Erosion of Civil and Political Rights in Africa: Ibrahim Index (IIAG) 2020 Report
The IIAG report concludes that 2020 was a terrible year for democracy in Sub-Saharan Africa where political freedoms have deteriorated over the last decade, with citizens having less freedom to assemble in 2019 than they did in 2010.
Is there a link between democratic liberties and human rights on one hand, and good governance and economic progress on the other? Ever since the fall of the Berlin wall, a thirty-year orthodoxy has argued that the former are indispensable to the latter. However, a report by the Mo Ibrahim Foundation raises questions about this.
According to the 2020 Ibrahim Index of African Governance (IIAG), political freedoms across the African continent have continued to deteriorate over the last decade, with citizens having less freedom to assemble in 2019 than they did in 2010, and the trend has accelerated since 2015. On the other hand, countries’ scores in the Human Development and Foundations for Economic Opportunity categories have improved, with the biggest strides being made in infrastructure and health.
And although African countries made progress in overall governance during the last decade, the rate of improvement has slowed down over the last five years which explains the below average score in 2019.
Does this mean that the Chinese model of development—which views human and political rights as a barrier to economic progress—is supplanting the Western model, which proposes that they should go hand-in-hand on the continent?
Andrea Ngombet, a human rights activist and former presidential candidate in the Republic of Congo, says that there is more to it than that.
“To be completely honest, the combination of Chinese money, Western companies’ corruption and African autocrats’ lust for power are the causes of the retreat of democracy. All of them have no interest in a democratic Africa with tax to pay, protected workers and protected environment,” he said.
When asked why democracy is in retreat in African countries, Ngombet explained, “China [reinforces] African autocrats with cheap loans which they use for clientelism and populist projects. As the loans are without any democratic conditions, it allows the autocrats to resist the civil society pressure for democracy and accountability.”
Ngombet also explains that, “When looking at the quality of economic growth, it comes with bad loans over authoritarian regimes and those loans finance unprogressive infrastructure.”
The IIAG report shows that Gambia—the most improved of the 54 African countries—experienced the most changes after 2016 when Yahya Jammeh’s repressive 22-year-reign ended, although the current regime still faces challenges in enforcing environmental policies and in the areas of quality of education, law enforcement and compliance with international health regulations.
The study, whose goal was to help further the conversation on governance in the continent and assess current and emerging trends, analysed 237 variables from 40 different sources. It revealed that African countries are performing the worst in the Participation, Rights & Inclusion category (with an overall average score of 46.2 in 2019). This decline is caused by a deteriorating security situation and an increasingly “precarious environment for human rights and civic participation”.
Nearly half the countries on the continent had less freedom to associate and assemble and a shrinking space for political pluralism and civil society at the close of the 2010s than they had at the beginning of the decade. This was the continuation of a diminution of civil liberties in the second half of the 2000s following improvements in the first half of that decade.
In particular, compared to the country’s scores in 2010, Kenya’s scores for freedom of association and assembly as well as media freedom fell by over 20 per cent from 2015 while the indicators for transparency and accountability, as well as anti-corruption mechanisms also fell during the same period.
However, the Ibrahim report does indicate that the indicators for digital access, energy access, infrastructure and human resources in the education sector have shown a marked improvement under the current Kenyan regime. This is despite a huge debt burden and numerous unresolved corruption cases.
Increased restrictions have been placed on the establishment and operations of civil society and non-governmental organisations which have also experienced higher cases of repression and persecution in most African countries. Political parties have experienced reduced access to state-owned media and public financing for their campaigns which has curtailed their operations.
Democratic elections, the only indicator that had shown a steady improvement since 2010, took a downward spiral in 2015. Election results in countries such as Uganda, Kenya, Côte d’Ivoire, Central Africa Republic, Gabon and the Democratic Republic of Congo have been consistently disputed as the integrity of the electoral process and the independent functioning of election-monitoring bodies have been compromised.
“You can not have democratic elections in the absence of strong institutions such as Independent judiciary, a parliament that is not completely corrupted, independent press, civil societies to monitor and people to engage citizens ahead of elections and inform them by helping them understand democracy rest on their shoulders, governance rests on their shoulder, and not the person that they’ll vote in for,” Tutu Alicante, executive director at EG Justice in Equatorial Guinea explains.
“It is us that [create] democracy. It is us that [create] governance and all the security, rule of law and human development and not the person [who] as soon as elected will focus on their pockets and family.”
Countries such as Equatorial Guinea, Eritrea, Chad, DRC, Rwanda and Cameroon that have scored dismally in the participation, rights and inclusion category, have all been under the rule of African leaders who have clung on to power.
These findings resonate with those of the 2020 Economist Intelligence Unit Democracy Index which placed Chad, Central African Republic and Democratic Republic of Congo at the bottom of the rankings in democracy in Africa, measured by electoral process and pluralism, functioning of government, political participation, political culture and civil liberties.
It may be encouraging for citizens of Djibouti, Somalia and Eswatini that although their countries are among those with the least scores in terms of participation, they have registered improvements over the decade.
“Full democratic participation is essential for the development in our society. In Africa if we are thinking about Ubuntu as a basic principle of our society, then clearly democracy is needed in a way in which we all participate in order for us as a society to rise up,” Tutu adds.
Egypt has performed exceedingly well in the score for infrastructure (80/100), and health development indicators (all above 60/100) yet, surprisingly, the country is the third least performing country in Africa, after Burundi and Eritrea—with a score of 7.9/100—when it comes to participation as a principal of good governance.
Egypt has been under dictatorship since the Arab Spring overthrew Hosni Mubarak in 2011. The government has authorised the blocking of close to 500 websites belonging to news outlets, blogs and human rights organisations, and in 2017 blocked the use of internet tools such as VPNs.
Other countries that have experienced drastic internet shutdowns, legal digital restrictions and surveillance include Ethiopia, Zimbabwe, Morocco, Benin, Rwanda, Morocco, DRC and Uganda. This often happens during electioneering periods or citizen protests despite “freedom of expression being a fundamental human right enshrined in Article 19 of the Universal Declaration of Human Rights and the cornerstone of democracy”, according to UNESCO, an organisation to which most of these countries belong.
Countries that have managed to transition from dictatorships or civil wars, such as Sierra Leone, Gambia, Togo, Angola and Sudan manifest increasing improvement in their citizens’ access to the fundamental civil rights.
African governments are slowly becoming more inclusive and equal in the provision of public services and the creation of socioeconomic opportunities.
Kenya and Somalia have seen the most improvements under the Gender indicator. Although Kenya has faced difficulties in passing the two-thirds gender rule (leading former Chief Justice Maraga to direct that the president dissolve parliament), it has made impressive strides in providing social-economic opportunities for women and in the representation of women in the executive even though gender equality in civil rights has declined substantially.
In contrast, women in South Africa, Ghana and Equatorial Guinea are enjoying less protection against gender violence.
Is it a question of striking a delicate balance between good overall governance and maintaining the economic growth and security of a country? Or might too much freedom lead to coups and mutiny?
The EUI Democracy report ranked Mali and Burkina Faso—both of which do not have full control over their territories and experience rampant insecurity precipitated by jihadist insurgents—as the worst performing countries in West Africa in terms of democracy. They were downgraded from “hybrid regime” to “authoritarian regime”. The report concludes that overall it was a terrible year for democracy in Sub-Saharan Africa, where 31 countries were downgraded, eight stagnated and only five improved their scores.
