WOMEN IN THE LEGAL PROCESS
Women and men have different
sexual characteristics
Tertiary characteristics
Different rules that the
sexes play
Men as provider,
Women as nurturers
Gender is an aspect of a
tertiary difference – society defines men and women “ when someone tells you to stop crying and
be a man, it is gender that is saying be masculine.
In this course we are looking
at gender, whether feminine or masculine.
Gemeinschaft – roughly means a community community would mean an
association in which the individuals do not consider themselves greater than
that association and it is regulated by common mores. Women are more suited to this.
Geselschaft – roughly translates to society. Society would mean a society where the
individual does not feel that the society is bigger than himself. Men are more suited to the Geselschaft.
WHO IS A FEMINIST
At
the very least a feminist is a person who believes that women suffer
discrimination because they are women and who believe that because of that discrimination
they have a lot of their rights negated and they would like to see the
situation of women changed and it is in this change that one may have radical
moves.
To
understand feminism one has to look at the way in which society is organised –
it is organized in such a way that you have two basic genders, the male and the
female and the feminist is saying that the female suffers discrimination due to
gender. The people of the female gender
have specific needs which are distinguishable from needs of the other gender
which remain negated, the feminist feels that to fulfil these needs a change is
necessary, social economic and political.
The
history of the feminist movement is traceable to the period after the 2nd
World war. the writers under The liberal
feminist movement, theory would be questioning the exclusion of women from the
main stream, they will be arguing for arguing rights, participation of women in
political realm etc. the women under the
monarchical rule were saying that they wanted to be free.
When
we talk about a feminist movement, we are not talking about a united movement
but different groups of feminists see things different,
The liberal feminists
They
see their oppression as being denied individual choices and will seek to remove
the handicaps that are there to women access i.e. education, civil and
political rights because their expression of women oppression is their lack of
those choices.
The radical feminist theory:
This
focuses on the different way in which men control women sexuality and
reproductive capacities to suit their needs.
It also sees the men as the enemy and would actually want a man free
world.
The Marxist Feminists
They
link women’s oppression to capitalist exploitation of labour and these ones
spend a lot of time analysing the way in which women’s labour is used within a
capitalist context in an unfair way.
The Socialist Feminists
These
are feminists that bring the liberal nuances and the Marxist nuances together
looking at capitalism and Patriarchy (rule of the fathers)
Looking
at the liberal feminist movement, you have writers calling for instance for
education for women. To educate women
one needs to equip them with the necessary skills. They were looking at the constraint that
prevent women participation and they were looking at removing these
constraints, the constraints were the ones put on women by men like preventing
men from voting and essentially then in the removal of the stage constraint,
you have women claiming the same civil rights like men, the such for
egalitarian society and they also go on to say that one has to look at what
would the needs of the women be? How do
you ensure that they enjoy the rights for which your provide for them?
There
is a criticism levelled against liberal feminism and the criticism is that the
liberal feminists wanted the women to have what the men had and in this
they seemed to miss the point by
equating the male rights with human rights.
The whole question of mimicking men arises from this criticism whereby
they mimic men, couldn’t a person be emancipated and empowered without being
aggressive? Does a feminist have to
mimic the aggression of men?
Writers
are being concerned with the socialisation process because you may provide that
women have equal rights but do women actually feel that they have equal rights
with men? What can one do for a woman
who feels that she does not deserve to enjoy the same rights as men do? We need to look at what happens at the
upbringing of women, make them internalise and begin to own the rights that you
are now providing for them. The liberal
feminists felt that women need to acquire the strength of body and mind to move
away the delicacy of sentiment. There is
the belief that femininity brings with it certain characteristics.
With
regard to the Marxist feminists, they are looking at the work that women do and
looking at the way in which women supplement capitalism. The theory of Marxism looks at how
capitalists have taken the labourers labour and enriched themselves and these
feminists are saying that women are even more exploited by capitalists since
they support the men who are oppressed by capitalism by giving their labour
free supplementing capitalism exploitation of labour which is referred to as
surplus labour. By giving birth to
labourers of tomorrow they are also seen to be reproducing labour for the
capitalists. What about the women who
just stays at home and the husband has no capitalist job either? How do we explain their relationship to the
man who does not sell labour to the capitalist in this theory? It does not explain why even in this
situation there is still a problem. This
whole theory about women being a reserve labour force does not hold for all
women and this is a major criticism for Marxism Feminism.
Radical
Feminism – this is the feminism that
identifies men as oppressors and radical feminists react in a hostile way to
liberal feminists. They want nothing of
men and demand a radical transformation of the oppressive gender relations and
challenge conventional assumptions regarding women’s role in society. They find sexual relations of men and women
as exploitative.
