The Bill further states that it aims to preserve and protect the cultural and family values of the Kenyan people against emerging threats; and, to uphold Article 44 of the Constitution which provides that “a person shall not compel another person to perform, observe or undergo any cultural practice and rite”.[1]
In my opinion, this sounds more like an Anti-LGBTQ+ Bill than a Family Protection Bill. In his book, The Name of the Wind, Patrick Rothfuss[2] states,“Call a jack a jack. Call a spade a spade. But always call a whore a lady. Their lives are hard enough, and it never hurts to be polite.” It would seem that the drafters of the Family Protection Bill used this analogy while coming up with the name. It is my submission that in law, we call a whore a whore. Failure to do so results in ambiguities that will be difficult to remedy. I will also demonstrate how family protection involves more than what is provided for in the Bill.
What is Family protection?
“In a world of danger, love can surely be a weakness. It makes you predictable. Your moves can be foreseen because it’s obvious that you’ll be thinking of your family first. And that’s the kind of loopholes that people like Shaw take advantage of.” Fast and Furious.[3]
To understand family protection, we must first understand the meaning of family in the Kenyan context. According to Article 45 of the Constitution of Kenya 2010, a family is the natural and fundamental unit of society and the necessary basis of social order and shall enjoy the recognition and protection of the State.[4] Similarly, the Draft Family Promotion and Protection Policy, 2019 defines a family as a societal group that is related by blood (kinship), adoption, foster care or the ties of marriage (civil, customary or religious) of two persons of the opposite sex.[5]
Family protection is defined by the 2019 Draft Family Promotion and Protection Policy as support to families that focus on family resilience in order to strengthen families, so as to keep families together as far as possible. In essence, this means keeping families happy and stable for a strong society. Suppose we truly intend to protect a family, in this case, we should aim for higher levels of self-esteem, lower levels of antisocial behaviour including crime, violence, and drug misuse, higher levels of work productivity, lower levels of stress, and greater self-efficacy to deal with socioeconomic adversities just to mention a few examples.
According to the 2019 Policy, in order to protect the family, there are ten main thematic areas that should be looked at. The thematic areas are very crucial and it is surprising that a Bill named Family Protection does not have any of them. The thematic areas include:
Marriage[6]
Article 45(3) of the Constitution of Kenya recognizes the family as the essential element of society and the foundation of social organization.[7] Additionally, Article 45(4)[8] requires the development of legislation concerning marriage and family matters, resulting in the creation of the Marriage Act[9] and the Matrimonial Property Act.[10] However, while these Acts provide guidance on the conduct of marriage, they do not address ways to enhance marital relationships.[11]
In order to protect the family, we should first save marriage. The Bill should have emphasized that the government and relevant stakeholders must prioritize saving marriage by promoting gender-responsive and age-appropriate programs to understand sexuality in the context of marriage and encourage dispute-resolution mechanisms to provide a safe environment for couples. They must also promote positive cultural aspirations, values, and life skills programs that encourage chastity and strengthen the institution of marriage. Additionally, funding and encouraging research to establish the stability of marriage is vital to understanding the factors contributing to successful and lasting marriages, and building stronger families, which are the foundation of a healthy society.
Parenting[12]
Parenting involves fostering and supporting a child’s physical, emotional, social, spiritual, and intellectual growth from conception through adulthood. Both biological and adoptive parents contribute to motherhood and fatherhood. However, various factors, such as prevailing economic and social conditions, can lead parents to neglect their parenting responsibilities. This trend is worrying and requires attention.[13]
The Bill should have given the government the responsibility to promote positive parenting skills and a healthy work-life balance. The 2019 Policy provides that the Government plans to develop and implement policies that prioritize family well-being, including national guidelines on parenting and parenting education programs. The Bill should then emphasize strategies and programs that should be established to reinforce the culturally relevant role of men and women in safeguarding family well-being and encourage intergenerational interaction within families. Additionally, it should provide that the government will invest in recreational facilities to facilitate family interaction, strengthening bonds and promoting physical and mental well-being. Through these initiatives, the government will be able to strengthen families and promote a healthy work-life balance for all.
