NGEC derives its mandate from the Constitution of Kenya 2010 in Articles 10, 27, 43, 59 and Chapter Fifteen among others. Article 10 provides for the national values and principles of governance, which include: human dignity, equity, social justice, inclusiveness, equality, human rights and non-discrimination. Specifically, Article 27 of the Constitution sets out the principle of equality and freedom from discrimination by stating that, every person is equal before the law and has a right to equal protection and benefit under the law.
The functions of the Commission are as provided in Section 8 of the NGEC Act 2011, which states as follows:-
- To promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution;
- Monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private institutions;
- Act as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to issues of equality and freedom from discrimination and relating to special interest groups including minorities and marginalized persons, women, persons with disabilities, and children;
- Co-ordinate and facilitate mainstreaming of issues of gender, persons with disabilities and other marginalised groups in national development and to advise the Government on all aspects thereof;
- Monitor, facilitate and advise on the development of affirmative action implementation policies as contemplated in the Constitution;
- Investigate on its own initiative or on the basis of complaints, any matter in respect of any violations of the principle of equality and freedom from discrimination and make recommendations for the improvement of the functioning of the institutions concerned;
- Work with other relevant institutions in the development of standards for the implementation of policies for the progressive realization of the economic and social rights specified in Article 43 of the Constitution and other written laws;
- Co-ordinate and advise on public education programmes for the creation of a culture of respect for the principles of equality and freedom from discrimination;
- Conduct and co-ordinate research activities on matters relating to equality and freedom from discrimination as contemplated under Article 27 of the Constitution;
- Receive and evaluate annual reports on progress made by public institutions and other sectors on compliance with constitutional and statutory requirements on the implementation of the principles of equality and freedom from discrimination;
- Work with the Kenya National Commission on Human Rights, the Commission on Administrative Justice and other related institutions to ensure efficiency, effectiveness and complementarity in their activities and to establish mechanisms for referrals and collaboration in the protection and promotion of rights related to the principle of equality and freedom from discrimination;
- Prepare and submit annual reports to Parliament on the status of implementation of its obligations under this Act;
- Conduct audits on the status of special interest groups including minorities, marginalized groups, persons with disabilities, women, youth and children;
- Establish, consistent with data protection legislation, data bases on issues relating to equality and freedom from discrimination for different affected interest groups and produce periodic reports for national, regional and international reporting on progress in the realization of equality and freedom from discrimination for these interest groups;
- Perform such other functions as the Commission may consider necessary for the promotion of the principle of equality and freedom from discrimination; and
- Perform such other functions as may be prescribed by the Constitution and any other written law.
Legislations relevant to NGEC’s mandate include;
- Constitution of Kenya 2010
- The National Gender and Equality Commission Act 2011
- Persons with Disability Act
- Children’s Act
- Sexual Offences Act
- The Ant FGM Act
- County Governments Act
- Election Act
- Election Offences Act
- Social Assistance Act and any other legislation relating to marginalized groups
NGEC Compliance with the Constitution of Kenya 2010
As a Constitutional Commission, NGEC is bound by Article 249 of the Constitution of Kenya 2010, which provides the objects of the commissions and the independent offices as being to protect the sovereignty of the people; secure the observance by all State organs of democratic values and principles; and promote constitutionalism.
The Constitution of Kenya 2010 has several provisions to guide NGEC in the implementation of its mandate. In particular, Article 10 on National Values and Principles of Governance includes; human dignity, equity, inclusiveness equality, non-discrimination and protection of the marginalized.
The Commission’s functions are aligned to the following articles;
Implementation of Rights and Fundamental Freedoms
Article 21(3) provides that. “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”.
Equality and Freedom from Discrimination
Article 27 (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (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.
Economic and Social Rights
Article 43 (1) Every person has the right; (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b)to accessible and adequate housing and reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education.
Rights of Children
Article 53 (1) Every child has the right (a) to a name and nationality from birth;(b) to free and compulsory basic education; (c) to basic nutrition, shelter and health care; (d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour; (e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and (f) not to be detained, except as a measure of last resort, and when detained, to be held – (i) for the shortest appropriate period of time; and (ii) separate from adults and in conditions that take account of the child’s sex and age.
Rights of Persons with disabilities
Article 54, A person with any disability is entitled; (a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning; (b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person; (c) to reasonable access to all places, public transport and information; (d) to use Sign language, Braille or other appropriate means of communication; and (e) to access materials and devices to overcome constraints arising from the person’s disability.
Rights of the Youth
Article 55 (a) access relevant education and training; (b) opportunities to associate, be represented and participate in political, social, economic and other spheres of life; (c) access employment; and (d) protection from harmful cultural practices and exploitation.
