An Act of Parliament to provide for the provision of quality, free and sufficient
sanitary towels in public institutions and correctional facilities and to establish the Inter-Ministerial Committee on Provision of Sanitary Towels.
CLAUSE NO. | CONTENTS OF THE CLAUSE | OUR COMMENTS |
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PART I — PRELIMINARY | ||
Clause 2 Interpretation | “sanitary towel” includes tampons and menstrual cups. | This definition ensures that all the available options for menstrual products are covered in the Bill, making the statute more inclusive and holistic. Secondly, this definition reduces the need for multiple definitions and terms, simplifying the language of the Bill thereby making it easier to understand and implement. |
Clause 3 Application | This Act shall apply to all public institutions and correctional facilities. | This is a good addition as it clearly outlines the scope of the Bill. |
PART II — ADMINISTRATION AND PROVISION OF SANITARY TOWELS | ||
Clause 4 The Inter-Ministerial Committee on Provision of Sanitary Towels | There is established the Inter-Ministerial Committee on Provision of Sanitary Towels. The Committee shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of: a. suing and being sued; b. purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; c. borrowing and lending money; and d. doing or performing all other things or acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate. | The purpose of this clause is to give the Committee a legal corporate personality. |
Clause 5 Composition of the Committee | The Committee shall comprise of: a. the chairperson; b. the Principal Secretary responsible for gender or their representative designated in writing; c. the Principal Secretary responsible for basic education or their representative designated in writing; d. the Principal Secretary responsible for finance or their representative designated in writing; e. the Principal Secretary responsible for correctional facilities or their representative designated in writing; f. the Principal Secretary responsible for higher education or their representative designated in writing; g. the Principal Secretary responsible for vocational and technical training or their representative designated in writing; h. the Principal Secretary responsible for public health or their representative designated in writing; i. the Attorney-General or their representative designated in writing; j. the Chairperson of the National Gender and Equality Commission or their representative designated in writing; k. the Director General for Health or their representative designated in writing; and l. three persons, not being public officers, of whom: i. one shall be nominated by the Council of County Governors; ii. one shall be nominated by a public benefit organization concerned with matters related to gender; and iii. one shall be nominated by the umbrella body representing the largest number of organizations in the private sector. The Cabinet Secretary shall appoint the Chairperson and members of the Committee nominated under subsection (1)(l) by notice in the Gazette. The Chairperson and members of the Committee appointed under subsection (1)(l) shall hold office for a term of three years and shall be eligible for re-appointment for one further term of three years. The members of the Committee shall be appointed at different times so that the respective expiry dates of their terms of office fall at different times. | For sub-clause (1)(a), we propose that the chairperson is appointed through a fair, transparent and competitive process. This has the following benefits: a. a fair, transparent and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the Committee; and b. this proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. Secondly, the addition of a fixed tenure in sub-clause (3) is a good proposal that has the following benefits: a. a fixed tenure provides stability to an organization by ensuring continuity in leadership and decision-making. It prevents frequent turnover and the associated disruptions that can occur with frequent changes in Committee members; b. individuals with a fixed tenure are accountable for their performance during that period. This accountability can lead to increased focus and commitment to achieve the goals and objectives of the Committee; and c. knowing when a position will become vacant allows the Committee to engage in effective succession planning. It provides an opportunity to identify and groom potential successors. This ensures there’s a smooth transition when the incumbents’ tenure concludes. Thirdly, the addition of sub-clause (4) is a good proposal. Different appointment dates for members minimize the potential for disruption caused by mass turnover or vacancies on the Committee. By spreading out the expiration dates of members' terms, the Committee remains stable and functional, avoiding periods of uncertainty or instability. |
