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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023).

Article 2(5) and (6) of the Constitution of Kenya 2010 provides that ‘the general rules of international law shall form part of the law of Kenya’ and that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’ respectively. In Re The Matter of Zipporah Wambui Mathara [2010] eKLR the High Court held that by virtue of the provisions of Section 2 (6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has ratified, were imported as part of the sources of the Kenyan Law and thus the provisions of the International Covenant on Civil and Political Rights (ICCPR) which Kenya ratified on 1st May 1972 were part of the Kenyan law.

The court went on to hold that the provisions of the ICCPR superseded those contained in the Banking Act. It is in line with the country’s international obligations on human rights and gender issues that Article 59 (2) (g) of the Constitution of Kenya provides that one of the functions of the Kenya National Human Rights and Equality Commission is to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights. It is however noteworthy that the National Gender and Equality Commission Act, 2011 has since established the National Gender and Equality Commission as the successor in title to the Kenya National Human Rights and Equality Commission established by Article 59 of the Constitution, pursuant to clauses (4) and (5) of that Article. Its functions however remain the same.

It is in line with the Commission’s mandate on international treaties and conventions that the Sessional Paper No. 02 of 2019 on National Policy on Gender and Development outlines the national agenda for gender equality and how Kenya intends to realize these ideals; details the overarching principles, which will be adopted and integrated into the National and County Government sectoral policies, practices and programmes and by all state and non-state actors; and it specifically takes cognizance of, inter alia: international and regional treaties on gender equality that Kenya has ratified such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Maputo Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights guarantees that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. It also provides that each individual is entitled to enjoy their rights and freedoms ‘…without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.  Article 7 therein also guarantees that ‘all persons are equal before the law and are entitled without any discrimination to equal protection of the law’.

Convention on the Elimination of All Forms of Discrimination against Women

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines the term “discrimination against women” to mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. CEDAW also provides that States Parties should condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation.

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