Intercourse by Andrea Dworkin and Catherine Mackinon
These
radical feminists believe men exploit women sexuality and are opposed to depiction
of women in particular styles in the Media where you have women put out as Miss
Universe etc and they see this as sexualisation of oppression. How come they don’t use men sexuality to
sell? Why not use male model to sell
cars instead of women.
Radical
feminists would want male supremacy
to be dealt with, they favour separatism and do not want men and women to work
together and do not think there is any coalition between men and women fighting
for liberation. They also challenges
men’s control and monopoly over the production of use of knowledge and would
like women to have control of their sexuality, this is the group that will
support Lesbianism,
The
Socialist Feminist who combines
liberal and Marxism, they single out capitalism and patriarchy as the cause of
oppression and they see the oppression as an amalgamation of patriarchy and
capitalism and they see the dealing with each as necessary. Essentially they see it as critical that one
deals with capitalism as a phenomenon and patriarchy as a phenomenon. They are looking at both as leading to the
control of women’s production and women’s reproduction. It is this group that has sought to bring
together the different brands of feminism seeing the diffuse nature of the
movement as affecting its effectiveness, they feel that all the resources are
not being marshalled to bring optimal outcomes for women.
Feminist jurisprudence school
This
is an offshoot of the critical legal studies movement, it looks at ways in
which certain..
Feminists
jurists are united by their belief that society and the legal order is
patriarchal i.e. they are organized along the line of the rule of fathers. They seek to analyse the contribution of law
in the construction, maintenance reinforcement and perpertuation of the rule of
the fathers. Feminists jurists want to
eliminate this bias in law.
Feminists
theories are inquiring into law
Does
law have a staturing or is it gender free?
Feminists
jurists inquire into the politics of law, they are looking at not just the
normative law but they look at procedure i.e. does law have a gender
orientation, what is being done is consciousness raising. They are looking at law from women’s
experience of that law with a goal to have change in the law. the question is whether if one changes law
one will have achieved the positive benefits that feminists jurists look at.
Is
the person conceived of in law a reality or a myth. Feminists theories are exposing the way in
which the law espouses male value, it has a specific masculinity that it is
pushing out their and it is that of the successful middle class male and not
working class men who exhibits middle class masculinity.
If
not all men are men of law, then women are even less men of law. the man of law is the man that the law has in
mind when it is promulgated.
In
this country we have no man of law because the pigmentation can hinder him, a
man of law is a white middle class male.
The
women whose positions are closest to those of men enjoy substantively the
advantages of the law.
The
sort of person is put out by legal theories is the legal person when they are
developing notions of citizenship, civic-hood – they are talking about a man
acting on behalf of his family.
Hobbes
and Locke talk about us all being equal and explicitly include women in this
view, Hobbes goes on to maintain that men are the founders of the nation and so
they should assume a position of dominance.
This is not justified in any way and is made as a statement soon after
the statement that we all equal and soon thereafter the family becomes a
patriarchal family. There is then a
contradiction because how can we be all equal yet the man is seen as the person
who calls the shot. Locke explains this
as having a foundation in nature i.e. subordination of a wife by a husband and
when the two are in conflict the man should decide because he is the abler and
stronger and this is attributed to nature.
From this background we have legal norms coming out.
The
feminist jurists are coming and are looking within the marriage institutions on
how women have subordinate status, in this country in the area of personal law
there is a lot of inequalities. It is no
longer in vogue to have laws that discriminate against women. But at the end of the day there is still the
gendered reading of law.
Essentially
the feminists jurists are observing that the social contract seeks to secure
the equal rights and freedoms of all.
There is a gender neutral law being applied in an de-gendered context.
Pateman talks about the law that talks about rights of all but implicitly
allocates a subordinate status to women which is achieved through a hidden
contract that she refers to as the sexual contract, a contract not of freedom
but of subordination which is really the marriage contract through which man
gains legal access to a woman who will bear him children
Classical
theorists will say that this male dominance is part of the natural condition,
marriage or the orderly exchange of women gives equal access to all men and all
men who get into the sexual contract will dominate the partners in marriage and
a man will exercise sexual rights in a marriage, i.e. conjugal rights.
They
go on to say that the sexual contract makes women the sexual properties of
their husbands because men have conjugal rights which are considered natural
and necessary. The woman’s story seems
to be that of an enabler of man. They
are supposed to enable the legal subject to go in the public and say they have
children, men are unencumbered by children since they don’t have to look after
children nor do they have to go through the inconvenience of birth. The reproductive domain of the women is seen
as non-work. Her public and private
match which then means that the removal of her work from consideration of her
work is really devaluing the totality of what it is that she does. The law is seen as nurturing the human side
of man. For the man to be able to evince
the masculinity or the values that make them men of law they need a woman. The public steals from the private in the
sense that the articulation of the actors in the public must have the input of
the private but since the private is discounted, one does not look at the
person that nurtures the human side and the role that they play in nurturing
that side.
