The National Council for Persons with Disabilities (NCPWD) in collaboration with the Ministry of Gender, Children and Social Development and partners held a National Conference on Accessibility and Disability Rights from 25th to 27th June 2012 at Kenyatta International Conference Centre, Nairobi. The conference was aimed at achieving "...a barrier-free society for all" through the implementation of the Persons with Disabilities Act, 2003. Both the private and public sector were key players in the conference.
By virtue of Article 2(5) of the Constitution which provides that the general rules of international law shall form part of the law of Kenya and Article 2(6) which states that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution, the UN Convention (CRPD) on the rights of persons with Disability is applicable as law in Kenya. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity
Under article 21 of the Constitution, the state as well as every state organ has a duty to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. It goes further to mandate all state organs to address the needs of vulnerable groups within society including persons with disabilities.
It had been noted that building codes, physical planning laws and standards unresponsive to the needs of Persons with Disabilities. The construction and building environments posed many challenges for Persons with Disabilities to physically access public buildings, roads and other infrastructure. Public transport laws neither facilitate modification of Public Service Vehicles and they are inaccessible to persons with physical impairments.
Electronic, print media and other modes of communication are generally inaccessible to people with visual, hearing or intellectual disabilities. This prevents them from participating or benefiting from information in these channels. It was common consensus that in order to overcome these communication barriers, it was imperative to introduce forms accessible by persons with impairments. These include; brailing of printed information, sign language interpretation, eye-catching simplified messages, well illustrated and easily repeatable information. These ought to be delivered in accessible public settings.
Currently, Kenya has a legal framework that fully recognizes and protects people's rights. However, there are still segments of our business sector and society that are resisting the full inclusion of persons with disabilities due to cost, complexity, fear of change, lack of knowledge, and misguided perceptions. The government should increase its efforts to ensure that Constitutional Values and Human Rights principles are integrated in all national, sectoral and county policies legislation as well as administrative procedures
Women and men with disabilities can and want to be productive members of society. Promoting a more inclusive society and employment opportunities for people with disabilities requires improved access to basic education, vocational training relevant to labour market needs and jobs suited to their skills, interests and abilities, with adaptations as needed. There is the need to dismantle barriers - making the physical environment more accessible, providing information in a variety of formats, and challenging attitudes and mistaken assumptions about people with disabilities.
The reality however is that persons with disabilities can hardly access any specialized support services especially in the rural and urban slums, where the majority live. Their rights are not recognized and their access to even the most basic of needs fully depends on the support of a third party.
Solutions to most of their suffering are known; but inadequate and meager resources have hindered provision of their most needed basic support services.
The Government of Kenya has adopted a number of laws and policies pertaining to people with disabilities, including their right to productive and decent work and basic services. The Constitution being the mother law of the land categorically provides under Article 54 for persons with disabilities. It states that; A person with any disability is entitled;
to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;
to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
to reasonable access to all places, public transport and information;
to use Sign language, Braille or other appropriate means of communication; and
to access materials and devices to overcome constraints arising from the person's disability.
The Constitution also provides that the State should ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.
Persons with Disabilities in Kenya live in vicious cycle of poverty due to stigmatization, limited education opportunities, inadequate access to economic opportunities and access to the labour market.
The Persons with Disabilities Act, 2003, is a comprehensive law covering rights, rehabilitation and equal opportunities for people with disabilities. It creates the National Council of Persons with Disabilities as a statutory organ to oversee the welfare of persons with disabilities. The Act aims to ensure that Persons with Disabilities' issues and concerns are mainstreamed.
The Government has the responsibility to take steps towards the full realization of the rights of persons with disabilities as set out in the Persons with Disability Act, 2003. The Act provides that;
No person shall deny a person with a disability access to opportunities for suitable employment.
A qualified employee with a disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able-bodied employees.
An employee with a disability shall be entitled to exemption from tax on all income accruing from his employment.
The National Council of Persons with Disabilities shall endeavor to secure the reservation of five percent of all casual, emergency and contractual positions in employment in the public and private sectors for persons with disabilities.
The Act also provides that No person or learning institution shall deny admission to a person with a disability to any course of study by reason only of such disability, if the person has the ability to acquire substantial learning in that course.
Learning institutions should take into account the special needs of persons with disabilities with respect to the entry requirements, pass marks, curriculum, examinations, auxiliary services, use of school facilities, class schedules, physical education requirements and other similar considerations.
