Brian Osundwa | The constitutional rights of women: Rwanda and Kenya

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14 August 2015 – The Constitution of Rwanda emphasises the commitment of the people of Rwanda to ensuring equal rights between women and men, without prejudice to the principles of gender equality and complementarity in national development. National development cannot hence be successfully achieved in the absence of equal rights for women and men. This is, however, just the starting point of the great progress made by Rwanda in promoting women’s rights. This is also perhaps why Rwanda was the first country in the world to have more than 50% female members of parliament – currently 64% – and is ranked second in the world according to the 2009 Social Watch Gender Equity Index (pdf). Rwanda’s constitutional commitment has ensured that women and girls have access to the right to education, where as many girls as boys receive primary and secondary education (97.5% for girls and 95.7% for boys as of 2013), and the right to health, where maternal mortality has been significantly reduced.

In its Preamble, the Constitution of Rwanda elaborates that the people of Rwanda are committed to ensuring equal rights between Rwandans and between women and men without prejudice to the principles of gender equality. The Constitution protects gender equality in a number of provisions.  It requires that women are granted at least 30% of posts in decision-making organs and the senate, and also imposes an obligation on political organisations to reflect gender equality.  Discrimination on the grounds of sex is illegal, and punishable.

The judiciary has also been active in protecting the rights of women and reducing gender-based violence. For instance, in the case of Prosecutor v Uwimana Alexandre (discussed in this pdf by Sam Rugege, Rwanda’s Chief Justice), the accused husband was sentenced to five months in prison after being found guilty of battery and verbal abuse towards his wife. Similarly, in Prosecutor v Jerome Nkusi, the accused was sentenced to five months in prison for harassment and disposal of community property without spousal consent.

With this strong constitutional background, gender equality and the rights of women in Rwanda are heavily supported by constitutional rights and by the provisions which, together with government commitment and institutional support, have facilitated their realisation and protection.

It is, however, worth noting that there is still a shortcoming in the implementation of these constitutional rights. Progressive legislative, judicial and institutional frameworks do not always translate into practice. This can greatly hamper the gains made towards gender equality. Despite the frameworks set up protect the rights of women in Rwanda and to curb gender-based violence (‘GBV’), incidents of violence are still considerable in 25 out of the 30 districts of the country (pdf). Physical violence against women, for instance, is classified as “high” in over 83% of the national territory. And, for instance, when it comes to procuring meaningful land rights for women in Rwanda, implementing gender equality requires the difficult task of combating entrenched customary views on appropriate gender roles, especially when it comes to who can benefit from legal and economic rights. Similarly, the implementation of Rwanda’s Law No. 59 of 2008 on the Prevention and Punishment on Gender-Based Violence is yet to curb the violence against women that is expressed in 83% of the national territory.

The Constitution of Kenya, 2010 shares many of the Rwandan Constitution’s commitments to gender equality. It sets out the equality of every person before the law and the right to equal protection and equal benefit of the law under its Article 27(1). And its non-discrimination clause under Article 27(4) includes sex as one of the grounds on which a person shall not be discriminated against. Article 98(1) provides a minimum number of women – 16 out of the 47 members – who shall be on the Senate, and Article 100 requires legislation to promote the representation of women in the Parliament. Article 197 also elaborates that not more than two thirds of the members of the county assembly shall be of the same gender; similarly, Article 27(8) requires the State to take legislative and other measures to ensure that not more than two thirds of members of elective or appointive bodies shall be of the same gender.

In Kenya, courts have been more circumspect about the achievement of gender equality, emphasising that change happens gradually. Following the Attorney General’s request for an advisory opinion on the minimum one-third gender requirement in the National Assembly and the Senate, the Supreme Court held on 11th December 2012 that gender equity as an affirmative action right for women is progressive in nature and not immediately realisable. This judgment effectively postponed the implementation of the gender quota.

