FEMINISM
Feminism is a broad term for a variety of conceptions of the relations between men and women in the society. Feminists condemn all forms of discrimination against the women and attempt to develop a variety of strategies that might change these aspects for the better. Feminists agree on what oppression means in a male – dominated institution, the values and social practices that are oppressive and destructive. They however differ widely in terms of analyzing its origins and what constitutes women liberation.
Gender apparently is a relational concept that denotes the manner in which women and men are differentiated and ordered in a given socio-cultural context1. Sex is therefore what one is born as, whether female or male and consequently a biological concept. Patterns of behaviour rights and duties and obligations distributed culturally are varied even within the same society. A Feminist studies therefore encompasses not only women studies with the aid of analyzing condition of women in the society but also are directed at changing women’s condition in the society. A political movement aimed at transforming gender relations oppressive to women is known as Feminism2. As we shall see later Feminism has its meets in the African condition because the awareness of oppression by the women is prevalent and the African women have over the centuries challenged it. The western concept rears its head only because just like other theories, feminist the theories have been influenced by external pressures resulting from colonialism and imperialism.
LIBERAL FEMINISM
Liberal feminism dates back to the 18th Century3. It was as a result of critical socio-economic transformation in the 18th Century. Liberal feminists such as Mary WollerstoneCraft, aired viewpoints against women, which are damaging and discriminatory4. Liberal feminists demand equal opportunities and participation in the management of the society through legal reforms, increased participation in the political origins, education and training. The emergence of Liberal feminism as a theory was the result of two critical socio-economic transformations.
The transformations include: -
Industrial revolution – This created structural changes in the methods of production and social relationships. Traditional patterns declined in Europe especially England and France. This led to an emergence of a powerful class, which challenged feudal and aristocratic classes. This social class began to question their place in the developing capitalist system. Consequently feminist thinking was influenced by the bourgeois revolutions, which had led to the growth of political ideas, based on equality.
The 18th Century was characterized by politics of confrontation with absolute mornachies, aristocracy and political oppression. Liberal feminist aspirations for women’s political equality was fueled in the capitalist US and France by the very democratic political ideals. This resulted into evolution and spread of the suffragettes’ movements in the UK and USA.
Liberal feminism has never questioner structural inequalities prevailing in the society and despite having fought for the rights and opportunities for a long time. It doesn’t adequately challenge new-feminist views of inequality neither does it pin point relations between the sexes as specific power relations. It therefore tends to perpetuate the status quo. It however has had greater impact on development strategies and blends well in the modernization paradigm especially in South Africa.
The oppression within the modernization paradigm (which has had a very narrow and static perception of development process) considered as having resulted from “Primitiveness” of the African cultures and social values. Most anthropological studies were located within the modernization paradigm this modernization of the economy was considered a necessary prerequisite for the liberation of women because it was supposed to have led to the introduction of new values and social norms and ideals in favour of women’s liberation5.
Nationalist governments have challenged anthropological approaches to gender issues, nationalism did provide a point of departure to Liberal feminism but nationalist parties and governments encouraged the creation of women’s party wings whose function was to mobilize support for the male-dominated politics.6 They have encouraged and created women’s wings of the dominant political parties whose thrust is to solicit support for the male dominated societies.
Liberal feminists in the national framework have been fighting for redistribution of health, work, education, legal status and higher standards of living. They maintain that education is unfair to females since it limits their access and retention in certain fields. Education for girls and women is thus considered as an investment and probably higher economic returns than of boys and men especially in production and health.
Liberal feminists have further compromised women’s rights to access to productive assets and right to life and liberty for welfare-oriented services sentence left out and planning have ignore the gender inequities and instead concentrated child-rearing roles of women. Ignorance about existing unequal division of labour contributes to the increased workload, which has been a major subject of criticism by feminists who have been challenging Liberal feminism.
There is an equity approach, which is the welfare approach on women’s issues. The latter ignores the structural gender inequities and consequently the demand a mere radical transformation of gender relations through the equity approach. Equity challenges existing social injustices and existing discriminatory legal system. It also recognises that women are active participants in the development process but have been marginalised in production and reproduction resulting in income inequity.
In the 1970 and the world bank changed its policy from enhancing economic growth per se to reduction of poverty7. This has its limitations to as most projects have only increased the woman’s backlog thus little attention has been paid to issues of social justice , empowerment and equal entitlement of women. The Liberal feminists have been criticised by the Radical Feminists.
RADICAL FEMINISM
Radical feminism broke away from Marxist feminism due to frustration as a result of failure to apply social class in analyzing gender oppression. They launched whole-scale onslaught on the man and considered him the enemy and demanded radical transformation of the oppressive gender relations8.
Their slogan, “The personal is political” empowers women to analyze their lives as part and parcel of common experiences in patriarchal society. They further put sexuality and reproduction and partriachy at the centre of political arena and changes women political consciousness. Gender, production, reproduction are the four domains of social life.
The concept of partriachy differentiates the forces maintaining gender oppression and discrimination from other social forces such as capitalism or socialism9. Patriarchy is a specific form of male domination based on the powerful role of a further trend. In many communities however, the power of male is founded on their collective adult maleness as depicted by men’s lives, warfare and initiation ceremonies. These communities are highly oppressive to women but not patriarchal. However, in matrilineal societies women do not necessarily have significant social authority.
Male supremacy rather than patriarchy is the definition for social system where there’s rigid gender division of labour10. Gender studies should therefore cover male supremacy in addition to patriarchy. The kinship system for example is a system of classification and status, which regularly contradict actual genetic relationships. An analysis of gender oppression concludes that the essence of kinship system was rooted to the exchange of women between men11.
To Levi Strauss women were the most precious gift and exchanged during marriage thus rendering them powerless. The system gives men powers to organize women and through exchange the men are made the beneficiaries. Women are in no position to give themselves away but must be disposed of.
Women are sent as tribute, given in marriage, traded, taken in battle, bought or sold; a practice that existed from colonial times but are only merely pronounced in the modern society. Men are also trafficked but only as shares, athletic stars, serfs rather than as men.
Unlike the Liberals who want equal education opportunities, the Radicals challenge the quantity of education being offered. They demand for changes in the curriculum. Studies in Botswana and Tanzania demonstrate new educational stereotyping in contributing to marginalisation of women. For instance the pictures in the textbooks reinforce gender stereotyping. In literature books too men are portrayed as heroes and women as helpless individuals who can be easily manipulated.
The school environment too also contributes to gender inequalities and biases, which impact on female academic achievement. Boys from well educated and high status families are more likely to do well at school unlike girls where not the family’s social class and status which necessarily contribute to performance but other more basis factors such as career aspirations.
Nursing, Clerical work etc is viewed as male jobs while Scientific, technical and production related as viewed as male occupations. Men have been seen as more suited to politics and law. The views on classification of gender were share by both male and female students coming from rural and urban women – trended households and upper – class homes. Girls from upper class homes have more liberal views on division of labour in the family.
Liberals fight for equal access to health while radicals argue that health services must empower women. Medicalisation on health services has rendered women particularly poor one and powerless in controlling their health and bodies. Reproductive rates are therefore particularly curtailed, as it is a necessary prerequisite for women to control their own health and their bodies.
The Botswana parliament after a heated debate passed the Penal code amendment bill or the Abortion Bill in 1991. The amendments are to the effect that abortion is legal:-
When the pregnancy is as a result of rape, incest, defilement
When a child is likely to be born with serious physical or mental disease or abnormality
When the physical or mental health of a women is endangered by the pregnancy
The amendments fall short of increasing women’s control over their bodies. Increase rights were the agenda but women were highly impressed by what appeared, at first glance to be a very progressive move.
MARXIST FEMINISM
The scholars of this school of thought attributes women’s oppression to social class, race and ethnicity12, Capitalism imperialism and sexism to them are inseparable. Liberation of the woman is therefore liberation of oppressive social class relations. Fredrick Engel’s theory of “Origin of the family locate women’s oppression in their inability to participate in the public sphere. The assumption that liberation of women from domestic to public sphere would automatically contribute to liberation in every sense of the word was misplaced. In both the capitalist and the socialist it didn’t since women occupied a low paid job. Marxism is thus unpopular to socialist states and the developments in Eastern Europe due to the woman’s condition.
Reproduction concept has been proposed as an antithesis of the familiar concept of production13. The debate links production to economy and reproduction to the sexual system. Production and reproduction however takes place in both systems i.e. every mode of production involves reproduction of labour, social class and technology. For example the replacement of machinery is an example of reproduction in the economy. The formation of gender identity is an example of production in the domain of gender system but not all multi variations of social reproduction can be attributed to the gender system. Gender system is the domain of social life.
The Marxist feminist participation in reproduction/production debate is summarized as:-
Women are a reserve labour force of capitalism. Their lower wages provides extra surplus to the capitalist employer. They serve capitalism interest through management of family consumption. The underlying link between productive and reproductive activity operates on atleast 3 levels i.e the structural, community and household levels. Structural factors refer to political economic and social factors that pertain in each nation state in the region.
Community factors apply to localized situations in a specific geographic location.
Household dimensions refer to unique situations within the individual homes.
There is a relationship between housework and the reproduction of labour. Several researchers have argued according to Marxists that women’s work is not valued as recognised or economic statistics. They cite the fact that women’s social reproductive functions such as unpaid child care domestic work, care for the aged and so forth are vital for the regions economies.
Housework is not perceived as work by male-dominated society since no wage is paid for it. Marxists ultimately consider women’s labour as contributing to the final quantity of surplus value realised after surplus value is derived from unpaid labour of the worker. The broad economic picture should include women in the formal sector or subsistence farming. These women belong to the lowest social strata and suffer from numerous difficulties such as poverty, access to credit, sexual harassment, inadequate information and dissemination network etc.
Educational researchers argue that the reproduction considers schools as photocopiers. Schooling in the capitalist section is considered as reinforcing social inequities and solidifying social class structure. It also maintains a workforce divided by social class. Schools also confirm identities of success and failure. This ensures that the mass of future employer labour force accepts its low position in the overall labour process.
One variant views schools as producers. This approach maintains that schools do not only reproduce but go further to provide social class system. This view is supported by developing countries. Regional and gender differences are produced by Universal access to primary education.
Traditional division of labour too has been broken down by absence of men in the rural sector. Women’s workload has increased dramatically and most women found themselves in the informal sector while these in the formal sector were concentrated at lower levels. The contradiction is evident to Marxists that liberation of women from public employment would automatically lead to their Liberation.
The male dominated socialist states have not changed the situation of women but merely adjusted it to suit the needs of socialism. Female – headed households is a dilemma, which faces feminists from all walks of life. Marxist feminists on the ability of the traditional maxism to contribute to women’s liberation by allocating class oppression in the specific social-cultural milieu. They believe socialism can improve conditions of women but not liberation from men.
Interaction between class, gender and race or ethnicity has been one of the greatest challenges of Marxist feminists in the region. Marxist feminist has been particularly attractive to feminist scholars challenging male white dominated ideologies. and demanding development of black feminist theories. Keshia Abraham’s article opens up new and exciting vistas about who black women have been and most importantly what they think.
Feminism therefore as a political movement has had some significant impact on development strategies concerning women status.
In conclusion therefore, feminism has its roots in the region and claims that it is alien is disputed. Women’s oppression as already discussed has been located in the traditional African society, in the colonial system, in the neo-colonial nature of the African State, and in the patriarchal ideologies of the post – colonial African States.
The diversities in the feminist movement are reflective of the way different individuals have conceptualized women'’ oppression and the divergences in the proposals of the form of change which is supposed to be effected in order to liberate women from oppressive gender relations.
While Liberal feminists see oppression as emanating from unequal opportunity, the radical feminists question the primacy of male power. The Marxist feminists subsume gender oppression in social class.
Most feminists however seem to have blended Liberal view points, radical demands and Marxist analyses and emerged with an analysis which calls for empowerment of women.
Liberal feminists ignore power relations between men and women and focuses on correcting inequalities. Radical feminists don’t link up with economic needs of women in developing countries. Marxist feminism ignores gender as a source of malepower independent of social class.
Radical feminists have been criticised in attempting to share male power instead of changing it, unnecessary hostility and preventing from participating in the Liberation struggle and ignoring impact of imperialism and colonialism on the underdevelopment of developing countries.
Radical feminists and Liberal feminists ignore social class disparities in their analysis of gender inequalities.
WEEK TWO
GENDER AND THE CONSTITUTION
The term Gender denotes both male and female14. Our focus of study however is the woman. The reason for this is due to the fact that the society is generally male-dominated. The result of this is the control of men by the women. Consequently the woman is forced to submit to the authority of men and accept it without question. As a result of this, the woman is sometimes subjected to certain inhuman and degrading treatment. Their freedom is curtailed and they are prohibited from participating in the socially, economically and political activities in the society often contrary to their wishes.
SEX DISCRIMINATION UNDER THE KENYAN CONSTITUTION
The constitution is the supreme law of the land. The current constitution prohibits discrimination on all grounds except sex so to speak. Chapter 5 provides for fundamental rights and freedom guaranteed to every person in Kenya under S.70 irrespective of his/her race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex. S.82 prohibits any law making a provision, which is discriminatory either in itself or in its effect, defining discrimination in terms of race, tribe, place of origin or residence or other local connexion, political opinions, color or creed.
The draft constitution at article 35 on women provides: -
Women have the right to equal treatment by men, including the right to equal opportunities in political, economic and social activities.
Women are entitled to be accorded the same dignity of the person as men
Women and men have an equal right to inherit have access to and control property.
Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women is prohibited
The state shall:-
protect women and their rights, taking into account their unique status and natural maternal role in society; and
Provide reasonable facilities and opportunities and to enhance the welfare of women to enable them to realise their full potential and advancement.
Clearly from the foregoing whether this draft adequately addresses the plight of women as concerns discrimination is debatable. However, existing constitutional silence on whether sex discrimination is not allowed demonstrates the extent of its entrenchment in the society. Consequently, there exists no clear-cut operative law, which can be derived upon to challenge discrimination.
Governments have often felt that clear-cut illegalization of discrimination on the ground of sex would unleash a flood of suits in countries which are patriarchal and in which women are discriminated against routinely and sometimes as a matter of official policy15.
Discrimination therefore needs a clear provision in order to ensure that equality is achieved and just results give weak groups an opportunity for equality. Law therefore not only needs to be spelt out but also interpreted and implemented according to the intention of the legislator. This aspect will ensure that societal attitude gradually changes and women would not lag behind due to discrimination.
Culturally by virtues of being a woman, one has to contend with the fact that her development has been hindered by sex discrimination. In Southern Africa for example a widow should be indoors early before dark16. For people in the informal sector, this is the time that business is at its peak and therefore development is curtailed.
A lot of women have had to push through male hostility in their places of work and a number of times they give up and go back home. The dual duties i.e attending to household chores and working has also diminished women’s capacity.
In conclusion therefore women from the majority of the Kenya’s population and their contribution to the society far outweighs that of the men. The issue of sex discrimination should therefore be intolerable and their contribution must be recognized and supported. For the benefit of the society as a whole women’s rights have to be integrated into the law and consequently enforced. Women too should be made aware and encouraged to use the courts in redressing grievances. Women’s organizations too would have to take a principal role in women’s public interest litigation.
WOMEN AND HUMAN RIGHTS
Chapter 5 of the constitution guarantees fundamental human rights. These fundamental rights and freedoms accrue to humans by virtue of the same not courtesy of a self-proclaimed authority of a person or persons. Consequently, women’s rights are human rights and no man has the right to deny a woman these rights. In the present societal set-up women are denied rights by the state, organisations, individuals and the men en masse.
The draft constitution embroils the bill of rights and imposes on the state the duty to promote these rights and freedoms. The rights can only be limited in accordance with the constitutional provision. The draft constitution at article 31(1) outlines instances when these rights can be limited.
THE RIGHT TO PERSONAL LIBERTY
S.72 of the constitution provides for the protection of right to personal liberty. Women over the countries have had to contend with a denial of personal liberty. In Southern Africa for example widows should be indoors by sunset during the mourning period. In other cultures women are forced to stay indoors for a year. As one woman narrated, she boarded a bus when the mourning period was not over yet and when the passengers realised this, they ordered the driver to stop the bus and conveyed her back to her in-laws for confinement. In Afghanistan for example during the Taliban rule, women were not allowed to go out with any part of their body showing e.g hands, legs, face or without the company of a male counterpart17. If one went against this “law” any male was allowed to beat her up or more precisely to publicly flog the perpetrator.
RIGHT TO CITIZENSHIP
Citizenship is also one area of discrimination against women. In Kenya, Kenyan woman cannot pass on citizenship to her foreign husband by virtue of marriage while Kenyan man can pass citizenship.
The draft constitution at article 20 provides that a person married to a Kenyan citizen for a period not less than 8 years is entitled on application to be registered as a citizen of Kenya. Citizenship however is not lost through marriage or the dissolution of marriage. This article therefore purports to grant full rights to the woman to confer citizenship to her foreign husband by virtue of being married. Article 26 also allows a child or a widower among others to enter and reside in Kenya subject to the provisions of an act of parliament inforce.
However, women all over have had to fight this form of discrimination. Unity Dow a practising advocate in Botswana sought to challenge Botswana law that purportedly denied her the right to pass citizenship to her child. She hired an advocate to present her case that the law violated her right as a human and more so as a woman. The provision was amended and Botswana women could now pass on their citizenship to their children.
The Registrar of marriages relying on S.90 & 91 of the constitution requires woman to be accompanied by her husband while applying for an Identity Card or that the woman should obtain consent from the husband to allow her children travel on her passport. This clearly is discrimination and therefore calls for reform.
APPLICATION OF PERSONAL LAW IN FAMILY RELATIONSHIPS S.82 OF THE CONSTITUTION
In Kenya, there are four family law systems i.e Christian, Hindu, Islam and African Customary Laws.
The law to be applied for purposes of marriage, succession and inheritance is the particular family law system the litigant belongs to. However, these laws have been culturally structured to specifically cater for a diversity of interests. Some of their provisions are discriminatory against women and do not recognise the rights of the woman as approved to the men.
An African man whether married under statutory law is potentially polygamous and neither the woman nor the law can ensure monogamy. An interesting concept is the fact that no African man has been charged with bigamy despite the fact that there have been so many purported cases of the same. Islam too condones polygamy and the woman cannot ensure monogamy.
Under customary law African men have the right to chastise their wives incase of witchcraft, bad behaviour, adultery, failure to carry out domestic duties. Some women even believe that if their husbands do not chastise them then he does not recognise their presence and they may even provoke them to do so much to the detriment of women activists who are trying to lobby for women’s rights.
There is no age limit under African customary law for purposes of marriage. Infact children too are betrothed at birth. The woman therefore does not have the freedom to choose a life partner. Under Islamic law the consequence of the age limit is that minors can get married off at a tender age.
Under Islamic law, a Muslim woman is forbidden to marry a non-Muslim man while men have the liberty to marry any woman who subscribes to the holy book. It is important to note that upon marriage of a non-Muslim woman to a Muslim man, he or she must convert to Islam.
