Women's rights in Kenyan jurisprudence

Contents

Acronyms and Abbreviations

Introduction

CHAPTER ONE: GENDER PARITY
1.1 The Concept of Gender Parity
1.2 Gender Parity as a Fundamental Human Right
1.3 Faces of Gender Disparity
1.3.1 Mortality inequality
1.3.2 Natality inequality
1.3.3 Basic facility inequality
1.3.4 Special opportunity inequality
1.3.5 Professional inequality
1.3.6 Ownership inequality
1.4 Conclusion

CHAPTER TWO: GENDER LEGISLATION
2.1 The Concept of Gender Legislation
2.2 Legislating Gender Equity
2.3 Gender equality and equity in the constitution and other legislation
2.3.1The Constitution of Kenya
2.3.1.1 Right against gender discrimination
2.3.1.2 Two thirds gender rule
2.3.2 International Legal Framework for the Protection of Women’s Rights
2.4 Consequences of gender legislation

CHAPTER THREE: THE FEMINIST LEGAL THEORY AND JURISPRUDENCE
3.1 Introduction to the feminist legal theory
3.2 Feminists legal methods
3.3 Feminist psychology and philosophy – decoding a feminist’s mind
3.4 The Feminist law & Jurisprudence
3.4.1 Feminist law in Kenya
3.4.2 Feminist jurisprudence in Kenya
3.4.2.1 The Marriage Act - registration of polygamous marriages
3.4.2.2 Matrimonial Properties Act – constitutionality of section 7 ownership of matrimonial property on basis of contribution of either spouse
3.4.2.3 Reproductive rights - abortion
3.5 The trade off – between radical feminism and objectivity
3.6 Conclusion

CHAPTER FOUR: INTRODUCTION TO THE LEGAL PROTECTION OF REPRODUCTIVE RIGHTS IN KENYA
4.1 Introduction
4.2 Overview of Reproductive Health and Reproductive Rights (concept, scope, protection and enforcement, challenges and opportunities)
4.2.1 The concept of reproductive rights
4.2.2 The Scope of reproductive rights
4.2.3 Medical Perspectives of Reproductive Health
4.2.3.1 Biological, psychological and social factors impacting on a woman’s reproductive health
4.2.3.2 Defensive medicine in Reproductive Health
4.2.3.3 How medical negligence has impacted on reproductive rights
4.2.4 The legal protection and enforcement mechanisms of reproductive rights
4.2.5 Challenges and opportunities in the field of reproductive rights

CHAPTER FIVE: THE NATIONAL AND INTERNATIONAL FRAMEWORKS FOR THE PROTECTION OF REPRODUCTIVE RIGHTS
5.1 Introduction
5.2 Constitution of Kenya,
5.3 The Penal Code
5.4 Universal Declaration of Human Rights
5.5 International Covenant on Economic, Social and Cultural Rights
5.6 International Covenant on Civil and Political Rights
5.7 Convention on the Elimination of All Forms of Discrimination against Women

CHAPTER SIX: PROTECTION OF REPRODUCTIVE RIGHTS BY THE JUDICIARY IN KENYA
6.1 Introduction
6.2 Right to health care
6.2.1 Availability
6.2.2 Accessibility
6.2.2.1 Economic accessibility (affordability)
6.2.2.2 Right to provision of health services
6.2.2.3 Right to access medicine
6.2.2.4 Emergency medical treatment
6.2.2.5 Acceptability and Quality of public health-care facilities
6.3 Right to birth control: contraception and family planning
6.4 Right to terminate a pregnancy
6.4.1 In case of death during abortion, who is liable?
6.5 Reproductive Rights of Children and Adolescents
6.5.1 Sexual abuse
6.5.2 Early marriages/pregnancy
6.5.3 Surrogacy
6.5.3.1 Children Act applied to Surrogacy agreements without law governing surrogacy
6.5.3.2 Urgent Need for Laws to Regulate Surrogate Arrangements in Kenya

CHAPTER SEVEN: THE NOTIONS OF GENDER, SEXUALITY AND DISCRIMINATION AND THEIR IMPACT ON REPRODUCTIVE RIGHTS
7.1 Gender
7.2 Sexuality
7.3 Discrimination
7.3.1 Intersex and gender identity
7.3.2 Recognition of LGBTIQ and LGBTIQ Advocacy and Groups

CHAPTER EIGHT: COMPARATIVE JURISPRUDENCE - ENFORCEMENT OF REPRODUCTIVE RIGHTS
8.1 Right to health care
8.1.1 Availability
8.1.2 Accessibility
8.1.2.1 Affordability of health services
8.1.2.2 Right to provision of health services
8.1.2.3 Right to access medicine
8.1.2.4 Right to Emergency medical treatment
8.1.3 Right to contraception and family planning
8.1.4 Right to terminate a pregnancy – abortion
8.1.5 Reproductive Rights of Children and Adolescents
8.1.5.1 Sexual abuse
8.1.5.2 Early marriages/pregnancy
8.1.6 Gender identity, sexuality and discrimination
8.1.7 Surrogacy

CHAPTER NINE: INTERNATIONAL MECHANISMS AND CHALLENGES FOR THE IMPLEMENTATION OF REPRODUCTIVE RIGHTS
9.1 Introduction
9.2 Submission of reports to the Secretary General of the UN by States Parties
9.3 International Convention on the Elimination of All Forms of Racial Discrimination
9.4 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
9.5 Convention on the Rights of the Child
9.6 Key Reproductive Rights Challenges

CHAPTER TEN: WOMEN’S RIGHTS TO OWNERSHIP OF PROPERTY IN KENYA
10.1 Ownership of property
10.2 Division of Matrimonial Property
10.2.1 What constitutes matrimonial property
10.2.2 Applicable laws in the division of matrimonial property
10.2.3 Non-monetary contribution as contributions
10.2.4 Constitutional Equality: 50/50 sharing or on the basis of contribution of a spouse?
10.3 Maintenance
10.4 Chapter conclusion

CHAPTER ELEVEN: RIGHTS OF WOMEN LIVING IN WOMAN TO WOMAN MARRIAGES IN KENYA
11.1 Introduction
11.2 The concept of woman to woman marriage generally
11.3 The dichotomy between woman to woman marriages versus lesbianism
11.4 The law governing woman to woman marriages
11.4.1 The constitution
11.4.2 Statutes
11.4.2.1 The marriage Act,
11.4.3 International conventions and general principles
11.5 Nature of disputes relating to woman to woman marriage
11.5.1 Dispute as to validity
11.5.2 Disputes as to matrimonial property
11.5.3 Disputes relating to custody of children of in a woman to woman union
11.5.3.1 Nature of disputes relating to custody of children
11.5.3.2 To whom may custody be granted? - balancing the competing interests of parties by courts
11.5.4 Jurisprudence on best interest of the child
11.5.4.1 A case of woman to woman marriage: When custody is to be granted to another person other than the biological mother
11.5.5 Parental responsibility disputes
11.5.6 Divorce and succession disputes
11.6 Various forms of dispute resolution relating to woman to woman marriage
11.7 Support structures – woman to woman marriage disputes
11.7.1 Paralegal support on disputes relating to woman – to – woman marriage
11.7.2 Other support structures - Family dispute resolution practitioners
11.7.3 Co - existence between customary law, paralegal support, alternative justice forums, and existing recognized processes
11.7.4 How community/paralegal leaders and family law practitioners can be further supported
11.8 The future of woman-to-woman marriage in the courts
11.9 Chapter Conclusion
11.10 Chapter recommendations

