Gender & Women’s rights

CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS

2.2 Kenya’s Experience with Business and Human Rights [Pages 5-6]

Under the social pillar of the Vision 2030, Kenya aims to build a just and cohesive society with social equity in a clean and secure environment. The Key sectors under the social pillar namely: […] gender […].

2.3 Land and Natural Resources [Page 8]

The country has made strides in the legal and policy protection of women’s property rights as relates to ownership, inheritance, management and disposal. The 2009 National Land Policy amongst other provisions cites the need to protect women’s right to inherit land and the land rights of widows and divorced women. It also distinguishes the inheritance rights between married and unmarried women directing the Government to secure the rights of unmarried daughters. The Matrimonial Property Act, 2013 provides that a married woman has equal rights as a maried [sic.] man to acquire, administer, hold, control or dispose of property whether movable or immovable. The Act further provides that ownership of matrimonial property vests in the spouses according to their contribution, either monetary or non monetary, in its acquisition and upon divorce should be divided between the spouses. The Marriage Act, 2014 provides that parties to a marriage have equal rights and obligations at the time of the marriage, during and at the dissolution of the marriage. However despite these laws, there are still obstacles including cultural traditions, historical injustices and lack of awareness that inhibit women from accessing and owning their fair share of property and attendant rights. 

2.6 Labour [Pages 12-13]

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 3 (double the agricultural productivity and incomes of small- scale food producers, in particular women, […]); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations); 5.2 (eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation); and 8.5 (achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value). Others are 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), and 16.2 (end abuse, exploitation, trafficking and all forms of violence against and torture of children).

During the stakeholders’ consultation the following concerns were identified:

1. Sexual harassment is widespread and underreported with women being the majority of victims- fear of job loss being a major factor in the reluctance to report. Furthermore there is low enforcement of the Sexual Offences Act, 2006;
2. Lack of access to maternity and paternity leave. While the law provides and protects both maternity and paternity leave, not all workers in the private sector are able to access this benefit for fear of job loss. Once again, enforcement of the law in this respect remains weak;
3. Low level of awareness on labour rights among workers (mostly women in low income or low skilled jobs) and employers;
4. […]
5. Lack of publicly available statistics disaggregated by sex and other vulnerabilities that could be useful in addressing sex and other forms of discrimination in the workplace; […]

2.7 Access to Remedy [Pages 13-15]

[…] [T]here are a number of legislative provisions regulating business conduct to protect those within Kenya’s jurisdiction from business-related human rights violations. Protection against discrimination on the ground of HIV/AIDS status, for example, covers those in employment. The same applies to the protection of discrimination against persons with disabilities, women and marginalised groups.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Pages 16-18]

Policy Actions

The Government will:

i.    Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses;

vii.  Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

1. Land laws, including resettlement and compensation frameworks;
2. Labour laws and the rights of migrant workers; and
3. Environmental laws and standards;

viii.  Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;

xi.     Strengthen leverage in using public procurement to promote human rights. This will involve the review of existing public procurement policies, laws and standards and their impacts with due regard to the state’s human rights obligations including women’s rights as part of the criteria; and,

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18-19] 

Policy Actions

a) Training: Develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment, gender, human rights defenders, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.

c) Human rights due diligence: Require businesses to identify their human rights impacts including through conducting comprehensive and credible human rights impact assessments before they commence their operations and continuously review the assessment to ensure that they prevent, address and redress human rights violations. Such impact assessment should involve meaningful consultation with potentially affected groups and other relevant stakeholders and include particular gendered impacts.

3.3. Pillar 3: Access to Remedy

A) State-based judicial and non-judicial remedies [Page 21]

Policy Actions

viii.    Increase the capacity of the labour inspection department to handle labour-related grievances, including through:

1. • Increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address sexual harrassment [sic.] and violence, payment of minimum wages, equal pay for work of equal value, prohibition of child labour and non- discrimination against women, marginalised groups and minority groups; […]

B) Non-State-Based Grievance Mechanisms [Page 21]

Policy Actions

The Government will:

1. Develop and disseminate guidance for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups such as women, persons with disabilities, children and indigenous persons

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]

To ensure that the measures proposed in this NAP are implemented, there shall be a NAP steering committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:

[…]

7. Three (3) Civil Society Organizations Representatives of persons living with disabilities, women and indigenous persons

[…]

15. National Gender & Equality Commission

[…]

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 23]

ANNEX 2: LEGISLATION PROPOSED FOR ENACTMENT OR AMENDMENT