The
New Kenyan constitution that came into effect in the year 2010 has addressed
most of the indigenous laws that discriminated against women. However there are
some laws in the various Acts in The Laws of Kenya that that discriminate
against women and have not yet been repealed. Some of these laws are as
follows.
Under
the Registered Land Act Cap 300 of
The Laws of Kenya, the first person to register title to a portion of land
retains “absolute ownership of that land together with all rights and
privileges belonging or appurtenant thereto,” free from any other interest or
claim. This Act has vested men
absolute sole ownership of registered land and thus depriving women of their
rights to housing and property.
As men inherit
first before marriage, they register the land before the women have a chance to
register. At the end of the day it’s the men who hold the title deed.Though blame
has been put on customary law, even if Kenya abandoned it, the current
legislative structure by which land is registered still lacks protection for
women.
The
Matrimonial property Act has not yet provided
statutory guidance on division of property upon divorce of polygamous
marriages. This leads to the divorced woman leave their matrimonial homes empty
handed after a hard labour labor of accumulating wealth.
The
Kenyan Customary laws in various tribes largely exclude women from
inheriting, owning, and possessing land, including their matrimonial homes,
which they have worked on and, in many cases, helped purchase. In most
communities widows find themselves evicted from their homes or forced to be inherited
as property by the kin of their deceased husband, or risk losing their housing.
While
the Laws of Succession Act Cap 160
The Laws of Kenya grants widows a life interest in their matrimonial home, the
government has failed to adequately enforce this protection, especially in
rural areas. Many widows evicted from their homes along with their children
have nowhere to go. The Law of Succession Act neither does it provide for any
measure to be taken to those who evict the widows.
Customary
laws in some tribes still uphold [FGM], which is a grave violation of
girls’ and women’s human rights. Despite the enactment of the Children’s Act
(2001) which prohibits FGM, girls are still being subjected to this harmful practice.
The government should ensure the effective implementation of the 2001
Children’s Act which outlaws FGM for girls under 18 years, as well as
prosecution and punishment of perpetrators of this practice.
Marital rape is also not recognized as a criminal
offence in either the Sexual Offences Act
2006 or in the Family Protection Bill
2007. Section 163 (1)(d) of the Evidence
act Cap 80 Laws of Kenya denies the victim, to some extent, her right to
fair trial whereby her morality is questioned. It does not recognize that the
consent to sex can be vitiated by alcohol or administration of drugs. The fact
that a woman takes alcohol can be held against her in a rape trial. This means
that there is minimal possibility of the accused being convicted if the victim
is a drunkard.
For example in
the case of Maina v Republic[1], justice
Mwendwa cautioned the magistrates by quoting that ``girls and women do tend to
tell an entirely false story which can also be extremely difficult to refute.’’
thus branding women and girls liars. In such a statement, the judges are left
suspicious of the evidence given by the victims, and thus a higher possibility
that the accused may walk free and thus denying the victim (woman/girl) the
right to fair trial.
In criminal cases,
there is standard of proof beyond reasonable doubt upon which short of it, the
case will not succeed .In rape cases this gives the accused a chance to escape
liability thus putting the victim (woman/girl) at a disadvantage.
Penalties
for those found guilty of sexual offences the penal code have been found to be inconsistent.
For example, a person guilty of defilement of a girl under 14years can be
sentenced to a maximum of 14 years while a person guilty of rape can be
sentenced to life imprisonment. These penalties are disproportionate as it is
logically considered that defiling a minor should be even more serious than
defiling an adult.
The penalties
imposed by the penal code, the sexual offences Act and other relevant acts for
the offences the sexual or rape
,defilement ,incest and assault are insufficient. No safeguards from the perpetrators
and no machinery for making reparation to the victims.
Under
the customary Law, girls never get an equal share of their parents’ property.
The principle of equality is yet to be slowly adopted in the customary societal
setting. Whenever a case arises, a council of men will sit to settle it and in
the end rule in men’s favour.
In Kenya the minimum age for statutory marriage is 16 years
for women and men. However, there is no such limit for Muslim or customary
marriages which are preferred by many. This raises the prevalence of early marriage.
The Kenyan
Parliament which has the mandate of legislating these laws is nevertheless a
patriarchal society. Their patriarchal attitudes were reflected during the
battle to have a Sexual Offences Act passed. A number of other pieces
of proposed legislation introduced to Parliament have also failed to go through
including the Domestic Violence Bill’
Though
the above laws have not yet been addressed. The new constitution 2010 has
provided a lot which was initially not addressed in the previous Laws.
Gains to women in the new Kenyan
constitution
v The New Constitution, in Article 14
(1) ensures that women will be able to pass on citizen ship to their children
regardless of whether or not they are married to Kenyans unlike the previous
constitution in article 90 which recognized only fatherhood.
v Article 91 (f) ensures that gender
equality is maintained in political parties providing a basic requirement for
political parties as amongst other to respect and promote gender equality.
v Article 45 (3) of this Constitution
provides that parties to a marriage will be entitled to equal rights at the
time of marriage, during the marriage and at its dissolution.
v Article 53 (1) (e) assures that
parental responsibility shall be shared between parents regardless of marital
status.
v Article 60 (1) (f) eliminates gender
discrimination in relation to land and property and gives everyone including
women the right to inheritance and unbiased access to land.
v Article 68 (c) (iii) provides for
the enactment of legislation for the protection of matrimonial property with
special interest on the matrimonial home during, and upon the termination of
the marriage.
v Article 27 (3) asserts that women
and men will have the right to equal treatment and opportunities in political,
economic, cultural and social spheres without discrimination.
v The New Constitution maintains a one
third requirement for either gender in elective bodies giving women of Kenya at
least 1/3 minimum in elective public bodies this is stipulated in Article 81
(b).
v Article 100 of the Constitution
provides that Parliament shall formulate law to promote the representation of
women, persons of disabilities, ethnic and other minorities and marginalized
communities in Parliament.
v Article 43 (1) (a) accords the right
to health including reproductive health to all.
v It also affords adequate and equal
opportunities for appointment, training and advancement for women and men at
all levels within the Public Service Commission as stipulated in Article 232
(i).
v The Constitution in Article 40 (1) has
also accorded every person the right to acquire and own property.
From the above new instituted laws its quite cognizable that
Kenya has laid a stepping stone that will ensure gender equality and non
discriminatory societies in this and future generations.
Bibliography
·
Sexual offences Act,
Cap 3 Laws of Kenya
·
The Kenyan Constitution
2010
·
Penal Code Cap 63 Laws
of Kenya.
·
The Kenya Law Reports.
·
Family Protection Bill
2007
·
Laws of Succession Act
Cap 160 The Laws of Kenya
·
Kibwana, K. (1992), “Women and the Constitution in Kenya”,
Women, Laws, Customs and Practices in East Africa, Kabeberi-Macharia, J., ed.,
Women & Law in East Africa, Nairobi.
·
Rhoodie, E.M. (1989), Discrimination Against Women: A Global
Survey of the Economic, Educational, Social and Political Status of Women,
McFarland, Jefferson, NC.
·
FIDA.
(2010). Report on the implementation of
the Sexual Offences Act.
·
Federation
of Women Lawyers-Kenya and international Womens Human Rights Clinic. (2010). Kenyan Laws and Harmful Customs Curtail
Women's Equal Enjoyment of ICESCR rights. Washington DC.
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