Introduction
It is sufficient to note that the Kenyan legal framework borrows from the tradition of the British legal system. Kenya's legal system is described as following the common law tradition of its previous colonial master, Great Britain. This is seen in case law development, which is a crucial factor of the common law system.
Despite this fact, the constitutional law that developed in Kenya hails from the British concept of parliamentary supremacy. That principle denotes Parliament as the supreme legal authority in the UK that creates or abolishes any law. Pursuant to that, it forbids any Parliament from passing laws that cannot be overruled by subsequent Parliaments.
Gender equality is ideally understood to imply the situation where both genders are accorded equal representations in all spheres of life including political representation. Gender equality is seen as a vision that cuts across human rights and social justice and one that requires concerted efforts from all to achieve. The effect of this is that the foregoing principles and values should inform of any development deliberations and move towards achievement of the gender equality in Kenya.
The legal structure of Kenya upholds constitutional supremacy. It, therefore, implies that all laws should adhere to the constitutional provisions so as to be deemed valid. Borrowing a leaf from Hans Kelsen's ‘Pure Theory of Law', the Constitution of Kenya forms the grund norm and/or supreme law from which all other norms find their validity. The Bill of Rights forms the yardstick from which all other laws are qualified and declared to be valid and or constitutional. This chapter analyses the regional and international legal framework in light of the Constitution and the validity of other Kenyan legislation touching on the gender equality.
National Legal framework
The Constitution of Kenya, 2010
The Constitution which is one of the progressive statutes in Kenya it has been hailed as a major landmark in the quest for gender equality. It has very expansive provisions on equality and non-discrimination through the Bill of rights and is endowed with provisions that deal with women’s rights to land, inheritance, and equal marriage rights, among others. It is a dream that has come true for many Kenyans as it reflects great popular expectations of the people to engineer massive changes in the social, political and legal realms of life.
The Constitution presents a strong commitment to ensuring non-discrimination and equality is upheld, and both are invoked as values or interpretative principles at a number of points. The provisions on human rights, gender equality, and inclusiveness have earned the constitution of Kenya, 2010 international recognition ranking it the best worldwide. The constitution enshrines various entitlements for women which are geared towards gender equality as it aims to resolve the historical past practices and patterns of social exclusion of women from mainstream society and establishes a different narrative of state-society relations.
The Constitution Provides for the right to equality and freedom from discrimination under Article 27. The same provision substantially expounds the list of protected grounds and the aspects covered in non-discrimination differently from how the previous constitution presented them. Part three of the Bill of Rights supplements it through its articles which provide for rights which apply to particular groups. Furthermore, the general permission for positive action and a number of specified requirements for the same on particular grounds have been introduced by the Constitution.
The preamble to the Constitution further lists equality as among the core six essential values upon which government should be based. Article 10 is given legal force as an expression of principal and which includes human dignity, equity, social justice, inclusiveness, equality, non-discrimination and the protection of the marginalized in terms of the principles of governance and national values which are adapted to interpret the Constitution and other laws, and in making or implementing policy decisions. Article 20(4)(a) further emphasizes by listing equality and equity as values to be promoted in interpreting Bill of Rights(Chapter four) and Article 21(3) which creates a duty on state actors to cater the needs that are associated to the “vulnerable groups” in society including women. Chapter Four (containing the Bill of Rights) stipulates that each individual is entitled to thee right and fundamental freedoms in the Bills of Rights, and that everyone is eligible to enjoy them in the greatest extent consistent with the nature of the right or fundamental freedom’.
Kiwinda Mbondenyi and Osogo Ambani, in their book titled The New Constitutional Law of Kenya, acclaim the constitution as having a near-exhaustive Bill of Rights which includes the three generations of rights including political, socio-economic and cultural rights and the so-called group rights.
Article 27 provides for equality and non-discrimination as per the Bill of Rights and in the realm of gender equality, the subsections address all aspects of equality. The 2010 Constitution also unequivocally and unambiguously provides for equality of subjects of law and stipulates that every person is entitled to equality before the law and are at the same time entitled to equal protection and benefit of the law. It further elaborates that ‘equality incorporates the fullness and equality in the enjoyment of all rights and fundamental freedoms’ and that ‘women and men have the right to be treated equally’ and enjoy equal opportunities in all spheres’.
