KENYA LAW REVIEW

Vol II : [2008-2010]

Lost Between Rhetoric and Reality: What Role for the Law and Human Rights in Redressing Gender Inequality?
Nancy Baraza1 2008. 1. INTRODUCTION That gender inequality is one of the greatest challenges of our time can hardly be gainsaid. Until recently, gender inequality was a peripheral subject, but today the subject is a staple in the political and human rights discourses across the globe. The move responds to the increasing recognition of the implications of the phenomenon on equality of rights, resources and participation of women in the family, the sociocultural formation, the market and the state. In these spheres, the discourse seeks to address gender oppression, violence, discrimination and patriarchy as the expressions of gender inequality. This paper will interrogate the conceptual artillery and strategies in the gender equality discourse. The paper will begin with an examination of the concept of gender and gender justice. This implies that the debate of gender equality will be situated within a justice and rights framework. The paper will then unpack the spaces and sites where gender inequality is perpetrated, specific attention being paid to the private sphere. This will set the stage for an examination of the role of the law in redressing gender inequality and its limitations. This particular analysis will examine and fault the liberal distinction of the public/private distinction in law, and how this should be deconstructed through law reform initiatives. Following the analysis above the paper will examine the human rights framework for challenging gender inequality, its effectiveness and defects. Based on the analysis, the paper will conclude that whereas the law and human rights are important, perhaps the most effective sites for redressing gender inequality, primacy and complementarity should be had on social engineering and the reconstruction of processes and institutions that result in inequalities between women and men. Without this, the achievement of gender equality may be lost between rhetoric and reality. 2. GENDER INEQUALITY DEFINED Gender inequality is an intricate phenomenon. Stripped of all technicalities, gender inequality is the differential treatment and outcomes that deny women the full enjoyment of the social, political, economic and cultural rights and development. It is the antithesis of equality of men and women in their human dignity, autonomy and equal protection.

LL.M (Nairobi); Advocate, High Court of Kenya; Vice Chairperson, Kenya Law Reform Commission

Lost Between Rhetoric and Reality: What Role for the Law and Human Rights in Redressing Gender Inequality?