Under customary law only women get punished for adultery while for the men it is almost a “Legal” action. Islam too has some radical penalties for the same. A recent ruling in Nigeria ordered a woman who had purportedly committed adultery and conceived as a result of being raped to be stoned to death.
Under Customary Islamic law women cannot absolutely own property of the marriage. Upon divorce the women are not entitled to any property or the issues of marriage. African and Islamic children generally goes with the father.
Divorce in customary law is extra-judicial and one party can unilaterally bring a divorce proceeding. Upon divorce the man has no duty to maintain the wife. As further the woman may be required to return the dowry and go back to her home without any property or issues of the marriage.
As concern payment of dowry, in Islam this belongs to the woman. In the modern society where dowry payment has been commercialized, the man understands that it gives them control over the women.
Proof of existence of marriage under customary law is by way of an affidavit. Registration of the same does not exist, consequently statutory measures are resorted in proving the marriage.
Conversion of marriage from African to Islamic, Hindu or Christian is allowed but conversion of the vice versa is not allowed. Consequently this fact acknowledges the inferiority of African customary law and the superiority of the rest over the same.
There is need for reform of the above provisions. However achievement of the same may not be realistic. This has been evident in the attempt to harmonize various succession laws, which met with opposition from the Muslim community leading to their exclusion from the Law of Succession Act. The affiliation bill too had to be repealed due to other factors such as there were some men with no means of supporting their children born out of wedlock or that one woman would end up getting even three support orders from different men and one man could be ordered to support an extra two women due to the fact that they have this children. Precise ascertainment of whether a particular man is the father through scientific procedures or otherwise would be a rather expensive process and some men or women would be resigned to the fate whether just or not.
PROTECTION FROM SLAVERY AND FORCED LABOUR
S.73 of the constitution guarantees this right. Article 42 of the draft constitution too accords this right.
Traditionally there has not been age limit for marriage and despite the repugnancy aspect of the practice, a number of forced marriages are still perpetuated away or in full view of the law.
Under Islamic community especially this is propagated and the courts “lack jurisdiction with which to administer this constitutional provision despite supremacy of the constitution. It is also important to recognise the fact that attempt to harmonize marriage laws was met with agitation from the Muslim community.
Children too have been employed as house helps who sometimes mistreat and overwork them. This could be due to poverty. This is usually done against their will as they often desire to go to school and play just like other s of their age.
In her article, Keshia Nicole outlines the stories of two women18. One woman only 18 was sent by her mother to work for an old man against her will. Due to repeated rape by the man she got pregnant in the sixth week of these repeated assaults on her body and had to get married still against her will. She didn’t speak out since everyone would have thought she was a prostitute due to the fact that she was not attached. The other woman leaves home and enters into a prostitution den since she did not have anyone or anything for support. She is drawn into prostitution to survive and to avoid the wrath of her boss. She attempts to withdraw and hide but she is raped anyway in a house of prostitution where there is no recourse, no sympathy, and no safety.
In conclusion, females whether children or adults in marriage or outside should not be held in slavery or forced labour whatsoever. The society should strive to eradicate this and the state should ensure that women have the freedom of choice by empowering them especially economically so that they are independent.
PROTECTION FROM TORTURE INHUMAN OR DEGRADING TREATMENT
The constitution and the draft constitution both prohibit this. Other provisions concerning the subject have also been outlined. Even international instruments and judicial pronouncements have upheld human rights with regard to protection from torture, inhuman or degrading treatment. The women too are entitled to this protection and the culprits are the men. Often the women end up with psychological disturbances and have to seek professional assistance.
Some of the instances include use of women as sex objects or portraying them as so. Forceful marriage is also an example of this. Rape, indecent assault, chastisement, female genital mutilation, sexual harassment, violence against women, fathers sending away their pregnant daughters, men deserting their pregnant wives or girlfriends all go towards negating the spirit of this particular law. The Taliban regime in Afghanistan gave all men the power to beat up any woman found on the streets with any part of her body exposed.
Nearer to home is the concept of alcoholic men who come home drunk and late in the night and demand that their wives wake up to cook food and give them.
Under Botswana laws, a woman separated from their husbands for 25 and 34 years respectively must attend their husbands’ funeral. A woman who had been separated for 35 years from the husband was summoned and pressurized to attend his funeral. She was asked to sit at the head of coffin but refused and the elders demanded a goat from the deceased family. After the funeral, the deceased brothers19 seized and subjected her to all the ceremonies. That was degrading considering the length of time that had elapsed.
PROTECTION AGAINST ARBITRARY SEARCH OR ENTRY
The constitution further outlines instances where the same can be dispensed with. In some of the African countries upon disembarking from the plane, some searches are quite arbitrary and as one writer put it “…the searchers hands interact with certain parts of human anatomy reserved for specific people…”
The 4th amendment under the US laws under the Law of Evidence empowers the courts to disregard all evidence obtained through illegal searches whether it adequately proves the case or not.
This provision is more or less consistent with the right to privacy. This is outlined in article 43 of the draft constitution. Every human is entitled to this. Communications and private affairs cannot unnecessarily be revealed.
THE RIGHT TO EQUAL PROTECTION OF THE LAW
Apparently, the very law that is meant to protect the women is often the greatest negation in the woman’s quest to attain equality. All persons whether disabled, older members of the society or children are entitled to equal protection of the law. However, instinctively the law seems to tilt towards the masculine side.
S.77 provides for a fair trial. The same is engraved in the draft constitution, which apparently guarantees Human rights to an accused person. The international community also accords this right through the UN declaration on human rights and especially in the doctrine of denial of justice. Both aliens and the host country’s citizens should be accorded equal protection of the law. Women should absolutely not be discriminated against.
Freedom of conscience too is embedded in the constitution. In a male dominated society, hegemony of family over women’s lives and societal perception of how a woman should behave curtails a woman’s freedom of conscience. An example is that a woman is not supposed to initiate courtship and an instance where a woman does this, she is considered unsuitable for marriage. Muslim women for example cannot marry non-Muslims unlike their counterparts. One woman when asked what charges she expected her choice of candidate to initiate said that “,,,,,,wazee wa kijiji ndio wanajua ni nani ndio anaweza kuongoza vizuri….” (The village elders are the ones to decide who is a better leader20. This demonstrates that women have been so brainwashed that they cannot think for themselves and even leave the thinking to be done by the man.
Freedom of expression too has evaded the women folk. Traditionally a woman who spoke where men gathered were stigmatised and condemned. Even today, the women still experience the same but in a milder form. Their mode of dress is prescribed and they must not depart from the prescription. In “Important and serious matters” as the men sometimes claim, women are not allowed to attend such meetings as their opinions are considered inferior and therefore nor worth being listened to. The council of elders, which presided over important matters in the community only, consisted of men.
Freedom of assembly and association has not often been granted to woman. This concept is gradually diminishing with the increase in women organisations to champion for women’s rights, development and empowerment. Traditionally women were so loaded with household duties and childbearing that they hardly had time for assembly and association. Those who did, could not dare violate their husbands as this could attract chastisement or even a divorce proceeding.
Freedom of Movement. Women are kept under surveillance by their male counterparts. Women almost have seek their husbands permission even to visit their homes. Their freedom of movement is curtailed, as some men tend to think that they could be prostituting.
The draft constitution gives every person freedom to enter into go out or reside in any part of the country.
PROTECTION FROM DISCRIMINATION
Discrimination is perpetuated against women whether in or outside marriage. S. 82 protects persons from discrimination. The most affected class of persons are the women since discrimination on the grounds of sex is quite prevalent in the society. The concepts of discrimination have been earlier discussed. The constitution guarantees women protection from discrimination.
The draft constitution at article 38 prohibits discrimination in marriage, the family law system and also makes provision that a person, women included shall be married only by their consent.
At the international level the United Nations convention on the Elimination of all forms of Discrimination against Women reaffirms the principle of the inadmissibility of discriminations. It is important to note further that it specifically mentions sex as a ground for not discriminating against a person.
The instrument proclaims and I quote
“Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and if humanity…”
The instruments further imposses obligation on the specific states to undertake to incorporate the same provisions in their national laws21. They shall ensure women’s participation in the political, social, economic and cultural fields. They shall ensure women are on equal terms with men and an opportunity to represent their government, change or retain their nationality, equal rights in the field of education, eliminate discrimination in the field of employment, health care etc.
State parties shall also undertake to eliminate discrimination in other areas of economic and social, take into account particular problems faced by rural women and their significant roles, equality with men before the law, eliminate discrimination in matters relating to marriage and family.
Further a committee established shall monitor the progress of the member states to ensure the spirit of the law is upheld.
However it is important to note that despite the reaffirmation of women’s rights at the national and international lever, the dignity of women, without fear of exaggeration, is constantly flouted in certain African countries on a daily basis.
It is therefore incumbent on governments to undertake to respect their constitutions and the various treaties they have signed and ensure that woman enjoy all their rights. For those governments which have not yet done so there is need to mobilise to have them ratify these treaties.
Unfortunately Kenya has not been very instrumental in implementing these international instruments at national level despite the fact that she ratified them. This has been due to lack of commitments coupled with cultural, traditional and religious hindrance, Kenya being a multi-cultural country comprising of different ethnic groups since the people are not homogenous. So implementation of the conventions has presented difficulties to our government.
WOMEN AND THE RIGHT TO PROPERTY
Apart from a few middle and upper class women, women on the whole do not acquire and own property. Culturally, women are not expected to own property and indeed under customary law women do not own land.
In Kenya, decision of matrimonial property occurs in accordance with the Married Women’s Property Act, 1882 (an English statute applicable in Kenya). It applies to marriage under all the four systems, although the majority of women married under customary and Islamic laws are ignorant of this fact.
The married women’s property Act at S.17 provides that in any question between husband and wife as to the title to or possession of property either of them may apply to the high court or a county court and the judge may make such order with respect to property in dispute…. as he thinks fit”.
Property acquired by the women before marriage goes to her upon divorce and vice versa. Even in marriage property acquired by the women out of her individual efforts belong to her upon divorce22. In Pettit v. Pettit (1970) AC 777 at pg 793 Lord Reid said,
“The meaning of the section cannot have altered since it was passed in 1882…and I find it incredible that any parliament of that era could have been intended to put a husband’s property at the hazard of the unfettered discretion of a judge…..if the wife raised a dispute about it”
Lord Morris too in his statement at pg. 798 affirms that “…The procedure was devised as a means of resolving a dispute or a question as to the title rather than as a means of giving some title not previously existing”.
In summary the wife purchased the freehold in a property and it conveyed into her name. The husband undertook internal decoration work. They court considered whether this would entitle him to a beneficial interest in the property.
It was held the husband was not entitled to an interest in his wifes property merely because he had done in his free time jobs which husbands normally do. Since improvements carried out were generally of an ephemeral character and there was neither fraud nor a mutual intention or agreement for the husband to gain a beneficial interest, the husbands claim would fail.
Upon divorce matrimonial property as we earlier mentioned, is divided according to the proportion of contribution by the parties. The major problem in division of matrimonial property however is that the domestic services as a housewife are not, as yet in Kenya, counted as a contribution towards the purchase of matrimonial property.
Although the wife gives emotional and psychological support and cooks and provides for the man and children, such work is not recognised by the law as a contribution by her in the home. It is however irrelevant if the woman resigned from a paying job to take care of the family.
In the cotrans Law of Marriage and Divorce pg. 17, para 7(c) states
“In the event of a dissolution of marriage the wife is entitled to take all her property, whether acquired before or after marriage. Property obtained through the joint efforts of the husband and wife is divide between them.”
At pg. 21 paragraph 5, he writes “Modern development. Any of the wife’s self-acquired property, i.e property which she acquires during the marriage through her own efforts, remains with her upon divorce”. The implication therefore is that the indirect contribution of the wife is considered during division of property. The husband may not have evidenced that the wife has a share and that property registered in the husband’s name is held wholly or partly in trust for her virtue of its acquisition as a joint venture.
Recent decisions by the judge have demonstrated a radical departure and the admission that indirect contribution in form of tilling land as in the case of the rural women, household expenses including expenditure on clothing for the wife and children and the education of the children which the husband would otherwise have had to pay.
In Tabitha Wangeci Nderitu v. Simon Nderitu it was held among others that all a wife has to show is that she is married to the woman at time of application and property was acquired during subsistence of marriage and that she contributed either directly or indirectly. The sitting judge must further account for the form of back-up service on the domestic front rather than direct financial contribution in determining the wife’s interest in the assets under consideration. Property jointly registered is divided in equal proportions but if jointly acquired but registered in husband’s name then it must be divided according to the spouses’ agreement whereas an implied, constructive or resulting trust may be imposed.
Apart from the event of divorce, another area where women’s property rights are derogated is widowhood. A number of customary laws as already discussed deny women any property rights. In the event of the death of the husband, usually the in-laws move in and confiscate the property leaving the widow and her children usually with nothing.
PROPERTY RIGHTS OF A WIDOW
Major problems encountered by widow has to do with society’s perception of a woman and her general status and in society. The assumption as we saw earlier is that women have no property rights at all.
In Kenya there have been a lot of incidences where there is a scramble for the deceased body. The perception is that whoever burries the body inherits the property. Some people even battle over who should take care of the deceased while he is sick.
The concepts of wife inheritance too denies the widows their property since a stranger takes over the property and the woman has little or no say in the management. Eventually the inheritor may end up wasting away the deceased property or illegally transferring it leaving the widow and her children with nothing.
In Southern African countries, if the woman refused to be inherited they are dispossessed and property and the children all confiscated23. Male members of the deceased person’s family always want to exercise control over the widow in this way and may resent widows who are inclined to be independent. In the case of Mrs. Muasiri, a Zimbabwean widow opted to have the deceased’s sister as her link to her husband’s family as opposed to Levirate marriage24. The requirement in most countries that the estate not be interfered with until one year after the burial of the deceased can be very inconvenient for widows particularly in relation to accessing bank accounts and other property which the family needs for its immediate sustenance.
However, the foregoing take place incase a person dies intestate. When a person writes a will according to the Law of Succession Act then inheritance is dispensed by the courts in accordance with the testament. Under the Customary Law however, irrespective of the will, all dependants of the deceased, subject to the discretion of the court are a beneficiary of his estate. All women legally customary wives whose counterparts are women married under statutory law are also considered wives for purposes of succession25 married to the deceased too are entitled to benefit out of the estate.
SECTION 3(5) AND THE RIGHTS OF A WIDOW
In 1981 the male dorminated parliament intervened and added paragraph 5 of section 3 of the Law of Succession Act.
This paragraph added by Act No. 10 of 1981 provides: -
“Notwithstanding the provision of any written law, a woman married under the system of law which permits polygamy is, where husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for purposes of this Act and in particular Sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act”.
Men true to their nature are potentially polygamous. Thus despite the confinement of statutory law to monogamous marriages, the provision is more academic than practical. This is evident that despite the fact that a man marries under statutory and customary laws men have never been charged with bigamy.
The effect of Section 3(5) is to entitle women married under customary law whether subsequently or before the statutory marriages, to be entitled to the deceased estate as dependants.
In the matter of the Estate of Reuben Nzioka Mutua, Probate & Administration cause No.843 of 1986 (unreported) it was held that the first wife married under customary law was not entitled to inherit any property from the estate of the deceased.
In Re Ogolla’s Estate (1978) KLR 18 and Re Ruenji’s Estate (1977) KLR 21 the courts relied on Section 37 of the marriage and correctly held that the deceased persons were not capable of contracting other marriages during the existence of their statutory marriages and that accordingly the two women who had claimed to be entitled to a share in the men’s estates were not wives in law and could not inherit.
The Section was clearly intended to reverse the position in Re Ogolla and Re Ruenji which clearly violated a woman’s right to property the governing marriage law not withstanding. The subsequent case of Reuben Nzioka Mutua was contested during the time when the section was in force but the magistrate refused to apply the provision interpreting it to mean that it caters for women under customary law rejected and abandoned by their husbands, during his lifetime. This decision was overturned at the Court of Appeal which stated that the customary wife was entitled to inherit from the estate since section 3(5) applied “Notwistanding the provision of section 37 of the Marriage Act…”.
In conclusion therefore Re Ruenji and Re Ogolla as much as they did violate a woman’s right to property they were good and conclusive at the time they were enacted. The trial court however erred in disregarding section 3(5) in Reuben Nzioka’s case thus it was bad in law. The court of appeal upheld section 3(5). Perhaps the award would have been different had the appellant not been a working woman with substantial amount of property. The essence of this ruling, be that it may, considering all the other factors in question the court stated that “….only because we want to obtain that objective, namely not to disinherit a widow….”
The interpretation adapted by the court of appeal is most desirable as it extends protection of S.3 (5) to women married under Customary law whether before or after statutory marriage.
WEEK III & IV
LEGAL CONSTRAINTS IN THE SOCIO-ECONOMIC DEVELOPMENT OF WOMEN
A research analysis of Laikipia discusses these constraints and how they impact on the socio – economic development of women.
The Property rights of women generally and in marital situations
Traditionally women have no legal rights over property. Property ownership resides in men even when their exists overwhelming evidence to show that women are responsible for most of its accumulation. In Zimbabwe women are still regarded as minors and cannot own property1.
In Laikipia, research finding and analysis evidences that land belongs to the men so do the livestock with possible exception of the poultry. Men can dispose property without informing women2.
Land is generally registered in the man’s name, except where the family wants to have access to more land in land buying company. However control of such property still vests in the man, as he seems responsible for taking decisions as regards transfer of such land3.
Women working in paid employment have their salaries controlled by the men and after such salaries are deposited in husbands’ bank accounts or given to them in cash. Unmarried women are able to exploit their property although their male relatives sometimes make demands on them. Some senior married women employees in government, local authorities and private sector have limited autonomy regarding disposal of their salary and earnings. Further the business in the district are run and managed by the women. Men come to appraise the profits, which is ploughed back leading to their destabilization.
The women also form women groups and operate merry-go-rounds. So that they may be able to begin small business although the resultant proceeds are enjoyed by the whole family. Men argue still that they contribute to the initial capital4.
Women lack tangible security and cannot mobilize loans to enable them buy property. Moreover where a married woman wants to buy property, she will normally buy it through her husband to ensure, inter alia, ‘domestic tranquility’.
Divorce and Division of Property
Matrimonial property jointly acquired is divided between upon divorce. Under customary law where divorce is extra-judicial women end up with no property unless they move the court5. Under Islamic although divorce is extra-judicial property given to the woman by the husband may be retained by her. This property is limited and thus may be of dismal value.
For subdivision to occur currently, the wife has to show she directly contributed directly towards its purchase6. Only women in salaried employment may be able to do this.
Among pastoral communities many women never think they should get anything upon divorce. Generally, in Laikipia women can have what the man chooses not to keep. Among the Maasai the man transfers the woman to another “boma”, giving her animals to rear for his male children7.
Acknowledgement of domestic work as a contribution is important albeit physiologically. Without this husbands come to expect their wives to work free for them and believe they are the only ones who work. Women working outside the home is more self-confident although they are sometimes more self-confident. The housewife is totally dependent on the wife believing that her work is no work. The invisible work should therefore be acknowledged as work on its own right8.