It is an interesting phenomenon that, despite low scores in civil and political rights, the best scores are to be found in the Foundations for Economic Opportunity and Human Development categories with 20 countries having improved their governance score in these two areas, albeit at a slowed rate in the last five years. The biggest strides have been made in the Infrastructure and Health indicators, complemented by improvements in Environmental Sustainability.
More often than not, infrastructure and health projects are marred by allegations of corruption and lack of transparency. Yet, a correlation model run by the Mo Ibrahim Foundation shows that there is a strong and positive correlation between the overall governance score and specific indicators such as rule of law and justice, inclusion and equality, anti-corruption, transparency and accountability and business environment. Even though statisticians agree that “correlation does not imply causation”, this model indicates that countries with higher scores in those indicators also have higher overall governance scores.
Yuen Ang argues that “the idea that economic growth needs good governance and good governance needs economic growth takes us to a perennial chicken-and-egg debate” whereas Meles Zenawi has claimed “There is no direct relationship between economic growth and democracy historically or theoretically. Democracy is a good thing in and of itself irrespective of its impact on economic growth and my view is that in Africa most of our countries are extremely diverse that maybe the only option of keeping relationships within nations sane. Democracy may be the only viable option of keeping these diverse nations together, we need to democratise but not in order to grow, we need to democratise in order to survive as a united same nation.”
The 2020 IIAG report paints a picture of a continent that had long embarked on the road to decline in rights, civil society space and participation before it was hit by COVID-19. Even though Africa accounts for 3.5 per cent of the global reported COVID-19 deaths, the pandemic is now threatening hard-won gains in areas such as foundations for economic opportunity and human development.
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UK Tea Firms Fail in Closing Gender Pay Gap in Their Kenyan Holdings
Kenyan holdings of UK firms should be required to report locally on gender equality and gender pay gap like they do in the UK where mandatory reporting has led to transparency and sustained action towards closing the gap.
In recent years, there has been a push for gender gap reporting as part of measures to promote gender equality. The World Economic Forum first published its Global Gender Gap Index in 2006, to compare gender gaps in economic opportunities, education, health and political participation, and has published regular reports since then.
In Kenya, Equileap first published a report on gender equality in Kenya in 2019, evaluating gender balance in leadership and workforce, equal compensation and work-life balance, policy and commitment, transparency and accountability in publicly listed companies.
While some companies have made progress in some areas, the gender pay gap—the difference in average earnings between men and women—persists. Globally and locally, women are still paid much less than men.
Equileap’s 2019 report, which assessed companies listed on the Nairobi Securities Exchange, found that, on average, women in Kenya earned 32 per cent less than their male counterparts. This was less than the global average. Globally, women earned 23 per cent less than their male counterparts.
Subsequently, Kenya was ranked ninth in Sub-Saharan Africa, lagging behind Rwanda, Namibia, South Africa, and Burundi, and ranked 57 out of 146 nations overall, and 56th on wage equality on the 2022 Global Gender Gap Index published by the World Economic Forum (WEF). According to the WEF, it will take women 257 years to achieve gender parity.
This year as the world marks the International Women’s Day, whose theme is “Embrace Equity”, the Africa Women Journalism Project (AWJP) is launching a gender pay gap campaign to challenge Kenyan companies to produce gender pay gap reports. Such reports are crucial to monitoring the efforts that companies are making to have a diverse workforce, and be inclusive and equitable.
The gender pay gap, says the International Labour Organization, is a barrier to economic growth and has a significant impact on other key sustainable development goals such as reducing poverty and ending gender inequality. The campaign will focus on all sectors where women are under-represented and their work is under-valued.
The principle of gender pay equity is provided for in Kenya’s Employment Act, 2007, which requires an employer to pay their employees equal pay for work of equal value. Further, Articles 27 and 41 of the Constitution also enshrine gender pay equity by providing for gender equality and, specifically freedom from discrimination, the right to fair remuneration and the right to fair labour practices. The principle of gender pay equity is also covered in Goal 5, on gender equality, of the 17 Sustainable Development Goals ratified and adopted by Kenya and other member states of the United Nations in 2015. Kenya has also ratified the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), which prohibits discrimination based on sex and provides for equal remuneration in Convention 111 and 100 respectively. In particular, CEDAW provides that each member state will promote and ensure the principle of equal remuneration for men and women for work of equal value.
Women are paid less over the course of their careers and subsequently save less for their retirement, subjecting them and their dependents to lifelong poverty.
These commitments notwithstanding, Kenyan women still earn less than men, with far-reaching consequences. Closing the gender pay gap in the Kenyan workforce matters because it is a glaring injustice as it violates women’s rights, devalues their work, reduces their spending power, and makes their position unequal to men from the household to the national level.
The gender pay gap is not just about pay discrimination. It arises because of the inequalities women face in access to work, progression and rewards. The European Commission states that “around 24 per cent of the gender pay gap is related to the overrepresentation of women in relatively low-paying sectors such as care, health and education. Highly feminised jobs tend to be systemically undervalued.” Moreover, thanks to the glass ceiling, men dominate higher-paying jobs.
The European Commission also argues that women have more work hours per week than men, but they spend more hours on unpaid work, which may affect women’s career choices.
As a result, women are paid less over the course of their careers and subsequently save less for their retirement, subjecting them and their dependents to lifelong poverty. The COVID-19 pandemic has exacerbated these consequences.
According to Action Aid, the gap contributes to financial insecurity and poverty among women, limits women’s life choices and leaves them more vulnerable to violence and other forms of discrimination and exploitation, since they are more likely to be financially dependent on men or other family members. This dependency can limit a woman’s ability to leave a violent partner.
Case for narrowing and closing the gap
During an Equal Pay International Coalition pledging event at the 2018 United Nations General Assembly in New York, Angel Gurría who was the OECD Secretary General at the time said, “Gender pay gaps are not only unfair for those who suffer them, but they are also detrimental to our economies. If you do not have equal pay productivity suffers, competitiveness suffers and the economy at large suffers.”
Further, the Council of Foreign Relations, a non-governmental organisation in the United States, through its Women and Foreign Policy programme, analysed how to grow economies through gender parity. Their research indicated that with gender parity in the workforce, GDP growth in sub-Saharan Africa would be US$721 billion by 2025.
In Kenya, this could translate to a 12 per cent (US$16 billion) increase in GDP if women’s participation in the workforce matched the best country in the region in terms of gender parity, and 22 per cent (US$28 billion) if women’s participation in the Kenyan workforce was fully equal to men’s. The participation rate as of 2021, which is the current available data, was at 75.6 per cent for men. This means that nearly 76 in every 100 men aged 15-64 years were economically active. Among women, the rate was lower, at 71 per cent. Not only is women’s participation in the workforce lower, they also grapple with pay imbalances.
Among them are women in the agricultural sector, which contributes 22 per cent of Kenya’s gross domestic product (GDP) and employs 54 per cent of the economically active population, according to the World Bank. Of all the workers employed in agriculture, 59 per cent are women.
