Kenya

Kenya is ranked 46 out of 86 in the 2012 Social Institutions and Gender Index.

The country was ranked 57 out of 102 in the 2009 Social Institutions and Gender Index.

Kenya has a Human Development Index score of 0.509 for 2011, placing it in 143rd place out of a total of 187 countries. The country’s Gender Inequality Index score is 0.627 (130th out of 146 countries). Kenya is placed 99th in the 2011 Global Gender Gap Index, with a score of 0.6493.

Discriminatory Family Code: 

Previously, marriage in Kenya was governed by four separate chapters of the Laws of Kenya depending on the ethno-religious group of the persons getting married.[11]  The New Kenyan Constitution provides that parties to a marriage will be entitled to equal rights at the time of marriage, during the marriage and at its dissolution.[12]

The 2008 Marriage Act provides a minimum age of marriage of 18 for women and men, and the Children’s Act of 2001 expressly forbids early or forced marriage.[13]  However, many marriages are not officially registered, but are instead performed under customary or Islamic law, where there is no age limit.

Note that the new constitution recognizes customary laws as only as long as they are consistent with the Constitution of Kenya which means that discriminatory practices previously common in customary laws are outlawed. The constitution also provides for equality at marriage, during marriage and at its dissolution.

The 2003 Demographic and Health Survey found that 20.3 percent of girls between 15 and 19 were married, divorced, separated, or widowed.[14]  It further found that 7.5 percent of women aged 20-49 had been married before the age of 15.[15] If the proposed Marriage Bill is passed, it would consolidate existing legislation relating to marriage, making it much easier for married women to understand their rights.[16] It will also allow for the registration of marriages performed under customary law.[17]

Polygamy is forbidden in statutory marriages, but allowed in Muslim and customary marriages (an estimated 60 per cent of total marriages).[18]  The 2003 DHS found that 16 percent of married women in Kenya shared their husband with at least one other wife.[19]  In the event of divorce, only statutory marriage requires that couples follow legal procedures and provides any degree of equality for women. Repudiation is permissible for Muslim and customary marriages, both of which allow husbands to end the union without following official divorce procedures.[20]

Statutory marriage stipulates that parental authority be equally shared by men and women; however, Muslim and customary marriages are discriminatory in this matter.[21]  Custody is almost always awarded to the father when a customary marriage ends in divorce.[22]  The Children’s Act of 2001 also stipulates that the children born to unmarried mothers are the sole responsibility of the mother; only when the father claims responsibility or lives with the mother for 12 months following birth does he gain legal responsibility.[23] Women have the same right as men to pass Kenyan citizenship onto their children.[24]

In 1981, Kenya established an inheritance law (The Law of Succession Act) that enforces equality between men and women, but it is not applied to all citizens and some judges do not respect the law, or determine that a property or inheritance dispute should be determined by customary law.[25]  For example, judges sometimes rule that married daughters are ineligible to inherit or, in cases in which the heirs are in dispute, they may transfer the affair to an elders council that follows discriminatory customs.[26]  Divorced and separated women are vulnerable since courts are free to apply customary law concerning property and maintenance determination.[27]  Islamic law is discriminatory in that daughters typically inherit only half of the share to which sons are entitled. Wives receive one-eighth of a husband’s estate if there are children, or otherwise one-fourth. Wives in polygamous Muslim marriages would share the one-eighth or one-fourth.[28] The 2010 CEDAW report notes, however, that in some recent inheritance cases, judges have in fact referred to the provisions in CEDAW and other international legal instruments to rule in favour of daughters receiving an equal share of inheritance.[29]

