A Critical Analysis of Efforts to Mainstream Gender Into Kenya's
HIV/AIDS Strategy
By Juda Strawczynski
Introduction
“While HIV/AIDS is a health issue, the epidemic is a gender issue.”1
The HIV/AIDS pandemic was initially seen solely as a health issue. Many
governments consequently developed policies aimed at protecting public health but that
violated human rights.2 HIV/AIDS laws and policies frequently violated civil and
political rights; for example, compulsory testing and mandatory reporting requirements
violated privacy rights, and compulsory treatment regimes violated rights to security of
the person and principles of non-discrimination.3 Many of these early legislative efforts
either disproportionately negatively affected women, or targeted ‘high risk’ women,
(such as female prostitutes or women engaging in sexual relations with men who had had
more than one partner,) which re-enforced stigma and contributed to women’s
discrimination and vulnerability.4
Since then, the gendered nature of HIV/AIDS has become increasingly
recognized, which has led to an increased interest in using law as a means of addressing
the pandemic’s effects on women.5 It is generally held that law serves as one instrument
that, combined with other initiatives, can be used to address women’s rights.6
Kenya recently recognized that both legal and extralegal measures are required to
address the gendered nature of HIV/AIDS. A 2002 report, entitled Mainstreaming
Gender into the Kenya National HIV/AIDS Strategic Plan 2000-2005 combines law
reform with policy recommendations to develop a gendered approach to the pandemic.7
Mainstreaming Gender represents a gendered policy shift that was years in the
making. During the late 1990s the government of Kenya asserted strong political
leadership in the fight against HIV/AIDS. In 1999 the government established the
National AIDS Control Council (NACC) to coordinate a multi-sectoral response to the
1
The Gender and HIV/AIDS Technical Sub-Committee of the National AIDS Control Council,
Mainstreaming Gender Into The Kenya National HIV/AIDS Strategic Plan 2000-2005, (Nairobi: Office of
the President, Government of Kenya, November 2002) at 2 [Mainstreaming Gender].
2
Vicci Tallis, Gender and HIV/AIDS Overview Report (Brighton UK: BRIDGE, Institute of Development
Studies, September 2002) at 8.
3
David P. Fidler, “The HIV/AIDS Pandemic and Civil and Political Rights” in International Law and
Public Health: Materials on and Analysis of Global Health Jurisprudence (New York: Transnational
Publishers Inc., 2000) at 297.
4
D.C. Jayasuriya, “AIDS-Related Legislative Strategies Relating to Women and Infants” International
Journal of Law and Family 7, (1993) 1-17 at 4.
5
Ibid.
6
Ibid.
7
Mainstreaming Gender, supra note 1.
HIV/AIDS crisis.8 By 2000, the NACC published the Kenya National HIV/AIDS
Strategic Plan 2000-2005 (KNASP). Many gender dimensions of HIV/AIDS were
recognized while KNASP was being developed; however, the KNASP did not
recommend gender-sensitive law reforms or incorporate programmes that explicitly
focused on gender. In 2001 the NACC formed a Technical Sub-Committee on Gender
and HIV/AIDS Task Force, which was asked to develop guidelines and a strategic
framework to engender the 2000-2005 Strategic Plan, and in November 2002 the
Technical Sub-Committee released Mainstreaming Gender. The report was supported by
both the NACC and the Office of the President. It is accepted as aspirational government
policy with respect to women’s rights and HIV/AIDS.
Mainstreaming Gender marked a major step forward in the recognition of the
gendered nature of the HIV/AIDS crisis. It has been used by the international donor
community as a case study in integrating gender into national HIV/AIDS programmes. 9
However, the on paper commitments need to be assessed according to whether the
commitments have translated into action on the ground. This paper critically evaluates
both Mainstreaming Gender itself, and Kenyan efforts to implement the legal and policy
reforms described within the document. It is argued that the Mainstreaming Gender
document provides a strong first step towards engendering HIV/AIDS programming. It
recognizes that legal reforms are necessary to recognize the gendered nature of the
epidemic, and to protect vulnerable populations. Moreover, the document recognizes that
law is only one tool to be used in the fight against HIV/AIDS, and that other policy tools
should be used to compliment law reforms. However, it is also argued that the
Mainstreaming framework has its shortcomings. In addition, problems in implementing
both HIV/AIDS programming generally, and gender-sensitive initiatives specifically,
have delayed and occasionally derailed the law reform process and the engendering of
HIV/AIDS programs.
Part I demonstrates that Mainstreaming Gender was part of a broader regional and
international legal movement towards the recognition of women’s health rights. The
section also highlights the risk that formal commitments with strong aspirational value
frequently remain unimplemented. Parts II provides an overview of the strengths of the
Mainstreaming Gender. In Part III Mainstreaming Gender is critically assessed, and the
weaknesses of the framework are outlined. Part IV contrasts the recommendations
contained within Mainstreaming Gender to the mixed success in reforming HIV/AIDS
programming to better reflect the gendered nature of the epidemic. Part V provides legal
and policy recommendations to improve the development and implementation of
gendered HIV/AIDS strategies within Kenya.
UNAIDS, “Geographical Area – Kenya” online: UNAIDS,
<www.unaids.org/EN/geographical%2Barea/by%2Bcountry/kenya.asp> [UNAIDS, “Kenya”].
9
Angeline Siparo, “Gender mainstreaming in Kenya: A case study of successful policy development”
(Nairobi: POLICY Project Kenya). Abstract by the International AIDS Society (IAS) online: AIDS
Education Global Information System <www.aegis.com>. Mainstreaming Gender has been widely
disseminated and is available from numerous international development websites including: Eldis Gateway
to Development Information at <www.eldis.org/static/DOC11414.htm>; Policy Project at
<www.policyproject.com/pubs/countryreports/Kenya_NACC_Gender.pdf>; and UNESCO’s HIV/AIDS
Clearinghouse at <http://hivaidsclearinghouse.unesco.org/ev_en.php?ID=1682_201&ID2=DO_TOPIC>.
8
2
It is hoped that this paper will highlight the role that law and legal institutions can
play in combating the gendered nature of HIV/AIDS, and that the proposed legal and
policy recommendations will assist in the preparation of Kenya’s next HIV/AIDS
Strategic Plan,10 and in improving efforts to engender the fight against HIV/AIDS both in
Kenya and globally.
PART I – SITUATING MAINSTREAMING GENDER WITHIN AN
INTERNATIONAL FRAMEWORK
Mainstreaming Gender reflects an international movement towards the
recognition of a right to health free from gender-based prejudice or discrimination. Alicia
Ely Yamin’s overview of the international right to health is particularly helpful.11 She
suggests that international legal sources have recently “gone far in clarifying the
normative content of the right to health and in eroding arguments that the right to health
cannot be a fundamental, and enforceable, principle in law and policy making”.12
Yamin notes that international law has established a right to life that requires the
state to eliminate epidemics.13 This right imposes a positive obligation on states to fight
the spread of HIV/AIDS. In addition, Yamin demonstrates that the authoritative
statement for the right to health found in Article 12 of the International Covenant on
Economic, Social, and Cultural Rights (ICESR) has been further developed by General
Comment 14 of the Committee on Economic, Social and Cultural Rights.14 Yamin further
notes that the general right to health is also found in Article 16 of the African (Banjul)
Charter.15
Yamin also explores how the principle of non-discrimination has recently
developed to protect HIV/AIDS patients from stigma, and to secure their right to access
treatment and medication regardless of gender.16 The Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW) establishes that state parties
must eliminate discrimination against women in the area of health care.17 Yamin explains
10
According to UNAIDS, a Joint Annual Programme Review conducted in September 2004 led to the
Kenya National Strategic Framework (2005-2010); UNAIDS, “Kenya”, supra note 8. As National Plans
may be regularly reviewed, it is hoped that recommendations within this paper may be incorporated into the
new National Strategic Framework. This paper does not address the new National Strategic Framework as
at the time of writing the Framework was not available.
11
Alicia Ely Yamin, “Not Just a Tragedy: Access to Medications As a Right Under International Law” 21
B.U.I.L.J. 325 (Fall 2003).
12
Ibid., at 330.
13
The Right to Life, U.N. GAOR Human Rights Comm., 37th Sess., Supp. No. 40, at Gen. Comment No.
6, P 5, U.N. Doc. A/37/40 (1982) as discussed by Yamin, supra note 11 at 331.
14
Article 12, International Covenant on Economic, Social and Cultural Rights., G.A. Res. 2200, U.N.
GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc A/6316 (1966), 993 U.N.T.S. 3 (adopted Dec. 16, 1966)
(ratified by Kenya on May 1, 1972); General Comment 14: The Right to the Highest Attainable Standard of
Health, U.N. Comm. on Econ., Soc. & Cultural Rts., 20th Sess., P 12, U.N. Doc. E/C.12/2000/4 (2000), P
12 as discussed by Yamin, supra note 11 at 336.
