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[1]. 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[2].
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
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