Religion and culture[14]
Religion and culture both emphasize the crucial role of the family in society. Religion emphasizes the importance of family spirituality and defends family values, while culture involves the transmission of knowledge and beliefs from one generation to another. The family is essential in preserving cultural identity, traditions, morals, heritage, and societal values.[15]
In order to protect the family, the Bill should have provisions for the Government to document, publish, and disseminate information on religious and cultural practices that promote and support the family. Additionally, it should facilitate the development and review of policies and legislation that aim to eliminate harmful cultural practices. To strengthen marriages, the government should strongly promote and emphasize marriage preparation and enrichment programs at both civil, cultural, and religious levels. The celebration of Family Days should be encouraged to promote family togetherness. The government should also provide opportunities for individual family members to develop and utilize their creative, artistic, and intellectual potential.
Family education[16]
Family education involves parents being aware of their responsibility to transmit family values to their children and establish the family as a crucial institution for conveying morals and values related to a family order. The promotion of family education entails removing social, cultural, and economic barriers to provide all family members with quality education in areas such as hygiene, family planning, reproductive health, adult literacy, and community participation.[17]
In as much as the Bill is named “Familly Protection,” it doesn’t give the government the responsibility to prioritize initiatives to support families. These include designing and enhancing family enrichment programs with the family and community institutions and promoting and developing age-appropriate family education programs, networks, and initiatives. Additionally, it does not provide opportunities for individual members of the family to identify and nurture their talents and intellectual potential is essential. The government should promote and establish resource centres for promoting family education and networking, and document best practices on family enrichment and education initiatives. Sensitizing and creating awareness in families and communities on guidance and counselling is also crucial. By prioritizing these initiatives, the government can help to strengthen families and promote healthy development for children.
Family health[18]
Families play a crucial role in healthcare as they are the core unit of society and are most affected by health issues. Families bear the brunt of mortality and morbidity, especially during infectious disease outbreaks. Preventive measures for diseases, such as ensuring a balanced diet, child immunization, and hygiene, are best taken within families. Additionally, families must provide care for people with disabilities and the elderly. Good health is necessary for socio-economic development, and policies, programs, systems, and strategies for both preventive and curative healthcare measures must be implemented to ensure a healthy nation.[19]
To protect the family, the Bill should include strategies to sensitise families and communities on primary health care and promoting healthy lifestyles through proper nutrition, behaviour change, and physical exercise. Programs on family mental health and well-being should also be promoted. Parents/guardians should be encouraged to take a lead role in mentoring, teaching, and counselling their children on responsible sexual behaviour founded on family values. Additionally, the government should promote and encourage the uptake and registration of the National Health Insurance and affordable rehabilitation and reintegration of family members with substance use disorders. By prioritizing these initiatives, the government can help to improve the overall health and well-being of families and communities.
Economy[20]
The economy has a crucial role in promoting the welfare of families, as economic growth and development benefits families. Conversely, high inflation, unemployment, and macroeconomic instability can wipe out savings and deplete incomes, putting a strain on families and leading to deviant behaviour as people seek coping mechanisms. Economic planning must prioritize the welfare of families to devise effective strategies that strengthen society.[21]
Protection of the family also involves the economy. The Bill should integrate family needs in planning and property/assets acquisition and disposal, promoting social economic inclusion for social protection of families, enhancing community group development for social economic empowerment of families, and promoting and nurturing entrepreneurship skills and savings as a culture among families from an early age.
Additionally, the government should enhance funding for economic inclusion for social protection programs for vulnerable families, and encourage organizations to develop and adopt policies on flexible working hours. Furthermore, the government should promote and encourage the creation of daycare centres for family members, as well as undertake regular research studies to acquire an information base for key trends in family well-being. By implementing these measures, the government can help to improve the economic stability and social inclusion of families, which is essential for a healthy and prosperous society.
Vulnerability and social protection[22]
Families have undergone significant changes in demographics, economics, and sociology that have stretched traditional socio-economic support mechanisms offered by extended families, leading to increased poverty and family poverty. To address this, countries have created social protection interventions, as outlined in the Constitution of Kenya (2010) Article 43, which ensures the right to social security for all and commits the state to provide appropriate social security for those unable to support themselves and their dependents.[23] Vulnerable groups such as orphans and vulnerable children, persons with disabilities, older persons, street families, offenders and ex-offenders, widows and widowers, internally and externally displaced persons, marginalized persons, and pastoralists living in the arid and semi-arid lands require adequate mechanisms such as programs and projects to alleviate their conditions and provide equitable opportunities for them and their families to participate in socio-economic activities.