12. Overall conclusion & recommendations
12.1 Conclusion
12.2 Recommendation

References

Acknowledgements

The authors acknowledge all the 21st century women whose lives and liberties have been limited and compromised by the designed legislative inequalities and adjudicative idiosyncrasies. Similarly, the authors acknowledge all persons and organizations whose efforts to engender a positive difference, has provided a safe haven for the woman person.

Acronyms and Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

Introduction

Attaching premium to the rights of women and their enforcement in Kenya, the scope of this book is calibrated on both the philosophies surrounding the existence of the various rights of women, their enforcement and realization. In the above context, the book seeks to foster understanding on the following topical issues - concept of gender parity; concept of gender legislation; feminism theory; reproductive rights of women; women’s property rights in Kenya; and the existence, practice and rights of women living in woman to woman marriages.

Gender equality, defined as a numerical concept denotes real or relative numerical and proportional equality of girls and boys and women and men. The concept aims at providing equal access to public and economic opportunities to both men and women as a means of establishing a more sustainable economy. The concept of gender inequality exists in various forms and characteristics better understood through Professor Sen’s categorization as the seven types of inequality namely - mortality inequality; natality inequality; basic facility inequality; special opportunity inequality; professional inequality; ownership inequality; and household inequality.

To address the gender inequalities as a measure to the attainment of the desired equality, the place and operation of legislation has been considered as key. Gender legislation not only affords women and men equal enjoyment of human rights and equal opportunities but also establishes a sense of justice and fairness in the treatment of women and men in order to eventually achieve gender equality by often requesting specific measures and differential treatment of women and men. This is in recognition of the fact that gender skewed laws play a role in enhancing poverty and other harmful conditions to the feminine gender. It is on that basis that the constitution defines the framework for eliminating discrimination against women in law and practice and articulates the principles and ways by which historical power asymmetries are redressed. The Constitution further asserts equality of every person before the law and equal protection and equal benefit of the law including in the full and equal enjoyment of all rights and fundamental freedoms.

In cognizance of the existing gender inequality, the feminists have strived to advance a philosophy of continued connivance to disadvantage women by legislative, policy and decision making organs including the judiciary. It is on that basis the feminist theorists aim to understand the nature and motive of gender inequality. Feminists’ agenda has been successful as the enactment of legislation including - the Constitution of Kenya, 2010; Matrimonial Property Act; the Marriage Act; Protection against Domestic Violence Act; and the Political Parties Act, 2011 among other legislation can be attributed to that course. However, the book views the best approach to the feminist discourse as that which is guided by the ideals of good faith, soundness, objectivity and gender harmony.

The book also studies jurisprudence on enforcement of reproductive rights in Kenya. Defined as a person’s rights relating to the control of his or her procreative activities, the book queries the numerous cluster of liberties relating to pregnancy, abortion, and sterilization especially the personal bodily rights of women among others. The book tests the woman concern in the making of reproductive decisions free from discrimination, coercion, or violence.

As a highly contentious matter in the women rights campaign, the book studies the regime of property ownership in Kenya with specific regards to the rights of women to own, use and dispose property. The book examines Kenya’s jurisprudence to elicit the court’s and feminists’ perspectives in advancing the woman concern.

Lastly, the book writes on a silent topical issue of woman to woman marriage which unlike lesbianism, is a practice where a woman marries another woman and assumes control over her and her offspring for the purpose of child bearing. The book finds out the broad features of woman to woman marriage and the dispute resolution process in this institution. Subsequently, the law governing woman to woman marriages and the nature of disputes relating to woman to woman marriage is also subjected into discussion.

CHAPTER ONE: GENDER PARITY

1.1 The Concept of Gender Parity

The concept of gender parity is a concept with many faces.¹ Generally, it denotes real or relative numerical and proportional equality of girls and boys and women and men.² UNESCO defines gender parity as purely a numerical concept³. That gender equality is determined by calculating the ratio of male to female for a given indicator.⁴ Canadian International Development Agency (CIDA) notes that indicators may be pointers, opinions, facts, numbers or perceptions used to signify changes in specific conditions or progress towards particular objectives.⁵

‘Gender-sensitive’ indicators refer to quantitative and qualitative measurements based on sex disaggregated statistical data and are used to measure gender-related changes over time.⁶ Quantitative data are concerned with information that can be measured and written down with numbers.⁷ Qualitative data on the other hand is concerned with information that can't actually be measured (information about qualities).⁸ For example, while quantitative measures could be concerned with querying parameters like literacy for men and women separately; qualitative measurements on the other hand are concerned with parameters such as increase in women’s attitude changes about gender equality or levels of empowerment.⁹

In a nutshell, UNESCO affirms that gender parity as a concept in attainment of education implies that the same proportion of boys and girls - relative to their respective age groups, would enter the education system and participate in its different cycles.¹⁰ As a public governance tool, gender parity seeks to provide equal access to public and economic opportunities to both men and women as an avenue to improving national well-being and accomplishing a more sustainable economy.¹¹

1.2 Gender Parity as a Fundamental Human Right

According to the Charter of the United Nations, the people of the United Nations determined to re-affirm faith in fundamental human rights and in the dignity and worth of the human person in the equal rights of men and women.¹² UN Women underscores the need for active participation and incorporation of women’s perspectives at all levels of decision-making as a means of achieving the goals of equality, development and peace cannot.¹³ Carlos Pereira and Vladimir Teles also restate gender inclusivity in systems of governance as a prerequisite for a proper functioning of any democracy.¹⁴ It’s on the basis of that that philosophy that the Beijing Platform for Action notes that equality between women and men is more to just being a fundamental prerequisite for development and peace but also a condition for social justice and a matter of human rights.¹⁵

1.3 Faces of Gender Disparity

Professor Sen in the ‘Faces of Gender Inequality’ highlights seven types of inequality namely - mortality inequality; natality inequality; basic facility inequality; special opportunity inequality; professional inequality; ownership inequality; and household inequality.¹⁶

