THE CATHOLIC UNIVERSITY OF EASTERN AFRICA.

UNIT: GENDER AND THE LAW.

UNIT CODE: CLS 317

PRESENTED TO: MS NJIRIRI

PRESENTERS:

MERCY KAIMA 1018881

MAUREEN KINGE 1018899

MIRIAM MAINA 1018900

BRENDA OPANGA 1019055

RACHAEL MATILYA 1018946

ROSE MATUNDA 1020307

MORGAN JOHN 1018965

 1. State the differences between equity and equality.
Gender equity

It refers to the process of being fair to women and men. The goal of gender equity looks beyond
equality of opportunity as it requires transformative change. Gender equity recognizes that
different measures might be needed for women and men. They reflect different needs and
priorities or where their existing situation means that some groups of women or men need special
or additional supportive measures to ensure that all are on a level playing field. It may require
specific actions to enable equality of opportunity between women and women or men and men,
women and men. For example equity implies taking a fresh look at existing personnel and
employment policies or work schedule in order to take account of womens reproductive tasks,
so that their work at home is not a barrier to their work at home is not a barrier to their
engagement in the public sphere.

Gender equality

Equality exists when both men and women are attributed equal social value, equal rights and
equal responsibilities, and have equal access to the means (resources, opportunities) to exercise
them.

It means ensuring that similar opportunities are available to both women and men. It means that
men and women have equal conditions for realizing their full human rights and potential, to
engage in and contribute to political, social, economic and cultural development and to benefit
from the outcome. In this sense, gender equality means that society places the same value on
both the similarities and differences between women and men and the different functions on
each. For this to effective, specific actions or positive discrimination may be required.

UNFPA states gender equality requires equal enjoyment by women and men of socially-valued
goods, resources and rewards.

CIDA says that equality between women and men or gender equality promoting the equal
participation of women and men in making decisions; supporting women and girls so that they
can fully exercise their rights; and reducing the gap between womens and mens access to and
control of resources and the benefits of development- is still out of reach for most women.

AusAID states that gender equality is the equal valuing of the roles of women and men. It
works to overcome the barriers of stereotypes and prejudices so that both sexes are able to
equally contribute to and benefit from economic, social, cultural and political developments
within society. When women and men have relative equality, economies grow faster and there is
less corruptionMen and women are physically different but it is the social, economic, political
and legal interpretation of these differences that lead to inequality between them.
In marriage, The 2008 Marriage Act provides a minimum age of marriage of 18 for women and
men, and the Childrens Act of 2001 expressly forbids early or forced marriage. However, many
marriages are not officially registered, but are instead performed under customary or Islamic law,
where there is no age limit. Note that the new constitution recognizes customary laws as only as
long as they are consistent with the Constitution of Kenya which means that discriminatory
practices previously common in customary laws are outlawed. The constitution also provides for
equality at marriage, during marriage and at its dissolution. If the proposed Marriage Bill is
passed, it would consolidate existing legislation relating to marriage, making it much easier for
married women to understand their rights. It will also allow for the registration of marriages
performed under customary law. In relation to Resources and Entitlements, the

Constitution guarantees equality of ownership rights for all Kenyan citizens. Women are free to
buy, own and sell assets as they choose.

2. Equality and discrimination.

Equality is the equal enjoyment of rights, status and advantages of both men and women.
Discrimination on the other hand is the unequal or unfair treatment of men and women, boys and
girls. It can be differentiated on two common grounds that is one that is unlawful from that
which amounts to reasonable or equal but different treatment. It can further be broken down to
direct discrimination where one person is treated less favorably than another or has been or
would be treated in a comparable situation on any of the grounds of racial or ethnic origin, sex,
religion, disability and age while indirect discrimination is where an apparently neutral
provision, criterion or practice would put persons of a racial or ethnic origin having a particular
religion or belief, a particular disability, age or sexual orientation at a particular disadvantage
compared with other persons. To show that discrimination has occurred on one of these grounds
then we must show that there has been a harm caused (someone has been treated less favourably
or put by an apparent neutral provision, criterion or practice at a particular disadvantage). A
person also discriminates against another if in any circumstances he applies to that other a
provision, criterion or practice which he applies or would apply equally to persons not of the
same race or ethnic or national origins as that other but

i. Which puts or would put persons of the same race or ethnic or national origins as
that other at a particular disadvantage when compared with other persons,
ii. Which puts that other at that disadvantage, and
iii. Which he cannot show to be a proportionate means of achieving a legitimate aim.

