LAW, WOMEN AND CULTURE
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It is trite knowledge that women have a right to dignity and equality. Yet, despite the simplicity of this demand, the Kenyan society often displays an unusual ignorance towards it. This document investigates the dynamic interplay between law, women, and culture in Kenya, analyzing how legal frameworks have responded to tensions stemming from cultural norms that have historically dehumanized and marginalized women. It underscores the centrality of material conditions—most notably property ownership—as a catalyst for transformative social, economic, and political shifts. The analysis is organized into five critical domains: property rights, succession disputes, the role of the Federation of Women Lawyers (FIDA), women’s participation in leadership, and the escalating issue of femicide. Each section evaluates the impact of legal reforms, particularly those enshrined in the 2010 Kenyan Constitution, in enabling women to contest entrenched cultural practices, while concurrently identifying the enduring cultural obstacles that continue to impede full gender equity.
1. Property Rights: A Foundation for Empowerment
Property rights
have historically been a kernel of economic and social power in Kenya[1]. In
many traditional African societies, women were systematically excluded from
owning property[2],
a practice that curtailed their economic autonomy and entrenched their
subordination. Often viewed as property themselves by a culture that
dehumanizes them—particularly during times of conflict when they were treated
as spoils of war[3]—women
faced significant barriers to agency.
The 2010 Kenyan Constitution promised a bold new era, enshrining equal
property rights for all, regardless of gender[4]—a beacon
of hope meant to dismantle patriarchal strongholds. On paper, women could
finally claim land and resources as their own. Yet, the reality stings. The
2022 Kenya Demographic and Health Survey lays bare the gap: only 25% of women
aged 15–49 own agricultural land, down from 39% in 2014, and a mere 3% hold
sole ownership[5].
These numbers don’t just whisper disparity; they scream it. Constitutional
guarantees are one thing, but when women’s “ownership” often means a title
without control[6],
it’s not freedom—it’s a mirage, cloaked in legal promises that leave them
grasping for power still out of reach.
Karl Marx articulates a profound insight into this dynamic, stating,
"In the social production of their existence, men inevitably enter into
definite relations, which are independent of their will, namely relations of
production appropriate to a given stage in the development of their material
forces of production."[7] This contention
emphasizes that material conditions—such as access to property—shape societal
norms and individual empowerment. By securing property rights, the Constitution
has enabled women to redefine their social existence, fostering a shift in both
their self-perception and societal attitudes toward gender roles.
2. Succession Disputes: Legal
Progress Amid Cultural Resistance
Succession disputes have long served as a battleground fueling the
tension between customary law and constitutional rights of women in Kenya. The
1987 case of Wambui Otieno remains a seminal example: after her husband S.M.
Otieno's death, Wambui sought to bury him according to their shared wishes,
only to be overruled by a court decision favoring the Umira Kager clan’s
traditions[8]. The
implications of this ruling, then, were far reaching. By denying Wambui the
right to decide her husband’s burial place, the courts upheld a male-dominated
clan authority over her individual agency as a spouse. Current jurisprudence
places greater emphasis on individual autonomy within marriage, ensuring that
both spouses have equal say in significant decisions. Article 45(3) explicitly
states 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."
In contrast to the Otieno ruling, recent cases have affirmed widows’ rights to make choices about their deceased spouses’ burials. For instance, a 2023 High Court ruling upheld a widow’s right to determine her husband’s burial site, prioritizing her autonomy over clan customs[9]. These evolving legal interpretations reflect the growing weight of constitutional principles.
3. FIDA:
Leveraging Law and Resources for Justice
The Federation of Women Lawyers (FIDA), founded in 1985, epitomizes the
power of organized advocacy in advancing women’s rights. By offering legal aid,
pushing for policy reforms, and raising awareness of women’s rights, FIDA has
catalyzed transformative change. Notable legislative successes include the Sexual
Offences Act of 2006, which strengthened protections against gender-based
violence, and the Matrimonial Property Act of 2013, which clarified women’s
rights in marital property disputes.
FIDA’s achievements underscore the role of material conditions in
effecting change. By harnessing legal expertise, financial resources, and
community networks, the organization has built a robust platform to combat
cultural oppression. Its legal clinics, for instance, have empowered countless
women to seek justice in cases ranging from property disputes to domestic
violence, translating constitutional rights into tangible outcomes[10].
4.
Leadership: Progress Amid Patriarchal Resistance
Kenya’s political sphere has historically been a male-dominated domain, further
notoriously characterized by the issuing of “handouts” during campaigns[11]. Women,
already undermined by culture, compounded by their denial of property rights by
the same culture, find it difficult to get elective positions[12]. The
2010 Constitution’s gender equality provisions, including the two-thirds gender
rule, have begun to dismantle these obstacles, evidenced by article 97(1)(b)
which provides that the National Assembly shall consist of forty-seven women,
each elected by the registered voters of the counties. Additionally, in a
historic feat, the 2022 general elections witnessed the election of seven
female governors.
Yet, the experience of Kawira Mwangaza, one of the initial seven female
governors, reveals enduring patriarchal resistance. Despite being ranked among
the top 10 performing governors by Infotrak Research[13],
Mwangaza was impeached by the predominantly male Meru County Assembly, a move
critics attribute to gendered bias.
