The place of liberal feminism in the struggle for gender equality in Kenya.Posted: 8 July, 2022 Filed under: Davis Thuranira | Tags: affirmative actions, Bill of Rights, equal participation, feminism, gender discrimination, gender equality, gender inequality, Gender Representation in the National Assembly and the Senate, gender rule, good governance, human rights, Kenya, legal framework, liberal feminism, non-discrimination, patriarchy, Rono v Rono, toxic masculinity, transformative jurisprudence Leave a comment
Author: Davis Thuranira
Student, Kenyatta University, Kenya
The framers of the constitution provided adequate mechanisms to counter gender discrimination and foster equality among all sexes and gender in the country. As a matter of fact, several legal provisions incline to an ideology of equality that seeks to overhaul the existing societal structure which anchors discrimination and unequal treatment of women.
Equality, non-discrimination, inclusiveness and protection of the marginalized are among the key principles featured under Article 10. The provision universally applies to all persons and demands compliance by the state, including its organs, while exercising its constitutional mandate. The state is required to invoke its authority by giving effect to the two-third gender rule. Additionally, these principles and others that support gender equality are emphasized in the constitution since such are the basis for any democratic society that the constitution envisions. The applicability of these principles is mandatory, and the courts have on several occasions emphasized that the principles are not aspirational as argued by critics but realistic, practicable and binding on everyone. In the case of Rono v Rono, the Court of Appeal authoritatively asserted that the Constitution shields women from customary succession laws that bar women from inheriting property. The Court held that both male and female children are treated equally before the law and that discriminatory rules are invalid and unconstitutional to the extent that it treats women as inferiors to men.
Further, the Bill of Rights also encompasses the principle of non-discrimination which is incorporated into substantive rights thereby protecting every person from discrimination on the grounds of sex and marital status. The government is obligated to enforce this right and ensure that both men and women are accorded equal treatment and benefit of the law through affirmative actions and other legal and socio-economic strategies.
Most importantly, Article 100 lists women among marginalized groups since they trail men in the level of their involvement in the public and private affairs of the state. These groups, including women are entitled to a law facilitating their representation in the legislative arm of the government with dissolution of parliament being a consequence of non-compliance with the obligation.
The philosophy of feminism has centered the discussion on a transformative jurisprudence that focuses on the achievement of gender equality in Kenya. The adoption of such philosophy might be accommodated by Articles 159 and 259 which seems to guide the formulation of a theory for the interpretation of the constitution which should be done in a manner that promotes human rights and good governance. Liberal feminism focuses on equality of men and women and equal participation of both sexes in the political field and activities of the state. Philosopher Wendy Williams, a key feminist scholar, criticizes the tendency of other feminism schools for perpetuating more inequalities by their focus on preferential treatment instead of equality and self-autonomy which are the central features in the much more progressive liberal feminism.
It is notable that Kenyan women live in a highly discriminatory society that has caricatured women as subordinates of men since time immemorial. The subservience of women through age-old cultural and societal practices has resulted in greater differences between men and women in the society. However, even though the constitution has encompassed certain measures to foster gender equality but the legal framework has been undermined and rendered insignificant in a manner that it fails to address the deep-rooted discrimination of women. Particularly, the Constitution provides for the two-third gender rule but parliament has adamantly failed to give it life. The deadline was set to expire 5years after the promulgation of the constitution but successive legislatures have downplayed this important socio-political milestone. Additionally, there are still other laws targeted at overhauling the social system that justifies patriarchy, toxic masculinity, female genital mutilation and other practices that are considered as affecting women disproportionately or perpetrating injustice on them. The entire legal framework designed to counter gender inequality seems to have hit a snag since it has been inefficient since its inception for lack of operationalization, political will and awareness.
