Boost for gender parity as biased laws earmarked for change
Women at the Mombasa Law Court.
What you need to know:
- Mary Njeri from UN Women says the existing gaps in legal protection should be addressed as a matter of urgency.
- She singles out the laws touching on succession, family and marriage, domestic violence as some of the areas that need urgent overhaul.
In 2008, a case in the High Court of Kenya (Family Division) lifted the lid on what gender discrimination was all about.
The case came after the death of Lerionka ole Ntutu. He was survived by multiple wives, sons, and daughters.
His sons filed an application asking the High Court to issue to them the letters of administration to administer his estate.
However, after their sisters and stepsisters got wind of it, they felt betrayed and left out. They quickly moved to court and filed an objection and claimed their inheritance.
The sons would, however, hear none of it and contested the objection, arguing that the distribution of their father’s estate was governed by Maasai customary law.
The law did not recognise the right of daughters to claim an inheritance from their father’s estate. The judge held that because Ntutu was Maasai and lived in an area excluded from the Succession Act, his estate should be divided according to Maasai custom.
The judge thus held that none of the daughters could inherit from their father’s estate. Dissatisfied and angry with the judgment, the daughters moved to the Court of Appeal.
They would later eventually have the last laugh after the Court of Appeal ruled in their favour.
The Court of Appeal invoked international treaties and covenants, including the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) in finding that the daughters were entitled to a share of his estate.
Cedaw, which was adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.
This case is just but the tip of the iceberg of many others where women have faced discrimination be it under customary or the other laws.
Women in the country have in fact been complaining that some of the laws were biased against them, thus making their quest for justice futile.
A study done by the International Development Law Organisation, the Kenya Law Reform Commission and UN Women has come to reinforce these assertions by the women.
The study, titled Strengthening Gender Equality in law: Mapping Discriminatory Laws Against Women and Girls in Kenya, released a fortnight ago shows a total of nine laws in Kenya must be repealed for being discriminatory to women.
It also recommends a further 17 laws be urgently revised or amended to make them gender-sensitive.
The laws that the report recommends for repeal or amendment are drawn from the areas of marriage and family, sexual and gender-based violence, domestic violence, violence against women in elections, sexual and reproductive health, succession and inheritance, political participation and labour and Employment.
The survey says Kenya has a robust constitutional, policy and legal framework meant to empower women and girls and remove barriers in political, social and economic spheres.
However, despite these strides, the study notes that Kenya’s legal framework has proved inadequate to fully realise the rights of women and girls.
This is due to the inability to fully implement the existing provisions, reinforced by a patriarchal culture and gender stereotypes that discriminate against women and girls.
This, the survey notes, has hindered the substantive enjoyment of rights and fundamental freedoms by women and girls on an equal basis with men and boys.
The report recommends the amendment of the Sexual Offences Act, 2006, to include the crime of marital rape and remove permissibility of evidence on a survivor’s sexual history.
It also proposes that Section 24 of the Prohibition of Female Genital Mutilation Act to male failure to report an act of FGM an offence.
This is likely to affect the victims who fail to report FGM.
On domestic violence, the report wants the amendment of the Protection Against Domestic Violence Act, 2015, and the Victim Protection Act, 2014, to include provisions for the protection of survivors, including the establishment of state-run shelters and standard operating procedures for their operation.
To tame violence targeted towards women during elections, the report is rooting for the amendment of the Sexual Offences Act and the Election Offences Act to provide a definition of election-related sexual violence to identify and treat it as a unique manifestation of sexual violence requiring special investigation and prosecution approaches.
It also calls for the amendment of section 11 of the Election Offences Act to broaden its scope to include violence against women, and to define violence against women in elections and include its different forms.
On matters of reproductive health, women unable to get children could have a reason to smile about as the survey is rooting for the enactment of legislation to regulate and govern assisted reproduction.
It also calls for the amendment of sections 158, 160 and 228 of the Penal Code, which give a blanket criminalisation of abortion, to align them with the Constitution, which permits abortion in certain circumstances.
When it comes to matters to do with succession, the report is calling for the change of Section 2(3) of the Law of Succession Act (Cap. 160) to remove its discriminatory effect on Muslim women, and to have the law apply to all Kenyans regardless of their religion.
It also wants Section 28(1) of the Succession Act reviewed to remove the discriminatory elements against widows in polygamous marriages and repealing of section 35(1) and 36(1) to remove discriminatory elements so that widows do not lose inherited life interest in a property acquired under the Act in intestate succession after they remarry.
One of the most radical proposals is, however, the amendment of Section 29(1) of the Employment Act to enhance maternity leave from the current 3 months to a minimum of 14 weeks as recommended by ILO to ensure adequate rest and recovery time for the mother.
A lot of gender, human rights activists and women leaders agree with the findings and proposals of the report.
Mary Njeri from UN Women says the existing gaps in legal protection should be addressed as a matter of urgency.
She singles out the laws touching on succession, family and marriage, domestic violence as some of the areas that need urgent overhaul.
“The current legal framework has proved inadequate to fully realise the rights of women and girls. We have several provisions in law that are explicitly discriminatory,” Njeri says.
Christine Agimba, the chairperson Kenya Law Reform Commission, terms the report important as it has pin-pointed the discriminatory laws affecting women and girls.
Ms Agimba adds there is an urgent need to sensitise key stakeholders to areas where discriminatory laws still exist.
“We need to have laws that emphasise human dignity, human rights and equality. The Constitution mandates all state organs to promote gender equality in all spheres. The report provides a platform, which gives rich resources showing gaps which require legal legislation change,” she says.
Presidential Adviser on Gender Harriet Chiggai says she is fully behind the recommendations of the report to have some of the laws that are discriminatory to women repealed or amended.
“This report is timely as one the envisioned law changes are enacted, they will help change the lives of girls and women in the country. I will take the recommendations of the report to the president as an advisory. My office is willing and ready to work with other stakeholders to eliminate discriminatory laws against women and girls,” Dr Chiggai says.
Law Society of Kenya (LSK) president Faith Odhiambo notes the need to deal with cultural and structural barriers that prohibit women participation in governance and leadership.
“Currently, cultural and structural barriers are the key things hindering women participation in leadership. Policies need to be put in organisations to ensure women rise in leadership positions. Political goodwill is also key in achieving gender equality,” she says.
Former Deputy Chief Justice Nancy Baraza notes that customary laws are the major causes of discrimination against women and girls.
She regrets that succession laws, for example, usually refers to customary law, thus enhancing more injustice.
“The law of succession needs not to discriminate against women. Women who remarry after must be allowed to benefit from the property of their deceased’s husband.”
The National Gender and Equality Commission (NGEC) chairperson Joyce Mutinda has also stressed the need to address the long-standing issue of discrimination against women and girls deeply embedded within Kenya's legal framework.
Dr Mutinda emphasised the urgency for collective action to close the existing legislative gaps, and ensure comprehensive protection against discrimination.
“The collaborative effort between NGEC, UN Women, the Kenya Law Reform Commission, and IDLO marked a critical milestone towards nurturing a more just society for all Kenyans.
As the nation continues its journey towards gender equality, NGEC remains committed to advocating the elimination of discriminatory laws and policies, championing inclusivity and empowerment for women and girls throughout Kenya,” Dr Mutinda.
Besides law reforms, the study recommends specific policy and programme actions by duty bearers to enable the full implementation of the provisions in the law and equal enjoyment of rights by women and girls in practice.
