Judiciary, Executive are failing the people on women's rights

The 2010 Constitution is one of the most progressive national charters in the world. It gives citizens, individuals and communities a wide range of rights protections, while putting handcuffs on many a State official and agency to prevent overreach and abuse. Surely, the document has several glaring flaws and other deficits that must be corrected down the road. But what it offers in its current form is fertile ground for the liberation of human potential.

However, good texts – especially laws and constitutions – don’t interpret and implement themselves. The people, or the legislature, pass laws. Crucially, the Judiciary interprets laws and the Executive implements them. In Kenya, both the Judiciary and the Executive are failing the people on women’s rights.

This is especially true on the gender composition of public and elective offices. On elective offices, Article 81(b) provides – without equivocation – that “not more than two thirds of the members of elective public bodies shall be of the same gender.”

This provision leaves nothing to the imagination. It gives the State no wiggle room to manoeuvre around the provision. The language used by the Constitution is a fiat. The word “shall” is an edict that requires no rocket scientist or highfalutin jurist to decipher. It’s plain-spoken English that commands the State to carry out an order. Nor do the courts have any leeway in interpreting the meaning of the provision. The Constitution slaps the proverbial handcuffs on everyone on the issue.

That’s why the Supreme Court’s Advisory Opinion No. 2 of 2012 was flat out wrong – and unfortunate. To be fair, Dr Willy Mutunga, then Chief Justice, called out his colleagues for caving in to the patriarchy and retrogressive State thinking in the ruling. While the majority held that Article 81(b) was subject to the so-called “progressive realisation,” CJ Mutunga, as he then was, opined in his dissent that the provision was mandatory and called for “immediate” implementation.

The lone female judge on that bench, Justice Njoki Ndungu, succumbed to the majority in denying women their right to equitable representation. There is only one way to read the ruling – as a victory for misogyny and patriarchy. The Supreme Court simply did not measure up to the lofty duty required of it by the Constitution.

Since that landmark ruling, lower courts have contorted and twisted like pretzels to avoid calling a spade by its name. While one has held that the Legislature as currently constituted by gender is unconstitutional, it has stopped short of disbanding it.

This is what I call legal cowardice on the part of the courts. On a matter as vital and as critical as transforming gender relations in a deeply patriarchal society, only shock treatment – as dictated by the Constitution – can work. Sidestepping the issue, or hiding under the cover of discredited legal reasoning, is a subversion of the Constitution by the courts. To rub salt in the wound, the Executive pays lip service to the rule, but blatantly violates it in practice.

I have asked myself why the Kenyan Judiciary – the guardian of the Constitution – is complicit, even the leader, in denying women their rights. Why is the thinking of the courts – which are supposed to be sober – in cahoots with the Legislature and the Executive? I have come to the inevitable but sad conclusion that a deeply ingrained disregard of the female gender is at work.

The broader male culture in Kenya believes that female lives don’t really matter. And that if they do, it’s only as corollary to male lives. Kenyans aren’t unique in thinking that women are second-class citizens. Gender discrimination and misogyny are a global phenomena, but some societies have made more progress than others.

Let’s reverse genders for a minute. Suppose it’s men – not women – who are woefully underrepresented in elective and appointive offices. What do you imagine men would be saying? I bet every dollar I have that men would not stand for such exclusion and invisibility. Let’s now imagine that in a society that was evenly divided between whites and blacks that the former occupied most elective and appointive offices to the exclusion of the latter.

We would call such a system apartheid, or racist. Red lights would be flashing everywhere. Why don’t red lights flash when it’s gender and not race that’s subjugated? How can we look our mothers, wives, and daughters in the eye and justify such exclusion?

I end where I started. Great documents don’t interpret and implement themselves. In a democratic system, the courts stand between the tyranny of the state and the people.

The Kenyan Judiciary shouldn’t enable the Executive – through misogynistic interpretations of the law – to deny half our population their constitutional rights. The courts need to stand up for women’s rights – now. Not into some misty distant future.

- Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua