· The constitution of Kenya came into force on August 27th 2010. It has given Kenyan women a new set of laws that will give them the courage to dream, improve and unleash their capabilities as women; laws that introduce relevant clauses to close the gender gap.
· It is within this constitutional framework that detailed rules, relationships, and practices are to be laid out.
· Constitution under Art 2 (1) The Constitution is the supreme law of the Republic, and binds all persons and state organs at both levels of government.
· Art 2(5) states that the general rules of international law shall form part of the law of Kenya.
· In the prior constitution there was no such provision and neither did the Judicature Act say that international law was a source of Kenyan law.
· Art 2(6) States that any treaty or convention ratified by Kenya shall form part of the law of Kenya. Previously discussed, the conventions and international treaties that Kenya has ratified without reservations now form part of Kenyan law automatically.
· Art 2(4) states that any law, including customary law that is inconsistent with the constitution is void to the extent of the consistency. Thus personal law which is discriminatory to women is contradiction to the constitution is VOID.
· Art 10 (b) states that the national values and principals of governance include:-human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized
· Art 14 (1) states that when a child is born outside Kenya, if at the time of birth, the child’s mother or father is a citizen of Kenya, that child acquires automatic citizenship by birth.
· However Art 14(3) places a limitation in this clause by allowing parliament to enact legislation limiting the effect of Art 14(1 & 2) on descendants of Kenyan citizens who are born outside Kenya.
· Art 19 (2) states that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities to promote social injustice and realisation of the potential of ALL human beings.
· Art 19 (3) states that the rights and fundamental freedoms in Chapter 4 belong to each individual and are NOT granted by the state and are only subject to the limitations contemplated in the constitution.
· Art 20 deals with the application of the bill of rights to all laws, it binds all state organs and all persons and its interpretation by the courts. The courts are encouraged to develop law and adopt interpretation that favours the most enforcement of the rights and fundamental freedoms
· Art 20 (5) (c) states that when allocating resources the state shall give priority to the ensuring the widest possible enjoyment of the right and fundamental freedoms having regard to the prevailing circumstances, including the vulnerability of particular groups or individuals.
· Art 21(3) states that it is the state’s duty to address the needs of vulnerable groups in society-including women and children.
· Art 21(4) the state shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
· Art 22: Enforcement of Bill of rights-Everyone has the right to institute court proceedings claiming breach of rights and fundamental freedoms. Art 22(2)-other people who may institute such proceedings. Art22 (3) the chief justice may make rules for such proceedings.
· Art 23 (1) High Court in accordance with Art 165 has jurisdiction over Chapter 4 cases. Art 23 (2) Parliament shall enact legislation to give subordinate courts such jurisdiction.
· Art 24 (1) a right or fundamental freedom shall not be limited except by law, and then only to the extent that the limitation is REASONABLE and JUSTIFIABLE in an open and democratic society based on human dignity, EQUALITY and freedom taking into account relevant factors……/
· Art 24 (4) states that the provisions in Chapter 4 on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who profess the Muslim religion, in matters relating to personal status, marriages, divorce and inheritance.
· This section removes women of Islam, thereby denying them any of the equality provisions under the constitution and leaving them to go through discrimination under their religion.
· Art 25-rights that may not be limited- freedom from torture and cruel, inhuman or degrading treatment or punishment. Freedom from slavery or servitude.
· Art 26 (4) abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law
· Still similar to the old constitution signifying the refusal to respect a woman’s right to determine her reproductive health.
· ART 27 (1) every person is equal before the law and has the right to equal protection and benefit of the law
· ART 27 (3) women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
· ART 27 (4 & 5) the state and all persons, shall not discriminate directly or indirectly against any person on any ground, including sex, pregnancy, marital status, health status…..
· ART 27 (6) to give full realisation of the equality rights in ART 27, the state shall take legislative and other measures, including affirmative action programs and policies designed to reduce any disadvantages suffered by individuals or groups because of past discrimination
· ART 27 (8) the state shall take legislative and other measures to implement the principal that not more than 2/3 of the members of elective or appointive bodies shall be of the same gender.
· Art 27 borrows heavily from the CEDAW convention with regards to preventing discrimination in political, social, civil, cultural and economic spheres. It also covers indirect and direct discrimination.
· Art 29 freedom and security of the person- every person has the right not to be subjected to any form of violence whether from public or private sources, torture in any manner whether physical or psychological, treated or punished in a cruel, inhuman or degrading manner.
Parliament shall not enact a law that permits the state or any person to:
· Art 40 (2) arbitrarily deprive a person of property of any description or of any interest, in or right over, any property of any description.
· Art 40 (2) limit, or in any way restrict the enjoyment of any right under this article on the basis of grounds in art 27 (4) including sex, pregnancy, marital status, health status…..
· Economic and Social Rights: Art 43(1) every person has the right (a) to the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare; (e) social security (f) education
· Art 45 (2) every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
· Art 45 (3) parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
· Art 45 (4) parliament will enact legislation to recognize all forms of marriage so long as they are consistent with the constitution (NOW ALL MARIAGES WILL BE REGISTERED)
· Art 53 (1) Every child has the right to (b) free compulsory and basic education; (c) basic healthcare (d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitive labour; (e) parental care and protection, which includes equal responsibility of the mother and the father to provide for the child, whether they are married to each other or not
· Youth: Art 55-the state shall take affirmative measures, including affirmative action programs to ensure that the youth 55(a) access relevant education and training; (d) are protected from harmful cultural practices and exploitation
· Minorities and marginalized groups:Art 56; the state shall put in place affirmative action programs designed to ensure that minorities and marginalized groups….
· Art 59-establishes the Kenya National Human Rights Commission and Equality Commission. Its function is to 59 (b) promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development; 59 (g) to act as the principal organ of the state in ensuring compliance with obligations under treaties and conventions relating to human rights.
· Art 59 (3) every person has the right to complain to the Commission about a breach of a right or fundamental freedom.
· Principles of land policy: Art 60 (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles Art 60(1) (a) equitable access to land; (b) security of land rights (f) elimination of gender discrimination in law, customs and practices related to land and property in land
· Parliament shall enact legislation to: Art 68 (1) (c) (iii) regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; Art 68 (1) (c) (iv) protect the dependants of the deceased persons holding interests in any land, including the interests of the spouse in actual occupation of land.
· Before when women were divorcing from their husbands, they were not allowed to make in claims to matrimonial property which was left for the men.
· Art 81(b) not more than 2/3 of the members of elective public bodies shall be of the same gender.
· Art 91 Every political party shall (1) (f) respect and promote human rights and fundamental freedoms, and gender equality and equity.
· Membership of the national assembly: The national assembly constitutes of Art 97 (1) (b) 47 women, each elected by the registered voters of the counties, each county consisting of a single member constituency.
· Membership of the Senate: The senate consists of Art 98 (1) (b) 16 women members who shall be nominated by political parties according to their proportion of the members of the Senate elected under clause (a) in accordance with Art 90.
· Art 100 (a) Parliament shall enact legislation to promote the representation in parliament of women..\
· Art 127(constitution of public service commission) and Art 171 (constitution of judicial services commission) both actively state that women must be appointed in these commissions.
· Art 175 (c) No more than 2/3 of the members of representative bodies in county governments shall be of the same gender. This position is reiterated in Art 177 (1) (b) as to membership of county assembly or county executive committee in Art 197 (1)
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