1.3.1 Mortality inequality

Sen describes mortality inequality as the inequality between women and men directly involving more deaths recorded from one gender as compared with the other in societies with gender bias in health care and nutrition.¹⁷ Copenhagen Consensus on Human Challenges notes that demographic gender inequality recognizes that men live shorter lives on average than women do (65: 69—CIA 2010).¹⁸

1.3.2 Natality inequality

Jacobsen notes that there is a concern that many women are never given the chance to be born.¹⁹ Sen writes that this gender inequality manifests itself in the form of parents wanting their newborns to be boys rather than girls, a preference that is characteristic of many male-dominated societies.²⁰ For example, in northern India, sons are increasingly preferred to daughters owing to the country’s long history of discrimination against women with the result that as portrayed by India’s 2011 census, the number of girls under the age of six has hit an all-time low compared to boys.²¹ As a result of this inequality, women in the younger generations have been outnumbered by men.²² That disparity has been further exacerbated by availability of modern techniques with ability to determine the gender of the foetus consequently orchestrating prenatal sex determination with subsequent selective abortion of female fetuses.²³

1.3.3 Basic facility inequality

This inequality denotes disparity in access to basic facilities available to women.²⁴ This inequality is prominent where opportunities of basic facilities like schooling are less availed to girls than boys.²⁵ Amartya Sen mentions the Afghanistan Government as a government that is keen on actively excluding girls from schooling and education.²⁶ This type of inequality surfaces in various forms. For example, for the families residing in the villages, owing to the limited access to schools and the numerous subsistence activities in the villages like farming, there is a tendency to keep the girls home and away from school.²⁷ Similarly, cultural adherences and patterns limit equal opportunities for girls and women.²⁸ For example, in some communities, there is a belief that sons ought to be educated because they will help their parents in old age. This has a direct adverse effect on the girls’ access to education as a basic facility.

1.3.4 Special opportunity inequality

This type of inequality is that which transcends provision of basic facilities. Jerry Jacobs writes that gender inequality is more pronounced in some aspects of educational systems than others.²⁹ Even after guaranteeing equality on basic services, sometime, there is a tendency to perpetuate disparities in opportunities at higher levels for example in institutions of higher learning. For example, according to a 2015 report by Equality Challenge Unit (ECU), male students comprised the large majority of first year students studying engineering and technology (84%) and computer science (83%).³⁰

A study conducted by Institute of Economic Affairs and Nation’s Newsplex project found that despite more boys being born and even surviving to school – going age, more girls are being enrolled in pre – primary schools. The study further found out that there is however a shift in statistics as there is a higher number of boys to girls between class one and seven. However owing to an average of 4000 more boys drop out per year than girls. The survey showed that out of the total drop outs from class six to seven, 29,300 were boys while 17,000 were girls. That study found and projected that as a result of that higher drop out of boys than girls, female students are set to overtake male students in secondary school by end of the year 2015 with the same ripple effect being felt in universities.³¹

Although there is remarkable progress in attaining gender parity in the provision of basic services, extensive gender asymmetry both direct and indirect is still prominent in many areas of training and higher education.

1.3.5 Professional inequality

Gender disparity still intrudes into composition and operation of professions.³² Owing to stereotypes, cultures and structural problems, many women have still been prevented from participation in some of the most thriving and essential businesses particularly in male-dominated industries such as mining, utilities, academia and construction.³³ For example, according to a 2015 report by Equality Challenge Unit (ECU), a majority of all professors in the UK across all disciplines are men (over 78%). The report noted that women comprise only 22% (1465) of all academic staff in those academic subject areas.

Gender equality in the work environment is multidimensional phenomenon and ought not to be looked at from the perspective of gender differences in labor market participation. Such an approach apparently masks gender differences in the nature and dynamics of work.³⁴ Real gender equality therefore entails reallocation of a variety of activities and time across the work environment. In reviewing professional inequality, one ought to query key dimensions including labor force participation, earnings and job quality. Some of the positive indicators and predictors of equality in the work environment include full-time wage employment; employment in higher earnings jobs; and exposure of women to opportunities to help them advance their skills for development.

The issue of professional inequality has been litigated in Kenya in the case of Rose Wangui Mambo & 2 Others V Limuru Country Club & 15 Others. ³⁵ The High Court in Nairobi was faced with the issue - whether a private members club’s by-law barring female golfers from participating in its General Meetings was discriminatory and against Constitution. The ourt found that the Club’s by-law in question was not only discriminatory but contrary to the Club’s constitution, article 27 of the Constitution of Kenya, 2010 and not permissible in a just and democratic society.³⁶

Similarly, in Marilyn Muthoni Kamuru & 2 Others v Attorney General & another,³⁷ Justice Onguto determined the issue whether the cabinet as constituted then, having more men than women in the cabinet, had violated the provisions of article 27(8) of the Constitution on the two thirds gender rule. The Court held that there was no reason that could impede the realization of not more than two third gender rule in the cabinet. There was no justifiable or compelling reason and therefore, the appointment of persons to the cabinet as currently constituted violated the two-third gender requirement as provided for under article 27(8) of the Constitution.

Professional inequality was also litigated in the case National Gender & Equality Commission & another v Judicial Service Commission & 2 others. ³⁸ In that issue, the petitioner had raised the issue - whether the appointment of 5 male judges of the Supreme Court out of 7 judges, was a breach of the two-thirds gender principle as recognized in the Constitution. The Court found that the Supreme Court had seven members: two were female and five were male. Two–thirds of seven would give 71.42 percent or 4.66 men, while one- third of seven would give 28.57 percent or 2.33 female. There were no decimal points to human beings and taking the figures to the nearest whole numbers, 4.66 would round off to 5 men, while 2.33 would round off to 2 women.

1.3.6 Ownership inequality

Many societies experience asymmetry in the ownership of both movable and immovable property. That has a ripple effect of making it harder for women to participate in and flourish in commercial, economic and even some social activities. Chant writes that as a result of feminization of poverty, women are the leading in the world’s statistics of world's poor.³⁹ That state has been described by UNIFEM as "the burden of poverty borne by women, especially in developing countries.’⁴⁰ This occurrence has been attributed to among other salient factors - the legal deprivation of capabilities and gender biases present in both societies and governments including – limited exposure to choices and opportunities such as the ability to lead a long, healthy, and creative life, and enjoy basic rights like freedom, respect, and dignity.⁴¹

1.4 Conclusion

Gender equality is a numerical concept meaning the proportional equality of girls and boys and women and men with the goal of ensuring equal access to public and economic opportunities to both men and women. In approach, efforts to install gender equality ought to address the peculiar concerns characteristic of the different faces of inequality including - mortality inequality; natality inequality; basic facility inequality; special opportunity inequality; professional inequality; ownership inequality; and household inequality.

