INTRODUCTION
Women as a naturally occurring, unequal gender is a credo that both Kenyan and Ugandan societies have struggled to emancipate themselves from when chronicled narratives defend the need to transfigure the display of hegemonic attitudes. These posit an Aristotelian-type view that the worst form of inequality is to try and make unequal things equal.1 Representative of this is that having the willingness and ability to enforce specifically enacted laws, which aspire to ensure that all persons are equal before and under the law thus enjoying equal protection, is hitherto considered futile and perpetual. Such endeavour for equality thus fails to take into account the traditional patriarchal structures which dichotomise gender stereotypes and vectors therein, to define the parameters of behaviour that is expected of the masculine and feminine and constrains the assessment of equality to the category of sex with which individuals ascribe. So then the dialogue goes that all men are equal in the sense that they are entitled to marry, work, be educated and to objectify and control women as property, so as to entitle them to occupy positions in the public domain. This then imputes notions of power, control, strength and dominance as gender-selective binaries but which are constrained by the ascendancy of hypermasculinity between each other. Antithetical is a woman's position where the expectation is that she will marry, serve her husband and care for her children in the privacy of the home which connotes a subservient, weak, chaotic gender thus perpetuating entrenched psychological differences lying in the natural inferiority of women in East African society. It is this naturally unequal paradigm that seeks to explain oppressive practices that fossilise women's low-ranking position in this patriarchal structure. This renders the utopianism of cross-gender equality before the law unachievable unless misogynistic attitudes are educated, repelled and addressed through schooling, religious teachings and the local presence of non-governmental organisations.2
In order to seek to propose how Kenya and Uganda might achieve equal protection of women before the law, particularly in relation to the crimes of sexual and gender-based violence (SGBV), it is necessary to consider the historical milieus of the Maasai with whom both Kenya and Uganda share heredity. This will evince a number of harmful practices that percolate modern-day society which reinforce women's subjugation and render them more susceptible to being victims of SGBV – practices such as female genital mutilation (FGM), bride price, early marriage and polygamy. These practices further act so as to suppress a woman's transcendence from the private to the public sphere through the perpetuation of poverty and thus impedes their ability to attend school, to achieve economic security, to obtain key decision-making positions – fundamentally to influence change in state-centric institutions in order to seek to incapacitate patriarchal attitudes and structures and to redress imbalances in the lack of proportionate representation of women therein.
Common law domestic legal systems in both Kenya and Uganda, through their respective constitutions, recognise gender equality as a fundamental human right which accords with their international obligations in respect to ratified international treaties. These seek to ensure equality before the law as well as equal protection of the law between men and women.3 Furthermore, given the supremacy of the constitution in the hierarchy of laws in both states4 and its expression to declare void any law which is inconsistent with it, including customary laws, then despite the enactment of legislation specifically prohibiting FGM and early marriage, the lack of enforcement of such laws impliedly endorses these oppressive traditions through impunity. As a corollary, the lack of investigation and prosecution of SGBV such as rape and defilement5 not only rigidifies impunity for perpetrators but acts so as to successively maintain misogynistic social attitudes by dissimulating the trepidation of being believed through a lack in the reporting of these crimes. There are further inconsistencies with the visionary statement of equality in the Constitution of Kenya given the enactment of the Marriage Act 2014 which retrogressively legalises the customary practice of polygamous marriage, which has further implications for women's property rights and inheritance.
Neither is there vindication for the international community who neglect to acknowledge empirical human rights abuses when continuing to trade and give humanitarian aid to Kenya and Uganda despite the existence of United Nations safeguards which mandate ‘state parties to pay special attention to both gender-based and sexual violence when assisting business enterprises in conflict-affected areas,6 thus condoning practices disadvantageous to women.
Given the lack of heuristic ability to promulgate the practical enforcement of domestically enacted laws, this renders claims made by both Kenya and Uganda that they are both genuinely willing and able to prosecute crimes of international concern occurring in their territory during the civil war in Uganda and the post-election violence in Kenya somewhat thwarted.
However, while ending impunity for rape and other crimes of sexual violence in the International Criminal Court (ICC) might satisfy the conscience of international actors, who may assert that ‘top-down justice’ will percolate the necessary changes within these countries, the reality is that conviction of even the most heinous of perpetrators such as Joseph Kony7 or Uhuru Kenyatta8 shatters hopes of achieving any visible justice when direct perpetrators are those living within the same communities as their victims evading prosecution.
Thus the solution to realising verifiable justice in atoning for past impunity as well as to affect attitudes which encourage the enforcement of future crimes is through the creation of an internationalised domestic court, which has jurisdiction over serious international and domestic crimes. This then not only allows for Kenya and Uganda to regain an element of control and reassert sovereignty over the proceedings, but also to submit this to international oversight seeks to reassure the international community as to the veracity of their ability and willingness to submit perpetrators through a proper and impartial judicial process.
A HISTORY
Folklore proclaims that the modern Maasai emanated from two, equal, gender-specific male and female tribes which became unified when the female coterie lost their cattle to disease, thus becoming dependent upon the male group, acceding their freedom in exchange for aegis. Thus patriarchal social structures and male hegemony resulting from such notions of indebtedness do not only delineate this parable but have perpetuated the attribution and acceptance of ‘cultural traditions which put women on a lower rung of the social ladder’.9 Furthermore, the retelling of tales which depict women as ‘good, hardworking, non-adulterous wives’,10 and those which portray countenance for fathers and husbands meting out physical punishments to daughters and wives involving stories of betrayal,11 preserves the moral tone in encouraging social conformity shaped by a patriarchal mind-set.12 This not only effectuates the confining of women to the private sphere of the home while reserving the public sphere for men but represents the male gender as having the capacity to be judge, jury and executor in a fictional depiction of gender stereotyping which portrays a male role as ‘guaranteeing community welfare’.13
Colonialism had the effect of crystallising those established social norms in the early days which subjugated and suppressed women's equality. The motivation for this was twofold. Firstly, confining women to the home meant that early male settlers could orchestrate full advantage to accessing employment in the workplace,14 and secondly that there was a need to ‘accommodate effective partnerships with indigenous patriarchs’ which renounced any early shift in the conceptualisation of women.15 This also resulted in dichotomising legal structures which,16 while retaining customary laws, imposed a common law system within national borders, which were neither promoted nor explained and therefore did not provide a foundation upon which to exude a belief in change or encourage compliance. To a certain extent however, the friction still impeding change in the modern day resonates in ‘the power of myth which lies precisely in the ability to make an arbitrary system of values appear as systems of fact’.17 This narrative then is axiomatic, as being a systemic contributor to the prevailing social attitudes, harmful practices and reluctance in asserting the full provisions of the law against perpetrators. Yet ‘the status of women is defined by more than just their formal legal standing, in any society it is also a matter of culture’ and therefore, before considering legal provisions, it is necessary to consider such practices.
HARMFUL PRACTICES – FEMALE GENITAL MUTILATION
FGM – known traditionally as female excision – finds its heritage in Maasai folklore which tells the story of Naipai, a daughter who betrayed her father and brother, when, during conflict, she was discovered having sex with an enemy soldier. In seeking to punish his daughter, the father administered the cutting and alteration of her genitalia, the morality of which sought to deter her and other young girls from engaging in sexual practice for pleasure.18 However, in modern-day practice, it is represented more palatably as a rite of passage from childhood to womanhood than as a tortuous punishment which inflicts pain and unnecessary suffering upon girls, typically between the ages of 12 and 14.19 This further aligns the practice as a biological one in accordance with the...
