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. 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. 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.
Table of Contents
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
2.3.1 The 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, 2010.
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, 2014
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
Objectives & Core Topics
The primary objective of this book is to provide a comprehensive analysis of the legal status and enforcement of women's rights in Kenya. It examines the fundamental philosophies and legislative frameworks that govern these rights, while specifically exploring the interaction between traditional practices, constitutional protections, and judicial interpretations regarding gender parity, reproductive rights, and property ownership.
- The conceptualization and implementation of gender parity and gender-related legislation.
- Feminist legal theory and its role in shaping jurisprudence in Kenya.
- The legal protection and enforcement of reproductive health and reproductive rights.
- The rights of women regarding matrimonial property ownership and division.
- The institutional practice and legal status of woman-to-woman marriages in Kenya.
Excerpt from the Book
1.3.3 Basic facility inequality
This inequality denotes disparity in access to basic facilities available to women. This inequality is prominent where opportunities of basic facilities like schooling are less availed to girls than boys. Amartya Sen mentions the Afghanistan Government as a government that is keen on actively excluding girls from schooling and education. 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. Similarly, cultural adherences and patterns limit equal opportunities for girls and women. 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.
Summary of Chapters
CHAPTER ONE: GENDER PARITY: Explores the definition of gender parity as a numerical concept and categorizes seven distinct types of gender inequality as proposed by Amartya Sen.
CHAPTER TWO: GENDER LEGISLATION: Analyzes the dual role of gender legislation as both an equality and equity concept and examines the Kenyan constitutional framework for addressing gender discrimination.
CHAPTER THREE: THE FEMINIST LEGAL THEORY AND JURISPRUDENCE: Introduces feminist legal theory as a framework for challenging male-dominated legal structures and queries the nature and motive of gender inequality in Kenya.
CHAPTER FOUR: INTRODUCTION TO THE LEGAL PROTECTION OF REPRODUCTIVE RIGHTS IN KENYA: Provides an overview of reproductive health tenets, the medical and legal complexities of reproductive rights, and the impact of medical negligence.
CHAPTER FIVE: THE NATIONAL AND INTERNATIONAL FRAMEWORKS FOR THE PROTECTION OF REPRODUCTIVE RIGHTS: Evaluates the national and international legal instruments that provide the basis for reproductive rights, including the Constitution of Kenya and international conventions.
CHAPTER SIX: PROTECTION OF REPRODUCTIVE RIGHTS BY THE JUDICIARY IN KENYA: Examines judicial intervention in Kenya regarding reproductive rights, including healthcare, contraception, and legal outcomes for reproductive rights cases.
CHAPTER SEVEN: THE NOTIONS OF GENDER, SEXUALITY AND DISCRIMINATION AND THEIR IMPACT ON REPRODUCTIVE RIGHTS: Discusses the sociological concepts of gender and sexuality and their intersection with discrimination and human rights law.
CHAPTER EIGHT: COMPARATIVE JURISPRUDENCE - ENFORCEMENT OF REPRODUCTIVE RIGHTS: Offers a comparative legal study of how other jurisdictions, particularly in Southern Africa, approach the enforcement of reproductive rights and medical liability.
CHAPTER NINE: INTERNATIONAL MECHANISMS AND CHALLENGES FOR THE IMPLEMENTATION OF REPRODUCTIVE RIGHTS: Discusses the international reporting mechanisms and the challenges inherent in implementing reproductive rights at the state level.
CHAPTER TEN: WOMEN’S RIGHTS TO OWNERSHIP OF PROPERTY IN KENYA: Details the legal landscape of property ownership and matrimonial property division in Kenya, emphasizing the evolving jurisprudence on spousal contribution.
CHAPTER ELEVEN: RIGHTS OF WOMEN LIVING IN WOMAN TO WOMAN MARRIAGES IN KENYA: Investigates the historical, cultural, and legal dimensions of woman-to-woman marriages in Kenya, contrasting them with modern perceptions and addressing their recognition in law.
Keywords
Gender Parity, Gender Equality, Women's Rights, Kenya, Constitutional Law, Feminist Jurisprudence, Reproductive Rights, Matrimonial Property, Customary Law, Woman-to-Woman Marriage, Gender Inequality, Human Rights, Judiciary, Medical Negligence, Discrimination.
Frequently Asked Questions
What is the overarching goal of this publication?
The work aims to foster a deep understanding of the rights of women in Kenya, focusing on the intersection of legislative frameworks, judicial enforcement, and the philosophical underpinnings of gender equality and feminist theory.
What core topics does the book explore?
The central thematic fields include gender parity, the role of legislation in achieving equity, the application of feminist legal theory, the protection of reproductive rights, women's property rights, and the customary institution of woman-to-woman marriages.
What is the primary research question?
The book queries how Kenyan jurisprudence and legislative practice reconcile historical power asymmetries with modern human rights standards, specifically testing whether relative numerical and proportional equality for women exists across different spheres of life.
Which scientific methods are employed?
The author utilizes legal research methods, including an analysis of case law, constitutional provisions, statutes, and regional/international human rights instruments to provide a comparative and descriptive assessment of women's rights.
What does the main body address?
The main body systematically evaluates Kenya’s legal developments regarding property ownership, the judicial enforcement of reproductive rights, the critique of traditional legal doctrines through feminist theory, and the legal status of customary woman-to-woman unions.
Which keywords best describe the work?
Key terms include Gender Parity, Feminist Jurisprudence, Reproductive Rights, Matrimonial Property, and Woman-to-Woman Marriage.
How does the book treat the concept of woman-to-woman marriage?
The book treats it as a distinct customary institution centered on social and economic utility—specifically the management of family property and childbearing rights—and analyzes its legal recognition amidst a constitutional framework that otherwise emphasizes heterosexual monogamy.
How does the author characterize the role of the Kenyan judiciary?
The author depicts the judiciary as a "soldier" in the struggle for equality, noting that courts have been increasingly vigilant in advancing constitutional tenets of non-discrimination, although the path remains a work in progress.
- Arbeit zitieren
- Felix Okiri (Autor:in), 2019, Women's rights in Kenyan jurisprudence, München, GRIN Verlag, https://www.grin.com/document/489395
