Since the dawn of time, giving birth has been celebrated as a joyous occasion synonymous with new beginnings and pride for the parents. It is no surprise that maternal rights are enshrined in one of the most profound articles in the Constitution of Kenya, Article 27, which states that every person is equal before the law and has the right to equal protection and equal benefit of the law. The article further states that the state and a person shall not discriminate directly or indirectly against another person on any ground including, among other grounds, pregnancy. In line with this article, Section 5(3) of the Employment Act of 2007 prohibits discrimination against an employee or prospective employee on grounds of pregnancy. Section 46(a) of the same Act states that a female employee’s pregnancy, or any reason connected with her pregnancy does not constitute fair reason for dismissal or from the imposition of a disciplinary penalty. Article 8 of the Maternity Protection Convention of 2000 which is yet to be ratified by Kenya, prohibits the termination of employment of a woman during her pregnancy or maternity leave where the termination is related to the pregnancy or birth and its consequences or nursing. In spite of all these measures, the experience of many a Kenyan woman who gets pregnant while in employment or is pregnant while seeking employment has been far from ideal.
While a number of employers treat the women in their employ, pregnant or otherwise fairly, some have found devious ways to subvert their obligations under the law. Some of the women I have spoken to have told me that as soon as it became evident that they were pregnant, their employers would do everything in their power to frustrate them. These employers would get rid of staff members whose job was to make things easier for their pregnant colleague or reassign her from a desk job to one which requires a lot of physical exertion. They would make the working conditions incredibly difficult for the women, and some, when possible, had to quit. Some had no option but to carry on working causing them severe complications in their pregnancy. Employers do this in order to avoid any culpability that might befall them were they to terminate a pregnant woman’s employment.
Judy’s is one such story. In June 2014, having just been admitted to the bar, she was employed as an associate advocate at a law firm whose head offices are in Nairobi. She was then informed that she would be sent to work at the Eldoret branch. As a freshly admitted advocate in dire need of practice experience, she had no problem with that. She packed her bags and left her family including her four-year-old son and moved to Eldoret. This was a brand new office and she was tasked with the duties of setting up the office, and engaging new staff. She was the managing associate and the sole advocate in the firm at the Eldoret office and would liaise directly with the partners in Nairobi on the various instructions that they would get. She handled all the marketing, billing and all the litigation work there. The clerk they hired would do all the ground-work. By the end of the year 2015, the firm had almost doubled her salary.
In January 2016, at 3 months pregnant, Judy’s pregnancy became visible. It is worth noting that an employee is under no obligation to reveal their pregnancy to the employer. Article 31 of the Constitution provides that every person has the right to privacy which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed. At this point she disclosed to one of the partners, who frequently visited the Eldoret office, that she was pregnant and would need the appropriate help required to run the firm. Soon after this disclosure, the clerk who did most of the work that involved moving around town, Lands Offices and court was fired. Judy was left to do all the ground-work and attend to all the office matters. When she informed her employers that she was having some health issues as her blood pressure was getting quite high, the employers told her that her family matters were to be dealt with at home with her husband. At the end of that month, Judy did not receive her salary.
The reason the management gave for not paying Judy’s salary was that the firm had not collected enough funds to pay the same. Throughout the period of her pregnancy, Judy did not receive a salary. She had no money coming in to her account and had to attend hospital for pre-natal care aside from everything else she needed as a pregnant woman. This whole time, she was still working under the employ of the law firm. She needed to do something about it. All her calls for help and for the management to fulfil their contractual obligations since she was still entitled to her normal salary were responded to unsatisfactorily. One of the partners once told Judy that she should not complain because he had heard that she has a very rich husband.
In June, Judy decided to go to Nairobi in order for her and the partners to have a face to face conversation. At the meeting, one of the partners gave her a cheque of forty thousand shillings and told her to go give birth, after which they would discuss the issues she had with the firm. She took the cheque and for due diligence, went to NHIF to try and figure out how she would foot her maternity bill. It was then that she found out that her employer had not been remitting anything to NHIF. The firm had an insurance cover for its employees and she went to the insurance company to see if they would cover her cost. She then established that the package was supposed to cover maternity bills but the firm opted out of the same. It was then that she realized that she was on her own.
On the 22nd June, Judy was on record in court for the law firm. On 23rd June, she delivered, via caesarean section, a healthy baby boy and went on maternity leave. Three weeks into her leave, she was informed of a letter waiting for her at the office. She was excited thinking that the partners had finally decided to pay her dues. This was not the case. The letter told her that due to poor business, her position in the Eldoret office had been rendered redundant as of the 1st June 2016. At the same time, the firm was advertising through the Law Society of Kenya website for a position similar to hers. She was given a cheque that covered one month’s salary and let go. She immediately went to her advocates who then sent the firm a demand letter for her fees, severance payment and all her dues legally calculated. The firm responded that they would only admit to three months’ salary, April till June and nothing for the time she was on maternity leave.
Seeking redress for what she was going through, Judy sent an email to the Law Society of Kenya outlining her issues. They did not respond to her. She called the Federation of Women Lawyers (FIDA Kenya) who informed her that she had to report personally go to their office in Nairobi. She was in Eldoret, recovering from a surgery, with a newborn baby and no job. Having no other recourse, she went on a Facebook rant telling the world about the injustice she was facing because she got pregnant. The partners in the firm saw this rant and called her for a discussion. They then gave her a cheque which only covered a third of what she was owed. In an attempt to share her story, she went to Nation Media who told her that they would only share the same after she files a suit against the firm. As a legal professional, Judy knew that she would be barred from speaking about a matter that was in court. She then got contacts for the Kenya Human Rights Commission who said that they would not handle the matter as it was a gender issue and they referred her to the National Gender and Equality Commission. The Commission said that she needs to lodge a complaint which would then be vetted and heard the next time the commission was sitting which was after two quarters.
The Law Society of Kenya kept pushing her off telling her that the person who was meant to handle the complaint was in a seminar. When she eventually managed to get a hold of someone to assist, she was asked to send a handwritten letter which would then be attached to a demand letter on a Law Society of Kenya letterhead to the firm. At this point, Judy felt defeated. She felt like a forum shopper. The society which she and the partners in the firm were members of and is meant to tackle issues between advocates could not even summon her former employers for mediation or arbitration. They claimed that the matter was contractual and they really couldn’t get in the middle of it.
She was forced to relocate to Nairobi where she had her parents who would help take care of her baby and herself. She has not heard from the law firm since. She is trying to apply for another job, something that is proving to be incredibly difficult as the firm will not give her a certificate of service or a testimonial and she cannot very well use a termination letter to prove that she worked for them.
Judy’s story is just one of many stories of women treated atrociously just because they got pregnant. The systems that are meant to protect them don’t. Employers use these same systems to frustrate women to the extent that the women are completely defeated. Our society is incredibly patriarchal. But we often forget that the women contribute a great deal to it. The miracle of childbirth should be something to be celebrated. It should never be used to frustrate the woman. It should never be used to terminate employment. It is not an inconvenience. It is a beautiful thing.