Rights of Minorities and Marginalised Groups
Article 56 affirmative action programmes designed to ensure that minorities and marginalized groups (a) participate and are represented in governance and other spheres of life; (b) are provided special opportunities in educational and economic fields; (c) are provided special opportunities for access to employment; (d) develop their cultural values, languages and practices; and (e) have reasonable access to water, health services and infrastructure.
Rights of Older Members of Society
Article 57 (a) to fully participate in the affairs of society; (b) to pursue their personal development; (c) to live in dignity and respect and be free from abuse; and (d) to receive reasonable care and assistance from their family and the State.
Values and Principles of Public Service
Article 232 The values and principles of public service include- (h) representation of Kenya’s diverse communities; and (i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of- (i)men and women; (ii) the members of all ethnic groups; and (iii) persons with disabilities.
Treaties, Conventions and Protocols
Article 2 (6) states that, "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution". Kenya has ratified and signed a number of treaties and Conventions relating to NGEC’s SIGs. These include; Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Africa Union Agenda 2063, Sustainable Development Goals (SDGs), Convention on Rights of Persons with Disabilities (CRPD), Convention on Economic and Soci0-cultural rights (ECOSOC), Convention on Children Rights, Maputo Protocol, and any others relating to equality and freedom from discrimination of marginalized groups. Ensuring compliance with these treaties, conventions and protocols shall form part of the agenda of NGEC during the Plan period.
NGEC and Sustainable Development Goals (SDGs)
The Sustainable Development Goals (SDGs) represent global commitment to ensure sustainable equitable development. The rallying call of “leaving no one behind” is in tandem with NGEC’s vision of a society free from gender inequality and all forms of discrimination.
NGEC is alive to the fact that, as part of implementing the SDGs, the Government has already published and launched its Road Map to achieving the SDGs. Furthermore, the domestication and integration of SDGs is imbedded in the MTP III 2018-2022.
As an oversight body, NGEC will monitor Kenya’s implementation of all SDGs with special focus to the goals No 5 and 10 which are: gender equality; reduced inequality; peace and justice and strong institutions respectively. The Commission will play a critical role in monitoring and reporting on the key achievement of targets in each of the SDGs goals.
NGEC Alignment with Africa’s Agenda 2063
Africa Agenda 2063 is a strategic framework for the socio-economic transformation of the continent over the next 50 years. It builds on, and seeks to accelerate the implementation of past and existing continental initiatives for growth and sustainable development. Agenda 2063 has SEVEN aspirations. NGEC is aware that the Government has integrated and aligned the Africa’s Agenda 2063 aspirations with MTPIII. NGEC will monitor the implementation of the aspirations of Africa’s Agenda 2063 concurrently with the implementation of MTP III. The Commission is aware that Aspiration no. 6 speaks directly to NGEC’s mandate. This aspiration focuses on, ‘an Africa whose development is people-driven, unleashing the potential of its youth and caring for children. According to Africa’s Agenda 2063, Africa shall be an inclusive continent where no child, woman, or man will be left behind or excluded, on the basis of gender, political affiliation, religion, ethic affiliation, locality, age or other factors. Africa of 2063 will have gender parity, with women occupying at least 50% of elected public offices at all levels and half of managerial positions in the public and the private sector. The economic and political glass ceiling that restricted women’s progress would have been shattered.
NGEC’s Alignment with Vision 2030
Kenya’s long term development blue print: Vision 2030 aims to transform Kenya into an industrialized middle income country, offering a high quality of life to all its citizens in a clean and secure environment. The Vision has three pillars: economic, social and political. A lot of NGEC’s functions are within the Social Pillar. The Social Pillar seeks to build a just and cohesive society with social equity in a clean and secure environment. This calls for equitable development where everyone participates leading to inclusive growth and development in Kenya. The NGEC SIGs should be included in National Development. The Commission will monitor, facilitate and advice on mainstreaming of gender issues and inclusion of Persons with Disability, women, children, youth, older members of society, minority and - marginalized groups in National Development. It will also monitor, facilitate and advise on development of affirmative action implementation policies, as contemplated in the Constitution, when it audits the status of these Special Interest Groups from time to time. Where affirmative action programmes have been instituted, NGEC will audit implementation to ensure the SIGs targeted benefit.
Vision 2030 is implemented through MTPs, this Strategic Plan coincides with the THIRD MTP 2018-2022. During the Plan period, NGEC will monitor and audit implementation MTP III , which focuses on Transforming Lives: Advancing Socio-economic development through the “Big Four”: Affordable Housing, Food Security, Manufacturing and Universal Health care to ensure inclusion and equality of opportunities though continued review of the policies that the Government will use to guide the implementation. NGEC will point out gaps or omissions to ensure that “no one is left behind”. A lot of effort will go to working with Private Sector organizations including Small and Micro Enterprises (SMEs) to ensure equality of opportunity. NGEC will report annually to Parliament and the President on progress made to include youth, women, PWDs, minority and marginalised in groups aimed at equity and poverty reduction as specified in Kenya Vision 2030: MTP III.