The path to effective legislation on gender equality

 Parliament in session on November 9, 2023.Lawmaking should be thorough to ensure inclusivity and compliance with ratified treaties.

Photo credit: File I Nation Media Group

What you need to know:

  • Parliament is a structure of national governance directly responsible for domesticating international treaties ratified by the State.
  • It also monitors that government programmes are anchored on gender equality principles.

What role should Parliament play in ensuring legislation is gender-sensitive and inclusive? This was part of discussions at the Commonwealth Parliamentary Association workshop held in Nairobi on November 14–16 on strengthening parliamentary action against gender-based violence (GBV) and modern-day slavery.

Parliament is a structure of national governance directly responsible for domesticating international treaties ratified by the State. It also monitors that government programmes are anchored on gender equality principles. A very important role is that of budgetary allocations and control.

As it were, states parties to international treaties submit periodic reports to treaty bodies and mechanisms. Parliament has a role to play in generation of the national reports and advocating prompt submission of the same.

It also needs to critique such reports for accuracy and transparency. This enables identification of areas in which necessary legislation has not been passed and/or where existing laws are deficient and need to be amended.

Parliament should even debate such reports and be part of delegations or observers to the review forums after which it should pressure the government to address observations and recommendations made.

Parliamentarians have a role to play in scrutinising legislation for gender sensitivity and compliance with ratified regional and international treaties, generating laws to address specific gender issues and assessing the varied impacts of existing laws on women and men.

In effect, a systematic way of doing this requires a comprehensive checklist that addresses a number of factors.

First is language. To what extent is the phrasing of the law inclusive and non-patriarchal? Is it sensitive to diversity and devoid of derogatory references to either women or men?

Does it use gender-neutral language? Second, what is the intent of the legislation? Are the objects clear on who is to benefit from the law and how?

Third is the potential impact. Have the potential negative impacts on any particular group been examined and anticipated? What safeguards have been put in place to neutralise such potential impacts?

It will be remembered, for instance, that only boys have been criminalised for defilement under the Sexual Offences Act. This means that this law is inherently gender-biased against boys, to the extent of the provisions on defilement. This fault shows failure to scrutinise the potential impact of the law before enactment.

Four, does the law comply with regional and international treaties and cohere with other existing laws? If not, what needs to be done to ensure such coherence?

Five, what budgets have been allocated towards implementing gender-related provisions of the law? For example, how adequate are the resources allocated to special courts on GBV, Policare centres, state-run GBV recovery centres, maternal and child health services and the sanitary pads programme?

The workshop proposed establishment of equality committees in Parliament to spearhead and monitor gender sensitivity in the work of legislators.

This mandate encompasses sensitising all other parliamentary committees to gender-sensitive legislation so that the responsibility is system-wide and not compartmentalised.

It was noted that lawmaking can and should be made more scientific. With regard to GBV, for example, this can be done by systematically identifying the root causes of the vice using the hierarchy of determinants framework and then developing legislation that focuses on the same rather than on mere symptoms. This way, the law stops being reactive but becomes proactive, anticipatory and transformative.

Talking of proactivity, Kenya’s Chief Justice, Martha Koome, lamented at the workshop that the current use of legislation is akin to “sitting downstream waiting to catch a dead fish” instead of “going upstream to see what is killing the fish”.

This profound analogy summarises the fact that laws are largely reactive and only seek to punish perpetrators. In other words, they are designed to deal with the situation after the fact.

Making legislation scientific also requires reliance on factual data. As stated by Wangeci Wachira, the executive director of the Centre for Rights Education and Awareness, during the workshop, “what is not measured is not counted, and what is not counted is not valued”.

If Kenya looked at statistics on pregnant girls, for example, it should urgently initiate legislation to tame the scourge, which is a “national shame” as Justice Koome called it, knowing that the country has the third highest number of teenage pregnancies globally.

Legislation should also be people-driven. Parliamentary practice is that proposed laws originate either from the Executive, private members or political parties.

Should Parliament also not derive laws directly from citizens? In doing this, voices of women must be included.

In Kenya, this can be nurtured through public participation forums, as long as they are not hijacked and manipulated by gatekeepers to suit their selfish interests.

The writer is an international gender and development consultant and scholar ([email protected]).