[11] Chapters 150, 151, 156 and 157 in CEDAW (2006) p.43; see also CEDAW (2010) p.72 [12] Constitution of Kenya(2010) Article 45 (3) [13] Article 19, The Marriage Act revised edition 2008. Section 14, The Children’s Act, No. 8 of 2001 [14] USAID (2003) [15] CBS, MOH and ORC Macro (2004), Table 6.3 [16] CEDAW (2010) pp.22-23 [17] CEDAW (2010) pp.22-23 [18] CEDAW (2006) p. 43 [19] CBS, MOH and ORC Macro (2004), Figure 6.1 [20] CEDAW (2006) p. 45 [21] CEDAW (2006) p. 44-45 [22] CEDAW (2006) p. 46 [23] Articles 24(3) and 25 of the Children’s Act of 2001 in Ellis et al (2007) p. 4-5 [24] CEDAW (2010) p.37 [25] The Law of Succession Act of 1981 in Ellis et al (2007) pp. 26-27; see also CEDAW (2010) p.7 [26] Ellis et al (2007) p. 29[27] Knox, et al. (2007) p. 11 [28] Ellis et al (2007) p. 27[29] CEDAW (2010) pp.6-7

Restricted Physical Integrity: 

There is no specific law against domestic violence, and police are frequently reluctant to intervene in what they consider to be a ‘family matter’.[30]  According to the US Department of State human rights report, what limited assistance there is available to women experiencing domestic violence is provided by local women’s rights NGOs.[31]

Under the Sexual Offences Act (2006), all forms of sexual assault are criminalized, however marital rape is not specifically addressed.[32] Widows are vulnerable to wife inheritance and “ritual cleansing” where a man is paid to have sex with her to “cleanse” her of evil spirits associated with her husband’s death.[33]

Sexual harassment is against the law, but the law is not effectively enforced.[34]

Violence against women is generally accepted by public opinion and women are frequently beaten by their husbands.[35] A clear majority of Kenyans find intimate partner violence acceptable. Given five reasons why a man might be justified in beating his wife, more than 63 percent of men and 67 percent of women interviewed for the 2003 Demographic and Health Survey (DHS) agreed with at least one reason.[36]  Almost 40 of married women surveyed reported experiencing physical violence at the hands of their spouse, while 25 percent of all women reported having suffered from violence in the previous 12 months.[37] Research conducted by a local NGO and reported in the US Department of State’s 2011 human rights report found that 83% of women and girls question had experienced at least one episode of physical abuse.[38]

In 2008 official police statistics indicated 627 rapes during the year, but according to the US State Department’s 2010 human rights report, human rights groups estimated that more than 21,000 rapes were perpetrated annually.[39]  The police and the justice system rarely prosecute cases of rape, and local women’s rights organisations claim that police reluctance to investigate rape cases, and procedures in handling rape cases act as a significant deterrent to reporting (for instance, requiring that victims be examined by a police physician before any investigation can be initiated).[40] This is compounded by cultural taboos that prohibit discussion of sex, and victims’ fears of retribution.[41]

There were widespread reports of rape and sexual assault during the post-election violence in Kenya in 2008, but so far, the authorities have failed to properly investigate or prosecute perpetrators.[42] The 2010 CEDAW report states that at least 1500 women are known to have been raped during the violence, many subjected to gang rape.[43] The report also states that much of the sexual violence was ethnically driven.[44] According to Freedom House, women’s rights groups claim that there is evidence that most assaults were committed by members of the police force.[45] In 2008, the Truth, Justice and Reconciliation Act was passed, to establish of a commission to investigate the violence and enable victims to seek redress.[46]

FGM is outlawed in minors under the age of 18 by the Children’s Act of 2001, Section 14, but there is evidence that some communities wait until a girl has reached 18 and then subject her to the custom.[47] The government of Kenya also forbids female genital mutilation (FGM) in public hospitals and the health minister is taking steps to eradicate this practice altogether. However, FGM is far from being eliminated. It is estimated that between 30 and 40 per cent of women have undergone FGM; the figure may be lower in urban areas but is much higher in some rural regions.[48]

Currently in Kenya, the law does not allow abortion in any circumstances, however in some previous cases, doctors have been permitted to carry out abortions in cases where the woman’s life was in danger.[49] As of 2010, a Reproductive Health and Rights bill was under consideration, which would allow abortion in cases of rape, as well as safeguard the reproductive health of women and girls in Kenya.[50]