To explain gender inequality, sociologists turn to the surrounding systems that affect all human behavior. Most theories highlight the institutional structures that assign women and men different positions, roles and consequently behaviors. This thesis goes that once men and women are polarized, they are then stratified. 1 At the same time, both women and men are denied the full range of human and social possibilities. The social inequalities created by gender differentiation have farreaching consequences for society at large.2 The most compelling explanations of gender inequality are materialist theories that use cross-cultural data on the status of women and men. Materialist theories explain gender inequality as an outcome of how women and men are tied to the economic structure of society. Such theories stress control and distribution of valued resources as crucial facts in producing stratification. They point out that womens roles of mother and wife, although vital to the well-being of society, are devalued and also deny women access to highly valued public resources. Further, it is also the common thesis that gender stratification is greater where womens work is directed inward to the family and mens work is directed outward to trade and the marketplace. 3 But, it is also argued that gender is relational and social and hence, the focus is not on women per se but on power relations between men and women and among those of the same gender in various settings. Making power relations the focus of analysis draws on the complex and fluid processes through which different types of masculinities and femininities are socially and culturally constructed and how embeddedness of power relations in gender hierarchy is structured. This approach problematizes womens subjugation as others by the dominant category of masculinities as a standard from which the others are judged. The approach elucidates and opens for contest the perpetual gender inequity due to unequal access, control and distribution of values, resources, opportunities and justice. 4 The division between the domestic and public spheres of activity is particularly constraining to women and advantageous to men. The domestic and public spheres of activity are associated with different amounts of property, power, and prestige. Womens reproductive roles and their responsibilities for domestic labor limit th eir association with the resources that are highly valued. Men are freed from domestic responsibilities. Their economic obligations in the public sphere assure them of control of highly valued resources and give rise to male privilege.5 Let me bring the debate home. Gender inequality in Kenya is largely a socio-cultural and political problem. It is a phenomenon incubated by proximate social structures such as the family, perfected in the broader socio-cultural and political formations. These include exclusion from adequate participation in political structures and processes. The upshot of this is that the political process does not take into account the gender needs, leading to inequality of outcomes. In the labour sector, for example, there are wide disparities in employment outcomes for men and women. For instance, majority of women are in low profile jobs. Inequality in political and public service participation of women is at the worst state.
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For example, out of the 44 women who stood for election to parliament in 2002 only nine (about 20 per cent) were voted in and of the 2,043 elected councilors in 2002 only 97 (about 5 per cent) were women. Moreover, although the Government of Kenya announced a requirement that 30 per cent of senior level positions should be held by women, it needs no evidence that women are poorly represented in senior positions in government as Diplomats, Permanent Secretaries, District Commissioners and so on. The Judiciary is not to be left behind Kenya has never had a woman Chief Justice. The question, then to be asked, is why this state of things, and how to get from here. 3. LAW, ITS CONTENTS AND DISCONTENTS The law is one of the sites for promoting gender equality. However, the law also has its discontents. The paradox is that the law is at the same time the culprit in exacerbating gender inequality. Some laws are manifestly gender biased, hence causing gender inequality, whereas some are indirectly discriminatory by their effects. Also, it is common knowledge that the law is inadequate in responding to womens experiences, needs and perspectives. The upshot is that the legal system prevents women from enjoying full equality before the law, equality under the law, equal protection of the law and equal benefit of the law.6 What explains this? First, laws are not value free. The lawmaking process is a site for the expression of values, worldview, and interests of the present and past lawmakers. The second and related explanation is that women are in most cases inadequately represented in the law making process as parliamentarians and judges. Womens voices are largely absent from the process of lawmaking, and the result of this exclusion is that the legislation enacted and case law developed by judges reflect mens perspectives on the world. This includes their perspectives on women, their rights and roles. Some illustrations on the skewed nature of the law would be in order. In Kenya, for example, these factors have led to a wide range of discriminatory laws and practices. For instance, a Kenyan woman married to a foreigner does not automatically pass on her citizenship to her husband, and only a woman married to a citizen of Kenya is entitled to be registered as a citizen of Kenya. 7 Also, a Kenyan woman married to a foreign man cannot pass on her citizenship to the children of such marriage if they are born outside Kenya; the child is only eligible upon making application under the Citizenship Act to be registered as a citizen of Kenya. 8 In practice, therefore, children born to Kenyan mothers abroad have to apply for citizenship and are given entry permits for a limited duration upon entry into Kenya. This may be a protracted process, and may take several months. The direct result of these provisions is that Kenyan women have a second-class citizenship in that they are not able to bestow citizenship on their foreign spouses and children born outside the country, as is the case for Kenyan men. The other area is property laws. In Kenya, statutory law, customary laws 9 and
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Lost Between Rhetoric and Reality: What Role for the Law and Human Rights in Redressing Gender Inequality?

