GLOBAL NETWORK OF SEX WORK PROJECTS
Good Practice and Lessons Learnt: Economic
Empowerment Programmes for Sex Workers in Africa . 1
EXECUTIVE SUMMARY. 1
Sex Worker-Led Economic Empowerment Programmes. 7
Case Study 1: Ethiopia
NIKAT . 8
Case Study 2: Kenya
Case Study 3: Kenya
HOYMAS . 17
Non-Sex Worker-Led Economic Empowerment Programmes . 22
Case Study 4: Nigeria
LIFE LINK ORGANISATION (LLO). 23
Economic Empowerment Programmes That Fail. 26
Case Study 5: Uganda
EMPOWERED AT DUSK WOMEN’S ASSOCIATION (EADWA). 27
Case Study 6: Malawi
NATIONAL FEMALE SEX WORKERS ALLIANCE IN MALAWI (NFSWAM). 30
Case Study 7: Democratic Republic Of Congo
MANAGEMENT OF YOUNG FOR RURAL DEVELOPMENT CENTRE (CEJEDER). 32
Lessons Learnt. 35
QUALITY ECONOMIC EMPOWERMENT PROGRAMMES
FOLLOWING RIGHTS-BASED APPROACHES . 35
UNSUCCESSFUL ECONOMIC EMPOWERMENT PROGRAMMES. 36
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 1
There is a lack of economic empowerment programmes for sex workers in
Africa. This situation contrasts significantly when compared to other regions.
For example, the first part of the ‘Stepping Up, Stepping Out Project’ by AIDS
Fonds documented case studies of economic empowerment programmes
in the Asia Pacific region. The output from this part of the SUSO project is
documented in the Regional Report1 ‘Sex Workers Demonstrate Economic and
Social Empowerment’ and the Regional Briefing Paper2 titled: ‘Sex Workers
Demonstrate Economic and Social Empowerment: Overcoming Practices That
Limit Sex Worker Agency in the Asia Pacific Region’.
Sex worker-led organisations are more established in the Asia Pacific region.
The work undertaken by APNSW in developing a framework for documenting
good practice in economic empowerment programmes was shared with the
African Sex Worker Alliance (ASWA) to inform them in documenting examples
of economic empowerment programmes in Africa. In addition to this, APNSW’s
good practice examples were shared with ASWA because they provide useful
models that can be adapted for the development of economic empowerment
programmes in Africa. The SUSO project’s focus in its final 2 years is twofold:
to build and strengthen the capacity of sex worker organisations working to
promote the human rights of sex workers and to document sex worker-led
responses in Africa.
The Global Network of Sex Work Projects (NSWP) received funding from the
Dutch Ministry of Foreign Affairs for the ‘Stepping Up, Stepping Out Project’ by
AIDS Fonds to support the development of advocacy tools around rights-based
economic empowerment for sex workers. This report outlines the situation
of sex work in 6 African countries where case studies were documented, and
highlights the factors that cause economic empowerment programmes for sex
workers to succeed or fail. This report also offers some recommendations for
economic empowerment programmes to succeed.
Programmes for Sex
Workers – Regional
2 GLOBAL NETWORK OF SEX WORK PROJECTS
The main finding of this report is that there is a significant absence of
economic empowerment programmes for sex workers in Africa. This situation
is worsened by certain funding Faith Based Organisations (FBOs) which see
sex work as morally reprehensible; these organisations are not willing to
fund sex work programmes unless sex workers exit sex work. As such, a lot
of programmes promote the ‘rehabilitation’ and ‘redemption’ of sex workers.
The rehabilitation programmes documented in the regional briefing paper
mentioned above demonstrated that these programmes do not listen to sex
workers, they do not ask sex workers what they want, they do not involve
sex workers in the design and planning of these programmes, and, perhaps
most importantly, these programmes fail to grasp the dynamics of stigma
and discrimination in the communities that programmes aim to rehabilitate
The report concludes that for economic empowerment programmes for sex
workers to succeed, sex workers must be involved at all levels to identify
the initiatives that meet the needs and demands of sex workers. The report
argues that these programmes must be run by sex workers themselves, and
programmes must adopt a rights-based approach which focuses on giving
sex workers the economic power to make informed choices about their lives,
including their sexual health and which does not necessarily focus on getting
them to exit sex work. Economic empowerment programmes for sex workers
should also aim to provide an alternative source of income to reduce the
vulnerability associated with changing jobs and the programmes should not
aim to entice them to stop sex work when they are not ready to do so.
Sex workers continue to face multiple risks including social marginalisation,
violence and poor health. These overlapping and mutually reinforcing factors
have been shown to restrict sex workers’ ability to improve their living and
working conditions and to achieve economic security. Furthermore, sex
workers – like other people working in informal economies – commonly report
a lack of access to bank accounts, saving schemes, loans and legal forms of
credit, insurance, pensions, and basic other employment benefits. Stigma and
discrimination heighten economic disempowerment by restricting sex workers’
access to financial services. This further compromises their ability to manage
and plan their finances and futures, including career development.
It is clear that some programmes that aim to empower sex workers fail to do
so: this is particularly common in the case of programmes whose primary
aim is to rehabilitate sex workers. Actions aimed at ‘rehabilitation’ through
training and steering sex workers toward alternative employment or income
generation often incorrectly assume that sex workers want to be rehabilitated
or want – or are able to – leave sex work immediately. In many countries, rather
than encouraging sex workers to build upon their own agency, programmes
instead offer income-generating activities and/or training is to rehabilitate
sex workers. This is to encourage or pressure sex workers to stop sex work
through providing them with increased employment options and reduced
risk and vulnerability. However, particpation in many of these programmes is
conditional upon leaving sex work immediately. Moreover, income generation,
training, and credit schemes are not always based on current markets and
opportunities; unsuccessful ventures risk disempowering sex workers further
because they often incur debt and experience the stigma of failure. As part of
this project, NSWP has published an accompanying briefing paper; ‘Economic
Empowerment: Does Rehabilitation Have a Role?’3.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 3
Economic empowerment can however be an important strategy to improve sex
workers’ living and working conditions. By increasing economic options sex
workers can achieve greater financial security which makes it easier for them
to make important decisions that shape their lives. These include their choice
of work and their capacity to save and plan for the future – both for themselves
and their dependents. Improving economic options also helps sex workers to
reduce the likelihood of having to accept clients’ requests for unprotected sex
and it limits the likelihood of sex workers being put in situations that inhibit
their ability to negotiate with clients and heighten the risk of violence or abuse.
Sex worker-led organisations are emerging across Africa, primarily in
response to HIV. Some are also developing in response to the urgent needs of
their communities in relation to rights-based approaches to both economic
empowerment and the disproportionate levels of violence experienced by
female, male and transgender sex workers. Sharing similarities with the
Asia Pacific region, many projects in Africa have focused on rehabilitation
programmes that all too often have required sex workers to exit sex work,
rather than working with them to identify their own priorities and assisting
them to shape their own futures.
SEX WORK IN AFRICA
Violence, stigma, and discrimination against sex workers are commonplace
in African countries. Stigma and discrimination towards sex workers in
communities create mistrust, which leads to sex workers being dehumanised.
The dehumanisation of sex workers underlies the experience of sex workers:
complaints of victimisation, violence, and discrimination are seldom
considered by the police, judiciary, lawyers, or magistrates. Sex workers
are discriminated against in the communities in which they live, and this
results in humiliation because sex work is not regarded as legitimate work.
Stigmatisation and discrimination by state-run services also furthers rejection
by society. For sex workers in Africa, this burden is increased due to the
significantly high HIV prevalence among sex workers. According to the World
Bank report on ‘the global HIV epidemics among sex workers, 2013’, HIV
prevalence among sex workers varies globally reaches its highest at 36.9%4
in sub-Saharan Africa.
Sex workers are also vulnerable to a wide variety of human rights abuses.
These include sex workers being victims of violence perpetrated by the police,
their clients, and by members of the wider community.5 Sex workers face
many forms of violence including sexual violence (rape, harassment, emotional
abuse, humiliation, public insults, stigma and discrimination, and physical
violence such as assault and battery), as well as other violations such as refusal
of clients to adhere to the agreed transaction fee or outright refusal to pay sex
workers for services provided.
Sex work in Africa, like in other regions of the world, is not accepted as
legitimate work by society: it is considered morally reprehensible. Children of
sex workers are often insulted in schools because their mothers work as sex
workers, and this harmfully affects both mother and child. Discrimination
against sex workers in public and governmental service settings such
as governmental departments, public and private health facilities, law
enforcement, hotel and bar owners etc., are also common occurrences.
4 World Bank. The global HIV epidemics among sex workers. 2013, Washington, WA: International
Bank for Reconstruction and Development.
5 Decker, Michele R et al.; “Human rights violations against sex workers: burden and effect on HIV”; The
Lancet , Volume 385 , Issue 9963 , p. 186 –199.
4 GLOBAL NETWORK OF SEX WORK PROJECTS
Sex workers are most at risk of violence perpetrated by clients, police and other
law enforcement agencies, third parties, and partners.6 Sex workers report
various instances of violence against them including: physical abuse and/
or sexual assault from clients, police officers and/or others, refusal of clients
to pay the sex worker for their services. Hotel and bar managers who provide
premises for sex workers to work from often also perpetrate violence against
sex workers through unfair and unsafe working conditions including expecting
– and forcing – sex workers to work without condoms out of fear of arrest
(condoms can be used as evidence of sex work) and because some clients often
pay significantly more if they think they can have unprotected sex.
Moreover, some landlords introduce rules and regulations that are aimed at
barring and evicting sex workers from their premises, some male landlords
demand sex from sex workers without payment, while others extort higher
rents from sex workers simply because they can.
Adherence to Anti-Retroviral Treatment (ARV) is very low among HIV-positive
sex workers due to the nature of their jobs. Indeed, sex workers are highly
mobile and often miss taking their anti-retrovirals (ARV) if they have been
arrested and put in jail.7 In places where sex work is criminalised and highly
stigmatised, sex workers are more likely to be stopped, harassed, and arrested/
detained by police when they are working outdoors as a result. Stigma and
discrimination also affect the uptake of services at general health facilities; this
situation is more challenging for sex workers living with HIV due to a lack of
sufficient support services which continues to be dificult when implementing
prevention, treatment, care, and support programmes for sex workers living
In DRC, the Congolese legislation criminalises procuring8 in order to take
advantage of the sex work of others: the lack of information subjects sex
workers to arbitrary arrests and violence of any kind by the authorities who are
supposed to know the law. While sex work is considered to be anti-social in the
DRC, it is also perceived to be immoral by the general community.
In Ethiopia, sex work is considered an act of deviant behaviour 9 and immoral,
but it is permitted on the basis that it would be impractical to abolish it
instantly. Ethiopian law has created a free environment for sex workers to
work but it has also created unsafe working environments for sex workers, and
because sex work is not legal or illegal in Ethiopia, it is difficult for sex workers’
rights to be respected. In relation to accessing HIV-related services, sex workers
can get the service from any of the governmental clinics for free which are
located at each Woreda (Addis Ababa is divided into ten sub-cities, whereby
each sub-city contains ten or more Woredas within it). Sex workers can also
access these services from private clinics, but stigma and discrimination
towards sex workers from private service providers is a big barrier.
In Kenya, the constitution10 prohibits sex work, and earnings from undertaking
sex work are consequently considered illegal. As such, sex workers are
frequently regarded as easy targets for harassment and violence, and are
considered immoral and deserving of punishment according to traditional
cultures and the Kenyan constitution.
7 Focus Group Discussion with female sex workers in Malawi.
8 Congolese Penal Code, in Article 174b, paragraph 3.
9 Penal Code of the Empire of Ethiopia (1957) and the 2005 revised Criminal Code of the Federal
Democratic Republic of Ethiopia (FDRE).
10 The Laws of Kenya, Penal Code Chapter 63, Section 154 and 155.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 5
In Malawi it is estimated that there are more than 20,000 sex workers, most of
whom remain hidden and marginalised because of social stigma associated
with sex work. Sex workers in Malawi face many serious challenges. The HIV
prevalence rate among female sex workers is estimated to be at 73%11 with
very low condom use and high STI cases. Yet services are not available nor
accessible to female sex workers, and many stakeholders including the police,
health workers, and sex workers themselves, are not aware of the many laws
and provisions that protect sex workers’ rights. The Prevention of Mother-to-
Child Transmission (PMTCT) of HIV programme in Malawi – considered to be
one of the best in the world – does not take into consideration the needs of sex
workers.12 The programme demands that every pregnant woman attends her
first antenatal visit with her spouse: this is a challenge for pregnant female
sex workers because they cannot bring their sexual partners. Consequently,
sex workers prefer not attend antenatal services and shun the PMTCT
In Nigeria sex work is illegal.13 The offender can be any male or female who
is ‘aiding and abetting prostitution’. The criminal code stipulates two-year
imprisonment for those wholly or partly living on proceeds from prostitution.
No law restricts a healthcare provider’s ability to provide medical care to
sex workers, however, due to stigma and discrimination, female sex workers
find it very difficult to disclose their job to healthcare workers. Sex workers
prefer to buy medicine anonymously from road-side drug stores rather
than from hospitals. Moreover, most of the support for healthcare services
comes from NGOs that have developed relationships with the female sex
Uganda has had an increasing HIV incidence for 30 years and is the only
country in East Africa that has recorded increasing HIV prevalence over the last
5 years. Having been closely monitored, the change in incidence coincides with
the moralisation of the HIV epidemic that saw a decline in condom promotion
and provision to communities most at risk. Sex workers are one of the most
at risk populations in Uganda where the HIV prevalence among sex workers
is 33%, approximately 5 times the national average of 7.3%.14 HIV prevalence
is also higher among females when compared to their male counterparts. The
Ministry of Health is in the process of establishing health units across Uganda
that are sex worker and MSM friendly. However, these clinics may not serve
their purpose because the new anti-homosexuality legislation drives sex
workers away from public services for fear of being arrested.15
Ugandan laws prohibit sex work and the penal code has laid down penalties for
people who engage in sex work and those living on the earnings of sex work.16
Uganda has become increasingly religious and puritan in relation to many
social issues. Indeed, the faith community has spearheaded the discrimination
against sex workers and police are constantly harassing and assaulting sex
workers as they conduct their business. The APA Walter Reed, a friendly sex
worker clinic for HIV-positive male and trans sex workers, was raided and
closed by the Ugandan government. It is clear that the security of sex workers
– female, male, and transgender – is at stake.
11 The Malawi 2010 Demographic and Health Surveillance Survey (DHS).
12 Focus Group Discussion with Female Sex Workers in Malawi.
13 The Nigerian Criminal Code Section 225A.
14 Uganda AIDS Commission Aide Memoir for the Joint Annual Aids Review (JAR) 2013.
15 Uganda AIDS Commission Aide Memoir for the Joint Annual Aids Review (JAR) 2013.
16 The HIV Prevention and Control Act 2014, the Anti Pornography Act 2013, the Anti Homosexuality
Act 2010, the Anti Counterfeit Act 2012, and the Public Order Management act 2013.
6 GLOBAL NETWORK OF SEX WORK PROJECTS
With this wave of laws that negate the freedoms and rights of human
beings as detailed in Uganda’s constitution and the international treaties
ratified by the Ugandan Government, it is likely that further marginalisation,
dehumanisation, and ostracism of female, male, and transgender sex workers,
will occur in Uganda. The passing of these bills by Parliament is tantamount to
structural violence because they deny sex workers the right to health and the
right to work, and they further marginalise an already very at-risk community.
Criminalisation is also likely to increase the risk of HIV and STIs for sex
workers in Uganda because it will fuel stigma towards sex workers in the
healthcare setting and foster police abuse and exploitation of sex workers. This
situation perpetuates the lack of sex worker involvement in the development of
health policy decisions that affect them.
NSWP would like to thank Aids Fonds for financial support in producing this
report, and Robert Carr civil society Networks Fund for contributing to the
The following people are also thanked for their contributions to the
development of the project:
Global: Gillian Galbraith, Mitch Cosgrove, Gillian Tasker, Anelda Grové,
Paul-Gilbert Colletaz; Africa Local Consultants: Democratic Republic of
the Congo: Mambo Amisi Modeste (AHUSADEC); Ethiopia: Hanna Hagos
(NIKAT Charitable Association); Kenya: Fridah Nguya (Bar Hostess); Erastus
Ndunda (HOYMAS); Malawi: Zinenani Majawa (CEDEP); Nigeria: Imaobong
Abraham Udoh (Women of Power Initiative); Uganda: Sanyu Hajjara Batte
(Lady Mermaids’s Bureau); Regional Consultant: Safari Mbewe (Malawi);
Support group: Daughtie Ogutu (ASWA); John Mathenge (ASWA, NSWP,
HOYMAS); Phelister Abdallah (KESWA); Peninah Mwangi (ASWA)
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 7
Sex Worker-Led Economic
This section considers good practice examples
of sex worker-led economic empowerment
programmes that have succeeded in having a
positive impact on the lives of sex workers.
SEX WORKER-LED ECONOMIC
8 GLOBAL NETWORK OF SEX WORK PROJECTS
This case study was conducted in Addis Ababa, Ethiopia.
Nikat Charitable Association is a grassroots community-based local NGO,
established by a group of sex workers in April 2010 and registered as an
Ethiopian Residents Charity under the Federal Democratic Republic of Ethiopia,
Ministry of Justice Charities and Societies Agency. Originally, NIKAT was
established in 2006 as a Community Based Organisation (CBO) called
‘Nikat Women’s Association’, which made NIKAT a pioneer in its field.
The association started with 108 sex workers as members; this has now
increased to 189 sex workers.
NIKAT was the winner of the ‘2010 Red Ribbon Award’ at the XVII
International AIDS Conference, organised by UNAIDS in collaboration with
Letiner Center, The Global Fund and Irish Aid, which was held in Vienna,
Austria, for their outstanding community leadership and action on HIV/
AIDS. NIKAT was also selected as one of the best six Red Ribbon Award
winners from the 25 winners and was rewarded $20, 000 (USD) as part of
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 9
NIKAT undertakes the following activities:
1 Runs a Drop-In Centre (DIC). The DIC provides a safe place to rest and
enables female sex workers to access information, peer-support, condoms,
and experience sharing. It also shares information about HIV/AIDS and
STIs and offers access to showers, cooking services, and counselling.
2 Works closely with governmental bodies including the Ministry of Justice,
Women, Children, and Youth Affairs Office, Addis Ababa Finance and
Economic Bureau, Addis Ababa Health Bureau, HABCO (HIV/AIDS Control
Office), the public, direct and indirect stakeholders including police
officers, ‘pimps’, hotel and bar owners, and traditional local drinking
houses called ‘Areke’.
3 Works closely with targeted sex workers by involving them from the start
(including the planning of a project) right up to the project’s completion.
4 Outreach activities at day and night to create formal and informal
linkages with sex workers working in town.
5 Works with partner organisations to offer referrals and resource sharing.
6 Trains former and current sex workers as Peer Educators to train other sex
workers and society. This makes the learning and practice much easier for
sex workers. Peer Educators are not paid and work as volunteers.
7 Public sensitisation by using broadcast media such as a weekly radio
programmes detailing the lives of sex workers, their rights, and the
services that NIKAT provides etc.
