World over, the problem of equality and gender discrimination has been central to any women’s rights debate. Several human rights instruments embody the stance that discrimination against women is unlawful and against the fundamental principles of equality and human dignity. States are therefore mandated to take all necessary measures to eradicate discrimination and otherwise promote equality. Such measures may include legal and policy processes. In Kenya, there has been remarkable development in the realization of women’s rights. One of the greatest achievements is the recognition of their rights under the Constitution, which is the supreme law of the land. Such recognition is a stepping stone for further expansion in enjoyment of women’s rights in the country.
One of the basic tenets of the Constitution important to the subject of women’s rights is that of equality. In its Preamble, the Constitution recognizes the aspiration of all Kenyans for a government based on values of human rights, equality, freedom, democracy, social justice and the rule of law. The Constitution proclaims that every person is ‘equal before the law and has the right to equal protection and equal benefit of the law.’ It goes on to elaborate the issue of equality by stating that equality includes the full enjoyment of all rights and fundamental freedoms. From a gender perspective therefore, both men and women have an equal right to fully enjoy the fundamental rights and freedoms enshrined under the Constitution. In the same light, Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
In connection to the issue of equality, the Constitution prohibits discrimination on all grounds including sex. Whichever form of discriminations on any ground including ‘race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth’ is prohibited. [Emphasis]
At the International level, the United Nations Convention on the Elimination of all forms of Discrimination against Women specifically prohibits discrimination on grounds of sex. It further declares and I quote
“… discrimination against women violates the principles of equality of rights and respect for human dignity, [It] is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, [Discrimination] hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and if humanity…”
We can therefore deduce that the Kenyan Constitution is in line with international norms as far as the ‘subjective prohibition’ of discrimination is concerned. In a bid to ensure the accomplishment of gender equality and non-discrimination, the Constitution establishes the Kenya National Human Rights and Equality Commission whose functions include inter alia to ‘promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development’. Accordingly, the Commissions role in furthering women’s right is pivotal. This is because for a long time women have been victims of discrimination and in some instances agonized by their unequal status before the law.
Clearly from the aforesaid, it is evident that the Constitution addresses the plight of women concerning equality and discrimination. It provides a clear-cut operative law which can be used to challenge discrimination and also formulate laws that are not gender biased. However, it is not enough to only mention guarantees of equality. To ensure that it is achieved, the law ought to be implemented according to the legislators’ intentions. This will ensure that women are not bared from enjoying their rights due to discrimination.
By Brenda Mwale