By Jerameel Kevins Owuor Odhiambo
One of jurisprudence’s most arresting paradoxes; a paradox that has animated centuries of legal philosophy and that persists with startling vitality into the contemporary moment is that law, that most human of inventions, has so frequently been deployed to diminish humanity itself. The goddess Justitia, that Roman personification of legal order, was depicted wearing a blindfold not as a symbol of ignorance but of transcendence: she could not be swayed by the face before her, neither its beauty nor its gender, neither its race nor its station. Nonetheless, from the moment human hands began inscribing law onto clay tablets in Mesopotamia, those very hands almost exclusively male stitched gender into the marrow of legal systems with the confidence of those who mistake power for principle. Aristotle, in the Nicomachean Ethics, declared justice to be “a complete virtue in relation to our neighbour” a formulation at once beautiful and, given his simultaneous insistence on the natural inferiority of women, breathtakingly inconsistent. It is precisely this contradiction between law’s avowed universalism and its practiced particularity that demands examination, because a gendered law is not merely an unjust law it is, in the deepest philosophical sense, no law at all.
To understand why law must be gender-neutral at every point in its anatomy from its drafting to its interpretation, from its enforcement to its remedies one must first appreciate what law claims to be. H.L.A. Hart, writing in The Concept of Law (1961), distinguished between primary rules that impose duties and secondary rules that confer powers, arguing that a legal system worthy of that name must possess an internal point of view it must be accepted, not merely obeyed. But acceptance, in any morally coherent sense, requires that the law speak to all subjects with equal moral seriousness. John Rawls, in A Theory of Justice (1971), provided the modern philosophical architecture for this proposition with his famous veil of ignorance: rational persons designing a society’s foundational rules, deprived of knowledge of their own gender, race, or social position, would never construct a legal order that privileged one gender over another. They could not afford to, because they might be on the losing side. The veil of ignorance is not merely a thought experiment it is a diagnostic tool. Applied to any legal rule, it asks a simple question: would you accept this rule if you did not know which gender you would be born into? A gendered law fails this test every time.
The critique of gendered law is ancient, though it has not always been framed in the language of rights. In ancient Greece, Plato who was Aristotle’s teacher and in this regard his superior thus argued in The Republic that women capable of performing the functions of guardians should be trained as guardians, regardless of sex. “The only difference between them,” Socrates tells Glaucon, “is that the female bears and the male begets.” For Plato, functional capacity, not biological category, should determine legal and civic standing. Centuries later, Mary Wollstonecraft would make this argument with far greater urgency in A Vindication of the Rights of Woman (1792), insisting that if women appeared irrational, it was because they had been systematically denied the education that produces reason; a legal and institutional deprivation masquerading as natural order. John Stuart Mill, in The Subjection of Women (1869), extended this analysis to law itself, arguing that “the legal subordination of one sex to the other is wrong in itself, and now one of the chief hindrances to human improvement.” These were not merely academic observations. They were indictments of legal systems in Roman law, English common law, colonial law that had dressed prejudice in the respectable garments of legal doctrine.
Kenya’s own legal history offers a particularly instructive case study, because it is a history in which gendered law arrived not organically but by imposition carried in the colonial luggage of the British Empire and deposited into a society whose pre-colonial normative frameworks were themselves varied, often complex, and frequently more attentive to women’s economic agency than colonial administrators cared to acknowledge. The Crown Lands Ordinance of 1915 vested control of land in the colonial state and, through its administrative practices, effectively reduced African women who under many customary systems had substantial cultivation rights to legal ciphers in the one domain that mattered most to agrarian life. This was gendered law not because it explicitly said “women shall not own land” but because its structures and assumptions systematically produced that outcome. The lesson Kenya drew from this history, codified in the Constitution of Kenya 2010, was unambiguous: Article 27 prohibits discrimination on the basis of sex, while Article 60 demands land reform on the basis of “elimination of gender discrimination in law, customs and practices related to land and property.” The Constitution did not merely acknowledge the problem of gendered law; it diagnosed its historical roots and mandated its excision.