CHAPTER TWO: GENDER LEGISLATION

2.1 The Concept of Gender Legislation

Gender legislation is both an equity and equality values concept. As an equality concept, gender legislation has sought to establish a state that affords women and men equal enjoyment of human rights, socially valued goods, opportunities and resources, allowing both sexes the same opportunities and potential to contribute to, and benefit from, all spheres of society (economic, political, social, and cultural).

As an equity value concept, gender legislation has sought to establish Justice and fairness in the treatment of women and men in order to eventually achieve gender equality by often requesting differential treatment of women and men (or specific measures) in order to compensate for the historical and social disadvantages that prevent women and men from sharing a level playing field.

2.2 Legislating Gender Equity

Legislation is one of the major avenues through which gender discrimination in any society can be addressed.⁴² In many instances, law has been used as a social engineer to bring about change and removing disparity and segregations in the society, as was in the case of Brown v Board of Education⁴³ in the United States.

One of the major achievements of the 20th Century was the development of a rich body of international law affirming the equal rights of all human beings.⁴⁴ For instance, Johannes Morsink notes that the UN Charter has already spelt out the mandate to bring equality between the sexes.⁴⁵ Despite the major milestones, many women are yet to realize the enjoyment of rights both in the private and public sphere.⁴⁶ Women’s rights are violated in myriad ways in private and public including - the continued gender stereotyping, gender discrimination, harmful cultural practices and domestic violence.⁴⁷

This chapter discusses the role gender discrimination in enhancing poverty and other harmful conditions to the feminine gender. The chapter also inquires on the progress made by the legislature in fostering gender equity and social relations in Kenya.

2.3 Gender equality and equity in the constitution and other legislation

2.3.1The Constitution of Kenya

The Constitution of Kenya, 2010⁴⁸ has been lauded as one of the most progressive pacts in the world for its inclusive and comprehensive bill of rights.⁴⁹ In addition, it has installed gender equity in the laws related to marriage and custody of children.⁵⁰ The constitution defines the framework for eliminating discrimination against women in law and practice and articulates the principles and ways by which historical power asymmetries are redressed.⁵¹

2.3.1.1 Right against gender discrimination

Article 27(1) of the Constitution states that every person is equal before the law and has the right to equal protection and equal benefit of the law.⁵² Subsequently sub-article 2 states that Equality includes the full and equal enjoyment of all rights and fundamental freedoms.⁵³ Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.⁵⁴ Article 27(4) compels the State not to 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, dress, language or birth.⁵⁵ Article 27(6) effectuates the rights of women under article 27 by requiring the State to take legislative and other measures, including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.⁵⁶

Article 59 (1) of the Constitution establishes the Kenya National Human Rights and Equality Commission.⁵⁷ The functions of the Commission inter alia include:-promoting gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development.⁵⁸ Article 60 (1) of the Constitution provides for elimination of gender discrimination in law, customs and practices related to land and property in land.⁵⁹

Subsequently, article 172 (1)(2)(b) mandates the Judicial Service Commission to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice.⁶⁰ The Commission is mandated, in the performance of its functions, to promote gender equality.⁶¹

2.3.1.2 Two thirds gender rule

Article 81 states that the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender.⁶² Article 27 obligates the government to develop and pass policies and laws, including affirmative action programs and policies, to address past discrimination.⁶³ Article 177 ensuring that the two thirds gender rule above complied with at the county level through the nomination of special seat members, the same is not guaranteed at the National Assembly and the Senate.

The Constitution provides that the National Assembly also consists of forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency.⁶⁴ The constitution also provides for nomination of sixteen women by political parties⁶⁵ and one woman representing the youth and persons with disabilities⁶⁶ into the Senate and County Governments and appointment of women into other decision-making bodies.

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate⁶⁷ the court sought to address the issue whether article 81 (b) which required that not more than two-thirds of the members of elective public bodies shall be of the same gender applied in respect of the general elections which was held on March 4th, 2013, or on the contrary, progressively over an extended period of time. The Court held that even though article 81(b) of the Constitution was immediately applicable in the case of County Assemblies under Article 177, article 81(b) was amenable only to progressive realization.⁶⁸

2.3.2 International Legal Framework for the Protection of Women’s Rights

Article 1 of the Universal Declaration of Human Rights (UDHR)⁶⁹ states that all human beings are born free and equal in dignity and rights.⁷⁰ Article 2 provides that everyone is entitled to all the rights and freedoms set in the Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.⁷¹ The import of Article 2 is that women and men ought to enjoy equal rights. Unequal treatment therefore violates the spirit and purport of the UHDR and is an infringement of the international obligations of member states.

Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)⁷² also advocates for rights of women and it states that State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: To take all appropriate measures, including legislation, to modify or abolish existing laws, Regulations, customs and practices which constitute discrimination against women.⁷³

Article 3 of CEDAW is explicit that women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.⁷⁴

On the regional front, a number of regional instruments advocate for the rights of women. Article 2 of Banjul Charter⁷⁵ states that - every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.⁷⁶ Article 18 also provides that the State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.⁷⁷

Solemn Declaration on Gender Equality in Africa⁷⁸ Reaffirmed Africa’s commitment to the principle of gender equality as enshrined in the existing commitments, principles, goals and actions set out in the various regional, continental and international instruments on human and women’s rights and the commitment in Article 4 (l) of the Constitutive Act of the African Union, as well as the Beijing Platform for Action (1995), the Dakar Platform for Action (1994); and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW-1979).

2.4 Consequences of gender legislation

The Attorney General on behalf of the Government of Kenya sought direction from the Supreme Court of Kenya through an Advisory Reference dated 8th October 2012. The issue presented before the Supreme Court for direction was whether the enforcement of the two thirds gender principle was realizable immediately or progressively based on articles 27 and 81(b) of the Constitution.

In its Advisory Opinion No. 2 of 2012 to the Executive and the Parliament, the Court found out that that the realization/attainment of the two-thirds gender rule would be progressive and dependent on the State's further action. Further, the court was of the opinion that public elective bodies were not confined to the National Assembly, Senate or County Government but to all public bodies in Kenya that hold some form of elections. Therefore, in its conclusion, article 81 (b) could not be attained immediately.

