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Women and the Law: Women Issues in Kenya and How to Seek Legal Help

gender discrimination in kenya

This decade has witnessed unprecedented progress in gender equality and women’s rights in Kenya and around the globe.   With the promulgation of the New Constitution in 2010 and the enactment of game-changing legislations, Kenya has made giant strides toward ending gendered violence and discrimination.

Nevertheless, we are not there yet, as those issues continue to afflict our society.  The UN ranks Kenya 135th in the world in terms of the Gender Inequality Index (GII). This index is a measure of the disparity between men and women; it considers participation in the labour markets, maternal health, and empowerment.  The inferior rank implies that much remains to be done.

Gender discrimination at work

As a woman in Kenya, your employer should accord you the same treatment at the workplace as your male counterparts. For instance, if you have the same qualification and responsibilities as your male colleagues, the employer should not pay you less. In addition, your employer should be conscious of your gender-specific needs such as pregnancy.  They should not deny you opportunities or fair treatment on the basis of pregnancy.

These rights are protected by the Kenyan Constitution and the Employment Act.   The Constitution stipulates that no Kenyan should be discriminated against on the grounds of gender.   The Employment Act requires all employers to promote equality in hiring—employment and promotions in Kenya should be based on merit, not gender.

If you feel that your employer is discriminating against you because you are a woman, you can file a case with the Employment and Labor Relations Court.

Notably, the Employment and Labor Relations Court in Kenya is employee-friendly. If you file a gender discrimination case, the burden of proof will be on the employer’s side. In plain language, that means that it will be upon the employer to prove that the discrimination did not take place.

Sexual harassment at work in Kenya

sexual harrasment in the workplace in kenya
sexual harrasment in the workplace in kenya

Undeniably, most victims of sexual harassment in Kenya are women.  Sexual harassment can be broadly defined as  “unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature.” Sexual harassment in Kenya is an offence under the Sexual Offences Act.  The offence is punishable by at least three years of imprisonment or/and a fine of at least 100,000 Ksh.

Sexual harassment work is forbidden under the Employment Act.  No person should demand sexual favours from you in exchange for opportunities at the workplace.  Also, no person should punish you for rejecting their sexual advances. According to the Employment Act, sexual harassment at the workplace includes

 Promises of preferential treatment at the workplace in exchange for sexual  favours

 Threats of mistreatment at the workplace if you reject  sexual  advances

 Tying an employee’s  jobs  security  to their acceptance  of sexual  advances

 Use of sexual language and visual materials.

 Direct and indirect physical or sexual behaviour such  as inappropriate touching

 Undesirable sexual behaviour that affects an employee’s satisfaction and performance at the workplace.

The Kenyan law also requires employers with 20 or more employees to have a sexual harassment policy.  The policy should explain what constitutes sexual harassment at the workplace as well as define the company’s internal mechanisms for dealing with sexual harassment.

If you have been denied opportunities, demoted, or dismissed for rejecting/reporting sexual harassment,  you can file a case with the Employment and  Labor Relations Court to recover the damages you have suffered.

Domestic Violence

domestic violence in kenya

About  41 per cent of ever -partnered women aged 15-49 in Kenya have been victims of physical or sexual violence at least once in their lifetime. That is according to this report by the Kenya National Bureau of Statistics.  Domestic violence can take several forms; they include

  • Physical abuse such as wife battery
  • Sexual  abuses such as  rape
  • Control/ domination.  Common forms of domination include monitoring a partner’s phone calls and not allowing them the freedom to choose what to wear.
  • Intimidation and emotional  abuse
  • Verbal  abuse, including insults, threats, bullying, and blame
  • Economic abuse such as denying one partner  access to family resources  and spending  the family income on private matters

In 2015, Kenya enacted the Protection Against Domestic Violence Act; this legislation significantly changed the way domestic violence cases are handled. Before this legislation, most cases of domestic violence were prosecuted under general criminal laws or treated as peripheral issues in family cases such as divorce.

Besides common domestic violence offences such as wife battery, the Protection Against Domestic Violence Act allows victims to seek legal recourse for other forms of domestic violence. The act also created mechanisms for protection and provision of relief to victims of domestic violence and their dependants.

For instance, if you are a victim of domestic violence in Kenya, the court can order the perpetrators to compensate you. It can also order the police to protect you from the abuser.

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