Property registered under the wife can be claimed by the husband to be so in her capacity as a trustee and therefore retransfer can occur. Property owning women therefore must ensure that registration is under her name in her own right.
Property rights and cohabitation: The legal constraints
Marriage in Kenya is recognised under the four family systems. For the courts to ascertain property rights, a couple must have complied with the formal and essential validity under any of the systems. Where none can be construed, the courts must presume a marriage subject to a number of circumstances and provisions9.
The legal constraint is to the effect that presumption of marriage is rebuttable thus denying a woman certain property rights that would have accrued but for the provision. Technicalities can also arise such that a couple can live under the perception that they are married and when such eventualities like divorce or death the reality suddenly downs that they were not validly married.
The law in this sense operated to determine who is the wife and even where the law presumes cohabitation, the same can be can be rebutted. The eventuality is that the woman is entitled to no property and the man is presumed to be unmarried. The issue of the marriage are however considered dependants under the succession law10.
In some instances judges tend to presume cohabitation where there are issues of marriage. This is discriminatory and the law should operate to presume cohabitation universally regardless of existence of issues of marriage or not.
In Southern Africa for example, the in laws determine who is the legal wife in case they did not marry under customary or general law. The in-laws decisions is usually perceived as biased towards the females since they are inclined to favour the males as he is their relative11.
Consequently, there are no clear rules as regards this kind of relationship commonly known as come-we-stay. Women in these relationships have to look at other laws e.g the Contract law, as regards matrimonial property. Marriage laws in itself does not provide any solutions.
A study undertaken in Laikipia evidences that this form of “marriage” is prevalent due to the army barracks. It was not clear what relationship subsists between such couples. There is a problem where there are issues of the marriage and the men may be transferred to other barrack leaving the women with the burden of raising the children12.
The Law of Succession
A testator of a testatrix can will away his or her property. The property, further can be willed away the dependants regardless of sex.
A testator too under the same Act if not adequately provided for can apply for reasonable provision.
However practically most land is inherited by men. Even the women who are ignorant of the law leave the land to their sons believing that the daughters will be given land by their husbands to use and not own (traditional perception).
It is important to note that succession law only operates where the testator/testatrix wills away his/her property in accordance with the succession. Incase deceased dies testate, the applicable law is the customary law, which as we have seen is discriminatory, in every aspect of the word to, the woman.
In testate succession still, the courts have to decide on essential and formal validity of the will or, in the case where the testator purportedly revoked a subsequent or proceeding will, which will is valid and applicable.
In Rufus Ngethe Munyua (Deceased) Pubic trustee v. Wambui13, the High Court held that under Kikuyu Customary law absence of some relatives does not invalidate the will. The deceased had also adequately provided for his dependants reasonably. The Courts gave precedence to customary law and fell back on written law to fill the gaps. The deceased did not provide for an administrator (muramati) and so as to give effect to the oral will the court fell back on the public trustee – an institution created under written law.
Reasonable provision had been made indiscriminately In Mary Wanja Gichuru v. Esther Watu Gachuhi14 appellant contested that as a married woman, the respondent was not entitled inherit her father’s land under Kikuyu Customary law. The judge ruled there was no proof of a valid customary marriage having taken place and found in favour of respondent.
Section 3(5) makes provisions for wives married under customary law whether their husbands had contracted previous or subsequent monogamous marriages.
In Irene Njeri Macharia v. Margaret Wairimu Njomo and Pratrick Murithi Harrison15, it was held that section 3(5) operated as mentioned above. That she was entitled to inherit property as she had other property to her name and was in salaried employment. The first respondent too could not be deemed as a wife for purposes of succession. On appeal the learned judges said that the trial judge had made a ruling albeit to disinherit the widow. The court awarded Kshs.10.00 to the appellant and ordered the rest of the money to be left to the issue of marriage namely Jacklyne Macharia to be invested on her behalf in the manner previously ordered by the trial. The court cited Elizabeth Ndolo16 v. George Matata Ndolo and stated that the essence of the ruling was “…to attain that objective, namely not to disinherit a widow….”
As we earlier indicated, perhaps the position would have been different if the deceased was neither in salaried employment nor owning several property, with regard to monetary distribution.
From the foregoing there is a clear demonstration that the LSA identifies a surviving spouse in a monogamous union as the most suitable person to take charge of a deceased’s property. This is a positive departure from the African customary laws identify the eldest male member of the family.
The surviving spouses consequently get a lifetime interest in the property and in the women, the interest is terminated upon re marriage. This is discriminatory since it gives women only a life interest in the property. They cannot sell or dispose of any property they inherit they inherit from their deceased’s spouses property. The widows right to remarry is curtailed by this provision since she stands to loose all property inherited from the first marriage.
Another constraint is with respect of S.3 (5). This is a departure from S.37 of the Marriage Act. This provision undermines the institution of marriage by encouraging the breach of the institution of marriage and that it denies women security in marriage, which they seek by transacting monogamous marriage. It is later that they realise that they realise that the matrimonial property has to be shared with persons who have disrupted the monogamous marriages or persons not known to the husband or children before the husband or father died.
On the other hand the law protects women from the polygamous nature of men. The new perhaps only recognises that other marriage for purposes of succession only.
The facts in Irene Njeri Macharia are as follows: -
On 31st December 1978, the appellant and the deceased went through a Christian ceremony of marriage under the African Christian Marriage and Divorce Act Cap 151. The deceased having contracted a previous monogamous marriage lost the capacity to conduct another marriage while the first one still subsisted. After their marriage, the deceased and the appellant lived together until January 1989 when they legally separated.
The deceased then took on and started to cohabit with the first respondent. In their opinion, the two were married although there was no evidence that they had undergone some ceremony of marriage. They begot a daughter by the name of Jackline Wanjiru Njogu. The dispute in the superior court was how the property left behind by the deceased was to be shared out between the appellant and infant Jacklyne. The view held by counsel for 1st respondent was not a wife for purposes of Law of Succession Act.
The judge however held that in the circumstances of the case, the appellant die not merit to share in the deceased'’ estate as she had other property in her name and she was paid in employment whereas the infant Jacklyne was growing up and would need the property to cater for her upkeep. On appeal the court of Appeal concludes that S.3(5) Cap 160 was intended to protect women married under both customary and statutory law.
The Court of Appeal awarded Irene Kshs.10 and the rest was left to Jacqueline arguing that like shylock she is entitled to her pound of flesh from the deceased’s estate and “we grant her Shs.10”
The court used a lenient that to determine who is a wife which posses a grave concern which undermines the position of women.
The Succession Act looks at children independently and almost literally denies Irene a share of the property.
WOMEN AND EMPLOYMENT LAW
Only a few are involved in gainful employment in Laikipia. A small number of women are employed in the ranches, particularly to herd goats and sheep and undertake milking of animals17.
Some of the complaints included inadequate pay, lack of housing allowance overwork (often they work for fifteen hours a day), unpaid overtime, absence of leave, lack of respect by employers (often including sexual harassment by employers and customers), perpetual temporary employment status, arbitrary termination of employment in which terminal benefits (notice pay, overtime, leave) are not paid, denial of maternity leave etc. Labour officials said that complaints only come after termination of employment reason being that they fear sacking due to scarcity of jobs.
Housemaids in Nanyuki town complain of long hours, inadequate pay and periodic sexual harassment.
In both the industrialized and developing world, women generally work in the worst paid, least skilled, most in secure jobs. Women with secure waged employment rarely receive equal pay for work of equal value.
Women have less access to training and educational opportunities as well, which further hampers their ability to cope with men in the job market.
Some employers prefer to employ men as opposed to women. The argument is that the women will lead to the employer incurring losses in form of paid maternity leave yet their will not be any output in respect of that particular employee.
WOMEN, WOMEN GROUPS, CREDIT AND COMMERCE
Women groups are faced with parental problem of identifying the appropriate form of business. Further many of them are not even registered members are wary of the perceived government scrutiny attendant to registration. Mere registration by the Women’s Bureau of the Ministry of Culture and Social services does not confer a business status to the women’s groups18.
In Laikipia for example the groups lack legal personality and find it difficult to operate in the business. Their rights and duties too are indeterminate, as they are merely amorphous entities.
Some of the shortcomings include the fact that these groups hardly have any principle or formula regarding profit sharing majority of the groups of the groups have not share their profits. Further, more when a member exists, there are no rules to determine her portion of the investment and future profits; in merry-go-round activity if members had contributed money for her but completion of the circle has not been realised, it is not clear what duty, if any, she owes to the group.
Leadership too runs ad infinitum. The relevant ministry has regulation seeking leadership turnover every two years but in Laikipia only death removes leaders from office.
Meetings and records too are irregular and record keepers are barely illiterate. Men allowed to join the groups are often accused of misappropriation of funds and other sabotage.
Women’s groups contribute dismally to the economic development of rural areas. They constitute socialization points and are desperate attempts by women to mobilize themselves where the free enterprise system and government have not succeed. They are primarily an extension of traditional subsistence efforts by women. Therefore they are men’s organisations with women faces and do not adequately address women’s issues.
With respect to credit women cannot mobilize titles for security, they have to rely on husband’s or relatives security. Since such borrowed security can always be withdrawn, the business venture rests on shaky ground. Lender and prefer giving credit to men and women are generally not given priority in relation to business loans. Even where loans are granted, the fact that most of them are illiterate do not allow them to make wise business decisions. Some of them have to go back to their husbands for the decisions, therefore their businesses are likely to suffer as they cannot make wise business decisions.
It is important to not however that even where women posses titles and can access loans, they view loans with apprehension perhaps feeling insecure in their ownership of titles and prefer not to jeopardize it at all.
Through women groups women can be interested in investment opportunities thus loan giving institutions may wish to extend loans to registered groups since the risk is spread among a larger number of clients.
The Role of Law and the place of Customary Law in ensuring women’s access of production resources
Land is important as a production resource. The law grants equal rights to both males and females. Women can therefore own land in their own name.
In the pastoral communities women are considerably distanced from land as a natural resource and means of production women as they do not on the whole, own animals. Do not have significant use rights on land19.
In those areas where land is still unregistered, men are deemed owners under customary law, whereas women have use rights. One problem noted about registration of such land is that women’s use rights are not reflected in register thus women have to rely on men’s benevolence for continued use of the land. The implication above is that although registration of land vests its absolute proprietorship in the registered owner, in many communities in Kenya, land use has continued as if customary land tenure exists. Resultantly women continue to exercise customary use rights even though they are not officially recognised and can be terminated through transfer of the land by the man.
In the Maasai Community, customarily if a man divorces a woman, he moves her to another boma and gives her cattle in order that she may use them to care for the male children of the man. This practice services to harness resources for the purposes of production. The detriment here is to the effect that she has use of the land property when the male children are minors and when they grow up they “reposses”. One other aspect is that the female girls are not provided for hence they do not have access to production resources inherited from their parents.
Government Policies
Government policies have greatly affected the development of the girl and the woman. These policies are clear-cut policies on various issues and they cannot be identified. The gist of the universal primary education policy in the 80’s was one such policy. The parents enjoined to build schools and the parents promised to provide the teachers. 8-4-4 was introduced and was oriented on self-reliance and reaching practical and need based skills.
The policy is generally gender-neutral however there have not been attempts to improve the educational development of women. Thus the drop out rate is high. Regardless of its neutrality it impacts negatively on women, it wrongly assumes both boys and girls are in the same position consequently increasing the disparities on the girl. The negative impact thus destroys her life causing her not to get a good job and she would not be able to educate her children. It is a viscous cycle. The women’s enjoy level should be towered although it is not a government policy and can be withdrawn.
Structural Adjustment Policies
These are donor policies developed by their institutions as conditions for development loans. These may include changes such liberalisation of trade controls, development of export oriented economies thus put a lot of resources in under-export oriented economy20.
The government is required to reduce its manpower for efficiency, its budget in the social department to let people cost-share in health, education and other related fora. The government is therefore required to reduce its expenditure e.g reduction of student intake in the universities.
These SAPs impact heavily on the woman21:-
In the health sector the women depend on the free medical services. As a result they cannot compete with their wealthy male counterparts who seem to glide through to cope with united health care services.
Men constitute a greater percentage of the working population in the formal sector. These policies sometimes often lead to dismissal of men from employment where they go home and take over the little income the man was getting. There is thus pressure on the woman to provide for the family.
The export oriented programmes sometimes lead to families selling their land to large scale farmers to be able to sustain themselves as their domestic production is not sufficient to satisfy the export oriented economy.
Imported goods are bought by the local people who spend as much as upto half of them in come on the same. This leads to devaluation of the local currency and rise in the prices of the imported products.
The cost of education and other expenses become high and sometime the family has to dispose of its small land to large-scale farmers so as to be able to sustain themselves.
SAPs lead to mass unemployment. People sell the little resources they have. The women suffer most as the land, which they mostly rely, was a source of income is taken away from them.
In conclusion SAPs has shifted government strategies of incorporating women in the development process to a strategy, which focuses on efficiency22. SAPs have shifted the costs of reproduction from the state to the household and thus increased women’s labour burden. SAPS are also impacting on women’s welfare in a negative way, especially in the increase of maternal deaths, as well as increasing school drop out rates for females and SAPs indeed undermine the minimal liberal achievements of the 1970’s and early 1980’s. SAPs is therefore seem as a backlash to feminist struggles and demands.
For SAP to promote socio-economic development of women, it would need a number of reforms. More human-faced SAPs would be a step forward.
The trouble is that especially the government often talks about this fact yet needless to say, only NGO’s have so far been attempting to implement this. SAPs should take care of the vulnerable groups such as the women.
The IMF and the world bank have adopted the poverty reduction policy due to the fact that past programmes have served to breed mass poverty. Any funds received must be directed towards a policy with an intention to reduce poverty.
WOMEN AND LEGAL AWARENESS
In every society, there is always a gap between rights as the citizens enjoy them. Social and cultural in addition to legal constraints associated with male hegemony in patriarchal society result in women being more ignorant of their rights than men.
The ignorance usually exist in the area of subdivision of property. Most women are not aware that subdivision of matrimonial property should be perpetuated under the Married Women’s Property Act 1882, that they are entitled to maintenance both during marriage and upon divorce, entitlement to their husband’s estate as his executor among others.
A few programmes exist to remedy this anomaly and a number of women’s organisations23 have started lobbying for awareness among the women through education and other for a.
Majority of programmes concentrate on the citizen generally.
A number of programmes e.g. coalition on violence against women organised recently by the public law institute, women’s bureau and women’s legal education Task force have aimed at improving women’s awareness.
Women’s organizations particularly at the local level should emphasize legal awareness programmes among the women. They can be used adroitly for purposes of engendering legal awareness and other conscientization. Legal awareness should perhaps be a constitutional right, which will therefore improve a duty on the government to ensure every citizen knows his or her rights. Women politicians too have to ensure that women are mobilized around issues of their rights.
Translation of the convention on Elimination of all forms of discrimination against women into domestic law is expected to impact positively and significantly enhances women’s rights in Kenya. As we mentioned earlier citizens and especially women must know their rights in order to fight for them. Programmes of legal awareness must be prioritized by women’s organizations. More co-ordination among women’s organisations in Kenya is mandatory for effective lobbying to be achieved.
Other organizations like women in law and development in Africa, a charity lobby group on issues affecting women in Kenya and the centre for Legal Information and Communication in Kenya hopes to create more awareness on legal rights for Kenyans. It is important to note that the two organisations played one role in formulation and lobbying of both the equality bill and family protection bill brought before the eighth parliament.
Traditional conceptions of the role of a woman in the society
The role of the woman traditionally involved procreation. Together with their male counterparts she is supposed to ensure her husband’s lineage does not become extinct by procreating as frequently as long as the husband requires her to. A woman who is barren is considered to have failed in her task and can therefore be sent back to her parents. This role disregards the fact that in the event that she cannot perform, the problem may be the husband’s.
The women are meant to teach her kind of younger generation how to become good wives. The younger generation is expected to emulate her and thus she serves as the role model to her own young kind. This imposes an obligation and excludes the fact that boys too should be taught how to be good husbands as they often fail to be.
A part from the society, the woman’s role is to instill discipline and respect to the children. Badly behaved children are blamed on their mothers as the children are said to spend more time with the children. This is discriminatory in the sense that the children belong to both the man and the women and this role should be shared. In modern times there are single fathers who perform dual roles in the life of their children.
The women traditionally signify wealth. Among the men, the more women you marry, the more respect you command due to that perception. This is a culture that purely enders the dignity of women as it purpets that the women are the property of the men. Consequently, they cannot engage in development activities of their choice and have to constantly depend on their husbands for decision-making.
A woman signifies labour. A man with many women is able to mobilise labour quite easily especially when land needs to be tilled. This undermines a woman development in the sense that the land belongs to the man who use and dispose of it as he thinks fit.
The role of the women is to engage only in those activities that will serve to honour the husband’s name. Consequently, the woman is not allowed to make a name for herself and all her efforts and hard work are attributed to the husband. Her role is to identify with her husband and not her own person.
The role of the woman is to enrich her family through payment of dowry. This is where incases where dowry is not paid the girls family can still claim no matter how much time elapses or whether dead or alive. She is also supposed to bring pride to her family members by remaining a virgin until the time she gets married. If she fails in this role or conceives before marriage, no dowry is paid and she is married off to any old man who takes pity on her.
Women also confer respectable status on the men. Unmarried men do not command as much respect as the married due to the fact that they do not have women to control. The men, the submission of the women signify power thus men can be listened to while speaking only when they are married.
The woman is supposed to acknowledge and submit to the authority of man. Any woman who tried to question or rebel against this was stigmatised. This is demonstrated in the fact that men were allowed to chastise their wives for disobedience among others. The council of elders too did not consist of women even though sometimes sat to decide on women issues.
While the men’s role is to provide land, the woman’s is to put the land into use. She is supposed to till the land and provide food for the family and to some extent the clan as the family set-ups involved extended families staying together. If the family goes hungry, it is blamed on the woman not the man.
The option of transactional sex and the legal protection of the women involved
In a nutshell we shall be discussing prostitution and its regalisation.
Under the current legal framework, prostitution is not a criminal24. However, cap 63 Sections 153 – 156 encompasses crimes related to transactional sex.
At section 154 “Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercise control, direction or influence over the movements of a prostitute in such manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally is guilty of a misdemeanor”.
The Act25 also prohibits operation of brothels and cautions tenants or landlords against using or allowing other persons use their premises for the same.
In Kamara v. R26 the courts construed every woman to mean apart from the prostitute herself.
The appellant was a prostitute living on her own earnings of a prostitute contrary to section 154 of the penal code. This section reads as above.
It was held that the latter part of the section clearly refers to a woman who is not herself a prostitute and first part of the section must be read ejusdem genens with the latter, further that the section does not make every prostitute living in whole or in part on her own earnings guilty of an offence within the section.
Rudd J convicted her on her plea of knowingly living on the earning of prostitution. Latter part of the section clearly refers to a woman not herself prostitute and question is whether the first part of the section should be read ejusdem generis of the latter part. The courts said that if the provision applied to prostitution then it would have just said. Acquitted and judges said plea should not have been accepted as that of guilty.