The Marriage Act, a statute that emerged from decades of legal advocacy and parliamentary negotiation illustrates both the progress and the persistent tensions that characterize Kenya’s journey away from gendered law. On one hand, the Act formally abolished the common law presumption of implied consent to marital sex, a presumption that had long operated as a legal shield for domestic violence. On the other, the Act has been criticized for provisions that, in practice, continue to privilege male testimony and male definitions of matrimonial property. In one of the Petitions before the High Court, several provisions of the Act were challenged on the grounds that they replicate, in subtler form, the gendered hierarchies of the repealed Matrimonial Causes Act. This litigation embodies the central argument of this essay: gendered law does not always announce itself loudly. Often, it hides in procedural assumptions, in interpretive conventions, in the allocation of the burden of proof in all those places where doctrine meets discretion and where gender, if not actively excluded, will inevitably enter.
The Law of Succession Act, Cap, presents perhaps the most glaring example of statutory gender bias in the Kenyan legal corpus. Its provisions, particularly those governing intestate succession in communities where customary law is incorporated, have produced a body of case law that is, when viewed through the lens of constitutional equality is profoundly troubling. In Rono v Rono & Another [2005] eKLR, the Court of Appeal confronted provisions of the Act that effectively excluded daughters from inheriting under customary law, holding that such exclusion violated the constitutional guarantee of equality. The Justice on record, writing for the court, stated with commendable directness that “daughters are as much children of their parents as sons,” and that a law which treated them otherwise was constitutionally indefensible. The philosophical import of this holding is significant: the court was not merely resolving a property dispute; it was making a jurisprudential declaration that gender cannot function as a criterion for the allocation of legal entitlements. Customary law, however historically embedded, cannot claim immunity from this principle. No source of law can.
Criminal law has historically been among the most aggressively gendered domains of the legal order, and Kenya’s experience is no exception. The Sexual Offences Act, No. 3 of 2006 enacted after decades of feminist legal activism and triggered in part by the horrifying gang rape and assault cases that marked the 1990s represented a transformative rupture with a common law tradition that had, for centuries, defined rape exclusively as a crime against women perpetrated by men, a definition that both excluded male survivors and obscured the true nature of sexual violence as a crime of power rather than passion. However, the Act itself has been critiqued for retaining gender-specific language in several provisions, and its implementation has revealed a criminal justice system from police stations to courtrooms that continues to apply gendered assumptions in assessing complainant credibility.
The employment sphere reveals a further dimension of this problem: the gendered law that does not explicitly discriminate but structures conditions of work in ways that systematically disadvantage women. Simone de Beauvoir, in The Second Sex (1949), argued that woman is not born but made that her social position is the product of historical structures, not biological destiny. This insight, translated into labour law analysis, demands that we examine not merely whether a law treats men and women differently on its face, but whether it treats differently situated persons as if they were identically situated, or identically situated persons as if their situations were different. The Employment Act, No. 11 of 2007, is instructive here. While it provides for maternity leave and prohibits dismissal on grounds of pregnancy, its provisions for paternity leave are comparatively thin; a disparity that encodes the assumption that childcare is primarily a female responsibility and, by extension, that career disruption is a female problem.
Constitutional litigation has served as the primary mechanism through which Kenyan courts have confronted gendered law, and the doctrine that has emerged while imperfect represents an increasingly sophisticated engagement with the philosophical foundations of legal equality. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the High Court considered the constitutionality of provisions in the National Assembly and Presidential Elections Act and the Local Authorities Act that failed to implement the two-thirds gender rule enshrined in Article 81(b) of the Constitution. Justice Musinga (as he then was) held that the failure to enact legislation implementing this principle was itself unconstitutional, a ruling that moved beyond the merely formal equality of law (treating everyone the same) toward the substantive equality of outcomes (ensuring that law’s effects do not perpetuate structural disadvantage). This distinction between formal and substantive equality is philosophically fundamental. It is the distinction that Catharine MacKinnon drew in Toward a Feminist Theory of the State (1989), arguing that formal equality under male-defined law simply guaranteed women the equal right to be treated as men a hollow guarantee when the very standards of treatment were constructed around male experience.
The philosophy of Ubuntu, which permeates much of Eastern and Southern African legal and ethical thought, offers an indigenous theoretical resource for the case against gendered law that is too rarely mobilized in formal legal argument. Ubuntu often rendered as “I am because we are” posits a conception of personhood that is fundamentally relational and communal rather than atomistic. If my humanity is constituted through my relationship with others, then any law that diminishes the full humanity of any member of the community diminishes the community as a whole. Gendered law, on this account, is not merely unjust to women it is corrosive of the communal fabric that makes legal order meaningful.