Article 27 of the new constitution provides for equality-Every person is equal before the law and
has the right to equal protection and equal benefit of the law.
3. Equality and Non- discrimination.
 As stated earlier, equality between men and women entails the concept that all human beings,
both men and women, are free to develop their personal abilities and make choices without the
limitations set by stereotypes, rigid gender roles and prejudices. Gender equality means that the
different behavior, aspirations and needs of women and men are considered, valued and favoured
equally. It does not mean that women and men have to become the same, but that their rights,
responsibilities and opportunities will not depend on whether they are born male or female. Non
discrimination on the other hand is the opposite of discrimination which entails the practice of
treating someone or a particular group of people in society fairly with regards to race, sex or age
among other grounds. Non-discrimination is almost similar to equality except that it incorporates
the practice of treating all people in the society in an equal and just manner with regards to the
common six basic grounds among others which include: racial or ethnic origin, sex, religion,
disability, age and sexual orientation.

PROCEDURAL AND SUBSTANTIVE EQUALITY

DEFINITION

Procedural Equality: means the manner in which the substantive equality, has been implemented
and put to practice. This is to mean then, that we see people being treated in an equal manner not
in precise getting an equal share in everything but everyone at least benefits in a certain way
from what the human race has been provided with.

Substantive Equality: means what has been written down in different statutes or other forms of
writings that advocates for equality.

SUBSTANTIVE EQUALITY.

Here we analyze different writings. To begin with is :-

The Sexual Offences Act 2006

It is an Act of parliament that makes provisions about the sexual offences. It gives their
definitions, preventions and the protection of all persons from harm and from unlawful sexual
acts and for connected purposes. It shows equality since it acts for protection of both sexes and
punishes acts if one is found guilty. An example is in Section 20 and 21, on incest by male or
female.

It also acts best in the interest of both children and adults. Example; Section 8(3) A person who
commits an offence of defilement with a child between the age of twelve to fifteen years is liable
upon conviction to imprisonment for a term of not less than twenty years.

Section 11(1) on indecent act with child, Section 11A on indecent act with adult 7 of 2007, a
person who commits an indecent act with an adult is guilty of an offence and liable to
imprisonment for a term not exceeding five years or affine or both.
THE CONSTITUTION

The constitution is a basic source and it sheds light on equality differently within its content. To
begin with is:-

a) The Bill of Rights

Section 19(1), it is an integral part of Kenyas democratic state and is the framework of social,
economic and cultural practices.

(2), the purpose of recognizing and protecting human rights and fundamental freedom is
to preserve the dignity of individual and communities to promote social justice and the
realization of potential of all human beings.

(3)(a) Belong to each individual and are not granted by the state.

Section 20(2) every person shall enjoy the rights and fundamental freedoms in the bill of rights
to the greatest extent consistent with the nature of the rights of fundamental freedom.

Section 21(1) it is a fundamental duty of the state and every state organ to observe, respect,
protect, promote and fulfil the rights and fundamental freedoms in the bill of rights.

It is evident from this chapter that equality is key and the roots of these rights are spread out and
reach all sexes and in the interest of all individuals and are to be recognized without limits except
in stipulated circumstances except by law, and should be reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom Section 24 (1).

b) Leadership and Integrity Chapter 6 and Representation of the people.

These also show another aspect of equality.

Section 81(b) not more than two-thirds of the members of elective public bodies shall be of the
same gender.

(c) Fair representation of persons with disabilities.

(d) Universal suffrage based on the application for fair representation and equality of
vote.