The law clearly excludes the “perpetrators” prosecution from other perpetrators. The prostitute is not punished but living on her earnings is. The prostitute herself is not guilty.
This provision to some extent protects the prostitute although it criminalises certain aspects of this. The economic and social conditions prevalent in the society today have forced young women, old women and girls to engage in transactional sex in order to earn a living. Other constraints to this business would be the fact that it is immoral and void and such contracts cannot be enforced.
In Laikipia for example women are usually charged with loitering with intent to prostitute contrary to Municipal by-laws and Chief’s orders under the Chief’s authority Act among others27.
Women and young girls are attracted to prostitution, particularly because the economy does not provide many alternative opportunities. Since 1988 only one man had been arrested for the same. Periodic swoops by police do not seem to dent the practice of prostitution.
Cap 63 therefore protects the woman involved. However, other forces interact and the resultant effect is that due to cultural diversities among others, prostitution in every sense of the word is shunned. Discrimination occurs thereby where male prostitutes are almost unheard while female prostitutes are stigmatised in the community. While we do not condone or condemn prostitution, we agree that morality is in the eyes of beholder. Consequently different legal systems will enact different legal provisions in respect of the social, cultural and political factors in that particular society. The constraint however is that the laws enacted tend to favour the men and discriminate against the women.
An example is drawn from the Laikipia study whereby some prostitutes end up being single mothers28. The trouble is the men are never around and proving paternity through the scientific process may be expensive and inaccurate. The man too is exonerated from responsibility by the very law that is supposed to protect the woman except in cases where the two are married and had access to each other or did not 280 days after their separation. This presumption is however rebuttable.
WEEK V AND VI
REPRODUCTIVE RIGHTS
A right basically refers to an affirmative claim against someone or something1. The right to procreate (bear children) has become highly regarded to the extent that most people consider the right to procreate to be a fundamental right due to the institutionalization of the family. Indeed several international declarations on human rights speak of right of men and women of full age… to marry and found a family.
While reproducing may be a right, the choice not to reproduce seem to be taking a popularity roll. To be precise, presently the lobbying for the legalisation of abortion is taking effect. This scenario must be looked at together with the unborn foetus’ right to live (if at all it does have rights).
A number of practices such as female circumcision, polygamous relationships, child marriages, forced or arranged marriages, widow inheritance negates the spirit of reproductive rights as we shall examine later. However, reproductive should not only entail the right to procreate, but also other issues like child spacing and the reconciliation of reproduction rights and the labour laws.
SURROGATE MOTHERHOOD
In general terms a surrogate mother is a woman who undertakes to bear a child for another who is unable to have babies herself. Indeed, surrogate motherhood has been loosely defined as “womb lease, proxy mother, hostess and gestational mother2.
Surrogate mothers (gestational or otherwise)3 serve as substitutes making up for reproduction deficits on the part of the commissioning couple.
Surrogacy arrangements can either be initiated by legally married couples or unmarried. Surrogates can either offer her assistance voluntarily or on a contractual arrangement.
This form of procreation undoubted raise and issues ranging from duties to welfare of the offspring, concerns about the family (coupled) and the surrogates, dehumanizing or reifying reproduction through excessive medico-technology and commercialization. However the rightness or wrongness of a particular means of reproduction should be the exclusive domain of individual and institution choices. Persons should not use their reproductive capacity to assist others but if they so choose the choice should be respected and protected. In the Baby M case 537 A 2d 1227 (NJ 1988) This right was recognised but limited in the sense that in respect of their right to rear the offspring according to the surrogate contract.
In America, a married couple has a constitutional right or liberty to produce when and how they want hence their inherent right to procreate through the help of a surrogate4. In the above case, there was precluding of custody and the commissioning parents have to take further legal steps to legalise the arrangement and custody.
In Re Baby girl a Fara law reports BNA 2348 the surrogate relinquished the child to the couple but the husband had to terminate this legal presumption of placing maternity on the surrogate mother5.
Roe Wade6 confirms the constitutional protection given to a person’s decision whether or not to conceive and bear a child unless there is a compelling and justifiable interest to be served.
State laws vary:-
In US7 Florida, Louisiana, Michigan and Nebraska recently paid surrogacy is not accepted.
India and Dakota paid and unpaid surrogacy are prohibited
In Arkansas, an unmarried surrogate cannot be a legal parent but the commissioning couples.
In Florida, unpaid surrogacy is permissible save that the surrogate has a right to rescind her consent within seven days of the child’s birth. The commissioning couple pays reasonable legal, medical, physiologic and psychological expenses of the volunteer surrogate.
From the foregone therefore, surrogacy arrangements are permissible in American jurisprudence.
The British position which too is pertinent in Kenya is that surrogacy is well accepted in Britain save that the commissioning couple have to take legal steps and the nature of adoption in order to legitimise the child otherwise the presumption of legitimacy strongly favours the biological mother (the surrogate) particularly where she is married8. In Kenya surrogacy however are common feature of customary law and practice in Kenya. Customary law and practises is recognised by the Judicature Act.
In Kenya according to the institution of surrogacy in respect of the children was guided by the Adoption Act, Evidence and the guardianship of Infants Act. These have since been repealed by the Children’s Act9. The presumption of maternity or paternity is strong hence the legal steps to be taken by the commissioning couple e.g adoption in order to legitimise the child.
The Children’s Act 2001 makes provisions in respect of adoption. Consequently the surrogate cannot religuish the baby before the adoption procedure is complete. The best interest of the child is of paramount consideration and therefore should giving custody to the commissioning couple not be in the best interest of the child then the surrogate mother gets to keep the child. The presumption of legitimacy in the Evidence Act in favour of the mother does not bar any rights of succession that the child has in the biological father.
The unlimited jurisdiction of the High Court too allows it to appoint guardians while accounting for the interest of the child. In Karanu v. Njeri10 custody of a boy or girl age six and seven years respectively given to the mother even though it was on the effect of dowry.
Under customary law the situation is delicate where the surrogate is married. Paternity exclusively belongs with the husband of the woman how she conceives not withstanding. Customs too allow putative father to take his biological child since illegitimacy is a thing not akin to customary law.
Customarily, therefore, surrogacy depends on whether the surrogate is married or not. The contractual aspects for surrogacy may become delicate due to philosophical reasons, tradition and beliefs, a surrogate may never be paid for her procreative role let and the contract may be flouted in all aspects. Surrogacy may therefore not exist in it strict sense but in various methods and names. It should be encourage for viability especially in stabilizing and harmonising marriage and families.
A legislative scheme should be devised to govern or regulate surrogate motherhood. Surrogate motherhood should be acknowledge as a right and a scheme should be established to address the complications which may arise where surrogates should be left to lawyers, medical practitioners and psychologists or social workers or clean elders in the society to ensure careful selection to avoid lethal genetical, physical and medical risks being transmitted. There should be a quicker scheme of legitimisation rather than the long and rigorous traditional adoption.
ABORTION
Medically, the word abortion denotes the termination of a pregnancy after the implantation of the blastocyst in the endometrium but before the foetus has attained viability11.
Abortion may either be spontaneous or induced can be legal or illegal. Spontaneous is one that occurs naturally as a result of certain pathological conditions often beyond the control of the pregnant woman and the physician. Induced is the deliberate interruption of pregnancy by certifically inducing the less of the foetus. The legality of an induced abortion depends on the particular laws inforce in a country12.
As evidence in the penal code cap 63 sections 158 – 160, abortion is illegal in Kenya. S.158 “Any person who with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years”.
S.159 is with respect of a woman who with intent procures her own miscarriage while S.160 criminalises unlawfully supply for any person, anything whatsoever knowing that is intended to be unlawfully used to procure the miscarriage of a woman whether she is with child or not.
At Section 228 any person who when a woman is about to be delivered of a child prevents the child from being born alive by any act of omission of such a nature that if the child had been born alive and died, he would be deemed to have unlawfully killed the child is guilty of a felony and is liable to imprisonment for life.
The constitution too at S.71(1) protects the right of life of every individual. The issue as to when a person becomes legally existent is a contentious issue. The Kenyan legal regime also tends to sage guard the life of the infant save for saving the life of the mother. Though restrictive, it seems to recognise the fact that abortion can be performed under some exceptional circumstances.
From the foregone, abortion maybe a necessary procedure in preserving the life of the women and also averting the misery that a seriously deformed baby would be subjected to in life or where it is done in respect of unwanted pregnancies e.g rape or incestuous unions. The law does not allow the woman to decide whether or not to terminate the pregnancy and she has to carry it to term.
This is denial of her right not to reproduce, even when her health and dignity are endangered. The state which makes these laws consist of the men and it is therefore the men who are responsible for the denial of this right together with her right to personal liberty.
REPRODUCTIVE RIGHTS
As already examined, the offence of rape is not given the serious treatment it deserves. The woman can also end up with a child which the very partriachal society, which has denied her adequate redress through the court forces her to keep. This is a rather conservative approach and the laws should account for these instances.
The American jurisprudence is fairly liberated with respect to a woman’s right to carry a pregnancy to term. While the Kenyan regime as inherited from the UK laws and imported into Kenya is stringent, the American laws on abortion are fairly permissive and the right of privacy upheld by the constitution. The Uniform Abortion Act of 1972 in US made abortion during the first trimester legal. The situation is more serious during the second trimester, distinction quite alien in the Kenyan setting. In Kenya the laws only talk of child and individual and further it is not clear how abortion takes place on a person who is not with child13. There would therefore no miscarriage if it is not clear what constitutes a child.
The British system has been enhanced by the Abortion Act 1967. The Act briefly permits a licenced physician to perform abortion where two other licenced physicians agree that the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health or the pregnant woman or any existing children of her family, greater than if the pregnancy was terminated.
Secondly, it permits abortion where the continuance of the pregnancy would mean there is a substantial risk if the child is born since it would suffer from physical or mental abnormalities as to be seriously handicapped. The Act14 clarifies that on account of the woman’s actual or reasonable foreseeable environment and permits a physician without the concurrence of others to terminate a pregnancy where he is of good faith opinion that abortion is immediately necessary to save the life or prevent grave permanent injury to the physical or mental health of the pregnant woman. This Act clearly relaxed the laws in Britain with regard to the health of the mother and the unborn foetus.
The Kenyan situation gives the picture of a traditional setting. The received laws from Britain after she was declared protectorate through the reception clause of 12th August, 1897 imported the common law, doctrines of equity and statutes of general application as were in force in England at that date. The Judicature Act S.3(2) of the reception clause approved the customs of the various ethnic groups as a source of law save if they were repugnant to justice and morality and contrary to written laws.
The Kenyan position remains conservative and the true legalization of abortion is a distant and alien fact. This consequently means that a woman right to carry a pregnancy to its term or not is not existent despite the indignity and curtailment of personal liberty that may be involved.
POLYGAMOUS RELATIONSHIPS
This is a situation whereby there is more than one wife to a husband.
The woman exercises her reproductive rights by bearing children. Sometimes however the man may have too many wives and may be unable to engage them for purposes of procreation when they so desire. These women apparently should be able to bring forth offsprings as and when they so desire in which case they would not be able to.
The women are therefore curtailed in the sense that she is unable to exercise her right. The options at her disposal would be an extra-marital affair or divorce and re-marriage. But then society frowns upon both of the above incases where the subject is a woman. Patriarchy therefore takes away the very fabric of a woman’s being that is her reproductive rights.
FEMALE CIRCUMCISION
The term female genital mutilation has been recently preferred. This had been a cultural practise in the traditional setting, which has persisted to the present day.
Traditionally it signified the passage of a female into adulthood. It symbolised maturity and readiness for marriage.
It was also meant to curtail the sexual urge among the “young girls” thus preventing unwanted pregnancies.
The act has been vehemently opposed although the motive of preventing widespread immorality and unwanted pregnancies was noble.
On the other hand it interferes with their sexual enjoyment and consequently there reproductive rights especially the choices and right to procreate.
The former president15 purported to outlaw this practice through a directive but without a proper act passed by the parliament its illegality is non-existent. The Children’s Act16 at S.14 outlaws female circumcision but its practicality remains to be seen.
Traditional values are still so deeply entrenched in the society and to some extent the girls who have not yet been circumcised leave school for that purpose. A number of women organisations such federation of women lawyers in Kenya has spoken against this retrogressive cultural practice.
After circumcision some girls drop out of school to get married since traditionally it symbolised the fact that they were ready for marriage. Complications also arise during birth which may lead caesarian operation being administered or a painfully long experience that may discourage one from undergoing the same. This consequently interferes with one’s choice to procreate or bring forth a child.
The Act alone will not deter the practice. There should be constant lobbying against this retrogressive practice if possible results are to be realised. Sensitization of the girls about the dangers in respect of sexual enjoyment and child births should be vigorously carried out to ensure the spirit of the law is not negated and to ensure that the reproductive rights of the females is preserved.
CHILD MARRIAGES
Traditionally there is no age limit for marriage. The point of determination as to the fact that a female is ready for marriage or not is through the female circumcision procedure as already discussed.
This particular practice interferes with the reproductive right by compelling one to procreate at a tender age. Consequently her personal liberty is curtailed and she therefore is unable to exercise this right if and when she so desires.
Important to note is the fact that it is mostly fathers who insist on marrying off their daughters at a tender age and the mothers who protest invite beatings and possible eviction from their homes. This practice is quite rampant in Kenya. One such incident as reported in the Daily nation on Monday January, 20th 2003. Seita Siniki a 14 years old pupil who is a child as per the Children’s Act 2001 walked 60 k.m to Kajiado town to ask for the intervention from the District Commissioner. Her father wanted to marry her to a 60 year old man. Apparently after finding out she was missing, her father poured his wrath on the mother who too had to seek refuge at the District Commissioners office. It was also reported that “a wave of child marriages has hit Kajiado district and the education stakeholders are appealing to the government to step in. According to Ms. Jacinta Mwinzi, the District Children’s Officer, Mashuru division where the Sinikis come from, is the most affected. Further she says 20% of the school dropouts were due to child marriages.
The same problem is experienced in Nanyuki where girls dropout of school after circumcision to get married17. However this fact is also attributed to the fact that the different family law systems in Kenya have different age bracket for marriage. Children therefore reproduce at a tender age.
At S.1418 “No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development”.
In essence therefore child marriage is a criminal offence for the perpetrators and thus the female child’s right to procreate is protected until such time as she is fully development to understand what it entails.
FORGED/ARRANGED MARRIAGES
These marriages do not constitute consent. Capture of the bride was mainly common among the Luo Community where the bridegroom with his group would raid the bride’s home and make away with her19.
It is however important to note that during such roads if a member of the raiding party was killed, the girl was usually married by these people, whether she wanted or not20, so that she would give birth to a child21, whom she would name after the man that was killed. Not only is she forced to get married but her reproductive right is curtailed by being forced to give birth and further name it after the deceased.
Child betrothal22 is a form of arranged marriage. The children’s parents usually enter into a covenant that their children will get married when they grow big usually when they are at a tender age. The children are consequently compelled to honour the covenant.
Arranged marriages are also common in the Hindu family law system. When the marriage does not materialise, case law has demonstrated that gifts by the bridegroom to the bride’s home may have to be returned save for a few exceptional items.
Under Kenya law arranged marriages such as betrothal is illegal. Case law demonstrates that these forms of contracts cannot be enforced23.
WIDOW INHERITANCE
A widow is defined in the dictionary as a woman who has lost her husband and not married again. The concept of widow inheritance was and is still rampant in the society. In both patrilineal and matrilineal settings, the practice is bused on the principles of partriachy24. One may refuse such arrangements without formally state consequences. However such refusal leads the widow to become the object of victimization and harassment at the hands of her husband’s family and the community at large, and may also be disposed and disinherited for not being a ‘dutiful’ wife.
The purpose of this practice is to provide the woman with someone to help her take care of the children and the deceased’s estate especially during the minority of the heirs25.
The inheritance is also for the purposes of bearing children which children belong to the deceased.
As already discussed, the widow’s reproductive rights are interfered with. She may want to bear children still but not with that particular inheritor. She also may not want to bear anymore children or even get married.
The cleansing ritual too goes against the spirit of the concept of this particular right. There may be a child out of this union yet the woman may not have wanted children or if she did, not with that particular man. The traditional setting therefore forces her to give in to a concept she does not approve and if given a choice, she would dispense with.
RIGHT TO DECIDE ON CHILD SPACING
Among the pastoralists living in Nanyuki, a man is not supposed to sexually engage his wife until three years have passed from the last childbirth26.
This decision largely rests on the husband and due to the above, the husband give themselves leeway to marry many wives and engage them in turns.
The use of contraceptives too has been opposed by pro-life activists especially the Catholic church27. The concept is to prevent unwanted pregnancies. They too help the husband and wife to decide on the when to have a child or when to stop.
Unfortunately a number of men are also opposed to this concept and do not allow their wives to use the same. These leaves the entire control in their domain and the woman only obey the biological commands whenever their eggs get fertilised.
Use of condoms too has been vehemently opposed by the male members of the society and sometimes by the females claiming it reduces their sexual enjoyment.
The female condom recently introduced in the market is quite expensive and most females cannot afford the same28.
The females also have access to other devices like the pills the Norplant, the intra-uterine-device etc. Despite all these, determination of child spacing or conception generally depends on the husband as none of these are 100% effective.
LABOUR LAW AND REPRODUCTIVE RIGHTS
The Employment Act Cap 226 at S.7(2) provides “A woman employee shall be entitled to two months maternity leave with full pay provided that a woman who has taken two months maternity leave shall forfeit her annual leave in that year.
This clearly recognises the reproductive rights of women.
There have been discrimination in this respect where employers prefer to employ males or elderly women who are past the procreation stage. Some employers also do not employ pregnant women.
The honourable Ngilu in recognition of women’s reproductive rights brought a motion to parliament seeking to extend the duration of maternity leave. It was well received although a few people like the then honourable Sunkuli expressed sentiments that they would have opposed if it was a bill29.
Few men on the other hand take paternity leave in countries where it has been enacted into law. A recent study found that 72% of American women and 63% of men believe fathers should take more than two weeks off after birth or adoption of a child30, but few companies offer paid paternity leave.
Fathers’ need for pay-check prevents them from taking much time off. Conversely, paid-leave policies may convince some reluctant fathers to take time off once their wives’ maternity – leave benefits have run out, in part, because it saves hundreds or even thousands of dollars in daycare costs.
For paternity leave to make sense, it needs to be paid for and supported at the top.
In Kenya apart from men who work for embassies of Scandinavian countries, only Maseno University give a 10-day paternity leave for its staff introduced five years ago31. A father only presents a birth notification to the administration, and the leave is granted instantly.
A proposal made to make paternity leave a legal requirement in Kenya was laughed out of parliament. At the Labour ministry, at FKE and COTU, paternity leave has no passionate champions.
FKE’s deputy executive director Gerhason K’onditi says paternity leave would be difficult to introduce in Kenya. With advent of polygamy, some crafty men would go on leave every two months.