15
African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986 at art 17, as discussed by
Yamin, supra note 11 at 338 (ratified by Kenya on Feb. 10, 1992).
16
Yamin, supra note 11 at 346-347.
17
Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature
Mar. 1, 1980, 1249 U.N.T.S. 13, (entry into force Sept. 3, 1981) (ratified by Kenya on March 9, 1984).
3
that the CEDAW Committee’s General Recommendation on “Women and Health”
requires that State Parties ensure that women are free from discrimination in accessing
health information, education and services.18
In addition to the sources of protection noted by Yamin, the CEDAW Committee
General Recommendation 15: “Avoidance of Discrimination against Women in National
Strategies for the Prevention and Control of Acquired Immunodeficiency Syndrome”
should be stressed. 19 Recommendation 15 calls on state parties to pay particular attention
to the needs of women and other vulnerable groups, and makes wide-ranging
recommendations, from having states collect information on the effects of AIDS on
women, to developing safeguards to ensure that women participate in the primary health
care system, to developing means of preventing discrimination against HIV-positive
women. This General Recommendation is worth highlighting as it relates directly to
National HIV/AIDS Strategies, and Mainstreaming Gender acts as Kenya’s method of
incorporating gender into the Kenya National HIV/AIDS Strategic Plan.
It is clear that sources of international law including UN Resolutions,
international Treaties, regional agreements and recommendations from UN TreatyMonitoring Bodies have developed a right to health that increasingly recognizes the
rights of people suffering from HIV/AIDS. Kenya is a party to the above-mentioned
international legal instruments.20 Although Mainstreaming Gender does not specifically
incorporate any international legal materials, as the section below indicates, the document
builds on the rights being espoused and developed through international mechanisms.
Yamin suggests that, “it can no longer be argued that the content of the right to
health is unduly vague for implementing legislation or enforcement, or that it sets out
merely political aspirations.”21 This comment reflects how the right to health has been
criticized as being aspirational rather than being a non-derogable right. When examining
Mainstreaming Gender, it must be asked whether the Technical Sub-Committee has
18
Committee on the Elimination of Discrimination against Women, General Recommendation 24: Women
and Health (20th Sess., 1999), in Compilation of General Comments and General Recommendations by
Human Rights Treaty Bodies, as 244, U.N. Doc. HRI/GEN/1/Rev.5 (2001), as discussed by Yamin, supra
note 11 at 347.
19
Committee on the Elimination of Discrimination against Women, General Recommendation 15:
Avoidance of Discrimination against Women in National Strategies for the Prevention and Control of
Acquired Immunodeficiency Syndrome (AIDS) (9 th Sess., 1990), in Compilation of General Comments and
General Recommendations by Human Rights Treaty Bodies, at 212, U.N. Doc. HRI/GEN/1/Rev.5 (2001).
For a detailed analysis of the CEDAW Committee’s interpretation of this Recommendation, as well as how
UN Treaty Monitoring Bodies generally analyze country actions with respect to HIV/AIDS, see The Center
for Reproductive Rights and University of Toronto International Programme on Reproductive and Sexual
Health Law “Sexually Transmissible Infections (STIs) including HIV/AIDS” in Bringing Rights to Bear:
An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights (New York,
The Center for Reproductive Rights and University of Toronto International Programme on Reproductive
and Sexual Health Law, 2002).
20
Kenya’s international legal obligations with respect to women’s rights are well-documented by Mumbi
Mathangani, “Women’s Rights in Kenya: A Review of Government Policy”, 8 Harvard Human Rights
Journal, 179, no.4 at footnote 4. Mathangani also argues at 191 that although Kenya has not directly
incorporated international legal instruments into domestic law, which is required for them to become
enforceable in Kenya, any ambiguities in domestic law should be interpreted to be consistent with
international treaties to which Kenya is a party.
21
Yamin, supra note 11 at 336.
4
developed a framework that is likely to become a non-derogable, actionable framework,
or whether the recommended strategies are aspirational in nature.
PART II – STRENGTHS OF MAINSTREAMING GENDER
This section provides an overview of Mainstreaming Gender and its successes.
i) A Successful Process
The process of creating Mainstreaming Gender can itself be regarded as a success
story. First, a group of technical experts needed to be established. The very task of
assembling the necessary “core group” was seen as a success in itself.22 Both the
Technical Sub-Committee and the editorial committee were composed of members of the
domestic government, the University of Nairobi, local non-governmental organizations
(NGOs), as well as representatives from international institutions such as the United
Nations and the World Bank.23 In addition to constituting a committee of relevant
expertise, the mixture of international and domestic participants created an environment
that would allow for two-way information exchange.
Second, and perhaps more importantly, the document grew out of a highly
participatory consultative process. Siparo notes that the Technical Sub-Committee met
with 48 stakeholders, ranging from government ministries and donors to NGOs and
people living with HIV/AIDS, and meetings varied from workshops to grassroots
consultations.24
The document serves both as a clear recognition of the gender aspects of the
HIV/AIDS pandemic, as well as a road map for the development and implementation of
“proactive engendered” programs to be administered under the Kenya National
HIV/AIDS Strategic Plan for 2000-2005.25
ii) Recognizing the Gendered Nature of HIV/AIDS
Gupta suggests that the essential first step towards overcoming gender inequality
is, “to recognize, understand, and publicly discuss the ways in which the power
imbalance in gender and sexuality fuels the epidemic.”26 Mainstreaming Gender is
Kenya’s recognition of the gendered nature of the HIV/AIDS pandemic, and of the power
imbalances that drive the pandemic. It serves as a clear, forthright account of the
disproportionate effect of the HIV/AIDS pandemic on women and girls. It also explains
how a lack of gender sensitivity in government policies can lead to a further feminization
of the HIV/AIDS crisis. Although academics and advocates had previously noted the
22
Siparo, supra note 9.
“Annex 2 Technical Sub-Committee on Gender (TSG) Member List” in Mainstreaming Gender, supra
note 1 at 31-35.
24
Siparo, supra note 9.
25
Mainstreaming Gender, supra note 1 at iv.
26
Geeta Rao Gupta, “Gender, Sexuality and HIV/AIDS: The What, the Why and the How”, Plenary
Address, XIIIth International AIDS Conference, Durban, South Africa, July 12, 2000, online: International
Center for Research on Women (ICRW) <www.icrw.org/docs/Durban_HIVAIDS_speech700.pdf> at 4
[Gupta, “Gender and HIV/AIDS”].
23
5
gender dimensions of HIV/AIDS,27 Mainstreaming Gender represents a major policy
piece that documents and accepts gender inequalities as a major issue to be addressed.
The document provides HIV/AIDS data by gender to reveal that by numbers
alone the pandemic disproportionately affects women and girls. The paper’s Background
section notes the barriers of sexual violence, discrimination based on gender, and cultural
norms may place women at greater risk for HIV/AIDS.28 The paper further suggests as an
introductory note that women bear the greatest burden of the pandemic, as women serve
as caregivers, and girls are forced to leave school to help in the home.29 By taking these
gender roles as given, the Technical Sub-Committee was able to then advance the
discussion of the effects of gender on the pandemic. The report provides a succinct
overview of gender and vulnerability to HIV/AIDS. The Technical Sub-Committee noted
that gender vulnerability factors to HIV/AIDS include social, cultural, economic, and
religious factors.30 It was acknowledged that women face several overlapping barriers to
sexual autonomy.31
The Technical Sub-Committee relied on two field studies (conducted in 2001 and
2002) which served to reveal the determinants of gender vulnerability to HIV/AIDS in
the Kenyan context.32 These studies indicated that although there are several determinants
of gender vulnerability that always are at play, gender-based policies will have to be
tailored to be effective, as the lead determinants may vary by region and by community
groups within a given region.33 The case studies were an important first step as they
bridged the theoretical concepts of the interconnection between gender and HIV/AIDS
with actual communities and regions within Kenya. These studies can be seen as another
means by which the Technical Sub-Committee affirmed that gender issues permeate the
HIV/AIDS pandemic not just in a theoretical academic sense, but in a sense that affects
Kenyan society at all levels.
Mainstreaming Gender recognizes that gender roles, including power imbalances
between men and women, contribute to the spread of HIV/AIDS, and that the
containment of the pandemic will require that gender issues be incorporated into
HIV/AIDS strategic planning. To that end, the Technical-Subcommittee provided
recommendations for developing engendered policy decisions.
iii) Providing a Road Map for Engendering HIV/AIDS Programming
The Mainstreaming Gender analysis recognized that Kenyan society is shaped at
all levels by gender. Men have greater power both within heterosexual relationships and
within broader economic, political and social spheres. But the authors also noted that
See Catherine Hankins, “Human Rights, Women, and HIV” Canadian HIV/AIDS Policy & Law Review,
Vol. 2, No. 4, July 1996 (QL); Cathi Albertyn “Using Rights and the Law to Reduce Women’s
Vulnerability to HIV” Canadian HIV/AIDS Policy & Law Review Vol. 5, No. 4, 2000 (QL).