Clause 6 Qualification for appointment to the Committee | A person is qualified for appointment as the chairperson or a member of the Committee under section 5(1)(l) if the person: a. is a Kenyan citizen; b. holds a degree from a university recognized in Kenya; c. has at least ten years working experience in a gender related field; d. has not been an employee of a nominating entity, where applicable, in the preceding five years; and e. meets the requirements of Chapter Six of the Constitution. A person shall not be appointed as a Chairperson or a member of the Committee under section 5(1)(l) if the person: a. is an undischarged bankrupt; b. has been convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months without the option of a fine; c. holds a public office at the time of appointment; or d. has previously been removed from a public office on account of any lawful reason. | Specifying qualifications in the Bill provides clear and standardized criteria for eligibility as the chairperson or a member of the Committee. This clarity helps both applicants and decision-makers understand the minimum requirements for the role. Secondly, the addition of sub-clause (1)(e) is a good proposal. The leadership and integrity principles set out under the Constitution ensure that members of the Committee possess a strong commitment to ethical conduct. This clause establishes critical integrity and eligibility standards for the appointment of the Chairperson or members of the Committee. By excluding individuals who are undischarged bankrupts, have been convicted of significant criminal offences, hold public office at the time of appointment, or have been removed from public office for lawful reasons, the provision ensures that appointees possess the necessary ethical standing and independence. These criteria promote accountability, enhance public confidence in the Committee, and safeguard its impartiality and credibility in executing its mandate. |
Clause 8 Functions of the Committee | The Committee shall: a. advise the Government on the provision of sanitary towels in all public institutions and correctional facilities; b. co-ordinate the provision of sanitary towels to all public institutions and correctional facilities; c. provide free, sufficient and quality sanitary towels to every woman employed by or studying in a public institution and to every woman in the custody of a correctional facility; d. in consultation with county governments, provide a safe and environmentally friendly mechanism for disposal of sanitary towels; e. receive and act on reports relating to provision of sanitary towels in public institutions and correctional facilities; f. develop a framework to facilitate the availability and distribution of sanitary towels in all the public institutions and correctional facilities in Kenya; g. develop inter-governmental agreements for joint implementation of activities for distribution of sanitary towels in all public institutions and correctional facilities; h. co-operate with all other relevant institutions for efficient procurement and distribution of sanitary towels; i. develop and manage a national register for all public institutions and correctional facilities that require supply of sanitary towels; and j. perform any other function conferred on it by this Act or any other written law. | This clause comprehensively outlines the roles and responsibilities of the Committee in ensuring access to sanitary towels in public institutions and correctional facilities. The functions of the Committee have been clearly stated to ensure that it does not perform tasks that are ultra vires. |
Clause 9 Vacancy in the Committee | The office of the chairperson or member of the Committee appointed under section 5(1)(l) shall become vacant if the holder: a. dies; b. resigns from office by notice, in writing, to the Cabinet Secretary; c. is convicted of an offence and sentenced to imprisonment for a term exceeding six months without the option of fine; d. has been absent from three consecutive meetings of the Committee without notice to the chairperson; or e. is removed in accordance with sub-section (2). The chairperson or member of the Committee appointed under section 5(1)(l) may be removed from office by the Cabinet Secretary for: a. violation of the Constitution or any other written law; b. gross misconduct, whether in the performance of the functions of the office or otherwise; c. failing to declare their interest in any matter being considered by the Committee; d. physical or mental incapacity to perform the functions of the office; e. incompetence; or f. being adjudged bankrupt. When a vacancy arises in the office of the chairperson or member of the Committee under subsection (1) or (2), the Cabinet Secretary shall make an appointment to fill the vacancy within two months in accordance with this Act. | The provision is well-structured, providing clear grounds for the vacancy or removal of a chairperson or member. This promotes transparency and accountability within the Committee. The inclusion of specific grounds such as violation of the Constitution, gross misconduct, and bankruptcy aligns with established legal and ethical standards for public office holders. The removal of members under subsection (2) does not explicitly provide a mechanism for the affected individual to respond to allegations or defend themselves. It would be prudent to incorporate a clause ensuring due process, such as requiring a hearing before removal. The addition of timelines in this clause is a good proposal. This ensures that a vacancy in the Committee is filled within a prescribed period without delays, therefore ensuring continuity in the Committee’s operations. However, it would be helpful to specify the consequences of non-compliance with this timeline, such as requiring an acting appointment to avoid a prolonged vacancy. |
Clause 11 Remuneration of members of the Committee | The members of the Committee shall be paid such allowances and expenses as may be determined by the Cabinet Secretary in consultation with the Salaries and Remuneration Commission. | This will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