Unlike Scandinavian countries where paternity is standard, it would be difficult to have it here. “The stage of our economic development is too fragile compared to the Scandinavian countries, where people are even on social welfare. If we implement such a policy, the level of taxation will be too high”.
John Ndiritu who works at the Swedish Embassy’s gender and development department in Nairobi is an example of a man who has taken paternity leave from his job. The Swedish Embassy offers upto 6 months of paternity leave.
WEEK VII
WOMEN’S PARTICIPATION IN POLITICAL DIVISION – MAKING PROCESSES
ASSESSING THE TRENDS AND PATTERNS IN WOMEN’S POLITICAL PARTICIPATION IN KENYA
The participation of women in Kenya politics has been negligible. Kenyan-women are quite under-represented compared to Kenya and Uganda.
The 8th parliament for example had just nine women, representing a paltry 4 per cent of the entire 222 member strip at the time it was dissolved. Slightly more than half the number constituted nominees. One of them, Ms. Josephine Sinyo, only joined parliament when the original nominee. Dr. Richard Leakey, was appointed to head the Kenya Wildlife service. And not only that, Leakey had a hand in the choice of his replacement, who had to be a woman with disability.
Kenyan women’s representation in parliament falls well below that of its East African neighbours1. Uganda has 75 women members of parliament out of 304, while Tanzania 274 – strong parliament has 61, translating to 24.7 and 23.3 per cent respectively. Kenya scores a paltry 4 per cent.
There have not been many women venturing into politics particularly during the former president’s regime. Only one woman honourable Charity Ngilu mastered courage to vie in 1997 general election despite the fact that she did not fare well. As Cecily Mburire puts it “……the results attested to a children of the wrist of the cynicism bedeviling women political aspirations. There was a candidate without a whiff of scandal rejected because the voters would not fathom a madam president”2.
“….the set backs we faced…..” she says, “…..strengthened my resolve. Mrs Ngilu’s stoicism is confronting political obstacles put her way affirmed my belief that there is so much strength in a woman who knows what she wants to do in life. Mrs. Ngilu rode the political tempest with such graceful courage and determination…”
At present women holding key leadership positions continue to rise. President Kibaki for example has appointed women to his cabinet something that his predecessor was unpopular for. Mrs. Nyiva Mwendwa ‘s appointment to the cabinet came on the fourth world conference on women in Beijin3. Prior to Mwenda’s appointment, Kenya had been under intensive regional pressure to appoint a woman to lead Kenya’s delegation to Beijin. She only became Minister when the booing in Dakar at the Africa Prep Com meeting of Beijin convinced Kenya that a man leading its delegation to the biggest women’s conference would be a major public relations disaster for the country.
In the 1980s a larger than average number of women were appointed to head state owned corporations4. Agnes Onjany headed the catering Levy Trustees, the late Veronica Nyamodi was at the helm of Kenya Industrial Estates and the late Ann Chite was boss at the Rent Restriction Tribunal. As the positions fell vacant, however, there was no effort to replace the women with other women.
Women have been appointed as permanent Secretaries in the Judiciary and Provincial administration. There are more women provincial and district Commissioners, Chief and Assistant Chiefs, jobs that were previously viewed as a male preserve.
Women have also been appointed as ambassadors and into other diplomatic jobs. Grudging observers argue that quite a few of these appointments have shown a clear ethnic bias, but they can still be viewed in the wider context of women’s empowerment.5
Countries that have put women in positions of leadership owe it to the leaders who had room in their hearts for the advancement of women. Mwalimu Julius Nyerere was one such leader; and his legacy lives after his death. Tanzania’s Getrude Mwongela was the Secretary - general of the Beijin conference in 1995.
Uganda has the highest ranking woman in government in the vice President, Dr. Specioza Wandira Kazibwa. Clearly Dr. Kazibwa owes her position as much to herself as to the positive gender policies that president Yoweri Museveni has put in place.
In Kenya during the 2002 general elections, a total of 44 candidates participated. Quite a number of these were elected to parliament. Kibaki’s government too has appointed six women to the cabinet. This is a big milestone for the women in respect of Kenya politics. The NARC has further filled almost all the nomination shots with women. KANU has also had a big change of heart and nominated women.
Increased participation of women in Kenya would also depend largely on societal perception especially that of the men, in the society. Dismal participation has been due to a number of factors.
OPPORTUNITIES AND CONSTRAINTS IN WOMEN’S POLITICAL PARTICIPATION IN PUBLIC DECISION IN MAKING ORGANS
Women have not been active in politics – mainstream government, local government and trade unions. Women are consequently not well represented throughout the world despite the fact that women are more than men.
Traditionally, women have been made to believe that political matters are a man’s affair. They have been made to believe that their place is in the kitchen and the homestead.
Government policies have been dominated by men and therefore the insensitivity to female under – representation. The women’s near absence from parliament and subsequently from government, have forced their issues into the low-priority corner. Several parliamentary motions passed among them the Maternity leave and the Gender Equality Commission ones – have never become law despite enjoying widespread public support.
The former government especially will be remembered for squandering the opportunity to put women at par with men and for failing to rise above mere tokenism.
Glaring failure of lackadaisical attitude towards the adoption of gender policy draft finalised four years ago had to its non-implementation. The New National Development Plan, 2002 – 2008 commits itself to putting the gender policy in place. One wonders why it has taken so long.
The former president only nominated two women delegates to the East African Legislative Assembly in Arusha5, National outrage and pleas from Uganda and Jane Tanzania for Kenya to balance the gender representation were not needed. Parliament then changed the law so that two and not three women ended up in Arusha.
“A woman candidate must live with the perception of going against the cultural grain. She is considered either a senior tomboy or a marital truant. You work late and far away from home. You keep the company of fellow politicians, majority of who are meant. Unless you tag along your spouse, your morality becomes an issue. The refrain is that you are loose…”6 From the above Cecily Mbarire represents a breakthrough for the women still labouring under the traditional cultural perception. She represents a different perspective from the cultural norms. She does not rebel but seeks to sensitize the woman on the fact that women can still participate in politics, perform their roles in the society and uphold their integrity and morality. This traditional perception is therefore a constraint. Cecily is a board member of Kenya women political alliance an indication that she is a gender activist.
There are two women organisations i.e Maendeleo ya Wanawake and the National Council of Women of Kenya. This perhaps represents a divided function in the women’s movement. There is therefore a need for a converted and unified approach to pursue women policies.
Maendeleo ya Wanawake and the National Council of women of Kenya. This perhaps represents a divided function in the women’s movement. There is therefore a need for a concerted and unified approach to pursue women policies.
MYWO has also been infiltrated by KANU policies and it is indeed a man’s organisation. Party headers had used it to mobilise the policies of KANU. The women’s agenda is therefore de-emphasised and departed from. The men therefore deliberately seek to control women’s affairs to maintain their dorminant position in the society.
They are headed by middle-class and upper class women with little genuine interest in the poor whether female or male.
There has been growth of women groups but most are pressure groups7. Their legal status is ambiguous and it is not clear whether they are co-operatives and partnerships among others even under the Societies’ Act. There leaders use them for monetary gains sometimes and funds are often embezzled, members have no recourse to the law as they cannot identify with any act of parliament. Politicians also patronise the organisations and sometimes they do no represent women interests but are used to garner for votes.
The draft constitution seems to revive hope in Kenya’s women. Among the issues addressed in the draft constitution relate to minimum representation of women in parliament and in public administration8.
Another constraint is the dual role of women in the Society especially for career women. Their time is taken up in home-coming and trying to earn a living. They hardly have enough time to consider venturing into politics. However this should not be a hindrance. As Michael Ngilu puts it “…….I still get my food on the table in time……” Women are perfectly capable of balancing their duties and politics.
ROLE OF WOMEN’S MOVEMENTS IN ENHANCING WOMEN’S PARTICIPATION IN POLITICAL DECISION-MAKING
Progress should be made, especially in the context of the original women’s caucus that spearhead the engendering of the constitutional reform and review process9.
Some two sharply divided functions from the original political caucus has contributed to significant decline and lack of a comment vision in women’s movement.
One lesson from early women’s movement of other countries is that mobilisation of people as was done by women in 1992, is not enough, social movements must also mobilize sustaining ideas shared goals and aspirations amounting to a unifying gender ideology that keep the group together and withstands and transcends, despite their other social-culture and economic diversities10. From the foregoing, mobilization of people is one role the women organization play.
Needless to say, women organizations have provided a platform for women’s participation in the political process. Women leaders who have been active in political organisations have built up courage to seek the electorate vote.
Women’s movements thus play a role in outgrowing the traditional perception by women. The boldness and courage amassed at the organisations leaders catapults them forwards to seek greater leadership shots.
The movements11 have also served to educate women on their rights. As a result of this the women have increasingly become aware of their rights and are thus in better position to venture into politics without reservations.
Women movements serve to empower women economically especially at grassroots levels, where they engage in income-generating projects. As a result, this serves as a forum for liberating women from dependence on men. The women then become more confident and can openly exercise their freedom especially politically.
Women candidates must endeavour to make themselves visible and utilise whatever means available to ensure their election and nomination, and the rest of the women movements need to lobby parties to exercise affirmative action rather than discriminate against the few women candidates12. Other not in politics must supports women candidates particularly towards giving them visibility through organisations, election monitoring “wearing gender lenses”13.
Women movements also ought to build the capacity of women delegated in the art of lobbying and negotiating at constitutional conference, so as to ensure that the new constitution has adequate and non-contradictory provisions for women’s rights and justice, on matters of ownership, control, representation and decision-making.
Affirmative action as a strategy
Affirmative action is a deliberate policy adopted by a government to change for the good any historically disadvantaged groups of a society14. It originated from the United States to address imbalance arising from slavery and segregation.
The term was coined by president Lyndon B Johnson in 196515. He said that federal contractors should take affirmative action to ensure that federal employees would be treated without regard to race, colour, sex or nation of origin.
Subsequently, in 1969 president Nixon instituted a policy on affirmative action under which contractors seeking federal finding had to ensure that minorities were adequately represented in the workplace.
A lot of understandings have existed over the policy and myths have arisen over the same. In the United States it is said it is for the benefit of the minorities and is thus a preferential treatment. The truth is it has been used for the benefit of the minorities as well as the majorities.
More precisely affirmative action is positive discrimination and nor preferential treatment. Indeed affirmative action is equal treatment because people of unequal positions are given treatment that would put them at par with more advantaged persons and thus achieve equality. This has succeeded in education employment among others.
In the United States affirmative action is defined to mean a series of programmes which include special efforts to promote women and minorities in the United States who had been excluded from the mainstream of participation in that country’s public sphere.
Affirmative action plan identifies jobs in which women are least employed and ensures that they are employed in sufficient numbers.
Affirmative action received much criticism from the immediate former head of state. Muslim women too have been opposed to some specific aspects of the affirmative thus posing threat to the quest for liberation16.
The former government was vocal in pouring scorn on the principle of affirmative action that is created with creating a level playing field for women and girls.
One of these programmes in Kenya include the lower entry level at the University for girls as opposed to that of boys. The University of Nairobi vice Chancellor Professor Cripus Kiambaa explained that the joint admission board had stuck to this affirmative action because they faced many challenges in school life and that is the reason for their admission with less points17.
In Kenya as indeed in either countries with geo-ethnic disparities, the cost benefit analysis of economic reform has an ethno-regional character18. Although the dialogue on liberalisation acknowledges winners and losers, the engagement with donors seldom confronts the racial or ethnic dimension. In most Africa countries, Kenya included, this discourse is not part of the formal public policy discourse as for instance, the affirmative action discourse in the United States, the black empowerment discourse in South Africa or the endogenous Malay empowerment discourse in Malaysia19. Before Liberalisation our rural economic base comprised of an export sector (coffee, tea etc) an import substitution sectors (cereals, sugar, rise) and livestock sector.
In a nutshell, the economic liberation which is part of the economic reform programmes by the Bretton woods institutions sets a dangerous precedence in regional equality and therefore the affirmative action20.
In the spirit of affirmative action the women’s movement in February, 1992, galvanised and mobilised the women of Kenya from village to the national level, at the KICC where they carted a woman’s political agenda under the clarion call of unity in diversity and committed call of unity in diversity and committed themselves to take every opportunity to use women’s collective voice to ensure democratic transformation whatever happened to them?
The executive director of FIDA – Kenya Chapter Ms. Jane Kiragu has noted that our constitution “has entrenched the culture that denies women’s participation in all spheres of society on the basis of equality…”21
She sighted S.82(4) and said it allows discrimination with respect of marriage, divorce and inheritance.
“Recognition of customary law as a tool to guide matters of personal law has led to untold violations of rights of women”22.
Gichugu legislator and also a gender activist says that due to the political reform e.g nomination of women candidates to the NARC government and appointment of women to key leadership positions is a milestone for the affirmative action.
Progressively, women may end up being at par with men such that we may not even need affirmative action.23
COMPARATIVE JURISPRUDENCE
SOUTH AFRICA
The South African government has taken a multi-faceted approach to the improvement of the status of the women. It is all inclusive as it involves the civil society in partnership with the government24.
There have been various institutions put up for the above purpose. There is “The office on the status of women” which is under the office of the president and its responsibilities include.
it acts as a catalyst for affirmative action. In effect it speeds up the implementation of policies and programmes aimed at empowering women and putting them at par with their male counterparts.
It takes forward the national women empowerment policy which was established.
There are Gender Units in the government department with duties such as:-
Conducting a gender audit of all policies and programmes including department expenditure to acess the extent to which they are contributing to the advancement of women.
Monitoring and evaluating the departments policy from a gender perspective.
Co-ordinating and preparation of the departments input for the convention on Elimination of all forms of Discrimination against women reports.
All government bodies have a duty to liase with women’s rights organisation in implementing national policy on gender. Section 9 of the South African constitution prohibits discrimination on the grounds of sex. The constitution also binds the state the respect, protect, promote and fulfil the rights of all people. In order to support constitutional democracy e.g the South African constitution provides for several bodies that are pertinent to women’s human rights namely:-
Commission for gender equality
Human rights commission
COMMISSION FOR GENDER EQUALITY25
Its functions include:-
Monitor and review gender policies of all publicity funded bodies
Advocacy information and education on gender issues
Review legislation existing to ensure that it promotes the equality of women
Recommend new legislation on the promotion of equality for women
Investigate complaints of any gender-related issues and if need be refer the matter to the human rights commission and the public protection.
Monitor and report on compliance with international conventions.
The functions are quite far reaching. The South African government has provided for several mechanisms to ensure that all laws are gender sensitive. The structures created within parliament are thus:-
Women’s Caucus
This is a multiparty caucus charged with performing the following functions.
Allowing women in parliament to unite in gender issues and empowerment of women.
To ensure that women MPs are educated and the building of their capacity.
It provides access for advocacy by civil society
It is also a focal point for women’s organisation to communicate with women’s organisations in civil society.
Select and other Parliamentary Committees26
Care is taken to ensure gender purity during selection of these committees.
However there is no positive action in respect of Kenya and there is very little practical effort to create institutions and structures to change the status of women.
Examples of inaction by Kenyan parliament include appointment of women as nominated MPs. Parliament has also passed a number of motions as we saw earlier which have been passed into parliament. A number of these enjoy wide public support.
Examples of such motions include
A motion urging the government to amend S.7(2) Employment Act Cap 226 in order to grant women employees both in public and private sector two months maternity leave excluding their annual leave. S.7(2) provides that “a woman employee shall be entitled to two months maternity leave with full pay provided that a woman who has taken maternity leave shall forfeit her annual leave in that year. This motion by honourable Ngilu was intended to increase maternity leave with one month.
The motion received support across party lines including former minister Sunkuli assistant Minister Mwarere Mwachache. The then Minister of Labour supported to support the legislation though he indicated that were in to be a bill he would have opposed it, “Increasing maternity leave could be in favour of the employee to the detriment of their employer. This would be counter – productive on the part of the women’s employer. The motion was passed but has not yet been translated into a bill.
Motion on Gender Equality Commission27
This was an important motion given the fact that the biggest impediment to advancement of women in the failure by government to domesticate conventions relating to women e.g Kenya is a signatory to the convention on Elimination of all forms of violence against women and the Beijin platform for Action (PFA), the major policy document agreed upon at the UN 4th world conference on women held in Beijin China in 1995. The same have not been domesticated. In 1999 the now Honourable Minister for labour, Raila Odinga tabled a motion calling for the establishment of a Gender Equality Commission.
Section 4 of the PFA refers to the issue of the creation of institutional mechanisms for the advancement of women. The motion notes that national machineries for the advancement of omen have been established in almost every member states to inter alia design, promote the implementation of, execute, monitor, evaluate, advocate and mobilize support for policies that promote the advancement of women. Honourable Odinga considered the motion to be of great national importance in the quest for the lobbying for women’s human rights.
The functions of the proposed commission are identical to those of the South Africa Commission. It received a lot of support and thus it was passed. However, it has never been translated into legislation.
WEEK EIGHT AND NINE
GENDER – BASED VIOLENCE
Gender – based violence and inequality seem to be justified on the premise of society’s embedded and insidious discrimination against women. Generally there are two forms of violence, which takes psychological or physical form1. All women experience violence but only the degree varies due to existing different classes and their perceptions.
A serious study of violence needs women to be categorised in various classes2.
The girl child
Young girl
Married woman
Concubines
Professionals
Urban/rural woman
The woman on the fringes of society e.g commercial sex worker, the homeless etc
Lesbians
The interest in violence against women has been triggered due to:-
Violence against women is pervasive. It is also violence against majority of a society’s population, which makes it of great interest.
Every man has a special relationship with women. They should therefore be well taken care of.
Most victims do not complain, as they want to protect the perpetrator. It is often carried out in private. They suffer in silence.
Some men and women think it is normal. It is time they were shown and made aware that violence is not normal and they have a right not to be subjected to any kind of violence.
The men are the ones to protect the women in the home and society in general on the other hand they are very perpetrators of violence and collaborators e.g the police.
GENERAL IMPACT OF VIOLENT CONDUCT ON WOMEN
Broadly speaking violence against women impacts differently depending on the category.
Macro or broad-based violence which include among others everyday discrimination, perpetual subjection inequality, tends to be mental or psychological3. It debases women on a continuos and long-term basis. Micro – violence however consists of specific episodes of violence, which may be slated or recurring.
The argument at one time was that the reason violence has increased is because there is an increase of violence against women or that there is more reporting of incidence of violence against women.
The psychological impact violence has on women must often be dealt with by a psychiatrist. This is to help the victim overcome the traumatic experience and live a normal life again.
Victims of violence are often fearful and insecure. For example victims of sexual assault may not want to be around. Those of domestic violence are forced not to speak out even on their rights due to fear.
The children too become insecure and view their home as a den of terror instead of a haven of peace. Children sometimes run away into the streets especially if the perpetrator is the parent who owes the child a duty of cares.
DOMESTIC VIOLENCE/INTIMATE TERROR
“Domestic violence is the use of force or threats of force by a husband or boyfriend for purpose of coercing and intimidating a woman into submission. The violence can take form of pushing, hitting, checking, slapping, kicking, burning or stabbing”4.
The above definition is wide but our focus of study with respect to intimate terror is one between husband and wife.
