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LEGAL MYSTIC
When the entire
world seems to have found the sense of reason in the fight for women’s rights,
there has been a great insistence of the same by the activists until the
society has turned bigoted of the issue. This article seeks to highlight the
mere fact that the phrases Human Rights and affirmative action are used
interchangeably in a confusing manner. It insists on the importance of
determining what is being sought humanitarianly so that the society can give it
humanitarianly. What is of right should also be termed right and the society
will grant it as of right.
Arising from the same issue is the reason why we
give affirmative action .It is as a result of the understanding that man and
woman are equal. In essence all persons are equal. However, the words of Baron
De Montesquieu are also realized by the society to be true. In the state of
nature, indeed, all men are born equal, but they cannot continue in this
equality. Society makes them lose it, and they recover it only by the
protection of the laws[1]. The law being created by the people for the people have been moulded
to humanitarianly cater for women through affirmative action. The society
through affirmative action has fought to promote social equity.
It is by the above reason that the constitution
of Kenya 2010 bears a great emphasis on the empowerment of women. It is
engraved in the preamble which we consider as a social contract to promote
social justice. The political and public office positions have a minimum
requirement for the proportion of women to that of men. This is pursuant to
articles 27(6 &8), and article 81(b). The two provide to the effect that
the government will take affirmative and legislative measures to ensure that no
more than two thirds of holders of public offices shall be of the same gender.
With this regard, it is for the first time that somewhat Kenyans and generally the whole world has realized that
social justice cannot be obtained at the state of nature. The knowledge of the
discourse of inequality informs this conclusion.
Albeit for the same insistence of activism of
female rights, it needs be noted that there are the rules of natural justice.
These rules of natural justice in practice are purely rightful entitlements to
every human creature and should not be taken with adverse distinction. They
include the rules of fair play and the rule of law. Their simple indication is
that, when the laws apply, they should apply equally to all individuals
regardless their being men or women, and that all creatures be explicitly
presumed equal regardless their gender.
The brass task of this issue is to show an area
of the law that has not only failed to comply to the appeal of affirmative
action in favour of women but also has gone beyond the extreme of not treating
them equals of all humanity to adversely distinguishing them on both grounds of
gender and economic status. This area is the civil procedure law that provides
the rights for everyone including paupers to hear.
Order 33 of the civil procedure rules 2010
provide to the effect that, even the poorest persons upon application can
institute civil suits. This is a provision that ensures that social justice is
accorded to all persons irrespective of the economic status. Rule 3 of the
order further provides that “notwithstanding the provisions of the rules the
application shall be presented to the
court by the applicant in person unless the applicant is exempted from
appearing before the court by section 82, in which case the application may be
presented by an authorized agent who can answer all material questions relating
to the application and who may be examined in the same manner as the party
represented by him might have been examined had the party appeared in person”.
This provision has the essence of exempting a woman from exercising the right
she is entitled to. Section 82 of cap 21
worsens the issue providing that “women who according to the customs of
their community ought not to be compelled to appear in public shall be exempt
from personal appearance in court”.
This
provision is against section 27(4) of the Kenyan constitution 2010. It is an
exemption to what is rightfully an entitlement to the women. Arguably this law
can be said to be depraving the women of aright generally entitled to all
people by the grounds of their being
poor, women and belonging to a certain community that perpetuates gender
discrimination.
The article recommends in any offing amendment
of the civil procedure rules and civil procedure act cap 21 laws of Kenya the
provisions of order 33 rule 3 and section 81 variably be amended to mend the
injustice.
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