Why women judges really matter: The impact of women judges on property law outcomes in Kenya

DOI10.1177/09646639211007905
Date01 February 2022
Published date01 February 2022
Subject MatterArticles
Article
Why women judges really
matter: The impact of
women judges on
property law outcomes
in Kenya
Martha Gayoye
University of Warwick, UK
Abstract
In this paper, I discuss the impact that women judges have made in property law out-
comes in Kenya. The study shows that women judges were able to influence a feminist
jurisprudence in matrimonial property and inheritance disputes peripherally even though
they were not sitting in some of those cases – through trainings of other [male] judges
and informal interactions with colleagues. I argue that there is need to focus lens on the
collaborative and networking programmes of women judges to bring about institutional
change as opposed to a focus on individual women judges. The findings suggest that studies
that focus on individual [women] judges have far less potential to uncover the impact of
collective efforts of women judges. Existing studies are based largely on Anglo-American
positivist methodologies that are based on methodological individualism over collectivism.It
is no wonder that the collective efforts of women judges under the auspices of the
International Women Judges Association has received little to no scholarly attention.
Keywords
Asking the African woman que stion, asking the woman que stion, collegiate judging ,
inheritance, Kenya Women Judges Association, legal pluralism, matrimonial property,
methodological consciousness, methodological individualism
Corresponding author:
Martha Gayoye, School of Law, University of Warwick, Coventry CV4 7AL, UK.
Email: M.Gayoye@warwick.ac.uk
Social & Legal Studies
ªThe Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/09646639211007905
journals.sagepub.com/home/sls
2022, Vol. 31(1) 72–98
“One day, the dance charts will be the biggest chart in the music world. Because we all need
to dance. This planet will be a fun planet when the judges in court will end the day with a
dance”!
Yoko Ono
The Kenya Women Judges Association
This study is the impact of women judges on property law outcomes in Kenya, with a
focus on the work of the Kenya Women Judges Association (KWJA), under the auspices
of the International Association of Women Judges (IAWJ). Although studies on indi-
vidual women judges are interesting, a focus on a methodological individualism
(Charmaz, 2017: 3) has obscured collective efforts, actions, and processes of women
judges, which are worthy of exploration in the African context. This study will begin to
include these collective actions in the various narratives on the impact of women judges,
by focusing on KWJA’s application of the Jurisprudence of Equality Programme in
property law outcomes. The central argument made in the paper is that women judges
matter for two main reasons. First, representation matters in postcolonial judiciaries such
as Kenya’s, that are seeking social transformation (including gender justice) through
constitution reforms. Such a transformation would be inc omplete without including
women judges, whose perspectives have been missing in a judiciary that has historically
been largely a male enterprise, thus reflecting masculine interests in a gendered dis-
course in matrimonial property disputes. Secondly, I centre the study on the impact of
women judges in debates around feminist judging, as opposed to essentialising women
judges’ role in feminine and stereotypical norms surrounding the ‘difference’ that such
women judges bring.
I demonstrate that women judges really matter in three ways. First, I showcase the
KWJA as a co-ordinated women’s rights training programme of women judges, tailored
towards educating and training their (overwhelmingly male) peers on sexist stereotypes
about women in matrimonial property disputes, and applying internation al women’s
rights instruments to uphold their matrimonial property rights. It is through this pro-
gramme that a feminist jurisprudence on inheritance and matrimonial property disputes
began to emerge, prior to a new Constitution in 2010. The finding that the KWJA
educated and civilised male colleagues on sexist and stereotypical gender norms per-
ipherally and behind the scenes is congruent with some previous studies that locate
difference in challenging male bias (Hale and Hunter, 2008; Martin, 1993; Schroeder,
2002).
Second, I demonstrate that post-2010, the importance of women judges is even more
stark when decisions passed by i ndividual women judges are compar ed to those of
individual male judges in the High Court. There are now more women judges in the
High Court and Court of Appeal, as a direct consequence of the 2010 Constitution that
contains a one-third minimum gender quota in all public appointments. This research
found that some individual male judges did not recognise women’s property rights, but
never women judges. Individual women judges judging solo in the High Court always
uphold women’s matrimonial property rights.
73
Gayoye

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