News & Analysis
An Overview of Kenya’s National Policy on Gender and Development 2019
By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The National Policy on Gender and Development seeks to create a just, fair and transformed society free from gender based discrimination in all spheres of life practices. The National Policy highlights the fact that the patriarchal social order supported by statutory, religious and customary laws and practices; and the administrative and procedural mechanisms for accessing rights have continued to hamper the goal of attaining gender equality and women’s empowerment. The Gender Policy was informed by the observation that although the Kenyan law and the Constitution contain progressive provisions that were expected to address gender inequality, they have not delivered gender equality in practice, thus raising the need to develop a policy that addresses the variety of manifestations of gender discrimination and inequality.
The 2019 Policy builds on the National Policy for Gender and Development of 2000, and Sessional Paper No. 2 of 2006 on Gender Equality and Development which were meant to promote women empowerment and mainstreaming the needs of women, men, girls and boys in all sectors of development in Kenya so that they can participate and benefit equally from development initiatives. The 2019 Policy rightly points out that while there has been emphasis by the Kenyan Government on promoting gender equality in all aspects of its activities, evaluations point to clear gaps in promoting gender equality such as disparities in education and economic opportunities, representation, participation, and adequate access to health, all of which present new opportunities and challenges in the pursuit of gender equality and women’s empowerment.
As a result, the Policy has been designed to guide and ensure that all planning, programming, budgeting and implementation of development programmes include a gender perspective both at National and County levels. The Policy has promised the following focus areas: improved livelihoods, promotion and protection of human rights, participation in decision-making and governance, recognition of gender and promotion of women empowerment in macro-economic management among others. The Scope of the National Gender and Development Policy application is specifically and directly to all Government Ministries, Independent Bodies, Quasi-autonomous entities, and Departments and Agencies both at the national and county levels of government. It is also expected that the principles, strategies and approaches in the policy shall also apply to the, private sector and civil society. The Policy also aims at achieving equality of opportunity and outcomes with respect to access to and control of national and county resources and services; and equality of treatment that meets the specific and distinct needs of different categories of women and men.
However, while the Policy is concerned with all categories and aspects of gender, it has put a special focus on the empowerment of women who are currently considered the marginalized gender. The Policy has identified a set of factors that will act as indicators for measuring the implementation and effectiveness of the gender and development agenda. In addition, the Policy points out that if concerted efforts are made and adequate resources are allocated to the processes of institutionalizing gender equality and the empowerment of women as proposed in this policy, the result will be a fairer and transformed society in which women and men will benefit in the following ways: Equality of treatment and Freedom from Discrimination as provided for under Article 27 of the Constitution; Equality in the political, social, economic and cultural development spheres for women and men; Respect for the human rights of women, men, boys and girls; Respect for provisions on equality in the Bill of Rights in civil, administrative and judicial regulations and procedures and customary, cultural and religious practices; Enforcement of statutory, religious and customary laws within the framework of this policy and the Constitution; and Duty bearers at the National and County levels of Government will be equipped with relevant gender responsive requirements for planning, budgeting and implementing development programmes.
Chapter Two of the Policy dwells on situational analysis and key aspects which impact on Kenya’s progress towards gender equality. The Chapter highlights the following as the major challenges that affect realization of gender equality in Kenya: Poverty; Access to Labour and the Economy; Access to Education; Access to Health Care; Land, Housing and Agriculture; Access to Environment and Natural Resources; Peace and Security; Governance, Power and Decision-making; Information and Communications Technologies (ICT); Respect of Human Rights for All; Sexual and Gender Based Violence (SGBV); Access to Justice; Discrimination between the Girl Child and Boy Child; Intersectional Discrimination; Media Influence; and Institutional Mechanisms for the advancement of Gender Equality and Empowerment of Women.
Chapter Two highlights the specific concerns that arise under each of the foregoing thematic areas affecting the gender debate in Kenya. Chapter three of the Policy document captures that Policy goal, principle and objectives, which are all aimed at ensuring gender equality and women empowerment in the social, economic, political and cultural spheres as envisaged in the Constitution. The framework also seeks to establish and strengthen Affirmative Action efforts aimed at reducing gender inequalities and geographical disparities in the distribution of natural resources and access to productive resources such as land, labour, finances, information and technology. The overall goal of this policy is to achieve gender equality by creating a just society where women, men, boys and girls have equal access to opportunities in the political, economic, cultural and social spheres of life.”
The objectives of the Policy are to: Facilitate implementation of the Constitution and domesticate the international and regional obligations and commitments that promote gender equality and freedom from discrimination; Provide a framework to integrate and mainstream gender into the National and County Government development planning and budgeting as well as resultant policies, programmes and plans including those of non-state actors; Promote and support the rights-based approach when dealing with gender related matters; and, Define institutional framework and performance indicators for effective tracking, monitoring, evaluation and reporting implementation of gender equality and women empowerment. In order to achieve the foregoing, the following approaches will be used: Gender mainstreaming and integration in all planned interventions; Affirmative Action to ensure that temporary special measures are used to address past gender inequalities and injustices; Empowerment of women, men, boys and girls to facilitate equality, equity and non-discrimination; Involvement of men in addressing gender issues; Institutional and human capacity building; Gender responsive development planning budgeting; and, Generating data and indicators that are disaggregated by sex, age and disability.
