As in the adolescent RH policy process, context and institutions were critical in
determining which reforms were possible and which ones were not in the sexual offences legislative process. Most critical aspects were the socio-cultural and political contexts, and parliament as an institution. Other contextual and institutional aspects that influenced the legislative process included international conventions and agreements, regional contexts in neighbouring African countries, and the existing legal framework.
Socio-cultural context: Socio-cultural norms, beliefs and practices underpinned by patriarchy in
Kenya were the main reasons behind all the opposition to various proposals in the sexual offences law. The trivialised initial debates of the bill were indeed the stark reflection of how patriarchy marginalises women and their rights. Opposition to proposals for outlawing marital rape, unwelcome sexual advances, and FGM were all grounded in the social norms and cultural beliefs that sanction these practices in Kenyan communities. Indeed, the patriarchal social system in Kenya meant that the bill was debated as a ‘women versus men’
71 This argument is linked to the common practice of bride-price payment in many SSA communities, which is often interpreted to mean that once a man has paid bride-price, then his wife is his property to ‘use’ as he wishes (Kaye et al 2005).
issue and therefore provisions that were seen as threatening men’s power over women were opposed. Thus, the existing socio-cultural context shaped how the political context and institutions reacted to, and influenced, the proposed law as discussed next.
Political context and institutions: The 2002 change of government and the political landscape
motivated civil society to renew the campaign for a comprehensive law on sexual offences in 2003 that saw the enactment of the law in 2006. Furthermore, president Moi’s exit is said to have paved way for a freer atmosphere in parliament, with MPs voting for bills
(including the sexual offences bill) not based on the president’s position, but on their own personal beliefs and values as captured in the quote below. In fact, it was argued that in the Moi era, it would not have been possible for women MPs to put their different political party interests aside to jointly support the sexual offences bill:
‘The 9th parliament was operating under a different aura, a Kibaki aura, where when
you come to parliament you can’t tell who is in opposition and who is in government. In the Moi era you were not even supposed to be seen talking to someone from a perceived opposition. So I think we were freer, there was more space, more democracy. In the new political context, we were feeling more
democratic, so there was more space democratically.’ [Former Woman MP, Nairobi, October 5, 2011].
The change in the political landscape also saw new MPs get into parliament, including some human rights and women’s rights activists, providing a parliament that was relatively supportive of human rights in comparison to previous parliaments. The new MPs hailing from the human rights movement in Kenya were instrumental in bringing the bill to parliament and in its debating and passage.
On the other hand, parliament as an important political institution in Kenya presented a major barrier to the passage of the law given the nature of the proposed law (where men are generally seen as the perpetrators of sexual violence) and the patriarchal discursive space that is the Kenyan parliament. The nature of the bill pitted women MPs against male MPs, with the result that some important aspects of the bill were rejected by the majority male MPs leading to the passing of a watered-down law. The outcome of the sexual offences law and the previous rejection of gender-related bills suggest that the entrenched and institutionalised patriarchy in the Kenyan parliament has meant that parliament has remained a barrier instead of a facilitator of reforms on SRH and women’s empowerment issues. This situation has been compounded by the very low representation of women in the Kenyan parliament, which reflects prevailing socio-cultural norms and numerous barriers to women’s entry into politics, as well as women’s own perception of politics as a
risky and dirty game (Hunt 2007). And, even though parliament draws its power from the people (as voters), there have not been visible and sustained advocacy efforts to shape how the public votes in Kenya to ensure a parliament that is more supportive of SRH issues.
International context: Although not acknowledged by respondents or the Act, a number of
international conventions and agreements underpinned the agitation for law reforms to address sexual violence in Kenya, including: the Universal Declaration of Human Rights, CEDAW, the International Convention on the Rights of the Child, the ICPD Programme of Action, and the Beijing Platform of Action. These conventions and the meetings they emerged from underwrote the global commitment to protect women’s and children’s rights, including protection from sexual violence. For instance, the Beijing Platform of Action adopted by government delegates, including Kenya, stated that:
Equal relationships between women and men in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences (UN 1995).
So the opposition by male MPs to certain forms of sexual violations on cultural grounds captured the struggle between the global narrative of rights that the Kenyan government has signed to versus the local political narrative of culture that privileges men’s interests, while marginalising women’s needs. This struggle, and the fact that male MPs ultimately had their way in the resulting law, points to the limitations of the rights narrative in challenging arguments based on deeply rooted cultural and social norms and beliefs that privilege those in power.