The Supreme Court also stated that the rights under article 27 (6) and (8) could only be fully realized using legislative as well as other measures and over a spaced period of time by means of policy and other measures. The Supreme Court further advised that a framework giving effect to the two-thirds gender principle should be in place by 27th August 2015

CHAPTER THREE: THE FEMINIST LEGAL THEORY AND JURISPRUDENCE

3.1 Introduction to the feminist legal theory

The feminist theory aims to understand the nature and motive of gender inequality.⁷⁹ The theory examines the socio-political and economic roles of women and men in the society.⁸⁰ The theory advocates for the removal of barriers to the advancement of women within society. It also advocates for the development of policies to promote equal rights for women.⁸¹ Since their first national gathering at Seneca Falls, New York in 1848, American feminists identified law as an instrument of male supremacy.⁸² Feminist movements have since invested energy on criticizing law as a means of eradicating the most blatant examples of legal sexism.⁸³ Feminist jurists have been concerned with ‘addressing the woman question as a means of querying the gender implications of laws, rules and practices.⁸⁴

3.2 Feminists legal methods

Professor Bartlett emphasizes the import of feminists legal methods which are primarily basic tools grounded in women's experiences of exclusion. Bartlett reiterates that feminists legal methods are essential to lawyers and legal scholars as they help to reveal features of the legal issues that many traditional methods have tended to overlook or suppress.⁸⁵ Similarly, Gayle Binion voiced the need for conventional jurisprudence to require genuine and principled adjudication of women’s rights predicated on analysis and reasons that transcend the immediate result that is achieved.⁸⁶

3.3 Feminist psychology and philosophy – decoding a feminist’s mind

Feminists perceive policies and decisions by men as connivance to disadvantage women; because such policies disfavor women’s lives and interests. Feminist theorists distrust the form and content of the law on grounds that:-

i. Conventional legal doctrines have a fundamental male bias as long as they were developed by men in a society dominated by men, notwithstanding where such doctrines are ostensibly gender-neutral.
ii. The development of pro- women legislations and decisions and ideal feminist theory ought to be done by the women themselves borne out of their own experiences and perspectives as women’s lives, for whatever reasons, are different from men’s lives. As such, theories, decisions and legislations developed by men may not fit women’s world and reality.

Proponents of that philosophy believe that modern equal protection doctrine on sexual equality for example that of gender-neutral spousal support has in fact benefited men more than women. For example, in Orr v. Orr ⁸⁷ at the hearing of the petition, the appellant (husband) made the contention that the Alabama statutes violated the Equal Protection Clause of the Fourteenth Amendment by virtue of their reliance on a gender-based classification.⁸⁸ The Court found that the Alabama statutory scheme of imposing alimony obligations on husbands but not wives violates the Equal Protection Clause of the Fourteenth Amendment.⁸⁹

The Court was emphatic that to withstand “scrutiny" under the Equal Protection Clause, the classifications based on gender must serve important governmental objectives, and must be substantially related to achievement of those objectives. Guided by the contemporary world reality that while the female person was no longer destined solely for the home and the rearing of the family, the male person was equally not caged for the marketplace and the world of ideas. As a result, Orr v. Orr ⁹⁰ decided that the Alabama statutory scheme cannot be validated on the basis of the State's preference for an allocation of family responsibilities under which the wife plays a dependent role.⁹¹

The Court proceeded to affirm that the use of a gender classification had the effect of producing perverse results because only a financially secure wife whose husband was in need derived an advantage from the Alabama scheme, as compared to a gender-neutral one scheme.⁹² It is perhaps from the above school of thought that Bartlett (1990) was of the opinion that even where certain practices, rules and laws might otherwise appear to be neutral or objective, the feminist jurists insist on asking the woman question as a means of identifying the gender implications of those laws, rules and practices.⁹³

3.4 The Feminist law & Jurisprudence

More to becoming an integral part of legal theory, feminist jurisprudence has also contributed to real-world legal change.⁹⁴ In the judiciary, feminists have tried to prescribe a theory of “special rights” for women.⁹⁵ In Kenya, there has been a slow but steady progress towards the creation of a new legal environment where the women status is elevated. Similarly, the courts in Kenya have also been vigilant in advancing the constitutional and statutory tenets of feminism and by extension equality.

3.4.1 Feminist law in Kenya

Legislative enactments advancing the ideals of feminism have been made including – Constitution of Kenya, 2010; Matrimonial Property Act; the Marriage Act; Protection against Domestic Violence Act; and the Political Parties Act, 2011 among other pieces of legislation. These pieces of legislation seek to guarantee women among other things – the enjoyment of fundamental rights and freedoms; civil and political rights; and equal opportunities.

For example, article 27 of the Constitution of Kenya, 2010 seeks to guarantee non-discrimination on the basis of gender and sexuality. Article 45 further assures women and men equality before, during and at termination of marriage. To give effect to article 27, the Constitution mandates the State to take legislative and other measures, including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination on the basis of a genuine need.⁹⁶ The State is also mandates under the Constitution to 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.⁹⁷

3.4.2 Feminist jurisprudence in Kenya

3.4.2.1 The Marriage Act - registration of polygamous marriages

In Mary Wanjuhi Muigai vs AG & Another, ⁹⁸ the Petitioners were of the view that the registration of polygamous marriages violated the equality provisions on marriage under article 45 of the Constitution. The Court held that Polygamy could not therefore be said to promote equality between men and women, and if measured against the clear provisions of the Constitution and international conventions to which Kenya was a party, was clearly unconstitutional and a form of discrimination against women. However, it was a practice that had been accepted in Kenyan society. Registration of polygamous marriages appeared to have been accepted, even by women, as the lesser evil, and had been recommended in various reports, including the 1968 Report of the Commission on the Law of Marriage and Divorce in Kenya. Where the Commission recommended that: all marriages required to be registered and under a single system of registration applying to all persons, regardless of race, religion or community.⁹⁹

3.4.2.2 Matrimonial Properties Act – constitutionality of section 7 ownership of matrimonial property on basis of contribution of either spouse

In Federation of Women Lawyers Kenya (FIDA) v Attorney General & another [2018] eKLR , ¹⁰⁰ the Petitioner challenged the constitutionality of section 7 of the Matrimonial Properties Act which provides that - ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. The Petitioner relied on ground that that section offended article 45 (3) of the Constitution which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. The Petitioner contended that the section infringed on the rights of women to own property after the dissolution of a marriage as that section requires women to prove their contribution towards the acquisition of the property notwithstanding that the definition of contribution had been expanded to include non-monetary contributions. According to the Petitioner, that provision was bound to be used to deprive women of their Fundamental Rights to property in violation of articles 40, 60 and 68 of the Constitution. The Court held that article 45 (3) of the Constitution treats parties to a marriage as equal partners and that the article 45(3) equality was replicated in section 7 of the Matrimonial Properties Act. As such, the Petitioner’s claim of unconstitutionality of that section was not merited.