As such, the sector is critical to gender pay equity because women account for nearly 60 per cent of the agricultural workforce, and one of the primary reasons for this is men’s rural-urban migration in search of paid employment in towns and cities, either in their own country or abroad.
Even in cases where men remain in rural areas, women are responsible for the production of food crops for domestic consumption and sale, as well as the rearing of animals. They are also the primary keepers of crop variety and production knowledge. Despite this, they are not fairly compensated for their work because they do not own the land. In Kenya, only 25 per cent of women own agricultural land compared to 34 per cent of men. Of the women who own land, only 3 per cent are sole owners in contrast with 26 per cent of men.
Moreover, with a high inflation rate of 9 per cent in January 2023 and higher unemployment rates—186,402 jobs were lost in 2020 according to the Kenya National Bureau of Statistics—women, who accounted for 61.9 per cent of the jobs lost during the pandemic, are more vulnerable to exploitation. Moreover, the economic realities make it harder for them to negotiate fair wages. Lack of pay transparency through measures such as gender pay gap reporting also hinders the ability to negotiate.
Even in cases where men remain in rural areas, women are responsible for the production of food crops for domestic consumption and sale, as well as the rearing of animals.
Nowhere are the disparities more evident than in the tea sector, the second top foreign exchange earner for Kenya after horticulture, contributing 23 per cent of total foreign exchange earnings and two per cent of the agricultural gross domestic product (GDP). Annually, the country produces over 450 million kilogrammes of tea of which 22 per cent is exported, earning the country KSh120 billion and making it one of the commodities that play a key role in the economy. In 2021, tea brought in KSh130.9 billion in revenue.
Tea production in Kenya is divided into two clearly differentiated sectors: the big plantations and the smallholder farmers. Over 60 per cent of production takes place on small-scale farms in Kenya, while the rest takes place in large plantations owned by companies like James Finlay and Williamson Tea.
A study of gender roles in smallholder tea production in Kenya found that women are more likely to be engaged in labour-intensive tasks in tea production—including leaf plucking and transporting plucked leaves—but are excluded from capacity-building events such as producer trainings.
Tina Makokha (not her real name) is one such woman who has worked at the James Finlay farm in Kericho for 10 years. She started out on a wage of Sh190 per day as a tea picker, and despite receiving four certificates of merit for being an exceptional employee, she earns Sh689 per day for nine hours of work per day, six days a week. After tea-picking was mechanised, women were moved from that role and given jobs in weeding, sorting the tea before transportation and clearing the cuttings left on the tea bed by the plucking machines, which are operated by men.
For the last three months, Tina has worked without pay. She is afflicted with work-related illness as a result of the agrochemicals used on the tea, but when she visits the company’s dispensary, she says the doctors downplay her complaints of chest congestion and chronic coughing. She injured her back while packing tea four months ago, and the company refused to pay her medical bills until the union threatened to sue on her behalf. The company, she claims, reluctantly subsidised her medical treatment at the company’s health centre and informed her that any specialised treatment she needed would be her responsibility.
When she refused to sign a liability waiver, the company withheld her pay she said. They’ve also stopped providing her with subsidised medical care at the dispensary.
“I’m not sure why they wanted me to sign a document that I didn’t understand. I have had to forego treatment for my back because they have withdrawn their support.
“I cannot afford the treatment because it is very expensive,” she says during the interview, which is punctuated by bouts of coughing.
She claims that she and other workers have complained to management about their working conditions, but their demands have been ignored. Tina has had to take out loans to pay for her medical treatment. At one point, she was admitted to hospital for two weeks without receiving any treatment as she did not have the money to pay.
The health centre’s services are insufficient, forcing workers like Tina to use their meagre resources to seek treatment elsewhere.
The company has established schools for its employees and those living in the vicinity of the extensive tea plantations. However, this is yet another example of the disconnect between reality and the directors’ reporting to shareholders. Tea workers like Tina must pay a hefty fee — between KSh1,000 and KSh1,200 per month—for their children to attend the company-provided school.
Tina’s daughter is still at home after scoring 328 points in the 2022 KCPE exam. Tina is unable to pay her secondary school fees because she spent all of her savings on medical treatment.
The health centre’s services are insufficient, forcing workers like Tina to use their meagre resources to seek treatment elsewhere.
“The company has built a few schools. But these are not free. The company deducts between Sh1,000 and 1,200 every month if your child attends the school. None of us has ever gotten the scholarships that the company offers as these are usually granted to the children of the managers,” she says.
Tina’s life is a snapshot of the negative effects of the gender pay gap, not just on women, but also on communities and the economy at large.
Gender pay gap disclosure
The UK, where the parent company of James Finlay Kenya is based, historically had one of the widest gender pay gaps in Europe, where for every pound men earned women earned 80 pence (for every Sh154 men earned women earned Sh122). That’s why in 2017, the UK government introduced mandatory gender pay gap reporting to narrow and eventually eliminate the pay disparity between men and women. This compelled private sector firms and public sector organisations with 250 or more employees in England, Scotland and Wales to report and publish their gender pay gap information using the gender pay gap service on their snapshot date, which is the 30th of March for most public authority employers and the 5th of April for private and other public authority employers.
The report includes figures on the percentage of men and women in each hourly pay quarter, the average gender pay gap using hourly pay, the mean gender pay gap using the hourly wage, the percentage of men and women receiving bonus pay and the median gender pay gap using bonus pay. Although discretionary, they may also publish a supporting narrative and an action plan to help explain their gender pay gap.
“The company has built a few schools. But these are not free. The company deducts between Sh1,000 and 1,200 every month if your child attends the school.”
The policy aims to make employers publicly accountable for their gender pay gaps and impel them to explain why they exist while using the gender pay gap reporting tool to inform decisions about pay structures and broader diversity and inclusion. Four years after the policy was adopted, research from the London School of Economics indicated the legislation had narrowed the earning gap between men and women by 19 per cent.
In line with the mandatory reporting requirement, Finlays (James Finlay Kenya’s parent company in the UK) files a gender pay gap report in its home country. The latest data indicate that the mean hourly pay for men is 3.9 per cent higher than that for women; median hourly pay for men is 10.6 per cent higher than that for women; mean bonus pay for women is 69.7 per cent higher than that for men; median bonus pay for women is 296.3 per cent higher than that for men and 32.8 per cent of male employees received a bonus, while 22.4 per cent of female employees received a bonus.
What about Kenya?
But although the subsidiary company that employs thousands of workers in Kenya, James Finlay (Kenya) Ltd, is registered in the UK, it is not obliged to file similar reports because the employees are not based in the UK. Even though Kenya has committed to gender pay equity through laws such as the Constitution and the Employment Act, and international conventions like CEDAW and SDGs, there are no specific guidelines to compel local companies to file gender pay gap reports.
Williamson Tea is another top tea exporter whose parent company is in the UK. The UK shareholder company does not file gender pay gap reports because it does not employ enough staff there to fall within the UK’s mandatory reporting threshold. However, the Equileap report on gender equality in Kenya, which evaluated measures including equal pay in companies listed in the Nairobi Securities Exchange, gave Williamson Tea a gender equality score of 3 per cent and ranked it at position 56 out of 60 companies. Other listed agricultural companies were also ranked: Limuru Tea (34 per cent at position 19), Sasini (16 per cent at position 42), Kakuzi (15 per cent at position 44), Eaagads (13 per cent at position 51) and Kapchorua Tea Kenya (3 per cent at position 57).
