By Charles Onyango-Obbo

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A sly game of legislative cat and mouse happened in Kenya this past week. President Uhuru Kenyatta returned to parliament a bill titled The Employment (Amendment) Bill, 2019.

It sounds dry and boring, so it is easy not to read beyond the title. Big mistake, as you’d miss the juice. The Bill, sponsored by MP Martha Wangari, sought to provide two months leave to mothers of a child born as a result of surrogacy and two weeks paternity leave to the father.

Reporting the story, the Daily Nation put it delicately, saying “surrogacy, a method of assisted child birth where parents commission a woman to give birth on their behalf”. A cold-hearted economist might say it is renting a womb. Kenya does not have a law on surrogacy, so a child born through a surrogacy still needs to be adopted through a court process. Again, our economist would say it is like buying back your child.

Kenyatta’s argument is that surrogacy law needs to be passed. And because, surrogacy is extremely radical, there needs to be wide national consultation. If he had blinked too many times and signed it, Wangari would have pulled off a big social engineering move through the equivalent of a fake in basketball.

The episode revealed yet again how progressive and socially liberal spectrums of society in East Africa are navigating their way from under the hold of conservative cultural and political guardians.

Consider for example that behind Rwanda which is out there on its own, in the region Uganda pulls in second in representation of women in parliament.

However, a surrogacy law would not even get on the Uganda Parliament’s order paper.

In Tanzania and Burundi, you’d be drowned in Lake Tanganyika for trying.

In Rwanda last year, as we were all cowering from Covid-19, a determined couple had better luck than MP Wangari. They went to court seeking a declaration that it would be legal for them to have a child by surrogacy. The judge threw them out.

They appealed, and won, with the judge telling them they could go and do their thing. Their legal fees were well spent. Their clever lawyer, citing the Rwanda law on families which says that, “Medically assisted procreation must be by mutual consent of the concerned” parties, argued that surrogacy is medically assisted.

More earth shifting in an African context is a 2014 ruling following a long battle by Kenyan transgender activist Audrey Mbugua. In October Mbugua triumphed in a ground-breaking case when the High Court ordered the Kenya National Examinations Council to change her name on her academic certificates.

The council was also ordered to remove the male gender mark on Mbugua's certificates, issued in the name of Andrew Mbugua.

In July, Mbugua won another legal victory when the High Court ordered the National NGO Council to register her group, Transgender Education and Advocacy, and pay their legal fees.

Wonder what’s next; decriminalising sex work, or abortion? Then you’ll know the tide has truly turned.

Charles Onyango-Obbo is a journalist, writer and curator of the “Wall of Great Africans”. Twitter@cobbo3