NIKAT’s vision is to empower sex workers in Ethiopia by ensuring their
social, political, economic, and psychological rights are improved and
respected while their mission is to improve the living and working conditions
of sex workers in Ethiopia and to fight against sexual abuse and HIV/AIDS.
Specific objectives of NIKAT include:
◗◗ Reduce the transmission of HIV and STIs by increasing condom-use
among sex workers, their clients and other Most-At-Risk Populations
◗◗ Empowering sex workers in such a way that their social, political, and
economic rights are realised.
10 GLOBAL NETWORK OF SEX WORK PROJECTS
Economic empowerment programme
for sex workers: ‘The SUSO Project’
NIKAT works in partnership with the ‘Stepping Up, Stepping Out’ programme
funded by Aids Fonds to deliver ‘The SUSO Project’ which implements
economic empowerment strategies as a means to improve the health and
wellbeing of sex workers.
The objectives and desired outcomes for the initiative are as follows:
capability of sex
workers to make
related to their
1.1 The needs of sex workers in relation
to their own, career development and
economic empowerment are identified.
1.2 Strategies are in place that effectively
responds to these needs, such
as improved access to education
1.3 Improved basic living conditions
particularly related to improved health
and wellbeing of sex workers, through
improved, safer working conditions,
improved access to health basic services,
1.4 Sex workers empowered to make healthy
choices with regard to their own health,
2 Sex workers have
which are leading
to a diversification
of income sources
or new career
2.1 Sex workers take the lead in their own
economic empowerment through peer
support systems (includes peer education,
self‑help organisation, loan/saving schemes).
2.2 Sex workers have increased access to
more diverse sources of income, including
improved access to credit schemes for
sex workers based on market value
(this includes business model, schemes for
3 Improved social
position of sex
3.1 Organisations are capable of analysing the
actual situation in relation to sex workers
and on the basis of that develop effective
lobby and advocacy activities.
3.2 Increased public attention for the situation
and position of sex workers.
3.3 Increased supportive environment towards
human rights issues of sex workers at
local, national, regional and global levels.
A total of 1,478 sex workers were intended to benefit from this project.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 11
A more in-depth analysis of the activities of ‘The SUSO Project’ reveals that
1,716 sex workers benefited from all the activities of the project during 2013.
NIKAT conducted a needs assessment for sex workers, which included
identifying healthcare needs of sex workers in Addis Ababa through outreach
projects. NIKAT hired Momentum Professional Researchers and Consultants
and finished conducting the needs assessment. The needs assessment results
were used in the planning for the project.
8 coffee sessions with 200 participants at the drop-in centre were conducted by
inviting sex workers from the selected sub-cities to educate them about HIV/
AIDS, STIs, proper condom usage with demonstrations, contraceptives, and life
NIKAT provided educational opportunities: English lessons for 5 former
sex workers and 3 current sex workers. NIKAT signed an agreement with
Hello School of American English to provide private English lessons. NIKAT
additionally provided educational opportunities for 3 sex workers to continue
to higher education and enrolled them at 3 different colleges based on their
choices of study including a BSc Degree in Accounting and Finance at Alpha
University College, a BA Degree in Accounting at Admas University College, and
a Level III Nursing at Kea-Med University College in Addis Ababa. An allowance
for transport and other living expenses was also provided for the 3 sex workers
who enrolled at these different colleges.
NIKAT signed a MoU with Loving Shepherd International (LSI), an International
NGO which works on different activities related to sex workers as well as
providing free healthcare services for sex workers and their children. This is a
sex worker-only clinic. LSI provided free healthcare services for beneficiaries of
the project as well as for members and their children each time they required
healthcare services. A total of 118 sex workers and 47 children of the sex
workers under the age of 18 accessed free medical services and free medicine at
this sex worker-only clinic.
NIKAT provided 16 Personal Health Trainings with 400 participants at the
DIC to discuss safe sex, condom use and demonstrations, HIV/AIDS and STIs,
clinical usage, sexual reproductive health, family planning options, customer
handling, and risk avoidance during sex work. Advice on how to effectively
communicate with other stakeholders like the police, clients, hotel owners and
other parts of society were also included.
NIKAT published necessary Information, Education and Communication (IEC)
materials and Behaviour Change Communication (BCC) materials for the office,
as well as introducing the project to different partners (governmental and nongovernmental)
through letter-heads, business cards, invitation cards, banners,
large umbrellas, flags with logos of NIKAT, DKT and SOA AIDS, which all
promoted relevant sex work-related messages. NIKAT also purchased training
materials required for the hair dressing training centre, and they also selected
the targeted beneficiaries and appointed a trainer for the Hair Training Salon.
After finishing setting up the Hair Training Centre, NIKAT started to provide
training for 30 selected beneficiaries.
NIKAT also enrolled 17 sex workers at two Food and Catering Schools called
Lion Ethiopia Catering and Food Preparation School which is owned by the
government, as well as Benvenido Catering and Food Preparation School which
is privately owned. 8 selected sex workers who had completed high school have
been enrolled at Lion Ethiopia Food and Catering School for a Diploma including
a 7 month-long training for a Level I qualification, and 9 selected sex workers
who did not complete high school have been enrolled at Benvenido Food and
Catering School for a Certificate including a 10 month-long training.
12 GLOBAL NETWORK OF SEX WORK PROJECTS
NIKAT gave five SSG Trainings for selected beneficiaries of the project with
125 participants. NIKAT managed to establish three SSG’s each containing 25
members. They also provided match funding for all SSG members who have
been participating in the saving scheme, to help motivate them to continue and
strengthen their savings.
NIKAT signed an agreement with Addis Credit and Saving S.C. and selected
sex workers that managed to save the 1000.00 birr in 2013 (this amount was
required to borrow the money from the financial institution). Training was
facilitated by Addis Credit and Saving S.C, and undertaken in offices located in
each sub-city and Woreda in Ethiopia. One group managed to establish itself as
a CBO by obtaining their work permits with license. The group opened a small
food processing and a restaurant service for daily labourers and other workers
of Kolfe/Keraniyo sub-city in Addis Ababa. The other 3 groups are still trying
to get their license to form a CBO from the government: a license is required to
receive a loan and open a business in Ethiopia.
NIKAT managed to sign an agreement with a financial institution called Addis
Credit and Saving, one of the top financial institutions in Ethiopia – to manage
the interest free loan, additional saving and loan training required and monitor,
and most importantly manage, the revolving fund for the project. The financial
institution has provided the first loan and it has also organised training for
groups taking the loan.
NIKAT conducted seven sensitisation workshops for the stakeholders with 156
participants including police officers, hotel owners, ‘pimps’, and government
officers. Prior to conducting the training, NIKAT conducted an outreach activity
at day and night to communicate formally and informally with targeted
stakeholders. NIKAT also invited stakeholders to undertake the training.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 13
NIKAT believes that each programme’s activity must be based on the needs
and demands of sex workers. Sex workers should be part of the planning and
implementation of the project at all levels. NIKAT’s experience of delivering
these activities as part of the SUSO project gives unique insight into how good
practice sex worker-led initiatives should be the benchmark for designing
economic empowerment programmes. The success of this empowerment
programme attracts sex workers but capacity to deliver similar projects is
limited. In order for sex workers to become more economically empowered,
NIKAT concludes that funding for economic empowerment activities for sex
workers in Ethiopia should be scaled up to match the high demand.
Factors contributing to the initiative’s success
1 Sex worker-led initiative.
2 Sex workers were not required to exit sex work while they were developing
new skills and learning new trades.
3 Initiative is based on the needs and demands of sex workers themselves.
4 Sex workers are part of the planning and implementation of the project.
5 Continuous monthly review meetings with sex workers on vocational
trainings and other economic empowerment activities like micro-scales,
savings, and others.
6 Tight follow-up, monitoring, evaluation, and learning by the programme
7 Successful sensitisation programmes which created close relationship with
the government and other relevant stakeholders including police officers,
hotel and bar owners, traditional ‘Areke’ houses, ‘pimps’, and others.
8 Continuous outreach programme activities created a close relationship
between the sex workers and programme staff directly and indirectly.
9 Sustained funding of the programme enabled sex workers to benefit for a
significant amount of time, which improved the chances of success of the
10 The project’s success required strong relationships between different
SEX WORKER-LED ECONOMIC
14 GLOBAL NETWORK OF SEX WORK PROJECTS
Survivors is a community-based organisation that works in Busia county in the
larger part of Western Province in Kenya. It was initially founded as ‘Muungano’
– a network of sex workers – and then later changed its name to Survivors to
connote ‘member’s resilience’. The organisation was formed in the year 2000
by a group from the University of Nairobi and Manitoba because of the high
prevalence rates of HIV/AIDS along the Kenya-Uganda border. Later, female sex
workers took over the organisation’s operations working on HIV and human
rights issues affecting sex workers in the county and the wider country. To date
the organisation has reached out to over 3,000 male and female sex workers.
Survivors is an organisation led by – and working for – sex workers and is
known in Busia County for its involvement with sex workers. The community
commends the organisations’ work in the HIV/AIDS field through condom
distribution and demonstration campaigns, and their HIV/AIDS testing
and counselling services.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 15
The organisation’s vision is to have a world where all sex workers can enjoy
their health and human rights, and confidently undertake their work in a safe
environment; the organisation’s mission is to support and empower female
sex workers to make informed choices regarding their sexuality. In order
to achieve this, it carries out capacity-building training, advocacy, legal aid
clinics, networking and dialogue with different stakeholders, and economic
empowerment initiatives to promote self-sufficiency for sex workers. Survivors
also actively participates in sexual and reproductive health and policy forums,
to discuss and advocate for issues that affect its members. The organisation
exists to serve vulnerable women who are sex workers and sex workers living
with HIV. Survivors works in partnership with the National AIDS Control
Council and currently is being funded by the Open Society Institute, The Aphia
Plus, and the Liverpool VCT for health and human rights programmes. The
organisation is a founding member of the Kenya Sex Workers Alliance (KESWA)
– a sex worker-led movement in Kenya.
Economic empowerment initiative for sex workers:
Survivors employs various strategies to economically empower sex workers.
It particularly promotes self-sufficiency as an alternative source of livelihood,
and the organisation’s activities include peer education training, condom
demonstration and distribution campaigns, advocating for the human rights
of sex workers, outreach activities for HIV Voluntary Counseling and Testing
(VCT) services (mobile, daytime and night), facilitating support groups for
people living with HIV including sex workers, and emergency support schemes
for sex workers.
Dubbed as the ‘Economic and Livelihoods programme’, Survivors seeks to raise
the standard of living and improve the quality of life for sex workers in Busia
through income-generating activities. These activities also add sustainability
for the organisation, meaning that they don’t have to be too reliant on
donations to fund the organisation. The main objective of this programme is to
mobilise members to contribute funds to support their peers especially during
specific emergency needs, maintain HIV/AIDS and STI prevention, treatment,
care and support activities, as well as to develop mechanisms to ensure
sustainability of both the organisation and sex workers.
The organisation currently has 128 registered sex worker members, all of them
being part of this scheme. Under this programme, the organisation currently
runs a Savings and Credit Cooperative (SACCO) whereby all sex workers
contribute a certain amount of money monthly and receive their shares
annually, and they also operate an emergency support scheme (ESS). The ESS is
an intervention that responds to the need for a health insurance policy tailored
to the needs and financial capabilities of the members. It covers health issues
and provides benevolence funds for bereaved members. To raise funds for this
initiative, the organisation runs a catering business that provides catering
services during functions and events such as weddings, funerals, and parties,
among others, around the Busia area. The money earned from catering is then
put back into the organisation fund.
16 GLOBAL NETWORK OF SEX WORK PROJECTS
These initiatives have not only benefited sex workers in the county of
Busia: other sex workers in Kenya have also learnt from the best practice
demonstrated by Survivors, and they have been motivated to run
empowerment projects in their own organisations. Indeed, the initiatives have
triggered a positive impact among sex workers and this has played a major
role, especially in harm reduction. Due to the sex worker involvement in these
initiatives, the need to earn money quickly from sex work has been reduced.
It is also evident that sex workers have become empowered because very few
tested positive with STIs: this demonstrates that condom negotiation skills
have improved. In addition, with Survivors being located in a rural area where
MSMs are considered more immoral than female sex workers, the initiatives
have attracted and motivated male sex workers who were previously in hiding
and afraid to access services for fear of stigma and discrimination from the
The involvement of sex workers in designing and planning this initiative has
contributed immensely to its success. Sex workers proposed ideas that they
felt they would most benefit from and that they felt suited their circumstances
best. Sex workers also felt more inclined to take part in this programme and
to tell other sex workers about it because – having been part of the design and
planning of the programme – they had a personal stake in it. This in itself is
an empowering element and it contributes to the overall goal of economic
empowerment programmes. It is consequently clear that input of sex workers
is fundamental if economic programmes for sex workers are to succeed.
Factors contributing to the initiative’s success
1 Sex workers were meaningfully involved in all aspects of the initiative.
2 The initiative’s planners understood the challenges and needs of sex
workers and involved them in all the planning stages.
SEX WORKER-LED ECONOMIC
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 17
This case study on economic empowerment for sex workers was conducted
in Nairobi, Kenya. It was conducted and run by a Nairobi-based male sex
workers’ collective, HOYMAS.
HOYMAS was formed in May 2009 by male sex workers and people living
with HIV and is registered as a Community Based Organisation (CBO) by the
Ministry of Social Services and Gender. HOYMAS serves male sex workers,
young men, and other men who have sex with men (MSM) with practical
knowledge on safe sex, preventive materials distribution, general information,
and economic empowerment.
HOYMAS has partnered with the National AIDS and STI Control Programme
to roll out programmes targeting male sex workers. HOYMAS has been a
stakeholder in the KNASP III policy17 as well as the National MARPS and Sex
Workers Policy. It is one of the steering committee members of the Kenya Sex
Workers Alliance (KESWA). It is also in the Technical Working Group (TWG)
of the National AIDS Coordinating Committee (NACC) and the National Sex
Workers Guidelines Committee.
HOYMAS has partnered with NACC in delivering HIV/AIDS programmes
aimed at both MSM and male sex workers. HOYMAS has also partnered with
organisations such as Mama Lucy Referral Hospital, Casino Special Treatment
Centre, Sex Workers Outreach Program (SWOP) clinics, and Liverpool Health,
in both service provision and referrals of MSMs and male sex workers.
HOYMAS has many international partners including American Foundation for
Aids Research (AMFAR), Stop Aids Netherlands (SANL), University of Manitoba
(UOM), VU University in Netherlands, Red Umbrella Fund, Global Network
of Sex Work Projects (NSWP), Africa Sex Workers Alliance, and UNAIDS
17 Kenya National AIDS Strategic Plan 2009/10 – 2012/2013
18 GLOBAL NETWORK OF SEX WORK PROJECTS
HOYMAS has been instrumental to various sex workers’ events including the
International Day to End Violence Against Sex Workers on Dec 17th, and the
International Sex Workers Rights Day on March 3rd.
HOYMAS activities include:
◗◗ Referrals of MSMs and male sex workers to service providers such as the
Kenyatta National Hospital, LVCT, SWOP.
◗◗ Outreach to MSM/MSW communities in various hotspots in Kenya. This
helps with documentation and mapping for data.
◗◗ Training of peer educators and healthcare workers in collaboration with
MSM Training groups/organisations, e.g. LVCT.
◗◗ Counselling and Testing (CT) services to male sex workers, MSMs and clients
during CT drives.
◗◗ Offering condoms and lubricants as well as prevention commodities to
MSMs and male sex workers and their clients.
◗◗ Sensitisation by healthcare providers as well as other stakeholders including
government, the media, and police officers.
◗◗ Production of safer sex brochures and IEC materials for distribution and
creating awareness to MSM/MSW and communities.
◗◗ Providing monthly nutrition programmes with support from government
◗◗ Conducting economic empowerment training and support for vocational
training, micro-finance training, and financial literacy sessions.
◗◗ Documenting and addressing cases of violence with support of HOYMAS’
paralegal team and police.
HOYMAS has also managed to intensify the campaign against harassment
and violations of sex workers by training more paralegals to offer help to sex
workers when they are arrested. The paralegals also educate sex workers on
their human rights, and on steps to take incase their rights are violated. As
part of the campaign, HOYMAS has been vocal by participating in various
protests and organising stakeholder meetings and events purposely planned
for sensitisation purposes; for example, the Champions Day saw numerous
partners of the organisation participate. The sensitisation efforts have
positively impacted the many sex workers who endure victimisation because
they can now stand up for themselves and have the unrelenting support of the
organisation’s partners, including the government. As James says, “Interacting
with law enforcers has opened up my mind and I have realised that the police are just
human beings like me and I can go to them with my problems and assist me when
my rights are violated as a sex worker.” This shows a direct benefit that MSW gain
from interacting with law enforcement partners.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 19
Economic empowerment programme for
male sex workers: ‘HOYMAS Savings and
Credit Cooperative’ (SACCO)’
HOYMAS is committed to supporting male sex workers to acquire life skills,
education, and vocational skills without telling – or forcing – them to abandon
sex work. This approach enables MSWs to make informed choices about their
lives. HOYMAS believes that by obtaining income from other activities, sex
workers will be able to reduce their number of sexual partners and negotiate
safer sex practices, which will also reduce their HIV/AIDS and other STI risk
and vulnerability. HOYMAS runs an economic empowerment project called
‘HOYMAS Savings and Credit Cooperative’ (SACCO).
Small micro-enterprise initiatives is one economic empowerment strategy
in Kenya and most of these programmes in Kenya specifically target women,
youths who are out of school, people living with HIV etc. The programmes
have not targeted sex workers because of the stigma and discrimination they
face in society and even from providers of such programmes. When sex work
is not recognised as legitimate work and not associated with generating a
consistent income like other jobs, most financial institutions are reluctant
to offer financial services – particularly loans – to sex worker groups and
individual sex workers because they are perceived to be high risks.
Due to legal issues it is a huge challenge to register sex worker groups so that
they are able to acquire financial support or access loans services; most sex
worker groups are not registered as sex worker groups, and consequently, they
have to hide their identity in order to access such services. In addition, the
majority of male sex workers do not have identification documents such as the
National Identification Card, which is required to open a bank account.
HOYMAS has been providing business and micro-finance skills training to
male sex workers in conjunction with the Small Micro-Enterprise Programme
(SMEP), a micro-finance institution that works with grassroots organisations
to address poverty and livelihood support systems alongside the Co-operative
Bank of Kenya. In addition HOYMAS has empowered a number of male sex
worker peer leaders who are trained as facilitators – or Training of Trainers
(ToTs) – in the area of financial literacy.
The training has been focusing on:
◗◗ Financial literacy and management
◗◗ Business development skills
◗◗ Savings and loans acquisition processes
As a direct result of this training, HOYMAS members have since started a
group savings and credit scheme (SACCO) whereby some members of the
organisation contribute money every month and can access loans and other
financial assistance at any time, with agreed-upon conditions. This has
shaped a positive change in the living conditions of the sex workers who,
before the financial and savings training, had no permanent living structures
and could not meet essential basic needs such as food and clothing due to
difficulties in managing their earnings from sex work.