This philosophical tradition finds partial legal expression in the Constitution of Kenya 2010’s Preamble, which commits the nation to “nurturing and protecting the well-being of the individual, the family, communities and the nation,” and in Article 10, which lists “human dignity, equity, social justice, inclusiveness” among the national values binding all State organs in the exercise of public power. A legal system that encodes gender hierarchy cannot claim fidelity to these values without a level of cognitive dissonance that would embarrass even the most agile constitutional interpreter.
The intersection of customary law and statutory law in Kenya’s pluralistic legal system creates zones of particular vulnerability for gender equality, and it is in these zones that the argument for an ungendered law becomes most urgent and most contested. Article 159(3) of the Constitution provides that “in applying traditional dispute resolution mechanisms” courts shall not violate the Bill of Rights — a provision whose simple formulation conceals extraordinary interpretive difficulty. In Dina Management Limited v County Government of Mombasa & 3 Others [2021] eKLR, the Supreme Court grappled with questions of institutional authority and constitutional supremacy in a dispute touching on competing normative frameworks, and while that case did not directly concern gender, its reasoning reinforced the hierarchical primacy of the Constitution over all other normative sources. Applied to gendered customary law, this principle is clear: no appeal to tradition, cultural continuity, or community cohesion can sustain a legal rule that allocates rights on the basis of sex. This is not cultural imperialism; it is constitutional logic. As Makau Mutua, has argued, human rights are not a Western imposition but a universal aspiration whose content can and should be informed by African philosophical traditions. The task is not to choose between constitutionalism and culture but to insist that culture, like all other normative systems, must answer to the standard of human dignity.
International law has increasingly reinforced this position, and Kenya’s legal system as a monist state in which ratified international instruments form part of domestic law by virtue of Article 2(5) and (6) of the Constitution cannot insulate gendered rules from international scrutiny. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Kenya in 1984, defines discrimination against women as any distinction, exclusion or restriction made on the basis of sex that impairs the enjoyment of human rights a definition deliberately broad enough to capture indirect discrimination and systemic disadvantage, not merely overt exclusion. The African Charter on Human and Peoples’ Rights, incorporated into Kenyan law, and its Maputo Protocol (ratified by Kenya in 2010) go further still, requiring State Parties to take all appropriate measures to eliminate discrimination against women in all spheres of life, including in legislative enactments, judicial decisions, and customary practices. When viewed alongside the Committee on the Elimination of Discrimination Against Women’s General Recommendation No. 33 on Women’s Access to Justice (2015) which identifies gendered assumptions in judicial systems as a structural barrier to substantive equality the international legal framework presents a comprehensive and coherent mandate: law, at every level and in every form, must be stripped of gender as an operative criterion for the allocation of rights and the distribution of burdens.
Justitia’s blindfold, then, is not a cosmetic accessory it is the emblem of a jurisprudential commitment that law’s most fundamental concepts, rights and duties, must not be filtered through the lens of gender. From Plato’s guardian-women to Wollstonecraft’s vindicated daughters, from Mill’s subjection critique to MacKinnon’s feminist jurisprudence, from Rawls’s veil of ignorance to the Ubuntu philosophy of communal personhood, the intellectual tradition across centuries and continents has converged on a single proposition: that a law which sees gender sees something it has no business seeing. Kenya’s constitutional and judicial trajectory from the egalitarian promises of the 2010 Constitution to the landmark holdings in Rono, CREAW, and EG reflects a society in the process of stripping its legal order of the gendered scaffolding that colonialism and patriarchy erected together. That process is incomplete. The Marriage Act and the Law of Succession Act still carry provisions that bear the fingerprints of a gendered imagination. Customary law still arrives in courtrooms wearing gender as a credential. The criminal justice system still measures female credibility by standards shaped by male experience. But the direction of travel is clear, and the intellectual, constitutional, and philosophical foundations for the journey are secure. The law must be blind not in the sense of willful ignorance, but in the deeper Justiciar sense: that it sees only the human being before it, with all that human being’s dignity intact, and nothing else.
The writer is a legal researcher and writer.
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