In realigning ministries, consider minorities’ issues

Njoki Ndung’u

As Parliament prepares to debate several Bills required for the implementation of the Constitution, it is important for Kenyans to continue to engage in discussions round the proposed laws to ensure the interests of various marginalised groups are protected.

In particular women, youth, persons with disabilities, and minorities should ensure structures are set up to oversee implementation of rights and benefits provided to them under the Bill of Rights and other chapters of the Constitution.

In doing so, they need to be conscious of the restructuring of the Executive where ministries will be reduced from 40 to a maximum number of 22, and therefore some ministries will be merged while others will simply disappear. The ministries that deal with matters of gender, disabilities, children, youth, and culture will probably suffer this fate.

It is, therefore, critical to ensure Parliament creates institutions that will protect the interests of these groups. As the Commission on Implementation clears Bills for parliamentary debate it is critical that it takes the above concerns into consideration.

For example, in the Sixth Schedule of the Constitution and during the transitional period, the commissioners of the Gender Commission and the Kenya National Commission on Human Rights have formed the interim Kenya National Human Rights and Equality Commission pending full implementation of Chapter Five. However, the said commissioners continue to serve under the terms of their respective statutes.

In the same vein Article 59(4) and (5) in the Bill of Rights provides that Parliament shall enact legislation that may restructure the said Kenya National Rights and Equality Commission into two or more separate commissions. It is imperative the creation of a new look Gender Commission under this clause. The reasons are fairly simple.

Firstly, there are numerous provisions relating to gender within the Constitution, which provisions require legal monitoring and evaluation mechanism for implementation of the same:

There is legislation that will provide for women’s newly acquired rights under the Chapter of Citizenship including the right to transfer their citizenship to their children and to apply for passports in their own right and not solely with the permission of their fathers and spouse.

The Bill of Rights, the Equality clause, and provisions for affirmative action in Government bodies demand a monitoring mechanism, as do the provisions on equal rights in marriage and right to child support and protection from in the private sphere. The chapter on land required legislation for the recognition and protection of matrimonial property and the matrimonial home, while the provisions relating to the representation of women in elective bodies, particularly those who come through party lists, must be included in the electoral laws. These are just but a few of the constitutional provisions with regard to gender that must be monitored for their implementation.

Secondly, if the Ministry of Gender is going to suffer the fate above-mentioned then the Gender Commission must remain in place.

These considerations are reflected on the Hansard record of the Committee of Experts, where the need to establish a separate commission that will be assigned the specific functions provided under Article 59(2) (b) and (k), Chapter 15 and any other relevant function with regard to oversight of the provisions relating to Gender, was recognised.

Women MPs and other women’s organisations such as the Federation of Women Lawyers need to exercise diligence in ensuring that the opportunity to create a specific mechanism for monitoring the gains for women in the Constitution is not lost.

The writer is an advocate of the High Court.