28
Mainstreaming Gender, supra note 1 at 2.
29
Ibid. at 3.
30
Ibid. at 13-15.
31
Ibid. at 15.
32
Ibid. at 7-11.
33
Ibid. at 8.
27
6
since gender is learned it can also be unlearned.34 Mainstreaming Gender therefore sets
out both legal and extralegal policies that aim to redefine gender within Kenyan society.
The paper notes that breaking the present gender roles will require a “partnership
of responsibility” between men and women.35 Men will need to use their current positions
of power in order to advocate for changes in gender roles, while women will need to
become economically and socially empowered.36 Major societal changes will be
necessary in order to respond to the gendered HIV/AIDS pandemic.
Mainstreaming Gender recommends the explicit incorporation of gender issues
into all HIV/AIDS policies, and provides guidelines as to how gender can be
mainstreamed into the five priorities identified in Kenya’s National HIV/AIDS Strategic
Plan 2000-2005. The policy recommendations range from relatively minor alterations to
existing policies, to complete social change.
Extralegal Reforms
In the area of Prevention and Advocacy, the report recommends, among others,
the improvement of economic opportunities for women, support for girls’ education, and
the engendering of all technical aspects of HIV/AIDS initiatives.37 In the area of
Treatment and Support Mainstreaming Gender recommends that policies be developed to
provide equitable access to ARVs, and that men and women share the burden of homebased and community care.38 The Mitigation of Social and Economic Impacts of
HIV/AIDS on men and women is to be engendered by addressing stigma, and by
supporting men who are working to mitigate the social and economic impact of
HIV/AIDS.39 It is further recommended that gender-sensitive indicators be included, that
disaggregated data be provided, and that regular gender audits of HIV/AIDS programs
are conducted to mainstream gender into the Monitoring, Evaluation and Research
priority.40 For the fifth priority area, Management and Coordination of HIV/AIDS
programs, the Technical Sub-Committee recommended that gender training be provided
to frontline HIV/AIDS workers and policy analysts, that the National AIDS Control
Council engender all of its budgets, and that best practices be shared between partners.41
Legal Reforms
Mainstreaming Gender recommends legal reforms within the five priority areas.
The Technical Sub-Committee recommends that property and inheritance rights be
reformed to promote the economic independence of women.42 It also proposes that the
34
Ibid. at 12.
Ibid. at 16.
36
Ibid.
37
Strategies 1.4, 1.8 and 1.13, Mainstreaming Gender, supra note 1 at 21-22.
38
Strategies 2.2 and 2.2, Mainstreaming Gender, supra note 1 at 23-24.
39
Strategies 3.1, 3.3, Mainstreaming Gender, supra note 1 at 24.
40
Strategies 4.1, 4.8, 4.9, Mainstreaming Gender, supra note 1 at 25-26.
41
Strategies 5.2, 5.5, 5.4, Mainstreaming Gender, supra note 1 at 26.
42
Strategy 1.2, Mainstreaming Gender, supra note 1 at 21.
35
7
government engage in law reform in the areas of family law,43 and in the area of
prostitution and the human rights of sex workers.44
Mainstreaming Gender also recognizes the need to receive full consent from
participants in HIV-programming, testing and research. The Technical Sub-Committee
recommends the promotion of gender-sensitive voluntary counseling and testing, and that
mother-to-child transmission programmes require fully informed consent for HIV
testing.45 The authors also recommend that protocols be developed to “ensure that all
participants in all HIV/AIDS related research, especially vulnerable groups of women
and children, have given informed consent and know that their rights are protected.”46
As the Critique section below will indicate, the general nature of these
recommendations is a shortcoming of the Mainstreaming Gender document.
iv) Gupta’s Framework for Evaluating Gendered Intervention
Gupta developed a framework for evaluating the gender components of
HIV/AIDS interventions. Interventions that reinforce existing stereotypes likely lead to
further stigmatization, vulnerability and sexual violence, and should therefore be
avoided.47 Gender neutral strategies make no distinction based on gender. While Gupta
suggests that these strategies are likely to be ineffective, they are “better than nothing”
and do no harm.48 Tallis, however, suggests that gender neutral strategies may cause
harm.49 She returns to Gupta’s examples of gender-neutral messages such as ‘stick to one
partner’. Tallis suggests that these messages could increase women’s vulnerability to HIV
infection. She presents the case of a woman who is faithful to her partner and believes
that she is safe from infection, when this may not be the case.50 Gupta’s remaining three
responses positively incorporate gender. Gender-sensitive programming, such as
providing women with female condoms and microbicides, meets the different needs of
different genders.51 Transformatory responses seek to reduce vulnerability and stigma,
and address underlying beliefs in order to transform gender relations.52 An example is
Men as Partners programming that involves men in open discussions that allows for
understanding of women’s sexuality and gender, and thereby reduces violence against
women.53 Approaches that empower aim to reduce power imbalances between men and
women by providing vulnerable groups such as women with information and
opportunities to participate in decision-making.54 As an example, Gupta refers to an
Indian program in which sex workers developed their own group identity and became
43
Strategy 1.3, Mainstreaming Gender, supra note 1 at 21.
Strategy1.13, Mainstreaming Gender, supra note 1 at 22.
45
Strategy 2.6, Mainstreaming Gender, supra note 1 at 23.
46
Strategy 4.6, Mainstreaming Gender, supra note 1 at 25.
47
Gupta, supra note 26 at 4-5.
48
Ibid. at page 5.
49
Tallis, supra note 2 at 29.
50
Ibid. at 29.
51
Gupta, supra note 26 at 5.
52
Ibid.
53
Ibid.
54
Gupta, supra note 26 at 6.
44
8
decision-makers.55 Gupta notes that gender-sensitive, transformatory, and empowering
approaches are not mutually exclusive; rather, they must occur simultaneously.56
v) Mainstreaming Gender Meets Gupta’s Benchmarks
Mainstreaming Gender appears to have successfully implicitly adopted Gupta’s
theory. The Technical Sub-Committee’s recommendations range along the continuum
from gender-sensitive interventions (communications strategies targeted at specific
groups including women; provision of female condom use among sex workers), to
transformatory (reforming family laws; promotion of couple counseling) to empowering
(participation and decision-making of sex workers in sex work programmes; develop
strategies to enable girls to stay in school). As Gupta suggests, these recommendations
are to be implemented simultaneously.
Mainstreaming Gender is a strong first attempt at addressing gender within
Kenya’s HIV/AIDS policies and programs. The framework offers a clear recognition of
the gendered nature of the epidemic, and recommends a mix of gender sensitive,
transformatory and empowering strategies. The report advocates for a repositioning of the
nation’s HIV/AIDS strategy so that gender issues are considered at all stages of planning,
implementing and monitoring of HIV/AIDS programs. Mainstreaming Gender goes
beyond the health systems approach by advocating for nation-wide change in gender
relations. Law is used as one tool to be used in conjunction with other interventions to
engender Kenyan society and HIV/AIDS strategies. However, Mainstreaming Gender
suffers from several shortcomings that could be remedied by future policy frameworks.
PART III – CRITIQUES OF MAINSTREAMING GENDER
i) Lack of Direction
Although Mainstreaming Gender offers excellent theoretical rationales for the
need for empowering gender policies within HIV/AIDS programming, the document
does little to detail how this will be accomplished. The Technical Sub-Committee
proposes 48 strategies for developing engendered HIV/AIDS programmes in keeping
with the five priority areas identified by the National AIDS Control Council.57 Although
the report was successful in stating what an engendered HIV/AIDS programme would
incorporate, Mainstreaming Gender does not attempt to discuss in any detail how the
recommendations should be implemented.58
55
Ibid. at 6.
Ibid. at 6.
57
The recommendations can be found in Mainstreaming Gender, supra note 1 at 21-26.
58
Interestingly, stating what an engendered programme would incorporate is a Specific Objective noted
within the document, while implementation of recommendations is not directly addressed, Mainstreaming
Gender, supra note 1 at 19.
56
9
Law Reform
An examination of certain proposed legal reforms shows how a lack of detail can
prove highly problematic. The Technical Sub-Committee recommends the reform of
property rights and inheritance laws.59 However, beyond calling for law reform, the
Technical Sub-Committee offers no explanation as to why law reform is necessary, how
law can be used to assist in transforming societal notions of gender, how reforms should
be implemented, or under what timeframe. The defects of the current laws are not stated
or analyzed. Model legislation is not presented.