In contrast, the top three companies—Standard Chartered Kenya, WPP Scan Group and Safaricom—scored 63 per cent for offering a living wage, gender-balanced leadership and workforce, and workplace policies that promote gender equality, respectively.
The Equileap report, which used publicly available information such as the companies’ annual reports, CSR reports and websites, however, noted a lack of transparency in compensation. None of the 60 companies disclosed gender-segregated pay information, and 37 of the companies (62 per cent) did not publish information on the gender composition of their workforce.
In the UK, where Finlays and Williamson Tea have parent companies or controlling shareholders, the Equileap report revealed a gender equality score of 37 per cent versus Kenya’s 26 per cent. In 2021, the company wage bill for James Finlay Ltd was US$12.8 million (KSh1.9 billion) and it employed an average of 82 people, implying an average wage of US$156,000 (KSh 2.3 billion) for its UK head office. In contrast, the 2020 accounts for James Finlay Kenya showed that the average wage for its 6,667 employees was £2,513 (KSh372,828.68).
In 2020, the workforce of James Finlay (Kenya) Ltd was composed of management and administration, which accounted for 446 and 393 workers respectively, and sales and production, which accounted for 5,828 workers (87 per cent of their workforce). Given the structure of the tea sector in Kenya, most of these workers are likely women picking or packing tea in the fields and factories. Moreover, the 6,667 workforce for James Finlay Kenya far outstrips the numbers employed by the UK head office and manufacturing plants.
The Africa Women Journalism Project asked Finlays the mean and median hourly pay for men and women working at James Finlay Kenya and whether the company had data internally to produce a gender pay gap report for the Kenyan workforce. AWJP also asked Finlays if gender pay gap reports have helped focus attention on companies closing the gap and whether they would commit to publishing such a report voluntarily in Kenya, the location of their biggest workforce, in the next 12 months as part of a progressive corporate move.
In the UK report, Finlays Group HR Director Tamie Hutchins had said that the company was “committed to closing the gender pay gap, to equal pay and to fostering a transparent and fair working environment that rewards employees based on their performance and contribution to the success of our business.”
Given the structure of the tea sector in Kenya, most of these workers are likely women picking or packing tea in the fields and factories.
Further, Ms Hutchins said, “Finlays is committed to being an employer that demonstrates opportunity, fairness and equality and the work we are doing to reduce our UK Gender Pay Gap is essential to us achieving this goal. We are pleased to see continued improvements in our mean gender pay gap, especially in view of the impact Covid has had on working women in the UK, which has been reflected in the increase in the UK pay gap in 2021.”
In an email response to AWJP’s questions, Ms Hutchins said: “While we currently only publish gender pay gap data for our UK business, we do have plans in our new sustainability strategy, which runs to 2030, to extend the measure of gender pay gap across the whole of Finlays.”
In 2021, the company also launched the Finlays Women in Business Forum which Ms Hutchins said was “helping our female employees find their voice and supporting us in driving through the changes they tell us are needed.” Ms Hutchins was quoted in the 2021 report saying that the company’s focus in 2022 would be “to better understanding (sic) our pay quartile splits and the impact these are having on our pay gap and on opportunities for women working within our business.”
However, in response to AWJP’s question on whether there are any Kenyans on the forum and whether it discusses issues to do with women in the Kenyan workforce, Ms Hutchins said that the Women in Business Network relates to Finlays’ UK and US businesses and that James Finlay Kenya has a “Women in Leadership Programme” which “sees women in both senior and junior management undertaking a nine-month leadership development programme facilitated by Kenya Institute of Management.”
“The programme’s objective is to equip women with leadership skills and provide a network where safe discussion on work-related practices and personal empowerment can take place,” she said, adding that 28 senior managers and 23 junior managers have graduated from the programme, while 25 women are currently enrolled.
However, for women in their Kenyan sales and production workforce like Tina, such programmes in a company that has committed to fairness, equality and closing the gender pay gap, sound like a far-fetched dream.
Tina told us that her wages barely cater for living expenses and despite receiving certificates of merit for exemplary performance, she neither feels rewarded nor sees any promotions in the pipeline.
While the workers did not previously have a way to air their grievances and were also afraid of management, Tina said that the company recently began instituting a channel for the workers to air their grievances.
While Ms Hutchins did not respond to the questions on mean and median hourly pay in Kenya, Tina said she earns Sh689 per day for nine hours a day, six days a week, which she said is the standard pay for tea pickers and packers at the company.
In the absence of mandatory or voluntary gender gap reports, women face not just discrimination and injustice but vulnerability to exploitation and abuse. Recently, the BBC revealed tens of cases of sexual exploitation and sexual harassment of women working in tea farms in Kericho, including at James Finlay Kenya and Unilever Tea (which was sold to Lipton Teas). In response, Finlays said it had suspended the manager implicated in the documentary, reported the matter to the police and launched investigations into sexual violence in the company.
AWJP asked Finlays to comment on whether empowering women in their Kenyan workforce through gender pay gap reporting may help avoid these kinds of issues in the future. Finlays did not give a direct answer. Finlays Group HR Director Tamie Hutchins said the company was deeply shocked by the allegations and has policies in place to prevent abuse of any kind.
Tina said she earns Sh689 per day for nine hours a day, six days a week, which she said is the standard pay for tea pickers and packers at the company.
“As we are still formulating our approach, we are not in a position to provide specific details at the current time, but I assure you it is an area that we are working to address,” said Ms Hutchins in response to the question on whether gender pay gap reporting could help prevent cases of abuse highlighted in the BBC documentary.
Tina, who works as a tea packer at James Finlay Kenya, said that in dealing with issues of the pay gap the company would need to start with the way workers are hired and treated. She said that the contractors the company brought in to source for workers are exploitative; they pay between KSh250 and Sh300 per day, while workers employed directly by the company are paid KSh689 per day.
“While it is difficult to comment on the claims of an individual who has chosen to remain anonymous, to allow us to investigate fully, we encourage Tina to raise her concerns through the available channels, which include an anonymous whistleblowing line monitored by head office in London. I assure her that all concerns raised will be investigated, and appropriate support will be provided where needed,” James Finlay’s Tamie Hutchins stated.
“The health and safety and welfare of everyone connected to our business are of paramount importance to James Finlay Kenya. We have a well-established health and safety programme which includes staff training programmes, processes to ensure that we maintain a safe working environment for all workers, and a robust monitoring and improvement process which identifies opportunities for further development. We have a dedicated team of 22 individuals who oversee welfare at James Finlay Kenya, and a wide range of support is available to all on site.”
After the BBC documentary, Finlays said it had terminated its agreement with contracting company Sislo Holdings (whose owner was accused of sexual exploitation), and offered direct employment to the 300 workers who had been contracted by that company. She added that an approachable and respectful management, as well as an effective redress mechanism to protect women from sexual exploitation during recruitment and pathways to promotions for exceptional work would go a long way in closing the gender pay gap.
Not just Finlays
Williamson Tea is another major tea company and exporter in Kenya with significant links to the UK.