3.4.2.3 Reproductive rights - abortion

In Federation of Women Lawyers (Fida-Kenya) & 3 others v Attorney General & 2 others [2016] eKLR, the Petition was triggered by a letter and memo from the Director of Medical Services addressed to “All Health Workers” entitled “Training on safe Abortions and use of Medafon for Abortions.” The said letter directed and warned all health workers of legal consequences if they participated in any training on safe abortion and use of Medabon (Mifepristone + Misoprostol).¹⁰¹ Petitioners contended that the said letter and memo had profound implications on the conduct of safe abortions in the context of articles 26 and 29 of the Constitution ; article 4 of the Banjul Charter; Article 4 of the Maputo Protocol and articles 4 and 5 of the Africa Charter on the Rights of the Child.¹⁰²

The Petitioners therefore prayed for a declaration that rights to– life; highest attainable standard of health; freedom from cruel, inhuman, and degrading treatment; and right to non-discrimination had been violated. The petitioners also sought an order restraining the Respondents or their representatives from restricting the training of health care workers, threatening and or intimidating health care workers with punitive measures or prohibiting them from obtaining any instruction, teaching, or learning about safe abortion care.¹⁰³ In a reference to the Chief Justice for constitution of a bench to hear the matter, the Court found that that proviso to article 26(4) of the Constitution permitting abortion where in the opinion of a trained health practitioner, the life of the mother is in danger had never been settled and as such warranted judicial determination by a superior Court.

3.5 The trade off – between radical feminism and objectivity

Kristen Intemann recounts that many feminist theorists have rejected the traditional conception of “objectivity” that was prevalent in both science and philosophy of science in the twentieth century.¹⁰⁴ That notwithstanding, Altman posits that conventional jurisprudence requires that adjudication must be genuinely principled, resting … on analysis and reasons quite transcending the immediate result that is achieved”¹⁰⁵ It is perhaps on this account that article 27(7) of the Constitution also recognizes that any measure taken on the basis of affirmative action shall adequately provide for any benefits to be on the basis of genuine need.

3.6 Conclusion

In a nutshell, feminist legal theory raises fundamental legal questions about – the nature of the law; the way the law is made and practiced; to whom the legal system serves; and possibilities for transformation of the law to address the woman concern.¹⁰⁶ As evidenced above, the color of feminists’ psychology and power of the feminists’ jurisprudence has found good space in Kenya’s feminist jurisprudence with depictures of cross – sectorial constant efforts to query the propriety of laws, rules, policies and decisions in advancing the woman agenda.

To that extent, feminism is a noble course, a path of justice which every human cognizance of their origin must chart. In order to realize true success from the feminists’ agenda, noble souls in that discourse must be guided by the ideals of good faith, soundness, objectivity and gender harmony.

CHAPTER FOUR: INTRODUCTION TO THE LEGAL PROTECTION OF REPRODUCTIVE RIGHTS IN KENYA

4.1 Introduction

Reproductive rights as a body of rights are complex and ever changing.¹⁰⁷ In order to foster a better understanding of the subject therefore, the chapter studies the relevant tenets of reproductive health including – the medical perspectives of reproductive health. The book also studies jurisprudence on enforcement of reproductive rights in Southern Africa and at the global level in comparison with the practice in Kenya. This comparative analysis will bring into focus suggestive similarities and contrasts in practice among the regions and states reviewed. As a result of this comparison, the chapter will be able to clearly enrich the understanding of the concept, practice and challenges in the field of reproductive rights. The chapter will thus espouse these fundamental issues in a manner that exposes the gaps in the field of reproductive rights while establishing the opportunities and suggesting means to attain them.

4.2 Overview of Reproductive Health and Reproductive Rights (concept, scope, protection and enforcement, challenges and opportunities).

This section gives an executive summary of the concept, nature, scope and the protection and enforcements mechanisms of reproductive rights. It further discusses the success levels in the attainment of the same. In a similar fashion, the section will give a snapshot of the challenges and opportunities in the field of reproductive rights. Specifically, the section will curve a niche for the chapter as an inquiry of – whether the reproductive rights as a body of rights have been founded, grounded and realized on the principles, law and considerations that are geared towards improving the lives of women and children for among other intentions - strengthening protections against pregnancy discrimination; pressing for education and criminal justice reforms; raising the minimum wage and requiring paid sick leave.

4.2.1 The concept of reproductive rights

According to Black’s Law Dictionary, reproductive rights are a person’s rights relating to the control of his or her procreative activities.¹⁰⁸ Specifically, it is the cluster of civil liberties relating to pregnancy, abortion, and sterilization especially the personal bodily rights of women in their decision.¹⁰⁹ The phrase includes the idea of being able to make reproductive decisions free from discrimination, coercion, or violence.¹¹⁰ Reproductive rights embrace certain human rights recognized in national and international legal and human rights documents.¹¹¹

Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents.¹¹² These rights are premised on the recognition of the basic right of all couples and individuals to freely and responsibly decide the number, spacing and timing of their children.¹¹³ These decisions concerning reproduction must be free of discrimination, coercion and violence.¹¹⁴ This independent decision has been defined by the World Health Organization as '...a state of complete physical, mental and social well-being in all matters related to the reproductive system and its functions and processes’.¹¹⁵ The freedom to make choices as a tenet in the field of reproductive rights has been found to have implications that go far beyond individuals to society as a whole.¹¹⁶ For example, for women, the ability to choose whether, when, and how often to have children implies the ability to define their own personal development in other terms beyond childbearing .¹¹⁷ This choice also impact on adolescents in that they are empowered to choose healthy sexual behaviors.¹¹⁸ In addition, it also has an implication on families with respect to the fact that the ability to choose family size offers increased choice as to the use of family resources, education, and employment.¹¹⁹ In addition to decision making as a tenet, this study, informed by publications enumerates the right to information and the right to attain the highest attainable standard of sexual and reproductive health as other tenets essential in attaining the right to reproductive health/right. The chapter will discuss these tenets in detail.

...

---

¹ Amartya Sen ‘Many Faces Of Gender Inequality’ (2001) 18(22) FRONTLINE < https://www.sas.upenn.edu/~dludden/MANY%20FACES%20OF%20GENDER%20INEQUALITY.htm > accessed 23 March 2019.

² European Institute for Gender Equality, ‘Gender Parity’ <https://eige.europa.eu/thesaurus/terms/1195> accessed 23 March 2019.

³ UNESCO ‘Gender parity’ < http://uis.unesco.org/en/glossary-term/gender-parity > accessed 23 March 2019.

⁴ ibid

⁵ Canadian International Development Agency (CIDA) Guide to Gender-Sensitive Indicators, (1997) < https://www.fsnnetwork.org/sites/default/files/ml-quick-guide-to-gender-indicators-300114-en.pdf > accessed 23 March 2019.

⁶ Justina Demetriades and BRIDGE‟s Gender and Indicators Cutting Edge Pack, Gender Indicators: What, Why and How? 2007 < http://www.oecd.org/dac/gender-development/43041409.pdf > accessed 23 March 2019.

⁷ Carl Martin Allwood, ‘The Distinction between Qualitative and Quantitative Research Methods Is Problematic’ (2012) 46 Quality & Quantity 1417.

⁸ ibid.