Similar defects exist in the Technical Sub-Committee’s call for family law
reform, changes in prostitution laws, and the development of consent requirements. The
call for “continued reform in family laws by supporting sustained strong political
commitment of all decision makers” is vague, and fails to explain either what family law
reforms are most pressing, or how the laws should be reformed.60 Although prostitution
laws may require reform, the Technical Sub-Committee does not articulate what changes
are necessary. The Sub-Committee could be advocating for the decriminalization of
prostitution. Or perhaps it wishes to see criminal law provisions that directly address
sexual violence against sex workers. Unfortunately, the general recommendation that
prostitution laws be reformed does not address what reforms are necessary. When the
Technical Sub-Committee calls for the development of consent requirements, it is unclear
whether government or service providers are responsible for undertaking this task. Nor
do the authors of Mainstreaming Gender explore the content of such consent.
HIV/AIDS Programming
In addition to providing more detailed insights into how strategies should be
implemented, Mainstreaming Gender could have suggested which organizations and
institutions should be responsible for implementation, and how harmonization among
stakeholders should occur.
Without an action plan for implementation, or any recommended timelines for
implementing changes, the 48 strategies risk becoming aspirational goals that are not
intended to be fulfilled in the near future.
ii) Insufficient Local Case Studies
A related problem is the lack of local input found within the document itself.
While the process used to develop the guidelines was the product of participatory
consultation sessions, little local knowledge has filtered through to the final version of
Mainstreaming Gender. The report refers to two Kenyan case studies, but on the whole
the report remains technical, academic and dry. The Technical Sub-Committee had heard
from people living with AIDS, as well as NGOs; the Sub-Committee could have used the
Mainstreaming Gender guide to highlight successful examples of empowering
HIV/AIDS interventions. For most of the 48 strategies, the Technical Sub-Committee
likely heard about initiatives already in place that address gender barriers. The Technical
Sub-Committee could have identified best practices, and recognized leaders within
59
60
See Legal Reforms, above, for more on this topic.
Strategy 1.3, Mainstreaming Gender, supra note 1 at 21.
10
communities for their engendered policies and programming. These best practices could
have served as preliminary sketches that would shape how the Sub-Committee’s
strategies would be implemented.
iii) Additional Opportunities for Law Reform
Given that Mainstreaming Gender affirmed that the HIV/AIDS crisis as a gender
issue and recommended legal reforms as part of an engendered fight against HIV/AIDS,
it is surprising that the report did not address how the judiciary could be better equipped
to take gender into account when dealing with HIV/AIDS-related cases. The Kenyan
judiciary has recently suffered major setbacks, including lowered public support
stemming from judicial corruption.61 Nevertheless, the judiciary may act as a leader in
the movement to shift gender roles.
There is some cause for optimism on this point. Recent Kenyan court decisions
suggest that the judiciary is developing the common law to protect women’s rights as
well as the rights of HIV-positive individuals. In Mukungu v. Republic the Kenya Court
of Appeal held that a rape conviction can be entered without corroborated evidence, and
that the requirement of independent corroborative evidence breaches the constitutional
right of women and girls to be free from discrimination.62 Prior to this case, certain courts
had required corroboration. Prosecutors had to collect medical evidence to connect an
accused to the crime. Such corroboration could include medical examinations of the
assailant and the victim of rape, and could require DNA sampling. The Mikungu decision
removes a major barrier to prosecution. It also safeguards victims’ rights, which may
encourage victims of rape to report the incident to authorities.
The Kenyan High Court also recently rejected an argument that Kikuyu
Customary Law prohibits married daughters from inheriting land given to them by their
father.63 The court noted that, “A daughter is a daughter, whether married or not” in
holding that three sisters were entitled to inherit a plot left to them by their father.64
Kenyan courts have also protected the rights of HIV-positive individuals. In
Nyumbani Children’s Home v. The Ministry of Education and The Attorney General
ninety-one children were banned from public schools because they were HIV-positive,
forcing the children to attend private schools or study at home.65 The parties settled
before the case was decided when the public schools eliminated their restrictions on HIVpositive students. This case demonstrates that strategic litigation can prove effective
In 2003 a special committee found that over half of the country’s 300 judges and magistrates were
corrupt. Thirty-eight magistrates have been suspended to date. US Department of State, “Kenya – Country
Reports on Human Rights Practices – 2004” (28 February 2005) online: US Department of State,
<www.state.gov/g/drl/rls/hrrpt/2004/41609.htm> [US Department of State, “Kenya 2004”].
62
“Kenya, Court of Appeal, [2003] (2) EA” case summary in Legal Grounds – Reproductive and Sexual
Rights in African Commonwealth Countries (New York: Center for Reproductive Rights, February 2005) at
33 [Mukungu].
63
“Married daughters not barred from inheriting land – Kenyan judge” (29 October 2004) online:
Legalbrief Today < http://www.legalbrief.co.za/article.php?story=20041029083907580>.
64
Ibid.
65
“Kenya, High Court at Nairobi; Application No. 1521 of 2003 (OS)” case summary in Legal Grounds –
Reproductive and Sexual Rights in African Commonwealth Countries (New York: Center for Reproductive
Rights, February 2005) at 52.
61
11
when strong, predictable courts can be expected to protect individuals against
discrimination.
In fall 2004, the Kenyan courts also allowed an HIV-positive woman to proceed
with an action against her former employer for dismissing her in violation of her
constitutional right to employment.66 The plaintiff is seeking damages from her doctor
and hospital for violating her constitutional right to privacy.67 By holding that the case
could proceed, High Court Judge Lady Justice Murugi Mugo clearly stated that the court
should foster the development of a rights framework for those affected by HIV/AIDS
stating:
Given the nature of this case and the universality of the HIV/AIDS
pandemic and the development of human rights jurisprudence together
with the ongoing attempts at the harmonization of the relevant conventions
with domestic law, I would be hesitant to overlook the positive features of
the application before me.68
Lady Justice Mugo also accepted that courts can assist in changing social norms
regarding HIV/AIDS. She noted that,
I find the decision useful as [it] relates to circumstances where the
treatment of HIV/AIDS patients by doctors, hospitals, employers and
others has been put to legal scrutiny with a view to moulding attitudes and
public policy, such the same should be free of discriminatory tendencies.69
Although this preliminary case only dealt with whether the plaintiff’s case could proceed,
it can be seen as an example of the court’s ability combat stigma through the affirmation
of individual rights of HIV-positive people.
The above cases suggest that judges can use Kenyan law to strengthen sexual
assault enforcement, to protect women’s inheritance rights, and to protect HIV-positive
individuals from discrimination based on HIV/AIDS status.
PART IV – IMPLEMENTING CHANGE – MIXED RESULTS
Since the publication of Mainstreaming Gender, Kenya has had mixed results in
implementing the strategies recommended by the Technical Sub-Committee. This section
highlights both success and failures in implementing gendered programs since 2002.
Gaps in our knowledge of implementing gendered HIV/AIDS programs will also be
noted. The section is intended to reveal current activities so that future HIV/AIDS
strategies can take into account best practices, identify and target current weak links in
the national response to HIV/AIDS, and develop gender sensitive data collection and
“Kenyan HIV carrier wins first round in anti-discrimination suit” Daily Nation (17 September, 2004)
online: The Daily Nation Website, Nairobi (Global Newsbank).
67
Ibid.
68
Ibid.
69
Ibid.
66
12
monitoring. The section proceeds by examining legislative reform, as well as HIV/AIDS
prevention initiatives, treatment programs, and the underlying conditions for women.
i) Legislative Reform
Since Mainstreaming Gender’s release, the government has moved towards
legislative changes that could improve women’s rights, as well as provide for equitable
access to treatment, care and support services.
The National Commission on Gender and Development Act
Mainstreaming Gender was released in late 2002, and by 2003 the government
had affirmed its commitment to mainstreaming gender by passing the National
Commission on Gender and Development Act, 2003.70 The NCGDA established a
National Commission on Gender and Development,71 charged with facilitating
mainstreaming gender in national development.72 The Commission is mandated to
develop laws as well as practices and policies that will eliminate discrimination against
women.73 However, it appears from the wording of the statute that proposed legal
reforms need not be accepted by the government.74
The NCGDA may also potentially fill research gaps on the gendered impact of
HIV/AIDS programming. The Commission is responsible for evaluating the effect of aid
policies on women,75 and is to conduct general research activities related to gender
issues.76 The Commission additionally is to receive annual reports from government
Ministries and is to evaluate the progress made by government in gender mainstreaming
and women’s empowerment initiatives.77 Although none of these responsibilities
specifically mention the need to examine legislative and policy reforms relating to
HIV/AIDS strategies, it is open to the Commission to examine this specific area. Given
that the government has accepted the gendered nature of HIV/AIDS, that Mainstreaming
Gender recommends that more gender-sensitive research with respect to HIV/AIDS
policy be conducted, and that HIV/AIDS affects all of Kenyan society, it may be argued
that the Commission is under an obligation to examine women and HIV/AIDS directly.