Although a listed company on the Nairobi Stock Exchange, it is ultimately majority owned by the Magor family in the UK. Its listing in Nairobi also means it has to publish its annual financial statements, which show that in 2021/22, the company’s total wage bill for its 1,105-strong workforce was KSh488,007,002, an average of KSh441,635. In contrast, the total paid to its three executive directors that year was KSh49,112,000, an average of KSh16,370,666. Moreover, its entire board of directors is male.
As a Kenyan company, Williamson Tea Kenya is not obliged to produce a gender pay gap report, but we challenged the company to provide some data and commit to doing so for our campaign.
The company had not responded to our questions by the time of publication.
Requiring local reporting on gender equality and gender pay gap, just like in the UK, where mandatory reporting has led to transparency and sustained action towards closing the gap, could also boost efforts to reduce the gap.
The National Gender and Equality Commission (NGEC) wrote a gender equality and inclusion guidebook for the private sector in 2014 to “entrench principles of equality and inclusion in business practices in Kenya.” In it, the NGEC recommends that private companies monitor gender equality and inclusion indicators such as total workforce numbers, annual numbers recruited and promoted, and contract terms by sex, as well as the pay gap between the sexes and employee satisfaction surveys. The NGEC also recommends that companies collect data on work-life balance and career development to track access to career progression opportunities through training and promotions. It recommends that companies develop and implement policies on gender equality and inclusion, and collect and publicly disclose data and reports on the status and progress made in the implementation of the recommended principles.
However, none of these guidelines are mandatory, so companies are not compelled to act to reduce the gender pay gap and other forms of gender inequality and as such, even though Kenya has ratified various conventions on equal pay, without mandatory reporting criteria, employers are not held to account to provide information on gender matrices.
A report published in 2021 by the Global Institute for Women’s Leadership at Kings College London recommends actions countries can take to build systems that bridge the gender pay gap in tandem with policies on parental leave, minimum wage and pay transparency as part of a broader strategy to address workplace gender inequality.
The report recommends not just laws, but also guidelines from the government as well as monitoring and enforcement of compliance. In the report, the researchers recommend that employers be made accountable to government agencies and publish transparent gender pay gap reports.
“Gender pay gap reports should be included in a company’s annual report and sent to shareholders, investors and other interested parties. Employers should also, crucially, be accountable down to their employees, whether to a group of employee representatives, trade unions, or to the organisation as a whole.”
Even though Kenya has ratified various conventions on equal pay, without mandatory reporting criteria, employers are not held to account to provide information on gender matrices.
Beyond publishing pay gap reports, the institute recommends that companies provide action plans with clear, measurable and time-bound goals to narrow the gap, and that sanctions be applied to those who do not comply with laws on gender equality. Moreover, because small and medium-size businesses account for majority of employers, policies to address the gender pay gap should not be limited to large employers alone. In addition, government and employers should collect data on the difficulties faced by women based on social factors that could keep them from workforce participation and career progression.
For employers, the institute recommends that they advertise all jobs as flexible where possible, address blockages to women’s employment and progression, work to increase pay transparency and end outsourcing of low-paid workers where possible.
Enforcing gender pay reporting through the Ministry of Labour and Social Protection and the Ministry of Public Service, Gender and Affirmative Action can help narrow the gap by improving compliance and the quality of reporting by ensuring the reporting processes are followed by actionable, custom-fit and executable plans to address existing pay gaps.
This article was produced as part of the Financial Reporting Skills for Gender Reporting Fellowship with support from the Africa Women Journalism Project in partnership with Finance Uncovered and the International Center for Journalists (ICFJ).
Elections 2022: Perceptions From the Ground
Voter experiences during the election process revealed different experiences from Kenyans.
Kenya held its general elections on August 9, 2022. A total of 14 million registered voters turned up for the exercise. Angaza Kura, a free election monitoring tool, conducted a survey to capture the experience of voters as they engaged in the electoral process as well as map incidents of electoral violence and more. The survey, which ran from August 1 to August 31, 2022, covered 29 counties in Kenya and targeted adults aged 18 years and above. The survey instrument consisted of closed-ended and open-ended questions that were designed to gather information on the pre-election, election day and post election. The data collection process involved administering an online survey through a web-based platform. With a sample size of 267 respondents which is a smaller size than what is considered statistically significant of a calculated sample of 1,067 to represent the entire 14 million voters turn out therefore, this provided an indication rather than a definitive representation of the population.
The survey focused on the voter’s experiences during the election process and the extent to which they felt the elections were free, fair, and credible. It aimed to establish whether Kenyans had exercised their right to vote, as well as their satisfaction with the election results and the entire electoral process. Additionally, the survey sought to establish if there had been any form of violence during the election period.
The survey revealed that in the pre-election period, clashes between supporters of opposing candidates were the most reported incident in Wajir, Uasin Gishu, and Kakamega. This suggests that clashes that were instigated by candidates or their supporters recordedthe significant source of tension and disagreement among individuals and groups. Interestingly, since Kenya introduced multiparty elections in 1992, the 2022 elections was the first electoral cycle were ethnic tensions did not record the highest source of conflict. However, they were still a factor of tension during the election season.
The majority of respondents also rated their area as very peaceful or peaceful. However, a significant minority gave a rating of not very peaceful or violent.
Voter Education and Campaigns Experience
The survey also examined the voter education and campaign experience. Majority of the respondents were not voting for the first time. 23% of the respondents were first time voters. This shows that a relatively small portion of the population is experiencing the voting process for the first time. More than three-quarters of the respondents said they had received sufficient information to prepare them to vote in the election.
However, over three-quarters of the respondents felt that hate speech was highly present during the campaign period.
Half of the respondents reported witnessing voter intimidation or incitement during the campaign period in their area. This despite, the aggressive civic education by government and civic society. Inspite of recorded increase in political hygiene among political actors, the analysis reveals the need to re-think civic education with respect to increasing political hygiene during electoral processes.
On election day, the most reported incidents reported mailny involved the voter habits, viz. how Kenyans carried themselves as they voted. In most polling stations, order and sense of calm was recorded among Kenyans. Ethnic clashes, and candidate supporters clashes were however reported. Most of these events were organic and sporadic in different areas. This suggests what Fredrick Ajwang and Geoffrey Lugano had predicted in a piece for this platform, that the August 2022 elections will not only will they be relatively peaceful but also that Kenya’s history of large-scale political violence may be a thing of the past.
The report also indicated that respondents were split on whether the elections were free, fair, and credible and whether they were satisfied with the elections results. 51% indicated that the elections were free, fair and credible and 49% indicated that the elections were not free, fair and credible.
More than 10% of all the respondents came from Kisumu, Nairobi, Vihiga, Kwale and Mombasa.
The survey found that the respondents differed on this issue, and it aimed to explore the underlying reasons for this split in opinion. One possible explanation for the split in opinion is that the nature, the issues, and the organising principles of these elections. To be specific, not having massive violence, a shift from ethnic politics of organising to religous, class and economic organisng, contributed to this shift. Also, how the results were tallied was a contributor to the divergent opinion.
