The Proposed Family Protection Bill in Kenya
Meet Viola*. A teenage girl in high school was the victim of consistent abuse from an adult male caregiver in her home. Thankfully, Viola was able to get the help she needed at a nearby shelter that serves as a rescue centre for girls who are victims of sexual abuse. She was able to access the necessary psychosocial and medical care that allowed her to keep pursuing her goals. Her dream is to become a doctor, and she hopes that she can give back to her community and give other girls who would have fallen prey to abuse another chance to go after their own goals.
Meet Evan*. a working father and a constant victim of both emotional and physical abuse. He has tried seeking some form of confidential help but to no avail. An unfortunate scenario triggers him about their sexual abuse by a housekeeper while they were younger.
Unfortunately, Viola and Evan’s cases are not unique. The disrupted education schedule as a result of COVID-19 saw many young students stay home, and this inadvertently put them at a higher risk of experiencing a form of abuse. It could range from rape, FGM, emotional and sexual abuse, and even child marriages.
Sadly, this does not stop with abuse based on age. Sexual and gender-based violence is so prevalent in Kenya, with statistics from UN Women placing a 40.7% likelihood that there will be intimate partner violence experienced in a woman’s lifetime. Sexual and gender-based violence (SGBV) entails widespread human rights violations and is often linked to unequal gender relations within communities and abuses of power. Jewkes notes that violence against women is rooted in gender inequality. He argues that violence against women involves men and women, where "the female is usually the victim," and that it arises from the unequal power relationships between men and women.’ It can take the form of sexual violence or persecution by the authorities, or it can be the result of discrimination embedded in legislation or prevailing societal norms and practices. It can be both a cause of forced displacement and an intolerable part of the displacement experience. (Kenya Law) C.J. Koome, in 2022 launched an SGBV court in Shanzu in an effort to increase the efficacy of the judicial system in prosecuting cases linked to SGBV. Owing to its success and need across the country, the same model is slowly being replicated across the country as part of the strategic partnerships supported by the International Development Law Organization (IDLO).
The Proposed Family Protection Bill in Kenya is a piece of legislation considered in various quarters as an important step towards protecting and safeguarding the rights of individuals, families, and communities from various forms of violence, including domestic violence, child abuse, and neglect. The bill was introduced in 2020 and is expected to replace the current Protection Against Domestic Violence Act, which was enacted in 2015. The proposed bill seeks to provide holistic protection to families by providing a comprehensive framework for addressing such violence. This also includes provisions for reporting and investigating cases of violence, as well as providing support and rehabilitation to victims. This proposed legislation will be beneficial not only to women but also to men, who are often subjected to physical or psychological abuse within their homes without any form of recourse or justice. It offers a much-needed platform where victims can seek redress through legal action if they believe the perpetrators in such cases have violated or ignored their rights.
The bill has several key components, including criminalizing certain acts related to family abuse; introducing new protective orders; creating specialized police units dedicated solely to dealing with cases involving family abuse; establishing a national registry where individuals convicted of such crimes will be listed publicly; and raising awareness on this matter through various campaigns aimed at educating citizens on how best they can protect themselves from potential threats within their own homes. Additionally, it provides resources needed by victims, including access to medical care services, counseling services, safe shelters, etc. Furthermore, this law could act as a deterrent against potential offenders since its provisions include hefty fines and jail terms depending on severity. This would serve both punitively (punishing wrongdoers) and preventatively (discouraging others from engaging in similar acts due to fear of repercussions). It must be noted, it has both positive and negative implications beyond just prevention. Its implementation would increase public awareness about issues related to domestic and gender-based violence, which could lead people to be more cautious when entering relationships so they don’t end up becoming one themselves someday down the line.
If passed into law, this legislation could prove instrumental in curbing the prevalence rate of familial abuse occurring throughout Kenya. It would ensure that all citizens are given equal rights under the law regardless of whether one belongs to an urban area or a rural one; while also making sure perpetrators receive appropriate punishment according to the severity of the crime committed upon innocent individuals who were simply trying to defend themselves against physical/emotional/sexual assaults coming from someone close by whom they trusted most but failed them miserably instead! Such a measure might even encourage people to come forward and openly report instances when faced with similar situations in the future, thus helping reduce the occurrence rate further!