At this point, the antithesis to this document emerges. In as much as material conditions helped Kawira to clinch the governor’s seat amidst cultural resistance, material conditions are not enough to guarantee safety from cultural oppression of women. Mwangaza’s case highlights the necessity of aligning material gains with cultural transformation to sustain women’s leadership gains.
5. Femicide and Cultural
Norms
Femicide—the intentional killing of women because of their gender—casts
a grim shadow over Kenya’s gender equality efforts. Reports indicate a troubling
prevalence of such cases[14], driven
by cultural attitudes that normalize violence against women. Beliefs that men
must “establish respect” through force[15] or that
women who defy “traditional roles” deserve punishment perpetuate this crisis.
This then begs the question, does Kenya have an anti-women culture?
Gina Wanjiku Kimani, in her
dissertation, opines that Kenyan
music, more specifically Genge and Gengetone, inadvertently
contributes towards standardizing sexual violence.[16] These
genres often portray masculinity as powerful and dominant, while depicting
femininity as submissive, creating a power imbalance that grants men undue
power in sexual relationships and diminishes women’s agency. Kimani argues that
this music contributes to structural violence and rape culture among youth,
although the direct impact on behavior requires further research. This was a
scathing indictment of the Kenyan society which strongly suggests the existence
of an anti-women culture in Kenya.
This ‘anti-women' culture might stem from cultural values or from
whatever source. It suffices to say that Kenya has a problem, and women are
being killed by the day. These women are humans just like their male
counterparts, it is important for the government to take necessary steps to solve
this issue.
The Kenyan government has attempted to address femicide, including
establishing dedicated gender-based violence units within police stations[17]. However,
how many cases have been solved by these units? How often are perpetrators held
accountable? How many cases fall apart before they even reach court? A
straightforward answer to these questions is unnecessary, what is scary is that
this culture does not only allow gender-based violence, but it also protects it[18]. A[19] was launched but its progress is yet to be seen. Will
this taskforce merely churn out findings and recommendations that, like so many
before, are destined to be ignored and left unimplemented? Only time will tell.
Organizations such as Usikimye provide critical support to survivors.
However, these measures must be scaled up. Tackling the root causes demands a
holistic approach: education to challenge violent norms, cultural dialogue to
redefine gender roles, and rigorous enforcement of laws.
Conclusion:
Beyond Material Conditions
The interplay of women, law, and culture in Kenya reveals a trajectory
of remarkable progress tempered by persistent challenges. As Karl Marx’s
insight suggests, material conditions—codified in the 2010 Constitution and
leveraged by organizations like FIDA—have been instrumental in advancing
women’s rights across property ownership, succession disputes, leadership, and
the fight against femicide. The rights denied to women in society undermine
their humanity. The fight for women’s rights is neither a woman cause, nor a
feminist cause, it is a human cause.
[1] Celestine Nyamu Musembi and Patricia
Kameri-Mbote, ‘Mobility, Marginality and Tenure Transformation in Kenya:
Explorations of Community Property Rights in Law and Practice’ (2013) 17(1)
Nomadic Peoples 5, http://www.jstor.org/stable/43123919 accessed 31 March 2025. The authors contend that land for
instance is significant not only as a key means of production, but also a form
of leverage in bargaining for social status.
[5]
Kenya National Bureau of Statistics, KDHS
2022 (KNBS, 2022) https://www.knbs.or.ke/reports/kdhs-2022/ accessed 9 April 2025.
[6]
"Kenya’s Property Ownership Still Tilted
Towards Men – Survey" (The Star, 18 January 2023) https://www.the-star.co.ke/business/kenya/2023-01-18-kenyas-property-ownership-still-titled-towards-men-survey accessed 9 April 2025.
[7] Karl Marx, A Contribution to the
Critique of Political Economy (first published 1859, Progress Publishers
1970) 20–21.
[10] FIDA, Annual Report 2023 (FIDA
2023)
[14] UN Women, 'Femicide cases in Kenya fuel urgent calls for action to end violence against women' (UN Women, 2 February 2024) https://www.unwomen.org/en/news-stories/feature-story/2024/02/femicide-cases-in-kenya-fuel-urgent-calls-for-action-to-end-violence-against-women accessed 31 March 2025.
[15] BBC News
Africa, 'Kenya's Hidden Epidemic - BBC Africa Eye Documentary' (YouTube, 24
January 2022) https://youtu.be/8pwWiz8jJfY?si=uu5G6H2nx_4bFGF- accessed
1 April 2025.
[16] Gina Wanjiku Kimani, ‘These Blurred
Lines: A Critical Discourse Analysis of Genge and Gengetone Music and Their
Impact on Attitudes Towards Sexual Violence in Kenyan Youths’ (Undergraduate
Honours Dissertation, African Leadership University and Glasgow Caledonian
University, November 2021
[17] Prudence
Wanza, 'NPS forms special unit to tackle Gender-Based Violence cases' (KBC, 11
March 2025) https://www.kbc.co.ke/nps-forms-special-unit-to-tackle-gender-based-violence-cases/ accessed
31 March 2025.
[18]
In C.K.(A
Child) Through Ripples International As Her Guardian And Next Friend) & 11
Others v. Commissioner Of Police/Inspector General Of The National Police
Service & 3 Others, the court observed that by failing to enforce
existing defilement laws the police contributed to development of a culture of
tolerance for pervasive sexual violence against women.
[19] Kenya, 'Establishment of the Technical
Working Group on Gender-Based Violence (GBV) Including Femicide' (Gazette
Notice, 10 January 2025).
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