religious law govern womens ownership of property. As has been argued, the major preoccupation of property relations in Kenya has been with the imposition of individualistic Western laws and concepts of property on African people who relate to land in a communal context.10 The imposition of Western property notions and institutions has the effect of bringing about inequality to the distribution of benefits in society, and that womens proprietary rights were weakened as a result of legal imposition of Western concepts of property.11 Where this observation is made, the tendency is to label customary law as offering protection to women and blame the imposed institutions for creating avenues for the disparity in proprietary ownership.12 Be that as it may13, the marital status of women is also critical to owning or accessing property. The Constitution under Section 82(4) sanctions the use of personal law in deciding cases involving succession and marriage. Under the Kenyan Constitution, women can acquire, own and dispose of property. Section 82 (1) and (2) proscribe discrimination which is defined under Section 82 (3) as affording different treatment to different persons attributable wholly or mainly to their race, tribe, place of origin or other local connexion, political opinions, colour, creed or sex. Further, sub-section 4 of section 82 excepts the prohibition of discrimination to any law dealing with matters of adoption, marriage, divorce, burial, devolution of property or other matters of personal law, it reserves the application of the various customary and religious laws in areas of family law, thus making it possible for these multiple and disparate systems to continue operating, without offending the constitutional prohibition of differential treatment or discrimination.14 The other area is the Law of Succession Act 15 that seeks to give both men and women equal rights in matters of succession. Although the Law of Succession Act made significant attempts at bringing some uniformity to succession regimes in Kenya, it contains several discriminatory provisions. This law governs both testamentary and intestate succession (succession with or without a will). Where there is no will, female and male children should inherit from their parents equally. If there is one surviving spouse and a child or children, the surviving spouse is entitled to (i) an absolute interest in the deceaseds personal and household effects and (ii) a life interest in the rest of the estate. This means the surviving spouse becomes the absolute owner of personal and household items and can use other property (such as land and houses) during the spouses lifetime. The spouse cannot dispose of the second category of property without court permission. If the surviving spouse is a woman, her interest in the property terminates if she remarries. A surviving husbands interest does not terminate upon remarriage. When the surviving spouse dies (or, in a womans case, remarries), the estate goes to the children. The intestate succession rules also provide that if one dies without a spouse or children, the estate goes first to the father, and if the father is dead, to the mother. Thus, even though women have inheritance rights under this act, men have greater rights.
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Exceptions and misinterpretations also undermine the Law of Succession Act. The Act was amended in 1990 to exempt Muslims, who protested the equality provisions. 16 In addition, Section 32 of the Act exempts agricultural land, crops, and livestock in certain gazetted districts (districts designated in a legal notice in the official gazette) from the intestacy rules. In those districts, customary law applies. Although the Law of Succession Act is clear about the exceptions, some judges and magistrates assert that all rural land, not just land in gazetted districts, is exempt from the provisions of the Act. Additionally, Kenya has no local legislation on matrimonial property and courts apply the UKs Married Womens Property Act of 1882. While judicial decisions on the matter have increasingly recognized spouses rights to matrimonial property, the absence of firm anchorage for the positive provisions has resulted in conflicting decisions. The other site for gender inequality is laws relating to access, use and control of land. Land laws in Kenya, while not discriminatory on their face, have exacerbated womens inequality by recognizing mens traditional allocation rights as worthy of registration while ignoring womens user rights to clan land. Moreover, although a non-binding administrative decree instructs land control boards-bodies with authority to approve certain land transactions-to take families interests into account, this guideline is not always effective. Men have reportedly bribed land control boards, fraudulently brought imposter wives to the boards to consent to land transfers, and threatened their wives with violence or eviction if they withhold consent. 17 Land in Kenya is vested in individuals, the government and groups or communities. Each has implications for womens rights to own, access and use. In Chapters 283 and 284 of the Laws of Kenya individual ownership of land ensues after the process of consolidation and adjudication. The Registered Land Act in Chapter 300 provides for absolute proprietorship of land under Sections 27 and 28. Upon registration, the registered proprietor becomes the absolute owner of the land together with all rights and privileges belonging or appurtenant thereto and not liable to be defeated except as provided for in Section 30 of the Act. It is notable that customary rights are excluded and are therefore not capable of qualifying the absolute proprietors rights as stated in 11(4) Chapter 300 of the Laws of Kenya. The High Court has held in some cases that cases that customary law should be recognized and is capable of qualifying an individuals rights18 and in others that they are not overriding interests and should therefore be ignored.19 The provisions of the Act are gender neutral but the application is gendered. Most land is registered in the name of the eldest male head of the household. The registration process thus excludes most women from property ownership and weakens the position of women because it frees the title-holder from the interference of other parties whose interests are not shown on the register. The rights of use which women have are not registrable and women cannot therefore interfere with acts of the title-holder. The Transfer of Property Act that provides for a fee simple
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Lost Between Rhetoric and Reality: What Role for the Law and Human Rights in Redressing Gender Inequality?

