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Implementing the Protocol on the Rights of Women in Africa: Analysing the compliance of Kenya's legal framework

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This report is a joint initiative between the Lawyers' Circle and Oxfam. It analyses the implementation of the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, better known as the Maputo Protocal in Kenya. The Maputo Protocol guarantees comprehensive rights to women. The report analyses the steps that have been taken in Kenya on a legal, policy, and practical level to implement the Maputo Protocol. It is structured around the following themes: Guarantees of Equality and Elimination of Discrimination
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  Implementing the Protocol on the Rights of Women in Africa:    Analysing the Compliance of Kenya’s Legal Framework   With thanks to the following lawyers, researchers, technical advisors and reviewing editors from Dechert LLP, The Lawyer’s Circle, Oxfam, SOAWR and FIDA Kenya who gave their time probono to help produce this document.Miriam Gonzalez, Dechert LLPChloe Barker, Dechert LLPKaren Coppens, Dechert LLP Hln Mnld, QC Mx Chmbs Jan Galloway Moore, Blatch LLP Jssc Sm, QC Mx Chmbs  Alexis Campbell, 29 Bedford Row ChambersKaren Anderberg Dechert LLPPriya Chaudhuri, Travers SmithMary Mullen, DLA PiperZarah Wiles, Nomura International plcRhiannon Lewis, Dawson Cornwell Nl Shhn, Fshlds Bckhs Dng LLP   Kathy Hughes, Slaughter & May Frances Wacher, Harbour Litigation Funding   Elizabeth Kelsey, Monckton Chambers Abigail Cohen, Henderson ChambersElsa Le Groumellec, Bank of Tokyo Mitsubishi UFJ   Laura Holden, Addleshaw Goddard LLPLucy Chuo, Stella Maris SolicitorsSylviane Kokouendo, Stella Maris Solicitors Anna Bugden, Norton Rose FulbrightCaroline Yormesor,  Independent Camilla Haggith, Osborne, Morris & Morgan Solicitors   Zahra  Afshar, Ahmad TeaChiz Nwokonkor, Addleshaw Goddard LLP Victoria Fitzpatrick, Dechert LLPJoshua Smith, Dechert LLPJennifer Wileman, Dechert LLPNathalie Sadler, Dechert LLPSarah Fidler, Dechert LLPNavpreet Jandaur, Dechert LLPTracey Cane Dechert LLPEmma Nichols, Dechert LLPTricia Carlin, Dechert LLPCarol Waiganjo, FIDA KenyaJanah Ncube, OxfamMoreen Majiwa, OxfamClaudia Codsi, Oxfam For further information please contact:Moreen Majiwa, Gender Justice Lead, Pan Africa Programme, OxfamTel: +254 202 820 000; email: mmajiwa@oxfam.org.uk  Front cover: Helen Ewoton (48) and her granddaughter Kaisa in her compound in the village of Nawoyatir in the Lapur district of Lokitaung in Turkana north, Kenya. Photo Kieran Doherty/Oxfam  1 Implementing the Protocol on the Rights of Women in Africa INTRODUCTION This report is a joint initiative between the Lawyers Circle and Oxfam and analyses the implementation of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in  Africa, better known as the Maputo Protocol (the “ Maputo Protocol ” or the “ Protocol ”) in Kenya. The Maputo Protocol guarantees comprehensive rights to women. The Maputo Protocol was adopted by the African Union in the form of a protocol to the African Charter on Human and Peoples’ Rights on 11 July 2003 at the second summit of the African Union in Maputo, Mozambique. Kenya signed the Protocol on 17 December 2003. On 25 November 2005, having been ratied by the required 15 member nations of the African Union, the protocol entered into force. The Maputo Protocol is contained in full in Annex One of this report. The main rights and protections afforded by the Protocol are as follows:   y Elimination of Discrimination Against Women  y Right to Dignity   y The Rights to Life, Integrity and Security of the Person  y Elimination of Harmful Practice (female genital mutilation and other traditional practices that are harmful to women).  y Marriage, including Separation, Divorce and Annulment of Marriage  y  Access to Justice and Equal Protection before the Law  y Right to Participation in the Political and Decision-Making Process  y Right to Peace  y Protection of Women in Armed Conicts   y Right to Education and Training  y Economic and Social Welfare Rights  y Health and Reproductive Rights  y Right to Food Security   y Right to Adequate Housing  y Right to Positive Cultural Context   y Right to a Healthy and Sustainable Environment   y Right to Sustainable Development   y Widows’ Rights  y Right to Inheritance  y Special Protection of Elderly Women  y Special Protection of Women with Disabilities  y Special Protection of Women in Distress This report analyses the steps that have been taken in Kenya on a legal, policy and practical level to implement the Maputo Protocol. The report is structured around the following themes: Guarantees of Equality and Elimination of Discrimination, Elimination of Violence Against Women, Marriage,  Access to Justice, Education, Inheritance, Economic and Social Welfare Rights and Health and Reproductive Rights. March 2014  2 Implementing the Protocol on the Rights of Women in Africa CONTENTS INTRODUCTION 1CONTENTS 2EXECUTIVE SUMMARY 3PREAMBLE: OVERVIEW OF THE KENYAN LEGAL SYSTEM AND THE SOURCES OF LAW 8CHAPTER ONE: GUARANTEES OF EQUALITY AND ELIMINATION OF DISCRIMINATION 10CHAPTER TWO: ELIMINATION OF VIOLENCE AGAINST WOMEN 26CHAPTER THREE: MARRIAGE 59CHAPTER FOUR:  ACCESS TO JUSTICE 61CHAPTER FIVE: EDUCATION 66CHAPTER SIX: INHERITANCE 73CHAPTER SEVEN: ECONOMIC AND SOCIAL WELFARE RIGHTS 92CHAPTER EIGHT: HEALTH AND REPRODUCTIVE RIGHTS 106 ANNEX ONE: PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA 116
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