Although the level of contraceptive knowledge among all Kenyan women, including married women, tops 95 percent, actual prevalence rates are much lower. Just 55 percent of married women aged 15 to 49 reported ever using any modern method of contraception as a method of family planning in the 2003 DHS, and only 31.5 percent reported current usage.[51]  Nearly 58 percent of married women who were not using contraception at the time of the survey indicated that they planned to use in the future, but 38 percent indicated that they had no intention to ever use contraception. Among these women, the top reasons included religious objections, fear of side effects, and a desire for more children.[52]  Overall, 15.8 percent of married women reported an unmet need for family planning services for either birth spacing or limiting the number of children they bore.[53] According to the 2010 CEDAW report, the government had set aside funds for the financial year 2008-2009, in order to provide all women in Kenya with free access to contraception.[54]

[30] CEDAW 2006, p. 8; CEDAW (2010) p.74; US Department of State (2011) [31] US Department of State (2011) [32] CEDAW (2010) p.9 [33] Strickland (2004) p. 19[34] US Department of State (2011) [35] U.S. State Dept. (2010) [36]CBS, MOH and ORC Macro (2004), Tables 3.12.1 and 3.12.2 [37] CBS, MOH and ORC Macro (2004),, Tables 15.3 and 15.1 [38] US Department of State (2011) [39] US Department of State (2011) [40] US Department of State (2011) [41] US Department of State (2011) [42] US Department of State (2011). See also CEDAW (2010) p.5 [43] CEDAW (2010) pp.2, 11 [44] CEDAW (2010) p.11 [45] Freedom House (2010) [46] CEDAW (2010) p.5 [47] African Development Bank (AfDB) (2007) p. 45-46 [48] CEDAW (2006) p. 8-9 [49] United Nations (2011) [50] CEDAW (2010) p.73 [51] CBS, MOH and ORC Macro (2004), Tables 5.1, 5.2, and 5.3 [52] CBS, MOH and ORC Macro (2004), Tables 5.14 and 5.15 [53] CBS, MOH and ORC Macro (2004), Table 7.3 [54] CEDAW (2010) p.73

Son Bias: 

According to data from the DHS survey for 2008-2009, 79.5% of girls and 75.3% of boys under two had received all their basic vaccinations.[55] Under-five mortality rates were higher for boys than for girls, as well rates of malnutrition.[56] This would indicate no pronounced son preference in regard to early childhood care.

Slightly more boys than girls aged 5-14 appear to be engaged in economic activity, according to the Kenya Integrated Household Budget survey.[57]  There was hardly any difference in the amount of time girls and boys engaged in economic activity spent per week. However, this survey does not reveal the amount of time children spent on unpaid domestic labour. 

According to the 2008-2009 DHS, 3.1% of men aged 20-24 had received no education at all, compared to 7.2% of women in the same age bracket.[58] Secondary school completion rates for men and women in the same age bracket were 25.2% and 17.8% respectively. Overall, this would indicate some preference towards sons in regard to access to education.

The male/female sex ratio for the total population in 2012 is 1.[59] There is no evidence to suggest that Kenya is a country of concern in relation to missing women.

[55] Kenya National Bureau of Statistics (KNBS) and ICF Macro (2010), Table 10.3 [56] KNBS and ICF Macro (2010), Tables 8.3, 11.1 [57] KIHBS (2005) [58] KNBS and ICF Macro (2010), Tables 3.2.1 and 3.2.2 [59] Central Intelligence Agency (2012)

Restricted Resources and Entitlements: 

The Constitution guarantees equality of ownership rights for all Kenyan citizens. Women are free to buy, own and sell assets as they choose.[60]  However, in practice women’s access to land and access to property other than land are severely restricted by customary law, which essentially prohibits women from owning or inheriting land and other forms of property.[61]  Women in Kenya are granted “life interest” in property rather than full ownership, which prevents them from using it as collateral for bank loans or from disposing of it as they see fit. In the event of her husband’s death, this “interest” disappears upon remarriage.[62]  In fact, women hold title to somewhere between one and five percent of land in Kenya, although there are variations between regions.[63]  Even when women are able to acquire assets, their husbands often act as intermediaries in the transaction.[64]  The National Land Policy adopted in December 2009 calls for the government to  repeal existing laws and outlaw regulations, customs and practices constituting discrimination against women and children in relation to land ownership and inheritance rights, but to what effect remains to be seen.[65]