More special schools and institutions, especially for the deaf, the blind and the mentally retarded, should be established to cater for formal education, skills development and self reliance.
The Council should work in consultation with the relevant agencies of Government to make provisions in all districts for an integrated system of special and non-formal education for persons with all forms of disabilities and the establishment where possible of Braille and recorded libraries for persons with visual disabilities.
Persons with disabilities are also entitled to a barrier- free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility.
The law clearly provides that a proprietor of a public building shall adapt it to suit persons with disabilities in such manner as may be specified by the Council. All proprietors of public buildings shall comply within five years since the Act came into operation.
An operator of a public service vehicle shall also adapt it to suit persons with disabilities in such manner as may be specified by the Council. All operators of public service vehicles should comply with this provision within two years after this section comes into operation.
With regards to voting, all persons with disabilities shall be entitled at their request, to be assisted by persons of their choice in voting in presidential, parliamentary and civic elections. A person who undertakes to render assistance shall do so strictly in accordance with the instructions of the voter.
Polling stations should be made accessible to persons with disabilities during elections, and such persons shall in addition be provided with the necessary devices and assistive devices and services to facilitate the exercise of this right under this section.
The Law also provides that all television stations shall provide a sign language inset or sub-titles in all newscasts and educational programmes, and in all programmes covering events of national significance.
All persons providing public telephone services should as far as possible install and maintain telephone devices or units for persons with hearing disabilities and tactile marks on telephone sets to enable persons with visual disabilities to communicate through the telephone system.
Employment Act 2007 (Act No. 11 of 2007) on the other hand contains elaborate provisions aimed at protecting persons from discrimination in the employment sphere. The Act prohibits discrimination in employment within three main aspects:
promotion of equality of opportunity in employment;
elimination of discrimination in any employment policy or practice, including against prospective employees based on their race, color, sex, ethnic origin, HIV status, disability, pregnancy; and
the payment of equal remuneration for work of equal value.
Persons with disabilities are entitled to a barrier-free and disability-friendly environment for them to access buildings, roads and other social amenities.
Disability rights are Human Rights. Everybody has a role to play to make our society barrier-free for all. The council should ensure that they serve Adjustment Orders upon proprietors of public buildings, public transport operators and providers of communication and information services non-conformity to the accessibility requirements of the persons with Disabilities Act.
Productive and decent work enables people with disabilities to realize their aspirations, improve their living conditions and participate more actively in society. Ensuring a disability perspective in all aspects of policy and labour legislation, effective implementation and enforcement of existing disability laws and policies and providing for equal employment opportunities and training are among the factors that contribute to the reduction of poverty and to the social and economic inclusion of people with disabilities in Kenya.
In the wake of the ongoing amendments that have evoked mixed reactions from Kenyans, it is a noble consideration to uphold the spirit of the Constitution which establishes certain strict checks and balances and enshrines public participation in the legislative process.
The Parliament passed the Statute Law (Miscellaneous Amendments) Bill, 2012 published in Kenya Gazette Supplement No. 34 (Bills No. 17). This Act of Parliament purports to make minor amendments to statute law, as and when necessary for the proper functioning of various creatures of statute.
AMENDMENTS TO THE ELECTIONS ACT, 2011
The proposed amendment was in respect to section 22 (1) of the Elections Act, 2011 which purported to lower the qualifications for nomination of candidates from the requirement of a degree (post secondary school qualification ) to the minimum of a secondary school education. This move has since been met with an uproar emancipated from the public, decrying the whimsical amendment. Consequently, the requirement of a parliamentary degree to hold position in the National Assembly and the Senate has been recalled. Presently, amongst the requirements in the other arms of government which include the Judiciary, Executive and Public Service is a degree. If the degree requirement stands, 80 of the current MPs will be ineligible to defend their parliamentary seats in the 2013 general elections. The spirit behind the minimum education conditions was efforts to ensure that those entrusted with the noble task of legislating had some quantifiable academic requirement s that can assist them understand the basics of law making.