This
conception of the man of law is not something mythical, one can also see it
even in times of Hobbesian Law. The law
of their days also reflects subjugation and the persons of women were not
regarded as persons in law and they still do not enjoy complete civil standing
as men do.
The
countenancing of inequality by law
William
Blackstone talks about the legal position of the wife saying that by marriage
the husband and wife are one person i.e. the very being or the legal existence of the woman is suspended
during the marriage, or at least, it is
suspended or incorporated with that of her husband who is supposed to give her
cover, protection and is also supposed to be the person that exercises
influence over her. This is the doctrine
of coverture i.e. a woman is under the wing, cover and protection or influence
of the man and exercise most of her rights through the man.
The
role of the woman is supposed to be invisible and this invisibility goes to the
concept of a woman has to convince her husband to have both their names in the
property because of the invisibility or cover that has been given to her and
the consequences of this are that women cannot possess property, cannot seek
consent redress for legal recourse without the concurrence of their husbands
and the men are entitled to the full income of their wives.
Patriarchy
and accumulation on a world scale -
Maria
Law
is not value free, it has a countenance.
THE
LEGAL ASPECTS OF DISCRIMINATION:
Gender
as a concept:
Gender
has two connotations, the biological differences between men an d women and the
social construction of what it is to be a man and what it is to be a
woman. Law comes in to validate the
construction of maleness and femaleness, that being the man you have the right
to make most decision and a woman only gets the right if a man is not
there. Gender is a power relationship
where one is looking at masculine identity (powerful) and feminine identity
(need of care and protection). The
generalisations that we have are to be critiqued because people have different
stories about being male and being female.
Looking
at the legal aspect of discrimination law is concerned to have equality. So even if we are going to have any
inequalities or injustices, they have to be explained away as people will
quarrel with it. Law has much less room
these days to be blatantly against women and what we see is implicit bias
against women, or a law couched in gender neutral terms.
What
is discrimination:
Unequal
treatment it is not always negative and when you have a positive aspect for one
person it affects other people as in for example if you say that women will
have maternity leave, it will be seen as discrimination since men might want
time off too but are not entitled.
Our
constitution at Section 82 defines discrimination as affording different
treatment to different persons for different reasons.
82(4) Saves customary law in respect of
personal law matter. -- Which means that discrimination would continue since
most customary laws discriminate against women.
Under
the convention on the elimination of all forms of discrimination against women
there is a definition – any distinction, exclusion or restriction made on the
basis of sex but it does not stop there and goes on to say that the restriction
has the impact of impairing or nullifying the recognition, enjoyment or
exercise by women of their rights and its women irrespective of their marital
status. It is suppose to be on the basis
of men and women and human rights and fundamental freedoms. It is not in one domain it is in social,
political and all fields. this locates
the definition within the experiences of women.
Positive and Negative Discrimination
Where
negative discrimination is one that impacts negatively on the person against
whom it is directed whereas positive within the context of enabling a person
that would have been previously under a disability to participate in a realm
where they would not have participated before.
Positive discrimination is actually what is known as affirmative action
and it is geared towards collecting, existing negative discrimination e.g.
where you have provisions for a quota for jobs for persons who are not
ordinarily within a particular employment or a quota for children from
semi-arid areas for high school placing.
Affirmative action is also based in law and Justice is what many legal
systems are concerned about but even as law is concerned it becomes clear that
equality provision may not lead to equality of outcome for differently situated
subjects of law. the law has made
provisions for differential treatment of legal subjects to achieve desirable
societal goals. For instance the need to
have different view points or need to have people from dry areas go to national
schools.
The
basis of affirmative action in CEDAW
(convention on the elimination of all forms of discrimination against
women )is article 4 talks about putting
in place temporary special measures to ensure that women or to accelerate
defacto equality between men and women. It
says that this should not be considered discrimination but it goes on to say
that those differentiated standards should not be maintained for longer than
necessary. Once the objectives for which
they have been put into place are realised, they are to be abandoned. This differentiated differential treatment
isn’t just with regard to women, it is justified on account of historical
injustices for instance in the cases of formally colonised countries. It is also put in place with regard to race
where you have the one race having benefited a lot i.e. apartheid in South Africa.
Differential
treatment seeks to adapt the legal system to social realities, it is the use of
legal mechanisms to adapt legal systems to economic and social realities. Differential treatment recognizes the need to
allocate sufficient minimum aggregate to all and allowing those formally
subjugated to compete on a level playing field.