Although an examination of the Commission’s work to date is beyond the scope
of this paper, it should also be noted that the enabling legislation allows the Commission
70
National Commission on Gender and Development Act, Kenya Act 13 of 2002, online:
LawsofKenya.com, <www.lawsofkenya.com> [NCGDA].
71
Ibid., s.3. It is interesting to note that the Commission consists of both government and NGO
appointments (s.5). Included among civil society nominees are one representative from the Law Society,
three women to be nominated by the National Council of Women of Kenya, and two women nominated by
the National Council of Non-Governmental Organisations (s.5).
72
Ibid., s.6.
73
Ibid., s.6(c).
74
According to NCGDA s.6(c), the National Commission must “initiate and advocate for legal reforms.”
The legislation does not state that the government must accept the Commission’s law reform proposals, and
the use of the words “advocate for” suggest that the Commission could at times be required to lobby the
government to accept its proposals.
75
NCGDA, supra note 70 at s.6(g).
76
Ibid., s.6(h).
77
Ibid., s.6(j).
13
to receive grants,78 and that it may enter into association with other organizations,
including entities based outside of Kenya.79 International organizations may therefore be
able to assist the Commission in proposing law reforms that will protect the rights of
HIV-positive women. International donors may also provide financial or other assistance
to the Commission to develop, administer and interpret research. The Commission offers
an opportunity for domestic and international partnerships to be formed to develop model
legislation, and develop and implement gender-specific HIV/AIDS research projects.
Rights Delayed - The Draft Constitution
However, other essential legislative reforms have suffered severe delay. Kenya is
still developing a new constitution. According to Yash Ghai, the current Constitution
does not fully guarantee the equality or the political participation of women.80 Although
discrimination based on sex is prohibited under the current Constitution, there are
important exemptions for property devolution, marriage, and burial.81 Ghai argues that,
“In effect, where customary law is discriminatory against women, it can be argued to be
consistent with the Constitution.”82
The Constitution of Kenya Review Commission has made a Draft Constitution
available.83 It generally improves the rights of women. It includes a gender clause that
protects women’s equal rights to opportunities in political, economic, social and cultural
activities.84 Women’s equal right to inherit property is also protected.85 These rights
explicitly trump laws, traditions and cultures that undermine these rights.86 However,
women’s rights may be threatened by a clause that acts to “protect women and their
rights, taking into account their unique status and natural maternal role in society”, which
could be used as a back-door means of developing paternalist policies.87 The Draft
Constitution also includes health status as an enumerated ground on which discrimination
is prohibited.88
The Draft Constitution appears to represent a great improvement on the protection
of women’s rights and of people with HIV/AIDS. However, although President Kibaki
had promised a new Constitution by mid-2003, and then by the end of June 2004, at the
time of writing the new Constitution has not been ratified.89
78
Ibid., s.7(b)
Ibid., s.7(c).
80
Yash Ghai, “Reviewing the Constitution – A Guide to the Kenya Constitution” January 2002, The
Constitution of Kenya Review Commission at 57.
81
Ibid.
82
Ibid.
83
The Constitution of Kenya Review Commission, Draft Constitution, online
<www.kenyaconstitution.org/html/draftconstitution.htm> [Draft Constitution].
84
Ibid., s.37(1).
85
Ibid., s.37(2).
86
Ibid., s.37(3).
87
Ibid., s.37(4)(a).
88
Ibid., s.36(1).
89
Joyce Mulama, “New Constitution Still a Distant Dream for Kenyans” Inter Press Service (31 October,
2004), (Global NewsBank).
79
14
Other Legislative Developments and Delay
In addition to the delayed Constitutional reform process, other legislative reform
efforts appear to have stagnated. The government published the Domestic Violence
(Family Protection) Bill which, if passed, will protect women from domestic abuse, will
shield girls from being forced to marry early, and will establish a Domestic Violence
Family Protection Fund to provide counseling, medical treatment and support for victims
of domestic violence.90 The government has also published the Equality Bill, and the
HIV/AIDS Promotion and Control Bill, 2003, which, if passed are likely to protect
women’s rights to access treatment, care and support services.91 However, at time of
writing, none of these bills appear to have been enacted.
ii) Underlying Conditions for Women
Mainstreaming Gender calls for empowering policies that will fundamentally
alter gender relations such that women’s living conditions are improved. Since 2002,
political leadership remains committed to fighting the gendered impacts of
HIV/AIDS. The government has continued to publicly emphasize the gendered nature of
HIV/AIDS.92 As part of its outreach and education efforts, the government has moved to
decentralize its health care system. President Kibaki has urged the National AIDS
Control Council to decentralize its services, so that an HIV/AIDS committee could be
established in every village. He hopes that local efforts will make it easier to identify
those needing assistance, such as counseling and treatment. The President stated that,
“We are taking the war to the village levels because we want to assist each and every one,
especially those who are embarrassed of their condition.”93 Outreach activities in rural
areas bring prevention and treatment initiatives closer to women who otherwise may be
unable to access information.
In February 2004 the government funded and supported the First National
Women’s Conference on HIV/AIDS, which brought together 4,000 women from across
Kenya, including representatives from each district, to learn about and discuss
HIV/AIDS.94 Despite some criticisms that such empowering initiatives are funded to the
Eric Shimoli, “New law to target brutes” Daily Nation (3 November, 2000), online: Daily Nation Online,
<http://www.nationaudio.com/News/DailyNation/03112000/News/News91.html>.
91
At the time of writing these Bills were unavailable for review, and do not appear to have been passed.
They are not available through the Government of Kenya website, online through WordLii or through
LawsofKenya.com.
92
See for example, “Remarks by Professor Peter Anyang Nyongo, Minister for Planning and National
Development on the occasion of ICASA” (Nairobi: 2003), online: Republic of Kenya Ministry of National
Planning and Development, <www.planning.go.ke/speeches/icasa%20speech.pdf>.; “Kenya two address
needs of women, girls in HIV/AIDS war – assistant minister” KBC Radio/BBC Monitoring (1 December,
2004), (Global NewsBank); Joyce Mulama, “Women More Vulnerable to HIV Than Men, Officials Say”,
Inter Press Service (25, November 2004), (Global NewsBank).
93
“Kenya: President directs AIDS councils to reach out to sufferers in villages.” Excerpt from report by
Daily Nation website, BBC Monitoring (22 February 2004) (Global Newsbank).
94
“Kenya: AIDS conference for women opens in Nairobi. Excerpt of report by KTN TV, Nairobi, BBC
Monitoring (20 February 2004) (Global NewsBank).
90
15
detriment of gender neutral activities, the government remained committed to the
Conference.95
The gap between male and female educational attainment has been lessened in
part by Kenya’s 2003 decision to eliminate annual tuition and ancillary fees. As a result
of this decision, 1.3 million children entered school for the first time.96 The abolition of
tuition fees may not in and of itself guarantee that a child will enroll in or remain at
school; however, an increase of 1.3 million children suggests that several hundred
thousand girls who previously had not had the opportunity to attend school are now able
to attend.97
Kenyan civil society groups have also developed gendered HIV/AIDS activities
that may be replicable in other jurisdictions, and therefore may be regarded as best
practices. The Federation of Women’s Lawyers (FIDA) Kenya, has successfully
expanded gender-sensitivity training for police forces. In 2003 FIDA trained over 500
police officers about gender issues.98 In 2004 the FIDA curriculum on gender-based
violence was officially adopted by police.99 It is hoped that these educational campaigns
will lead to greater enforcement of gender-based crimes, and that similar initiatives may
be developed in other jurisdictions.100
Kenya’s first International Women’s AIDS Run held in September 2003 attracted
11,000 women participants.101 As Paula Donovan noted,
For ages, people have been calling attention to AIDS in Africa, and talking
more about women’s vulnerabilities, but it’s all about what women can’t
do – how they can’t negotiate safe sex, can’t inherit property, can’t get
jobs… This event calls attention to the other side of the story: all the
things African women can do. Women have become the sort of safety net
for the continent.102
The run recognized African women’s efforts in caring for victims of HIV/AIDS, served
as an empowering activity for women, and could become an annual activity that could be
developed as a pan-African or even global event.
In addition, the Global Fund has sponsored programs that are transformatory and
empowering. The Kenya Network of Women With AIDS has received $220,000 USD to
95
Ibid.
UNAIDS/UNFPA/UNIFEM, “Chapter 5: Education” in Women and HIV/AIDS: Confronting the Crisis,
UNFPA online: <www.unfpa.org/hiv/women/report/chapter5.html>.
97
As other students in the HIV/AIDS in Africa class are addressing the role of school fees on access to
education, I refrain from engaging in this issue in detail.