Another proposed amendment to section 22 of the Election Act 2011 is to allow presidential candidates and their running mates to concurrently vie for other elective seats. If elected, they would then give up the other seats, occasioning by-elections. The proposed amendment stipulates as follows:- "A person who is nominated as a candidate for election as president or deputy president is nevertheless eligible for nomination and may contest as a candidate for any other election seat in the same election". Section 22 of the Act was intended to give flesh to Article 90 of the Constitution that deals with the allocation of party list seats, by enabling the use of party list nomination criteria to benefit the underrepresented and marginalized groups to have representatives in the legislative assemblies.
The insertion of "name of a candidate" in its proper alphabetical sequence to include a nickname or other unofficial name that a candidate may use alongside his or her official name.
AMENDMENT TO THE POLITICAL PARTIES ACT, 2011
The proposed amendment is aimed at protecting Members of Parliament from being expelled from political parties for supporting other parties until after the next elections. In respect of the proposed amendment, Members of Parliament can defect to other parties other than the one sponsoring them without losing their parliamentary seats. Additionally, MPs may belong to more than one political party. The proposed amendments affect section 41 and 51 of the political parties act, 2011.Prohibiting party hopping was initially intended to act as a safeguard to party discipline and to strengthen political parties.
BENEFICIAL AMENDMENTS
The amendment on the third Schedule, which deals with National Oaths and Affirmations which can now be commissioned by the Independent Electoral and Boundaries Commission (IEBC) staff . This saves the IEBC about 150 million shillings which they could have paid to commissioners of oaths for commissioning oaths of secrecy.
The second positive amendment was on section 108 of the Elections Act requiring balanced and fair share of airtime for candidates and political parties during the campaign period. Thus, both publicly funded and private media are to be fair and balanced in their coverage, since airwaves are a public resource and this requirement is limited to the short official campaign period.
Finally, parliament has also passed an amendment transferring the role of vetting from the Judges and Magistrates vetting Board to the Judicial Service Commission.
One of the contentious issues in the 2010 Constitution debate was Land. With the implementation of Constitution, several laws have been enacted in parliament and among them are the new land laws; the National Land Commission Act (Act No.5 of 2012), the Land Act (Act No.6 of 2012) and the Land Registration Act (Act no. 3 of 2012)
The Land Registration Act repealed the Indian Transfer of Property Act, 1882 (ITPA), the Government Land Act (GLA), the Registration of Titles Act (RTA), the Land Titles Act (LTA) and the Registered Land Act (RLA). These legislations (now repealed) previously governed the registration of transactions in land.
The main challenge posed by the enactment of the new laws is the issue of the form of new documents or instruments. Section 107 of the Land Registration Act (hereinafter "LRA") provides that the instruments previously used for dispositions of interests in land shall continue to be used and the laws applicable continue to be applied until the cabinet secretary makes the regulations contemplated under Section 110 of the LRA. This position is reiterated in the practice instructions issued by the Commissioner of lands. On the other hand, Section 109 of the LRA as read together with the schedule repeals all the laws referred to under Section 107 as previously applicable. This points out to a glaring lack of clarity in the transitional provisions of the new laws and creates uncertainties that have not been cured by the practice instructions. It is important to note that there is neither any provision suspending the repeal of any specific provisions of the laws repealed or saving the operation of some provisions or schedules or regulations made under the former laws. These gaps and the resultant uncertainties will cause substantial delays in land transactions.
The practice instructions also highlight the provisions of section 108 as regards the form of documents to be used before the cabinet secretary makes the regulations under Section 110 LRA. This section has permitted practitioners to make relevant alterations, adaptations, qualifications and exceptions to bring their documents in conformity with the new land laws. However the altering, adapting and qualifying of documents to bring them into conformity with the new laws is likely to cause inconsistencies in the practical application of the law. The practice instruction illustrates the format the documents should take during the transitional period; this raises the question as to whether the format in the instruction should be made available to all practitioners. However, best remedy would be therefore for the minister concerned to come up with the contemplated regulations, notices, forms and notifications.
Another challenge posed by the new land laws regards the titles kept under the repealed GLA or LTA. Title deeds issued under the GLA an LTA will have to be examined and registered afresh under the new laws. This process of examination and registration is outlined under section 105(c) of the LRA. Section 107 on the other hand extends the use of the instruments previously used for dispositions in land under these two Acts. The LRA however does not provide for clear timelines for the examination and fresh registration. The new law leaves undefined the processes and timelines for approval by the government survey department and is silent on whether holders of titles deeds issued under the GLA or LTA are allowed to transact with their titles pending their examination and fresh registration. This is still unclear and will certainly delay any ongoing transactions relating to land held under such title deeds.