The 2019 Policy anticipates to achieve the following outcomes: Equality and economic empowerment will be achieved; Diversity of all Kenyans will be acknowledged and respected; Women men, boys and girls will have equal rights and access to education, health, housing, employment, and other services and resources; Women and men will have equality of opportunity to participate in decision making and to contribute to the political, social, economic and cultural development agenda; Promotion of equal rights at the time of, during and on the dissolution of the marriage for spouses; and, Sexual and Gender based Violence will abate and men, women, boys and girls will live with dignity.
Chapter four of the Policy outlines the policy priority areas the Ministry in charge of Gender Affairs will oversee and implement through the institutional arrangements discussed chapter five thereof. Chapter four offers recommendations on the challenges identified in chapter two of the Policy document. Chapter five of the Policy document presents the institutional and implementation framework for implementing the National Gender and Development Policy, where the institutions identified will facilitate integration and mainstreaming of gender concerns as part of their mandates in implementing the policy. According to the Policy document, therefore, implementation of the policy will thus take a multi-sectoral approach cutting across both the state and non-state actors at all levels.
The Ministry in charge of Gender Affairs will however take the leading role of coordinating all the other players in the country so as to enhance harmony and avoid duplication. The Policy document points out that different aspects of the policy will be implemented by various actors including Ministries, Counties, Departments and Agencies, Constitutional Commissions and Independent Offices in collaboration with the private sector, Civil Society Organizations, Faith Based Organizations, among other key actors. Chapter six on monitoring and evaluation envisages that Monitoring and evaluation shall be an essential strategy in the implementation of the Policy in order to ensure that results frameworks on each policy action detailing outputs, outcomes, impacts and key actors shall be developed to facilitate annual plans and development planning processes in all sector at all levels.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Revisiting the Role of Law in Environmental Governance in Kenya, Available at: Muigua, K., Actualizing the National Policy on Gender and Development in Kenya, Available at: http://kmco.co.ke/wp-content/uploads/2020/10/Actualising-the-National-Policy-on-Gender-and-Development-in-Kenya-Kariuki-Muigua-Ph.D-October-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021.
Flowe, H. D., and Others, “Sexual and Other Forms of Violence During the COVID-19 Pandemic Emergency in Kenya.” (2020), available at: https://psyarxiv.com/7wghn/ (Accessed on 18 December 2021).
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate eKLR, Advisory Opinions Application 2 of 2012.
Jagoe, K., and Others, “Sharing the burden: Shifts in family time use, agency and gender dynamics after introduction of new cookstoves in rural Kenya.” Energy Research & Social Science 64 (2020): 101413.
Kenya Law, ‘Chief Justice’s Advice to the President on Dissolution of Parliament for Failure to Enact the Gender Rule,’ Available at: http://kenyalaw.org/kenyalawblog/chief-justices-advice-to-the-president-on-dissolution-of-parliament/ (Accessed 18 December 2021).
KEWOPA, ‘Actualization and Implementation of the “Two-Thirds Gender Principle” in Kenya, Available at: http://www.kewopa.org/wp-content/uploads/2017/11/TwoThirdsJourneyReport.pdf (Accessed 18 December 2021).
National Gender and Equality Commission Act, 2011, Laws of Kenya.
Njogu, K., and Orchardson-Mazrui, E., “Gender inequality and women’s rights in the Great Lakes: Can culture contribute to women’s empowerment.” New York: UNICEF (2013).
Ogila, J., ‘DCJ Mwilu Forms Five-Judge Bench to Hear Maraga’s Parliament Dissolution Advice’ (The Standard) https://www.standardmedia.co.ke/nairobi/article/2001390110/mwilu-forms-judge-bench-to-hear-cjs-parliament-dissolution-advice (Accessed 18 December 2021).
Osoro, J., ‘5 Judges Appointed to Hear Petitions on CJ Advise to Uhuru to Dissolve Parliament » Capital News’ (Capital News, 14 October 2020), Available at: https://www.capitalfm.co.ke/news/2020/10/5-judges-appointed-to-hear-petitions-on-cj-advise-to-uhuru-to-dissolve-parliament/ (Accessed 18 December 2021).
Republic of Kenya, Sessional Paper No. 02 of 2019 on National Policy on Gender and Development, October 2019.
Republic of Kenya, National Policy for Prevention and Response to Gender Based Violence, November, 2014, http://psyg.go.ke/docs/National%20Policy%20on%20prevention%20and%20Response%20to% 20Gender%20Based %20Violence.pdf (Accessed 18 December 2021).
News & Analysis
The Roles of the Three Parts of the Permanent Court of Arbitration
News & Analysis
Brief History of the Permanent Court of Arbitration (PCA)
By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.
The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.
The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.
The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”
In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.
As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.
The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.
PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).
News & Analysis
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
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