estate over land contains an interesting provision limiting the rights of a married woman to own property individually. This provision achieves quite some significance when one considers the role of women in resource management in Kenya. 20 4. WE ARE ALSO HUMAN? ADVANCING GENDER EQUALITY THROUGH WOMENS HUMAN RIGHTS It is not in dispute that whereas the mainstream international human rights treaties guarantee the rights of both men and women, 21 equal protection and realization of these rights has not been achieved. The drafting and adoption of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and other regional instruments attest to the fact that these mainstream rights frameworks have failed to guarantee and protect womens rights. In addition to the inadequacies of the human rights corpus, violations of the rights of women have been largely inadequate from the human rights documentation of governments, the United Nations and non - governmental organizations (NGOs). Take domestic violence, for example. Although domestic violence is a human rights abuse, in fact a crime, the practice continues unreported. And many states have not legislated against the practice, despite its deleterious effects. Feminist analyses22 and womens activism23 have challenged narrow conceptions of human rights by identifying the biases in international human rights documents and international institutions, and contesting norms that exclude womens rights from human rights protection.24 Lai and Ralph identify one aim of such critics as applying the methodology developed to address traditionally recognised abuses, such as extra-judicial killings and denials of freedom of expression, to combat abuses against women. Advocates of womens rights thus have worked to ensure that traditional human rights instruments are used to combat gender-specific abuse. At the 1993 United Nations World Conference on Human Rights, womens rights advocates achieved an important victory when governments acknowledged for the first time the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.25 Conceptualized as universal norms, the human rights approach provides a powerful tool for combating violence and discrimination against women and thus improving womens status in societies worldwide.26 Despite the efforts of womens rights advocates to expand the traditional human rights framework to address issues of inequality, the human rights methodology has faced limitations in its capacity to defend the cause.27 First, the distinction in international law between publicly and privately perpetrated action is particularly problematic when condemning gender-based violations. Under classic international law, a government is accountable for human rights abuses only when the violation can be imputed to the state.28 The classical human rights practice thus has focused on holding states accountable for what they do directly or through an agent, the socalled public action.29
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Because much of these violations perpetrated against women, for instance, domestic abuse, are committed purely by private actors, states often maintain that such acts of violence are not attributable to the state, and hence beyond the reach of international law.30 Opinion is divided as to the apportionment of responsibility. Some human rights advocates argue that states are responsible for abuse against women by private actors where states systematically fail to investigate and effectively prosecute certain crimes and where that failure constitutes prohibited discrimination.31 For example, CEDAW specifically calls for government action in eliminating pervasive implanted structural impediments to the achievement of gender equality.32 Therefore, it can be argued that the governments failure to take such action defies its obligation and places responsibility on it for womens continued subordination.33 Another critique of traditional human rights activism is its emphasis on civil and political rights over economic and social rights. Yet it is now accepted that economic and social rights are the fulcrum for the enjoyment of civil and political rights. In fact, economic and social rights are of particular importance to women , since they determine the exercise by women of their autonomy and agency. This assessment of current limits of human rights advocacy for promoting womens rights is premised on the understanding that human rights are universally held. The universalist theory asserts that the core rights in the international conventions are the basic inalienable rights of all people, regardless of the religious, cultural, economic, or political characteristics of the societies in which they reside. 34 International efforts to protect and promote human rights necessarily involve crosscultural evaluations, which are most effective when based on universal human values.35 Therefore it forms a platform for developing the capacity to monitor the human rights performance of nations from these shared values and obligations that apply to all.36 The Universalist conception thus gives legitimacy to international condemnation of abusive governments in both legal and political fora. Without recognition that human rights are universal, the international community has neither the authority nor an effective means of challenging practices perpetrated by states against their citizens.37 A brief on sexual autonomy is in order. Granted, violence, coercion and discrimination are the means by which the social formation seeks to deny or limit womens ability to control their bodies and the expression of their sexuality. Such practices are within the scope of international human rights law and can be addressed under the existing mechanisms such as the right to physical security, life and non-discrimination. Of much scholarly contention however, is the extent to which international law guarantees an underlying right to decide on such matters as sexuality.38

Lost Between Rhetoric and Reality: What Role for the Law and Human Rights in Redressing Gender Inequality?

5.0 CONCLUSION It is not in dispute that gender inequality is one of the greatest problems of our time. Gender inequality remains embedded in the structures, instrumentalities and relations within the family, society, market, and the state. The paradox is that achieving gender equality has been lost between rhetoric and reality. Law and the human rights edifice must be particularly faulted and reconstructed, if they are to play their part in ensuring gender equality. This means thinking through law reform and normative contours of human rights. Endnotes
1
2 3 4 5 6 7 8 9