The issue of execution and attestation of documents is also key as provided for under sections 44 and 45 of the LRA. The final instructions from the Ministry as regards transitioning from the old regime to the new dispensation clearly points out that both section 44 and 45 do not recognize execution of documents before an Advocate in respect to individual's transactions. The instructions however advice that there is need to ensure that all documents presented for registration are attested to by an advocate of the High Court of Kenya, Magistrate, Judge or Notary Public. Even though it seems proper to ensure that documents or instruments are attested to by an advocate, this attempt to introduce the concept through the practice instructions can be seen as an attempt to amend legislation.
Finally, the uncertainties regarding the process of geo-referencing especially in regard to long term leases are not clearly addressed. The instructions only points out the provisions of Section 107 LRA to the effect that leases of on going projects to be registered without geo-referencing when the new provisions will be fully operational still remains unknown.
This week the President Hon. Mwai Kibaki appointed 47 County Commissioners. These were to replace the previous Provincial Commissioners under the old regime. This action has elicited a heated debate, since it took many by surprise. He based his actions on the transitional clauses in the Constitution. However, with the transitional clauses, the main purpose was to close gaps that may be found while the old Constitution is being phased out and the new one is being implemented.
The main criticism has been that the President did not consult with the Prime Minister prior to making the appointments. Another sector of the critics claim the appointments were not done in a transparent manner, and the public had no opportunity to vet the proposed appointees before they were gazetted. There is also the indication that regional and ethnic balance was not achieved in making the appointments.
The new constitution stipulates that there must be public participation, gender and regional balance and competitive recruitment in all public appointments. In the spirit of the new legal order, these ideals bind all state organs and state officers as provided under Article 10 on national values and principles of governance. Further, under the National Accord which was entrenched in the constitution, the President is required to consult the Prime Minister during appointment, the president acted in total disregard of the National Accord by not consulting the Prime Minister.
The East Africa Centre for Law and Justice holds the opinion, that of all that ail Kenyan society, National Cohesion is actually an urgent need. Rather than opening up new frontiers to this war against unity, the President should use his office to unite Kenya. The appointments were ill-timed, ill-advised and we can ill-afford them. Since the old Constitution is governing the transition of the change in the Executive and Legislature, it would be wise to time the change to coincide with the placements of Governors and County Assemblies. After all, these Commissioners will serve under these, if they are appointed. The Constitution leaves it up to the County Assembly to decide which Civil Servants it will retain, so it is possible, many counties may be content with a Governor, and not want a Commissioner at all. The EACLJ also holds the position that with the huge budget deficit of almost 50%, the upcoming General Election that is tipped to be the most complex and most expensive on so far, and the natural crises facing Kenyans, adding to the wage bill is something we cannot afford to do now. County headquarters have yet to be set up, where will these Commissioners be expected to do their job?
Law Society of Kenya, Federation of Women Lawyers, Constitution Implementation Commission are among some of the groups to publicly criticize the President's move. A suit has even been filed in Court to oppose the same appointments. The President has in the past been challenged on his appointments for example the appointment of Judge Visram as the Chief Justice, among others.
Two or more levels of government established by law
Coordinated yet none is subordinate to the other/ none is an agent of the other.
The governments are independent, separate and autonomous/ self-sufficient yet interdependent.
Level of government created/protected by the constitution
The functions of the governments are also defined by the constitution.
Devolution combines self governance with shared governance
At the local level self-governance is allowed while at the national level decision-making is shared.
It is necessary to have shared institution and infrastructure
Institutions and infrastructure are shared because they also serve and render services to both levels of government.
When devolution is not done well/Poor county governance leads to
More concentration of power to a small elite as well as increased oppression of the poor
Increased human rights violation, corruption and other abuses of public office
Tendency for leaders in devolved governments to reduce participation of the common man to a token level.
Unaccomplished tasks at the county level as counties might prove too small or too large.
Possibility that the weak, fragile and illegitimate state will just re-invent itself at the devolved level
Elites gaining more power to manipulate the masses
Using the position as an avenue for personal enrichment
Using the platform as a dumping ground for political rejects at the national level
The challenges and how the current Laws/Bills attempt to address them.