WHAT IS THE ROLE OF LAW IN DISCRIMINATION
Law
can be a facilitator of discrimination as well as a vehicle to eliminating
discrimination, i.e. it is a double edged sword. It can validate certain positions that lead
to marginalisation of certain groups but it can also compel or provide for
redressing of this marginalisation and it is within that context that we look
at law.
Whether
Law is where its at
Does
Law and its institutions lead to subjugation of women?
Can
law liberate women?
INTERNATIONAL LEGAL INSTRUMENTS
Legal rights comprise a
cluster of claims powers immunities privileges and disabilities.
Human Rights – duty owed to
human beings by the State the duty to recognise the right, respect the right,
protect the right and promote those rights.
First generation rights are
the civil and fundamental rights i.e. the right to life, right to vote, freedom
of speech etc
Second generation rights are
the other rights like the rights to shelter, the right to work, the right to
food
The Western States considered
first generation rights as what you must have and 2nd generation
rights as what you ought to have.
Rights
are given to individuals they are individual human rights in order to help
individuals to become self actualised.
It doesn’t matter who gangs up, they cannot take away your rights, rights protect us from tyranny of societies,
clan, tribe, they are meant to protect one from all those entities who might
want to interfere with those rights. The
fact that a person has a right imposes a duty on another to refrain from
interfering with that right. It also
entails duties on the State to ensure the enjoyment of those rights by
citizenry. Human rights and fundamental
freedoms are the birthright of all human beings.
Basic
International Instruments explicitly provide that the rights contained in them
are to be enjoyed by all human beings.
The preamble to the United Nations Charter begins by saying “We the peoples of the United Nations
determined to reaffirm faith in fundamental human rights in the dignity and
worth of the human person, in the equal rights of men and women have agreed
…”
The
Universal Declaration of Human Rights, this declaration in Article 2 says that
everyone is entitled to all the rights and freedoms set forth in the
declaration without distinction of any kind such as sex and following that came
the International Covenant on Civil and Political Rights which provides for the
equal rights of men and women to the enjoyment of all civil and political
rights. These rights include freedom
from cruel inhuman or degrading treatment or punishment in Article 7 and
freedom from arbitrary arrest or detention in Article 9, Freedom from unlawful
interference with privacy, family, home or correspondence. In Article 17 the
right to take part in the conduct of public affairs directly or through freely
chosen representatives and in Article 26 the right to have access on general
terms of equality to public service.
The
International Covenant on Economic Social and Cultural Rights provides for
equal enjoyment of all economic, social and cultural rights which include the
right to work in Article 6, the right to just and favourable conditions of work
in Article 7, the right to social security including social insurance in
Article 9. the right of mothers to
special protection during a reasonable period before and after childbirth. The right to Education, the right to take
part in cultural life and others.
At
the regional level you have the African Charter on Human and Peoples Rights
which articulates a number of basic rights and fundamental freedoms and makes
them applicable to African States. At article
18 it provides that “the State shall ensure the elimination of every
discrimination against women and also ensure the protection of the rights of
the woman as stipulated in international declaration and conventions.
At
National level many states Kenya
included have entrenched Bills of Rights in their Constitutions enabling their
citizens to attack laws and decrees which although lawfully passed offend civil
and political rights which have been declared so fundamental as to require
perpetual recognition. Moreover private
entities may be prevented from engaging in discriminatory acts in respect of
access to Housing, Services or jobs by domestic legislation.
The
first convention was the Convention on the Political Rights of Women was
adopted in 1952 and was aimed at ensuring the equality of men and women in
their participation in public life.
State parties in it undertake to grant women full political rights such
as the right to vote and the right to be eligible for election to all publicly
elected bodies. To hold public office
and to exercise all public functions on equal terms with men without
discrimination.
The
second Convention was the Convention on the Nationality of Married Women
adopted in 1957 whose purpose is to ensure the right of everyone to a
nationality as recognised in the Universal Declaration of Human Rights. It acknowledges that laws that impose on
women the nationality of their husbands affect these rights. It provides that women and men have equal
rights to acquire, change or retain their Nationality. In that convention is the convention on
consent to marriage, minimum age for marriage and registration of marriages.
Which was adopted in 1962 whose purpose is to ensure by national legislation
equal rights for both spouses in connection with marriage. Marriages should be entered into with a free and full consent of the spouses which is
to be expressed to the responsible authorities.
And a minimum age for marriage is to be established and all marriages
are to be registered.