Clause 12 Secretariat to the Committee | There shall be a Secretariat to the Committee which shall comprise of the Secretary to the Committee and such public officers as the Cabinet Secretary may, in consultation with the Cabinet Secretary responsible for education and with the approval of the Committee, deploy. The Secretary to the Committee shall be competitively recruited and appointed by the Committee on such terms and conditions as the Committee shall, in consultation with the Salaries and Remuneration Commission, determine. The Secretary shall the head of the Secretariat and be responsible for: a. the day-to-day administration of the affairs of the Committee; b. the implementation of the decisions of the Committee; c. the efficient administration of the Secretariat; d. the management of staff of the Secretariat; e. the maintenance of accurate records on financial matters and resource utilisation; f. the preparation of the budget for the Committee; and g. the performance of any other duties as may be assigned by the Committee. | The addition of the Salaries and Remuneration Commission in sub-clause (2) is a good proposal. This will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. Secondly, competitively recruiting the Secretary to the Committee is a good proposal. This proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
Clause 13 County interdepartmental committees on provision of sanitary towels | There is established, in each county, county interdepartmental committees on provision of sanitary towels. (2) A county interdepartmental committee established under subsection (1) shall be comprised of: a. the county executive committee member responsible for gender matters who shall be the chairperson; b. the county executive committee member responsible for children welfare or their representative designated in writing; c. the county executive committee member responsible for education or their representative designated in writing; d. the county executive committee member responsible for health their representative designated in writing; e. the county commissioner or their representative designated in writing; f. the gender officer in charge of the county; g. a prisons officer attached within the county nominated by the Commissioner-General of Prisons; h. a person nominated by, and representing, public benefits organizations operating in the respective county with knowledge in matters relating to the rights of persons with disabilities; and i. a representative of the Committee who shall be the secretary. The respective county governor shall appoint members of the county interdepartmental committee nominated under subsection (1)(g) and (h) by notice in the Gazette. The members of the county interdepartmental committee nominated under subsection (1)(g) and (h) shall hold office for a term of three years and shall be eligible for re-appointment for one further term of three years. | The county interdepartmental committee consists of an odd number of voting members, which is a well-thought-out arrangement. Having an even number of voting members increases the likelihood of deadlocks, making it harder for the committee to make decisions, resolve conflicts, or advance its agenda. An odd number of members guarantees that a majority decision can always be reached, ensuring smoother operations and effective decision-making. Secondly, the addition of a fixed tenure in sub-clause (4) is a good proposal. A fixed tenure provides stability to an organization by ensuring continuity in leadership and decision-making. It prevents frequent turnover and the associated disruptions that can occur with frequent changes in personnel. Thirdly, we propose the re-numbering of sub-clauses in this clause. This proposal seeks to correct the arithmetic error present in this clause. |
Clause 14 Functions of county interdepartmental committees | A county interdepartmental committee shall: a. advise the respective county government on the provision of sanitary towels in all county public institutions; b. provide free, sufficient and quality sanitary towels to every woman employed by or studying in the respective county public institution; c. provide a safe and environmentally friendly mechanism for disposal of sanitary towels within the respective county; d. assist and collaborate with the Committee in the performance the functions of the Committee in the respective county; e. provide a platform for collaboration between the National government and the respective county government on provision of sanitary towels in the respective county; f. make recommendations to the Committee on any matters relating to the provision of sanitary towels in the county; g. provide information that may be required by the Committee on any matter concerning the provision of sanitary towels in the county; and h. perform any other function conferred on it by this Act or any other written law. | The functions of the county interdepartmental committee have been clearly stated to ensure that it does not perform tasks that are ultra vires. |