20 GLOBAL NETWORK OF SEX WORK PROJECTS
In addition, HOYMAS also offers support to male sex workers by advising
them on the importance of obtaining a National Identification Card and the
importance of a bank account because most male sex workers (MSWs) lose
their money through theft by clients or fellow sex workers. Policemen and
other law enforcers also take advantage over MSWs by asking for bribes –
especially if they are caught on the streets or at their hotspots without their
HOYMAS realises that male sex workers – especially those living with HIV –
face serious health challenges that can make them want to move elsewhere
when they feel they are becoming a burden to their families, or to live in
isolation, especially when their health condition deteriorates. For many
MSWs, this is because they are yet to accept their HIV status; the majority
suffers from mental illnesses which makes it hard for them to engage or
participate in any economic activities. Due to a growing need for immediate
first aid and medical assistance and psycho-social services, a home-based
care (HBC) centre for male sex workers living with HIV/AIDS facility was set
up. HOYMAS established a home-based care programme that was meant
to support and protect members from self-defeating behaviour as a result
of poor health. This is linked with income-generating activity because once
patients recover, they need to start providing for themselves once again and
living a normal and productive life.
Results and conclusion
Results of the training and support from HOYMAS demonstrate that 53 male
sex workers have been able to obtain their National IDs and open personal
bank accounts. Most of them are now fully housed, and by offering financial
loans with fair interest rates when any HOYMAS members needs it, the
savings and credit scheme ensures that this situation remains.
Due to the growing need for a safe space for MSW in need of immediate
medical and first-aid assistance, a home-based care service (HBC) for sex
workers living with HIV/AIDS has been set up by HOYMAS. To date, the
centre has had a total of over 160 patients: patients who have been in the
centre and discharged testified to the fact that the HBC centre changed
their lives and enabled them to be able to resume sex work – which is their
livelihood – sooner than they would have if their needs had not been met by
the centre. “[…] the HBC changed my life, when I went, I was very sick, I had TB,
and I wasn’t taking my ARVs […] but with the help of the nurse and other staff
members, they took me in like family, fed me and ensured I took my medication
well and went to seek medical help regularly at Liverpool clinic”, says Fabian, an
HIV-positive MSW. Individuals underwent a basic course of HBC under the
guidance of National AIDS and STIs Control programme NASCOP, and the
District AIDS Coordinator (DASCO), Nairobi County.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 21
The economic wellbeing of sex workers is almost an unreachable goal because
they are a criminalised group. Through the project, HOYMAS managed to
expand on the possibility of securing financial futures for their members and
other sex workers by setting up training on basic income-generating activities:
for instance 25 sex workers have been trained on making knitting mats and
bead work. They then sell the handicraft that they make to supplement their
sex work income. In addition, they have offered micro-finance and savings
training to their members with the help of the SMEP (Small Micro Enterprise
Programme). As a direct result of the training, HOYMAS members have since
started a savings scheme where some members of the organisation contribute
to, and can access, loans and other financial assistance at any time with agreed
upon conditions. This has seen a positive change in the living conditions of
sex workers who, before this financial and savings training, had no permanent
living arrangement. Most of them are now fully housed, and SACCO ensures
that this lasts by offering financial aid when any of the members need it.
Commenting upon this, one male sex worker says:
“I used to live in a brothel but since the training I have been able to plan the little
money I earn for rent, food and other needs, I also save and they can finance me
if I have a business idea, so it has really empowered me.”
The project has also directly impacted the lives of sex workers by providing
capacity-building as well as helping them to establish economic foundations.
It has also resulted in financial independence for most of the male sex workers,
and sex workers have experienced the project’s benefits and view it as a great
success. One male sex worker said “I am empowered, as I gained skills in planning
and budgeting my money, I am happy now that I can save part of my income at our
group saving account, and I can make a living out of the skills and I have become a
good role model among my peers.”
Addressing the economic needs of male sex workers is key to addressing their
health needs. HOYMAS seeks to strengthen its economic activities for male
sex workers because they are important factors in HIV response. HOYMAS is,
however, strongly persuaded that by supporting income-generating activities
for male sex workers, they will continue to live – and sustain – healthy
lifestyles. Moreover, by doing so, HOYMAS and its members gain respect from
the society and greater credibility to engage in even wider outreach.
Factors contributing to the initiative’s success
1 The initiative was spearheaded and run by sex workers. Consequently,
fellow sex workers were more open to the ideals and objectives of the
project because they received these from their peers, which made them
2 Unlike most research projects, the benefits of this project are direct and can
be clearly seen by sex workers who were part of the project. This in turn
encouraged more sex workers to be part of the programme.
3 Successful sensitisation and the reduction of victimisation saw the
programme receive more attention from other sex workers.
4 Community members were involved at all levels of the programme – i.e.
design, implementation, monitoring, and evaluation – which made the
project more responsive to the community’s needs.
22 GLOBAL NETWORK OF SEX WORK PROJECTS
Non-Sex Worker-Led Economic
This section documents a good practice example
of a non-sex worker-led economic empowerment
programme that had a positive impact on the lives
of sex workers.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 23
NON-SEX WORKER-LED ECONOMIC
Life Link Organisation (LLO)
This case study on economic empowerment for sex workers was conducted
in Lagos and Cross River State in Nigeria as part of the regional efforts at
developing advocacy tools around rights-based economic empowerment for
A sample framework was developed, consisting of sex worker-focused
organisations in Lagos and Cross River States that had implemented
economic empowerment programmes for the female sex worker community.
An email was sent to the organisations introducing the case study project
and its objectives, while requesting approval to engage the organisations
in the study. The email was followed up with telephone communications.
Approval was obtained from 2 organisations, enabling documentation of a
project that has been successful. Data was collected from the organisations
through one-on-one interviews with key officials of the organisations and
also through desk reviews of project reports on female sex workers’ economic
empowerment programmes; the data was collected using the given guiding
questions. A number of sex workers who benefited from the projects also
documented their experiences, which details the impact of the programmes
on their lives as sex workers.
LLO is a non-sex worker-led, non-governmental, and non-profit making
organisation founded in May 1994. Registered with corporate affairs
commission of Nigeria, its sole aim is to provide health services in the
community, focusing on most-at-risk populations, the prison community,
and uniformed personnel. It is an indigenous Nigerian NGO that works in
various states of the federation including Akwa-Ibom, Lagos, Kano, Abuja,
Ogun, Oyo, Kaduna, Enugu, Plateau and Delta states. LLO operates a welldefined
organisational structure with a Board of Directors – consisting of five
directors – to oversee the organisation’s policy and management.
24 GLOBAL NETWORK OF SEX WORK PROJECTS
The organisation’s goal is to provide services to members of society in health
and education-related areas, and to meet socio-economic and psycho-social
needs. Their mission is to provide health and psycho-social services through
dissemination of information, education, and counselling to members of the
community, particularly female sex workers and the prison community, using
well-trained personnel. Their vision statement is dedicated to enhancing the
following in the community: health, education, psycho-social, and economic
wellbeing. LLO is institutionalised with funding support from domestic
resources – Lagos State AIDS Control Agency, Civil Society for HIV and AIDS in
Nigeria, AIDS Prevention Initiative in Nigeria and Society for Family Health. LLO
also has international donors – Family Health International Nigeria/AHNI, The
Futures Group International, International Family Health/Femope Foundation.
LLO is a member of the following sex work networks in Nigeria and Africa:
Civil Society for Health and Rights of Vulnerable Women and Men in Nigeria
(CISHRWIN) and African Sex Workers Alliance (ASWA).
Economic empowerment intervention for sex workers:
The Sex Workers Project
This project was supported by Family Health International. The goal of the
project was to reduce the prevalence of HIV and STI infections among mostat‑risk
women, and the objectives of the project were as follows:
◗◗ To build the capacity of female sex workers to enable them to implement
quality condom use and other prevention activities in Lagos state.
◗◗ To build the capacity of female sex workers to enable them to access HIV
and STI treatment, care, and support services.
◗◗ To strengthen the capacity of female sex workers who desired to leave sex
work through skills action training for 20 sex workers in 5 LGAs Lagos State.
The activities that were carried out were as follows:
◗◗ Monthly meetings of the project management team – the Project Advisory
Committee (PAC) that includes the female sex workers, project officers, and
◗◗ Training/capacity-building on HIV/AIDS, condom use and negotiation skills
for safe sex, including the training of female sex workers as peer educators
reaching out to their peers in various brothels.
◗◗ Dialogue for action activities, condom education, and risk reduction
◗◗ Skills acquisition/vocational training for female sex workers on tie and dye,
cake making, hairdressing, hat making, manicuring and pedicuring. The
duration of this skill-building training was between 2 weeks and 6 months.
Sex workers were given seed grants to help fund their small business as part
of the project.
Organised programmes on financial management that linked sex workers with
existing banks enabled them to open a savings account, rather than keep their
money with the local thrift and credit facility.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 25
Results and conclusion
The project planned to reach 20 female sex workers but this target was
exceeded: 25 female sex workers received various vocational skills-building
training. Some of the female sex workers started their own businesses – some
went into fashion design, cake making, and hairdressing – and they were able
leave brothels and rent their own apartments.
Following the economic empowerment programme, one of the female sex
workers joined the police and today she is a Nigerian Police Officer. The project
was also able to support young female sex workers who were interested in
going back to school: through this initiative LLO was able to support a female
sex worker to enrol and sit the SSCE Examinations, and she secured admission
into a higher education institution to complete the National Diploma degree.
Economic empowerment programmes can be very effective in socially
empowering female sex workers. Programmes that take into account the needs
of sex workers as articulated by sex workers themselves, and which develop
their skills, appear to be more successful. Social empowerment also encourages
sex workers to negotiate safer sex. Such initiatives will not necessarily force
them to exit sex work, but rather, it gives sex workers the economic knowledge
and power to make rights-based choices for their lives.
Factors contributing to the initiative’s success
The project adopted a rights-based approach to the economic empowerment
programme as it did not focus on the sex workers exiting the sex work. Instead
it focused on building sex workers’ skills to be able to make the right choices for
themselves. The female sex workers were empowered to negotiate for safe sex
practices with their clients.
Another key factor that facilitated the success of the programme was the
integrated approach that addressed sex workers’ sexual and reproductive
health needs and economic empowerment support. The full empowerment
programme – which included seed grants for them to start up their businesses
– played a large role in helping them put their newly acquired knowledge and
skills into practice. Technical support – in the form of a financial management
programme and follow-up for a period of 6 months – facilitated a culture
of savings whereby sex workers were able to open bank accounts with the
micro-finance banks. Through saving they were also able to rent their own
apartments and make informed choices for their lives.
26 GLOBAL NETWORK OF SEX WORK PROJECTS
This section looks at examples of economic
empowerment programmes that failed and
negatively impacted on the lives of sex workers.
Programmes That Fail
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 27
PROGRAMMES THAT FAIL
Empowered at Dusk Women’s
The economic empowerment case study was conducted in Uganda from July
to August 2014 and the key informant interviews were held with Empowered
at Dusk Women’s Association (EADWA), a sex worker-led organisation.
Guiding questions were used in the economic empowerment case studies’
organisational interview and a desktop literature review was conducted.
This review considered the following issues: the background of HIV, sex
workers’ violations, and economic empowerment in Uganda. Organisational
visits were also performed, aiming to gather evidence-based information to
ensure credibility and effectiveness of the economic empowerment results.
EADWA is a female sex worker-led organisation established in 2011 to
advocate for health rights and human rights of sex workers. Located in in
Kampala suburbs, Kawempe Division, EADWA is registered as a Community-
Based Organisation in Uganda. EADWA is a member of Uganda Harmonised
Rights Alliance at national level and a member of the African Sex Workers
Alliance (ASWA) and the Global Network of Sex Work projects (NSWP).
It has grown into a membership of 55 female sex workers and it provides
information and education to its members to empower them through
knowledge on human rights, legal procedures and HIV/AIDS.
EADWAs mission statement is to promote awareness of human rights,
economic issues, health, and the social development of sex workers. Their
vision is to ensure that the rights of all persons – including marginalised
groups and especially female sex workers – are central to social, health, and
28 GLOBAL NETWORK OF SEX WORK PROJECTS
EADWA values non-discrimination, equal opportunity, justice, and fairness.
They also value practical methodology and teamwork: their slogan is ‘together
we can’. The organisation has the following objectives:
◗◗ Promote interest in human rights through presentations and sharing
experiences among sex workers.
◗◗ Promote a non-violent culture in the community through networking,
dialogue with policy-makers, and working with the media. EADWA also
undertakes sensitisation workshops on violence, HIV/AIDS, alcoholism, and
drug and substance abuse awareness and prevention.
◗◗ Offer psychosocial support to stigmatised and other marginalised groups,
HIV/AIDS clients through counselling and referrals.
◗◗ Promote self-esteem, self-respect, and the value of human life.
◗◗ Promote empowerment schemes among sex workers to improve their
standards of living.
◗◗ Offer basic education to females, young people, and orphans, especially
those who are affected by HIV/AIDS.
Economic empowerment intervention for sex workers:
‘Provision of entrepreneurship skills in hairdressing,
salon management and art/crafts’
EADWA embarked on an intervention called ‘Provision of entrepreneurship
skills in hairdressing, salon management and art/crafts’. The goal of this
project was to empower EADWA members with entrepreneurial skills.
The following activities were undertaken:
◗◗ Training in hairdressing.
◗◗ Entrepreneurial skills training.
◗◗ Salon management training.
◗◗ Arts and crafts training.
◗◗ Regular breaks were used to discuss other issues affecting EADWA members.
27 members were intended to benefit from this project which aimed to
help sex workers look after their health and to avoid violence, including
clients demanding unprotected sex, rape, and police arrest. This economic
empowerment project also suggested that EADWA members could be good role
models by being heads of their families with available and adequate money to
support their families.
Results and conclusion
A lack of attention on important elements such as saving skills, marketing,
and branding was found. This was due to different issues affecting members
individually. When it came to sex workers’ products, marketing was very
competitive because members had no marketing skills and there was frequent
stigma and discrimination. There was no demand for sex workers’ products
because of social discrimination, and culturally, the community believed that
sex workers’ products were bad omens. Moreover, members were not used
to these somewhat outdated types of jobs and they were inexperienced. Sex
workers had to work long hours and they were subjected to sexual exploitation
by the buyers: one member stated that “once they knew that we were sex workers
they wanted free sex in order to buy our goods”.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 29
Due to the surrounding communities’ negative attitudes towards sex workers,
members who worked in the salon earned very little money. Even with the
stigma of sex work – and the higher risks that sex workers face as a result
of such stigma and discrimination – sex workers felt they were better off
continuing to work in brothels and/or outdoors.
Meaningful engagement and consultation with sex workers during the
planning stages of economic empowerment programmes are critical. EADWA’s
programme staff trained sex workers in hairdressing, entrepreneurial skills,
hair salon management, and arts and crafts, without consulting sex workers
about their preferred area of work. Furthermore, the programme staff did not
conduct an analysis of the services that there is demand for in the community;
if this analysis had been undertaken, it would have helped programme staff
match the sex workers to the vocational trainings they preferred, while also
training sex workers to undertake vocations and skills that were needed within
Other factors also need to be considered – especially those specific to particular
communities – to determine how they impacted on sex workers in that
community. For example, in EADWA’s programme, the management did not
consider the stigmatising views held by the wider community with regard to
goods and services provided by sex workers. This placed the sex workers who
participated in the programme in a very vulnerable position: the sex workers
were outed as sex workers and subjected to stigma and discrimination. As
a result, the sex workers’ ability to earn an additional income was severely
limited. Therefore, programme staff must ensure that the initiatives they put
forward and that encourage sex worker participation are informed by the
experiences of the sex workers themselves. Sex workers are best-placed to
discuss their needs and expectations of economic empowerment programmes.
This case study shows that sex work is highly stigmatised and sex workers
are discriminated against in their communities. Sex workers often feel that
they have little choice but to continue generating their income by working in
brothels or outdoors at the expense of having the respect of their community.
It is consequently reasonable to expect that economic empowerment
programmes that do not demonstrate awareness of, and implement strategies
for, the issue of stigma and discrimination within communities, are destined
to fail. Worse still, this approach fundamentally fails the sex workers and
increases their vulnerability in the communities.
Factors contributing to the initiative’s failure
1 “We realised that there was a gap in economic empowerment policy-making
because there was no consultation between the project officers and the members
(sex workers) on what exactly the sex workers had wanted to carry out”. It can
therefore be concluded that the lack of consultation with sex workers was
one of the main factors that made the initiative unsuccessful.
2 Lack of training for sex workers in the trades that they were encouraged to
take up as part of this economic empowerment programme.
3 Stigmatising attitudes of the programme’s organisers, especially in relation
to the objectives of the programme that called for sex workers to become
‘good role models’ in their communities (wording which implies that sex
workers are bad people).
4 Lack of sentisation training with the community, which would assist in
reducing sex workers being targets of stigma and discrimination.
30 GLOBAL NETWORK OF SEX WORK PROJECTS
PROGRAMMES THAT FAIL
National Female Sex Workers
Alliance of Malawi (NFSWAM)
This case study on economic empowerment for sex workers was conducted in
Lilongwe District, Malawi, as part of the regional efforts at developing advocacy
tools around rights-based economic empowerment for sex workers.
The National Female Sex Workers Alliance of Malawi (NFSWAM) was formed on
7 November 2012 with the aim of advocating sex workers’ rights, encouraging
health awareness through practices such as HIV testing and counselling among
sex workers, and protecting underage children from entering sex work. The
Alliance’s leadership comprises 10 sex workers from different parts of the
country. It has just applied for membership to the African Sex Workers Alliance
(ASWA) and the Global Network of Sex Work Projects (NSWP).
The Alliance implements different activities as follows:
1 Stakeholder meetings with the police to address human rights abuses
committed against sex workers.
2 Stakeholder meetings with health workers to promote accessible and
friendly services for female sex workers.
3 Condom distribution in hotspots and among female sex workers.
4 Peer education training for sex workers.
5 Peer discussion sessions on HIV prevention and STI management.
6 Working with chiefs and bar owners to protect underage children from
7 Dealing with violence that is perpetrated by clients of sex workers.
8 Economic empowerment programmes through village savings and loans.
9 Psychosocial support among sex workers.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 31
However, the National Female Sex Workers Alliance of Malawi is currently
underdeveloped. It has no clearly defined membership and no office to
operate from. It also has a lack of systems and procedures and does not have
its own bank accounts. As a result, the Alliance does not decide on its own
programmes; instead, it waits for partner organisations to involve them in
undertaking their programmes.
Intervention on economic empowerment for sex workers
The Family Planning Association of Malawi (FPAM) embarked on the Economic
Empowerment Project for sex workers. The aim of the programme was to
rehabilitate sex workers through training 40 sex workers in tailoring, salon
management, mushroom production, and restaurant management, to give
them an alternative to sex work. 10 sex workers were trained in tailoring, 10 in
salon management, 10 in mushroom production and 10 in running a restaurant.
FPAM managed the whole programme without meaningful engagement with
the NFSWAM. After the training, a group of 10 was given MK45,000, equivalent
to $100 (USD), to start a group business.
Results and conclusion
All the groups started the group business programme but within 3 months
everything had collapsed. All the sex workers continued undertaking sex work
because no one actually benefited from the economic empowerment initiative.
The three main factors that contributed to this economic empowerment
initiative being unsuccessful was the failure of the FPAM management: they did
not meaningfully engage sex workers. Rather, they coerced them to take part
in the initiative and strongly focused on ‘rehabilitation’. During the planning
process FPAM did not listen to, or consult with, sex workers to establish
which training opportunities they were interested in. Another factor that
contributed to the initiative’s failure was the unsustainability of the economic
empowerment initiative. The grants given were insufficient to sustain small
businesses for long enough to turn over a profit, and this was combined with
the challenge of stigma and discrimination dynamics within communities.