After
these conventions were done, the problem with them is they lead to
fragmentation, none of them is conclusive and there arose a need to have a
comprehensive one that covers everything that they cover and provides for what
they have not provided and this is the convention on the elimination of all
forms of discrimination against women (CEDAW) which adopted in 1979 and is the
most exhaustive international legal instrument on the rights of women. CEDAW has 3 sort of thrusts in it.
1.
It addresses
civil rights and the legal status of women;
2.
Unlike other
International Human Rights instruments it deals with the right of reproduction;
3.
Its most
controversial subject is that it deals with cultural factors and their impact
on gender relations.
In
Article 3 it is provided that State’s parties shall take in all fields in
particular in the political, social, economic and cultural fields, all
appropriate measures including legislation to ensure full development and
advancement of women for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on the basis of equality
with men.
The
convention contains explicit provisions on the rights of women in the areas of
political and public life, government representation, nationality, education,
health, employment, economic and social benefits, marriage and family, equality
before the law and takes into account the situation of rural women. It also targets culture and tradition as
influential forces in shaping gender roles and farming relations.
Article
1 of the convention defines discrimination as any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women
irrespective of their marital status on a basis of equality of men and women of
human rights and fundamental freedoms in the political economy social cultural,
civil or any other field. Aside from
civil rights issues, the convention also denotes major attention to a most vital
concern of women namely their reproductive rights. The preamble sets the tone by stating that the role of women in
reproduction should not be a basis for discrimination.
In
article 5 it advocates for a proper understanding of maternity as a social function
and demands fully shared responsibility for child-rearing by both sexes. Accordingly State parties are supposed to
provide for maternity protection and childcare as essential rights and to allow
individuals to combine family responsibilities with work and participation in
public life. States are urged to
developed family codes that guarantee women’s rights to decide freely and
responsibly on the number and spacing of their children and to have access to
the information, education and means to enable them to exercise these rights.
The
third general thrust of the convention aims at enlarging our understanding of
the concept of human rights because it gives formal recognition to the
influence of culture and tradition in influencing women’s enjoyment of
fundamental rights. These, cultural
forces take shape in stereotypes, customs and norms which give rise to a
multitude of legal political and economic restraints on the advancement of
women.
Lastly
within CEDAW there is a provision for a commission of experts who are supposed
to be individuals of high moral standing and competence in the field covered by
this convention. The head of this
commission is a man (no discrimination here).
States parties are supposed to provide reports every four years on the
progress of the implementation of the convention. Kenya is very much up to date in
providing reports under this convention unlike many others…
WOMEN & WORK
At
Article 11 of CEDAW there is a whole article on women and work.
Women
in formal employment and women in informal employment.
It
is difficult for women to remove themselves from home to the work place and
this makes life complicated for women in the informal sector as they cannot
separate home life and work life.
It
is difficult to tell when women in the informal sector are supposed to be at
work. With women in formal employment,
the women have equal remuneration for work of equal value, principle of
non-discrimination. The distinction is
trying to carve out the difficult issues whose private and public lives
merges. For the woman who is a rural
woman if she has to have a baby, what rights does she have? Could she argue for
60 days maternity leave? Can she begin to
articulate her right to health care or her right to housing and against who is
she going to articulate her rights?
CEDAW has a provision that deals with issues of women in informal
employment.
One
cannot look at women at work without going back to the Marxist theory, Marxist
feminists argue that women’s labour is part of the surplus value as they add to
the male labourer but their work is not computed when it comes to paying the
male labour. They challenge the division
between private housework which is seen as reproductive work and public work
which is seen as productive work. Private reproductive is not ordinarily
considered to be work. Whereas when the
women moves from private reproductive realm and articulates herself within the
public that is seen as work. Feminists finds this vexing.
They
also question the way in which once work and non-work has been defined the
politically powerful people are the once involved in the productive realms and
not those involved in the reproductive realm.
This subordination of women’s reproductive productive role is not
something germane to the households but goes on to subjugation at all
levels.
Feminists
tend to say that the private is political but this does not mean that they
should not be subjects of contestation.
They should be discussed. We are
asking systems to begin to evaluate the work that women do. Feminists have not looked much at the work of
women in rural context. They are looking
at women doing housework for instance women categorized as women who stay at
home to look after children, and they are asking how to liberate these women
from the categorization of what is work and what is not work.
The
woman’s work in the household is supposed to be a supposed role to the main
labourer. Her work in the private is
seen as a supportive role for the man who articulates himself within the labour
market. According to feminists they see
the productivity of the housewife as a precondition for the wage labourer. They continue to say that the family which is
organised and protected by the state is the social factory for the production
of commodity labour power. Of course the
rules of the family are going to validate the situation and ensure the state of
affairs continues, what a woman does is love, nurturing and caring. With the help of the state and legal
machinery, women are shut-out where their work is made invisible and remains in
the realm of house. If the woman gives
her love, care, emotionality the only way a woman can give love, care,
emotionality outside the house would be to be a sex worker, but when it is
given within the family it is defined as non-productive. The pressure is on the women to leave the
household to become acceptable.