Both Rwanda and Kenya have ratified the Convention on the Elimination of All Forms of Discrimination Against Women. The Convention has been described as the international bill of rights for women. It defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. By ratifying the Convention, both Kenya and Rwanda commit to undertake measures to end discrimination against women. These include incorporating the principle of equality of men and women in their legal system and ensuring the elimination of all acts of discrimination against women by persons, organisations or enterprises. Both countries have also ratified the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights which all contain non-discriminatory and equality clauses.

But discrimination against women is persistent despite the ratification. In Kenya for instance, only 29% of those earning a formal wage throughout the country are women. This leaves a huge percentage of women to work in the informal sector without any federal support. And in Rwanda, inheritance practices still discriminate against women. Women who are widowed, divorced, or separated in some cases still have no ownership rights to marital property.

One of the ways to ensure that progressive laws are implemented is to set up bodies dedicated to monitoring the enforcement of those laws. The National Council of Women is established under Article 187 of the Constitution of Rwanda. It is mandated to work towards a society where women as well as men enjoy equal rights and opportunities. It does this by, among other ways, advocating for gender equality through the progressive interpretation and application of the provisions of the Constitution of Rwanda.

The Gender Monitoring Office is established under Article 185 of the Constitution of Rwanda and is tasked with monitoring and supervising compliance with the country’s commitment to gender equality. It also submits to various organs recommendations relating to the programme for the promotion of gender equality and complementarity for national development.

Both the National Council of Women and the Gender Monitoring Office are fundamental institutions established by the Constitution of Rwanda that seek to work progressively towards realising and protecting the rights of women. Their roles towards this end have been crucial in the gains made for women and girls in Rwanda. For instance, Rwanda has achieved gender parity in access to education at the primary school level. In 2001, the enrollment was 76.1% for girls and 74.5% for boys. Just over a decade later, in 2013, the net enrollment in primary school was, as we saw earlier, 97.5% for girls and 95.7% for boys.

Similarly, in Kenya, the National Gender Equality Commission was established to work towards gender equality. It derives its mandate from Articles 27 and 43 and Chapter 15 of the Constitution. Its main objective is to promote gender equality and freedom from discrimination in accordance with Article 27. The functions of the Commission are outlined under section 8 of the National Gender Equality Commission Act 2011 (pdf).  Compared to Rwanda, however, implementation of gender equality in accessing the right to education has not been uniformly achieved, with the greatest gender disparities existing amongst Kenya’s poorest quintile. In the district of Wajir, for example, only 13.9% of girls are enrolled in primary school.

Rwanda has without a doubt made significant advancements in realising the rights of women and in achieving gender equality. This has been possible due to a strong constitutional backing, institutional support and government commitment. There are a lot of lessons other countries in Africa can draw from the Rwandan experience when it comes to realising and protecting the rights of women and achieving gender equity.

While Kenya has decent legislation, it has fallen short in implementing these provisions and translating them into reality for the women and the girls in Kenya. What Kenya can take from the success of Rwanda is the commitment the government, the judiciary and civil society organisations have shown in promoting the rights of women, and the role the institutions established by the Constitution of Rwanda have played. In Rwanda, civil society organisations have been active in achieving gender equality despite struggling to effectively monitor programs, rigorously analyse data and collaborate with each other, especially within the realms of women’s empowerment.

In conclusion, Kenya and other countries in Africa have a lot to learn from the Rwandan experience in promoting and protecting the rights of women and achieving gender equality. Legislation is however not enough to achieve this end. It merely states the end goals. A commitment by the government, judiciary and civil society, institutional support, advocacy and a drastic change in societal and cultural perceptions are all part of the process for an effective realisation and protection of the rights of women and achieving gender equality.

Brian Osundwa

About Brian Osundwa

Brian has an LLB from the University of Nairobi and is set to obtain an LLM in International Human Rights Law, with a specific focus on the rights of persons in situations of vulnerability. He has previously worked at the United Nations Housing Rights Programme and clerked at the North Gauteng High Court, South Gauteng High Court and Johannesburg Magistrate’s Court in South Africa. Brian has conducted research on the constitutional approach to the realisation of the rights of sexual minorities in Africa and how constitutions can be used to decriminalise homosexuality. Brian also makes weekly videos that highlight human rights violations and bad governance.