98
U.S. Department of State, “Kenya: Country Reports on Human Rights Practices – 2003” (25 February,
2004), online: <www.state.gov/g/drl/rls/hrrpt/2003/27733.htm>.
99
US Department of State, “Kenya 2004”, supra note 61.
100
Women in Cities International, Women’s Safety Awards 2004: A Compendium of Good Practices,
(Montreal: Women in Cities International, 2004) online: <www.femmesetvilles.org/pdfgeneral/FINALCOMPENDIUMENG.pdf> at 34.
101
John Donnelly, “Kenyan Women Race Against AIDS” The Boston Globe (21 September 2003) A10
(Global NewsBank).
102
Ibid.
96
16
fund community advocacy programmes that will combat stigma against women with
HIV/AIDS.103 Through the expansion of drop-in clinics, this organization is also
developing networks of women to share experiences and challenges, which may assist in
developing an empowered community. As the Global Fund refines its granting
mechanism, all projects will be assessed in part by gender.104
iii) Prevention
It is difficult to determine whether on the whole prevention programs within
Kenya are gender neutral, gender sensitive, or empowering. However, there is some
anecdotal evidence to suggest that the shift towards empowering prevention programs has
not been complete. Writing in March 2004, Philip Ole Koitelel noted that “many existing
HIV prevention programmes fail to take adequate account of the social vulnerability of
women or the unequal power relations between men and women.”105 In June 2004 the
International Council of AIDS Service Organizations (ICASO) reported that in general
“there is poor dissemination of HIV/AIDS information among women and in some cases
HIV/AIDS information is also not gender sensitive.”106
iv) Treatment
On the positive side, Kenya has taken steps to scale up antiretroviral therapy
(ART). The government has subsidized ART, has negotiated with pharmaceutical
companies to make ART available, and has implemented a parallel import scheme.107
These efforts, among others, have helped Kenya see a steady rise in the number of people
receiving treatment for HIV/AIDS. At the start of the UNAIDS/WHO “3 by 5” initiative,
it was believed that only 11,000 people were receiving antiretroviral therapy. 108 But on
average, an additional 1,601 people per month received ARV in 2004.109 The latest
The Global Fund to Fight AIDS, Tuberculosis and Malaria, “Portfolio of Grants in Kenya” online:
<www.theglobalfund.org/search/portfolio.aspx?lang=en&countryID=KEN#HIV/AIDS> [Global Fund,
“Grants in Kenya”].
104
International Center for Research on Women (ICRW), Civil Society Participation in Global Fund
Governance: What Difference Does it Make? Preliminary Research Findings June 2004 DRAFT, online:
<www.theglobalfund.org/en/links_resources/library/position_papers/ps2/> [ICRW, “Participation in
Global Fund Governance”].
105
Philip Ole Koitelel, Mainstreaming Gender into HIV/AIDS Action: Priorities for Interventions Focusing
on Women and Girls (Nairobi: Agency for Strategic Management and Development (AZTRAMADE),
March 2004), online: Peacewomen.org, <http://www.peacewomen.org/resources/HIVAIDS/mainstreaming.pdf>. [Koitelel, “Priorities for Interventions”].
106
ICASO, In-Country Monitoring of the Implementation of the Declaration of Commitment Adopted at
the UN General Assembly Special Session on HIV/AIDS – A Four Country Pilot Study, (Toronto: ICASO,
June 2004), online: ICASO, <www.icaso.org> at 24.
107
Ibid., at 10. Other students in the HIV/AIDS in Africa class are addressing the intellectual property
aspects of HIV/AIDS programming. An examination of the effectiveness of Kenya’s current generic drug
industry, or its parallel import program, is beyond the scope of this paper.
108
World Health Organization, “The “3 by 5” Initiative - Country Support Update – Kenya” , online:
WHO, <www.who.int/3by5/support/updates/kenya/en/>. [WHO, “Kenya Update”].
109
December 2004 estimates. UNAIDS/World Health Organization, “3 by 5” Progress Report December
2004, online: World Health Organization Department of HIV/AIDS (Geneva),
<www.who.int/3by5/publications/en/progressreportfinal.pdf> at page 54 [WHO, “3 by 5” Progress
Report].
103
17
estimates suggest that anywhere from 24,000 to 33,000 Kenyans are now receiving ART,
and that ART coverage has reached the 13% mark.110
Unfortunately, Kenya is on pace to fall short of its “3 by 5” target. Although
having 24,000 to 33,000 people on ART last year was an impressive increase from 2003,
Kenya was aiming to put 45,000 people on ART by the end of 2004.111 It was initially
hoped that Kenya would place 140,000 people on ART by 2005,112 but the government
scaled this plan down to hopefully reach 95,000 people.113
Yet even were these more modest targets achieved, since there are an estimated
220,000 people in the 15-49 year old range requiring ART, a majority of those in need
would still not be receiving treatment.114 It must also be remembered that there are
approximately 1.8M people living with AIDS in Kenya. 115 Antiretroviral therapy is only
one treatment option that will need to be scaled up in the months and years ahead. Other
treatment and support efforts will need to be expanded.
At this time, there is no statistical data available to monitor treatment numbers by
gender.116 Philip Ole Koitelel writes that “In many communities, men are more likely
than women to be admitted to health facilities”.117 However, the current gaps in
monitoring of HIV/AIDS treatment make it impossible to verify and further explore the
extent of such gendered practices. In the Recommendations section, the issue of
monitoring and evaluating access to treatment will be further discussed.
v) Healthcare and Treatment Funding
The scaling up of treatment in Kenya is being slowed in part by funding
problems. The first is a new tax on ARTs. Kenya joined Uganda and Tanzania to form
the East Africa Community (EAC), a new trading bloc that developed out of a treaty
signed in March 2004.118 The EAC has imposed a 10% tax on antiretroviral drugs, which
increases the cost of the drugs from approximately $20 USD to $25 USD.119 The East
African Treatment Movement (EATM) has denounced the tax,120 and the US
Ambassador to Kenya, William Bellamy, recently urged Kenya to work with its EAC
partners “to permanently and immediately exempt antiretrovirals from duty, regardless of
110
Ibid.
“KENYA: New tax jeopardizes treatment access” PlusNews (UN-OCHA Integrated Regional
Information Networks) (10 February 2005) online:
<www.plusnews.org/AIDSreport.asp?ReportID=4468&SelectRegion=Southern_Africa&SelectCountry=K
ENYA> [PlusNews, “New tax”].
112
WHO, “Kenya Update” supra note 108.
113
PlusNews, “New tax”, supra note 111.
114
Ibid.
115
Ibid.
116
See WHO, “Kenya Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections,
2004 Update” online: <www.who.int/hiv/pub/epidemiology/pubfacts/en/> for an example of current
indicators.
117
Koitelel, supra note 105 at 5.
118
“East Africa trade accord launched”. BBC News UK Edition (1 January 2005) online:
<http://news.bbc.co.uk/1/hi/world/africa/4139635.stm>.
119
PlusNews, “New tax”, supra note 111.
120
Ibid.
111
18
who is importing them.”121 At time of writing, the tax has not been removed. It is feared
that the increased costs will affect NGOs and employers funding antiretroviral therapy,
and that international donors and the government of Kenya will be unable to treat as
many people as intended due to this new financial burden.122
The tax increase is also arguably a regressive policy towards women.
Approximately half of all people receiving ART have their costs subsidized by the
state,123 and NGOs may subsidize costs for many more people requiring drug treatment.
However, the Minister of Health has noted that, “It is alarming to note that 51 per cent of
all the [health] expenditure is borne by households in a country where 56 per cent of the
population live below the poverty line.”124 Women are economically disadvantaged
compared to men, and, as Philip Ole Koitelel has observed, “Family resources are more
likely to be devoted to buying medication and arranging care for ill males than
females.”125 Women who are required to pay for all or part of the $25 USD per month
will be disproportionately affected by the price increase compared to their male
counterparts. Although a flat tax may appear to be gender neutral, the EAC tax can be
seen as a step backwards in efforts to mainstream gender into HIV/AIDS policies.
The second major financial barrier relates to Kenya’s health budgeting. Kenya’s
HIV/AIDS Plan for 2000-2005 was projected to receive approximately $180M USD in
funding; however, it was estimated that there is still a resource gap of approximately
$180M USD for treatment and control of HIV/AIDS.126 Of the $180M, approximately
$34M USD was earmarked for medication and care.127 In 2001-2002, however, only $1M
USD was allocated to this area.128 Budgets are not only being drawn up short on key
areas in the fight against HIV/AIDS, the monies dedicated to treatment are not always
being spent in that area. Since women account for the majority of HIV/AIDS cases, and
are more likely to contract HIV/AIDS in the future, these setbacks in funding amount to
setbacks for women’s rights.
vi) Corruption
Financial projections are subject to some change as governments respond to new
needs; however, much of the funding gap in the implementation of Kenya’s HIV/AIDS
strategy must be attributed to corruption. The Director of the National AIDS Control
Council, Margaret Gachara, was sentenced to a year in jail in August 2004 after she was
“KENYA: Import tax hurting AIDS drug access – US” PlusNews (UN-OCHA Integrated Regional
Information Networks) (4 February 2005) online:
<www.plusnews.org/AIDSreport.asp?ReportID=4468&SelectRegion=Southern_Africa&SelectCountry=K
ENYA>.