Since they rarely have assets of their own, Kenyan women cannot provide the collateral required by lending institutions, making it difficult for them to acquire credit.[66]  Additionally, women face a range of difficulties in accessing microcredit services including a lack of capacity in terms of management skills.[67]  The 2010 CEDAW reports that all the major commercial banks in Kenya now have at least one financial credit or mortgage product targeting women, and that the government has initiated several schemes to enable women to obtain credit, including microcredit.[68]

[60] Sections 75 (1) and 81 (1) of the Constitution of Kenya in CEDAW (2006) pp. 40, 42, 46 [61] CEDAW (2006) pp. 5, 40, 42, 46. 47; Ellis et al (2007) pp. 28-32 [62] Section 35 of the Law of Succession in Strickland (2004) p. 38; CEDAW (2010) p.63 [63] AfDB (2007) p. 17; CEDAW (2006) p. 37 [64] Ellis, p. 22-25; Knox et al. (2007) p. 11 [65] Draft National Land Policy, Section on Gender and Equity Principles [66] Ellis, pp. 41-42 [67] CEDAW 2006, p. 13, 37 [68] CEDAW (2010) pp.63-64

Restricted Civil Liberties: 

There do not appear to be any legal constraints on women’s freedom of movement in Kenya. Previously existing requirements that women secure their husband’s or father’s consent before obtaining a passport have been removed.[69]  However, of the women interviewed for the 2008-2009 DHS, 26.3% reported that their husbands usually had the final say in deciding whether they were allowed to visit family and relatives.[70]

Freedom of speech, assembly and association are generally respected in Kenya. There are many active women’s rights organisations, who have been central in pushing for cases of sexual violence during the post-election violence in 2008 to be investigated, as well as providing support to victims of this and other forms of violence against women.[71]

Women and men enjoy the same rights to vote and stand for election in Kenya, although women standing for public office often face hostility.[72] Despite the fact that a record number of women ran for office in the local and national elections of 2007, only 22 of the 224 seats in Kenya’s parliament, just over nine percent were filled by women.[73]  Women also hold 7 of the 40 ministerial positions in government. Despite a September 2007 pledge to reserve one-third of civil service positions for women, they have not yet implemented that policy.[74]  At least in public surveys, a majority Kenyans indicate that they believe that men and women are equally capable as political leaders, such as the 62 percent that provided this answer in a 2007 Pew survey.[75]

Female employees in Kenya are entitled to three months of paid maternity leave, and their employers are required to pay 100 percent of their wages during their leave.[76]  Fathers are entitled to two weeks paternity leave.[77]  There are no other protections for pregnant women written in law.[78]  However, the majority of employed women work in the agriculture and informal sectors, which likely means that they are ineligible for social security benefits.[79]

[69] CEDAW (2010) p.37 [70] Kenya National Bureau of Statistics and ICF Macro (2010) [71] Freedom House (2010); US Department of State (2011) [72] Freedom House (2010) [73] Inter-Parliamentary Union (ILU) (2010) [74] US Department of State (2010) [75] Pew Research Center (2007), Question Q.43 [76] ILO (2009) [77] CEDAW (2010) p.73 [78] ILO (2009) [79] CBS, MOH and ORC Macro (2004), Tables 3.6.1 and 3.7.1. 49 percent work in agriculture, 26 percent is sales/service. 18 percent of women receive are not paid for their labor, and 62 percent are self-employed.