Devolution entails the transfer of political, administrative and legal authority, power and responsibility from the centralized government unit to some unit at local or regional level. Such a transfer is legal if provided for under the constitution. It is a practice in which the authority to make decisions in certain spheres of public policy is delegated by law to sub-national level. In a devolved system, the units of devolution to which power and authority is devolved or transferred are autonomous from each other, though interdependent functionally.
While devolution is universally desirable and institutionalizes citizen participation in development, planning and management, devolution may have negative implications if implemented in the incorrect manner and with wrong motives. It is worth noting that problems faced in the previous regimes were attributed to the majimbo system of government. This created friction between KADU and KADU.I f a devolution government cannot work, the constitution endorsing this is rendered paralyzed / unenforceable.
While the task force labored to dispense a system that was viable, various errors sufficed. It is generally observed that the Committee of Experts failed to give due regard to matters relating to the sizes of the boundaries which left some counties marginalized. The matter has promoted contention amongst citizens who play an active role in safeguarding their interests. In addition, the task force left a number of the old systems intact such as the local authorities.
The task force conceptualized our devolved government as a unique system of government, neither federal as that of the United States of America nor Unitary. Article 6(2) of the Constitution provides that the national and county levels of governance are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.
The government is viewed as developmental. The questions arising are 'what would be the role of the national government towards development?' ' What would be the role of the county government towards the same?' ' If all powers were conferred to the national government, will development be achieved?' ' Will the same be realized if such exclusive powers are granted to the county governments?'
The task force wanted to override the contention 'who will control what?' and in doing this, they steered away from looking at available resources as strictly county or national but communal. Following this, the bills/laws related refer to resources as 'communal' or 'community'. Some of the shared resources include universities and institutions such The Kenya Institute of Administrators.
While the a task force assumed that the two governments are equal and not hierarchical, the national government has residual powers over county government and it also has some oversight powers in county governments. It is imperative to understand that the county government cannot exist in isolation; the state plays a major role. The international community will want to deal with the state and not the county.
The following Bills are crucial for the realization of devolution in our government:
The County Government Financial Bill 2011
Devolved Government Bill 2011
Intergovernmental Fiscal Relations Bill 2011
Intergovernmental Relations Bill 2011
Transition Bill 2011
Urban Areas and Cities Bill 2011
Some questions raised frequently include:
Which body is mandated to draft the bills?
The committee of experts was not established by the old constitution. The task force works independently and so does the Treasury. However the two can work together and consult. The parliament commences with approving such and the Ministry of Justice, through the office of the Chief Justice documents the bills.
Are Kenyans ready for devolution?
The public as well as aspiring governors and other officials ought to be actively engaged in obtaining information pertaining to this matter. The responsibilities that come with devolution should also be taught. It is important for Kenyans to be educated about devolution before implementing it in order to achieve a competent government whose leaders are accountable to their subjects.
Will devolution separate/ cause division among Kenyans?
Devolution is expected to give Kenyans an opportunity to interrogate/question the amount of resources that we have as a nation, who controls them and how they will be distributed. However, with the availability of resources, the various counties will have to interact and co-exist for their sustainability. For example through agriculture, trade etc.
Recommendations
Dissemination of information pertaining to devolution should be boosted.
The role of CDF in the national and county levels should be clearly spelt out.
The funds allocated to each county should correspond to the needs of the counties.
Citizens should participate in drafting the bills so that they do not appear handicapped.
Kenyans should be careful to elect leaders whose conduct is flawless/corruption free.
In a devolved system, the units of devolution to which power and authority is devolved or transferred are autonomous from each other, though interdependent functionally
Parliament is the law making organ of the government. The new constitution provides for two houses of parliament, these being the SENATE and the NATIONAL ASSEMBLY. Their functions are distinct and set out under the constitution which they have a duty to uphold. The powers of these houses are derived from the people of Kenya.
The main role of parliament is to make legislation. It is the only organ allowed to make laws by the constitution but can issue such powers to other authorities by legislation
The main role of the national assembly members is to debate and resolve matters of concern to the people. In voting there will be a representative to the national assembly from each of the 290 constituencies in the country, 47 women elected as representatives from each county, 12 nominated members according to the proportion of the parties represented and the Speaker, who is an ex officio member.
Individuals vying to be members of the national assembly should be adult Kenyan citizens and be of good moral standing and if they are independent candidates they need at least one thousand signatures from the electorate to verify their candidacy. They are to strictly conform to the guidelines set out in article 99 of the constitution on qualifications and disqualifications for being a member of parliament.
