CLS 435:

GENDER AND THE LAW

September - December,
2023
DAY 2 – WEDNESDAY, 20th
SEPTEMBER, 2023
 INTRODUCTION TO GENDER
AND THE LAW

 Recap – Personal Experiences

 Delineate the Conceptual
Framework
 Define Gender, Sex and
Patriarchy, Law, Feminism

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 CONCEPTUAL FRAMEWORK
 Nexus between Gender and the
Law
 Interplay between Gender and
the Law
 Inequities, Imbalances and
Discriminations

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 CONCEPTUAL FRAMEWORK…..Cont/
 Constitutional/Legal
Loopholes/Clawbacks that lend
themselves amenable to gender
discrimination
 Constitutional and legal
Safeguards that mitigate these
discriminations

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 DEFINITIONS

 SEX
 Sex – biological, anatomical and
physiological state of being either male or
female. E.g.
 Women have vaginas, ovaries, uterus and
breasts: men have penises and testicles
 Women menstruate; men do not

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 SEX……..Cont/
 Men have different hormones (testosterone)
to women (progesterone +estrogen)
 Men have bigger muscles and bones than
women
 Men grow beard, women do not
 Ordinarily men break their voices at puberty;
women do not

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 SEX
 This state of being male or female
translates into biological functions:-
 Women get pregnant and carry a baby in their
wombs to term
 Men impregnate women
 Women produce milk that feeds the young
infant: men do not

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 GENDER
 Gender - A societal construct that informs
the way roles for men and women are
determined and distributed
 This determination and distribution of
roles based on a societal construct
(Gender) is what occasion
discriminations, inequalities and inequities

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 GENDER
 This societal construct (Gender) pervades all
spheres of life namely: social, cultural,
economic, political, and religious
 This construct may differ from culture to culture,
e.g.:-
 In most of the western countries, Europe and
North America mainly, women earn
significantly less money than men for similar
work

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 GENDER…………Cont/….
 In Kenya many more men than women
smoke. As a matter of fact women who smoke
are frowned upon
 In the Middle East, women are not allowed to
move around unaccompanied by a male
relative while men are generally free to do as
they please.
 In Saudi Arabia men are allowed to drive cars
while women are not

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
Gender
 In most of the world, women do more
housework than men
 In most cultures it is perceived as
inappropriate for a woman to initiate sexual
intercourse/invite a man out/propose
marriage
 Gender is maintained by culture.
 Gender is neither natural nor divine.

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 EFFECTS OF GENDER
 Masculine v Feminine Divide which invariably places men at a
comparative advantage over women
 The Comparative Advantage results into the Patriarchal
Dividend/Matriarchal Deficit
 Different Socialisations

 Men are socialised to be assertive, independent, competitive and

better able to find fulfilment in working in the public sphere
(including law making institutions). This in turn constructs men
to be public leaders, opinion shapers, decision-makers, property
owners, fearless, brave, and reckless

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 EFFECTS OF GENDER ….Cont/
 On the other hand, women are socialised to be;
gentle, passive, nurturing and more suited to the
domestic sphere where they find fulfilment in
marriage and motherhood (outside of the law making
processes). This constructs women to be domestic
beings, dependent upon men, as fathers, brothers,
husbands and sons
 Women are further constructed to be silent, not to
flaunt their intelligence, emotional, well behaved and
non-questioning, obedient, faithful to one partner be
they husband or boyfriend.


CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 PATRIARCHY
 “Rule by Fathers” – literal meaning
 A social political system where the male
figure is the central authority
 Power arrangement is hierarchical and at
times a female figure could be the central
authority e.g. the legendary Wangu wa
Makeri
 Patriarchy connotes female subordination
and influences power relations between
male and female
CLS 435 - Njeri Kangethe, Lecturer/Adv
ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 PATRIACHY……Cont/
 Patriarchy confers leadership, power, control,
access, ownership of property to the male figure
as a matter of course (patriachal dividend)
 Most societies in Africa are patrilineal - property
and title devolve to the male lineage. Cf British
Monarchy
 To maintain the status quo (unequal power
relations) Patriarchy employs aggressive
(violence) tactics or subtle means like law

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 LAW
 Roscoe Pound (1870 -1964) In his book An
Introduction to the Philosophy of Law
defines Law as a tool of social engineering:-
 Regulates human intercourse within certain

parameters
 Guarantees and defends the rights of the

people – state/state; state/citizens;

citizen/citizen

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 LAW…..Cont/
 Stabilising factor in society
 Ensures existence of peace, security and
liberty
 Sets limitations to exercise of rights and
freedoms
 Legal Rules - Have force of law and are
backed by state's enforcement mechanisms

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 LAW…….Cont/
 Non Legal Rules - Moral, Social, Religious
 Rules/Customs that regulate conduct of affairs
in society; coercive/normative
 Ordinarily made by members of society - will
of the people (Parliament, Delegated
Legislation, Referendum)
 Enforced by machinery of state

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 FEMINISM
 Feminism - pro women ideology that
informs the academia, politics, activists
etc:-
 Acknowledges that there is a male bias in
knowledge systems

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 FEMINISM………Cont/…
“Prior to 1970s the ‘problem of women’ in the societies
where their rights were recognised, were defined and
dealt with by various movements and political groups
in the context of moderating or eliminating legal and
customary forms of discrimination. Nevertheless, legal
equality, constitutional safeguards for equal
opportunities were not sufficient to change the basic
cause of gender inequality” Mihai Simai, - Director,
United Nations University/World Institute for
Development Economic Research, 1993

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 FEMINISM
 Challenges prevailing knowledge systems
and existing theories
 Highlights and enhances social differences
in the world, e.g. race, creed,
nationalities, sex, ethnicity and colour

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya
 INTRODUCTION TO GENDER
AND THE LAW
 FEMINISM……Cont/
 Acknowledges that men and women are
socio cultural beings not just biological
objects – hence need to analyse gender in
the quest to understand this
 Critiques culture in so far as it determines
maleness and femaleness

CLS 435 - Njeri Kangethe, Lecturer/Adv

ocate of the High Court of Kenya