In conclusion, the Angaza Kura survey provides valuable insights into the experiences and concerns of Kenyan voters during the 2022 general elections. The survey highlights the need for greater attention to be paid to issues related to hate speech, incitement, and electoral violence. Additionally, the survey underscores the importance of ensuring that the election process is free, fair, and credible, and that all voters are informed and prepared to participate in the electoral process. By addressing these issues, Kenya can take significant steps towards creating a more peaceful, democratic, and inclusive society.
This publication was funded/co-funded by the European Union. Its contents are the sole responsibility of The Elephant and do not necessarily reflect the views of the European Union.
Exclusion of Intersex People: A Systemic Conundrum
Kenya is the first country in the world to have included intersex people as a distinct group during the last census in 2019. However, much remains to be done to raise public awareness across the country about who intersex people are and the importance of protecting them.
John Karanja attempted suicide three times before realising that his life, after all, had meaning. Karanja, who was born Dorcas Wangui in 1993, did not notice his body was different until he was eleven years old when he began puberty. However, in order to understand Karanja’s journey, we must first understand Dorcas Wangui.
Wangui was born and raised in Gatundu South, the last of 12 siblings. The attending physician observed that the new-born possessed both female and male genitalia. He assured the parents that the child’s visible male genitalia would “disappear” as she approached puberty. The doctor was describing some of the characteristics of an intersex person.
The report of the Taskforce on Policy, Legal, Institutional and Administrative Reforms on Intersex Persons in Kenya describes intersex persons as those who have ambiguous genitalia, both internal and external, and do not fit into the binary categories of male or female. The ambiguity could be anatomical (i.e. a bodily structure like the vagina, penis, or breasts), hormonal (e.g. oestrogen, testosterone), gonadal (i.e. reproductive organs like the ovaries and testes), or chromosomal (i.e. genetic makeup, e.g. XX, XY). In essence, each intersex person is one-of-a-kind. According to the UN Office of Human Rights, 1.7 per cent of the world’s population is born with intersex characteristics.
There are more than 46 variations of intersex conditions, according to Dr Milton Diamond, a renowned American professor of anatomy and reproductive biology. These variations can be detected at various stages, including pregnancy screening, birth, childhood, puberty, and adulthood; a person can have multiple variations.
Wangui’s parents returned home, overjoyed to have a daughter. They kept their worries to themselves and did not follow up with the doctor. After all, having an intersex child was and is still not openly discussed, let alone acknowledged.
Wangui’s body began to change during her adolescence, as is typical. She began to notice physical changes when she started secondary school in 2009. She was perplexed at the age of 16 as to why she had never had menstruation. Her voice was also beginning to deepen, something she only observed with her male age-mates. Wangui’s parents had never explained that she was born different from her siblings, so she had no idea how to interpret the ambiguous anatomical changes.
During this period of confusion and ridicule from peers, Wangui attempted to commit suicide but failed. She dropped out of school the following year and fled to Nairobi, leaving her family and friends in the dark.
Intersex people face discrimination from the moment they are born because they are labelled as either male or female. They face discrimination as they grow because their sex characteristics do not correspond to the gender assigned to them by medical doctors and their parents.
Consider the case of an intersex student attending an all-male school who, instead of breaking his voice, begins to develop breasts! Because there is rarely a support structure in schools—or in society in general—for intersex students, many choose to drop out. The psychological stress and pressure are enormous, and many people consider suicide as a means of escaping their situation.
Most intersex children are assumed to be female due to the biological formation of a child in the womb. Typically, the first organs to develop are female, followed by male genitalia. When a child reaches puberty, hormones begin to assign themselves in accordance with what is dominant. Intersex people have health predispositions that are uncommon in males and females, according to Dr Paul Laigong, a paediatrics endocrinology lecturer at the University of Nairobi. “These are conditions such as electrolyte imbalance, delayed puberty, infertility, sexual dysfunction (difficulty in having or enjoying sex) and gender identity crises,” he says. The latter—gender identity crisis—in particular, was what Wangui was experiencing.
Wangui was accommodated in the big city by her older sister, who lived in Kariobangi. Wangui was surprised to see so many girls and women wearing trousers, which was unusual in Gatundu, her rural home. Wangui had never worn trousers before, preferring to dress in skirts and dresses as dictated by her parents, who considered her a girl.
When a child reaches puberty, hormones begin to assign themselves in accordance with what is dominant.
Wangui’s physical appearance continued to change after she arrived in the city. People in the neighbourhood began to wonder why a “boy” was wearing dresses and skirts. As a result of her growing dissatisfaction with her body, she attempted suicide twice more. It wasn’t until 2012 that she decided to finally confide in her sister, and then their mother, both of whom were extremely supportive. Wangui also changed her name to John Karanja at this point, hoping to make it official as soon as possible.
According to the task force report, intersex is not a new phenomenon or concept. While the existence of intersex people has long been recognised in Kenya, talking about sex is frowned upon, and even mentioning the more unusual sex statuses such as intersex is still unthinkable. As a result, most communities either lacked proper names to describe them or used euphemisms to refer to them. These terms are rarely used in public discourse.
Robert Edgerton, an American anthropologist, conducted research on the cultural beliefs and perspectives on intersex people among the Pokot in 1964. According to the study, an intersex child was viewed as an unfortunate occurrence and a freak, with some members of the community stating that if they had such a child, they would kill it. Others saw the killing of intersex children as a cultural and religious obligation.
Retrogressive beliefs continue to endanger intersex children and cases of infanticide (the intentional killing of children under the age of twelve months) continue to be reported in some places, such as Western Kenya, a crime under Kenyan law.
Because of a history of shame and stigma, parents are coerced into subjecting their intersex children to unnecessary surgical procedures in order to “normalise” them and make them fit into binary stereotypes. Jedidah Wakonyo Waruhiu, a former commissioner at the Kenya National Commission on Human Rights (KNCHR) and former member of the Intersex Persons Taskforce, believes that the right to health of intersex people should be guaranteed before birth.
According to Jedidah, “assigning a gender to intersex children causes problems in their natural biological and social lives.” “It becomes more problematic when parents force their children to undergo gender normalising surgeries, even if the sex development disorders do not pose a health risk,” she adds.
This is what happened to *Zuri, who was forced by her family to have surgery at the age of 16. Zuri, now in her 30s, had not realised her body was different until she was eight years old. Her parents were aware of her intersex status from birth and even had an endocrinologist (a doctor who specialises in diagnosing and treating hormone-related diseases and conditions) confirm it. Despite the ambiguity, they chose to raise Zuri as a girl and stuck to their decision, even as male characteristics emerged over time.
The doctor advised them not to operate on Zuri because there was no danger to her health. Ignoring the doctor’s advice, Zuri was subjected to the surgery that would transform her into the daughter they had always wanted, assuming her health was not jeopardised.
What followed was hormone replacement therapy and chronic depression. Her academic performance suffered as a result, and she attempted suicide on several occasions. “The mental anguish and physical problems I’ve had as a result will most likely never be resolved,” she says. Sadly, being intersex comes with stigma. Many times, Zuri, a freelance web developer and graphic designer, has potential clients cancel their projects based solely on the sound of her voice. “Traditional 9 to 5 jobs don’t work for me because I don’t “fit” in hierarchical structures,” Zuri explains.
Ignoring the doctor’s advice, Zuri was subjected to the surgery that would transform her into the daughter they had always wanted, assuming her health was not jeopardised.