The
rubric of law does not contemplate a woman working in the household as a
worker. So must women leave the private and enter social public realm for them
to be recognized as workers.
The
Marxists feminists are saying that women’s work for most part will be outside
capital, it is not recognized. The
problem is that women cannot revolt and the cycle continues where the women
give unpaid labour which is critical to the functioning of our lives yet we do
not want to recognise it. They try to
link the trials of women with the trials of women in the countries that have
had subjugation or colonialism.
There
is a conceptual delineation of what men will do and what women will do, for
example a woman may stay at home but it is odd to hear of a man who stays at
home. How do we intervene for house
wives? Should we then continue to say that their work is so valuable that we
cannot quantify it to pay? Who would pay for it? Is it the husband? or the State? Who will pay for the work that the women do
that contributes to the GDP yet it is invisible?
There
may be certain employers who want to deny women certain benefits, the denial
will be tacit. The rationale for not
giving medical cover to women is discriminating in a sense. Women and men do not enjoy the same rights,
a woman’s reproductive role colours her experiences at work. People have perceptions of the roles that
women should play, for example when it comes to medical cover, women are
sometimes not covered because it is assumed that their husbands are covered and
the cover extends to their wives.
There
is the question of income tax – unemployed woman’s income is in most instances
seen as the man’s income. Though you can
apply to file separately, usually they are filed jointly. It is assumed that a woman’s tax ought to be
levied through the husband.
There
is the issue of sexual stereotyping which takes many forms, when you have a
person who serves tea at the office, it is usually a woman. Categorization of men when they do women’s
jobs for example men cooks are referred to as chefs because essentially there
is value to what you call a person.
Sexual
harassment at the work place - unwanted sexual advances from a person in
position of authority, a person who one
believes has the power to change your situation for worse. There is a power thing that the person who harasses
sexually harasses because they are in a position of power whether real or
imagined.
The
whole question of division of matrimonial property –
Tortious
claims – women could not claim for loss of consortium but men could, the man is
recompensed if women are rendered incapable of providing consortium but women
are not compensated when men suffer some incapacity.
Maria Mies – in her book
PATRIARCH AND ACCUMULATION
(PART OF WOMEN AND WORK)
Feminist
theory states that modern society and its social constructs which are e.g. law,
religion, art are predominantly the product of males and therefore have a
patriarchal character. According to
subscribers of this view the best prescription for women’s liberation is to
replace the patriarchy with agenda equal culture. However some feminists saw this focus on
patriarchy as being too narrow so its oversimplification to say that men
oppress women since it is more complex than that. These subscribers addressed this issue using
class basis and these were the Marxist feminists. Marxist feminism is a type of feminism theory
which focuses on capitalism as a way to liberate women by stating that it gives
rise to economic inequality, dependence, political confusion and ultimately
unhealthy social relations between men and women and is the root of women’s
oppression.
Theory
of surplus value – Marxist political theory says that the moment one produces
goods for something other than subsistence you create what is called a surplus
value, according to marx this is unjust as the people who do the least to a
product benefit more and this is unfair, they reckon surplus value should
always remain with the producer.
Marxist
feminists have also extended traditional Marxist analysis by looking at
domestic labour as well as waged work.
Maria
Mies was concerned with the articulation between patriarchy and capitalism as
historical systems and the social origins of the sexual division of
labour. She traces the origins of
patriarchy in men’s control over women’s bodies and the appropriation of their
labour. According to her capitalist
patriarchy is the lateness manifestation of this exploitive system. The logic of the system is endless
accumulation which Mies argues is predicated upon the systematic exploitation
of women colonies and nature all or which are seen as natural resources.
Women
are exploited through subsistence production, non-waged work and household
labour facilitated by international divisions of labour imposed by global
capital. Mies’s primary explanatory tool
is the concept of housewife-isation . In
defining women as housewives, capital affirms women as dependents and men as breadwinners. Consequently cheapening and making invisible
most of the world’s labour through women’s work in the informal economy, the subsistence
sector, the household and by making flexible men’s work. Mies said because women have nothing to gain
in their humanity from the continuation of the growth model, they are able to
develop a perspective of society which is not based on the exploitation of
nature, women and other people.