Clause 15 Protection from personal liability | A matter or thing done by a member of the Committee or any officer, staff or agent of the Committee shall not render such member, officer, staff or agent personally liable for any action, claim or demand whatsoever if the matter or thing is done in good faith for executing the functions, powers or duties of the Committee. Subsection (1) shall not relieve the Committee from liability to pay compensation or damages to any person for any injury suffered by them, their property or any of their interests and arising directly or indirectly from the exercise of any power conferred under this Act or any other written law. | The provision appropriately balances granting immunity to individuals acting in good faith with ensuring that the Committee remains accountable for its actions. This fosters a sense of responsibility among Committee members and agents while protecting them from undue personal liability for honest mistakes or decisions made in their official capacity. Subsection (2) ensures that the Committee, as an institution, remains liable for compensating individuals harmed by its actions. This is a vital safeguard to protect public rights and prevent the immunity granted under subsection (1) from being used to evade institutional responsibility. The phrase "arising directly or indirectly" in subsection (2) is broad and could potentially create ambiguity about the limits of the Committee’s liability. To avoid excessive liability, it might be helpful to specify the types of damages or injuries covered (e.g., physical, financial, reputational) and clarify the connection required between the Committee’s actions and the harm caused. Consider adding a provision requiring the Committee to indemnify its members, officers, staff, or agents against personal liability, provided they acted within the scope of their duties and in good faith. This would reinforce protection for individuals while clarifying the Committee’s role as the ultimate bearer of institutional responsibility. |
PART III— FINANCIAL PROVISIONS | ||
Clause 16 Funds of the Committee | The funds of the Committee shall comprise of: a. monies appropriated by the National Assembly; b. such monies as may accrue to or vest in the Committee in the course of the exercise of its powers or the performance of its functions under this Act; and c. all monies from any other source provided for, donated or lent to the Committee. | This clause outlines the methods the Committee will use to raise funds for its activities. |
Clause 18 Annual estimates | The annual estimates of the Committee shall be prepared and approved in accordance with the Public Finance Management Act, 2012. | The annual estimates determine how much money is allocated to the Committee by the National Assembly. |
Clause 19 Accounts and audit | The Committee shall cause to be kept all proper books and records of accounts relating to the income, expenditure, assets and liabilities of the Committee. The accounts of the Committee shall be prepared and audited in accordance with the Public Finance Management Act, 2012 and Public Audit Act, 2015. | The requirement for proper books and records of accounts underscores the importance of financial accountability and ensures the Committee operates transparently in managing its resources. |
Clause 20 Reports of the Committee | The Committee shall prepare annual reports in a format prescribed by the Public Sector Accounting Standards Board and submit the same to the National Treasury, the Controller of Budget and the Commission on Revenue Allocation. The Committee shall continuously and at least once every quarter monitor and report to the cabinet Secretary on its performance, with a summary of performance reported through the Committee’s annual report on the basis of a clear outcome-based performance framework developed by the National Government. | By mandating the submission of accounts to the National Treasury, the Controller of Budget and the Commission on Revenue Allocation, the provision enhances financial accountability and transparency within the Committee. This ensures that the Committee's financial transactions are subject to independent scrutiny, reducing the risk of mismanagement, fraud or corruption. |
PART V — GENERAL PROVISIONS | ||
Clause 22 Offences | A person who rebrands or resales sanitary towels distributed by the Committee or a county interdepartmental committee commits an offence and is liable, on conviction: a. for a first offence, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years or to both; and b. for a second or subsequent offence, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding five years or to both. | This clause acts as a deterrence in ensuring that the provisions of this Bill are complied with. The penalties outlined are substantial and serve as a strong deterrent. However, the fines and imprisonment terms may be perceived as disproportionately high for a first offence, depending on the scale and intent of the violation. A tiered penalty structure based on the severity of the offence could be considered. Before enforcing such penalties, it is critical to ensure that the public is well-informed about the legal implications of rebranding or reselling sanitary towels distributed by the Committee. This could be achieved through awareness campaigns. |
Clause 23 Amendment to Act No. 14 of 2013 | Section 18 of the Basic Education Act is amended in subsection (1) by inserting the words “in consultation with the Inter-Ministerial Committee on Provision of Sanitary Towels established under the Provision of Sanitary Towels Act” immediately before the words “prepare and submit” appearing in paragraph (k). | This is a good proposal as it seeks to align the provisions of the Bill with that of the Basic Education Act. |