Tools for Women Judges to Curb Harmful Practices

Summary of Presentation by Hon. Lady Justice Hellen Wasilwa at the 18th IAWJ Africa Regional Conference

Topic: Tools Available to Women Judges in Curbing Harmful Cultural Practices

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Introduction

Hon Lady Justice Hellen Wasilwa's presentation addresses the critical role that women judges play in combating harmful cultural practices that negatively impact the rights and lives of women and girls. The presentation outlines various tools and frameworks available at national, regional, and international levels that judges can use to curb these practices.

Understanding Harmful Cultural Practices

Harmful cultural practices, as defined by the Maputo Protocol, include behaviors and traditions that negatively affect women's and girls' fundamental rights. These practices encompass child marriage, female genital mutilation (FGM), widow inheritance, breast ironing, son preference, and many more. Such practices persist due to unequal access to health, education, employment, and wealth, coupled with deep-seated cultural norms that view women as subordinate to men.

National Legal Frameworks

1. Constitution of Kenya:

• Article 2(4): Any law, including customary law, inconsistent with the Constitution is void.
• Article 14: Guarantees equal citizenship rights for women.
• Article 27: Prohibits discrimination on various grounds, including sex and pregnancy, and allows for affirmative action to address disadvantages.

1. Employment Act 2007:

• Outlaws discrimination based on sex and pregnancy.
• Ensures equal pay for work of equal value.

Regional and International Policy Frameworks

1. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):

• Defines discrimination against women and obliges states to pursue policies to eliminate such discrimination.
• Emphasizes equality of human rights for women and men.

1. Maputo Protocol:

• Article 5 mandates the elimination of harmful practices.
• Requires public awareness, legislative measures, support for victims, and protection of women at risk.

1. International Covenant on Economic, Social and Cultural Rights (ICESCR):

• Ensures protection of economic, social, and cultural rights, including non-discrimination, right to work, and right to social security.

1. International Labour Organization (ILO) Conventions:

• Key instruments promoting gender equality, such as the Equal Remuneration Convention and the Maternity Protection Convention.

Case Law

1. George Opiyo & Others v. Deputy County Commissioner Gem & Another:

• The court upheld the constitutional criteria for public appointments and dismissed the petitioners' discriminatory arguments against the appointment of a female assistant chief.

1. Vishaka & Others v. State of Rajasthan:

• The Indian Supreme Court established guidelines for preventing sexual harassment in the workplace, emphasizing the state's obligation to ensure a safe working environment for women.

Conclusion

Women judges have a wide array of tools at their disposal to combat harmful cultural practices. These include national laws, regional and international human rights instruments, and case law precedents. By leveraging these tools, judges can help create safer and more equitable environments for women, challenging discriminatory norms and practices. Ensuring the enforcement of these legal frameworks and promoting gender equality within the judiciary are essential steps towards protecting the rights of women and girls and promoting social justice.