Background: 

Kenya became an independent country in 1963, and was governed from then until 1978 by Jomo Kenyatta.[1] Kenya then became a de facto, and then de jure one party state until political reforms were introduced in 1991. [2] Since then, while elections in Kenya have often been marred by violence, they have generally been considered to be free and fair. [3] However, accusations of vote-rigging following the 2007 elections led to two-months of violence in the capital Nairobi, during which an estimated 1500 people are thought to have died.[4] Kenya is classed as a low-income country by the World Bank.[5]

Kenya is characterised by the co-existence of several legal frameworks which have an impact on women’s status. In response to lobbying, Kenya established the Family Division of the High Court of Kenya to provide special arbitration in cases concerning divorce, maintenance, and family property, and to promote gender-sensitivity training within the judiciary. However the court only exists in the capital city of Nairobi.[6] 

A new Constitution for Kenya was approved by 67% of Kenyan voters in 2010. The revised Constitution includes a clause defining discrimination, and stating that the state will not discriminate against any citizen on the basis of a number of social categories, including gender.[7] In addition, as of 2010, a number of other bills designed to protect women’s rights had been drafted including the Family Protection Bill (addressing domestic violence), the Marriage Bill (which seeks to harmonize and consolidate all the substantive marriage laws, give equal legal recognition to all types of marriages and provide for a simplified procedure for matrimonial matters), the Matrimonial Property bill (clarifying married women’s property rights), and the Equal Opportunity bill (outlawing discrimination).[8]

Kenya ratified the Convention on the Elimination of All forms of Discrimination Against Women in 1984, but has not yet ratified the Optional Protocol.[9] Kenya has signed but not yet ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.[10]

[1] CIA (2011) [2] CIA (2011) [3] CIA (2011) [4] CIA (2011); CEDAW (2010) p.2 [5] World Bank (n.d.) [6] Strickland, R. (2004) p. 44 [7] CEDAW (2010) p.3 [8] CEDAW (2010) p.6 [9] United Nations Treaty Collection (UNTC) (2011) [10] African Union (2010)

Sources: 

African Development Bank (AfDB) (2007) Kenya: Country Gender Profile, AfDB: Abidjan, Côte d'Ivoire.

African Union (2010) ‘List of countries which have signed, ratified/acceded to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ (as of 27 August 2010). http://www.africa-union.org/root/au/Documents/Treaties/List/Protocol%20on%20the%20Rights%20of%20Women.pdf

Central Bureau of Statistics (CBS), Ministry of Health (MOH), and ORC Macro (2004) Kenya Demographic and Health Survey 2003, CBS, MOH, and ORC Macro: Calverton, Maryland.

Central Intelligence Agency (CIA) World Factbook: Kenya, Washington, DC: CIA, online edition, https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html (accessed 9 November 2011)

Central Intelligence Agency (2012) The World Factbook: Sex Ratio, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html (accessed 9 March 2012)

Committee on the Elimination of Discrimination against Women (CEDAW) (2006) Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women: Combined Fifth and Sixth Periodic Reports of States Parties: Kenya, CEDAW/C/KEN/6, CEDAW: New York, NY.

CEDAW (2006) Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women Sixth periodic report of States parties: Kenya, CEDAW/C/KEN/7, CEDAW: New York, NYCEDAW (2010) Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women Sixth periodic report of States parties: Kenya, CEDAW/C/KEN/7, Geneva.

Economic Commission for Africa (ECA) (2009) African Women’s Report 2009: Measuring Gender Inequality in Africa: Experiences and Lessons from the African Gender and Development Index, ECA: Addis Ababa, Ethiopia.

Ellis, A., J. Cutura, N. Dione, I. Gillson, C. Manuel and J. Thongori (2007), Gender and Economic Growth in Kenya: Unleashing the Power of Women, The World Bank: Washington, DC.

Freedom House (2010) Freedom on the World: Country Report, Kenya, Available at http://www.freedomhouse.org/report/freedom-world/freedom-world-2010

Kenya National Bureau of Statistics (KNBS) and ICF Macro (2010) Kenya Demographic and Health Survey 2008-09. Calverton, Maryland: KNBS and ICF Macro.

International Labour Organization (ILO) (2009), Database of Conditions of Work and Employment Laws, ILO: Geneva, Switzerland (accessed 2 March 2010)

Inter-Parliamentary Union (IPU) (2010), Women in Parliament: All Countries on National Parliaments, IPU: Geneva, http://www.ipu.org/wmn-e/classif.htm

Kenya Integrated Household Budget Survey (KIHBS) (2005), available at the ILO, UNICEF and the World Bank ‘Understanding Children’s Work: An Inter-Agency Research Cooperation Programme’ website, http://www.ucw-project.org/Pages/Tables.aspx?id=1361 (accessed 9 November 2011)

Knox, A., N. Duvvury, and N. Milici (2007), Connecting Rights to Reality: A Progressive Framework of Core Legal Protections for Women’s Property Rights, International Center for Research on Women, Washington, DC.