⁹ Justina Demetriades and BRIDGE‟s Gender and Indicators Cutting Edge Pack, Gender Indicators: What, Why and How? 2007 < http://www.oecd.org/dac/gender-development/43041409.pdf > accessed 23 March 2019.

¹⁰ UNESCO Gender Parity < http://uis.unesco.org/en/glossary-term/gender-parity > accessed 23 March 2019.

¹¹ OECD Better Governance For Gender Equality, 2017 < https://www.oecd.org/gov/gender-public-life-flyer.pdf > accessed 23 March 2019.

¹² Charter of the United Nations and Statue of the International Court of Justice. (United Nations 2015).

¹³ UN Women, ‘Fourth World Conference on Women, Beijing 1995’ <http://www.un.org/womenwatch/daw/beijing/platform/> accessed 25 March 2019.

¹⁴ Carlos Pereira and Vladimir Teles, Political Institutions, Economic Growth, and Democracy: The Substitute Effect (2001) <https://www.brookings.edu/opinions/political-institutions-economic-growth-and-democracy-the-substitute-effect/>. accessed 25 March 2019.

¹⁵ Fourth World Conference on Women, Beijing 1995 <http://www.un.org/womenwatch/daw/beijing/platform/>. accessed 23 March 2019.

¹⁶ Amartya Sen ‘Many Faces Of Gender Inequality’ (2001) 18(22) FRONTLINE < https://www.sas.upenn.edu/~dludden/MANY%20FACES%20OF%20GENDER%20INEQUALITY.htm > accessed 23 March 2019.

¹⁷ ibid

¹⁸ Joyce P. Jacobsen Gender Inequality, 2011 < https://www.copenhagenconsensus.com/sites/default/files/gender.pdf > 25 March 2019.

¹⁹ Joyce P. Jacobsen Gender Inequality, 2011 < https://www.copenhagenconsensus.com/sites/default/files/gender.pdf > 25 March 2019.

²⁰ Amartya Sen ‘Many Faces Of Gender Inequality’ (2001) 18(22) FRONTLINE < https://www.sas.upenn.edu/~dludden/MANY%20FACES%20OF%20GENDER%20INEQUALITY.htm > accessed 23 March 2019.

²¹ Prabhat Jha, et al Trends in selective abortions of girls in India: analysis of nationally representative birth histories from 1990 to 2005 and census data from 1991 to 2011 < https://www.unfpa.org/sites/default/files/resource-pdf/UNFPA_Publication-39857.pdf > accessed 23 March 2019.

²² ibid

²³ Actionaid Disappearing daughters < https://www.actionaid.org.uk/sites/default/files/doc_lib/disappearing_daughters_0608.pdf > accessed 23 March 2019

²⁴ Eliminating discrimination and inequalities in access to water and sanitation < https://hrbaportal.org/wp-content/files/UN-Water_Policy_Brief_Anti-Discrimination.pdf > Accessed 3rd May, 2019

²⁵ ibid

²⁶ Amartya Sen ‘Many Faces Of Gender Inequality’ (2001) 18(22) FRONTLINE < https://www.sas.upenn.edu/~dludden/MANY%20FACES%20OF%20GENDER%20INEQUALITY.htm > accessed 23 March 2019.

²⁷ Karen L. Kinner. Women in the Third World: A Reference handbook: ABC-CLIO Inc. Santa Barbara, California. USA. 1997. P.6

²⁸ ibid

²⁹ Jerry A Jacobs, ‘Gender Inequality and Higher Education’ (1996) 22 Annual Review of Sociology 153.

³⁰ Equality Challenge Unit (ECU). Equality in higher education: statistical report 2015 Part 2: students, 2015 < http://www.ecu.ac.uk/wp-content/uploads/2015/11/Equality-in-HE-statistical-report-2015-part-2-students.pdf > 4 May, 2019

³¹ Julius Sigei ‘New Kenya takes shape as women win big in education’ (Daily Nation, Nairobi, 19th June, 2016) < https://mobile.nation.co.ke/news/Newsplex-Institute-of-Economic-Affairs-Education-Gender/1950946-2758350-format-xhtml-y7egw6z/index.html > 4 May, 2019

³² World Bank Gender differences in employment and why they matter < http://siteresources.worldbank.org/INTWDR2012/Resources/7778105-1299699968583/7786210-1315936222006/chapter-5.pdf > 4 May, 2019

³³ Australia and others, Supporting Carers in the Workplace: A Toolkit (Australian Human Rights Commission 2013).

³⁴ World Bank Gender at Work - A Companion to the World Development Report on Jobs < http://www.worldbank.org/content/dam/Worldbank/document/Gender/GenderAtWork_web.pdf > 4 May, 2019

³⁵ Constitutional Petition No. 160 of 2013

³⁶ ibid

³⁷ Petition No. 566 of 2012

³⁸ Petition No 446 & 456 of 2016

³⁹ Chant S (July 2006). "Re‐thinking the "Feminization of Poverty" in relation to aggregate gender indices". Journal of Human Development and Capabilities, special issue: Revisiting the Gender‐related Development Index (GDI) and Gender Empowerment Measure (GEM). Taylor and Francis. 7 (2): 201–220. doi:10.1080/14649880600768538

⁴⁰ Chen M, Vanek J, Lund F, Heintz J, Jhabvala R, Bonner C (2005). Progress of the World's Women 2005: Women, Work and Poverty (PDF). United Nations Development Fund for Women. pp. 36–57. ISBN 1-932827-26-9.

⁴¹ ibid

⁴² Stephanie Farrior ‘Human Rights Advocacy on Gender Issues: Challenges and Opportunities’ (2009)1 (1) Journal of Human Rights Practice < https://doi.org/10.1093/jhuman/hup002 > accessed on 30 October 2018.

⁴³ Brown v. Board of Education, 347 U.S. 483 (1954)

⁴⁴ Asbjørn Eide ‘Making Human Rights Universal: Achievements and Prospects’ Making Human Rights Universal < https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjLn93Wh7DeAhWEyIUKHV0bCsQQFjAAegQICRAC&url=https%3A%2F%2Fwww.uio.no%2Fstudier%2Femner%2Fjus%2Fjus%2FJUR5710%2Fh06%2Fasbjorneide.doc&usg=AOvVaw3OCNrW5q9ZwNRDAsmmqtGd> accessed on 30 October 2018.

⁴⁵ Johannes Morsink, ‘Women’s Rights in the Universal Declaration’ (1991) 13 Human Rights Quarterly 229.

⁴⁶ UN Women’s Human Rights, 2014 < https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwiJrLH-iLDeAhVGyxoKHV6ACm4QFjAAegQICRAC&url=https%3A%2F%2Fwww.ohchr.org%2FDocuments%2FEvents%2FWHRD%2FWomenRightsAreHR.pdf&usg=AOvVaw3rNer6OwAVgzPhh0ydnqHR > accessed on 30 October 2018.

