Gender Equality in the New Constitutional Dispensation of Kenya

Abstract

The new Kenyan Constitution gives a very critical treatment to gender. It seeks to repudiate the historical exclusion of women from the mainstream society. It strikes at the socio-legal barriers that Kenyan women have faced over history. Compared with the old constitutional order, the new legal framework not only creates space for women to maneuver their way in the private and public sphere on an equal footing with men, but also institutionalizes direct gender-specific measures that seek to correct the consequences of women’s historical exclusion from the society. Such measures include affirmative action. Through affirmative action, the new constitution seeks to elevate women to a pedestal that has hitherto been the preserve of men. In this paper, we trace the legal position of women throughout Kenya’s history. We argue that in the pre-colonial and colonial period women had a more or less diminished legal status. This situation did not change much after independence and throughout the subsequent regimes women’s legal status did not improve. The law discriminated against them either directly or in its effect. While multi-partys brought some gains, these were not significant enough to break off the legal and social chains that beset women in Kenya. The new constitution is a culmination of the incremental steps taken by the country to level the socio-legal terrain in favor of women. It provides the same opportunities for men and women. At the same time it seeks to rectify the imbalances that women have suffered throughout years of historical exclusion. The new constitution represents a significant improvement in women’s status in Kenya in all spheres of life. We discuss the opportunities and suggest that if women are to make a wholesome contribution to the Kenyan society they must take advantage of the framework in the new constitutional dispensation.

Keywords: gender equality, women's rights, constitution, Kenya

JEL Classification: K39