122
PlusNews, “New tax”, supra note 111.
123
Ibid.
124
Julius Bosire, “Poverty blow to health” Daily Nation Online, (20 March 2005), online:
<www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=46019>.
125
Koitelel, supra note 105 at 5.
126
ICASO, supra note 106 at 42.
127
Ibid., at 10.
128
Ibid.
121
19
found guilty of defrauding the government of $340,000.129 But corruption is a systemic
problem that permeates every level of state action. Bribes are often necessary for
Kenyans to access basic services. A recent Transparency International study found that,
on average, Kenyans are forced to pay nine bribes a year costing over 15,000 KES, or
$200 USD per year.130 A majority of Kenyans live on under $1 USD a day;131 paying
these bribes amounts to a significant expenditure. Approximately $1 billion USD has
gone missing since 2002; US Ambassador William Bellamy has suggested that the
monies lost through corruption could have funded ten years of ART for every Kenyan
requiring the treatment.132
The Kenyan government responded with legislation, passing The Anti-Corruption
and Economic Crimes Bill, 2003.133 The Anti-Corruption Bill defines economic crimes
and other offences,134 and establishes penalties for officials charged or convicted of
corruption or economic crimes.135 It also establishes the Kenya Anti-Corruption
Commission (KACC), which is mandated to investigate corruption.136 In order to fulfill
its mandate, the KACC has been granted police-like powers,137 including the ability to
search premises with a warrant,138 and to arrest, charge and detain individuals with
respect to offences.139 The KACC is required to provide written reasons when it decides
not to investigate or discontinues an investigation into alleged corrupt conduct.140
However, public confidence in efforts to curb corruption has dwindled.141 The
Chairman of the Law Society resigned from his position on the KACC after losing faith
in the government’s dedication to stop corruption.142 It has been suggested that,
“KACC… is perceived to be working for a clique of powerful individuals in
Government. It is seen as both a protector of wrongdoers and a machinery to
Gachara was pardoned by the President along with other “petty offenders” in December 2004. Emily
Wax, “Kenya is Buffeted Graft Scandals Public Confidence Low After Official Resigns” The Washington
Post (13 February 2005) A21 (Global NewsBank) [Wax].
130
Transparency International, The Kenya Bribery Index 2004, online: Transparency International,
<www.transparency.org/surveys/dnld/kenya_bribery_index_2004.1.pdf> at 5; USD determination: (1,261
KES per month * 12 months) * 0.0133191 USD = 201.545 USD (xe.com Currency Converter – Converted
on March 30, 2005).
131
Tekla Szymanksi, “John Githongo: Anti-Graft Czar”, reproduced from the February 2004 issue of World
Press Review (VOL. 51, No. 2), online: WorldPress.org , <www.worldpress.org/Africa/1747.cfm>.
132
Wax, supra note 129.
133
The Anti-Corruption and Economic Crimes Bill, 2003, online: <www.lawafrica.com> [Anti-Corruption
Bill].
134
Ibid. at “Part IV Offences” ss.31-43.
135
Ibid. at ss.55-56.
136
Ibid. at s.19.
137
The general police power is found in s.19(3): “For the purposes of an investigation, the Director and an
investigator shall have the powers, privileges and immunities of a police officer in addition to any other
powers the Director or investigator has under this Part.”
138
Ibid. at s.25.
139
Ibid. at s.28.
140
Ibid. at s.21.
141
Wax, supra note 129.
142
“US cuts Kenya anti-corruption aid” (8 February 2005), BBC News UK Edition, online:
< http://news.bbc.co.uk/1/hi/world/africa/4245767.stm>.
129
20
legitimize/”launder” cases of corruption.”143 Worse still, Kenya’s leader in fighting
corruption, John Githongo, who was appointed by President Kibaki in 2002 to address
corruption, resigned in February, apparently out of frustration with interference he was
facing in attempting to investigate allegations of corruption within the current
government.144 The Canadian High Commission in Kenya, together with the Embassies
or High Commissions of the United States, the United Kingdom, Japan, and other
nations, signed a letter stating that they view Mr. Githongo’s resignation as “an extremely
serious challenge to the credibility of the government’s anti-corruption policy.”145 Donor
nations have threatened to withdraw aid funding unless corruption is addressed.
Corruption is a double-edged sword that hurts women in two ways. It siphons off
money that should be dedicated to fighting HIV/AIDS, which means that fewer women
will be able to access health services. Second, since women are generally economically
disadvantaged compared to men, women forced to pay bribes to access health services
are disproportionately affected. Bribery is another form of power imbalance in which a
government or other official may receive a payment for no valid purpose. When coupled
with other power imbalances, corruption may act to dissuade women from seeking
necessary treatment or support.
PART V - RECOMMENDATIONS
The above discussion demonstrates that Mainstreaming Gender presented a
strong first theoretical framework for engendering Kenya’s HIV/AIDS Strategy.
However, the analysis also revealed difficulties in implementing gendered programming.
This section presents general and specific recommendations that aim to ensure that
Kenya’s on-paper commitment to engendering the national response to HIV/AIDS
becomes even more developed in practice.
i) Law Reform
Kenya is fortunate to have strong political commitment in the fight against
HIV/AIDS. Legislators should directly confront the gendered nature of HIV/AIDS. A
first step would be the passing of the proposed Equality Bill, Domestic Violence (Family
Protection) Bill and HIV/AIDS Promotion and Control Bills. In addition, Kenya can
develop the following legal reforms to further recognize gender-specific needs:
Ratify the Draft Constitution
The government of Kenya should ratify the Draft Constitution. This act would
provide women with increased rights and would protect people who have contracted HIV
from discrimination. The Draft Constitution also dilutes the concentrated power currently
Bill Rutto, “Graft: Way out for Government” Letters Section, Daily Nation Online, online:
<www.nationmedia.com/dailynation/nmgcommentary.asp?premiumid=0&category_id=23&newsid=45996>.
144
Wax, supra note 129.
145
Canadian High Commission in Kenya, “Press Statement, February 8, 2005”, online:
<www.dfait-maeci.gc.ca/nairobi/news-anti-corruption-policy-en.asp>.
143
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held by the President. The new separation of powers could act as another check against
corruption, which could result in more health funding reaching vulnerable populations.
Provide Gender-Sensitivity Training to the Judiciary
The role of the judiciary was not considered by the authors of Mainstreaming
Gender; however, it is recommended that judges and magistrates receive gendersensitivity training.146 The judiciary should be made aware of legal tools available to
protect women’s rights. It is important that judges are informed of international legal
developments that protect the right to health, women’s rights to access HIV/AIDS
treatment, and of legal frameworks that allow a judge to considering gender-specific
health concerns. Training on gender sensitivity may ease the difficulty for women
testifying in rape or abuse cases. The judiciary can participate in a broader transformatory
process by recognizing the gendered nature of HIV/AIDS.
Rebecca Cook offers a general overview of how courts can protect women’s
health rights.147 She argues that courts have a significant if limited role in recognizing
historical sexual discrimination, and can formulate appropriate remedies. Cook believes
that courts are increasingly scrutinizing health management decisions. She argues that
while there is developed jurisprudence with respect to legal issues that arise at the clinical
level (such as in doctor-patient relationships), courts have been rapidly exploring the
realm of health systems, but have yet to address underlying socioeconomic conditions at
a more general level. She suggests that an emerging evidence-based decision-making
standard for health management cases offers courts the opportunity to explore the
particular health needs of individuals. This reasonableness analysis could protect
women’s health needs by considering specific women’s health concerns as rights. Cook
suggests that in some cases, the courts could consider the use of affirmative action
programs as a remedy to provide temporary positive measures for historically
disadvantaged groups. She suggests that the law and court systems may not be able to
address socioeconomic conditions by themselves; however, her analysis suggests that a
strong judiciary that understands gender and women’s historical disadvantages, could
help to define the parameters of acceptable health policy decisions, and could continue to
build an awareness of the gendered nature of HIV/AIDS. Cook’s argument suggests that
an expansive women’s right to health, including the right to access treatment, care and
support free from discrimination, can be protected by judges who recognize the role of
gender in health law. Gender-sensitivity training, including continuing legal education
that explores international efforts to recognize women’s health rights could assist judges
and magistrates to develop such rights in Kenya.