WOMEN AND NATURE
ITS NATURAL – HOW NATURAL IS IT
The
concept of nature is used to explain social inequalities or exploitative
relations as inborn and hence beyond the scope of social change. Women’s household and childcare work are seen
as an extension of their physiology i.e. biology or nature. All the labour that goes into the production
of children is not seen as the conscious interaction of a human being with
nature i.e. as a truly human activity but as an activity of nature which
produces plants and animals unconsciously and has no control over this
process. This definition of women’s
interaction with nature including her own nature as an act of nature has had
and continues to have far-reaching consequences. The concept of labour is usually reserved for
men’s productive work under capitalist conditions which means work for the
production of surplus value.
SEXUAL DIVISION OF LABOUR
The
sexual division of labour provides that the bodily means of production are the
hands and the head not the womb or the breast therefore not only are women and
men differently defined in their interaction with nature but the human body
itself is divided into truly human parts i.e. the hand and the head and natural
or purely animal parts such as the genitalia, the womb etc. Therefore the sexual division of labour is
between human labour and natural activity.
WOMEN IN THE CRIMINAL JUSTICE SYSTEM
Violence against Women:
Violence
against women occurs both within and outside the family and takes various forms
including physical violation of the woman’s body through such acts as kicking,
pushing, burning, punching, pulling hair and may result in minor bruising or
death. It may also constitute sexual
violence such as rape or psychological tormenting through verbal abuse,
harassment, deprivation of resources or denial of access to various
facilities. For our purposes we will use
the definition of violence against women that is used in the Declaration on the
Elimination of Violence against Women – it defines violence as any act of
gender based violence which results in or is likely to result in physical,
sexual or psychological harm or suffering to women including threats of such
acts, coercion or arbitrary deprivation of liberty whether in private or public
life.
Some of the causes of violence against women are sexuality – violence is used to control female sexual behaviour
and this is why violence against women often finds expression in sexual form
either as rape, sexual harassment or female genital mutilation. The control of female sexual behaviour if to
ensure chastity. In many traditions a
woman’s sexuality is linked to concepts of honour. In this context violence against women who
are seen as being the property of the males
in a rival social group becomes a means of defining the honour of that
social group. It then becomes for society to protect its women from the
violence of the other. This protection
entails restrictions and those who respect these restrictions are protected
while those who assert equality and independence are more vulnerable to
violence.
Another cause is cultural ideologies the preference of ideologies justify female
subordination promote this problem. In
many ideologies a traditional legitimacy is given to using violence against
women. There are cultural sanctions for
husbands to beat their wives in certain circumstances. This is based on a
particular construction of sexual identity which requires manhood to be equated
with the ability to exert power over others especially through the use of
force. Women are construed as passive
and submissive and are to accept violence as part of the woman’s lot. Such ideologies link a woman’s identity and
self esteem to her relationship to her father, husband or son. Custom, tradition and religion are frequently
invoked to justify the use of violence against women. Elements of the media also cause attitudes
which give rise to violence against women by producing negative stereo types of
women as being weak and helpless or the use of pornography which is a symptom
as well as a cause of violence against women.
The other cause is state ambivalence: - the
State has the primary duty of providing legislative, administrative and
judicial practices which empower women to vindicate their rights. Therefore the State’s negligence can be
another cause of increased violence against women and its active intervention
may be the catalyst for reforming power relations within society.
LEGAL PROVISIONS
In
Kenya
we have:
The
Constitution in Chapter V provides
for fundamental rights and freedoms of the individual which safeguard the
rights of men and women alike. The
rights safeguarded include those to life, liberty, security of the person and
protection of the law. while freedoms
include of conscience, expression, assembly and association. These rights and freedoms are not
absolute. In enjoying them one must
respect the rights enjoyed by others and the public interest. Enforcement of these rights are under Section
84 which gives the High Court original jurisdiction to provide redress. However, under section 82 there is a
provision protecting all Kenyan citizens from discrimination. However, under Sub section (4) (b) and (c)
this section is excluded from applying with respect to family law issues and in
cases governed by customary law.
The
Penal Code Cap 63 – this provides the
general criminal law framework. This law
defines offences as either misdemeanours or felonies and provides punishment
thereof. The various offences under which
questions of violence against women are handled are divided into two categories
1.
Sexual Offences
2.
Offences against
the person.
Sexual
Offences: the penal code also refers to them as Offences against morality
(a)
Rape under
Section 39-41: the term rape is derived
from the Latin word Rapere which meant to steal, to seize or carry away. It constituted the oldest means by which a
man could steal or seize a woman to be his wife. Forcible rape became a crime when marriage
evolved into a sanctioned institution where women were viewed as a proprietary
interest, infringement upon which was a crime against the father or husband of
the victim. There are 3 categories of
unlawful carnal knowledge within Kenyan Law classified according to the age of
the woman or girl and the relationship between her and the perpetrators:
(i)
Rape
(ii)
Defilement; - a
man does not rape a girl under the age of 14, if he has sexual intercourse with
or without consent the offence committed is the lesser one of defilement and
conspiracy to defile is also a felony;
(iii)
Incest – this is
defined as having carnal knowledge of a female person who is a grand daughter,
daughter, sister or mother of the accused which is a felony.