10 11

12 13

14 15 16 17

18

19

Gender stratification refers to the ranking of the sexes in such a way that women are unequal in power, resources, prestige, or presumed worth. Stanley, ED., (Ed) (2000) Social Problems Boston: Allyn and Bacon 8th Edn p 247. Id. Chow,EN., 2003. Gender Matters: Studying Globalization and Social Change in the 21st Century, International Sociology 18443, Sage Publications, p 446. Id note 4. See generally Australian Law Reform Commission, The Gender of Law. Constitution of Kenya section 91. Constitution of Kenya section 92(2) read together with section 4 of the Citizenship Act, cap 170 Laws of Kenya. Under customary law, womens inheritance rights are very restricted. Married women cannot inherit property from their parents, and they cannot have absolute ownership rights in their matrimonial homes, much less inherit from their parents-in-law. Okoth-Ogendo, HWO., (Ed) (1989) Some Issues of Theory in the Study of African Agriculture Vol 59. Nyamu, C., 1998-1999 Achieving Gender Equality in a Plural Context: Custom and Womens Access to and Control of Land in Kenya, hird World Legal Studies Vol 21 p 30. Id. Granted, there abound certain customary restrictions that offer protection to women and children, for example, outright sale of land. This argument however ignores the fact that the formal legal institutions have also entrenched in them checks to preclude unnecessary dispossession. This however is beyond the purview of this paper as it did not set out to determine which of the entities is responsible for womens present status with regard to access to property. Supra note 11, p 40 Law of Succession Act, cap 160 Laws of Kenya. Statute Law (Miscellaneous Amendment) Act (No 2), 1990 (Act No 21 of 1990). Muslims are subject only to Islamic laws on succession. Human Rights Watch, Defending Human Rights Worldwide, Human Rights Watch interview with Akinyi Nzioki, gender program officer, Royal Netherlands Embassy, Nairobi, November 7, 2002 and Human Rights Watch interview with Mary Wambua, head, Womens Bureau, Nairobi, November 6, 2002, available at http://www.hrw.org/reports/2003/kenya0303/kenya0303-04.htm#P755_170939 (29/08/2007). Muguthu,Mwangi v Maina Muguthu Civil Case No 377 of 1968; Misheck, Samuel Thata & others v Priscilla Wambui & another Civil Case No1400 of 1973; Limuli, Edward v Marko Sabayi Civil Case No 22 of 1978 and Kiama, Alan v Ndia Muthunya & others Civil Appeal No 46 of 1978. Obiero v Opiyo [1972] EA 227; Esiroyo v Esiroyo [1973] EA 388 and Murai v Wainaina (No 5) [1982] KLR 51 8

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20 21

22 23

24 25

26 27 28 29

30 31 32 33 34 35 36

37

38

Kameri-Mbote,P., (Ed) (1995) The Law of Succession in Kenya: Gender Perspestives in Property Management & Control Nairobi: Women & Law in East Africa p 45. The common article on non-discrimination and equal treatment. International Covenant on Civil and Political Rights, opened for signature on Dec,16, 1966, arts. 2, 26,999 U.N.T.S. 171 6 I.L.M 368; International Covenant on Economic Social and Cultural Rights, opened for signature on Dec, 16, 1966,arts. 2,3,993 U.N.T.S. 3; Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature, Dec 10, 1984, art 2, annex G.A. Res. 46 (XXXIX 1984) 23 I.L.M. 1027 (1984) as modified 24 I.L.M. 535 (1985). See for example, Susan Moller Okin, Sexual Differences, Feminism and the Law, 16 Law & Social Inquiry (1991) 553. Byrnes, A., (Ed) (1992) Australian Year Book of International Law : Women,Feminism and International Human Rights Law-Methodological Myopia, Fundamental Flaws or Meaningless Marginalisation? Some Current Issues Vol 12 p 205. Engle, K.,1992. International Human Rights and Feminism: When Discourses Meet, Michigan Journal of International Law Vol 13 p 517. Lai and Ralph (1995) 204.See also United Nations World Conference on Human Rights: Vienna Declaration and Programme of Action, U.N. Doc. A/Conf. 157/24 (Part I); 32 I.L.M. 1661 (1993), at para.18. Lai and Ralph (1995) 204. Id. Brownlie, I (Ed) (1990) Principles of International Law Oxford: Oxford University Press 4th Edn pp 434, 435. Id. note 10.Perhaps the most cardinal challenge to the human rights movement has been to expand the traditional human rights framework to hold states accountable for gender-based violations that are carried out in the private realm. Thomas & Beasley (1993), p.41. Lai and Ralph (1995) 205. Convention on the Elimination of all Forms of Discrimination Against Women, 1979 article 2. Mathangani, M., 1995. Womens Rights in Kenya: A Review of Government Policy. Harvard Human Rights Journal p 192. Id. Goldberg,P., Kelly, N., 1993. International Human Rights and Violence Against women Harvard Rights Journal Vol 6 pp 195, 196. An-NaIm, AA., Deng, F.,(Eds) (1990) Problems of Universal Cultural Legitimacy for Human Rights, in Human Rights in Africa: Cross Cultural Perspectives Philadelphia: University of Pennylvania Press pp 331, 343 (as quoted in Lai and Ralph (1995) 206). Id. note 22. But contrast this with the cultural relativist view that human rights norms are reflective of one set of principles, embodying primarily Western values, many of which norms are inconsistent with the religious or cultural tenets, beliefs and practices of many societies. This view imposes difficulties in establishing the legitimacy of universal norms across wide-varying cultural contexts. Lai and Ralph (1995) 207.