There are equal chances of every individual to seek a leadership post on meeting the
requirements.

c) Kenya National Human Rights and Equality Commission (Section 59, of the
constitution.)
Its function is to promote gender equality and equity generally and to coordinate and facilitate
gender mainstreaming national development.

d) Land and Environment Chapter 5

Section 60(1) Land in Kenya shall be held, used and managed in a manner that is equitable,
efficient, productive and suitable

PROCEDURAL EQUALITY

We have seen cases being brought to court by different groups in the interest of a specific group
example women or the public at large.

FIDA -K

FIDA-K in the case of Federation of Women Lawyers Kenya (FIDA-K ) & 5 others vs AG
and another (2011) EKLR. (The case of alleged contravention of Fundamental Rights and
Freedoms under Articles 2(4), 3, 10, 27, 163, 166 And 259 of the constitution.)

In these case we see different groups of the people implementing or standing up for the rights of
the people (i.e.)

Federation of Women Lawyers Kenya (FIDA-K)

Centre for Rights Education And Awareness (CREAW)
The League of Kenya Women Voters.
Women in Law And Development in Africa (WILDAF)
CAUCUS for Women Leadership.
Coalition of Violence Against Women (COVAW)

THE MAENDELEO YA WANAUME ORGANIZATION.

This is a group in the interest of Men and they have made an association to protect the rights of
men. It has evidently been seen working in Central Kenya where there have been many issues of
women battering men in Nyeri.

It is not specifically that the genders get equal shares but that both be considered example
Women Represent in parliament, Supreme Court and in other subordinate court. [Section 17(1)
(d) One High Court judge and one magistrate, one a woman and one a man Section 17(1) (f)(h)]

CUT-OFF POINTS FOR JOINING UNIVERSITY

In the recent years we have seen consideration of girl children in joining university whereby they
are given lesser joining points as compared to the boy- child. They are not equal per se, but they
are both considered according to their capabilities which is measured by the administration of
education in Kenya who give the cut-off points.(65 vs 67)

AFFIRMATIVE ACTION

It is frequently defined as positive discrimination and seeks to empower those that are
disadvantaged by historical factors.

Affirmative action can also be defined as a deliberate policy or programme that is a deliberate
policy or programme that seeks to remedy past discrimination by increasing the chances of the
affected to participate in what they were previously denied.

An example of affirmative action is when a company provides in its articles of association that in
its board of directors, there must be two seats for disabled persons. In this case, it is mandatory
that when the board of governors is being chosen, two disabled persons must be chosen.

The object of affirmative action otherwise known as positive discrimination is to enhance the
participation of marginalized groups in decision-making and implementation and make a
difference in the political climate and culture.

In Kenya, affirmative action has been provided for in the constitution. ; The new constitution
recognizes women and ethnic minorities as special groups deserving of constitutional protection.
There are two approaches to this;

1) Making affirmative action a key principle of governance

2) Making specific provisions for affirmative action

The system of devolved governments has promoted affirmative action. For example, in the
composition of organs of devolved governments, certain posts have been created for
marginalized groups and women. The reason for reserving the posts for women is to promote
gender equity.

1) County government

Article 175(c) Gender equity

(c) No more than two-thirds of the members of representative bodies in each county government
shall be of the same gender.

2) County assembly

Article 177(1) (b) gender equity

(b) The number of special seat members necessary to ensure that no more than two-thirds of the
membership of the assembly is of the same gender;

Article 177(1) (c) marginalized group

(c) The number of members of marginalized groups, including persons with disabilities and the
youth, prescribed by an Act of Parliament
REFERENCES:

Equal Justice under Law. Jurisprudence themes and concepts by

S Veitch, Emilies Christodoudlids and Lindsay Farmer.

Strickland, R. (2004), To Have and To Hold: Womens Property and Inheritance Rights in the
Context of HIV/AIDS in Sub-Saharan Africa.

Ellis, A., J. Cutura, N. Dione, I. Gillson, C. Manuel and J. Thongori (2007), Gender and
Economic Growth in Kenya: Unleashing the Power of Women.

Article 19, The Marriage Act revised edition 2008.