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By Evelyne Opondo
Law is said to be a complex system of rules and regulations which define relationships between different people, groups and institutions. This function gives law a tendency to be static and conservative. It is widely appreciated that to the extent that law institutionalizes and legitimates existing conditions and relationships, it can be a major constraint to development in situations of inequality. But there is also growing recognition that creative use of law often accelerates the process of development. Because law defines relationships and relationships define power, law is both an instrument of domination and mechanism of empowerment.
As a political arena, law represents a montage of compromises, defeats and victories of past struggles. As a battleground, it is perceived as defining the means through which change can be affected or existing arrangements protected by beneficiaries of existing arrangement. Alternatively, it may be seen to legitimize the existing injustices experienced by marginalized individuals and groups in society.
Kenyan Legislation
No legislation in Kenya has been formulated in answer to the women question or motivated by feminist concerns despite the fact that Kenya ratified the Convention on Elimination of all forms of Discrimination against Women (CEDAW) in 1984 without any reservation.
The Constitution of Kenya providesprotection from discrimination. In the context of the Constitution discrimination means:
“…affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restriction to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description”.
Advocate of the High Court of Kenya and Senior Legal counsel, Federation of Women Lawyers (FIDA) Kenya
At section 82(3)
This provision of the Constitution is especially curious when the same section in sub clause(4) states that the provision outlawing discrimination shall not apply to any law with respect to adoption, marriage, divorce, burial, devolution of property on death or matters of personal law. It will also not apply in cases where the members of a particular race or tribe of customary law has any matter to the exclusion of any law with respect to that matter.
The exceptions made to the rule on discrimination enumerate the areas where women are most discriminated in Kenya which is a patriarchal society. Therefore the constitution in itself is bad and warranting of change.
In treating unequal persons equally, the law reinforces existing conditions and promotes inequality. Real equality demands affirmative legal initiatives to correct the historical imbalances. A growing number of Kenyans have continued to call for inclusion of affirmative action in the constitutional dispensation. Indeed the draft constitution of 2005 which was rejected at a national referendum in November 2005 had clear provisions of one third representation of women in all state appointive bodies. continue ....next page
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