There are numerous impediments that hinder the attainment of gender equality in Kenya and they range from socio-economic to political obstacles. Basically, women are considered as unworthy creatures by the society and as servants of the men. Their access to resources of economic viability is restricted and unlike men, they are condemned to stay at home and embark on domestic work which is mostly uncompensated and hardly rewarding. Notably, most women are not allowed to choose the trajectory of their life and attain full autonomy since the Kenyan society tends to dictate for them the dress code, family issues, life values and other aspects. The discrimination of women is evident in the political arena which has been dominated by men for a long period and the latter’s reluctance to adopt laws that stamp out discrimination.
The gender equality laws requires full implementation by the government agencies and organs to ensure the Kenyan women are liberated from the practices and systems that undermine them and places them below men in the traditionally-constructed social and family hierarchies. Article 27 of the Constitution does not recognize these conceptions on the difference between men and women since it treats them as equal partners who should not be subjected to the biased societal rules that attempts to restrain them from realizing their full potential in any field.
The Kenyan parliament has been rebuked for failing to effectuate article 100 of the constitution and address the menace of underrepresentation of women who constitute more than half of the population. The unwillingness to discuss this obligation has been accounted for by the same problem that the two-third gender principle seeks to solve. That is, the inadequacy of female representatives in government institutions to push for the much sensitive and sometimes emotive women agenda. In the matter of Gender Representation in the National Assembly and the Senate, the Supreme Court took notice of unbalanced and unequal positions of men and women in the country and emphasized the need to ensure compliance with all anti-discriminatory provisions of the Constitution, international instruments and other laws.
Feminists and particularly liberals advocate for the gradual reassessment of the political and legal rules and practices to bring them into conformity with equality principles. This theory is compatible with the desired solution for inequality in Kenya. Although liberals maintain the public-private division that features in their philosophy, they provide for an allowance by the state to intrude into the private life of the citizens to solve domestic issues that might be aiding subservience of women. In line with this proposition, it is therefore necessary for the government to employ all mechanisms to eradicate discrimination in every sphere of life, not only in the public/political arena but also in employment, family, economic and business aspects. Additionally, the philosophy derived from the exposition of scholar John Rawls is applied to view equality as justice and inequality as the tool for injustice through which women are denied access to resources and self-autonomy as the case in Kenya where societal norms have been used to undervalue women. Therefore, the Kenyan woman’s lack of access to education, maternal health and other crucial necessities despite being the major players in the production process and particularly labor, suggests that women have been overlooked and denied of their equal status to men.
According to Mitchel Oyuga, a legal officer at FIDAwhom I interviewed for this paper, gender discrimination in Kenya has had a remarkable reduction in the recent past but the failure by the legislature and other government organs to provide redress for unequal representation and other issues has receded the battle against discrimination while in its most critical phase. She further propounded that although FIDA does not exclusively advocate for a single feminist theory, they mostly lean towards liberal feminism owing to its principles on equality and free choice.
Summarily, the history and nature of gender discrimination in Kenya reveals that the relevant government agencies and the society in general has failed to address the menace satisfactorily as envisioned by the Constitution of Kenya, 2010. Most of the challenges that women face emanate from the inequalities rooted in the economic, social, cultural and political systems of the country. Therefore, liberal feminism, being a theory that lays much emphasis on individual autonomy and equal treatment of both sexes, should be the preferred feminist theory for Kenya, also owing to its compatibility with the existing legal framework and perfect response to the consequences of gender non-inclusivity. Thus, the adoption and implementation of laws, policies and initiatives with an equality element inherent in the liberalism theory is recommended in order to realize a society where women are not exploited and enslaved but treated as equal to men and with the dignity they deserve.
 Constitution of Kenya, 2010
 Mary Rono v Jane Rono  eKLR
 The Constitution of Kenya, 2010
 Amy R. Baehr, ‘Feminism, “Feminism interpretations of John Rawls”  :150
  eKLR
 Genevieve R. Painter, International Encyclopedia of the Social & Behavioral Sciences (2nd edn, University of California 2015)
 Federation of Women Lawyers (Kenya). A non-partisan organization aimed at promoting gender equality and women empowerment in Kenya.
About the Author:
Davis Thuranira studies Bachelor of Laws (LLB) at Kenyatta University in Kenya