Kenya became the first country in the world to count intersex people as a stand-alone group during the 2019 Population and Housing Census. Conversations about intersex people were rare on public platforms prior to 2007, and have been gradually peaking since then. The first case involving the rights of people with intersex conditions in Kenya was presented in court that year, prompting an increase in media coverage.
Unlike Karanja, Zuri has never had trouble obtaining official documents because her birth certificate and all related documents show that she is female. She has never been denied services.
Karanja, on the other hand, has faced a slew of difficulties. In 2012, he went to Milimani Law Courts to have his name legally changed so that he could change his academic records and resume school. He was a bright student who hoped to return to school, either all-male or mixed, where his gender ambiguity would not be an issue. Karanja and his family requested that the Kenya National Examinations Council (KNEC) change the name on his primary school examination records because no school would admit him. It was difficult to follow up on the case because they couldn’t afford a lawyer.
Karanja met a benefactor during this time who assisted him with the medical process of testing and, later, surgery. Between 2013 and 2017, he underwent four successful surgeries. In 2015, the benefactor helped him enrol in an all-boys school in Kisumu. Except for the principal, no one knew he was intersex. Karanja, however, was unable to take his national examination at that school because his official name remained “Dorcas Wangui.” He enrolled in a mixed school to take his final exam, where he had to present an affidavit proving his gender identity.
Karanja believes that if he had been identified as intersex at birth, access to basic human rights such as education would be the reality rather than a pipe dream. He is unable to enrol for higher education because his image and the names on his documents are contradictory. Years later, he is still attempting to persuade the Kenya National Examinations Council to change the name. According to the task force report, the majority of intersex people of school-going age have limited access to education, with only about 10 per cent completing tertiary education.
The Taskforce Report made a key recommendation that the relevant agencies expedite the provision of birth certificates, identification documents, passports, and other official personal documentation that include provisions for the intersex (I) marker. This would be accomplished through the amendment of the Births and Deaths Registration Act (Cap. 149), the Registration of Persons Act (Cap. 107), the Interpretation of General Provisions Act (Cap. 2), the Kenya Citizenship and Immigration Act, (Cap 172), and the Children Act, 2001.
The Kenyan government established an Intersex Persons Implementation Coordination Committee (IPICC) in 2019 with the mandate of assisting the government to implement the recommendations of the Intersex Persons Taskforce Report. According to Veronica Mwangi, IPICC’s Head of Secretariat, the IPICC is in the process of developing a database for intersex people that will ensure centralized data for all intersex children and adults in Kenya to help the government make decisions.
Kenya became the first country in the world to count intersex people as a stand-alone group during the 2019 Population and Housing Census.
Veronica points out that Kenya made big strides by becoming the first country globally to count intersex people as a stand-alone group in the 2019 Population and Housing Census. “This has paved the way for the inclusion of an intersex sex marker in key government systems such as Chanjo (the COVID-19 vaccination portal), the Kenya National Commission on Human Rights (KNCHR) complaints management system and the Independent Policing Oversight Authority (IPOA),” she says.
In 2021, the secretariat was joined by a member from the civil registration services, a move that is critical in ensuring children born intersex have a right to a name and that name change services are simplified. Veronica also mentions that IPICC has been collaborating with the Kenya Law Reform Commission, the Office of the Attorney General and legal practitioners to develop a comprehensive law amendment that will address the concerns of intersex people.
Inconsistent Intersex Data
Karanja is one of 1,524 intersex people counted in the 2019 census, out of a total population of approximately 47.6 million. The census was conducted from 24 to 31 August 2019, with a follow-up exercise on 1 and 2 September to cover those who were not counted during the seven-day period.
A year earlier, the Intersex Taskforce had published a report in which they estimated that the population of intersex persons in Kenya was 779,414. The taskforce had conducted a field survey in each of the 47 counties from June to October 2018. To supplement the research, data collected by the Kenya National Commission on Human Rights between October 2016 and April 2017, as well as data from various state and non-state institutions, were used. This was Kenya’s first survey specifically targeting intersex people.
The discrepancy in the intersex data collected is astounding. According to former commissioner Jedidah Waruhiu, a follow-up by the KNCHR after the census revealed that while the enumerators had received intersex training, certain cultural factors came into play during the data collection process. For example, the mostly-young enumerators felt awkward asking elderly people gender and sex-related questions. Similarly, those who were not explicitly asked the gender marker question found it difficult to raise the issue, fearing that the revelation would stigmatise them in the community. “Many families were not comfortable answering the sex question as the majority of enumerators were locals in the areas where they were collecting data,” says Jedidah.
In other cases, the enumerators would simply look at a person and, without asking a question, indicate on the form the gender of the person they were interviewing based on their outward appearance, such as mode of dress. This was done so that they could quickly finish the questionnaire and move on to the next person. As a result, many intersex people were left out of the count.
Other than the census, the Kenya National Bureau of Statistics (KNBS) has not included intersex persons in any other of its reports. Despite accounting for less than 1 per cent of the population, intersex persons are important contributors to the economic growth of the country, according to the KNBS research. According to the census report, at least 41 per cent of intersex people were in the labour force.
Despite global progress in recognising intersex peoples’ rights, the Sustainable Development Goals (SDGs) do not include intersex people. SDG 5 addresses gender equality, but the emphasis is on women and girls. However, an indirect reference is made to SDG 10, which deals with reducing inequalities within and between countries. By 2030, one of the SDG targets is to empower and promote the social, economic, and political inclusion of all people, regardless of age, gender, disability, race, ethnicity, origin, religion, or economic or other status.
This also applies to SDG 16, which aims to promote “peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable, and inclusive institutions at all levels.” SDG 16 includes goals such as “providing legal identity for all, including birth registration,” and “promoting and enforcing non-discriminatory laws and policies for sustainable development.”
Despite global progress in recognising intersex peoples’ rights, the Sustainable Development Goals (SDGs) do not include intersex people.
While the SDGs do not include direct targets for intersex people, policymakers and stakeholders in participating states have a responsibility to provide them with equal opportunities because they are bound by international and regional legislative and human rights frameworks.
The Universal Declaration of Human Rights (UDHR), for example, recognises all people’s inherent dignity and worth, stating unequivocally that “all human beings are born free and equal in dignity and rights”. Another important framework is the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which guarantees the right to self-determination and the enjoyment of all other ICESCR rights to all without regard to gender, birth, or other status.
In Kenya, granting intersex people the right to documentation, which unlocks many of their rights and freedoms, is key to enabling intersex people to contribute to the economy.
Richard Muasya, an intersex person, filed a case in court in 2010 alleging violation of his constitutional rights. Muasya had been charged with the capital offence of robbery with violence a few years before, arrested, and imprisoned in Kitui. Following the discovery of Muasya’s intersex status during a routine physical search, the Kitui Magistrates Court ordered that he be remanded in isolation at the Kitui Police Station pending trial.
Muasya was later convicted, sentenced to death, and transferred to Kamiti Maximum Prison, a male-only prison for death row convicts. Muasya was initially forced to share cells and facilities with male inmates, but was later held in solitary confinement. Because of his condition, he was allegedly subjected to invasive body searches, mockery, and abuse while in prison.