JUDICIAL INTERVENTIONS
In
the case of R v D N Wamamba Case No. 1736
of 1998 (Unreported
The
accused tortured his wife by beating her and lacerating her private parts as a
punishment for her coming home late and failing to account for her whereabouts
between 1 p.m and 8 p.m. When he was charged he admitted to it and
remained unrepentant claiming that his action was consistent with his Luhya
community’s way of dealing with such behaviour.
He was fined KShs. 10,000/- which he promptly paid and went home and
beat his still sick wife. He was
rearrested, charged and jailed for 6 months.
He was released shortly afterwards through a presidential pardon during
a national holiday in December 1999.
This case illustrates the point that the case histories of prisoners
should be assessed to show if pardon is deserved.
In
the case of R v E W Ochoya Case No. 4728 of 1998 (Unreported)
The
accused defiled a standard 3 girl infecting her with syphilis and HIV
AIDS. All evidence before the Court
pointed to the guilt of the accused. The
presiding magistrate noted that the accused had literally sentenced the girl to
death and deserved to be punished more than the maximum sentence of 14 years in
prison with 20 strokes of the cane and hard labour.
In
the case of Stanley
Mwendo Koti v R The Appellant was charged with indecently assaulting a
woman by touching her private parts.
According to the evidence adduced, the Appellant went to the
complainant’s home drunk and indecently assaulted her by touching her
underpants. The Court of first instant
convicted the Appellant and sentenced him to 3 years and one stroke of the cane
for indecent assault. On Appeal the High
Court overturned the ruling on the ground that there was insufficient evidence
to prove the offence of indecent assault.
In the opinion of the court the accused had only tried to remove her
underpants but she fled and therefore did not constitute indecent assault on a
female. The court relied on the
definition of indecent assault given in the case of Omambia v Republic Criminal
Appeal No. 47 of 1995 where the court stated “these particulars that the appellant touched the private parts of the
complainant mean and can mean nothing else than the appellant touched with his
hand the private parts of the complainant which means genitalia and no other
part of her body.” In the Omambia
case the Appellant had not in the court’s view touched the complainant’s
private parts but merely touched the complainant’s bottom and put his hand
under her blouse which according to the court did not constitute indecent
assault.
In
Maina v Republic the then Chief Justice Mwendwa warned magistrates that girls
and women do tend to tell an entirely false story which is very easy to
fabricate but extremely difficult to refute.
EXTRA LEGAL FORMS OF VIOLENCE
These
normally take place under the guise of traditional practices that are
sanctioned within communities but which in fact amount to violation of
women. These include wife battery, witch
burning and female genital mutilation.
Wife
battering can be defined as physical beatings with fists or other objects,
choking, stabbing, whipping and any other form of husband inflicted physical
violence. Domestic violence is under
reported because of a certain tolerance for the chastisement of wives by their
spouses. A woman who is a victim of
battery could prosecute him for assault or seek to divorce him. Unfortunately
many women choose to stay and sweep the battery under the carpet. Law enforcement agencies are not keen to deal
with matters pertaining to wife battering, they see it as a family matter or
attribute it to culture and tradition which exonerate even obvious violations
of the person.
Witch
Burning: This occurs in rural
communities and studies show that it is associated with social and economic
conflicts which leads to the victimisation of vulnerable and marginalised
individuals such as women and the elderly.
In Sukumaland in Tanzania
women targeted as witches were those who exhibited unusual characteristics not
typical of women in that society. They
included women with long hair, strong personalities and those who owned
property. Women are the majority of
victims even though they do not own the monopoly on persons professing
supernatural powers.
Female
Genital Mutilation: This
is also referred to as female circumsicion and is carried out as a traditional
practice all over the African Continent and elsewhere. There are several kinds practiced ranging
from the removal of the clitoris hood to clitoridectomy to infibulation which
entails the complete removal and scrapping of the external genitalia and
closure of the wound through sawing and leaving a tiny opening for the passage
of urine and menstrual blood. Female
circumsicion serves a purpose among the communities that practice it. However a lot will be done to make it safer
for the initiates and their aspects of it that constitute criminal acts. The dangerous and harmful aspects should be
abandoned in favour of the more positive ones including alternative rites of
passage that entail induction into adulthood through counselling and advice
than physical mutilation.
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