Miranda Davies5 says domestic violence as variety of actions and omissions that occur in different relationships. She says the term is used narrowly to cover incidents of physical attack, when it may take the form of physical and sexual violations, such as punching, checking, stabbing, throwing boiling water or acid and setting on fire, the results of which can range from bruising to killing. According to her, domestic violence includes psychological or mental violence, which can consist of repeated verbal abuse, harassment, confinement and deprivation of physical, financial and personal resources. It is also a term used to describe violence against women in the family but in its wider sense it encompasses child abuse, violence between siblings, abuse or neglect of elderly and abuse of children by parents.
The above definitions are wide but we shall only discuss violence between husband and wife or intimate terror.
The acknowledgement of existence of intimate terror as a societal malady is reflected at international level in the evolution United Nation instruments comprising Declarations, Charters and protocols outlawing it.
At the national level there are constitutional and statutory enactment criminalizing intimate terror. At the local level customs approve of the malady. Even in the view of cohesive laws to deal with intimate terror, there is little efficiency of the law and structure put in place to achieve the object of total eradication of the vice which in the world over is recognised as a crime even by men.
Connection between rampance of intimate of intimate terror with level of socio-economic stage in development in a given society is readily perceptible in comparative situation obtaining in the third world countries vis-Ã -vis the developed world in so much that intimate terror is more prevalent in the former6.
In Kenya general provisions criminalising violence in general out law intimate terror; there is no specific treatment of the vice as special crime. The constitution outlaws domestic violence at S.74(1) and (2) that protects individuals from any inhuman treatment. S.74(1) provides that:-
“No person shall be subject to torture or to inhuman or degrading punishment or treatment”.
Section 74(2) provides that:-
“Nothing contained in or done under the authority of any law shall be held to be consistent with or contravention of this section to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Kenya on 11th December, 1963”.
This constitution guarantees every subject a right of protection from inhuman or degrading treatment regardless of class or status and women are included under here.
Domestic violence degrades women and the violence directed against the women is a great torture and torments the victims.
As much as our constitution recognises that no one should be subjected to torture and guarantees individuals (subjects) protection from such torture or inhuman treatment, the same has not been translated to a reality for women in Kenya7. Many Kenyan women have been subjected to inhuman treatment by husbands and many have died in the hands of their so called loved one yet we have laws that outlaws this kind of violent acts within the domestic arena.
The penal code at S.2508 and 2519 deal with common assaults and assaults causing actual bodily harm.
JUSTIFICATIONS FOR INTIMATE TERROR ON CULTURAL AND SOCIAL ATTITUDES
There is a deep-rooted African belief that a man has a right to beat to discipline his wife when she makes mistakes. The belief as it is advocates for violence as a means of resolving conflicts within the home and has given men a lee way as they do not see their violent acts as crime but a mere act of discipline10. From the cradle to the grave, men are exposed to several social myths too which they use to justify and rationalise violence against women.
Mrs. Gladys Ndeda Nakuru’s Chief Magistrate at an interview said “There is this general deep rooted traditional belief that a man has a right to beat his wife, and this tradition affects the decision handed down by the male Magistrates mostly to offender, due to this traditional belief regarding wife – beating, the do not see intimate terror as a crime at all, and may end up discharging the offender, with the accompanying warning to the woman to behave and obey and the husband to avoid beatings”11.
Men too claim that under their customs they chastising their wives is a right. Traditionally among the Luos, men who do not beat their wives during their lifetime must do so before burial and furthermore the elders ensure that the exercise is properly executed.
Men often feel superior over women. They perceive the superiority as emanating from their physical strength against the women. Their superior feeling may have been triggered by the fact that women do not match them strength wise and therefore they do not have a hard time in performing the beating.
Traditionally women are considered as children and the treatment given would just be the same as that given to children. They never listen and the only way to make them listen is to beat them up. Because children must be beaten to be disciplined, women fall alongside with them. Men perceive violence as the only means to put sense into a woman.
Punishing women frequently, the men believe, established the proper hierarchy of the sexes and the social power structure12.
Psychologically when men are abused in the world out there, they believe they are entitled to commit violence against his spouse or other women who “do not understand” his state and do not appropriately comfort him as an act of self-affirmation13.
Men believe punishing is a duty and an act of solidarity by all men to ensure women are put in their subordinate place14.
Men also believe that violence against women is not really violence as occurs in other spheres of societal encounters and confrontations.
SEXUAL HARASSMENT AND OTHER SEXUAL OFFENCES
Sexual harassment is a form of violence against women15. Under the penal code cap sexual offences are categorised among offences against morality16. The provisions of the law and the practical realities sharply contradict. While the law provides for the penalty for these offences, a number of factors operate to negate the spirit of this law. This amounts to denial of rights especially due to the fact that they mostly operate to protect the females from the males.
Legal obstacles in the prosecution of sexual offences
They have become more macabre to the level that they capture the national attention due to their increase.
Statistics for one are unreliable and mostly do not reflect the real circumstances that exist. There are a number of factors to this effect:-
Most victims of sexual offences do not report the crimes to the relevant
authorities.
The police reports e.g the 1998 annual report of the commissioner of police, rape statistics are given for only seven out of eight provinces. The North Eastern province give only nine incidences. This is a dubious considering the circumstances prevailing namely increase in the crime rate currently.
The Kenya Human Rights Commission 1998, “Haven of fear; The plight of women refugees in Kenya” 351 cases of rape were reported in Hifo, Hayadera and Duganatey refugee campus in the month of January alone. Considering the fact that there were 1124 cases reported in the country, that number is enormous.
The percentage increased by nearly twenty from the previous year.
Rift Valley was one of the provinces with the biggest increase. In the first 6 months of 1999 there were 756 cases of rape reported.
Another problem is that there is no distinction between rape and defilement. Defilement is often defined as rape of girl below 14 years which offence does not exist in the penal code.
The East African Standard June, 1998 – June, 1999 reported 300 incidents of rape. 1/3 of the total number were defilement.
The point therefore is that there is an increase in sexual offences. It is only that official reports are dubious and may have been doctored to present a good picture of the alleged responsible officials especially the police.
One other problem is that the courts are hostile and the general public is insensitive. The societal perception is that most victims of rape contribute to the sexual assault on themselves.
Where the perpetrator of the sexual offence is known to the victim especially if he is a close relative the prosecution becomes difficult. This is due to the fact that the society frowns upon family prosecuting other family members. A lot of pressure is weighed down on the victim to withdraw the case. Other then the pressure on the victims, the witness relatives will withdraw their co-operation and thereby defeat the case.
According to the late Chesoni C J, the most taxing problem in the courts are the legal issues of consent and corroboration. The prosecution must prove that:-
There was rape and that a sexual act occurred and there was penetration.
Some type of force actual or threatened was used.
Sexual act occurred without consent on the part of the complaint
The victim may not have probably not have been in a position to obtain medical examination. This may be due to the fact that most victims have the immediate instinct to wash off the “dirt” instead of seeking a medical check-up. This amounts to less of evidence. In any event examination may have to be carried out by a male doctor which psychologically may discourage the victim from going for examination.
The requirement of corroboration rape is not necessary however the learned magistrate must warn himself of the danger of convicting on uncorroborated testimony of prosecutrix17.
With respect to minors S.124,18 evidence must by law be corroborated with other material evidence, burden the prosecution in both instances is thus very heavy.
Technical Requirements of corroboration
The evidence must be admissible in itself – it has to pass this test first
It must be from a source independent of the evidence required to be corroborated
It should be such that it tends to show by confirmation of some material particular not only that the offence charged was committed but also that it was committed by the accused19.
Most sexual offences are committed in private away from the public eye. The requirement of corroboration is onerous.
Under Kenyan law the rape of a minor is classified as a lesser offence. This evidenced by the fact that the maximum sentence for defilement is 14 years while rape carries a maximum sentence of life imprisonment20. This distinction is not justifiable due to the fact that defilement should be treated more severely.
S.163(1) (d) of E.A Cap 80 Laws of Kenya allows the character of a rape victim to be impeached in court.
“When a man is prosecuted for rape an attempt to commit rape, it may be shown that the prosecutrix was of generally immoral character”.
Under evidence act when one brings in the character to another to issue them he opens up himself for an attack on his character but this does not apply in rape cases. This cause imposes fear on the rape victims not to file a complaint since the trial of a perpetrator may turn out to be the trial of the victim.
This mostly deters people from reporting rape cases and should be repealed from the evidence Act at the earliest opportunity according to the late Chief Justice Chesoni.
In Abazi Kibajo v. Uganda21 the issues of proof of rape was dealt with. The trial magistrate having warned himself of the dangers and proceeded to convict the appellant. The trial Judge said that the depressed condition of the victims of sexual offences is sufficient corroboration but case law has shown that this depends on the circumstances. Courts of law have quashed conviction of rape as not sufficient evidence before jury to justify the verdict that the prosecutrix did not consent, therefore court of appeal would not necessarily treat verdict of a jury conflicting evidence as final.
The facts in Abazi Kibajo 1965 EA 507 briefly:-
The complainant Hadija Namirembe was introduced to appellant in 1963. The appellant was to find her a job. On the material July 9, 1964 day the appellant had come to inform the complaint that he had found her job in Kampala. Present was the complaints father. The appellant then asked the complainant to accompany him to give her some books to read which she did. They reached the house but the owner was not there. Appellant left and came back with the owner (Mulani Swahab) who opened the door but left shortly. The appellant went into a room and held out a bag of books for the complainant. She stretched out her hands but the appellant instead pulled her into the room. He pushed her to the ground and she fell face down. The appellant was unable to turn her over as she resisted. He then inserted himself into her anus. She felt pain and pleaded with the appellant to let her turn over which he did and he then proceeded to have sexual intercourse with her. Swahab arrived after he finished having intercourse with her and it is claimed that the appellant told him he had committed an offence to which he replied “Don’t tell me that, don’t bring the devil to me, I am going to say my prayers”. The appellant then gave the complainant some water in a basin to wash her private parts. She refused and the appellant proceeded to do it for her. The complainant then ran home and told her stepmother. Her father took her to a medical assistant.
On trial the accused said she was 18 years, a virgin and had bled after the incident and that she was meeting appellant for the second time and that she only wrote one letter to appellant asking him to find her a job.
At cross examination the complainant admitted she was not a virgin, that she had written love letters to the appellant but only to induce the appellant to find her a job because it is the aunt who asked.
The trial Judge having warned himself of the dangers, convinced itself that complainant and evidence alone would have been accepted, but was re-inforced by medical evidence as concerns intercourse, parents evidence corroborated. Evidence of consistency of her conduct negatives her consent.
Sir UDO UDOMA said “I am of the opinion that evidence of Hadija Namirembo has been amply corroborated. I think corroboration of her evidence on the issue of sexual intercourse may in addition to the medical evidence be found in the evidence of her parents”. He further said her statement was corroborative due to the fact that they had been together at complaints, went to Swahab’s and she went straight home after they left there. He said “…the circumstances must lead irresistibly to the conclusion which a reasonable court must draw and which I now draw…..’
On appeal Sir Samwel Quastries stated that, Lack of consent should be seriously considered.
The point above is that in rape cases utmost honesty and integrity on the part of the complainant is required. The principle is that corroboration is an essential ingredient in which depressed conditions are allowed in sexual offences. Consent too much be taken seriously and can sometimes be implied as the learned judge did in this case.
In Nakholi v. The Republic22
The Judge said the complainant was not capable of consent. The trial Judge said “…had intercourse with her twice without her consent which is really of no importance, even though the accused is not charged with defilement for the complainant then was only about 13 years. She could not consent legally”.
This therefore was a serious misdirection as lack of consent whether defilement or rape is important. At S.139 the two essentials are carnal knowledge and lack of consent and both must be established by prosecution and accepted by the court before conviction for rape can be arrived at. Tender age however implies lack of consent, as she is unable to understand what is happening.
On appeal, the court said “…while a girl under the age of 16 is perfectly capable of consenting… the law provides that such consent affords no defence to a man on a charge of carnal knowledge of girl under 16; but there is no provision as to the crime of rape… Its necessary that the prosecution should prove that the girl or woman did not consent and that the crime was committed against her will.” The fact that the girl was weak, is enough to prove there was no consent but the court misdirected itself in concluding consent of no importance and the accused is therefore guilty.
S.145 which deals with carnal knowledge has been confused in S.139, which defines offence of rape. At S.145 consent is no defence and the purpose is to protect the virtue of girls under 16 years.
It is safe to bring a charge under section, which makes it an offence to have carnal knowledge of a girl of that age rather than bring it under a charge where consent is a necessary element. It is also desirable to add the offence of defilement to that of rape in cases where the complainant is under 16 such that incase rape charge broke down on the issue of consent.
The CPC allows courts too to convict on offence other than the one charge but the trial Judge misdirected itself and the court appeal did not consider it proper to substitute conviction under any other sections. Appeal was allowed and conviction quashed.
The facts were the appellant after a sports meeting together with one Nelson offered to escort the complainant and her friend home prompting two members of the complainant family to oblige. On the way the appellant held and raped one Mary Anyango twice while Nelson interfered with the other girl. They then continued walking with the girls weeping. They met complainants brother and uncle coming to look for the girls. The appellant and one Nelson ran away. Report was made to the police and the headmaster of the school. The doctor on examination found a recently ruptured membrane but no spermatozoa or bruises after 2 days. Appellants say they met people with weapons led by Humphrey saying “today they die” and they ran. Trial judge found appellant guilty.
Reforms to the law on Rape and Defilement
Defilement and Rape should have similar treatment in law
S.163 Evidence Act should be repealed to exclude history of the victim being put on the spotlight.
Proof of element of force should be admissible e.g co-ercion, fraud and etc
Indecent Assault
S.144 (1) of P.C. Cap 63 has construed this offence as “Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony and is liable to imprisonment for 5 years with hard labour with or without corporal punishment. The definition does not tell us how unlawful or how indecent the assault should be to warrant conviction. This is entirely left to the courts for construction.
The crime can only be committed by the men according to the above definition. It should expounded to include women too.
In Hamisi V. R (1972) EA 367 appellant was convicted of indecent assault having dragged the complainant on the ground with threat of raping her. It was held assault becomes indecent if accompanied by utterances suggestive of sexual intercourse.
Accused was charged with attempted rape contrary to section 132 of P.C but, on the evidence the magistrate found him not guilty of the offence but guilty of indecent assault contrary to section 135 sub section 1 and sentenced him to 3 months in prison.
The facts briefly were: On 26th June, 1970 Esther Hyenga, the complainant was going home from government guesthouse in Tabora. The accused who was riding a bicycle overtook her and alighted ahead appearing to be repairing his bicycle. As she was passing the accused threw down his bicycle and held the complaint and said he was going to have sexual intercourse with her by force. The accused dragged her to a place with tall grass, threw her to the ground and removed a knife. He threatened to kill her if she did not comply. He further ordered her at knifepoint to remove her under clothes, which she did. The accused started to remove his trousers but as he was doing so, a police car passed nearby and complainant called for help. The driver took both of them to the police station and the appellant was later charged with attempted rape.
The magraid the facts could not sustain rape. The state attorney said that the chasing and knocking down of the complainant when the accused already mentally decided to have sexual intercourse with her for force supported the alternative verdict of indecent assault forcing the accused to remove her underpants amounted to him doing it and as such was tantamount to indecent assault.
R. v. Haruner Ibrahi (1967) HCD case No.76 was cited. The accused here was convicted by the trial court of attempted rape. He had dragged the complainant to a ditch, placed his hands over her mouth and pulled down her underpants but while lying on her, he was observed by a passer-by and he fled. The High Court held the acts of the accused did not amount to attempted rape but found that his acts were consistent with indecent assault. Therefore the threat in Hamisi V. R amounted to more less removing the pant himself.
The formation of intention to have sexual intercourse by throwing her to the ground in order to accomplish his desires amounted to indecent assault.
The judge said he failed to find a local decision supporting argument that assault on the part of the body of complainant, which follows indecent utterance by an accused amounts to indecent assault.
In R. V. Culgan (1892), 19N.S.W. 160 “To Constitute indecent assault an indecent act trust be proved and mere dragging to complainant by accused to a place he could have sexual intercourse with her is not, question whether an act decent in itself was indecently committed with an indecent aim was thus discussed her. The decision was followed in R v. Abrahams (1918)32 C.P. it 590 a South African case. These 2 decisions however were not followed by the supreme court of Ontario in R v. Cheng (1915)32 Ontame 66 held indecent assault must have an element of indecency.
Lord Esher in col. Valentine Baker – The times 30th July, 1875 instructed the grand jury thus.
“If a man kisses a young women against her will, and with feelings of carnal passion with a view to gratify his passions or to excite hers, that would be an indecent assault”.
He went on; “The kisses of young people in seasons of universal gaiety are not indecent, but kisses given by a man under the influence are carnal passion are indecent.
In R v. Coombes, (1991) crim L.R.54, a light touch on the woman’s back was held to be indecent assault because though the touch was not by itself indecent, it was accompanied with words which suggested a request for sexual intercourse.
MNAZAVAS J agrees with Lord Esher that assault on lady though not indecent in itself becomes indecent if it is accompanied by indecent utterances suggestive of sexual intercourse. The judge said dragging to the ground and forcing her to remove her underpants amounted to removing them himself as stated by the state attorney. He is found guilty and the alternative verdict is fully supported by the evidence.
In Stephen Mwendo Koti V. R HC Machakos, the appellant had been charged with 3 counts.
Count 1 contrary to S.144 P.C of indecently assaulting one Susan Muteti by touching her private parts. Susan Muteti submitted evidence that Mwendo went to her home drunk and indecently assaulted one Susan Muteti by touching her underpants. The complainant ran to her husband in the shamba to inform him. The Resident Magistrate in Yatta convicted the appellant and sentenced him to 3 years with 1 stroke of the cane. The High Court sitting in Machakos overturned the conviction on the premise that “There was no evidence or proof of the offence in the subordinate court. The court argued that the evidence by Muteti is limited to the appellant coming to her house drunk and expressing intentions to have sex with her but that he only tries to remove her underpants but she fled. Now that does not constitute indecent assault.
In Omwambia v. R C.A 4/95 the Court of Appeal used a strict interpretation on indecent assault. It stated “These particulars that the appellant touched the private parts of the complainant can mean nothing else than that the appellant touched with his hands the private parts of the complainant which to give the well-known and ordinary meaning of the phrase means genitalia of the complainant and no other part of her body or as defined by the shorter oxford English Dictionary the pudenda or the external genital organs.”
The high court stated that in Omwambia case the appellant had merely touched the bottoms of the complainant and put his hands under her blouse. The judge in that case concluded that those facts did not constitute a charge of indecent assault under S.144 PC.
There should be reform in terms of degree of indecent assault. There should be separation of touching other body parts other than the private parts from touching private parts with intention of achieving sexual gratification.
This should be for purposes of deciding the amount of punishment.
Incest
The judicial process fails incest victims in a number of ways. There is usually difficulty in their prosecution due to the circumstances under which they take place. It is difficult to prosecute incest since most of them are not reported and the perpetrators too are close relatives and the closer they are, the more difficult it will be to reveal the same.