The national assembly members will deliberate over allocation of revenue to the government and will act as an oversight authority on revenue use. It also acts as an oversight body on executive actions and conduct.
Your representative to the national assembly is basically empowered to cater for your interests in the house. Should a member fail to meet the expectations of the electorate, there is a right of recall that can be exercised under article 104 of the constitution.
The senate is comprised of 47 members representing each county in the country, 16 women members who shall be nominated by political parties according to their proportion of members of the Senate, two members, being one man and one woman, representing the youth, two members, being one man and one woman, representing persons with disabilities and the Speaker, who shall be an ex officio member.
The role of the senate is most importantly to serve the interests of the counties and their governments. It participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties and exercises oversight over national revenue allocated to the county governments.
The senate also participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office.
To be elected as a senator one basically needs the same qualifications as a member of the national assembly although if one is an independent candidate they need at least two thousand signatures from the electorate to verify their candidacy.
The title of the protocol is Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, the name Maputo came about since that's the city were it was signed and adopted by African states.
The Maputo protocol has generated a lot of heat in member state countries with many of the countries taking time before rectifying the protocol. The reason being that the protocol raised a lot of issues concerning family, divorce, marriage, legalization of abortion that did not go down well with the Christian, Muslims and Africans on the above issues.
Tunisia, Sudan, Kenya, Namibia and South Africa recorded reservations about some of the marriage clauses. Egypt, Libya, Sudan, South Africa and Zambia had reservations about "judicial separation, divorce and annulment of marriage." Burundi, Senegal, Sudan, Rwanda and Libya held reservations with Article 14, relating to the "right to health and control of reproduction." Libya expressed reservations about a point relating to conflicts. Due to the complexity and sensitivity of the issues raised some countries took the bold step and refused to sign the treaty in totality, the countries included; Botswana, Egypt, Eritrea, Tunisia.
Other African nations choose to adopt the treaty as it his even after major opposition from their citizens a case in point is Djibouti and Uganda, even after receiving a protest letter from the Catholic Bishops they went on to ratify the treaty without considering their opinions and those of the Ugandan powerful Joint Christian Council, the pope once described the Maputo treaty as "an attempt to trivialize abortion surreptitiously" this is because the Maputo Protocol under Article 14 it describes abortion as a human right issue. The Human Life International describes it as "a Trojan horse for a radical agenda."
Even in Muslim countries there was strong opposition to the treaty on the same issues of abortion and female genital mutilation. In Nigeria, women Muslims gathered in Niamey to protest to what they called "the satanic Maputo protocols" parliament voted 42 to 31, with only 4 abstentions against the Maputo Treaty. The main borne of contention is that the treaty was not in line with the traditions in regard to the age of marrying off girls and abortion.
The treaty has lots of good provisions for the women especially on the areas of discrimination against women, criminalization of violence against women, rights of women on property during and after marriage to be equal to men. It compels all signatories of this treaty to pass legislation to codify all this gains into law. The treaty also compels the government to be giving reports to the Africa Unity on the progress they have achieved on the areas of implementation; this will ensure the gains achieved by the women in this treaty will be achieved.
The new constitution of Kenya under Article 2(6) any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution, go on to make this treaty to have the force of law in this nation without passing any other legislation. Kenya only had reservations on the clauses under Article 6 and Article 7 hence it means all the other clauses formed part of the laws of Kenya on 27th August 2010. These are clauses concerning marriage, separation, divorce and annulment of marriage. Which do not in any way interfere with the cultures of any community in Kenya only in the case were the woman in this case the wife is given the right to ask for divorce under Article 7 (b), which in the African tradition and Muslim religion is the prerogative of the men. This clause did not experience much opposition from people.
The clause that has had a lot of opposition from all the quotas is the clauses found under Article 14 (2) (c) "protect the reproductive rights of women by authorizing 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". That deals with health and reproductive rights which as similar wording to the Kenyan new constitution under Article 26 (4) "Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law" this clause leaves a grey area on the issue of abortions in Kenya were there are lot of people who have been practicing illegal abortions even before the constitution was passed. There as also been a presence of international organizations that advocate for abortions on demand, abortion being a multi-billion dollar industry the country is at the danger of having abortions which will affect the social and moral fabric of our society.
