Feminist Theory and Feminist Jurisprudence

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Understanding Feminist Theory

Feminist theory seeks to understand the nature and motives behind gender inequality by examining the socio-political and economic roles of men and women in society.
It advocates for removing barriers to women’s advancement and for implementing policies that promote equal rights for women.

Historical Roots of Feminism


The first national gathering of American feminists at Seneca Falls, New York, in 1848, marked the identification of law as an instrument of male supremacy.
Feminist movements have since focused on critiquing the law as a means to eradicate legal sexism and other discriminatory practices.
Key Concerns of Feminist Jurisprudence :Feminist jurists address the “woman question” by examining the gender implications of laws, rules, and practices.
Feminists perceive policies and decisions dominated by men as mechanisms that disadvantage women.
Feminist theorists distrust the law’s form and content, citing two main reasons:
Male Bias: Conventional legal doctrines inherently favor men, having been developed in male-dominated societies, even when they appear gender-neutral.
Perspective Gap: Pro-women legislation and decisions should originate from women’s experiences, as men’s perspectives often fail to capture the realities of women’s lives.

Critique of Gender-Neutral Policies

Proponents of feminist theory argue that modern equal protection doctrines, such as gender-neutral spousal support, have often benefited men more than women.
Legislative Milestones Advancing Feminist Ideals-Kenya has enacted several legislative measures to promote equality, including:
These laws promote the enjoyment of fundamental rights, freedoms, civil rights, and equal opportunities for men and women.
Constitutional Provisions Supporting Gender Equality
The Constitution mandates affirmative action and other measures to redress disadvantages.

Constitution of Kenya, 2010
Matrimonial Property Act
Marriage Act
Protection Against Domestic Violence Act
Political Parties Act, 2011
Article 27: Guarantees non-discrimination on the basis of gender and sexuality.
Article 45: Ensures equality between men and women before, during, and upon the termination of marriage.

 
Feminist Jurisprudence in Kenya

Marriage Act – Registration of Polygamous Marriages

In Mary Wanjuhi Muigai vs AG & Another (2014), the petitioner challenged the constitutionality of registering polygamous marriages under Article 45 of the Constitution.
The court found polygamy unconstitutional as it discriminates against women. However, it noted that polygamy is an accepted practice in Kenyan society.
Recommendations for mandatory registration of all marriages, regardless of type, date back to the 1968 Report of the Commission on the Law of Marriage and Divorce.

 Matrimonial Property Act – Section 7 and Spousal Contribution

In Federation of Women Lawyers Kenya (FIDA) vs Attorney General & Another, the petitioner challenged Section 7 of the Matrimonial Property Act, which ties ownership of matrimonial property to each spouse’s contribution.
The petitioner argued that this section violated women’s rights under Article 45(3) of the Constitution, which guarantees equality in marriage.
The court, however, upheld Section 7, stating it aligned with Article 45(3), as the definition of “contribution” includes non-monetary inputs.

Reproductive Rights – Abortion

  • In Federation of Women Lawyers (FIDA-Kenya) vs Attorney General & 2 Others (2016), the petitioners challenged a directive that prohibited health workers from training on safe abortions and the use of medical tools like Medabon.The petitioners argued that the directive violated constitutional rights, including:
    • The right to life (Article 26).
    • The right to the highest attainable standard of health.
    • Freedom from cruel, inhuman, and degrading treatment.
    • Non-discrimination.
  • The court referred the matter to a higher bench, emphasizing that Article 26(4), which allows abortion when the life of the mother is in danger, required further judicial interpretation.
  • Feminist jurisprudence in Kenya continues to evolve, shaped by legal challenges and societal realities. The Constitution of Kenya, alongside progressive laws like the Marriage Act and Matrimonial Property Act, underscores the country’s commitment to gender equality.
  • However, gaps persist, requiring continued advocacy to address systemic discrimination and ensure the effective realization of women’s rights.





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