1. There are 14 new offences including gang rape, deliberate infection
with
HIV/AIDS, trafficking for sexual exploitation, and child
pornography.
2. The introduction of minimum sentences.
3. The setting up
of a DNA data bank and a paedophile registry.
4. The criminalization of
sexual harassment.
AWID: There seem to have been several starts and
stops to this legislation
and some people began to doubt that the Bill would
ever become law. Why was
this so?
NN: Some of the reasons were due to
factors beyond my control. For
instance, the process was interrupted when
Parliament was prorogued by the
President in November 2005. Other reasons
were strategic in order to ensure
the Bill got the best chance at becoming
law. On May 20, 2005 I first
presented the motion to the House for permission
to bring the Bill. The
motion caused a lot of controversy because among other
reasons, one of the
new punishments for rape that the proposed Bill sought to
introduce was
chemical castration. This caused a lot of hostility towards the
proposed
legislation. Also, since the notice of motion was way down on the
order of
business for the day, I withdrew it and removed the provision
for
castration. Later the motion was brought again and passed by the
House.
In January this year I republished the Bill. Between January and
March
2006, we had consultations with the Parliamentary Committee on
the
Administration of Justice and Legal Affairs, the police, religious
leaders
and also had a workshop for Members of Parliament. We also had
weekly
consultations with the Attorney-General. All this time amendments
were
being proposed. There were claims from some conservative religious
quarters
that the Bill sought to legalize same sex relations and abortion.
This
surprised me because knowing the sensitivity of these topics in Kenya,
I
had gone out of my way to ensure that the Bill did not appear to
address
these issues. I believe that because in the past I have spoken about
the
need to discuss abortion due to the effects of the numerous
unsafe
abortions that are carried out in Kenya, some interest groups see
anything
I do as an attempt to bring about the legalization of abortion. I
had to
call each of the religious leaders one by one and discuss this with
them.
At the end of February I republished the Bill with more amendments.
The
Bill then went for its first reading. The Committee had proposed
some
amendments such as the removal of the clause making rape within marriage
an
offence, and this was removed. The debate during the first reading was
very
heated and there was a walk out by women MPs. Parliament then went on
a
two-week recess and we took the opportunity to sensitize
women's
faith-based groups like the Catholic women's association and the
women's
guilds. These women on the ground were then able to ask their MPs to
pass
the law. After the break all the leaders of the political parties came
out
in support of the Bill. This illustrated how the power of information
in
the hands of women can be translated into positive change
through
legislation. The power of the vote should never be
underestimated.
In spite of the challenges the fact that we remained
focussed contributed
tremendously to our success. I did know, however that
even if the Bill had
not gone through, gains had already been made. The
police were already
becoming more sensitive, and the judiciary had begun
handing down stiffer
sentences for sexual offences. It did seem at one stage
that the Bill would
never become law, but I believe there was some divine
intervention!
AWID: There was very strong opposition from a group of MPs.
What reasons
did they give for opposing the proposed law?
NN: The
opposition to the Bill was organized. All this was coming at a time
when in
Uganda, the leading opposition figure Kizza Besigye was being
prosecuted for
rape, while in South Africa, former Deputy President Jacob
Zuma was also
being tried for rape. These cases were perceived by many as
political
persecution, and several of our MPs claimed that the law we were
proposing
would encourage women to make false rape allegations in order to
punish men.
There were also the deep-seated cultural gender biases that we often
face.
There is always strong opposition to proposals to enhance the rights
and
protection of women through legislation. This is the first piece
of
'woman-friendly' legislation that has actually been passed by
Parliament.
Proposals to amend the Marriage Act, the reintroduction of the
Affiliation
Act that addressed child support for children born out of wedlock
and so
on, have been thrown out. Although is not only women that suffer
sexual
violations, the Sexual Offences Bill was being touted as women's
rights
issue and for good reason since they are the victims of the majority
of
sexual violations.
We had to be ahead of the opposition every step
of the way and outmanoeuvre
them. They wanted a deletion of the clauses
making gang rape and sex with
children aged between 16 and 18, but were not
successful. Still, there were
some amendments that they succeeded in getting,
such as the deletion of a
clause that would place criminal responsibility on
employers who know that
sexual offences are going on in their workplace but
do not do anything
about it. There was also a clause inserted that provides
that a person who
makes a false allegation of a sexual offence will receive
the sentence that
the person against whom the false allegation was made would
have received.
This amendment took away much of the resistance to the Bill,
although I
believe the clause is unconstitutional.
Eventually the MPs
who opposed the Bill were outnumbered. There was a wave
of protest from all
over the country against the statement they were
making, and the support of
the population for the sexual offences law was
obvious. The media and FM
stations had a big role in getting everyone
talking about the issues and so
the opposition to the Bill did not prevail.
AWID: What support did you
get from civil society?
NN: We received different forms of support from
different civil society
organizations such as the provision of a secretariat
and contribution to
research and drafting of the Bill. They also played an
important role in
enriching the debate about sexual violence and in creating
awareness about
the Bill.
However, I must say that there needs to be
a better appreciation of the
division of roles between civil society and
law-makers, and in a case such
as this one, civil society should have more
effectively taken its cue from
those of us who were in Parliament pushing for
the law. Because civil
society cannot legislate, the mode of its engagement
with legislators is
key in getting progressive laws passed. For instance,
because of the
climate in parliament, we asked that there certain advocacy
methods not be
used; demonstrations, petitioning by text messages and so on.
However this
advice was not followed and actually served to make the
atmosphere more
hostile. There needs to be a better understanding of lobbying
strategies.
Women's rights advocates have a new found democratic space
which we need to
utilize in a different way. Previously, our strongest women
parliamentarians
were in the opposition. Now they are in government. We now
have a Ministry
of Gender. Tremendous opportunities have been opened up and
civil society
needs to adapt its strategies accordingly to make use of the
opportunities.
There should also be a greater understanding of how
parliament works. There
are different committees in Parliament. You need to
understand which Bill is
scrutinized by which committee, and then sensitize
that committee. That
committee will then sensitize the rest of the House.
What some NGOs have
done is to hold sensitization workshops that do not
target members of the
right committee.
It was clear too, that some
donors did not understand parliamentary
procedures, or what role civil
society should play in supporting
legislative reforms.
AWID: What are
some of the other challenges that you faced?
NN: I introduced the
proposed legislation to the House as a private
member's bill. This is quite
different from a government-sponsored bill.
Whereas in the case of a
government sponsored bill, civil service
technocrats would carry out the
necessary research, in the case of a
private member's bill, the Member of
Parliament bringing the bill has to
make his or her own funding, research and
drafting arrangements. It was
therefore a labour intensive project. It
was also a very costly exercise
and I had to finance part of it from my
personal resources. I am planning
to introduce a Bill on maternal policy, but
I am wary of the expense
involved.
AWID: What are the next steps now
that the Sexual Offences Act has come
into force?
NN: We are now
working on a curriculum for the training of police, the
public administration
and the judiciary on the Act and its application. We
are also working on a
public awareness programme aimed at among other
things, encouraging people to
report incidents of sexual violence, which
are generally under-reported. It
is not enough to have the law on paper; we
need to set up the systems that
will ensure its effective implementation.
For more information, please
visit
http://www.sexualoffencesbill.co.ke/______________________________________________________