The bill is expected to go a long way in promoting the rights of families in Kenya and protecting them from violence and abuse. It is supported by various organizations, including CitizenGo, a global petition platform that advocates for family values and human dignity and hails it as “essential” in promoting the values and cultural identity of Kenyans. They add, “The bill also suggests clamping down on the promoters and funders of LGBTQ activities. The Bill recognizes that sex is a physical state of being male or female, which is observed and assigned at birth, and not an identity that one is free to choose and assign themselves. I believe it is imperative that we are clear on the definitions of sex and gender. All people have some form of gender identity. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other gender expressions, including dress, speech, and mannerisms. This challenges a couple of misconceptions that would otherwise make the bill discriminatory against a minority group of people whose rights and freedoms are protected under the Universal Declaration Of Human Rights, fortunately, or unfortunately, which Kenya has ratified. They include;
● That human nature is to be classified with reference to a male/female binary system on the basis of the sex assigned at birth;
● That persons fall neatly and exclusively into that system on the same basis;
● That it is a legitimate societal objective that, as a result, persons adopt the roles, feelings, expressions, and behaviours that are considered inherently “masculine” or “feminine.”
There have been growing criticisms of the proposed Family Protection Bill in Kenya, particularly in relation to some of the provisions that have been included in the bill. One of the main areas of criticism has been the provision in the bill that seeks to criminalize homosexuality and same-sex marriage. Critics argued that this provision is discriminatory and violates the rights of individuals who identify as LGBTQIA+. It was also noted that criminalizing homosexuality is not a solution to the issue of violence in families and that it could actually create more problems by pushing LGBTQIA+ individuals to hide their identities and experiences. The bill also seeks to ban comprehensive sex education (CSE) and criminalize funding the LGBTQIA+ agenda, among other similar objectives. Contrary to sensational media representation, CSE includes scientifically accurate information about human development, anatomy, and reproductive health, as well as information about contraception, childbirth, and sexually transmitted infections (STIs), including HIV. While it is important to recognize a parent’s agency over their children’s education, it would be like an ostrich burying its head in the sand if sexual health and wellness were still approached as taboo. This will inadvertently erode all the strides that have been made, even in addressing the rampant cases of SGBV, as we end up with what might also be termed an “ignorant populace.”
This bill has the potential to negatively impact access to healthcare and medical services for marginalized communities, particularly in relation to reproductive health and family planning. A recent paper by PLOS on the utilization of sexual and reproductive health among teenage girls in Kenya indicates that only 36% accessed a medical facility in the last year for a sexual and reproductive health consult. The paper demonstrated the need for interventions, policies, and practices to be implemented across structural, health facility, community, interpersonal, and individual levels to comprehensively support adolescent girls in accessing and using sexual and reproductive health services. The provisions in this proposed bill could lead to the additional stigma around issues related to sexuality and reproductive health and could make it even harder for those who are already marginalized to access the care and support they need.
A few weeks after the Kenyan Supreme Court’s majority ruling permitting the registration of LGBTQ non-governmental organizations (NGOs), the Member of Parliament, Honourable George Peter Opondo Kaluma, introduced the bill to the Kenyan House. On February 24, Kenya’s supreme court ruled that individuals with homosexual orientation have the right to form and register associations in the East African country, with three of the five-judge bench arguing that “despite gayism being illegal (in Kenya), they have a right to association.” The majority judgment by Justices Philomena Mwilu, Smokin Wanjala, and Njoki Ndung’u received dissenting opinions from Justices Mohamed Ibrahim and William Ouko. Members of the Kenya Christian Professionals Forum (KCPF) described the ruling as “deeply” disturbing, Catholic Bishops in the country stated that it “seeks to destroy life,” and a Catholic Bishop described it as against the “natural order of beings”. The critique of this is that while Kenya respects all the religious beliefs, or lack thereof, of its citizens, it is a secular state, and there has always been a clear distinction between church and state.
While Kenya is poised to benefit from a lot more stringent regulation to protect its citizens against any form of abuse, especially SGBV; as is the pretext for this proposed bill; it will be imperative that some components of it are redrafted so that we can still protect some of the fundamental human rights and freedoms that we have established as a country for our citizens.
