The Intersection of Culture, Tradition and Women's Rights in Africa: Kenya's 2010 Constitutional Two-Thirds Gender Rule that Never was

Abstract

In an attempt to uphold the spirit of the Maputo Protocol among the other progressive global Instruments, Article 27 of the Kenyan Constitution 2010 comprehensively protects against discrimination based on gender. Echoing the spirit of Article 2 of the African Charter on Human and People's Rights, Article 27(4) of the 2010 Kenyan Constitution provides that 'the state may not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language or birth.' In particular, Article 27 (8) states that '… the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.' Article 27 (1) underscores equality for all before the law. At the same time, Article 27 (3) emphasises that 'women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.' However, Kenya is yet to achieve the practical application of this critical mandate 12 years later, with only 82 elected women against 267 male members currently sitting in parliament. This paper argues that the wide gender discrepancy is founded on the deeply embedded patriarchal mindset permeating the Kenyan Parliament and that without cultivating a positive mental shift towards acknowledging the essential contribution made by women and girls to community growth and development, the envisioned outcome will remain a theory.

Background to the Study

Kenya attained independence from the British colony in 1963. Whereas the Native Registration Ordinance had allowed men to be issued identity cards upon turning 15 in 1919, it was not until 1978 when the Registration of Person Act (Cap 107) allowed women to register at age sixteen. Without registration, women were viewed as lesser beings and denied equal education opportunities with men as well as the chance to own individual property. Additionally, most men preferred educating only boys who would enrich the family instead of girls who were groomed into successful housewives.

Systematic Discrimination of Women and Girls

In most African countries, a male child was accorded much more value due to his ability to perpetuate family lineage and herd his father's livestock, the main source of livelihood and dowry payments. Indeed, men were allowed to marry as many women as possible to increase the number of children in the homestead. It may be important to note that according to the Marriage Act Kenya (2014), See also Daily Nation, Uhuru Kenyatta signs Marriage Bill into Law. Initially, the elder wife had to identify the woman to be married by the husband to ensure harmony in the homestead. However, in a show of might, the male parliamentarians removed this requirement in 2014, thereby allowing themselves to legally marry numerous women without seeking approval from the wife, the exception being Christian and civil marriages, which still provide for only one wife.

On the other hand, a woman's worth was largely pegged on her ability to bear many children for her husband. Girls were married off as soon as they reached maturity, mostly to the man capable of giving the highest number of livestock in dowry payment. Regrettably, the girls were not consulted on the choice of the husband the family settled for, with numerous stories of girls being 'stolen' into marriage by would-be in-laws. The implication of girls being 'stolen into marriage' comprised of a conspiracy between the male members of the two families whereby the girls' family alerted the other family where to waylay the girl and carry her off to the suitor's house for marriage.

According to my maternal grandmother Maria Nyambura Gichuhi, who was the first of my grandfather's four wives, among the Kikuyus, one of the 43 Kenyan sub-tribes, girls were only valued for their ability to perform family chores and bringing in dowry. This information was passed down to me during folktale times, which consisted of my siblings and cousins sitting by the fireside in the evenings and listening to stories about our historical background from our late maternal grandmother Maria Nyambura Gichuhi (Wagoni), my late paternal grandmothers Teresia Kanini Gitaka as well as my late father Joseph Muiruri Gitaka (Ndirite) and my mother, Patricia Wanjiku Muiruri. The elders passed the folktales, songs and dances down from one generation to the other to carry on the community's culture and institutional memory. The girls were taught housekeeping skills from a tender age in readiness for marriage and systematically brainwashed to be subordinate to the male figures in their midst, especially in giving birth to numerous children upon being married off. If a girl from the Kikuyu community failed to uphold the marriage, however abusive it was, her dowry was to be returned to the husband. The fear of subjecting the family to the degrading and humiliating process that lowers the possibility of her sisters getting suitors still compels some women to stick to abusive unions, which might result in loss of life.

Since there were no hospitals during my grandmother's time, child delivery was conducted by traditional birth attendants in a secluded hut as other people waited outside. As soon as the baby came out, the birth attendants would signal to those outside whether it was a boy by uniformly exclaiming 'aririririririri riiiii' which they would joyously repeat five times. However, if it was a girl, the ululations were initially three, but with time, the number was raised to four.

Strategies for Promoting Cultural Change as a Way Forward

Despite the elaborate provisions in the Maputo Protocol against gender stereotyping, most African women are still subjected to discrimination and retrogressive practices. Although the population of women in Kenya is slightly higher than that of men, the Parliament is dominated by men as most women are reluctant to elect fellow women to leadership positions. In the Article Women liberation has come of age, the Nairobi Law Monthly, Vol 9 Issue 7, Mwenda Chuma opines that Kenyan 'women politicians must learn to craft their strategy around… issues that directly affect women to draw women to vote for them…Issues like maternal mortality, domestic violence, girl child education, early marriages, etc. are by their nature gender sensitive.' There is a need for proper funding and support to enable women to develop strategic leadership skills in pursuit of their collective growth and development, aiming to achieve greater representation in the political arena. Arguably, an education system that underscores the need for holistic equality for all, as provided for in the 2010 Constitution, could result in a positive mental attitude towards the status of women, thereby bridging the gender chasm occasioned by the prolonged patriarchal ideology. In her Article published in the English Legal System, Eighth Edition (2016) 176, Jacqueline Martin states that 'the moral values of communities lay down a framework for how people should behave.' She observes that the law of a particular country is the true reflection of the moral values acceptable to most of its citizens.

Arguably, the solution to the subservient state of African women lies with the underpinning of broader social policies since the society sets acceptable or unacceptable social norms and cultural practices that shape the enforceable laws and policies in the particular community globally. Whereas there are several men genuinely standing up for women's empowerment, the majority of them arguably conceptualise women as lesser beings. Therefore, there is a need to upscale Kenyan women's representation in Parliament and the Senate and the other elective or nomination posts to live up to the threshold and spirit of Article 27(4) of the 2010 Constitution. To this end, the need for strategic public participation in changing the downtrodden traditional narrative to appreciate women and girls' increasing contribution to the country's growth and development cannot be gainsaid.