This call to equality is further buttressed by the exhortation of the State and other persons and it is expected of them not to directly or indirectly discriminate against any person on any ground. The listing of objectionable grounds on which discrimination may not be based is wide.’ The Constitution additionally provides that to ensure the realization of the rights guaranteed, legislative and other measures such as affirmative action programmes and policies ‘designed to do a cover up of any detriment suffered by individuals or groups because of past discrimination’ shall be undertaken by the State. It is, therefore, particularly the presumption that Article 27(6) avails a duty to affirmative action, as Article 260 defined noting it includes the measure which is designed at overcoming any inequity or systematic denial or any form of infringement of a fundamental right or freedom.
In addition, Article 56 further provides for the protection of minorities and the marginalized groups and a category which encompasses all people prone to discrimination. The minority is not however defined by the Constitution, however, Article 260 categorizes them as the marginalized group since they are all disadvantaged and prone to discrimination on various grounds that are presented by Article 27(4). In terms of political representation, the Constitution stipulates that the composition of elective bodies should not be same gender occupying more than two-thirds of the total. These provisions are facilitative towards ensuring an equal society.
The Constitution in line with the obligations mandated by CEDAW introduced guarantees which ensure an increase in the representation of women in leadership positions. Subsection 8 of Article 27 of the Constitution expects the states to ensure equality by ensuring that members belonging to elective bodies of the same gender should not exceed two-thirds of the total representation. Separate provisions create reserved places for women in the Senate, County Assemblies and National Assembly.
With regard to Article 27(8) parties can adopt quotas aimed at creating a targeted number of female candidates for elections. This was delivered by Article 177(1) (b) and (c) of the 2010 Constitution, which included in the composition of county assemblies to ensure equal representation. However, no similar provision was included for Parliament, both the National Assembly and Senate.
Article 90 (1), 97 (1) (c) and 98 (1) (b), (c) and (d, 177 (1) (b) and (c) are all aimed at ensuring the inclusion in the lists of women and other marginalized group enhance achievement of the two-thirds gender rule and the requirement of inclusion set out by the Cosntitution. These provisions should have a significant positive effect on women’s representation and role in the decision-making process at all levels of government.
The implementation of the equality and the non-discrimination imperatives presented by Article 27(8) of the 2010 Constitution requires confrontation of the patriarchal structures and other barriers that are in the way of women seeking to enter the political arena. Articles 97 and 98 that touches on membership of the Senate and National Assembly excluded facilitative provisions that would have made the realization of gender equality more direct. The lack of a framework which ensures gender equality in representation in Parliament flowed seamlessly placed potential women contestants at the mercy of party barons, a realm where very few women are significant players.
The creation of two levels of governance both at the counties and the national level through devolution of power and the creation of a two-chamber parliament provides more avenues for increased women representation in political domains. More women can now vie for seats in the county assembly as ward representatives or become appointed to fill the special member seats to ensure that the two-thirds gender rule is observed in compliance with the principles of devolved government.
Article 27(7) places a caveat to the measures taken to ensure full effect to the right to equality and non-discrimination as a way of redressing past discrimination and qualifies such measures to be based on genuine need. This provision creates some gaps and leeway for denial of such measures to some groups if they are not able to demonstrate such genuine need as the courts would now be determinants of standard of proof.
Additionally, gender equality features prominently in Articles 14 and 15 which provide for equal rights for both genders during marriage and at its dissolution. It further provides for equality between both parents and spouses in the acquisition of citizenship through birth and marriage and finally, the need to eliminate gender discrimination in custom, law and practices which relate to land.
Significantly, the supremacy of the Constitution as is empowered by Article 2, with emphasis on the supremacy over customary law, extends the right to non-discrimination to apply to a range of areas of law which affect women, including those governing personal and family relationships and property rights.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
The Convention was adopted in 1979 by UNGA and it is often regarded as the international Bill of Rights for women of the Women’s Convention. The Convention entered into force on 3rd September 1981, in accordance with its Article 27(1). Kenya ratified with reservation the CEDAW in March 1988.