Factors contributing to the initiative’s failure
1 Failure to meaningfully engage sex workers and NFSWAM in designing the
economic empowerment initiative.
2 The managers of the programme (FPAM) wanted to rehabilitate the sex
workers in order to stop them undertaking sex work . However, the sex
workers themselves did not share this view.
3 The sex workers were coerced into participating in the programme: it was
not what each of the sex workers wanted to do or what they had a passion
for. Sex workers often accept to be coerced into the programmes fearing
that, if they refuse, they may be left behind in future programmes that
might be beneficial to them.
4 The funds that the project provided (MK45,000) were not enough to start any
tangible type of business.
32 GLOBAL NETWORK OF SEX WORK PROJECTS
PROGRAMMES THAT FAIL
REPUBLIC OF CONGO
Management of Young for Rural
Development Centre (CEJEDER)
This case study on economic empowerment for sex workers was conducted
in Kivu Region-DRC. The case study documented an economic empowerment
project in DRC that aimed to rehabilitate sex workers and have them exit
Management of Young for Rural Development Centre (CEJEDER) is a non‑sex
worker-led organisation in Democratic Republic of Congo (DRC), in Uvira, South
Kivu. It is a non-governmental organisation with a Board of Trustees and it
runs health, protection, education, human rights, and agro‑breeding activities.
The vision of the organisation is to promote a society that respects and
promotes the right to health, human rights, and the right to self-determination
for women in general and for female sex workers in particular.
The organisation’s specific objectives are to ensure the rights of access to
equipment, goods, and services, without discrimination, in particular for sex
workers and key populations of vulnerable or marginalised groups; to fight
against HIV/AIDS and STIs as well as rape and sexual violence against women;
to support the creation and development of micro and small enterprise for
women with low income; to ensure access to minimum food sufficiency and
agro pastoral production to combat hunger and ensure food security for the
The organisation’s resources are funded by grants by external partners,
membership fees, and specific contributions of non-partisan individuals and
legal entities. It is affiliated to the Africa French-speaking network of sex
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 33
Economic empowerment intervention for sex workers
The programme’s idea was the sale of second-hand clothing, whereby the sales
generated would alleviate the poverty of 200 female sex workers in the town of
Bukavu, South Kivu. The programme was also funded by the Scottish Catholic
Aid Fund (SCIAF). The main goal of the SCIAF was to rehabilitate 200 female
sex workers in the community through the sale of the second-hand clothing.
The objectives were that 70% of female sex workers would be able to support
their families through the sale of second-hand clothing, and that 90% of female
sex workers would be reintegrated into the society. Another aim was that the
initiative would benefit 200 female sex workers directly and reach 350 female
sex workers indirectly. SCIAF, as the funder of this initiative, strictly imposed
conditions for the empowerment programme: the requirements ultimately
aimed for sex workers to exit sex work.
CEJEDER decided to implement this initiative despite the fact that the
conditions of the initiative contradicted with their own mission and beliefs.
Their partnership with SCIAF was due to funding pressure combined with
a lack of funding because, due to negative attitudes towards sex work
even among funding organisations, there were not – and are not – many
organisations willing to fund programmes that deal with sex workers.
The following activities were implemented as part of the initiative:
◗◗ Identifying female sex workers to take part in the programme.
◗◗ Identifying suitable locations where second-hand clothing could be sold.
◗◗ Organising the female sex workers into small groups to enable them
to support each other.
◗◗ Purchasing and distributing second-hand clothing to 200 female
◗◗ CEJEDAR staff and SCIAF staff conducted follow-up visits with sex workers.
Rather than being an opportunity to provide meaningful support to the sex
workers, these visits tended to evaluate the sex workers’ performance when
selling the second-hand clothes.
Results and conclusion
The work undertaken through this initiative did not achieve the expected
outcome. For instance, the majority of the female sex workers had no
savings and could not make profit because they were unable to determine
the right selling prices. This was not considered during the implementation
of the project.
Almost all the female sex workers ended up using some of the second-hand
clothes themselves instead of selling them. Due to this, they ended up having
very little income and, as a result, the economic status of the sex workers in the
initiative was very low. The sex workers used what little money they received
from sales of the second-hand clothing to satisfy basic family needs. Many of
the sex workers had no savings at all for the duration of the initiative as they
were not allowed to undertake sex work.
Less than 1% of the female sex workers involved in the project were able to
support their families. Almost all of the sex workers continued with sex work
during the programme and none stopped sex work as a result of this initiative.
This contrasts with the project’s aim: to rehabilitate the sex workers and have
them exit sex work entirely.
34 GLOBAL NETWORK OF SEX WORK PROJECTS
This initiative failed because it implemented a rehabilitation approach in which
the ultimate goal was for the sex workers to stop sex work and be reintegrated
into the community. Furthermore, during the duration of the initiative, sex
workers’ ability to undertake sex work was restricted. This led to a loss of
income to the extent that the sex workers did not see value in continuing with
The failure of programmes such as this demonstrates the need to involve sex
workers in the whole process, from problem identification, conception, and
implementation. Sex workers must also be involved in the monitoring of the
initiative in order for it to be successful. Above all, there is a need to take a
rights-based approach where economic empowerment initiatives support sex
work rather than substitute it.
Factors contributing to the initiative’s failure
1 The initiative was based on discrimination and stigmatisation of sex
2 It aimed to rehabilitate sex workers without considering whether sex
workers were able to sustain themselves while undergoing training and
3 The initiative was not needed by sex workers themselves, but was instead
imposed by the project’s staff.
4 No component in the programme focused on improving the selling skills
of the sex workers.
5 No pre-market study was conducted to identify the practicality of
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 35
This section looks at the lessons
that have been learnt by looking
at the factors that led to economic
empowerment programmes for sex
workers to succeed or fail. It is hoped
that these lessons will be fully utilised
in order to ensure that future economic
empowerment programmes for sex
workers have a positive impact on
A number of factors that positively
shape economic empowerment
programmes for sex workers have
been identified. Programmes that
are informed by a thorough needs
assessment for sex workers are
best‑placed to identify the appropriate
strategies for implementing economic
empowerment programmes. Indeed,
it is often the case that programmes
run by sex workers have higher success
rates than programmes that do not
meaningfully engage sex workers.
Programmes in which sex workers
report a strong sense of belonging and
ownership of their own destiny have
also been shown to be more successful.
The economic empowerment
programme that NIKAT runs is an
excellent example of how sex workerled
programmes achieve success.
ELEMENTS OF SUCCESSFUL
PROGRAMMES FOR SEX
IN CASE STUDIES
Specific training for
sex workers to build on
and improve their skills
for sex worker
Dissemination of IEC/
HIV/AIDS training and
workshops for sex workers
Access to improved
healthcare for sex workers
for sex workers
Conduct focus group
with project participants
(i.e. sex workers)
Conduct coffee mornings
at drop-in centres
Needs assessment with
sex workers conducted
36 GLOBAL NETWORK OF SEX WORK PROJECTS
One-to-one contact with peers, and employing sensitive and understanding
project staff, is also reported to have had a positive impact on sex workers
who participate in an initiative. Meaningful interaction with peers in similar
situations can also be beneficial: it reduces the sense of isolation that many sex
workers have. Moreover, sex workers are more likely to continue to participate
in a project if there is a sense of consistency and continuity.
Projects that adopt a rights-based approach to economic empowerment
programmes like the HOYMAS and NIKAT projects enhance and build sex
workers’ skills. This enables and empowers sex workers to make the right
choices for themselves. Alongside implementing a more integrated approach
that addresses sex workers’ sexual and reproductive health needs, these
elements clearly contribute to a project’s success.
Improved healthcare access as part of economic empowerment programmes
has many obvious benefits. Benefits are also derived from improved HIV
prevention, treatment, care, and support services for sex workers. Sex workers
who are better informed are more empowered to effectively negotiate condom
use with clients.
The opportunity for further education also contributes to the likelihood of
projects being successful, especially when these opportunities are sufficiently
funded. Funding for education eases the overall financial burden that studying
can place on sex workers because they have less free time to earn an income.
Further education opportunities can also provide specific training for sex
workers to strengthen their existing skills.
Unsuccessful economic empowerment programmes
Economic empowerment programmes that are aimed at sex workers but that
do not meaningfully engage sex workers in establishing the programme’s goals
and objectives often fail. The case studies in this briefing paper highlight 4
examples of unsuccessful economic empowerment programmes: the impact of
these programmes failing can be very negative and does not help to improve
the social and economic empowerment of sex workers. One of the main
failures of the economic programmes highlighted in this paper is that these
programmes did not have built-in mechanisms to sustain alternative incomegenerating
activities for sex workers. For example, not enough seed money
was available for sex workers to set up the small businesses that they trained
to start. There is also very little training that can be provided indefinitely as
costs become prohibitive. Another factor is that in communities into which
sex workers are ‘re-integrated’, sex workers are often discriminated against
because of societal stigma: in one case study, participants ended up being
more marginalised in their communities because the programme did not
properly take into account how stigma and discrimination would affect other
income-generating activities that sex workers undertook. The case study of the
Empowerment at Dusk Women’s Association highlights that stigma against sex
workers in the communities in which they work negatively impacts upon the
chances of the programme being successful.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 37
Other negative factors that impact sex workers include:
1 Initiatives based on discrimination and stigmatisation of sex workers and
aimed at rehabilitating sex workers to stop sex work.
2 Initiatives that are not based on the needs of sex workers but are imposed
3 Initiatives that do not have a capacity-building component to enhance the
skills of sex workers.
4 Failure to conduct market research to identify suitable business areas where
there is a demand for a particular good or service to be provided.
5 Sex workers are not appropriately engaged in programmes: their
participation is a requirement and is often regarded as something they must
do ‘for their own good’. This is stigmatising and undermines the agency and
autonomy of sex workers.
6 Lack of experience of management to implement successful programmes
based on the needs identified through meaningful engagement with sex
7 Poorly funded programmes that are not able to sustain activities for longer
than the initial pilot period.
8 Programmes can be compulsory and often do not take into account the jobs
or skills that the sex workers themselves are interested in undertaking.
9 Rather than ensuring that the intervention and training provided is of
sufficient quality, programmes are often more interested in the number of
sex workers reached and ‘rehabilitated’ .
10 Lack of good monitoring and evaluating frameworks to enable learning and
improvement for future programmes.
11 Lack of consultation and inclusion of sex workers in design and
implementation of programmes.
38 GLOBAL NETWORK OF SEX WORK PROJECTS
There is, in general, a lack of economic empowerment programmes for sex
workers in Africa. This situation contrasts significantly when compared to
other regions. For example, the first part of this SUSO project documented
case studies of economic empowerment programmes in the Asia Pacific
region. The output from this part of the SUSO project is documented in
the Regional Report18 ‘Sex Workers Demonstrate Economic and Social
Empowerment’ and the Regional Briefing Paper19 titled: ‘Sex Workers
Demonstrate Economic and Social Empowerment: Overcoming Practices
That Limit sex Worker Agency in the Asia Pacific Region’.
The Africa Regional Report and Briefing Paper draws similar conclusions
with regards to the role of sex workers in the planning and design stages
of these programmes. Sex workers should be at the front of the process: to
inform programme staff of their expectations of economic empowerment
programmes and of their past experiences with other programmes. This
learning can be a way of limiting harmful outcomes that impact upon
sex workers, such as increased levels of stigma, and the various forms of
abuse and harassment from the communities in which they live and work.
The failed Family Health International project in conjunction of EADWA
in Uganda is a case in point. Without targeted programmes that improve
sex workers’ access to quality economic empowerment programmes, sex
workers will continue to face marginalisation.
If run correctly using the principles from the lessons learnt in this
report, these types of programmes are excellent vehicles for sex worker
empowerment. For economic empowerment programmes for sex workers
to succeed, the needs and the programmes should be determined by sex
workers themselves, and each programme’s activities must be based on
the needs and demands of the sex workers. Sex workers should also be
part of planning and implementing the projects. Stakeholders should
strengthen the capacity of the sex worker-led organisations for them to
be effective and efficient, but sex workers themselves should run the
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 39
Many sex workers enter sex work because of poverty. Economic
empowerment programmes for sex workers need to be enhanced if the
initiatives are to succeed: there is a need to involve sex workers themselves
in identifying economic empowerment programmes. For economic
empowerment programmes for sex workers to be successful, business ideas
must be driven by the sex workers to ensure that they are able to choose the
initiatives they have a passion for.
In almost all the communities in Africa, sex work is heavily stigmatised and
people have negative perceptions about sex work. It is therefore reasonable
to expect that economic empowerment programmes which do not consider
the dynamics of stigma and discrimination within communities are
destined to fail. Worse still, the programmes fail sex workers by increasing
their vulnerability in their own communities.
Economic empowerment initiatives for sex workers must adopt a rightsbased
approach that focuses on giving sex workers the economic power
to make informed choices about their lives, including their sexual health.
These initiatives should not necessarily focus on making sex workers exit
sex work. Economic empowerment programmes for sex workers should aim
to provide an alternative source of income to reduce their vulnerability, but
the programmes should not aim to entice sex workers to stop sex work when
they are not ready to do so.
40 GLOBAL NETWORK OF SEX WORK PROJECTS
1 Build and strengthen the capacity of sex worker-led organisations to
faciliate economic empowerment programmes for sex workers. Funding
for these organisations should be sustained for a sensible period of time to
maximise the benefits for participants of projects and the capacity of sex
worker-led organisations in general.
2 Organisations that work with sex workers should adopt rights-based
approaches to sex worker programming which centre upon the needs of
sex workers (as articulated by sex workers themselves).
3 Appropriate strategies for meaningful engagement of sex workers
should be identified at the earliest opportunity. Such strategies will help
programme planners establish the needs of sex workers in terms of their
objectives for participating, and to manage their expectations once they
are involved in the programme. Meaningful engagement can contribute to
effective capacity-building with sex workers and contribute to the overall
success rate of these programmes.
4 Programmes should include continued training support for participants for
as long as possible, coinciding with regular follow-up visits to participants.
These visits should take the format of a friendly neighbourhood visit where
support is provided and sex workers’ progress is recorded. Programmes
can also facilitate post-training group support networks enabling
participants to share their experiences with others participating in the
5 On a national level, communication and collaboration with financial
institutions should be explored in order to promote the development of
initiatives to improve financial literacy of participants. While this approach
contributes to the economic empowerment of sex workers, it also helps to
increase sex workers’ access to financial services. Furthermore, financial
institutions should ensure that they do not discriminate against sex
workers who want to access financial services.
ECONOMIC EMPOWERMENT PROGRAMMES FOR SEX WORKERS: AFRICA 41
6 Economic empowerment programmes should build in sensitisation
training elements into their programmes in order to facilitate the wider
community’s acceptance of sex workers – both as current and former sex
7 Programmes should have an appropriate monitoring and evaluation
(M&E) framework to measure the impact of the economic empowerment
intervention. A well-designed M&E framework will help organisations
to learn from the design and implementation phases of programmes, to
improve and build upon successful strategies, and to avoid less successful
approaches in the future.
8 Agencies or organisations that fund economic empowerment programmes
should support sex worker-led organisations and work with them to
establish vocational skills centres. To ensure a holistic approach to
addressing the needs of sex workers, vocational skills programmes should
also be integrated into reproductive health education and services as part
of economic empowerment programmes.
The Matrix, 62 Newhaven Road
Edinburgh, Scotland, UK, EH6 5QB
+44 131 553 2555
NSWP is a private not-for-profit limited company.
Company No. SC349355
When sex work is criminalized, sex workers experience decreased control over the conditions of their work and they are subject to increased violence and discrimination. Survivors commitment to the decriminalization of sex work is informed by our work with sex workers from the Busia Town, across Western and around the world. Decriminalization is a necessary step to protecting the safety and rights of sex workers by ensuring that they have full access to health, safety and human rights. In addition to law reform, Survivors is also committed to challenging oppressive social conditions that constrain women’s and M,S,M economic options. These social conditions include poverty, homelessness, addiction and colonization. All sex workers deserve to have their choices respected and be able to work safely, without fear of violence, discriminationand social stigma.
Busia First Lady meets Sex Workers Women’s Day demands
Busia First Lady Judy Ojaamong today met the Sex Workers’ International Women’s Day Demands of availing them with condoms.
The workers through their umbrella body the Survivors Self Help Group had appealed through the event host and sponsor Florence Mutua, the Busia Women MP, for assistance in terms of condoms and lubricants.
” We have our cousins who include women sex workers , MSM ( Men having sex with men) and trans gender men and women, but they lack condoms and lubricants. We are Kenyans and your children who care.
Our membership currently stands at 2,500 with members spread to various urban centres including Nambale, Bumala, Funyula, Matayos, Busia Town and Port Victoria,” thus the need for concern she said.
Handing over a carton of condoms to the Group on Thursday, Judy said the donation which was courtesy of the National Aids Control Council will help the workers as per their demand.
Owing to the large number of the members, Judy said she would approach NASCOP for more condoms and lubricants to meet the group’s demand.
The First Lady said being a cross border town which has a high spread of HIV and Aids and sexually transmitted diseases, it was paramount to take precautions and avoid unprotected sex.
Judy said she was happy that the survivor organization through its Director Caroline Kemunto had come out openly to talk about sexual workers in the county.
She promised to bring more condoms through National Aids Control Council and other organizations to help sex workers in the county protect other people from contracting HIV and Aids.
Judy urged sex workers not to shy away from talking about their status in the society because whatever they do brings them daily income.
She told the sex workers who openly talked to her to help in buying them condoms to educate other people on the importance of protecting themselves while having sexual intercourse especially with people who are not their partners.
Kemunto said the condoms will be distributed to Bars and other places which attract sex workers in Nambale, Matayos, Bumala, and Budalangi.
She thanked the First Lady for being mindful of their members welfare saying the quick response was a true testimony that Judy cares about our welfare.
Client violence against sex workers should be considered in the context of the high levels of violence against women in the society. A sturdy conducted a few weeks ago showed that, a quite number of sex workers have been violated and mistreated by clients, police, health workers in the hospitals and even family members.
In our investigations, some of the sex workers shared their experience of which some cases revealed to us that some of them were even raped. In the health sector, some were not given proper care when they went for services at the health facility. Their was a case where by a male sex worker was given drugs that are not subjected to P.E.P after the health attendant realized that he is a sex worker. This negative attitude has left sex workers fear to go for services at the health facility with the fear of getting exposed. This leads to improper care and support with the MARPs of which the reduction of health issues as been a barrier at the Key Population. This are the state actors who should be on the front line in implementation of health but some of them still have negative attitude of which it has to be eliminated at all cost.
Other state actors who still need to be equipped with knowledge are the police. Still some of the have been using their powers to manipulate and harass sew workers on their hotspots. Some have even ended up demanding for sex through threat, creating a bigger barrier when it comes to law enforcement. Secondly some of them have been involved in cases where by they end up being suspended or get transferred due to their irresistible attitudes and behaviors.
With all this issues, we as Survivors have tried with all efforts to ensure that meeting and forums have been organized with the aim of passing information to the Police, Health Implementer s and Key people in the society including religious leaders.
Stop violence against sex workers
Just a point of concern to all who are there to discriminate and stigmatize others, have you ever asked yourself this question, “if you were in his or her shoes how would you feel?” suppose you were neglected due to your sexual orientation or the kind of work you do to earn a living, what will be your views?
