Boost For Gender Parity As Biased Laws Earmarked For Change

In 2008, a case in the High Court of Kenya (Family Division) lifted the lid on what gender discrimination was all about.

The case came after the death of Lerionka ole Ntutu. He was survived by multiple wives, sons, and daughters.

His sons filed an application asking the High Court to issue to them the letters of administration to administer his estate.

However, after their sisters and stepsisters got wind of it, they felt betrayed and left out. They quickly moved to court and filed an objection and claimed their inheritance.

The sons would, however, hear none of it and contested the objection, arguing that the distribution of their fathers estate was governed by Maasai customary law.

The law did not recognise the right of daughters to claim an inheritance from their fathers estate.The judge held that because Ntutu was Maasai and lived in an area excluded from the Succession Act, his estate should be divided according to Maasai custom.

The judge thus held that none of the daughters could inherit from their fathers estate.Dissatisfied and angry with the judgment, the daughters moved to the Court of Appeal.

They would later eventually have the last laugh after the Court of Appeal ruled in their favour.

The Court of Appeal invoked international treaties and covenants, including the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) in finding that the daughters were entitled to a share of his estate.

Cedaw, which was adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

This case is just but the tip of the iceberg of many others where women have faced discrimination be it under customary or the other laws.

Women in the country have in fact been complaining that some of the laws were biased against them, thus making their quest for justice futile.

A study done by the International Development Law Organisation, the Kenya Law Reform Commission and UN Women has come to reinforce these assertions by the women.

The study, titled Strengthening Gender Equalityin law: Mapping Discriminatory Laws Against Women and Girls in Kenya, released a fortnight ago shows a total of nine laws in Kenya must be repealed for being discriminatory to women.

It also recommends a further 17 laws be urgently revised or amended to make them gender-sensitive.

The laws that the report recommends for repeal or amendment are drawn from the areas of marriage and family, sexual and gender-based violence, domestic violence, violence against women in elections, sexual and reproductive health, succession and inheritance, political participation and labour and Employment.

The survey says Kenya has a robust constitutional, policy and legal framework meant to empower women and girls and remove barriers in political, social and economic spheres.

However, despite these strides, the study notes that Kenyas legal framework has proved inadequate to fully realise the rights of women and girls.

This is due to the inability to fully implement the existing provisions, reinforced by a patriarchal culture and gender stereotypes that discriminate against women and girls.

This, the survey notes, has hindered the substantive enjoyment of rights and fundamental freedoms by women and girls on an equal basis with men and boys.

The report recommends the amendment of the Sexual Offences Act, 2006, to include the crime of marital rape and remove permissibility of evidence on a survivors sexual history.

It also proposes that Section 24 of the Prohibition of Female Genital Mutilation Act to male failure to report an act of FGM an offence.

This is likely to affect the victims who fail to report FGM.