The Convention notes in its Preamble that the obstacle to women participation is by discrimination which violates the principle of equality of rights and a factor which hampers the growth of the society and which limits the potential of women in the country. The Convention gives a definition of what qualifies as discrimination against women in Article 1.
In Article 2, it further requires state parties, including Kenya, commits themselves to undertake to do away with discrimination against women and to uphold equality of both genders in their national constitution and ensuring the realization of this principle of equality through their constitution and other policies which can be implemented if they are not yet. Kenya through its Article 27 of the Constitution has since incorporated the right to equality and non-discrimination.
The Convention thus advocates for the participation of both genders in an equal manner in the political, social, economic and cultural life of their countries. The Convention arguably through its provisions avails the basis for realizing equity through ensuring equal access to equal opportunities in all aspects be it election, health and even employment. To this end, Kenya has performed impressively as far as framework laws are concerned, considering that the principles of non-discrimination, social equity, and equality, amongst others, which the Constitution features.
On the other hand, Article 5 of the Convention expects of state parties to come up with measures that modify social and cultural patterns of both genders in the bid to eliminate inferiority or superiority or any forms of stereotypes on the roles played by either gender. For instance, the Committee on Elimination of Discrimination against Women, in considering the 7th periodic report by Kenya, under recommendation 17, raised concerns over the persistence of adverse cultural practices and deep-seated stereotypes regarding roles of women and men in all spheres of life in Kenya.
These practices, according to the committee promote inequality in many areas of life in perpetuating discrimination against women and are reflected in women's disadvantageous and statuses which are not equal to those of men in many aspects, for example, decision making and public life. Therefore, the Committee recommended that Kenya undertake efforts with the assistance from the civil society to educate and create awareness on non-discrimination which mainly targets both genders of the society across all leadership levels, including traditional leaders.
Secondly, the committee recommended that Kenya should use innovative measures to strengthen understanding of equality of both genders including working with the media to enhance a positive and inclusion of women that does not engage stereotypic minds. The Constitution additionally mandates States in the realization of rights guaranteed by the Constitution under Article 43 to take legislative, policy and other measures such as setting standards. What remains is to ensure that implementation is in place to ensure both genders participate in national development and especially in realizing the country’s development blueprint as presented by the Vision 2030 Goals.
The Universal Declaration of Human Rights (UDHR), 1948
The UDHR was adopted and proclaimed by the United Nations General Assembly (UNGA) in 1948, in order to foster international peace and security through recognition of universal human rights of all individuals following the massive loss of life in world war two. It stipulates that equality and dignity of equity rights should be the foundation of freedom, peace, and justice in the word.
It further emphasizes equality rights with non-discrimination of any form aimed at promoting gender equality and ensuring both genders are equally treated equally. In light of the foregoing, the 2010 Constitution upholds equality of all persons and non-discrimination on any ground as well as equal protection of the law.
It stipulates that every human being should be born with equal dignity in rights. In as much as the UDHR acknowledges that both genders are different. It further insists on the right to equality before the law and to be the non-discriminated treatment of all. It further espouses that everyone is, before the law, equal and should be treated without any discrimination. It can, therefore, be wise to conclude that the Declaration recognizes the important role of equity in ensuring that all persons are not only afforded equal opportunities but are also able to take advantage of such opportunities in a fair manner. All these provisions are reflected in Article 27 of the constitution.
The UDHR has the importance of pushing for the promotion of the rights of all persons. Additionally, it is also advocates for correction of any violation of the said rights. It, therefore, forms the benchmark against which many laws on human rights around the world are pegged. The universal acceptance of its values and principles means that every state, Kenya included, should work towards achieving the ideal world of equity and equality as it contemplates. It can also be noted that the Declaration recognizes the equal dignity of all human beings not selective whether men and women.
Arguably, this is one of the main ways of ensuring that both men and women can meaningfully pursue the aspirations of freedom, justice, and peace in the world. It backs up the constitutional provisions which state that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of humanity and to promote social justice.