There is a point I would like to make, not everybody was meant to be a farmer or be a teacher. Everybody has his or her own career, profession or job. If we were all meant to be farmers, who will buy our products?
You are within the community neglecting other people rights; you are doing a wrong thing. Let everyone has his or her freedom as long as he or she is not interfering with other persons interest or mandate.
As human beings, let everybody express their views in order to create a well and established society with full of knowledge, positive attitude and anxiety in order to achieve our mission, vision and positive impact in our future generation.
Let everybody exercise their freedom and rights in order to enhance peace across all genders and ages. Let everyone feel free to associate with one another in order to build a working nation. Keep this in mind. ONLY RIGHTS CAN STOP WRONG.PEACE
Welcome! Here you can learn Advocacy Tactics used successfully by advocates for sex workers’ rights, get Documentation Tools you can use in your campaigns, and get to know Member Organizations active in the field to learn more about their victories and challenges in human rights advocacy projects.
This community is supported by the Open Society Public Health Program
Why Document Human Rights Violations?
There are many reasons why people document human rights violations. In rare cases, documenting violations and exposing them to the public can on its own put an end to abusive practices. More often, however, documentation is only part of a larger effort to end abuses. In addition, it may take years and a combination of efforts to put a stop to an abuse altogether. Advocacy efforts based on the evidence gathered through documentation should therefore identify interim goals that are realistic to achieve and that contribute in a meaningful way to creating the conditions necessary to eventually put a stop to abuse.
It is therefore important for people who document violations to be clear about what specific changes they seek, and to be realistic about what they are capable of changing. The specific changes that result from documentation are referred to as outcomes. Outcomes should be designed to respond to particular problems that documentation seeks to solve and should be targeted at particular actors. Once these problems and outcomes are identified, the documentation process typically involves the following steps:
The Open Society Public Health Program has developed a clear and simple guide that pairs common violations experienced by sex workers with relevant provisions of major human rights treaties.
The guide, entitled Common Human Rights Violations Experienced by Sex Workers, explains briefly how human rights treaties are enforced and lists some of the most important enforcement mechanisms. It also provides a key that sex workers’ rights advocates can use to determine which rights protected by international law have been violated when sex workers have certain kinds of experiences. For instance, when a sex worker is arbitrarily arrested or detained, his or her right to liberty and security of person is violated and he or she may also experience violation of the right to equality and non-discrimination, the right to freedom from torture and cruel, inhuman, and degrading treatment, and the right to a fair trial. The guide lists these rights along with the relevant provisions of international treaties that are violated when these rights are not respected.
The purpose of the document is to make clear the connection between abusive acts commonly experienced by sex workers and international rights guarantees. By referencing the guide, sex workers’ rights advocates can present the experiences of sex workers in terms that international treaty bodies created to enforce human rights law can understand and take action on.
Rights groups can use a range of tools to document violations committed against sex workers. Here you will find examples of questionnaires that sex worker advocacy groups have developed to ensure that the way they engage with sex workers about their experiences is respectful and consistent, and results in the collection of clear and relevant data that can be used in reports or other advocacy materials. You will also find materials that describe the connection between advocacy and documentation, and share advice about the most relevant and effective targets for evidence-based advocacy projects.
For more information about the role of documentation in advocacy, see our Why Document Human Rights Violations Guide.
International and regional human rights mechanisms exist to implement human rights treaties and monitor governments’ compliance with international standards for human rights. By submitting testimony to these bodies, advocates link documentation and advocacy to achieve change. Learn more about alerting human rights bodies to rights violations.
For information about appropriate terminology to use in documentation reports, see this glossary of terms related to sexual health and rights.
Advocacy tactics are specific actions that groups take to achieve their strategic goals. These tactics are the means by which groups achieve their advocacy objectives to improve the situation for sex workers and gain greater respect for sex workers’ fundamental human rights. Sex worker groups have employed a range of advocacy tactics to forward the cause of sex worker rights. Here you will find examples from letter writing campaigns, NGO shadow reports exposing rights violations, NGO advocacy reports aimed at bringing about concrete legislative and policy changes, and real life examples of groups using strategic litigation as an advocacy tactic.
We are working together to end human rights violations against sex workers.
Survivors Organization Busia. Kenya
Healthy Options Project Skopje (HOPS) and the Coalition for Protection and Promotion of Sexual and Health Rights of Marginalized Communities (the “Sexual and Health Rights Coalition”), Macedonia
Keeping Alive Societies’ Hope (KASH), Kenya
Sex Workers’ Rights Advocacy Network (SWAN), Central and Eastern Europe and Central Asia
Sex Workers Education and Advocacy Taskforce (SWEAT), South Africa
Tais Plus, Kyrgyzstan
Women’s Legal Center (WLC), Cape Town, South Africa
This list of resources provides information about recognizing and documenting human rights abuses from organizations that work on a range of human rights issues. Although not specific to advocacy for the rights of sex workers, these guides, manuals, and organizations provide useful tools for collecting information about abuses and developing creative and effective plans for human rights advocacy.
Advocates for Human Rights and US Human Rights Network: A Practitioner’s Guide to Human Rights Monitoring, Documentation and Advocacy
This manual from Advocates for Human Rights and the US Human Rights Network provides comprehensive information and guidance on how to use a human rights framework to facilitate social change. The manual includes instructions for every step of the human rights documentation process, including establishing a project and its objectives, setting up and conducting interviews, formulating recommendations, and writing a report.
External Link: A Practitioner’s Guide (English)
Asia Catalyst: Prove It Documenting Rights Abuses Manual
“Prove It” is the first in a three part series of manuals, called “Know It, Prove It, Change It: A Rights Curriculum for Grassroots Groups” which will be published jointly by Thai AIDS Treatment Action Group (TTAG), Korekata AIDS Law Center in China, and Asia Catalyst in the US. “Prove It” covers such topics as how to plan a research project, obtain informed consent, conduct interviews, and manage post-traumatic stress disorder among interviewees. It comes with a supplement containing detailed lesson plans that activists can use to hold community workshops.
External Link: Prove It Guide (English)
AWID: Reference Tool for Women Rights Defenders
This compilation of resources put together by the Association for Women’s Rights in Development (AWID) lists research materials dealing with the security and protection of defenders, resources that women activists can consult concerning their wellbeing and self-care, manuals dealing with how to document and monitor violations of women’s rights, as well as manuals on the rights and mechanisms available to women human rights defenders at risk. The list also references materials that address specific themes particularly relevant to women defenders, such as sexual orientation and documenting sexual violence by state actors.
External Link: AWID Guide (English)
The Equitas website provides access to manuals on how to conduct human rights education and reports about violations of women’s rights in specific countries.
External link: Equitas Manuals (English)
Front Line Handbook for Human Rights Defenders
The website for Front Line, the International Foundation for the Protection of Human Rights Defenders, provides several manuals that provide human rights defenders with knowledge and tools to improve their understanding of security and protection. Additionally, the “Front Line Handbook for Human Rights Defenders: What protection can EU and Norwegian Diplomatic Missions offer?” summarises the provisions of the EU Guidelines on HRDs and Norwegian guidelines on HRDs. It draws on the results of the EU’s own evaluation of the implementation of its guidelines carried out in the first half of 2006. The handbook details the ways in which the EU and Norway have committed themselves to supporting and protecting human rights defenders. It also makes suggestions to HRDs regarding how they might benefit from these policies.
External links: Front Line Manuals (English); Front Line Manuals (French)
On the website for Human Rights Information and Documentation Systems, International, advocates will find useful manuals, such as, “What is Monitoring?” “What is Documentation?” “Data Analysis for Monitoring Human Rights,” and the “Handbook on Fact-Finding and Documentation of Human Rights Violations.” There is also free HURIDOCS software for use in creating a database for managing information about human rights violations.
External link: HURIDOCS Manuals (English)
IHRA UN Human Rights Systems and Harm Reduction Advocacy Training Package
This training, produced by the International Harm Reduction Association, provides civil society groups with an introduction to human rights concepts, the UN human rights system, and skills required to engage with UN accountability mechanisms. The training involves a mix of discussions, group work, exercises, and presentations. IHRA’s training manual and the necessary exercise materials can be found at the link.
External Link: IHRA Training (English)
ILGA-Europe Advocacy Manuals and Documentation Tools
Members of the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association have undertaken a series of human rights documentation and advocacy projects regarding abuses against LGBTI people in specific countries and circumstances. ILGA-Europe developed its own handbook in 2008, which covers principles of human rights documentation, interviewing guidelines, advice for report writing, and a sample questionnaire. “Make it Work,” ILGA’s 2010 manual, provides a set of tools, methods, and skills which advocates can use in planning and implementing their advocacy work. ILGA-Europe has also posted documentation tools and materials useful to activists documenting rights abuses against members of marginalized communities, including guidelines for documentation and examples of interview questions.
External links: ILGA Manuals; Documentation Tools (English)
Martus software can be used for creating an encrypted database of rights violations that is backed up on a secure, remote server. The software and instructional publications, developed by the Benetech initiative, are available for free download.
External link: http://www.martus.org/index.shtml
Open Society Institute Human Rights Documentation and Advocacy: A Guide for Organizations of People Who Use Drugs
This guide aims to help activists recognize human rights abuses that are systematically conducted and condoned by state and non-state actors and silently suffered by people who use drugs. The guidebook focuses on providing activists with the tools necessary to develop a human rights advocacy plan, particularly by documenting abuses against people who use drugs.
External link: Human Rights Documentation and Advocacy: A Guide for Organizations of People Who Use Drugs (English)
Open Society Foundations: An Introduction to the European Human Rights System
The Open Society Foundations has created a brief overview of the European human rights system. The guide describes ways in which civil society groups can participate in European processes to hold states accountable for their compliance with human rights law and provides contact information and useful links to key European institutions.
Internal Link: An Introduction to the European Human Rights System (English)
UN Secretary-General’s Database on Violence Against Women
The Secretary General’s online database on violence against women is easy to use and contains primary source information about conditions women face in specific countries. It also includes a good practices section that directs visitors to examples of legislative reform and NGO projects designed to counter violence against women. The purpose of the database is to encourage the exchange of information and ideas about policies, services, and other measures to tackle violence against women.
External Link: UN Secretary-General’s Database on Violence Against Women (English)
Tactical Tech: Transforming Data into Images for Advocacy
Drawing By Numbers, a website created by the Tactical Technology Collective, is a collection of software tools and advice that organizations can use to turn information about human rights abuses into charts, maps, pictures diagrams and other visual instruments that can be used in advocacy, strategic planning, public education or training. Having something visual to present to audiences can be an effective means of convincing people of the importance of a problem and that you have the best solution. Information graphics are also useful in making large amounts of data or evidence easier to understand.
Tactical Tech worked with two sex-worker collectives in India and Cambodia to explore how data visualization could be used in advocacy campaigns for sex workers’ rights. They’ve published a write-up, the first in a series documenting the project, which explores how they collected data, analyzed it, crafted a message, and turned the information gathered into compelling visual evidence to present to a target audience.
The write-up of this case study is just one example of how organizations can use the data they collect as evidence in their advocacy campaigns. The website offers online manuals, toolkits, software and tutorials for organizations to use in crafting their own visual products using their own information about rights abuses.
External Link: Drawing by Numbers (English)
External Link: Sex worker voices: Documenting violations in India (English)
World Health Organization Guidelines on Conducting Research on Violence Against Women
These guidelines provide instructions on creating safeguards to make sure that the research participants are protected.
External Link: Guidelines on Conducting Research Against Violence Against Women (English, .pdf)
Open Society Foundations
The Open Society Foundations work to build vibrant and tolerant democracies whose governments are accountable to their citizens. To achieve this mission, the Foundations seek to shape public policies that assure greater fairness in political, legal, and economic systems and safeguard fundamental rights. The Foundations have supported a number of sex worker organizations’ projects to document abuses and advocate for human rights.
Tactical Technology Collective
Tactical Tech is an international NGO helping human rights advocates use information, communications and digital technologies to maximise the impact of their advocacy work. Tactical Tech provides advocates with guides, tools, training and consultancy to help them develop the skills and tactics they need to increase the impact of their campaigning.
Women’s Link Worldwide is an international NGO that provides technical assistance to women’s rights groups working strategically within the courts to promote gender equality through the development and implementation of human rights standards. Women’s Link assists advocates in using international human rights law in national cases and bringing cases to regional and international tribunals.
The Kenyan government guarantees that all Kenyans, including sex workers have a right to choose their own employment and enjoy the same type of protections as other service workers.
The illegal status of sex work creates conditions in which exploitation and abuse can thrive. Sex workers and brothel owners could be an important source of information for the police about abuse in the industry, including human trafficking. But because sex work is criminalized, they tend not to be open with the police.
Sex workers experience various forms of physical abuse violence and corruption at the hands of police. Some of them have been threatened with violence by the police; others have been forced to have sex with police officers (i.e. raped), others have been asked for sex for sex by policemen in exchange for release from custody.
The relationship with the police clearly does not encourage sex workers to report cases of abuse or exploitation. The consequence of this is that sex workers, who are already vulnerable to abuse by the clients and other third parties, are made even more vulnerable.
Author: Muthee Thuku. Form and Content Review: M/s Mercy Njoroge, Mr. Njuki Githethwa, M/s Gillian Nevins. Editing: M/s Gillian Nevins. April 2011. 2 Table of Contents: Abstract…….………………………………………………………………………………………..3 1.0 International human rights law and instruments……………………. …………………..4 1.1 Human rights and their characteristics………………………………………………………..6 2.0 Obligations of State Members under international human rights law…………..7 3.0 Recognition of international human rights instruments/law in the new Constitution of Kenya (2010)..……………………………………………………………..10 4.0 Aspects of domestication of international human rights instruments in the new Constitution of Kenya – A Comparative Analysis…………………………12 5.0 Protection of rights of women and girls in the new Constitution of Kenya…..26 6.0 Protection of Guarantees of Rights and Fundamental Freedoms by the new Constitution of Kenya – Self Protecting Mechanisms………………………….29 References…………………………………………………………………………………………………..32 Acknowledgements……………………………………………………………………………………..33 About the author……………………………………………………………………………………….33 Annexes: Annex 1: List of Kenya’s ratification of various international and regional human rights treaties…………………………………..34 Annex 2: Terms and definitions……………………………………..……………….36 3 Abstract: The Bill of Rights in the new Constitution of Kenya (2010) gives guarantees for a wide range of rights and fundamental freedoms. This paper gives an in-depth analysis of the Kenyan Bill of Rights in relation to the whole Constitution and against the background of international human rights instruments. In relating the Bill of Rights to the other Chapters in the Constitution, it seeks to consolidate the gains made by linking diverse Articles that reinforce the guarantee of rights and fundamental freedoms expressed by each Article in the Bill of Rights. This is important since the Bill of Rights cannot be interpreted in isolation of other provisions in the whole Constitution. Briefly, it gives a glimpse of what constitutes international human rights law and instruments as well as the universal characteristics of human rights and how these aspects are captured in new Constitution of Kenya. The paper highlights Articles in the new Constitution that recognise the role of international instruments/law in Kenyan law. It also briefly looks at the international obligations of the State with regards to human rights and fundamental freedoms and how they are captured in the Constitution. Articles in international and regional human rights instruments that correspond to the ones in the Bill of Rights are analysed in order to bring out the aspect of domestication of various international human rights instruments through the new Constitution. The paper also accords a special analysis on guarantees of women rights expressed in diverse Articles and Chapters of the new Constitution of Kenya as a way of consolidating them since they are not harmonised under one Article in the new Constitution. Briefly, it also looks at tactics which the Constitution employs in protecting the rights and fundamental freedoms it guarantees from interference or infringement by either the State or nonstate actors including negative customs and traditions. The paper is analytical and academic in nature and is intended for use by human rights defenders and organisations as a tool for advocacy, lobbying, monitoring and training. References have been made to papers/documents sourced online. All human beings are born free and equal in dignity and rights. Article 1, Universal Declaration of Human Rights (UDHR), 1948. 4 1.0 International human rights law and instruments:1 International human rights law includes the legal provisions governing human rights as expounded in various international and regional human rights instruments.2 International human rights instruments constitute the total bulk of laws that are agreed upon by States with the aim of respecting, protecting, and fulfilling human rights for all. It includes treaties (draft texts of human rights treaties that are adopted by States Members of the relative organisation (UN/AU) for ratification e.g. ICCPR, ICESCR and ACHPR) and standards (agreements that act as guides of best practices to State Members of a particular organisation but are not legally binding, commonly referred to as Declarations (e.g. UDHR 1948 and the UN Declaration on the Rights of Indigenous Peoples 2007). States that ratify or accede to a treaty/convention/covenant undertake a commitment to fulfil the terms of the treaty. Declarations can not be ratified or acceded to and are therefore not legally binding. The instruments could be agreed upon at the international level (e.g. UN – ICCPR and ICESCR) or at regional level (e.g. Africa – ACHPR). 3 The most important human rights instruments relevant to Kenya and which have been considered in analysing the guarantee of rights and fundamental freedoms in the new Constitution include: International human rights instruments: International Bill of Rights (IBOR) – The Bill comprises of: Universal Declaration of Human Rights (UDHR, 1948). International Covenant on Civil Political Rights (ICCPR, 1976). International Covenant on Economic, Social and Cultural Rights (ICESCR, 1976). Optional Protocols to the ICCPR – 1st Optional protocol to the ICCPR allowing individuals to report personal human rights violations (1976) and 2nd Optional Protocol to the ICCPR calling for the abolition of the death penalty (1991). 1 For further reading, please see: Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%2015062010.pdf 2 Definition sourced and slightly modified from: http://www.wordiq.com/definition/International_human_rights_law 3 For more information on different international and regional human rights treaties and information on ratification/accession by State Members, please visit: United Nations Treaty Collection, http://treaties.un.org/pages/Treaties.aspx?id=4 and AU: http://www.africaunion. org/root/au/documents/treaties/treaties.htm 5 Optional Protocol to the ICESCR allowing for individuals to report human rights violations with regard to ESC rights. Charter for Elimination of All Forms of Discrimination Against Women (CEDAW, 1981). Convention on the Rights of the Child (CRC, 1990). International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1969). Convention on the Rights of Persons with Disabilities (CRPD, 2008). International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CPRMW – Migrant Workers Convention, 2003). International Convention for the Protection of All Persons from Enforced Disappearance (2010). Rome Statute of the International Criminal Court (ICC Statute, 2002). Convention relating to the Status of Refugees (CSR, 1954). United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1987). UN Declaration on Rights of Older Persons (1991). UN Declaration on Rights of Indigenous Peoples (2007). The several ILO conventions and standards. Regional (African) human rights instruments: African Charter on Human and Peoples’ Rights (African Charter – ACHPR, 1986). African Charter on the Rights and Welfare of the Child (African Child Charter – ACRWC, 1999). Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol – ACRWA, 2005). African Union Convention on Preventing and Combating Corruption (2006). African Union Convention for Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention – adopted in 2009). African Youth Charter (AYC, 2009) 6 1.1 Human rights and their characteristics:4 Human rights are basic standards or entitlements without which people cannot live in dignity as human beings. They are attained at birth and are not granted by the State. Human rights are universal for all persons and have several main characteristics. They are: i) Inherent – This means that they belong to every person by virtue of birth. All human beings are born free and equal in dignity and rights. The new Constitution of Kenya captures this aspect in Article 19 (3) (a) which states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State. Article 28 also states that every person has inherent dignity that deserves to be respected and protected. ii) Universal – They belong to everyone. Article 27 (4) (5) of the new Constitution prohibits the state or any person from discriminating against a person, directly or indirectly, on any ground, including5 race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. iii) Inalienable – they cannot be taken away but can only be limited (e.g. lawful detention). Article 19 (3) c) of the new Constitution states that the rights and fundamental freedoms in this Constitution are subject only to the limitations contemplated in this Constitution as spelt out in Article 24. However Article 25 states four rights that cannot be limited at any time which include: freedom from torture and cruel; inhuman or degrading treatment or punishment; freedom from slavery or servitude; and the right to a fair trial; and the right to an order of habeas corpus.6 iv) Indivisible – All categories of rights are inter-connected and interdependent. The civilpolitical and the economic, social and cultural rights complement and supplement each other and enjoyment of any rights is dependent on the realization of all others. Article 20 (2) of the new Constitution seems to allude to the characteristic of indivisibility by stating that, ‘every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.’ 4 For further reading please see: Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%2015062010.pdf 5 The word ‘including’ recognises that there are other prohibited grounds of discrimination e.g. property. 6 This Article conforms to Article 4 of ICCPR. 7 2.0 Obligations of State Members under international human rights law:7 Under international human rights law, States have obligations to respect, protect and fulfil the rights spelt out in any instrument that they have ratified/acceded to.8 Obligation to respect: That the State respects the rights of its citizens; may not interfere with people who are trying to provide for themselves; nor prevent access of resources necessary for their livelihood. Obligation to protect: That the State has to ensure that non-state actors (e.g. civilians and private firms) do not interfere with access to essential resources neither commit human rights abuses. Obligation to fulfil: That the State has the duty to ensure that everyone enjoys at least a minimum essential level of rights and on the basis of equality. This is known as the Minimum Core Obligation and has three elements i.e. facilitate, promote and provide. Facilitate – That the State should take measures aimed at improving people’s access to and use of goods and services. Promote – That the State should set up claims procedures and inform people of their rights and how to claim them. This should include human rights and civic education.9 Provide – That the State must provide goods and services if people, for reasons beyond their control, are unable to get them. The above three obligations are captured in Article 21 (1) of the new Constitution of Kenya which states that: 7 For further reading please see: Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%2015062010.pdf 8 Obligations of State Members further stressed in Article 2 of ICESCR and Council on Economic Social, Cultural Rights, General Comment No. 3. 9 In particular, Article 25 of ACHPR states that State Parties to the Charter have the duty to promote and ensure through teaching, education and publication, the provisions of rights guaranteed in it. 8 ‘It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.’ With regards to Economic, Social and Cultural rights, ICESCR, Article 2(1), spells out further obligations for the State Members as follows: Article 2(1): Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (Emphasis added). This is also echoed in the UDHR, Article 22 which states: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. (Emphasis added). These Articles gives rise to several obligations for State Members as follows: Progressive realization : This means that the State should take steady and targeted steps so as to deliberately and effectively ensure that it fulfils it obligations towards achieving the highest level of enjoyment of rights. This includes prioritizing to ensure that its citizens attain minimum essential levels of each right (minimum core obligations). Article 21(3) of the new Constitution of Kenya captures this obligation by stating that: Article 21 (3): The State shall take legislative, policy and other measures including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43 (Economic and social rights). Use maximum resources available: Every State Member is required to use maximum resources available and in an effective and accountable way, to ensure the attainment of maximum levels of enjoyment of rights for all. Resources include funds, people, skills, good management and other assets. This obligation is captured under Article 20 of the new Constitution of Kenya with regards to Economic and Social rights as follows: Article 20 (5): In applying any right under Article 43 (Economic and social rights), if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles–– (a) it is the responsibility of the State to show that the resources are not available; 9 (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and (c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion. Seeking international assistance : This obligation requires a State Member to seek international assistance in cases where it does not have enough resources meet its obligations. Though the new Constitution of Kenya does not express this obligation, Kenya is a State Member to various international instruments that express it. In particular, ICESCR, Article 2(1) requires that States should seek international assistance and co-operation in order to progressively achieve Economic, Social and Cultural rights. Article 2(6) of the new Constitution of Kenya states that: ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya.’ This means that the State is constitutionally bound to seek international assistance if it does not have enough resources to meet its obligations. Obligation to use all appropriate means including particularly the adoption of legislative measures: This requires that the State make appropriate laws and provide appropriate mechanisms for monitoring implementation including policies, action plans and strategies. The new Constitution of Kenya has many Articles requiring the National Assembly and the State to take legislative action to ensure the realization of rights and fundamental freedoms for all. In particular it calls for affirmative action for marginalized and vulnerable groups such as children, women, youth, persons with disabilities, workers and minorities and marginalized groups. Article 21 (3) of the Constitution states that: ‘The State shall take legislative, policy and other measures including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43 (Economic and social rights).’ With regards to ensuring that the State fulfills its international obligations on human rights and fundamental freedoms, Article 21 (4) of the new Constitution of Kenya states that: ‘the State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.’ Article 132 (Functions of the President), 1 (c) (iii) requires that once every year, the President shall submit for debate a report to the National Assembly on the progress made in fulfilling the international obligations of the Republic. These include its obligations under international human rights and humanitarian law. Article 132 (5) also requires that, ‘the President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.’ 10 3.0 Recognition of international human rights instruments/law in the new Constitution of Kenya (2010): The State always has the duty of domesticating international laws within its territory. The new Constitution of Kenya explicitly recognises the role of international law in several Articles. In Chapter 1 (Sovereignty of the People and Supremacy of the Constitution) Articles 2(5) and 2(6) recognise the role of international law in domestic Kenyan law as follows: Article 2(5): The general rules of international law shall form part of the law of Kenya. Article 2(6): Any treaty or convention ratified by Kenya shall form part of the law of Kenya. With regards to human rights and fundamental freedoms, Chapter 4 (Bill of Rights), Article 21(4) states: Article 21 (4): The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. The Articles above set the stage for monitoring the application of international human rights norms in Kenya and the subsequent change in both policy and practice. Other Articles that reflect or refer to international law include: Article 50 (Fair hearing), (n), states that ‘a person may not be convicted for an act or omission that at the time it was committed or omitted was not; (i) an offence in Kenya; or (ii) a crime under international law.’10 Article 51 (Rights of persons detained, held in custody or imprisoned), 3 (b) obliges Parliament to enact legislation that will (a) provides for the humane treatment of persons detained, held in custody or imprisoned; and (b) takes into account the relevant international human rights instruments.11 Article 58 (State of emergency) (6) (a) (ii) states that ‘any legislation enacted in consequence of a declaration of emergency may limit a right or fundamental freedom only to the extent that the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency.’12 10 This conforms to Article 15 of ICCPR. 11 For example, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: http://www.un.org/documents/ga/res/43/a43r173.htm 12 This conforms to Article 4 of ICCPR. 11 Article 132 (Functions of the President) 1 (c) (iii) requires that once every year, the President shall submit for debate a report to the National Assembly on the progress made in fulfilling the international obligations of the Republic. These include its obligations under international human rights and humanitarian law. 132 (5) also states that: ‘the President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.’ Article 145 (Removal of President by impeachment), (1) (b) states that a President may be impeached where there are serious reasons for believing that the President has committed a crime under national or international law. The same is repeated in Articles 150 (1) (b) (ii) for Removal of Deputy President, Article 152 (Cabinet) (6) (b) for removal of a Cabinet Secretary and Article 181 (1) (b) for Removal of a County Governor 12 4.0 Aspects of domestication of international human rights instruments in the new Constitution of Kenya – A Comparative Analysis. The table below is a summary of various provisions found in international human rights instruments that are now domesticated by the new Constitution of Kenya under various Articles in the Bill of Rights as analyzed. ‘Art.’ refers to corresponding Article in the instrument named (e.g. UDHR Art. 2). Where an international instrument is labeled ‘various articles’, (e.g. CEDAW – various Articles) it means that the instrument has many Articles related to the one in the Kenyan Bill of Rights or relates almost in its entirety. There are also linkages between the different Articles in the Bill if Rights to related Articles in other Chapters of the new Constitution of Kenya that strengthen the guarantee of different rights and fundamental freedoms. Article and Right in the Kenyan Bill of Rights (Chapter 4). Content of Article and related Articles in other Chapters in the Constitution of Kenya (2010). Related Articles in international human rights instruments. Article 26: Right to life This Article was one of the most contentious Articles during the campaigns for and against this new constitution. It guarantees the right to life, states that life of a person starts at conception and prohibits intentional deprivation of life. It prohibits abortion except on medical grounds in Clause 26 (4). This generated a lot of controversy with pro-life crusaders claiming that it makes abortion legal due to wording ‘medical profession’ rather than qualified doctor. The Article also leaves room for intentional deprivation of life of a person under clause 26 (3) which states that ‘a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.’ It is important to note that Kenya has not ratified the 2nd Optional Protocol to ICCPR which calls for the abolition of the death penalty. This provision may seem to contradict with the guarantee in 26 (1) which states that every person has the right to life. This is a debate that is going to deepen in the future as pro and anti death penalty groups seek its constitutionality. Even though no hangings have taken place in Kenya since 1987, the death penalty remains in the books and hundreds of people are waiting on Continued on next page… UDHR Art. 3; ACPHR Art. 4; ICCPR Art. 6; CRC Art. 6; Migrant Workers Convention Art. 9; African Child Charter Art. 5; African Women’s Protocol Art. 4. 13 the death row. The death penalty has been argued to be a form of torture or other cruel, inhuman or degrading treatment or punishment and may be argued to go against the spirit of Articles 25 (a) and 29 (f) which outlaw such treatment/punishment.13 Article 27: Equality and freedom from discrimination This Article is extensive in guaranteeing equal rights for all before the law and in prohibiting all forms of discrimination. In particular, 27 (3) states that: ‘women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.’ The Article also obliges the State to undertake legislative measures to address discrimination suffered by persons or groups in the past. It also requires the State to ensure that no elective or appointive body shall have more than two-thirds of its members from the same gender. This will effectively see increased participation of women in such bodies and public service. Under Freedom of expression, Article 33 (2) d) ii), advocacy of hatred that promotes discrimination or violence is prohibited. Article 60 (1) f) puts elimination of gender discrimination in law, customs and practices related to land and property in land as one of the key principles of land management. Article 250 (4) requires that appointments to Commissions and Independent Offices be guided by this Article and should reflect ethnic diversity of the people of Kenya. The same is required for composition of the Defence Forces (Article 241 (4), the National Police Service (Article 246 (4), the National Executive (Article 130 (2) and in allocation of political parties seats (Article 90 (2) (c). UDHR Arts. 1, 2, 7; ACPHR Arts. 2- 5, 28; CRC Arts. 2, 37, 39; ICCPR Arts. 2 – 4, 18, 20 (2); ICESCR Arts. 2, 3; CRPD Art. 5; African Child Charter Arts. 3, 26; Migrant Workers Convention Art. 7; Convention on Status of Refugees Art. 3; African Women’s Protocol– various Articles; CERDvarious Articles; CEDAW- various Articles. Article 28: Human Dignity This article states that human dignity is inherent and that it deserves to be respected and protected. Article 19(2) states that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities. UDHR Art. 1; ACPHR Arts. 4, 5; ICCPR Art. 10; CEDAW Preamble; African Women’s Protocol Art. 3; CAT various Articles. 13 The author believes that the death penalty is a gross violation of human rights by the State and should be abolished in Kenya and elsewhere. His views do not necessarily reflect the views of the reviewers or any organisation he works for or with. 14 Article 29: Freedom and Security of the Person This Article guarantees the right to freedom and security of person by prohibiting acts such as deprivation of freedom arbitrarily, detention without trial, torture, corporal punishment and cruel, inhuman and degrading treatment or punishment. Article 25 (a) (Fundamental rights and freedoms that may not be limited) also puts freedom from cruel, inhuman and degrading treatment as one of the rights that cannot be limited under all circumstances. Article 238 (b) requires that National Security organs shall undertake their duties in full compliance of the law, and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. UDHR Arts. 3-5, 9; ICESCR Art. 7; ICCPR Arts. 9, 10(1); CRC Art. 37; CAT 1, 2, 4; ACPHR Arts. 5, 6; CEDAW Art. 15; Migrant Workers Convention Art. 10, 16; African Child Charter Art. 16; CERD Art. 5; African Women’s Protocol Arts. 4, 5, 20. Article 30: Freedom from slavery, servitude and forced labour This Article outlaws slavery, servitude and forced labor. Freedom from slavery and servitude is also mentioned as one of the rights and fundamental freedoms that cannot be taken away at all times under Article 25(b). UDHR Art. 4; ICCPR Art. 8; ICESCR Art. 7; ACPHR Art. 5; ILO Convention No. 182 (Worst Forms of Child Labour Convention, 1999) Art. 3; Migrant Workers Convention Art. 11; African Child Charter Art. 15, CRC Art. 19. Article 31: Right to Privacy This Article guarantees the right to privacy for all. The rights include not to have home or property searched; possessions taken away; information relating to family of private affairs unnecessarily required or revealed; and privacy of their communication infringed. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5a). However, Article 24 (1) states that: “A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors …’ UDHR Art. 12; ACPHR Art. 14; ICCPR Art. 17; CRC Art. 16; Migrant Workers Convention Art. 14; African Child Charter Art. 10. 15 Article 32: Freedom of conscience, religion, belief and opinion The Article guarantees the rights to freedom of conscience, religion, thought, belief and opinion. It guarantees the right not to be compelled to act, or engage in any act that is contrary to the person’s belief or religion. Article 44 (3) also places a limitation on cultural practices by stating that: ‘A person shall not compel another person to perform, observe or undergo any cultural practice or rite.’ With regards to the State, Article 8 (State and religion) clearly stipulates that there shall be no State religion. UDHR Art. 18; ACPHR art. 8; ICCPR Art. 18; CRC Art. 14; Migrant Workers Convention Arts. 12, 13; African Child Charter Art. 9; CERD Art. 5. Article 33: Freedom of Expression The Article guarantees freedom of expression including freedom to seek, receive and impart information; freedom of artistic creativity; and academic freedom and freedom of scientific research. However it prohibits propaganda for war, incitement to violence, hate speech or speech that advocates for hatred or discrimination which is prohibited under Article 27. UDHR Art 19; ACPHR Art. 9; ICCPR Art 19, 20; CRC Art. 13; ICESCR Art. 15; African Child Charter Art. 7; CERD Art. 5. Article 34: Freedom of media This Article deals with freedom of the media including requiring that all State-owned media should be impartial and should afford fair opportunity for the presentation of divergent views and dissenting opinions. This is a major departure from past practices where Stateowned media outlets have been used by incumbent governments as propaganda machines for mis-informing the public and maligning any opposition. The Article establishes an independent regulatory body to regulate and monitor compliance to the standards it sets out. UDHR Art 19; ACPHR Art. 9; ICCPR Arts. 19, 20. Article 35: Right of access to information This Article guarantees the right to access of information held by the government or by an individual required for the exercise or protection of a right or fundamental freedom. This right could also be linked to Article 254 (1), which stipulates that all commissions created by this Constitution should submit reports every year to both the President and to Parliament. Article 229 (4) requires the Auditor General to audit and report the accounts of every public office, including the National and County governments every year. Article 232 (f) puts transparency and provision to the public of timely and accurate information as one of the core values and principles of the Public Service. Article 33 (Freedom of expression) (1) (a) also guarantees the right for all to seek, receive or impart information or ideas. The right to access of information held by the government is a major gain for Kenyans who have been denied information for years under Continued on next page… UDHR Art 19; ACPHR Art 9; ICCPR Arts 19, 20; CRC Art. 17; CRC Art. 17; CEDAW Art. 10 (g); African Women’s Protocol Art. 14 (e); CRPD Art. 1 (b); African Convention on Combating Corruption Art. 9. 16 the pretext of ‘classified’ information as practiced under the Official Secrets Act of 1968. This Act has been used for many years to cover up violations, abuses, abuse of office and grand corruption. Application of this Article will also lead to a departure from past practice where reports of commissions and tribunals are never released to the public. Article 35 (3) requires that the State shall publish and publicise any important information affecting the nation. Article 36: Freedom of association The Article guarantees the freedom of association for all. However, the rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5b). For example, this article could be used to prohibit police from forming a trade union. UDHR Art. 20; ACPHR Art 10; ICCPR Art 22; CRC Art. 15; African Child Charter Art. 8, CERD Art. 5. Article 37: Right of assembly, demonstration, picketing and petition This Article gives right to every person, peaceably and unarmed, to assemble, demonstrate, picket and petition. This is a major gain for Kenyans who have been subjected to State terror for holding demonstrations against the State or influential persons. The Public Order Act (1950) gave the police and State organs sweeping powers to break up such demonstrations in the pretext that they threatened State security. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5c). UDHR Art. 20; ACPHR Art. 10; ICCPR Art. 21; CRC Art. 15; CERD Art. 5. Article 38: Political rights This Article guarantees that every citizen is free to make political choices. It gives all Kenyans a constitutional right to participate in the way they are governed and in the political processes thereby strengthening the democratic process. Article 1 (1) states that all sovereign power belongs to the people of Kenya while 1 (2) states that the people may exercise their sovereign power either directly or through their democratically elected representatives. Article 4 (2) states that the Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10. In Article 10 (2) (a), democracy and participation of the people are mentioned as part of the core national values and principles of governance. Further rights and principles guiding representation of the people are expounded in Chapter 7 (Representation of the people). In Chapter 8 (Legislature), Article 118 obliges parliament to ensure public access and participation during its business and Article 119 gives the right to every person to petition Parliament to consider any matter within its authority. Special right to participate in political processes for special and marginalized groups (workers, youth, women, persons with disabilities, minorities and marginalized communities) are stressed Continued on next page… UDHR Art. 21; ACPHR Art. 13; ICCPR Art. 25; CEDAW Arts. 3, 7, 14; CERD Art. 5; African Women’s Protocol Art. 9. 17 under Articles 97 (c) and 100. Under Article 104 (Right of recall), the electorate have the right to recall a member of the National Assembly or of the Senate before the end of the term of relevant House for non-performance. Article 232 (d) puts involvement of the people in the process of policy making as one of the values and principles of Public Service. Article 258 gives the right to every person to institute court proceedings claiming the Constitution has been contravened or is threatened with contravention. Under Fourth Schedule (Distribution of functions between the National Government and County Governments), Part 2 (14), one of the functions of the County Government shall be ‘ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.’ This is in the spirit of Articles 174 and 175 (Objects and principles of devolved government) which gives one of the objects and principles of devolution as enhanced participation and ensuring powers of self governance of the people in the exercise of the powers of the State and in making decisions affecting them. Article 39: Freedom of movement and residence Guarantees the freedom of movement within Kenya, right to leave and re-enter and right to reside anywhere in Kenya. This Article can be related to Article 40 (1) (b) (Protection of right to property) which states that every person has the right to own property in any part of Kenya. UDHR Art. 13; ICCPR Art. 12; ACPHR Art. 12; CEDAW Art. 15 (4); CRC Art. 10; CERD Art. 5; Migrant Workers Convention Art. 8. Article 40: Protection of right to property This Article gives the right to a person to own property either individually or in association with others in any part of Kenya. It prohibits parliament form enacting any law that would lead to arbitrary deprivation of property. It also demands for prompt and just compensation for any private property acquired by the State in public interest. It also obliges the government to support, promote and protect the intellectual property rights of the people of Kenya. This Article is linked to Article 11 ( Culture) which requires the State to promote the intellectual property rights of the people of Kenya and requires that Parliament enacts legislation to ensure that communities receive compensation or royalties for use of their cultures or cultural heritage and recognition and protection of indigenous seeds and plant varieties. Continued on next page… UDHR Art. 17; ACPHR Art. 14; ICESCR Art. 15; CEDAW Art. 15, 16; Migrant Workers Convention Art. 15; CERD Art. 5. 18 The interpretation of the word ‘property’ is given in Article 260 as: “Property” includes any vested or contingent right to, or interest in or arising from – (a) land, or permanent fixtures on, or improvements to, land; (b) goods or personal property; (c) intellectual property; or (d) money, choses in action or negotiable instruments. In consideration of the rampant culture of grabbing of public land and property for private use, the Article puts a caveat that rights to property do not extend to property that was unlawfully acquired. This Article is also subject to Article 65 which guides on ownership of land by non-citizens. Article 41: Labour rights The Article ensures the rights to fair labour practices, fair remuneration, to join or form trade unions, rights of employers and rights of trade unions. This right can be related to several other Articles in the new Constitution. Article 232 (h) puts representation of Kenya’s diverse communities as one of the core values and principles of the Public Service. Under Article 238 (d), recruitment by national security organs should reflect the diversity of the Kenyan people in equitable proportions. The special right for workers to participate in political processes is ensured in Article 97 (c). Article 236 (Protection of public officers) seeks to protect public officers from victimization or discrimination for having performed the functions of office in accordance with the Constitution or other law. Article 162 (2) a) gives Parliament the power to establish courts with the powers and status of the High Court to hear and determine disputes relating to employment and labour relations. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5d). UDHR Art. 23; ACPHR Art. 15; ICESCR Arts. 6 – 8; CEDAW Art. 11; Migrant Workers Convention Arts. 25, 26; CERD Art. 5; African Women’s Protocol Art. 13; various ILO Labour Standards. Article 42:14 Right to clean and healthy environment The article guarantees the right to a clean and healthy environment. It is further strengthened in Chapter 5 (Land and environment), Article 69 (Obligations in respect of the environment) and Article 70 (Enforcement of environmental rights). The right to a clean and healthy environment is a major leap for Kenyans who have had to endure destruction, pollution and degradation of land and environmental resources for decades. Article 162 (2) b) gives Parliament the power to establish courts with the powers and status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. ACPHR Art. 24; ICESCR Art. 12 (2b); African Women’s Protocol Art. 18; UN Principles on Older Persons (1991) Art. 5 14 This Article strengthens provisions in the Environmental Management and Co-ordination Act, 1999, and the Forests Act, 2005. 19 Article 43: Economic and Social Rights The title for this Article is rather wide and encompasses many other rights guaranteed in separate Articles. The Article actually deals with the Right to an adequate standard of living for persons and families. These rights include right to adequate food, clothing, shelter, clean and safe water, education, health and social security. An Equalisation fund for marginalized areas is set aside under Article 204 as an affirmative action towards Economic and Social rights. This fund is for purposes of providing basic services including water, roads, health facilities and electricity but is set to lapse in 20 years from the effective date unless Parliament extends it for a fixed period of years as per Article 204 (6) and (7). Under Article 232 (c), responsive, effective and equitable provision of services is cited as one of the core values and principles of the Public Service. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5e).15 UDHR Arts. 22, 25; ICESCR Arts. 9, 11, 12; CEDAW Arts. 10, 12-14; Migrant Workers’ Convention Art. 25; ACPHR Arts. 16, 17, 26-28; CRC Arts. 4, 24; CRPD Art. 24; African Child Charter Arts. 11, 14; CERD Art. 5; African Women’s Protocol – various Articles. Article 44: Right to language and culture This Article deals with the rights to language, the right to participate in cultural life of choice and rights to form or join cultural and linguistic associations. Under Chapter 2 (The Republic), Article 11 recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Article 11 also requires the State to promote all forms of national and cultural expressions. It also obliges Parliament to enact legislation that will ensure that communities receive compensation or royalties for use of their cultures or cultural heritage. Article 11 also recognizes and protects ownership of indigenous seeds and plant varieties. Under Article 238 (c), respect for the diverse cultures of the communities within Kenya is cited as one of the core principles of the national security organs. Under Article 159 (Judicial authority), 2 (c), promotion of alternative forms of dispute resolution, including traditional dispute resolution mechanisms, is noted as one of the guiding principles of courts and tribunals in exercising their judicial authority. Continued on next page… UDHR Art. 27; ICESCR Art. 15; ICCPR Arts. 1, 27; CEDAW Art. 13; CRC Arts. 29-31; Migrant Workers Convention Art. 31; African Child Charter Art. 12; CERD Art. 5; UN Declaration on Indigenous Peoples Rights (2007) Arts. 12, 14. 15 However, Article 4 of ICESCR states that: ‘The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ Kenya has acceded to ICESCR and the limitations of Economic and Social rights to members of the defence forces and the police may go against the spirit of this Article. 20 However, negative cultural practices are outlawed by the Constitution under Chapter 1 (Sovereignty of the people and supremacy of this Constitution), Art. 2 (4) states: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid’. This is also echoed in Article 53 (Specific application of rights of children) (d) and Article 55 (Youth) (d) which protect children and the youth from harmful cultural practices respectively. Article 159 (3) outlaws any traditional dispute resolution mechanism which contravenes the Bill of Rights; is repugnant to justice and morality; or is inconsistent with the new Constitution or written law. With regards to the State, Article 7 (National, official and other languages) gives Kiswahili as the national language and Kiswahili and English as the official languages. However, Article, 7 (3) (a) obliges the State to protect and promote the diversity of languages of the people of Kenya. Article 45: Right to family This Article recognizes the family as the natural and fundamental unit of society. It guarantees the right to marry and found a family for consenting adults and of opposite sex. This Article generated a lot of debate during referendum campaigns with the opposing faith-based and conservative side claiming that it did not explicitly outlaw samesex- marriages. It recognizes all marriages concluded under different systems including traditional, religious and personal or family law. In Chapter 3 (Citizenship), Article 13 (3) states that citizenship is not lost through marriage or the dissolution of marriage while Article 16 allows for dual citizenship. This will mean that one retains citizenship even after marriage to a non-citizen. Article 14 (1) confers automatic citizenship to children born in such marriages. UDHR Art. 16; ACPHR Art. 18; CEDAW Arts. 5, 9, 16; ICCPR Art. 23; ICESCR Art. 10; CRC Arts. 5, 8, 18; African Child Charter Art. 18; CERD Art. 5; African Women’s Protocol Arts. 6, 7, 20, 21. Article 46: Consumer rights This Article guarantees the rights of consumers to goods and services of reasonable quality, information about them, compensation for loss or injury arising form defects in goods or services and protection of health, safety and economic interests. Under the Fourth Schedule, Part 1 (14), consumer protection is the duty of the National Government. This Article can be linked to Article 33 (Freedom of expression) which guarantees the right to seek and receive information and Article 35 (Right to access information) which guarantees the right to access to information required for the exercise or protection of a right or fundamental freedom. Its spirit is reflected in provisions on right to information guaranteed under international human rights instruments. UDHR Art 19; ACPHR Art 9; ICCPR Arts 19, 20; CRC Art. 17; CRC Art. 17; CEDAW Art. 10 (g); African Women’s Protocol Art. 14 (e); CRPD Art. 1 (b); 21 Article 47: Right to fair administrative action This Article accords every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This Article maybe interpreted to imply that the government should ensure efficient delivery of services. It also gives the right to persons to challenge any administrative action that may adversely affect their basic rights and fundamental freedoms. Article 232 (1) puts responsive, prompt and effective provision of services as one of the core values and principles of Public Service. Article 59 establishes the Kenya National Human Rights and Equality Commission as a Body Corporate whose mandate includes to receive complaints of abuses of rights from individuals.16 UDHR Art. 8; ICCPR Art. 3. Article 48: Access to justice The Article obliges the State to ensure access to justice for all persons and to ensure that any fee charged should not be an impediment to accessing justice for those who cannot afford. This is a major gain for Kenyans considering that one of the greatest hurdles towards accessing justice has been the cost of legal aid. The principles guiding courts in exercising judicial authority under Article 159 (Judicial Authority) include; 2(a) justice shall be done to all irrespective of status; 2(b) justice shall not be delayed; 2(d) justice shall be administered without undue regard to procedural technicalities; and, 2 (e) the purpose and principles of this Constitution shall be protected and promoted. Article 170 (Kadhi’s Courts) creates Kadhi’s Courts to cater for interests of Muslim faithful in ‘determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.’ This Article generated a lot of heated debate during the campaigns preceding the national referendum on the new Constitution with sections of the Christian fraternity claiming that putting these courts in the Constitution elevated one religion over others. UDHR Art. 8; ACPHR Arts. 3, 7; ICCPR Art. 14 (3d); CRC Arts. 37 (d), 40; Migrant Workers Convention Arts. 17, 18, 24; African Women’s Protocol Art. 8; African Child Charter Art. 17; CRPD Art. 12. Article 49: Rights of arrested persons The Article is extensive in laying down the rights of arrested persons. Rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5f). Continued on next page… UDHR Arts. 10, 11; ACPHR Art. 7; ICCPR Art. 14; CRC Art. 40; Migrant Workers Convention Arts. 17, 18, 24; African Child 16 There are several complaints mechanisms under different government ministries and departments in Kenya through which individuals can lodge complaints when their rights are infringed upon. Examples include the Public Complaints Standing Committee (The Office of the Ombudsman), Kenya Anti-Corruption Commission (KACC), National Environmental Management Authority (NEMA), Kenya Bureau of Standards (Kebs) and the National Cohesion and Integration Commission (NCIC). 22 Charter Arts. 17, 30. Article 50: Right to a fair hearing This Article strengthens the provisions of Article 49 by spelling out the rights of an accused person. Under Article 25 (c), the right to a fair trial is listed as one of the rights and fundamental freedoms that cannot be limited at all times. Article 159 (Judicial authority), 2 (a) (b) demands that justice shall be done to all irrespective of status and shall not be delayed. UDHR Arts. 10, 11; ACPHR Art. 7; ICCPR Arts 9-16; Migrant Workers Convention Art. 18; African Child Charter Art. 17. Article 51: Rights of persons detained, held in custody or imprisoned This Article guarantees the rights and fundamental freedoms of persons detained, held in custody or imprisoned. It obliges Parliament to enact legislation that provides for humane treatment of such persons and that takes into account the relevant international human rights instruments. It gives the right to petition for an order of habeas corpus for a person who is detained or in custody. This is one of the rights and fundamental freedoms that cannot be limited under Article 25 (d). UDHR Arts 5-7; ACPHR Arts. 3-5; ICCPR Art. 10. Article 52: Specific Application of Rights Under Article 52, the new Constitution of Kenya (2010) offers special application of rights, for greater certainty, to the following groups of persons: Article 53:17 Children’s rights This Article constitutionalises the rights of the child. In particular it accords the child parental care and protection even if the mother and father are married or not. It outlaws harmful cultural practices that affect the welfare of children. Under Article 260 (Interpretations), the interpretation of the word ‘child’ is given as anyone below the age of 18. Under Article 21 (3), children are mentioned as a vulnerable group within society. In Chapter 3 (Citizenship), Article 14(4) states that ‘a child who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth’ while Article 15 (3) allows for application for citizenship for a child who is not a citizen but is adopted by a citizen of Kenya. Article 14 (1) confers instant citizenship to children born in marriages in which one spouse is a citizen of Kenya. Kenya has ratified the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and ILO Convention No. 182 (Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour). UDHR Arts. 5, 15, 26; ICCPR Arts. 8 (1) (2) (3a), 14(4), 24; ICESCR Arts. 10(3), 13; ACPHR Arts. 4, 5, 16-18; CEDAW Arts. 5, 16 (2); CRPD Art. 7; Migrant Workers Convention Arts. 29, 30; African Women’s Protocol Art. 13 (g); CRCvarious Articles; African Child Charter – various Articles; ILO Convention No. 182 – various Articles; 17 This Article strengthens the provisions made in the Children’s Act, 2001 that domesticated CRC and the African Child Charter. 23 Article 54:18 Rights of persons with disabilities This Article gives special recognition to persons with disabilities in order to preserve their dignity. It guarantees the rights to be treated with respect and in particular demands that they be referred to in a manner that is not demeaning. This is a major gain for persons with disabilities who have had to withstand stigma and derogatory terms for centuries.19 Clause 2 of this Article requires that the State shall ensure the progressive implementation of the principle that at least five per cent of members of elective and appointive bodies are persons with disabilities. Persons with disabilities are recognised as a vulnerable group within society by Article 21 (3). Chapter 7 (Representation of the people). Article 81(c), requires that the electoral system shall allow fair representation of persons with disabilities. Article 97 (c), reserves 12 special seats in the National Assembly some of which should go to disabled persons. Article 100 (b) (Promotion of representation of marginalised groups) obliges Parliament to enact legislation to promote representation of persons with disabilities in Parliament. Article 177 (1) (c) requires that persons with disabilities be represented in the County Assemblies. Under Chapter 2, (The Republic), Article 7 (3b) obliges the State to promote the Kenya Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. Article 232 (i) puts affording equal opportunities for appointment, training and advancement for persons with disabilities in the Public Service as one of its values and principles. The interpretation of the word disability is offered in Article 260 (Interpretation) as ‘any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or longterm effect on an individual’s ability to carry out ordinary day-today activities’. Kenya ratified the Convention on the Rights of Persons with Disabilities in 2008. UDHR Arts. 2, 7, 25 (1); ICCPR Arts. 2 (1), 26; ACPHR Arts. 4, 18 (4); CRC Art. 23; African Child Charter Art. 13; African Women’s Protocol Art. 23; CRPDvarious Articles Article 55: Rights of the youth This is a unique application of special rights directed at the youth. It obliges the State to take measures, including affirmative action programmes to ensure the youth have access to education and Continued on next page… African Youth Charter – various Articles 18 This Article strengthens provisions in the Disability Act, 2003. 19 For further reading on stigma faced by persons with albinism, please read: Muthee Thuku: Myths, Discrimination and the Call for Special Rights for Persons with Albinism in sub-Saharan Africa, http:// www.goldenalbinism.com/blog/a-must-read-paper/ 24 training, to participate in political, social and economic spheres, access employment and that they are protected from harmful cultural practices and exploitation. Under Article 260 (Interpretation), ‘youth’ is interpreted as a person who has attained the age of 18 but has not attained the age of 35. Youth are recognized as a vulnerable group under Article 21 (3). Article 97 (c) reserves 12 seats nominated by parliamentary political parties and which some of them should go to the youth while Article 100 (c) obliges Parliament to enact legislation to promote representation of youth in Parliament. Article 177 (1) (c) requires that County Assemblies have youth membership. Article 56:20 Rights of minorities and marginalized groups This Article obliges the government to put in place affirmative action programmes for minorities and marginalized groups in order to allow them to participate in governance, provide special opportunities, develop their cultural and linguistic heritage and ensure access to water, health services and infrastructure. Under Article 10 (National values and principles of governance) protection of the marginalized is part of the core national values and principles of governance. State organs are obliged to address the needs of members of minorities, marginalized groups and particular ethnic, religious and cultural communities under Article 21 (3). In Chapter 7 (Representation of the people) Article 91 (1) (e) requires that political parties respect the right of all persons to participate in political processes including minorities and marginalized groups. Article 100 (d) (e) obliges Parliament to enact legislation to promote representation of ethnic and other minorities and marginalized communities in Parliament. In Chapter 11 (Devolved government), Articles 174 (e) and 177(1) (c) puts protection and promotion of the interests and rights of minorities and marginalized communities as part of the key objects of devolution. The right of minorities to participate in the County Assembly is also expressed under Article 197 (2) (b) (County assembly gender balance and diversity). Article 250 (4) requires that appointments to Commissions and Independent Offices be guided by Article 10 (National values and principles of Continued on next page… UDHR Arts. 2, 21, 27; ICCPR Arts. 25, 27; ICESCR Arts. 1, 15; ACPHR Art. 22; CRC Art. 30; ILO Convention 169 Art. 2; UN Declaration on the Rights of Indigenous People (2007) – various Articles. 20 With respect to the realisation of rights for groups such as minorities, the elderly, the disabled and children, it is worth noting that Treaty Bodies emphasise the need to collect disaggregated data on the prohibited grounds of discrimination. Examples include: CESCR: General Comment(GC) 13 on Art.13 on the right to education; GC14 on Arts 11 and 12 on the right to water; GC 14 on the right to health; CERD General Recommendation XXIX on Article 1; and CEDAW, General Recommendations 9 and 17. 25 governance) and should reflect ethnic diversity of the people of Kenya. The same is required for composition of the Defence Forces (Article 241 (4), the National Police Service (Article 246 (4), the National Executive (Article 130 (2) and in allocation of political parties seats (Article 90 (2) (c). With regard to Public Finance, Article 203 (1) (h) puts it that one of the criteria for determining budgetary allocations is the need for affirmative action in respect of disadvantaged areas and groups. An Equalization Fund for marginalized areas is set aside under Article 204. This fund is for purposes of providing basic services including water, roads, health facilities and electricity. Article 227 (2) (b) puts, ‘the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination’ as one of the considerations that should be factored in the procurement and disposal of public goods and services. Article 232 (h, i) puts representation of Kenya’s diverse communities and affording equal opportunities for appointment, training and advancement for members of all ethnic groups in the Public Service as part of its core values and principles. The interpretations of who constitutes a ‘marginalized community’ and ‘marginalized group’ are given in Article 260 (Interpretation). A marginalised group is defined as ‘a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4)’ However, an interpretation for the word ‘minority’ is not given. Article 57: Rights of older members of the society This Article guarantees the rights of older members of the society. It accords them the rights to participate in affairs of the society; to pursue personal development; to live in dignity and be respected; and to receive reasonable care and assistance from their families and the State. Under Article 260 (Interpretation), the interpretation of the term ‘older member of the society’ is given as a person who has attained the age of sixty (60) years. Article 21 (3) obliges state organs and all public officers to address the needs of older members of society as one vulnerable group within society. This Article can also be linked to Article 43 (1) (e) which guarantees every person the right to social security. UDHR Art 25 (1); ACPHR Art 18 (4); African Child Charter Art. 31; African Women’s Protocol Art. 22; UN Principles on Older Persons (1991) – various Articles. 26 5.0 Protection of rights of women and girls in the new Constitution of Kenya: The new Constitution of Kenya variously mentions women and girls as a disadvantaged group of persons but does not have a special Article for women under Article 52 (Specific application of rights). However, women’s rights are heavily protected in various Articles that also reflect the domestication of international human rights instruments in particular CEDAW and the African Women’s Protocol. The struggle for women rights in Kenya has been long. The status of women rights have, and remains, low due to various factors such as discrimination, low level of participation in sociopolitical fields, economic-disempowerment, oppressive cultural practices, low levels of education, lack of access to property and general poverty. The new Constitution is a major boost in guaranteeing rights for women and girls. The principles of equality between genders and nondiscrimination are well captured and women are covered under all the Articles mentioned above guaranteeing equal rights for all, non-discrimination and equality before the law. However there are several Articles that can be used in claiming, defending and protecting women’s’ rights and ensuring affirmative action in order to raise their social, economic, civil, political, and cultural status. Below are some of the main Articles that may be invoked in claiming and defending women’s rights under the new Constitution of Kenya. Article 28 (Human Dignity) explicitly states that: ‘Every person has inherent dignity and the right to have that dignity respected and protected.’ This applies for both men and women. Article 27 (Equality and freedom from non-discrimination) guarantees non discrimination against women by both the State and individuals as follows: Article 27:(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). Under Chapter 1 (Sovereignty of the people and supremacy of this Constitution), Article 2 (4) states: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission of this Constitution is invalid.’ Article 60 (1) f) puts elimination of gender discrimination in law, customs and practices related to land and property in land as one of the core principles of land management. With respect to children and youth, Article 53 (Specific application of rights of children) (d) and Article 55 (rights of youth) (d), also outlaw any harmful cultural practices that affect the welfare of children and youth. These Articles are a major boost for women and girls whose rights have been violated, abused or denied in the pretext of outdated cultural practices such as lack of right to own property and inherit, 27 female genital circumcision/mutilation, spousal physical/mental abuse, culture of widow inheritance, traditional child marriages and denial of right to an education. Under Article 10 (National values and principles of governance) human dignity and equality for all are named as an integral part of the core values and principles of governance as follows: Art. 10 (2b) Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; This is a guarantee for the inherent dignity of all, including women, as part of national values and principles. Under Article 21 (3), women are recognized as one of the vulnerable groups within the society whose needs ought to be addressed by State organs as follows: Article 21 (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. (Emphasis added) Article 100 (Promotion of representation of marginalized groups) also recognizes women as a marginalized group and obliges Parliament to enact legislation to promote their representation in Parliament alongside youth, persons with disabilities and other minorities. Article 27 (6) obliges the government to take legislative and affirmative action programmes and policies to redress the disadvantage suffered due to past discrimination. This is bound to help women a lot since they have been disadvantaged for long. Article 27 (6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (Emphasis added). Under Article 260, affirmative action is defined as: ‘any measure designed to overcome or ameliorate an inequity or the systemic denial or infringement of a right or fundamental freedom.’ Article 27 (8) seeks gender balance in elective and appointive bodies by obliging the State to ensure that no more than two-thirds of the members of such bodies shall be of the same gender. Article 27 (8): In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. This is also stressed as a principle in the electoral system under Article 81 (b) and repeated in Articles 175 (c), 177 (b) and 197 (1) on principles of devolved government and membership of County Assembly. Under Chapter 8 (Legislature), Article 97 (1) (b) reserves 47 special elective seats in the National Assembly for women while Article 98 (1) (b) reserves 18 seats for women in the Senate to be nominated by political parties. Article 100 (a) obliges Parliament to enact 28 legislation to promote representation in Parliament of women alongside other marginalized groups. Article 232 (i) puts affording equal opportunities for appointment, training and advancement for both men and women in the Public Service as one of its core values and principles. Article 45 (3) (Family) states that: ‘Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.’ This is further strengthened in Chapter 4, (Land) Article 68 (c) (iii) and (vi) which obliges the State to enact legislation to protect matrimonial property as follows: Article 68 (c) (iii): to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage. Article 68 (c) (vi) to protect the dependants of the deceased persons holding interests in any land, including the interests of spouses in actual occupation of land. This is a major reprieve for many women who have or are faced with cultural problems where upon divorce or death of a spouse they are forced to leave empty-handed despite years of investing in the relationship. Under Chapter 3 (Citizenship), Article 16 allows for dual citizenship while Article 13 (3) states that citizenship is not lost through marriage or the dissolution of marriage. Under Article 59 (Kenya National Human Rights and Equality Commission), gender mainstreaming is mentioned as one of the duties of the commission as follows: Article 59 (2b): to promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development; This Article is closely tied to Equality and freedom from discrimination, Article 27 (8) and is going to see more women participation in the political, social, economic and cultural spheres. The Articles above reflect various Articles in international and regional human rights instruments that seek equality and non-discrimination for women especially the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Women’s Protocol. 29 6.0 Protection of Guarantees of Rights and Fundamental Freedoms by the new Constitution of Kenya – Self Protecting Mechanisms. In the Preamble of the new Constitution, one clause spells out one aspiration of Kenyans as follows: ‘…recognizing the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law…’ It is this aspiration that the Kenyan Bill of Rights in the new Constitution seeks to fulfill and which it does to a great extent not seen before in Kenya’s history. During the typing of the proposed new Constitution at the Government Printer prior to the referendum, forces opposed to the new constitutional order inserted the words ‘national security’ in Article 24 (1) (d) in the Bill of Rights so that it read: “The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice ‘national security’, the rights and fundamental freedoms of others.” This insertion would have taken away the rights gained under the Bill of Rights as had been seen under previous regimes that used ‘national security’ (as was in the colonial Public Order Act, 1950), as an excuse of stifling any opposition. However an alarm was raised and the insertion was expunged. The new Constitution is not only extensive in setting up guarantees of rights but also seeks to protect them from interference by both the State and non-state actors. There are many Articles that seem to work towards protecting the rights guaranteed therein. Explicitly, Article 19 (3) (a) states that the rights in the Bill of Rights ‘belong to each individual and are not granted by the State.’ This underscores the characteristic of inherency and that rights and fundamental freedoms are not privileges or tokens from the State. The Bill of Rights recognises all the categories of rights i.e. civil, political, economic, social and cultural spheres. Under Chapter Two (The Republic), Article 10 (2) (National values and principles of governance), recognises human dignity and human rights as part of the pillars of governance. Article 1 (1) (Sovereignty of the people) states that ‘all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.’ Article 2 (3) states that ‘the validity or legality of this Constitution cannot be challenged by or before any court or other State organ.’ These are self-locking mechanisms which are strengthened by Chapter 16 (Amendment of this Constitution), Article 255, 1(e) which puts the Bill of Rights as one of the Chapters that can only be amended through a national referendum. That way it protects the rights and fundamental freedoms it guarantees from being tampered with by Parliament, the Executive or Judiciary. Article 12 (Entitlements of citizens) (1) (a), states that every citizen is entitled to ‘the rights, privileges and benefits of citizenship, subject only to limits provided or permitted by this Constitution.’ Article 19 (Rights and fundamental freedoms) is strong in protecting rights and fundamental freedoms by stating as follows; 30 1. The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. (3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and (c) are subject only to the limitations contemplated in this Constitution. Article 25 lays down four rights and fundamental freedoms that may not be limited at any time as follows: Article 25: Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited––(a) Freedom from torture and cruel, inhuman or degrading treatment punishment; (b) Freedom from slavery or servitude; (c) The right to a fair trial; and (d) The right to an order of habeas corpus. The new Constitution also lays down the procedures for any acts of limitation of rights and fundamental freedoms (Article 24). This Article states, in part, that: ‘a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.’ Article 58 (State of emergency) (6) (a) (ii) declares that any legislation enacted in consequence of a declaration of a state of emergency must be consistent with the Republic’s obligations under international law applicable to a state of emergency. Even after a declaration of a state of emergency, Article 58 (7) clearly states that: ‘A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act or omission.’ This means that the State or any person, who commits violations or abuses of rights even during a state of emergency, should face the due process of law. Article 20 (Application of Bill of Rights) (1) states that the Bill of Rights applies to all law and binds all State organs and all persons. Article 20 (2) states that: ‘Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.’ Article 3 (Defence of this Constitution), (1), obliges every person to respect, uphold and defend this Constitution. 31 Article 27 (Equality and freedom from discrimination) prohibits the State and all persons from discriminating, directly or indirectly, against any person on any basis including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. In Chapter 1 (Sovereignty of the people and supremacy of this Constitution), Art. 2 (4) outlaws negative cultural practices by stating: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid’. Article 159 (3) outlaws any traditional dispute resolution mechanism which contravenes the Bill of Rights; is repugnant to justice and morality; or is inconsistent with the new Constitution or written law. Harmful cultural practices are also outlawed in Article 53 (Specific application of rights of children) (d) and Article 55 (Youth) (d) with regard to the protection of the welfare of children and youth respectively. Article 22 (Enforcement of Bill of Rights) empowers every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or is threatened. Such a person may also be acting on behalf of another person; as member of a group; or as a person acting in public interest. An association acting in the interests of its members also has similar right. Under Article 238 (b), utmost respect for the rule of law, democracy, human rights and fundamental freedoms is put as one of the core principles of the national security organs. Article 244 (c) (d), requires the National Police Service to comply with constitutional standards of human rights, fundamental freedoms and respect for human dignity. Article 159 (Judicial authority) 2 (e), requires courts and tribunals exercising judicial authority to ensure that ‘the purpose and principles of this Constitution shall be protected.’ Article 259 (Interpretation of this Constitution), (1) (b) states that this Constitution shall only be interpreted in a manner that ‘advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights.’ Article 40 prohibits Parliament from enacting any law that permits the State or any person to arbitrarily deprive a person of property or to limit or in any way restrict the enjoyment of rights under the Article on the basis of any of the grounds specified or contemplated in Article 27 (4) (Equality and freedom from discrimination). Article 59 in the Bill of Rights establishes the Constitutional office of the Kenya National Human Rights and Equality Commission (KNHREC) which is a Body Corporate under Chapter 15 (Commissions and independent offices). The commission shall be in charge of overseeing the human rights situation and investigating on cases of violations and abuses in the country. It shall operate independently. Article 19 (3) b) leaves the door open for further rights and fundamental freedoms that may not be spelt out in the Bill of Rights by stating that ‘the rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter.’ 32 References: 1. Africa Union, OAU/AU Treaties, Conventions, Protocols, Charters, http://www.africa-union.org/root/au/documents/treaties/treaties.htm 2. Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%201506 2010.pdf 3. Definition of international human rights law, http://www.wordiq.com/definition/International_human_rights_law 4. New Constitution of Kenya (2010) http://www.kenyalaw.org/Downloads/The%20Constitution%20of%20Kenya.pdf 5. OHCHR Library, List of Kenya’s Ratification of Various International Human Rights Treaties, http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/KE/KSC_UPR_KEN_S08_2010_Ke nyaStakeholdersCoalitionforUPR_Annex3.pdfWord IQ, 6. Ratification Index, http://www1.umn.edu/humanrts/research/ratification-index.html 7. UNICEF, Introduction to the Convention on the Rights of the Child, Terms and Definitions, http://www.unicef.org/crc/files/Definitions.pdf 33 Acknowledgements: The author would like to express deep gratitude to the following persons for their input or support during the writing of this paper: M/s Mercy Njoroge (a constitutional lawyer, currently the Co-ordinator of Election Observation Group, ELOG, Kenya); M/s Gillian Nevins (a writer who worked as a researcher with Amnesty International for over 25 years); and Mr. Njuki Githethwa (a committed Kenyan human rights defender and a community media consultant – currently the Vice-Chair, Kenya Community Media Network – KCOMNET), for reviewing the paper for form and content. M/s Gillian Nevins for English editing. Reverend J. K. Gathaka, currently the Executive Director of Ecumenical Centre for Justice and Peace (ECJP – Kenya), for support given during the reviews. M/s Wambura Mando for layout and design. About the author: Muthee Thuku – The author is a consultant trainer on Monitoring, Documenting and Reporting human rights violations and abuses in Africa with Amnesty International (Dutch Section), Special Programme on Africa (SPA). He is also a trainer on documenting human rights violations on database with the Human Rights Information Documentation Systems (HURIDOCS) International. He is also the current Director of Center for Research and Advocacy in Human Rights (CERARights), a budding local organization based in Nanyuki, Kenya. He has trained in several African countries. Among his papers are, This Forest is Ours (Carnegie Council, Cultural Rights Dialogue, 2005); Mapping for Human Rights (AI/SPA, 2007); and Myths, Discrimination and the Call for Special Rights for Persons with Albinism in Sub-Saharan Africa (2011). He also has researched and written monographs on topical issues on Culture, Traditional Peace Making and Environment. 34 ANNEX 1: LIST OF KENYA’S RATIFICATION/ACCESSION OF VARIOUS INTERNATIONAL AND REGIONAL HUMAN RIGHTS TREATIES:21 Kenya – Admission to UN – 16.12.1963 United Nations Charter – Universal Declaration of Human Rights (UDHR). International Covenant on Civil and Political Rights (ICCPR) – Accession 1972. International Covenant on Economic, Social and Cultural Rights (ICESCR) – Accession 1972. Convention on Discrimination Against women (CEDAW) – Accession 1984. AU Convention on Charter of Peoples and Human Rights (ACPHR) – Accession 1992. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – Accession 1972. Convention of the Rights of the Child (CRC) – Ratification 1990. Optional Protocol on the Involvement of Children in Armed Conflict – Ratification 2002. Optional Protocol to CRC on Prostitution and Pornography – Signature 2000. African Charter on the Rights and Welfare of the Child (African Child Charter) – Ratification 2000. African Convention on Preventing and Combating Corruption – Ratification 2007. 21Table sourced, slightly modified and updated from: http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/KE/KSC_UPR_KEN_S08_2010_KenyaStakeholdersCoalitionfo rUPR_Annex3.pdf 35 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights – Ratification 2004. ILO Convention 138 on Employment Age – Ratification 1979. International Convention for the Protection of All Persons from Enforced Disappearance – Ratification 2007. ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour – Ratification 2001. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (supplementing the United Nations Convention against Trans-national Organized Crime) Palermo Protocol – Accession 2005. Convention relating to the Status of Refugees (CSR) – Accession 1966. Optional Protocol to CSR relating to the Status of Refugees – Accession 1981 International Convention on the Rights of Persons with Disabilities (CRPD) – Ratification 2008. International Convention on the Elimination of Racial discrimination (ICERD) – Accession 2001. Convention Against Torture (CAT) – Accession 1997. Rome Statute of the International Criminal Court – Ratification 2005. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol) – Signature July 11, 2003. AU Convention for Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). – No Action as of July 2010. African Youth Charter (AYC) – Signature, 2008. 36 ANNEX 2: TERMS AND DEFINITIONS:22 Definitions of Key Terms: Accede/Accession: ‘Accession’ is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature. The formal procedure for accession varies according to the national legislative requirements of the State. To accede to a human rights treaty, the appropriate national organ of a State – Parliament, Senate, the Crown, Head of State or Government, or a combination of these – follows its domestic approval procedures and makes a formal decision to be a party to the treaty. Then, the instrument of accession, a formal sealed letter referring to the decision and signed by the State’s responsible authority, is prepared and deposited with the United Nations Secretary-General in New York. Adoption: ‘Adoption’ is the formal act by which the form and content of a proposed treaty text are established. Treaties negotiated within an international organization like the United Nations are usually adopted by a resolution of a representative organ of the organization whose membership more or less corresponds to the potential participation in the treaty in question (the United Nations General Assembly, for example). Article: International legal instruments generally include a Preamble (stating the reasons for and underlying understandings of the drafters and adopters of the instrument) and a series of ‘articles’, which lay out the obligations of those States choosing to be bound by it and procedural matters involving the treaty. The term ‘provision’ is often used as an alternative when referring to the content of particular articles. Charter: The term ‘charter’ is used for particularly formal and solemn instruments, such as the treaty founding an international organization like the United Nations (‘The Charter of the United Nations’). Convention: A ‘convention’ is a formal agreement between States. The generic term ‘convention’ is thus synonymous with the generic term ‘treaty’. Conventions are normally open for participation by the international community as a whole, or by a large number of States. Usually the instruments negotiated under the auspices of an international organization are entitled conventions (e.g. the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in 1989). Declaration: The term ‘declaration’ is used for various international instruments. International human rights declarations are not legally binding; the term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. However, while the 1948 Universal Declaration of Human Rights for example was not originally intended to have binding force, its provisions have since gained binding character as customary law. Deposit: After a treaty has been concluded, the written instruments which provide formal evidence of a State’s consent to be bound are placed in the custody of a depository. The texts of the Convention on the Rights of the Child and its Optional Protocols designated the Secretary-General of the United Nations as their depository. The depository must accept all notifications and documents related to the treaty, examine whether all formal requirements are met, deposit them, register the treaty and notify all relevant acts to the parties concerned. 22 Sourced from: UNICEF, Introduction to the Convention on the Rights of the Child, : http://www.unicef.org/crc/files/Definitions.pdf 37 Entry into Force: A treaty does not enter into force when it is adopted. Typically, the provisions of the treaty determine the date on which the treaty enters into force, often at a specified time following its ratification or accession by a fixed number of states. For example, the Convention on the Rights of the Child entered into force on 2 September 1990—the 30th day following the deposit of the 20th State’s instrument of ratification or accession. A treaty enters into force for those states which gave the required consent. Optional Protocol: The term ‘protocol’ is used for an additional legal instrument that complements and add to a treaty. A protocol may be on any topic relevant to the original treaty and is used either to further address something in the original treaty, address a new or emerging concern or add a procedure for the operation and enforcement of the treaty—such as adding an individual complaints procedure. A protocol is ‘optional’ because it is not automatically binding on States that have already ratified the original treaty; States must independently ratify or accede to a protocol. The Optional Protocols to the Convention on the Rights of the Child concern the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. Ratify/Ratification: ‘Ratification’ is an act by which a State signifies an agreement to be legally bound by the terms of a particular treaty. To ratify a treaty, the State first signs it and then fulfils its own national legislative requirements. Once the appropriate national organ of the country – Parliament, Senate, the Crown, Head of State or Government, or a combination of these – follows domestic constitutional procedures and makes a formal decision to be a party to the treaty. The instrument of ratification, a formal sealed letter referring to the decision and signed by the State’s responsible authority, is then prepared and deposited with the United Nations Secretary-General in New York. Signature: ‘Signature’ of a treaty is an act by which a State provides a preliminary endorsement of the instrument. Signing does not create a binding legal obligation but does demonstrate the State’s intent to examine the treaty domestically and consider ratifying it. While signing does not commit a State to ratification, it does oblige the State to refrain from acts that would defeat or undermine the treaty’s objective and purpose. State party: A ‘State party’ to a treaty is a country that has ratified or acceded to that particular treaty, and is therefore legally bound by the provisions in the instrument. Treaty: A ‘treaty’ is a formally concluded and ratified agreement between States. The term is used generically to refer to instruments binding at international law, concluded between international entities (States or organizations). Under the Vienna Conventions on the Law of Treaties, a treaty must be (1) a binding instrument, which means that the contracting parties intended to create legal rights and duties; (2) concluded by states or international organizations with treaty-making power; (3) governed by international law and (4) in writing. Treaty Body:23 A treaty body is a body set up to monitor how State Members to a certain treaty puts its provisions into practice e.g. the Committee on Economic, Social and Cultural Rights (CESCR) monitors the implementation of ICESCR while the African Commission on Human and Peoples Rights (African Commission) monitors the implementation of ACHPR. These definitions are adapted from The Concise Oxford Dictionary of Current English (8th edition), Clarendon Press, Oxford, 1990 and United Nations Treaty Collection, Treaty Reference Guide, 1999, available at http://untreaty.un.org/English/guide.asp. 23 The definition of ‘Treaty Body’ was added by the author of this paper. This paper is a free access document. Acknowledgements are due when quoted