Muasya argued in court that he should have been detained in a separate facility with specially trained staff rather than being placed in a male prison. The court acknowledged that the petitioner’s situation was unique and had not been anticipated by the legislature, but determined that creating a prison specifically for him would be impractical.
In Kenya, granting intersex people the right to documentation, which unlocks many of their rights and freedoms, is key to enabling intersex people to contribute to the economy.
The court ruled that neither the Prisons Act nor the Prisons Rules discriminated against intersex people. It dismissed Muasya’s claim that he was unconstitutionally detained in the police station while his trial was pending, and ruled that the petitioner’s social stigma was not a legal issue. Further, the three-judge panel ruled that there was no empirical data that could lead the court to conclude that intersex people require recognition. The court, however, awarded Muasya KSh500,000 in compensation for the inhuman and degrading treatment he endured.
Regardless, the Prisons Act did not (and still does not) specify where intersex people should be detained.
Advocacy for issues affecting intersex people was low-key at the time. Kenya was undergoing constitutional reform at the time Muasya’s case was dismissed. According to former KNCHR commissioner Jedidah Waruhiu, this was a missed opportunity to incorporate intersex issues into the constitution.
Three years later, a petition for Baby A, an intersex baby born at Kenyatta National Hospital, was filed in court. The hospital included a question mark in the column for indicating the person’s gender in the birth notification document. The baby’s mother claimed that the use of a question mark to indicate the baby’s gender was a violation of the child’s rights to legal recognition, dignity, and freedom from inhuman and degrading treatment. In addition, the petitioner claimed that the failure of legislation such as the Registration of Births and Deaths Act to recognize children with intersex conditions violated various children’s rights guaranteed by the constitution as well as various international human rights treaties.
This was the second case to be decided in the Kenyan courts concerning the rights of persons with intersex conditions. In a much more progressive ruling, the court ruled that while Baby A’s rights were not violated, the Attorney General (AG) was ordered to bring before the court information related to the organ, agency, or institution responsible for collecting and keeping data related to persons with intersex conditions. Further, the AG was ordered to file a report identifying the status of a statute regulating intersex as a sex category, and guidelines and regulations for any corrective surgery for persons with intersex conditions. Finally, the Court ordered that Baby A’s mother move to make an application for the registration of Baby A by the Registrar of Births and Deaths.
In Kenya, only a handful of laws have been changed to accommodate intersex people. According to the 2014 Persons Deprived of Liberty Act, while a body search of any person must be carried out by a person of the same sex, an intersex person has the right to choose the sex of the person conducting the search.
The Registration of Persons (Amendment) Bill, 2019 is currently pending in the Senate. Once approved, the Intersex sex marker will be concretised as a third sex marker in law.
Misinformation/sensationalisation about intersex people
Being intersex is a gender marker, just like being male or female, and is usually assigned at birth based on sex characteristics. Being intersex is frequently misunderstood as a description of one’s sexual orientation or gender identity (the personal sense of one’s own gender, which may differ from the assigned sex in some cases). It is frequently lumped into the LGBTQIA category, and as a result, people are dismissive of intersex people’s plight.
Granted, much of the societal apathy stems from how the media, both local and international, covers stories about intersex people. For a long time, they were referred to as “hermaphrodites”, implying that they are both fully male and fully female. That is not only deceptive but also stigmatising. While they are now referred to as “intersex people”, reports about them are still sensationalised, which is usually a ploy to attract more readers.
When ratings and readership come first, no matter how accurate the information, the news often becomes a mere source of entertainment. It cannot be overstated how damaging sensationalisation of such issues is to society. People’s perceptions of even the most mundane things are shaped by the news. Reports on intersex people, on the other hand, must be approached with the utmost professionalism and respect if we are to change the narrative about them.
Kenya could possibly borrow best practices on reporting from the Australian Human Rights Commission. Their reporting guidelines for people born with sex differences advise journalists to always begin by asking the interviewee about their preferred terms or descriptors, and to avoid making assumptions about the terms a person may use.
It is important to note that unless an intersex person has volunteered that information, asking them questions about their bodies or genitals is inappropriate. Additionally, the interviewer should not mix up Intersex issues with sexual orientation, gender identity, or LGBTQI identities.
When ratings and readership come first, no matter how accurate the information, the news often becomes a mere source of entertainment.
Not to be overlooked is how a lack of data contributes to a fair share of misinformation and stigmatisation of intersex people, both past and present. In the absence of hard evidence on intersex people, retrogressive cultural beliefs that lead to infanticide or abandonment of intersex children who are perceived to be a curse, as well as misinterpretations of religious canons, are used to frame the narrative.
Intersex people face discrimination at school, work, and in social settings as a result of misinformation and stigma. This has an impact economic wellbeing due to a lack of job opportunities and, in some cases, a lack of education. Overall, the impact on their mental health is immeasurable from a young age.
Greater intentionality is required to make intersex people more visible and heard, which requires continuous data collection and their inclusion in all country statistics. Hopefully, this will lead to more accurate and more nuanced discussions about intersex people.
Need for sensitisation
Jedidah contends that introducing the Intersex “I” marker will allow medical professionals and parents to follow up on children since birth, raise them as intersex, and biologically monitor them. “This fixing of male or female is what is causing problems for the children as they grow in their natural biological life, as well as in their social life,” she adds.
There is an urgent need to educate healthcare workers across the country about the needs and rights of intersex people. This awareness should be achieved both during and after training. According to Dr Laigong, the Ministry of Health should provide additional assistance by providing diagnostic equipment, lab support, and social amenities. However, he observes that progress in sensitising medical practitioners is being made. “Right now, the University of Nairobi has a fellowship programme to train paediatricians in paediatric endocrinology,” he explains.
Veronica Mwangi observes that while the government has set up the Intersex Persons Implementation Coordination Committee, no funds have been allocated to the secretariat to support intersex people’s work or programming. As a result, there is a lack of public awareness across the country about who intersex people are and the importance of protecting them. Donor support is also difficult to come by. “Some donors are hesitant to support intersex person programmes on their own,” she adds.
The world is gradually realising that referring to intersex people as hermaphrodites is derogatory. Intersex people’s human rights violations extend beyond barriers to healthcare and employment. Gender-based violence, educational access, and land rights are all issues that must be addressed.
During antenatal care, expectant mothers should be tested for intersex genetic conditions, according to Jedidah. This way, the doctors and parents of an intersex baby can ensure that the necessary treatment and documentation is provided from the start. Moreover, if the gender of the baby is unknown, registration bureaus should add an ‘I’ marker to avoid guessing the sex.
The world is gradually realising that referring to intersex people as hermaphrodites is derogatory.
Karanja is still determined to attend university and pursue a degree in information technology (IT). However, before this can happen, his Kenya National Examinations Council certificate must show the name John Karanja rather than Dorcas Wangui. He recently completed a certificate course in Graphic Design and is looking for work in the field.
Zuri, on the other hand, is still undecided about changing her marker in the future. “It shouldn’t be up to an oppressed group to constantly demonstrate their humanity,” she says. “Regardless of the circumstances, we are all deserving of equal rights under the law.”
This article was produced with support from the Africa Women’s Journalism Project (AWJP) in partnership with Article 19, Meedan and the International Center for Journalists (ICFJ).
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