The key focus is thus on the humanity as a whole whereby efforts aim at ensuring that all persons are fully empowered to realize their potential and consequently promote national development.
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
This Convention was adopted in 1966, but it entered into force in 1976. It mandates states ascribed to it to protect and promote a variety of the social, economic and cultural Rights which covers good working conditions, good living standards, good education, and health. It requires states’ parties to respect and ensure that all individuals subject to their jurisdiction enjoy all the rights included in the ICESCR, without discrimination.
ICESCR has a framework that creates gender-sensitive indicators which measure government accountability to commitments adopted by it and gauge the extent of women full participation in decision making in all spheres. Article 3 of the ICESCR promotes equal rights to both genders. The Covenant thus promotes gender equity and inclusive enjoyment of the human rights.
The Constitution of Kenya equally reflects the spirit of this Covenant as it provides for economic and social rights of all persons. It further stipulates that state parties should prioritize ensuring the fundamental freedoms and rights are enjoyed by all persons.
The Maputo Protocol (Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa)
The Maputo Protocol reaffirms in its Preamble promotion of gender equality and which underlines the commitment of the African States to ensure African women fully participate equally in the development of Africa.
The Protocol also expects of state parties to combat all manners of discrimination against women by passing appropriate legislation, institutional and other measures. As such states through its policy decisions and other legislation ought to integrate in all spheres of life.
Further, by serving as a corrective measure, it obligates States to ensure modification of its social and cultural patterns of both genders aimed at eliminating toxic practices of cultures and stereotypes that exist in them. The Protocol further requires both genders to be equally treated by law and should enjoy equal protection and benefit from the law.
The Protocol as per the foregoing additionally states that States Parties are to take specific positive action to promote participative governance and the equal involvement of women in politics and enable legislation and other measures that ensure women are equal partners with men and implement policies and programmes. The Constitution of Kenya, in line with the foregoing, ensures all state organs dutifully address the needs of vulnerable and marginalized groups in the society.
It further requires of states to come up with legislation which fulfill the international obligations in respect of human rights and equivalent fundamental freedoms.
All these provisions create an opportunity for the country to adopt international's best practices for the realization of gender equality and also mobilizing all persons to promote gender equality for inclusive national development in Kenya.
The protocol touches on the right to sustainable development and it guarantees full enjoyment of the right by women. To facilitate this, the Protocol provides for several measures among which include states to ensure inclusion of women in all aspects and promote their access to other quality facilities and lower the poverty levels of women. In addition to the foregoing, they are to take into account indicators of human development specifically relating to women in the elaboration of development policies and programmes.
The Protocol also requires States Parties to ensure reduction of the negative effects that affect globalization and implementation of trade and economic policies and programmes for women. The Protocol further requires that women enjoy the right to a healthy and sustainable environment. In facilitating this, the Protocol requires States Parties to ensure participation of women actively in the matters touching of the environment and the sustainability in usage of natural resources in the respective nationalities. In Kenya, this can only be achieved through full implementation of the core values and principles of governance in development matters within the country. If properly effected, the Maputo Protocol can go a long way in ensuring gender equality for inclusive development.
Institutional Framework
The parliament of Kenya in the recent passed legislative frameworks which push for implementation of the Constitutional requirement to foresee gender equality. These include among others: -
Marriage Act (No. 4 of 2014)
Protection Against Domestic Violence Act (No. 21 of 2015)
Basic Education Act
Micro and Small Enterprises Act (No 55of 2012)
Employment and Labor Relations Court Act
Treaty making Ratification Act 2012
Matrimonial Property Act (No. 49 of 2013)
The prohibition of Female Genital Mutilation Act 2011
Sexual offenses Act 2006
National Gender and Equality Act 2011
The policy framework has also been developed and includes among others: -
National Gender and Development Policy
The Kenya Vision 2030 the government's blueprint on the development agenda and its medium Term Plans (2008-2012, 2013-2017 and 2017-2020)
Sessional Paper No. 2 on gender equality and Development 2006
Kenya Economic Recovery Strategy for Wealth Creation (2003-2007) National Land policy
National Policy for Response to Gender-Based Violence
National Policy for the Abandonment of Female Genital Mutilation
