Constitution @10: The silver lining

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Photo credit: File | Nation Media Group

What you need to know:

  • Despite challenges with the 2010 Constitution, women have benefited from other laws and policies aimed at ensuring gender equality.
  • The Matrimonial Property Act, 2013 that addresses the persistent historical challenges of property rights.
  • The Land Act, 2016 that recognises women’s right to land.
  • The Marriage Act, 2014 that provides for equal rights in marriage.

Lack of implementation of the gender rule by Parliament as stated in the Constitution has created the impression that women have not benefited much from the law. 

However, a closer look at the last one decade shows even though the gender rule has remained elusive, women have also benefited from other laws and policies aimed at ensuring gender equality.

In particular, women have benefited from Gender Responsive Policy and Legislation pushed by the government.

This includes the Matrimonial Property Act, 2013 that addresses the persistent historical challenges of property rights on matters pertaining to women’s property rights.

The law came to strengthen women’s land rights and reinforced the equal rights enshrined in the Constitution for both spouses when they own property together.


The law also granted rights to women landowners that they didn’t have before. Courtesy of the new law, women can now buy and register land individually, and can inherit land from their parents.

Women now have an equal say in land and sold in their name, and in the case of polygamous marriages, each wife has a right to a portion of land based on contribution to the purchase and upkeep of the land.

And when land is being apportioned after a divorce, the law now takes into account factors other than how much each person in the marriage paid for it.

This means a woman’s non-monetary contributions including unpaid domestic work, home management, childcare and farm work give her the right to more, if not all, of the couple’s land.

Property inheritance

Also in the law is the Land Act, 2016 that recognises women’s right to land and amendment to the Law of Succession Act 2018 that now recognises the legitimacy of both the boys and girls in property inheritance and land rights.

A court last year ruled that married women qualify to inherit properties of their fathers and should not be excluded during distribution. Justice Lucy Waithaka of Nyeri Environment and Land Court held that married daughters are also entitled to inherit their father’s estate, contrary to customary law and traditions beliefs.

The judge said her verdict was based on the Law of Succession, which “disregards customary law and allows all the deceased’s children, inclusive of married daughters, whether or not maintained by the deceased prior to his death, to benefit from his estate”.

Equal rights

The Marriage Act, 2014, provides for equal rights at the time of the marriage during marriage and at the dissolution of marriage.

Public Service and Gender Cabinet Secretary Prof Margaret Kobia while speaking recently during a webinar organised by UN Kenya to celebrate 10 years of Kenya’s Constitution said other laws among them The Witness Protection Act, 2012 and The Victim Protection Act, 2014 have created a conducive environment for women to report incidences without fear of retaliation.

Prof Kobia added that The Kenya Citizenship and Immigration Act, 2011 which addresses the discrimination meted on women with regard to the law on acquisition of citizenship through birth and marriage.

Affirmative action

“This Act provides legal equality between women and men with regard to the acquisition of citizenship through marriage and birth, a right that has been elusive to women prior to the Constitution 2010,” she said.

On Economic empowerment, there have been key developments by the government to fight poverty among women through implementation of constitutional requirements on Affirmative Action Programs and Policies.

Among the programs and policies that have specifically been set up to benefit women include Access to Government Procurement Opportunities (AGPO) and National Government Affirmative Action Fund (NGAAF) and Women Enterprise Fund among others.

Judiciary statistics

On Women Leadership and Participation, the new constitution is credited to having contributed to a steady increase of women representation in Parliament and county assemblies. Following the 2017, General Election, women accounted for 33 per cent.

There has been an increase in women Cabinet Secretaries from the year 2009 when there were only three women ministers out of 20 compared to seven women ministers translating to 33 per cent.

In Judiciary, statistics show that women compromise 28.6 per cent of Supreme Court judges, 36.8 per cent of Court of Appeal, 48.8 per cent of High Court judges and 53.5 per cent of magistrates.

Women also hold key strategic dockets with the Auditor General, Controller of Budget, Commission for Revenue Allocation and Salaries and revenue Commission currently be headed by women.

Monetary policies

Homa Bay Woman Representative Gladys Wanga recently became the first woman in the history of the Kenyan Parliament to head the influential Finance and National Planning Committee, which has for decades been a preserve of male MPs.

The Finance committee oversights the National Treasury and State agencies like the Central Bank of Kenya and Kenya Revenue Authority among others. It is also critical in the enactment of the government’s fiscal and monetary policies.

On ending gender-based violence, several laws and policies have been enacted to curb violence against girls and women who have the biggest casualties of SGBV.

The government has, for example, been implementing the National Policy for the Prevention and Response to Gender-Based Violence of 2014.

Domestic violence

The Protection against Domestic Violence Act 2015, which is comprehensive legislation, offers protection and relief for victims of gender-based violence. It has also gone a long way in protecting girls and women who have been the greatest victims of SGBV.

The enactment of Prohibition of Female Genital Mutilation Act, 2011 applies a wide range of inventions and imposes relatively several penalties on perpetrators of FGM.

According to the Act, anyone culpable is liable to a minimum punishment of three years imprisonment and a fine of Sh200,000.

The 2010 Constitution has also seen the establishment of the National Gender and Equality Commission (NGEC) which focuses on special interest groups, which include women, youth, persons with disabilities (PWDs), children, older members of society, minorities and marginalised groups.