Date Posted: 2/7/2012 4:30:37 AM
Posted By: maxwellgoko Membership Level: Bronze Total Points: 45
The Judicature Act CAP 8 of the Laws of Kenya sets out the sources of Kenyan law and places the constitution as the Supreme law of the land. The constitution reserves the right to discriminate in matters of marriage, inheritance, burial, divorce, adoption and other matters of the law. All these issues mostly affect women. An example of such a case is found in the rulings of the 1987 S.M Otieno case, civil Appeal No 31.This was an illustration whereby parties were from different tribes with different cultures and beliefs. Although the couple had married in a Statutory Law marriage which ensured that they were not affected by traditions on either side, it was held that the burial was to be in line with the Luo customs. The judge in this case was tied by the law since it is provided for in the Judicature Act CAP 8, Sec 3(2) where it is observed that the decision of the courts shall be guided by African Customary law in civil cases in which one or more of the parties is subject to it, so far as it is not repugnant to justice and morality or is inconsistent with any provided written law. It is evident that some Kenyan laws discriminate against women while others tend to improve the living conditions of women. To begin with those that discriminate against women, we look at the various provisions in the statutes. Article 90 and 91 of the Constitution deprives women of the ability to automatically bequeath citizenship to their children and spouses. Women do not enjoy the right as their male counterparts. Although the law has provided under Article 44 of the Constitution that one shall not compel another person to perform observe or undergo any cultural practice or rite, women still face these injustices. These are the likes of female genital mutilation, rape, early marriages and right to own property. Women have no say on such matters since they are considered as the weaker fairer sex. They are forced to learn the art of endurance. Due to this, the girl child’s education is limited as girls are rushed into marriage at the onset of puberty. The law takes action on women who live on prostitution. This is provided for in Sec 154 of the Penal Code whereby, any person who knowingly lives wholly or partly on the earnings of prostitution is guilty of a felony and is liable for punishment. As much as prostitution is a form of abomination, it is crucial that its causes are addressed and proper precautions taken so as to fight it instead of treating it as a crime and making it punishable. Women who commit the offense of infanticide which is the willful act or omission that causes the death of her child under the age of 12 months is guilty of manslaughter whose imprisonment is a life sentence .This is provided for in Sec 210 of the Penal code. Also, those with intent to procure their own miscarriages are guilty of a felony and are liable for imprisonment for 7 years. This is evident in Sec 159 of the Penal code.As much as there are laws which discriminate against women, there are laws that have proven to fight for the rights of women in the vastly developing world. To begin with, women are now recognized to have the right to own property. This is evidenced in the 1882 Married Women’s Property Act. The Bill of Rights, Article 40 of the constitution provides that any person has the right to acquire and own property. The parliament therefore can not enact a law that permits the state or any person to deprive a person of property of any description.Article 45 sec(2 )and (3)of the constitution it is observed that on family issues, every adult including women have the right to marry a person of the opposite sex based on the free consent of the parties. The parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.Over the years there has been an improvement of fair administrative action on women’s part. This is to ensure that all women have an equal opportunity to an administrative action that is efficient, lawful, reasonable and procedurally fair. Article 47 of the constitution provides this. With administrative issues being fair, women’s accessibility to justice is also on the rise. Article 48 provides that, the state shall ensure access to justice for all persons regardless of the race or sex of the individual. The law has also protected women from discrimination. Article 27 of the constitution of Kenya provides that, there shall be equality and freedom from discrimination to all persons. All persons are equal before the law and thus have equal protection and benefit of the law. Equality has been set to include the full and equal enjoyment of rights, fundamental freedoms, treatment, equal opportunities in political, economic, social and cultural spheres. It is provided for that the state shall not discriminate directly against any person on any ground including: race, sex, pregnancy, marital status, health status, ethnic, social origin, age, disability, religion, conscience, belief, culture, dress, language or birth. In order to give full effect to realization of the rights guaranteed under this article, the state shall take legislative and other affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. In addition to this, the state shall implement the principle that not more than two thirds of members of elective or appointive bodies shall be of the same gender.Article 56 of the constitution protects the minorities and marginalized groups who are mostly women. Programs shall be designed to ensure that minorities: are provided for special opportunities in education and economic fields; are provided with opportunities to ensure easy access to employment; develop their cultural values, and language and; have reasonable access to water, health services and infrastructure.The law protects women who have been forced into obscene practices such as prostitution by arresting and detaining individuals who detain women against their will with intent to have unlawful sexual connection with them. They are guilty of a felony and are therefore liable for punishment. This is evident in the Penal Code CAP 63 Sec 151.Kenyan laws have proved to have value for human existence in that, pregnant women have been exempted from certain penalties. If one is convicted of an offense punishable with death is found in accordance with the provisions in Sec 211 and 212 of the Penal Code to be pregnant the sentence to be passed on her shall be a sentence of imprisonment for life instead of the usual sentence of death.In conclusion, from the above stated argument, it is evident that women face various challenges in their daily lives. It is crucially of importance that the law has taken action against the various injustices faced by women. It is evident that mostly African Customary Law is mostly biased against the female gender which is often discriminated upon by their male counterparts. There is a high sex preference for boys in Africa resulting in subordination of the girl-child. It is deep- rooted in traditional societies and has perpetuated the status quo as the cultural customs relegate women to a position of total subservience to men. It is a recommendation that, there should be a transformation of gender roles through gender mainstreaming policy shifts targeting men as the dominant sex by having programs meant for men to change their attitudes against women. Programs should be designed to increase women’s gainful participation in the economy. The parliament should therefore ensure that applicable traditional laws are not repugnant to justice and morality or inconsistent with any written law, and shall therefore decide cases according to technicalities of procedure and without undue delay.
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