The maximum sentence for a victim under 13 years is life while over 13 years the maximum sentence is 5 years. The question of consent however may not arise. These are provided for under S.166.
S.16723 Any female person of or above the age of 16 years who with her consent permits her grandfather, brother of son to have carnal knowledge of her knowing to be him to be her father, grandfather, son or as the case may be is guilty of a felony and is liable to imprisonment for five years. The Attorney General too has to give his consent before one prosecutes an incest case.
In R v. Duncan Gichuki Waiyaki, the Attorney General was proved as a very inefficient officer whose consent may take too long. Duncan was charged with two counts of incest by a male as per S.166(1) P.C and one count of failing to inform a medical practitioner for venereal disease treatment under S.163 of the Public Health Act Cap.242. He had had carnal knowledge of his twin daughters under 9 years of age between 2nd and 24th May, 1995. The 1st mention was 13th June, 1995 and by that time no consent had been granted. The consent was obtained on 16th August, 1996. By the time consent was granted the case had been mentioned 17 times.
It was the mother’s evidence that she had been married to the accused from 1978 to 1995 that they had twin girls and that on 21st June, 1995 she noticed the girls felt pain and they told her they had been raped by their father while being taken to school. They said their father used to sodomise them in a bush in the evening hours and that they had been raped a week before but they did not report since they feared the accused who used to harass them at home.
The accused used to quarrel with the wife and sometimes she would disappear to her parents home. They were in the process of divorce.
The accused was released on a bond of Kshs.30,000/= and during the 2nd mention of the case, the prosecutor asked the court to warn the accused to stop harassing the two girls and their mother.
Dr. Gikonyo testified to the effect that Waiyaki had a venereal disease. A Dr. Ndakani who had treated the girls had to be compelled to come to court as he was reluctant to do so.
Summons was issued in July, 1997 and he appeared in January, 1999. There were 21 mentions in between. A warrant of arrest of finally issued in October, 1998. His evidence was “on examination the girl had no hymen. She was having whitish discharge. I took the samples for examination in the lab. The result was that there were no spermatozoa but there was light infection.
Ruling was delivered on 14th April, 1999, nearly four years after the case was first mentioned. Ole Tukayi the District Magistrate ruled that Waiyaki had no case to answer because there was lack of material evidence implicating the accused.
He said the law relating the sexual offences is clear. Before the accused is convicted the evidence must be corroborated. The evidence of the two girls cannot corroborate each other but can only be corroborated by material fact.
The evidence of the mother indicated she had noticed the girls feeling pain and they said they had been raped by the father.
The mother, it is important to note, was quarreling with the father and a divorce was pending. Their relationship had soured. The prosecution evidence does not show a prima facie case to warrant the accused to be put on defence and the accused was acquitted.
The Magistrate concluded that the wife was punishing the husband due to their soured relationship.
FACTORS THAT MAKE WOMEN VULNERABLE TO GENDER – BASED VIOLENCE
SOCIO – PSYCOLOGICAL PERCEPTIONS
In many societies, culture and tradition have played a role in perpetuating domestic violence. Societal norms have provided the “proper” role for men and have given men a free reign over the women and any challenge to these rights have been problematic24. This perception has made it difficult for the law to penetrate and give women relief they need.
Cheryl Thomas25 says “In its articulation of its laws, the society makes the most powerful statement of what will and will not be tolerated, and its enforcement of those laws. Society demonstrates its level of commitment to the values it professes and begins the process of transforming words into reality”.
The above statement is completely true and relevant to the central problem of domestic violence in relation to its applications of the laws and its enforcement in domestic violence cases. This is clearly evident in the way legal system or how criminal justice system treat victims of domestic violence both in word and in act and the slow pace at which it is advocating for a change of perceptions towards the problem in Kenya.
The general public perceives domestic violence as a non-issue and has failed to acknowledge that wife – beating is a crime at all. The general belief is that domestic violence is a private issue to be dealt with at home and hence involvement of the police and the courts is an encroachment to purely domestic affairs.
Socialization therefore plays an important role in shaping our expectations about how men and women should treat each other, social and conditioning of one’s belief and behaviour takes place in both the conscious and unconscious ways. The family through adulthood usually does this conditioning at initial stages of growth of children and the same is perpetuated through the school and the community26. At family level, the popular opinions about gender stereotypes are passed on both girls and boys as they grow through adolescence. The girls are socialized to be submissive, caring, understanding, loving, gentle, persevering and motherly which make women quite docile. The boys are taught to be independent, authoritative, assertive, aggressive, tough and orderly as they are the future heads of this house. The ideologies and images that the women absorb and hold during their formative and uncertain years of adolescence through socialization, plays a crucial part in determining the decision made for future roles in the society.
Patriarchy has also made women vulnerable. Del Martin27 defined patriarchy as the system that gives a man the right of ownership to some degree over the property and people that comprise his household signifying his overall supremacy. The institution still thrives and is practiced today in its entirety. It is also used to establish and maintain control of women by men. Most people view that a man is the head of the house, and the family like any other institution must have rules, and a ruler who ensure that there is some discipline in the family and that the ruler is the husband.
A lot of statements clearly indicate that the strong belief that a man has the power and control over his wife and all that pertains to his household is still practiced are there to stay, because the process of socialization reinforces those partriachy ideologies which teach men that they are the natural ruler and has power to control the women “to put them in their place”.
Most women express this ideology that men are supreme and are the rulers of their household, it becomes very difficult for the law enforcement agency to penetrate into their houses to eradicate domestic violence. They see that intervention as an encroachment to their private spheres as they are the bosses of their homes and no outsider including the police can tell them how to manage the affairs of his home. Del. Martin supports this view when he said that historical roots of our patriarchy family models are ancient and deep, and the task of digging them up and establishing a more equitable human relation is still a formidable one28.
ECONOMIC FACTORS
Economic factors contribute greatly to women’s vulnerability to gender-based violence. Women are in most instances not financially endowed to take care of perpetual needs like payment of school fees, rent, food etc. This leads to their vulnerability as they will totally submit to their husbands without question. The man will take advantage of the situation to the extent of administering violence on the woman.
The above may also be the reason why women prefer to keep quite about their situations hence the confidence and courage on the husbands to continue doing the same. A number of women therefore are usually unable to take action against their violent husbands, or took action but withdraw the charges against the husband, because their financial support depended on their husbands to a great extent.
The economic dependency syndrome has also been reflected incases where a Nakuru magistrate had to discharge a batterer sentenced to serve three years in jail for causing grievous harm to the wife. The wife subsequently pleaded with the judge to release the husband since she could not cope to feed her children or pay school fees because the breadwinner had been jailed and they were left suffering.
At an interview the judge who had initially jailed the husband but freed him after pleas from the wife said:
“The husband who was jailed was the sole breadwinner for his family, when he was jailed the woman was helpless, she did not have any source of income and could not afford to buy food or pay fees, she saw her suffering as having been caused by the court and asked for my intervention. I pitied the woman, so I had to call for the file and I had for the file and I had to discharge him to prevent his family from suffering”29.
For several women therefore keeping the relationship despite the violence is more important for one practical reason and the reason is financial support, they derive from their husbands.
Few women are economically independent and or their pockets can allow them to manage comfortably without their husbands.
Most of the time, it is more difficult for a battered wife who is wholly dependent on her husband financially to report her husband to the police or press charges against him effectively than it is for a woman who is economically independent.
Economic factors therefore make women vulnerable. This calls for urgent need for empowering the women to have the ability to make their own decision concerning the violence they are faced with. Women can not obviously make rationale decisions because of lack of empowerement30. They perceive themselves as helpless or powerless because they economically depend on their husbands for support. There is therefore need to create awareness of their rights to enable them respond appropriately to the problems they face.
Women who are economically dependent, as we saw earlier are less vulnerable. They are able to support themselves and children incase the husband is locked in or can decide to live on their own if violence becomes unbearable and also minimize unreasonable behaviour from their husbands31.
Magistrates have admitted that women who withdraw cases are most of the time not economically independent while those who are economically endowed always let the cases proceed.
Economic hardship also contributes to fight in the family, as the men who appear to be in control of finances, justify their beatings when they give out money and their wives do not use it properly and even want to control their wives own finances, when their wives are also in gainful employment32.
Lack of Awareness and the violent nature of the society
Most women as we have already discussed are not aware of their rights, legal or otherwise. Consequently they are not aware that if the society directs violence against them, they have a means of redress.
Use of drugs and alcohol has contributed to the violent nature of the men and the society at large33. Many family disputes involving fighting are often traced to the use of alcohol and drugs. The common belief that alcohol, is something that takes over the control of the batterer encourages this practice.
Macleod Linda34 says the perception of alcohol as an uncontrollable force behind the violence discourages a constructive solution to end violence. The batterer will in most circumstances say he was drunk and did not know what he was doing and the beatings will continue.
The violent nature is also triggered by infidelity and suspicions. To Del Martin35, under certain circumstances and for certain people, wife beating has undertones of romance and drama. He further explains that throughout the history, the wrathful husband has risen up in righteous indignation to strike his unfaithful wife for her own good and for the good of their marriage, or simply he feels or he has the right to express his hurt and anger in a violent manner.
The women sometimes are persuaded to enter into extra-marital affairs to counter their husbands beatings under claims that they are having these relationships.
Under the pretext of polygamy, men think they have a right to sleep with other women other than their wives. Tradition is therefore invoked to justify certain mischievous acts by men at the expense of women. This is due to lack of awareness on the part of the women.
SOCIAL AND LEGAL RESPONSES TO VIOLENCE AGAINST WOMEN
SOCIO – CULTURAL RESPONSES
Most of these seem to encourage and condone rather than discourage gender-based violence. Evidently from our discussion culture has been used to justify for example wife chastisement and indeed under customary law, it is usually stated that reasonable wife-chastisement is allowed. Some ethnic groups in Africa, however, seem to abhor violence by men directed at women whom men are supposed to protect36.
Admittedly, socialization, as mentioned earlier that men are superior to women encourages gender-based violence. They come to think that women are lesser species than they, who can be abused without dire consequences attending such abuse.
Men should be re-socialised in order to reverse gender violence against women especially in pre-school, primary and secondly schools is extremely vital.
Men also seem to respond to violence positively when the women involved are their daughters, wives, female relatives, female friends etc. To discover reasons in the above scenario may be useful in the wider society to curb general violence against women.
Women who have become aware of their rights have continued to challenge their husbands on their mischievous behaviour and have refused to condone it. The men end up beating their wives thus calculating a violent nature to ensure women do not inquire about their whereabouts.
Violence against women is therefore a function of a belief fostered in all cultures that men are superior and that the women they live with are their possessions or chattels that they can treat as they wish and as they consider appropriate.
Awareness among the women enables them to resist violence and these would include37:-
Knowledge that violence against them is illegal, immoral and unacceptable.
Knowledge if the avenues and institutions through which one can seek redress incase of gender-based violence
Readiness to redress violence
Independence of mind and economic means
Dialogue with spouse or male friends
Support institutions within the community for victims of gender violence
CUSTOMARY CONSIDERATIONS
Wife chastisement is a “legal” consideration in the society. Wife beating stems out from ancient, time-honoured traditions, which is believed to be a cultural right of a husband and a tradition which was practised by their forefathers and handed down to them. As long as the partriachal system that reinforces this belief still exists, it will be difficult to improve the woman’s situation especially through legislation, because the men and society in general will not recognise such legislation out-lawing wife-beating as this will tantamount to taking away men’s control over women.
In most African societies, divorce is unheard of but women who are divorced are stigmatised and seen as failures and are also considered bad and promiscuous as Alice Armstrong puts it in her book “culture and choice: Lessons From Survivors of Gender violence in Zimbabwe pg 10.”
Such women are lowly regarded and when they die they are buried outside the homestead since they are outsiders and do not belong where they are born.
LEGAL RESPONSES
Here it is incumbent to scrutinize the legal or the criminal justice system. The Kenyan justice system apparently has failed to acknowledge the criminality of intimate terror to protect women from this offence. The police, the prosecutors and even the judges or magistrates show unwillingness to understand causes and consequences of domestic violence and even to enforce the laws against the vice. The attitudes and conduct of law enforcement officials reflect those of the general community which is the attitude that domestic violence is not a serious crime but rather a private problem to be dealt with at home or by woman herself.
Del Martin38 says sanctity of the family pervades the world of law enforcement. He further says a man’s home is his castle and the police, district attorneys and the judges hesitate to interfere with what goes on behind that tightly closed door.
The police do not have any specialised training in responding to incidence of domestic violence. Their training is based on how to maintain peace and order generally but there is no specific training related to procedures of handling domestic violence cases. The police have hence been a stumbling block to victims seeking justice.
The police too do not act swiftly in arresting husbands who have beaten their wives and if they do, they rarely charge them in court. They instead turn themselves into counsellors, pointing the finger at the wife for disobeying the husband. They then persuaded the wife to drop the charges and release the perpetrator back to the society. The safety of the woman is thus not their priority.
Sheelagh Stewart39 says the police have enthusiastically embraced the idea of counseling as a solution to domestic violence. Police in most cases are non-responsive to the complaints of battered women and often actively hostile to women repertory domestic violence. Their attitudes and assumptions that they have about women and domestic violence undermine the proper functioning of the law and present difficulties to women victims trying to access justice.
Prosecution is also another area of concern with regard to legal responses. The United Nations report says inter alia40:-
“The decision to prosecute cases of domestic violence rest, in most jurisdictions, with prosecutors office which represents the state. These offices have not prosecuted most cases of domestic violence referred to them, nor have they treated these cases as involving violence between strangers”.
The prosecutors just like their counterparts, the police sometimes try to discourage women from using the law to protect themselves.
The courts too do not tend to regard intimate terror seriously. Del Martin41 says if judges would get tough and act like judges, rather than counsellors perhaps women could obtain relief through the judicial process.
However in Kavata murder case42, the learned judge gave a clear statement from the judiciary that domestic violence is a crime that needs to be checked and for the first time a batterer was imprisoned for life for murdering his wife. This was reported in the East African Standard on 2nd August, 2000 and compiled by Margaret Were on page IV.
It is important to note however that there is no specific law dealing with gender violence. There are only laws on assault, assault causing grave bodily harm, murder43. The existing provisions of gender violence are inadequate because they do not specifically deal with domestic violence.
Other factors would include the fact that violence at home rarely has other witnesses, victims are reluctant to complain, the punishment is not severe enough not to mention that a lot of perpetrators never get to the trial stage, leave alone the punishment.
The law enforcement machinery is inefficient and insensitive to the peculiar needs of women. It is biased as seen from the police, the prosecutors and the courts.
The constitution too has no specific provision on the subject. The bill of rights, the right of security, the rights and liberties of the person given a wider interpretation would include domestic violence as an infringement of a right to security. If the judiciary was not biased, there are various provisions of the law that can be used to fight domestic violence44.
In Parvin Singh Dhaley v. R, Mrs. Dhaley was severely burnt on 5/12/95 and was rushed to M.P. Shah but she died on 19/12/95. On 30/1/97 her husband on 21/12/97 the Court of Appeal quashed the conviction and released him. Pravin’s case was that the wife had died from a glass cylinder.
At first, the Ley cylinder was proved to be safe and that there was no proof. Allegation to his father-in-law and sister in-law by him that he had planned to kill his wife. Grounds of quashing the decision.
Trial judge did not take into account that Parvin had denied making the confession.
Trial judge had refused to allow the defence to play a taped conversation between Mrs. Dhalley and her alleged lover.
Defence case was that Dhalley had killed herself because she and her husband had quarreled over the love affair.
The defence however had no evidence of Mrs. Shaley’s suicidal tendencies.
In quashing the conviction the court said:-
“… on our part we suspect that the appellant had something to do with the death of his wife but suspicious alone however strong it may be cannot take the place of solid affirmative proof required on the part of the prosecution”.
R v. Dan Ndeda Wamamba c.c. No.16419/97
On the 8th of December 1997, Milka Akinyi, was carried in a wheel barrow to Kayole hospital. She was unable to speak as she was in a comatose. Two days had passed and the police had visited her home. She regained consciousness in January, 1998.
Her husband Dan Ndeda on 8.12.97 was charged with assault causing actual bodily harm, contrary to section 251 p.c. In her testimony Akinyi, alleged that on 7/12/97 her husband beat her severely on the head and she fell unconscious as a consequence of the blows. The neighbours intervened and asked him to take her to hospital but instead he took her to their house, undressed her and raped her. He broke a stool and began to shove one of its broken legs into her private parts. She was too weakened and she lost consciousness. The perpetrator was never charged with rape or grave bodily harm despite the victim being in a coma for almost a month.
S.4 P.C defines grave bodily harm as “Any harm which amount to a maim or a dangerous harm (endangers life) or seriously or permanently injures health or which is likely so to injure health or which extends to permanent disfigurement or to any peculiar or serious injury to any external or internal organ, membrane or sense”.
S.234 penal code prohibits assault causing grievous harm and carries maximum sentence of life imprisonment with or without corporal punishment for assault causing actual bodily harm is five years. The accused was convicted on his own plea of guilt and fined Kshs.10, 000/= or four months imprisonment in default. The accused had been in remand for one year and six months and upon his release went and beat his wife again. He was arrested and charged with assault again.
FIDA REPORT 7/8/97 – BADO MAPAMBANO; KENYAN WOMEN DEMAND THEIR RIGHTS
Senior Resident Magistrate Njuguna in Kiambu on 21/5/98 sentenced a seventy-year-old man to hang for robbery. On the same day that he did this, he reduced a murder charge to manslaughter in a domestic violence case.
According to committal documents, the accused knocked a stove, which is said to have exploded, and burned him and his wife, Wanjiru. Four days later, the victim died. In reducing the charge to manslaughter, senior Resident Magistrate Njuguna is supposed to have stated, “This is the African man’s way of disciplining a wife”.
CONSEQUENCES OF GENDER BASED VIOLENCE
Violence, whatever the nature is unbearable. Victims must psychologically deal with in so that it does not harm them irretrievably preferably through psychiatric help.
Women have not learned to accept violence, as their male counterparts tend to perceive. They have only learnt to rationalize that theirs is violence prone life and therefore they must tolerate violence for their survival and that of their children.
Women invest much time dealing with gender – based violence which time could be used productively.
Women who have been subjected to violence are always fearful, insecure and have an enduring sense of in equality vis a vis the male gender45. The threat to violence alone is violence since it keeps them suspended in fear, unsure of themselves and vulnerable.
Eradication of politically and economically motivated violence should forever be agitated for.
Robbing of half the population in the society, their sense of well being and confidence to perform their best in societal affairs and exposing them perennially to violence makes the society poorer46.
Children too rebel against violence, which sometimes often lead them to run away from home. As a Consequence therefore, there is an increasing menace of street children47.