146
The CEDAW Committee recommends that gender sensitivity training be provided for the judiciary,
public health providers and law enforcement personnel. Report of the Committee on the Elimination of
Discrimination Against Women Twenty-eighth Session (13-31 January 2003) Twenty-ninth Session (30
June-18 July 2003) General Assembly Official Records Fifty-eighth session Supplement No. 38 (A/58/38)
at paragraph 212 [CEDAW 2003].
147
Rebecca Cook , “The Role of Courts in Protecting Women’s Health” forthcoming, Journal of Juridical
Science, University of Freestate, South Africa.
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Develop the Proposed Law Reforms
Mainstreaming Gender recommended legal reforms for family law, to protect the
rights of prostitutes/sex trade workers, and in the process for obtaining informed consent
from medical patients and research subjects. The general recommendations need to be
developed further so that they may be implemented. The National Commission on
Gender and Development may be best-placed to develop model legislation and to conduct
any necessary research. Domestic women’s non-governmental organizations such as
FIDA are well-situated to assist the Commission or independently make
recommendations. The donor community could assist by providing financial and
technical assistance to the legal reform process. For example, the University of Toronto
International Human Rights Programme could offer a summer internship for a student to
work either with the National Commission or with a legal clinic such as FIDA.
ii) Extralegal Recommendations
It is generally accepted that a multi-sectoral, holistic approach is necessary to
improve women’s access to treatment, and in developing a transformative engendered
HIV/AIDS strategy. In addition to legal considerations, the following policy
recommendations aim to improve and protect the movement towards engendered
responses to HIV/AIDS.
Incorporate Gender Mainstreaming Directly into Future Strategic Plans
Mainstreaming Gender was written as an add-on to the Kenya National
HIV/AIDS Strategic Plan 2000-2005 (KNASP). The gendered nature of the HIV/AIDS
crisis should be recognized in Kenya’s Strategic Plan for beyond 2005. These Strategic
Plans should be fully engendered. All recommended actions should be gender-sensitive,
transformatory or empowering in nature. Future Strategic Plans should directly
incorporate the recommendations from Mainstreaming Gender as well as new plans as
they are developed.
Recognize Best Local Practices
The national Strategic Plan also offers an opportunity to recognize local best
practices in engendered HIV/AIDS programming.
Develop Benchmarks
Mainstreaming Gender did not comment on which parties should be responsible
for implementing engendered programmes, nor did it develop clear benchmarks. Strategic
Plans should assign responsibility to government agencies and government partners
wherever possible, and set clear benchmarks for success.
Address Corruption
In addition to ratifying the Draft Constitution, the government can tackle
corruption in a variety of ways. The government can increase the independence and
mandate of the KACC. It can engage in a public budget analysis, in which the public
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could become more involved in monitoring and deciding upon how public monies should
be allocated.148 The government or civil society groups such as Transparency
International can develop public education campaigns.149 More research regarding gender
and corruption is necessary in order to determine how corruption affects local Kenyans,
and which forms of corruption (bribes to Ministry of Health officials and police,
government procurement policies etc.) combine with other power imbalances to reenforce gender stereotypes and gender violence.150
Remove the ART Tax
Although it is too early to quantify the effects of the new ART tax, it almost
certainly disproportionately impacts women with HIV/AIDS. WHO/AIDS cautions that
countries must consider how ART financing might adversely affect women.151 Kenya
should work with its trade partners within the East Africa Community to lift the ART tax.
iii) Improving Gender Monitoring
Mainstreaming Gender built off a wave of international calls for improved gender
monitoring of HIV/AIDS programming. These calls continue today. Advisors to the
Global Fund have suggested that increased gender monitoring is necessary.152 In 2004
WHO/UNAIDS recommended that countries set ART targets for women and men, and
that “non-adherence, drop-out rates, morbidity and mortality must be monitored for
differences between women and men which can be specifically addressed”.153 They
further recommended that women’s participation in clinical research in drug and vaccine
trials must be increased.154 The CEDAW Committee recommended that Kenya provide
more sex-disaggregated data, and information on older, rural women.155 Kenya should
work with international organizations such as UNIFEM, UNAIDS, and the WHO, as well
as with civil society groups, to develop gender-sensitive monitoring.156
In this area, coordination between partners is essential. Women’s groups and
vulnerable groups such as sex workers must participate in the development of core
gender indicators. The collection, analysis and reporting of gender-based indicators will
require expertise. The National Commission on Gender and Development can coordinate
this research. It is recommended that donors and civil society groups train local female
researchers to participate in and administer a gendered HIV/AIDS reporting framework.
148
Rutto, supra note 143.
For further means of fighting corruption see Transparency International’s “Corruption Fighters’ Tool
Kits” online at <www.transparency.org>.
150
Alan Doig and Stephanie McIvor, National Integrity Systems, 2003 Country Study Report – Kenya
(Berlin: Transparency International, 2004) online:
<www.transparency.org/activities/nat_integ_systems/dnld/kenya.pdf> at 63.
151
WHO/UNAIDS Policy Statement, “Ensuring equitable access to antiretroviral treatment for women”
2004 available from WHO online: < http://www.who.int/hiv/pub/advocacy/wad/en/> at page 6
[WHO/UNAIDS “Ensuring equitable access”].
152
ICRW, supra note 104.
153
WHO/UNAIDS, supra note 151 at 6.
154
Ibid.
155
CEDAW Committee 2003, supra note 146 at paras. 222-223.
156
ICASO may also be well-placed to promote local participation in the collection of disaggregated data.
149
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More research on gender monitoring is necessary. Academics from the sciences,
social sciences and law will need to determine which gender statistics should be reported,
how they can be reported without breaching privacy concerns of the individuals being
surveyed, and how the statistics should be properly interpreted. Emerging areas such as
gender auditing and engendered budgeting also require further attention. As individual
HIV/AIDS interventions are audited, it must be asked whether the program should be
evaluated for its gender impact as a stand-alone program, or to what extent it should be
viewed as part of broader HIV/AIDS interventions. Researchers may also wish to
consider what indicators should be considered when developing monitoring mechanisms
for engendered budgets. Budgets could be evaluated according to funding earmarked for
a certain vulnerable population, by participation levels in setting the budget, or by other
indicators. While the theoretical rationales for increasing gender funding are sound, the
minutiae of gender monitoring have yet to be developed.
iv) Use Mainstreaming Gender to Hold Government Accountable
Despite its flaws, Mainstreaming Gender makes important recommendations that,
if implemented, would improve the lives of all Kenyan women. Civil society groups
should continue to pressure the government to implement the Mainstreaming Gender
strategies.
When NGOs advocate for government action on women’s issues, they can refer to
Mainstreaming Gender as the source of a government obligation. Watchdog groups could
grade the government on its progress in implementing the obligations within
Mainstreaming Gender. While applauding positive government actions, such a Report
Card would also be used to shame the government into acting on recommendations that
have been ignored. International monitoring bodies, such as the CEDAW Committee,
UNIFEM and the Global Fund, could all refer to Mainstreaming Gender and use its
recommendations as benchmarks.
Civil society groups can also assist government in implementing some of the
more general, aspirational recommendations by providing detailed implementation plans.
For example, legal groups, including the Kenyan Bar Association and FIDA, can assist
government by providing briefs detailing how the government can achieve the stated
goals of reforming inheritance and property laws, family law and prostitution laws.
International organizations could also provide assistance in these efforts.
By relying on Mainstreaming Gender and incorporating it into Kenyan rights
discourse, civil society groups (and international organizations) can ensure that the
Mainstreaming Gender remains relevant, and may be used to hold the government
accountable.
Conclusion
This paper examined Kenya’s efforts to mainstream gender into its HIV/AIDS
Strategy. Mainstreaming Gender is a clear political recognition of the gendered nature of
HIV/AIDS. The framework adopts Gupta’s recommendation that gender-sensitive,
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transformatory and empowering initiatives be developed in concert to engender all levels
of a national HIV/AIDS strategy.
However, this paper also reveals shortcomings both in the framework for
engendering HIV/AIDS programming and in implementing the recommendations
presented by Mainstreaming Gender. Although Mainstreaming Gender recognizes that
law is one of many tools available to build gendered HIV/AIDS policies, it fails to
recognize the full role that law may play in shifting gender relations and protecting rights
of vulnerable populations. Although Mainstreaming Gender marks an important
recognition of the gendered nature of HIV/AIDS, the government’s efforts to implement
its policy recommendations have been mixed. Although Mainstreaming Gender should
be praised for recognizing the gendered nature of the epidemic, Kenya must implement
law and policy reforms to ensure that this recognition of the gendered nature of
HIV/AIDS leads to gendered responses to the epidemic. In addition, future HIV/AIDS
Strategies must develop more detailed legal reforms. Law may only be one of several
tools that can be used to engender HIV/AIDS strategies; however, the legal tool should
be used to its full capacity.
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