⁴⁷ ibid

⁴⁸ The Constitution of Kenya, 2010

⁴⁹ Willy Mutunga The Vision of the 2010 Constitution of Kenya - Keynote Remarks on the occasion of celebrating 200 years of Norwegian Constitution, 2014

⁵⁰ IDEA Constitution Assessment for Women’s Equality, 2016

⁵¹ Ibid

⁵² The Constitution of Kenya, 2010, article 27

⁵³ ibid

⁵⁴ ibid

⁵⁵ Ibid Article 27(4)

⁵⁶ Ibid Article 27(6)

⁵⁷ Ibid Article 59 (1)

⁵⁸ Kenya National Commission on Human Rights Act No. 14 of 2011, section 8

⁵⁹ Constitution of Kenya, Article 60 (1)

⁶⁰ Constitution of Kenya, article 172 (1)(2)(b)

⁶¹ ibid

⁶² Article 81

⁶³ Article 27

⁶⁴ Article 97(1)b

⁶⁵ As per article 98 (1)(b) of the Constitution

⁶⁶ As per article 98(1) © and (d) of the Constitution

⁶⁷ Advisory Opinion No. 2 of 2012

⁶⁸ ibid

⁶⁹ UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) <http://www.refworld.org/docid/3ae6b3712c.html > accessed 31 October 2018

⁷⁰ ibid

⁷¹ ibid

⁷² UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979,United Nations, Treaty Series, vol. 1249, p. 13 < http://www.refworld.org/docid/3ae6b3970.html >accessed 31 October 2018

⁷³ ibid

⁷⁴ ibid

⁷⁵ Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981,CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) < http://www.refworld.org/docid/3ae6b3630.html >accessed 31 October 2018

⁷⁶ Id, article 2

⁷⁷ Id, article 18

⁷⁸ African Union Solemn Declaration On Gender Equality In Africa < https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjfsouOkrDeAhVFVhoKHfr4AF4QFjAAegQICRAC&url=https%3A%2F%2Fwww.mrfcj.org%2Fpdf%2FSolemn_Declaration_on_Gender_Equality_in_Africa.pdf&usg=AOvVaw2U-UOEzV31_9aUjNa3ho0Z> accessed 31 October 2018

⁷⁹ Janet Saltzman Chafetz, ‘Feminist Theory and Sociology: Underutilized Contributions for Mainstream Theory’ (1997) 23 Annual Review of Sociology 97.

⁸⁰ ibid

⁸¹ Karen M Hult, ‘Feminist Organization Theories and Government Organizations: The Promise of Diverse Structural Forms’ (1995) 19 Public Productivity & Management Review 128.

⁸² Judith A Baer, Feminist Theory and the Law (Oxford University Press 2008) <http://oxfordhandbooks.com/view/10.1093/oxfordhb/9780199208425.001.0001/oxfordhb-9780199208425-e-25> accessed 7 May 2019.

⁸³ ibid

⁸⁴ Katharine T. Bartlett ‘FEMINIST LEGAL METHODS’ (1990) 103 Harv. L. Rev. 829 <http://web.ntpu.edu.tw/~markliu/feminist.pdf > accessed 7 May 2019.

⁸⁵ ibid

⁸⁶ Gayle Binion, ‘Human Rights: A Feminist Perspective’ (1995) 17 Human Rights Quarterly 509.

⁸⁷ 440 U. S. 268 (1979)

⁸⁸ ibid

⁸⁹ Pp. 440 U. S. 278-283.

⁹⁰ 440 U. S. 268 (1979)

⁹¹ Stanton v. Stanton, 421 U. S. 7, 421 U. S. 14-15. Pp. 440 U. S. 279-280.

⁹² 440 U. S. 282-283

⁹³ Bartlett, K. T. 1990. Feminist legal methods. Harvard Law Review, 103: 829–88

⁹⁴ Lisa D Brush, ‘The Curious Courtship of Feminist Jurisprudence and Feminist State Theory: Smart on the Power of Law’ (1994) 19 Law & Social Inquiry 1059.

⁹⁵ Ann C Scales, ‘The Emergence of Feminist Jurisprudence: An Essay’ (1986) 95 The Yale Law Journal 1373.

⁹⁶ Article 27(6) & (7)

⁹⁷ Article 27(8)

⁹⁸ Petition No. 237 of 2014

⁹⁹ ibid

¹⁰⁰ Petition 164B of 2016

¹⁰¹ ibid

¹⁰² ibid

¹⁰³ ibid

¹⁰⁴ Kristen Intemann, ‘Feminist Objectivity’ in Angela Wong and others (eds), The Wiley Blackwell Encyclopedia of Gender and Sexuality Studies (John Wiley & Sons, Ltd 2016) <http://doi.wiley.com/10.1002/9781118663219.wbegss009> accessed 15 May 2019.

¹⁰⁵ Andrew Altman, ‘Legal Realism, Critical Legal Studies, and Dworkin’ (1986) 15 Philosophy & Public Affairs 205.

¹⁰⁶ ibid

¹⁰⁷ Nancy Ehrenreich The Reproductive Rights Reader: Law, Medicine, and the Construction of Motherhood NYU Press, 2008. Page 11.

¹⁰⁸ Black, Henry C, and Joseph R. Nolan. Black's Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence Ancient and Modern; [with Pronunciations]. St. Paul, Minn: West Publ, 1993.

¹⁰⁹ ibid

¹¹⁰ Ibid

¹¹¹ Aida Seif El Dawla, ‘Reproductive Rights of Egyptian Women: Issues for Debate’ (2000) 8 Reproductive Health Matters 45.

¹¹² Ronli Sifris Reproductive Freedom, Torture and International Human Rights: Challenging the Masculinization of Torture Routledge, 13 Dec 2013. Page 5.

¹¹³ ibid

¹¹⁴ United Nations Yearbook of the United Nations: 2000 Edition United Nations Publications, 2002 ; Joseph G. Schenker Ethical Dilemmas in Assisted Reproductive Technologies Walter de Gruyter, 29 Aug 2011.

¹¹⁵ WHO Defining sexual health Report of a technical consultation on sexual health 28–31 January 2002, Geneva 2006. Page 4. This definition was adopted by the WHO from the ICPD Programme of Action (4) which Reproductive health was defined as: “a state of complete physical, mental and social well- being and not merely the absence of disease or infirmity.

¹¹⁶ Ben Saul, David Kinley, Jaqueline Mowbray The International Covenant on Economic, Social and Cultural Rights: Cases, Materials, and Commentary OUP Oxford, 2014. Page, 1014.

¹¹⁷ ibid

¹¹⁸ ibid

¹¹⁹ Tomris Turmen, ‘Reproductive Rights: How to Move Forward?’ (2000) 4 Health and Human Rights 31.