Women Will Spearhead Kenya’s Constitutional Commitment to Equality

On this International Women’s Day 2012, allow me to start off by briefly discussing the dynamics of social change. Throughout history, it has always been the oppressed groups within any society that have been at the forefront of the struggle for equality. For instance, during the Civil Rights Movement, African American leaders were on the front lines of the struggle for social change because they knew first-hand what inequality and discrimination was all about. Within the human rights struggle in Kenya, the women’s movement has perhaps been a well organised and formidable force resulting in part to the promulgation of the Constitution in 2010. It is because of women’s own past experiences of prejudice and injustice that they continue to push for social change and reforms.

Equality is a difficult and deeply controversial ideal. At its most basic and abstract, equality is a moral idea that people who are similarly situated in relevant ways should be treated similarly. Therefore, in the context of the gender equality struggle, women and men must have full and equal enjoyment of all rights and freedoms which includes the right to equal opportunities in all areas of life. So, the struggle for ‘gender equality’ as we know is not only about women but rather about both the male and female genders. However the struggle for equality and equity between the two genders is led predominantly by women precisely because they have endured decades of prejudice and discrimination on the basis of their gender. Therefore women understand the importance of ‘equality’ both as a social ideal and more importantly as a legally binding requirement that is the hallmark of Kenya’s constitutional dawn.

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We Must Accept the Blame for the Troubled Boy Child

I was once a boy child.

I grew up in a time when having a son was considered a blessing. And after a certain age, all my short-comings and indiscretions were dismissed as “boys will be boys”. This is not to say that I wasn’t raised right. As a son, parents were never really scared of you falling prey to bad company, drugs and alcohol, or getting your heart broken by girls or contracting a life-threatening disease or fathering a child out of wedlock. These concerns were largely directed to the girl child because she was always seen as the more vulnerable one, the one that needed to be given the best possible chance to succeed. For the boy-child, it was believed that all it took was constant reminders of “be a man!” and observing the older men around to figure out how to navigate through life.

It is indeed true that the boy child in Africa for many generations has unwittingly benefitted from a patriarchal society that has prized men over women and sons over daughters. And so, the boy child used this gender imbalance as a crutch to get by in life and even prosper with very little effort compared with his female counterparts.
But that was then, now things have changed. As issues of women’s empowerment gain prominence and a wide array of policies aimed at uplifting the girl child start to bear fruit, suddenly the boy child is now emerging as the threatened one.

There are two schools of thought that appear to be emerging on the way forward.

One view widely held is that women are unfairly overburdened. As it stands, mothers, aunts, sisters, wives, females in general carry the load of empowering the girl child as well as providing support and guidance to the boy child. While men do little or nothing.
Women’s rights activists therefore believe that society should stop blaming women for the troubled boy child. Furthermore, women should no longer be considered as the custodians of traditional societal values such that when children stray and destroy their lives, blame is heaped on women failing to raise them right. Therefore the reproductive role can no longer be borne by women alone. The responsibilities of pregnancy and child rearing must be shared equally between the man and the woman, as much as possible.
Therefore, this school of thought concludes by stating that the troubled boy child dilemma should not be left to women to figure out and deal with. Men themselves should start holding the boy child’s hand the way women have long been doing with the girl child.

The second school of thought, which I happen to espouse, begins by conceding that menfolk have indeed neglected their duties to the boy child as fathers, father-figures, big brothers, cousins, uncles leaving the boy-child neglected and troubled. However, the overall responsibility of ensuring that there is gender balance in society remains a concerted effort between both men and women, especially those already involved in the human rights movement and within civil society.

The appeal being made in this regard is that women ought to make affirmative action to be more about gender empowerment than just women empowerment. The danger of not addressing the emerging issues surrounding the boy child is that we are slowly breeding an angry, misunderstood and marginalized generation of men which has serious social consequences. And so like my protégée Nittzsah I agree that we need to shine the spotlight on the boy child. However, dealing with the troubled boy child issue cannot be divorced from the empowerment of the girl child. The challenge to men (formerly boy children like me) is to get more involved and actively participate in the formulation and implementation of affirmative action programmes and policies geared to addressing gender disparities for the betterment of the entire society.

At a societal level, empowered men can start by mentoring younger males within the family and in the community, having meaningful discussions and talks with them about what it really means to be a man and the challenges of manhood that await them. It’s time that we, men played our part.

Affirmative Action and the Supreme Court Bench

The right to equality under article 27 in the new constitution is clear:

“…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”

It is indeed sad that Kenyans have to rush to court to remind the Government to keep the promise it made to the People of Kenya at the moment of promulgation of the Constitution barely a year ago.

Why must women be made to beg for their rights?

The Supreme Court as presently constituted has 2 female justices and 5 male justices. Simple math shows that 5/7 is well above the two thirds limit and ofcourse 2/7 falls short of the minimum one third. The JSC and other old school legal minds (with all due respect) may argue that the number 7 is indivisible and decimals cannot be used to argue for the inclusion of more women in instances where the math doesn’t exactly add up. This amounts to trivialising a very serious matter. Instead of pointing at women standing up for their rights, why not point the accusing finger at the JSC for breaching our constitution?
In this connection, FIDA’s case in court should not be reduced to a procedural non-starter as blogger ‘Kenyan Jurist’ opines, it is an important moment for our government to show that it has broken with the past of inequality and it is committed to embracing the values and ideals enshrined in our new constitution.

No one disputes that the law was followed throughout the selection and vetting stages of the Supreme Court nomination process but a flawed outcome invalidates all the good work, precious time and valuable resources spent on picking suitable Kenyans to sit on the bench of Kenya’s first Supreme Court.

Affirmative action by definition means preferential treatment for disadvantaged groups of people. There are two ways of looking at affirmative action: it is either an exception to the right to equality or as part of the right to equality. Our new constitution takes the latter view and sees affirmative action as a means to the end of a more equal society. In South Africa for instance, affirmative action focused on past racial inequality. Segregation and apartheid created a political and economic system that favoured some people and unfairly discriminated against others. In Kenya, it is clear that deeply entrenched gender inequality has been the single greatest barrier to women and men having the right to equal treatment, including the right to equal opportunities particularly in political and economic spheres.

Today marks the swearing-in of our new Chief Justice Prof Willy Mutunga and Deputy Chief Justice Nancy Barasa as President and Vice President of the Supreme Court, respectively. After today’s ceremony, I believe their first order of business should be to address this obvious constitutional breach in the formation of their Court. Conclusively addressing this issue will be a positive start to their terms of office and inspire public confidence in their ability and willingness to uphold the letter and spirit of our Constitution.