CATEGORIES OF VIOLENCE AGAINST WOMEN
Broadly violence against women can be categorised as48:
Macro or broad-based violence; and
Micro or specific and episodic violence
Violence can also be categorised as
Physical and physycological or mental
Spousal or non-spousal
Domestic or non-domestic
Violence against intimates and violence against non-intimates
Direct and indirect
Low intensity, medium intensity, high intensity or chronic violence
Episodic, periodic and perpetual violence
Macro violence
Consists of everyday discrimination on women and violence based on gender. This form of violence mainly tends to be mental or psychological49. It debases women on a continuous and long-term basis. Even where a woman is exposed to micro-violence, she cannot avoid being the subject of macro-violence.
Micro-violence can also be indirect violence in that the perpetrator is not necessarily one man or an immediately identifiable group of men.
MICRO VIOLENCE
This consists of specific episodes of violence, which may be isolated, or recurring50. Most micro-violence tends to be physical. These mostly consist of violence against morality as male taunting, male staring of women, unsolicited male contact with a woman, spousal bearing, female circumcision etc.
One should be aware that violence against women takes many forms. Only women are able to adequately understand and confront these many forms. Before the law is mobilised to respond to violence against women, the types of violence that exist and need to be addressed must be grasped.
WEEK X AND XI
THE PLACE OF WOMEN IN THE INTERNATIONAL LEGAL REGIME
Due to the invisibility of discrimination against women, most countries of the United Nations (UN) Organizations come up with a number of human rights instruments1 which addressed the problem specifically with a view of alleviating the vice of treating women as third class citizens.
Nations that were agreeable to endorsing the instruments were required to make them part of their national framework2 to promote and protect the rights of their citizens regardless of sex.
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
This entered into force on the third of September 1981 in accordance with Article 27.
Article 1 defines discrimination against women as “…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on basis of equality of men and women, social, cultural, civil or any other field”.
At Article 2 the same is condemned and state parties agree to undertake policies in pursuit of fulfilling the eradication of all forms of discrimination.
An Article 3 state parties agree to ensure full advancement and development of women for purposes of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
Article 4 permits de facto equality between men and women, which must be discontinued when the objectives of equality of opportunity and treatment have been achieved. These measures however must in no way entail as a consequence the maintenance of unequal or separate standards. Special measures for purposes of maternity shall not be considered discrimination.
Article 5 and 6 deal with modification of social and cultural patterns of conduct of men with a view of prejudices bases on the idea of the inferiority or superiority of either sexes or on stereotyped roles for men and women. State parties shall ensure family education include proper understanding of maternity and common responsibility of bringing up a child while ensuring the best interest of the child is of utmost importance.
States shall ensure there is legislation to protect all forms of trafficking in women exploitation of prostitution of women.
Article 7 obligates state parties to take all appropriate measured to eliminate discrimination against women in the political and public life of the country and, in particular shall ensure to women, on equal terms with men, the rights to vote, participate in formulation of government policies and non- governmental organizations.
Article 8 calls for equality in representing their governments at the international level and to participate in the work of international organizations.
Article 9 - this protects citizenship. The essence is not women can change or retain their nationality. Upon marriage or change of nationality of husband, she cannot be render stateless and the husband’s nationality cannot be forced upon her. Equal rights shall also be granted with respect of nationality of the children.
Article 10 – Equal rights shall be granted in the field of education. All women whether in rural or urban shall be granted equal access for the achievement of all levels of education. The examinations shall be the same and elimination of stereotyped concept of the roles of women at all levels shall be incorporated. State parties shall also ensure reduction in drop-out rates ensure access to specific educational information e.g family planning, ensure access to adult and functional literacy programmes and also same opportunities to benefit from scholarships and other study grants.
Article 11 – State parties shall ensure the right to work is inalienable, same employment opportunities, free choice of profession and profession and employment, right to equal remuneration, social security, protection of healthy and safety working conditions with special regard to reproduction.
Concerning marriage and maternity state parties shall prohibit dismissal or grounds of pregnancy, maternity leave and discrimination on basis of marital status. Introduce maternity leave with pay, provide necessary support to enable parents to combine family obligations with work responsibilities and participation. Provide special protection to pregnant women and work proved harmful to them. Lastly, legislation with respect of this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.
Article 12 – state parties shall undertake to provide access to health care services including those related to family planning. They shall also ensure appropriate services to women with regard to pregnancy, confinement and post-natal services, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Article 13 – state parties shall ensure the right to family benefits, the right to bank loans, mortgages and other forms of financial credit and the right to participate in recreational activities.
Article 14 extends protection to women in the rural areas taking particular due regard to their significant roles in the economic survival of their families, including their work in the non-monetised sectors of the economy. Appropriate measures should b taken for the application of this convention on the rural women.
Article 15 provides for equality before the law. Women shall be accorded equal legal capacity e.g. to conclude contracts and administer property. Private instruments aimed at limiting women’s legal capacity shall be deemed null and void. Women shall have the freedom to move and choose residence or domicile.
Article 16 provides for matters relating to marriage and family. Women shall freely choose a spouse and enter into marriage with their full consent. They shall have same rights and responsibilities during and upon dissolution of marriage. They shall also have some responsibilities with regard to the children subject to the best interest of the child3, they shall freely decide spacing and access to such information, responsibilities with regard to guardianship, trusteeship, adoption and also personal rights as husband and wife with regard to choosing a family name, profession or occupation.
Women shall have ownership rights, acquisition, management, administration, enjoyment, and disposition whether free of charge or for a valuable consideration.
Child betrothal4 is of no legal effect and minimum age for marriage shall be specified and registration of all marriages in an official registry shall be compulsory.
Article 17 – 30 deals with modalities for the operation of committee established to oversee the implementation process and duties and responsibilities of party states to the committee.
From the foregone, the convention5 assumes that the undertaking by state parties to eliminate discrimination is an end in itself and discrimination can be fully eradicated. It fails to recognize that they are other perpetrators e.g. multi-national corporations.
The convention also provides for the contribution of a committee and obligates states to prepare reports at frequent intervals. These reports to some extent five NGO’s an opportunity to identify and address areas of concern in the implementation of CEDAW.
However there is no mechanism to determine if the reports are truthful, not submitted in time or not submitted at all anyway. There are also no sanctions for the above. Kenya ratified the convention in 1984 and submitted its first and only report so far in 1991, seven years after ratification.
Reservations by countries have also hindered the spirit of the convention. For example Kenya reserved article 13 which provided that state parties shall take all appropriate measures to eliminate discrimination against women in all economic and social areas inorder to ensure equality between men and women with respect of: -
Right to family benefits
Right to have loans mortgages and other forms of financial benefits
Right to participate in recreational activities, sports and all aspects of cultural life
Kenya was schedule to submit another report in 1998 but did not despite intense lobbying by women rights activists and organizers. Most asked the Attorney General to submit the report assuming the chair is responsible who said it will do so very soon. Later they argued it’s the women Bureau in the Ministry of Home Affairs, which was responsible for the report. The Women’s Bureau has not prepared any report. Thus Kenya lacks commitment to the full enjoyment of women’s rights under the CEDAW.
Ratification could therefore be rightfully termed as a personal relation exercise.
DECLARATION ON ELIMINATION OF VIOLENCE AGAINST WOMEN(DEVAW)
DEVAW recognized violence as a manifestation of historically unequal relationships between men and women and condemns the violence as one of the “crucial social mechanisms by which women are forced into subordinate position compared with men”. The declaration include explicit directions to member countries not to invoke any custom, tradition or religious consideration to avoid their obligation with respect to its elimination”6.
The declaration contains specific steps a member state should take in combating violence which include investigating and punishing acts of domestic violence, developing comprehensive legal, political, administrative and cultural programmes to prevent violence against women, providing training to law enforcement officials, and promoting research and collecting statistics relating to the prevalence of domestic violence.
Article (4) of the declaration directs that state parties to the treaty such as Kenya must work to ensure that women subjected to violence and their children receive “specialized assistance and social services, facilities and program as well as support structures and should take all other appropriate measures to promote their safety and physical and psychological rehabilitation7.
The provisions of CEDAW and DEVAW were further strengthened and reinforced in the Beijing Declaration and platform for Action8. Kenya sent the then minister for culture and social services, Mrs. Nyiva Mwenda as a government representative among others delegates. The said platform for Action set forth strategies for governments to adopt, to address the problem of violence against women.
Apparently Kenya has failed to adhere to the provisions of international instruments despite ratification, prosecution of domestic violence cases has not been adequate. The legal system too has a lot of obstacles and hurdles for women to overcome. The police officers rarely the husbands arrest and when they do they turn into counsellors with traditional backing, mostly directing the misdeeds at the wife.
Police and court records have largely violated CEDAW. The convention required statistics to be kept. The Kenyan system does not keep these and where they are kept, there is no proper distinction from other normal assaults etc. Furthermore these statistics are in most cases doctored in pursuit of portraying an image to the international community. This is an indication of Kenya’s lack of commitment in stamping out the problem.
The convention stipulates for state parties to establish prevention and counseling programmes. In Kenya there are none of these government-sponsored prevention programmes to provide counseling to victims of domestic violence and the burden has been left mainly to NGO’s and individuals of good will who are concerned with eradicating the problem. Unlike Zimbabwe, Kenya has no shelter a battered wife can run to or facility available to deal with unique problems created by domestic violence.
In a nutshell Kenya has failed to meet the requirements as spelt out in the declaration on Elimination of Violence Against Women (DEVAW) and the convention on the Elimination of All forms of Discrimination Against Women (CEDAW). General Recommendation No.19 and Beijing Declaration and platform for Action.
UNIVERSAL DECLARATION OF HUMAN RIGHTS AND INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Universal Declaration of Human Rights as an international instrument has several provisions relating to an individuals right to be free from violence and abuse.
Article 3 of the declaration provides that “everyone has the right to life, liberty and security of the person”.
Article 5 provides that no one shall be subjected to torture or to cruel in human or degrading treatment or punishment9.
The international covenant on civil and political rights also provides that every human being has the inherent right to life.
Article 6 and 7 provides that no one shall be subjected to torture or to cruel, inhuman degrading treatment or punishment10.
By failing to protect women from private perpetrators of violence, Kenya has generally failed to adhere to its obligations under the universal declaration of human rights and the international covenant on civil and political rights.
There is therefore need for Kenya to comply with conventions to safeguard women’s interests and needs. There ought to be a state accountability and responsibility for failure to comply to facilitate implementation of the conventions by state parties.
AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS (THE BANJUL CHARTER)
This contains several avenues for protection of women’s rights. There are national, domestic, regional or continental legal framework represented by the OAU. The international framework is laid out under the UN system. The framework and mechanisms are assimilated within the African system.
Protection of Women Rights under the ACHPR
Article 60 and 61 takes into consideration various African instruments on human and peoples’ rights, the charter of the United Nations, the charter of the organization of African unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well from the provisions of various instruments adopted within the specialized Agencies of the United Nations of which the parties to the present charter are members.
Article 61 especially acknowledges the standards of these human rights as the one to be applied in the Banjul charter.
The provisions therefore enable the commission to develop human and people’s rights drawing from the existing international and regional human rights standards.
The ACHPR therefore adopts all the rights as laid out in other instruments and also the provisions of various instruments adopted within the specialized agencies of the UN which are party to the ACHPR.
The ACHR ensures the domestic laws of the countries advanced in women protection issues can be used by commission for resolution of disputes.
The Substantive Rights provided for: -
Article 4 ensures that human beings are not violated. Human beings are entitled to respect for his/her life and the integrity of his/her person. No one may be arbitrarily deprived of this right, not even the women.
Article 5 guarantees respect of the dignity inherent in a human being and to the recognition of his legal status. Exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment is prohibited.
Article 6 proclaims the right to liberty and security of the person. No one may absolutely be deprived of his freedom except for reasons and conditions previously laid down by law, particularly no one may be arbitrarily arrested or detained.
Article 8 guarantees freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
Article 9 – proclaims that every person shall have the right to receive, express and disseminate his opinions within the law. The impediment women have in respect to this right is that they are socialized to be submissive and it would be difficult for them to fully exercise this right.
Article 10 guarantees free association which apparently would include joining women groups.
Article 11 guarantees free assemblies subject only to necessary restriction particularly those in the interest of national security, safety, health, ethics and rights and freedoms of others.
Article 12 proclaims freedom of movement which includes right to leave and re-enter ones country.
Article 13 guarantees all persons freedom to participate freely in ones government. This means women have the right to be incorporated in the decision – making process in their states.
Article 14 proclaims right to property whether moveable or immovable .
Article 15 guarantees right to work under equal conditions and equal pay.
Article 16 proclaims right to health and imposes obligations on state parties to ensure its citizens are not deprived of this.
Article 17 guarantees right to education.
Article 18(1) provides that the state shall take care of the physical health and moral of the family.
Article 18(20 since the family is the custodian of moral and traditional values recognized by the community, the state shall have the duty to assist the family.
Article 18(3) “The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in the international declarations and conventions.
The charter recognises that if the family is protected then all other rights are protected then all other rights are protected. The values expected to be protected are not those discriminative of women.
Article 1 is general. Member states are required to recognise all rights, duties and freedoms enshrined in the charter and shall undertake to adopt legislation or other measures to give effect to them.
States are therefore mandated to translate the charter provisions including those on women’s rights into domestic law.
Article 2 – provides for enjoyment of the rights as outlines in the charter irrespective of inter alia the gender divide or sex. Both men and women are equally entitled to the rights.
Article 27 obligates every individual to a observe the rights and duties accruing to the family. It therefore creates responsibility or both parties i.e the mother and the father.
Article 28 obligates all persons to respect and consider his fellow being without discrimination, and to maintain relation aimed at promoting safeguarding and reinforcing mutual respect and tolerance.
Article 29 – every person shall work towards a harmonious development of the family.
IMPLEMENTATION MECHANISM
The rights typical of an African setting are protected. The charter however has not been reduced to local legislation which will thereafter enable the actual enjoyment if their rights.
The impeachment for the mechanism is the requirement for the exhaustion of local remedies11 which may take decades. Consequently it is quite laborious.
There are also reservations under Banjul charter. All the provisions are binding unlike the CEDAW12.
IMPLEMENTATION PROCEDURE OF A REMEDY
A state that believes another state has violated the provisions of the charter, it may, draw by written communication the attention of that state to the matter13.
The same communication is addressed to the secretary General of the OAU and Chairman of the Commission.
The state to whom the communication is addressed shall respond within 3 months. The response should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable and the redress already given or course of action available.
If the matter is not settled within the next three months through bilateral negotiations or any other peaceful, either if the two parties shall have the right to submit the matter to the commission through the chairman and also notify the other states involved.
If one state party considers that another state party has violated the provisions of the charter, it may refer the matter directly to the Commission by addressing a communication to the chairman to the secretary general of the OAU and the state concerned.
After ensuring local remedies have been exhausted, the commission may ask states to present it with all the relevant information. States concerned may also be represented before the commission and submit written or oral representation.
The commission then prepares within a reasonable time a report stating the facts and its findings. This report shall be sent to the states concerned and communicated to the Assembly of Heads of State and government. The commission shall also make recommendations while submitting report.
The commission submits to each ordinary session of the Assembly of Heads of State and government a report on its activities14.
A list of communications other than those of state parties to the present charter, shall be made by the secretary of the commission and transmitted to the members of the commission, who shall indicate which communications should be considered by the commission. A communication shall be considered by the commission if a simple majority of its members 84 decide15.
Communications shall be considered if they:-
Indicate their authors even if they request anomnity
Are compatible with the OAU or the present charter.
Do not contain insulting language directed at the state concerned and its institutions or to the OAU.
Are not based exclusively on news discriminated through the mass media
Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged.
Are submitted within a reasonable from the time local remedies are exhausted or from the date the commission is seized of the matter.
Do not deal with cases which have been settled by these states involved in accordance with the principles of the charter of the United Nations, or the charter of the organization of African Unity or the provisions of the present charter.
All communications shall be brought to the knowledge of the state concerned by the chairman of the commission, before any substantive consideration.
If after deliberations of the commission one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and people’s rights the commission shall draw the attention of the Assembly of heads of state and government of these special cases.
The Assembly of the heads of state may then request the commission to undertake an in depth-study in these cases and make a factual report accompanied by its findings and recommendations. An in-depth – study shall also be requested when a case of emergency duly noticed by the commission is submitted by the latter to the chairman of the assembly of heads and state.
Finally state parties shall undertake to submit every two years, from the date the present charter comes into force, a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed by the present charter.
SHORT COMINGS OF THE CHARTER
The charter incorporates other rights as provided for under either charters without specifically stating which particular rights can be received. The persons intending to trigger the charter provisions have to consider the whole concept of international law which is quite labourious task.
The procedure for hedging complaints is quite simple. The only constant is that the commission is centrally located in Banjul in Gambia. At most Africans and especially women cannot afford to travel there to press their case and therefore they are the major victims in terms of accessing the commission.
This is primarily a state charter and secondarily a peoples charter. States are usually financially endowed with resources to complain on behalf of individuals but they usually do not complain against each other unless the derogation of human rights have reached unprecedented proportions.
The suction of reporting a state ultimately to the assembly of heads of state and government. It is not clear what other sanction is available in case a state ignores these reports. This is a rather soft-law approach. Under Article 62, a state should file a report every two years but no further sanction is given.
The women’s rights formulated under this charter are quite general. If the same were to be secured there is need to legitimise a protocol or an avenue dealing specifically with women’s issues. The charter does not provide for an explicit and comprehensive bill of rights of women.
The language used in the charter is rather masculine. The same applied to provisions granting rights to men and women which is also a problem with most constitutional documents.
The charter over-emphasises duties in respect of family and community which in essence subdues individual rights of persons especially that of women.
States have to ratify the charter before individuals can claim under it. Even where the states have ratified, individuals may not be aware of these rights where individuals are aware that the charter is a semi – judicial body under which these rights can be enforced.
Exhaustion of local remedies can be a lengthy process. Even in cases where the individual can take a matter before the commission where there is undue delay, indue delay” is not defined.
The charter emphasises the family as a guardian of traditional values and customs. Not all of the traditional values and customs are positive and most of them are a prime contributor to the denial of women’s rights in Africa. There is need to ensure that only positive customes and values are protected.
The whole system under the ACHPR is based on the willingness of state to subject itself to the system and given the fact that the states want to protect each other, the citizen will not find the ACHPR on effective remedy for her rights.
RECOMMENDATIONS
As plans are underway to establish a court, one with a direct access will be commendable.
Charter should be interpreted to give women’s rights more prominence. This will ensure women’s rights are not negated especially by cultures and values which give the family and community rights.
The commission at Banjul needs to be decentralised. There needs to be a clear mandate to any duly authorised sympathizer to represent the claimant e.g Non-governmental organisation.
There should be specific sanctions under the charter. This may take the form of firing or suspension from the OAU.
The number of female commissioners under the charter should be increased.
People should be educated on their rights and especially the women. People should know when their rights are violated and that there is a recourse.
There should be a specific continental charter. The NGO’s and pressure groups should lobby for the adoption of a charter that specifically addresses women’s rights.
There should be a fund created to assist the poor especially considering the fact that situations do not favour women’s economic empowerment.
The requirement for exhaustion of local remedies should be abolished.
The commission too should be disbanded if it is seen not to be discharging its duties adequately.
