and men enjoy equal rights in marriage and can end that marriage is also guaranteed under Article 45 of the Constitution.
Through court decisions, women’s rights as enshrined in the Protocol have become a reality for many women in Kenya. In 2020 the High Court ordered the government to pay compensation of Sh4 million to each of four survivors of sexual and gender-based violence following the 2007 elections.
The four were compensated as they had proved violation of their constitutional right. The Kenyan state had failed to carry out its positive obligation to investigate and prosecute violations of the rights to life, the prohibition of torture, inhuman and degrading treatment, and security of the person.
The High Court, in March 2021, upheld the constitutionality of the Prohibition of Female Genital Mutilation (FGM) Act. The petitioner, a medical doctor, had wanted the Act declared invalid (at least when it prevents adult women from freely consenting to undergoing FGM).
The court also found that the Act needs to be strengthened to prohibit type 4 FGM which includes total removal of the female external genitalia or other injury to the female genital organs for non-medical reasons. The court stated that the Maputo Protocol expressly provides for the right to health of all women and the promotion and respect of women’s sexual and reproductive health.
The court further stated that not all traditional practices are prohibited, but only those that undermine international human rights standards.
Kenya does not accept the whole Protocol.
A few challenges remain. Kenya does not consider itself bound by Article 10(3) of the Protocol that requires Member States to reduce military expenditure in favour of social development and the promotion of women.
It is also not bound by Article 14(2)(c) which provides “State parties shall take appropriate measures to protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”
Kenya justified its reservation on Article 14(2)(c) on the grounds that it is inconsistent with Article 26 (4) of the Constitution of Kenya that permits abortion only when emergency treatment is needed, the life or health of the mother is in danger or if permitted by any other written law. The case is, with respect, questionable because the Constitution allows a written law to expand the scope of abortion.
Courts have made decisions referring to the provisions of the Protocol and its interlinkage to the Constitution. In a case filed by FIDA-Kenya and decided on June 12, 2019, the High Court clarified that Article 43(1)(a) of the Constitution encompassed the right to complete physical, mental, and social wellbeing.
That provision states that “every person has the right to the highest attainable standards of health which incorporates the right to health care services, including reproductive health care,” Specifically where pregnancy resulted from rape and, in the opinion of a trained health professional, endangered the physical, mental, and social well-being of the woman or girl, then abortion is permissible.
In my view this court decision is progressive jurisprudence. This is because there are steep costs associated with unintended pregnancy to an individual’s health, education and their future. Unintended pregnancy also contributes to high rates of unsafe abortion and related maternal deaths.
The African Commission on Human and Peoples’ Rights welcomed the High Court decision, as being in line with Article 14 of the Maputo Protocol as well as the Guidelines to Combat Sexual Violence urging State Parties to “adopt necessary measures to create favourable conditions to enable and facilitate access to medical abortion for minors who are victims of sexual violence.”
Strides Kenya has taken
To realise the rights under Articles 21(2) and 43 of the Constitution, laws such as the Protection against Domestic Violence Act 2015, which borrows from the Maputo Protocol, and the Prohibition of Female Genital Mutilation 2011 which speaks to Articles 4(2)(a), (g) and 5(b) of the Maputo Protocol have been enacted.
The latter Act has expanded the existing laws on female genital mutilation offences from those in the Children’s Act that were limited to protecting only children from FGM. The FGM Act expanded this protection to include adult women.
Kenya has made strides towards setting up a legal framework regarding reproductive rights. There have been two attempts to pass the Reproductive Health Care Bill in 2014 and in 2019 to breathe life into Article 43’s recognition of reproductive rights.
The Bill provided a framework governing access to family planning, safe motherhood, termination of pregnancy, reproductive health of adolescents and assisted reproduction. It stipulated that every health care provider obliged to provide family planning information and services to women who need them.
The Bill also had provisions ensuring access to adolescent-friendly reproductive health services but requiring parental consent. It also covered the issue of assisted reproduction services to address infertility. It set out rules for providers as well as the rights of donors, surrogate mothers and patients.
It has, however, not passed, including for lack of public awareness and misinformation on what the Bill entailed and lack of political good will. We also have the Assisted Reproductive Technology Bill 2022, which has been published and seeks to regulate assisted reproductive technology and provide a framework for the protection and advancement of assisted reproductive technology services for every person.
Kenya has made significant strides in promoting gender equality and women’s rights through enactment of laws and policies. The Protocol did encourage people to vouch for women’s rights in the Constitution and there have been efforts to implement them since. However, progress is still slow, hampered by inadequate implementation of laws, weak accountability mechanisms and slow transformation of discriminatory and patriarchal gender norms, attitudes and practices.
Legal Fellow at Katiba Institute under the Waging Justice for Women
Fellowship by the Clooney Foundation for Justice