At the regional level, the contexts in other African countries influenced the legislative debates both negatively and positively. As noted, on-going cases of sexual violence against Uganda’s Opposition leader and South Africa’s president increased opposition to the law, with male MPs fearing victimisation. On the other hand, women MPs reported that the fact that other African countries such as Rwanda, Tanzania and South Africa had reformed their laws to address sexual violence gave them the impetus to ensure that Kenya, like these countries, reforms its laws so as not to be left behind in tackling sexual violence. Finally, Kenya’s existing legal framework was drawn upon to block reforms on some issues just like in the adolescent RH policy process (in the case of abortion). Specifically, the proposals for the burden of proof to be borne by the defendant and the one to recognise the ‘anus’ as a genital organ were opposed as contravening Kenyan laws, and consequently omitted from the law.
5.7 Conclusion
This chapter has traced the legislative process that produced the 2006 sexual offences law in Kenya. The case study demonstrates the critical role of civil society in bringing SRH rights to marginalised populations in the context of a polity steeped in a strong patriarchal culture. Despite the increase in sexual violence reports and severity in Kenya from the 1990s, the government was unwilling to spearhead law reforms, given the perceived unsupportive context. Indeed, for over a decade, no meaningful reforms could be realised until the 2002 change in the political landscape that dipped power in favour of the human rights narrative, heralding a relatively more supportive political context. Civil society’s efforts (i.e. sustained advocacy and drafting of possible law) and the coming into
parliament of a women’s rights advocate (as a champion of women’s rights from the civil society) put this issue on the political agenda. However, the human rights focus of the civil society clashed with the strong cultural narrative embedded in Kenya’s male dominated parliament that privileges men’s power and interests, and sanctions their control over girls’ and women’s sexuality. Majority male MPs supported the criminalisation of rape and defilement, but strongly opposed the criminalisation of rape in marriage, unwelcome sexual advances and FGM, reflecting their unwillingness to lose their cultural power and privileges over women. They argued that criminalising these practices was tantamount to legislating against African social and cultural norms and values. The debates in this case study depict a classic struggle between the global human rights narrative and the local politically dominant narrative of African culture. Given the local power dynamics, the rights narrative prevailed only on non-sensitive sexual violations that did not threaten men’s power, whereas the cultural narrative prevailed on the patriarchy-sanctioned violations (i.e. rape in marriage, unwelcome sexual advances, and FGM) to re-legitimise men’s power over women. This points to the limitations of the rights narrative in challenging arguments based on deeply rooted cultural and social norms and beliefs that privilege those in power, suggesting the need for actors to think beyond the rights narrative.
And perhaps, in thinking beyond the rights narrative, civil society’s reform campaigns for this law had avoided focusing on the culturally sensitive issues that embody men’s power over women’s sexuality (e.g. rape in marriage, unwelcome sexual advances, and FGM). Instead, the campaigns focused on the rape of children and grandmothers in order to avoid a backlash and elicit sympathy and support for reforms. Thus, the rights narrative adopted in civil society’s campaigns focused on protecting children’s rights to sexual integrity as well as protecting children and women from the dangers and health hazards resulting from
sexual violence, rather than on women’s right to bodily autonomy and self-determination. This strategy, however, meant that the sensitive issues of rape in marriage, FGM and unwelcome sexual advances, were not discussed in the public campaigns, and were consequently easily dismissed in parliament. The passing of the FGM Act in 2011 offers some lessons on the critical importance of sustained evidence-informed advocacy that could be employed in advocating for the criminalisation of the remaining culturally sensitive sexual violations. Another lesson from the passage of the FGM Act is the need for strategic efforts that could ensure that more SRH-sympathetic actors get into
parliament. Lessons could also be drawn from other African countries that have made reforms on relatively sensitive issues amid strong cultural opposition, such as the civil society advocacy efforts that resulted in the banning of FGM in Egypt (see Petchesky 2003). Instead of isolating FGM as a health issue, these efforts used the feminist approach to situate FGM in the larger political struggle for women’s rights in Egypt.
The case study also demonstrated the power of anecdotal knowledge and mass media in putting issues on the political platform, but only if actors follow through with sustained advocacy. The dominant rights narrative in the networks pushing for reforms easily drew on anecdotal evidence from the media, hospital and police reports to make the case for reforms without any recourse to scientific knowledge, yet this could have arguably enriched the legislative debates and potentially helped to draw focus on a wide range of sexual violations. The dominant rights narrative also marginalised other relevant actors not
directly focused on the legal aspects of rights (including healthcare providers, law enforcers, SRH rights researchers, and beneficiaries of the law (girls and women)), but whose
involvement could have potentially enriched the legislative process and resulting law. On the whole, the changes in the content of the law that occurred over time reflect the negotiations and compromises that form the policy process. In the next chapter, I
deconstruct the making of the National RH Policy of 2007 to provide an understanding of how different SRH issues deemed as sensitive were debated and addressed by the policy.