National Council for Law Reporting (2010) The Constitution of Kenya, available at http://kenyaembassy.com/pdfs/The%20Constitution%20of%20Kenya.pdf (accessed 19 March 2012)

Pew Research Center (2007), Pew Global Attitudes Project: Spring 2007 Survey, Pew Global Attitudes Project, Washington, DC.

Strickland, R. (2004), “To Have and To Hold: Women’s Property and Inheritance Rights in the Context of HIV/AIDS in Sub-Saharan Africa, Working Paper, ICRW, Washington, DC

United Nations (2006), In-depth Study on all Forms of Violence Against Women, Report of the Secretary-General, UN General Assembly, 61st Session A/61/122/Add.1, UN, New York, NY.

UN (2011) ‘World Abortion Policies 2011’, UN Department of Economic and Social Affairs, Population Division, New York. http://www.un.org/esa/population/publications/2011abortion/2011wallchart.pdf

United Nations Development Programme (UNDP) (2011) Human Development Report 2011, http://hdr.undp.org/en/data/profiles/ (accessed 8 November 2011)

United Nations Development Programme (2011) Human Development Report 2011, available at http://hdr.undp.org/en/media/HDR_2011_EN_Complete.pdf (accessed 29 February 2012)

United Nations Treaty Collection (UNTC) (2011): Convention on the Elimination of All forms of Discrimination Against Women, countries ratified. 

-          CEDAW: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (accessed 9 November 2011)

-          Optional Protocol: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8-b&chapter=4&lang=en (accessed 9 November 2011)

USAID (2003) Demographic and Health Survey Kenya

US Department of State (2010) ‘2009 Country Report on Human Rights Practices: Kenya’, US Department of State, Bureau of Democracy, Human Rights and Labor, Washington, DC.

US Department of State (2011) ‘2010 Country Report on Human Rights Practices: Kenya’, US Department of State, Bureau of Democracy, Human Rights and Labor, Washington, DC. http://www.state.gov/g/drl/rls/hrrpt/2010/af/154352.htm (accessed 9 November 2011)

World Bank (n.d.) ‘Data: Kenya’, Washington, D.C., World Bank, http://data.worldbank.org/country/kenya (accessed 9 November 2011)

World Economic Forum (2010) ‘The Global Gender Gap Index 2010 rankings’, http://www.weforum.org/pdf/gendergap/rankings2010.pdf

World Economic Forum (2011) The Global Gender Gap Report 2011, available at http://www3.weforum.org/docs/WEF_GenderGap_Report_2011.pdf (accessed 2 March 2012)

Data
Discrim. Fam. Code Rank 2012: 
57
Discrim. Fam. Code Value 2012: 
0.3828
Legal Age of Marriage: 
0
Early Marriage: 
0.203
Parental Authority: 
0.5
Inheritance: 
0.5
Data
Rest. Phys. Integrity Rank 2012: 
78
Rest. Phys. Integrity Value 2012: 
0.5513
Violence Against Women (laws): 
0.583333
Female Genital Mutilation: 
0.271
Reproductive Integrity: 
0.256
Attitudes Towards Domestic Violence: 
0.526
Prevalance Of Domestic Violence: 
0.412
Data
Son Bias Rank 2012: 
49
Son Bias Value 2012: 
0.51894
Missing Women: 
0
Fertility Preferences: 
0.4944
Data
Rest. Resources & Ent. Rank 2012: 
105
Rest. Resources & Ent. Value 2012: 
0.6492
Access To Land: 
0.5
Access To Property Other Than Land: 
1
Access To Bank Loans And Credit: 
0.5
Data
Rest. Civil Liberties Rank 2012: 
30
Rest. Civil Liberties Value 2012: 
0.3196
Access To Public Space: 
0
Political Participation: 
0.09821
Political Quotas: 
0.5