The Government should, in collaboration with relevant stakeholders, take certain measures to protect vulnerable families and individuals. These measures include sensitizing community members on issues of vulnerability, promoting alternative family care mechanisms, involving persons with disabilities and their families in rehabilitation programs, enhancing integration of offenders and ex-offenders into their families and the community, empowering widows, widowers, and both the boy-child and girl-child, reviewing legislation to be responsive to the protection of street families, establishing family strengthening, rehabilitative and integration programs for street families, establishing rescue centres and shelters for survivors of abuse and violence, and prioritizing vulnerable members of society in the affordable housing program.
Media and technology[24]
The rapid growth and easy accessibility of communication media have presented families with both opportunities and challenges. The media can be a valuable source of information, education, culture, and spirituality, but it can also pose a threat to families by promoting distorted views on life, family, religion, and morality. Unfortunately, family and family life are often portrayed inadequately or negatively in the media. This includes promoting infidelity, extramarital sexual activities, and a lack of moral or spiritual commitment in marriages, while vices are sometimes supported. Such depictions are harmful to society because they promote values that are harmful to families.[25]
The government should collaborate with relevant stakeholders to promote positive family values and issues by partnering with the media. The media should be encouraged to disseminate data on the state of the family periodically. Additionally, the government should promote parental control and appropriate use of technology by family members.
Family safety and security[26]
Domestic violence is a pervasive form of violence that exists in all societies. The Protection against Domestic Violence Act[27] identifies various forms of domestic violence, including child marriage, female genital mutilation, forced marriage, widow inheritance, interference from in-laws, sexual violence within marriage, virginity testing, and trafficking of children. Such incidents of violence in the family setting can disrupt traditional family solidarity and security. The Children’s Act[28] mandates the protection of all children from any form of physical or mental violence, injury, abuse, neglect, or exploitation in the family context.
The government should, in collaboration with relevant stakeholders, prioritize sensitizing and educating families on their rights and relevant laws on family security and access to justice, promoting and encouraging peaceful coexistence within the family, promoting the speedy conclusion of cases on family violence, developing programmes to address and minimize family conditions that would lead to violence, and promoting and strengthening alternative dispute resolution (ADR) mechanisms for family cases except for criminal cases.[29]
Way forward
The proposed 36 paged Bill mentions the word sex 175 times. On average, this means the word sex appears at least 5 times on every page. It appears to me that this should be part of the Sexual Offences Act. Be that as it may, if we want an Anti-LGBTQ+ Bill then let us have it named as such. We should not make the mistake of sugarcoating it with flowery language like Family Protection because that is a heavy word that will require more than just sex.
Some might argue that the Bill intends to protect the family by dint of Article 45(2) of the Constitution which states that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.[30] However what is the point of protecting the formation of families and leaving out the protection of already existing families?
Conclusion
In conclusion, in law, there is a need to call a whore a whore. Family protection involves more than just homosexuality. If we truly want to protect the family, then we should not cherry-pick one aspect of the family and leave the others. An Anti-LGBTQ+ Bill should be called an Anti-LGBTQ+ Bill. A Family Protection Bill should have the vision of promoting happy and stable families for a strong society, and the goal to provide an environment that recognizes and facilitates family well-being and empowers families to participate in the socio-economic development of the country.
[1] Ibid
[2] Patrick James Rothfuss is an American author. He is best known for his ongoing trilogy The Kingkiller Chronicle, which has won him several awards, including the 2007 Quill Award for his debut novel, The Name of the Wind.
[3] Fast & Furious is a media franchise centered on a series of action films that are largely concerned with street racing, heists, spies, and family.
[4] Constitution of Kenya 2010, Article 45
[5] Draft Family Promotion and Protection Policy, 2019
[6] Ibid
[7] Constitution of Kenya 2010, Article 45(3)
[8] Ibid, Article 45(4)
[9] Marriage Act, 2014
[10] Matrimonial Property Act,2013
[11] Ibid,n 10.
[12] Ibid
[13] Ibid
[14] Ibid
[15] Ibid
[16] Ibid
[17] Ibid
[18] Ibid
[19] Ibid
[20] Ibid
[21] Ibid
[22] Ibid
[23] Constitution of Kenya, 2010. Article 43
[24] Ibid, n 10
[25] Ibid
[26] Ibid
[27] Domestic Violence Act, 2015
[28] Children’s Act, 2022
[29] Ibid, n 10
[30] Constitution of Kenya, Article 45(2)