Constitutions As Pathways to Gender Equality in Plural Legal Contexts

Abstract

Kenya has made significant strides in overhauling its legislation to better deal with gender discrimination. However, the legislative steps taken seemingly understate the environment of legal pluralism that characterises the Kenyan state where, for instance, customary law is still pervasive and operates side by side with formal laws. The traditional approach generally gives premium to formal laws while treating customary law with scepticism or altogether disdain in the hope that all individuals will ultimately transition to formal laws. Yet, this has not necessarily been the case. Customary law continues to survive and thrive. Accordingly, this paper argues for a departure from the jaundiced view that customary law only serves to further gender inequalities. The paper argues for a more balanced approach that recognises that customary law has aspects that could be harnessed to foster gender equality and thus complement formal laws on gender equality. In rooting for an appreciation of the role and place of legal pluralism in promoting gender equality, the paper contends that formal laws in and of themselves are not enough to effectively deal with gender discrimination; the two must operate side by side, not necessarily one below the other, as has been the case.

Linked Data Supported Content Analysis for Sociology

“…Constitutions can be viewed as a mirror of society and as a self-description of the state in the context of global societies [14] and therefore represent an important contribution to cultural heritage. Sociological research questions involving constitution texts include the modeling of the relationship between the state and the citizen [23], the modeling of gender in a state [16,20] and religious freedom [26,40]. Constitutions follow a strict structure and hierarchy.…”

Intricacies for Gender Equality in Formal and Informal Structures through Governance Enhancement; a Kenyan Perspective

“…The knowledge of gender equality gives avenues to correct earlier biases that have misconstrued gender equality to women empowerment programs and women emancipation thereby encouraging the discriminate outlook on the subject (Arora-Jonsson, 2012;Bayeh, 2016). Attitudes and practices that support gender equality on one hand have been influenced by the dynamics of the corporate and political landscapes that have highlighted the essence of equality by both genders and on the other hand began the mindset change influencing practices which foster gender equality (de Villiers & Dimes, 2021;Kameri-Mbote, 2018a).…”

“…Informal structures are beleaguered with challenges of social and cultural norms that seem to favour masculinity over femininity where the knowledge base is derived from a biased perspective of gender equality (Kameri-Mbote, 2018a;Opoku et al, 2018). Governance on the other hand offers pillars such as inclusivity, equity, and equality in addressing the inadequacies portrayed by formal and informal structures for gender equalities and ultimately giving platform to handle gender gaps transparently with accountability (Chhotray & Stoker, 2009;Jindra & Vaz, 2019).…”

“…In Kenya, the issue of gender equality is fast growing, arousing curiosity by many if the same will provide opportunity to empower both male and female where each has been aggrieved or undermined (Berry, Bouka, & Kamuru, 2021;Kameri-Mbote, 2018b). Interestingly, gender inequalities exist in different forms with some supported by various formal and informal structures in place delimiting the clamour for equality (Berry et al, 2021;Jayachandran, 2015).…”

“…Gender biases and stereotypes notwithstanding tend to undermine gender equality especially where women are appointed to senior leadership position receive contemptuous feedback and to some extent ridicule (Berry et al, 2021;Jayachandran, 2015). With support from informal structure gender biases in education and land/ property ownership continue to thwart efforts to achieve gender equality despite the many laws passed in Kenya (Doss, Kovarik, Peterman, Quisumbing, & van den Bold, 2015;Government of Kenya GOK, 2010;Kameri-Mbote, 2018a).…”