Evening out the divide between rights and culture: A case for mobilising positive culture in state responses to gender-based violence in Kenya

• Author: Kabata, F.
• DOI: https://doi.org/10.47348/SLR/2022/i1a7
• Published date: 24 May 2022
• Date: 24 May 2022
• Citation: (2022) 33 Stell LR 139
• Pages: 139-160

139

https://doi.org /10.47348/ SLR/2 022/i1a7

EVENING OUT THE DIVIDE BETWEEN RIGHTS

AND CULTURE: A CASE FOR MOBILISING

POSITIVE CULTURE IN STATE RESPONSES TO

GENDER-BASED VIOLENCE IN KENYA

Faith Kabata

LLB LLM LLD

Lecturer, Kenyatta University School of Law

Abstract

The main focus of the art icle is on the inadequacy of state re sponses in

eliminating gender-ba sed violence in its struc tural and direct expres sions.

The article depar ts from the premise that gende r, sexuality, and identity a re

cultural constr ucts and argues that culture and s ocial constructs are dynamic

and changing, hence state re sponses to eliminate gender-based violen ce must

engage the positive and egalitarian a spects of African cultu re for social

legitimacy. While ack nowledging that constitu tional and legal framework s

lay a normative found ational basis for protection again st gender-based

violence, the effective ness of these framework s must be measured thro ugh

implementation. It is in the i mplementation of the constit utional and legal

norms that cultural co ntestations emerge, for inst ance, in the context of

structural form s of gender-based violenc e such as female genital mutilation

and marital rape. Th e main question that the art icle seeks to answer is

how states can bridge the gap bet ween norms and imple mentation which

arises out of cultu ral contestations. Focusing on Kenya as a c ase study,

the article examines st ate responses to stru ctural forms of gender-b ased

violence, specically, female genital mutilation and marital rape. The Kenyan

constitutional f ramework recognises c ulture as the foundation of th e nation

and the right to culture in the Bill of Rights, and on e qual footing embraces

egalitarian principles which plac e dignity, freedom, and equalit y at the core of

societal relations. Applying do ctrinal research methodology, we analyse case

law on female genital mutilation an d legislative initiative s in the prohibition

of marital rape to identif y and distil the judicial an d legislative approaches

on the interplay bet ween the prohibition of gender-based violence nor ms and

culture. Based on this, th e article suggests proposals o n how the progressive

aspects of African c ulture that resonate with the egalitaria n constitutional

structure can be e ngaged in state response s to gender-based violence.

Keyword s: gender-base d violence, culture female genital mu tilation human

rights marital rape

(2022) 33 Stell LR 139

© Juta and Company (Pty) Ltd

https://doi.org /10.47348/ SLR/2 022/i1a7

1 Introduction

The human rights d iscourse has long unders tood culture as nest ed

within its jural fou ndations. Illustrat ively, the foundational human rights

instru ments that is, the Universal Declar ation of Human Rights (“UDHR”),

the Internat ional Covenant on Civil and Political Rights (“ICCPR”), and the

International C ovenant on Economic, Social and C ultural Rights (“ICESCR”)

support rights t hat expressly refer to culture.1 At the Africa n regional level,

the African Ch arter on Human a nd Peoples’ Rights (“African Ch arter”)

guarantee s the peoples’ right to cultural development2 a nd also extensively

addresses Af rican culture. It foregrou nds the family unit as t he embodiment

of the exercise and expression of social and cultur al values and imposes a

duty on individuals t o preserve positive Africa n values in relations within

the family and society.3 The Protocol to the A frican Char ter on Human and

Peoples’ Rights on the Rights of Women in Africa (“Maputo Proto col”)

confronts cultu re in relation to discrimination and gende r-based violence and

enshrines t he right of women to positive cultural context.4

Even then, these phrases ha rdly settle the divide bet ween culture and

human rights. The relat ionship between cultu re and human rights rem ains

tense and largely negative. Cultu re has often been viewed as regressive, stuck

in time and incompat ible with the protection of human right s. It is often

seen as the placeholder for harmf ul practices, i ntolerance, and an obstacle

to gender equality, posing the quest ion of whether one would have to discard

their culture i n place of human right s.5

Leaving aside the polarise d debate on universalism and cultural relat ivism,

cultural contes tations arise in t he actual implementation of huma n rights

norms, part icularly in the context of gender and sexu ality rights which are

deeply rooted in local cultu res. This tu rns to the question of how states ca n

bridge the gap between nor ms and implementation which arises from cult ural

contestations. Broadly, there is scholarly consens us on the instr umentality

of domestic social institut ions in the implementation of inter national human

rights standa rds.6 A number of studies have also pointed out t hat cultural

contestations cannot be resolved merely by legislation or execut ive at, but

rather by cultur al transformation to align cultu re with universal human rights

standards. Writi ng on reconciling culture and national con stitutions, Ibhawoh

1 Article 27 of the Un iversal Declaration of Hu man Rights (adopted 10 Dece mber) 1948 UNGA RES 217

A(III); ar ts 1 and 27 of the Internat ional Covenant on Civil and Polit ical Rights (adopted 16 Decembe r

1966, entered int o force 23 March 1976) 999 UNTS 171; arts 1 an d 15 of the International C ovenant on

Economic, Soci al and Cultu ral Rights (adopt ed 16 December 1966, ente red into force 3 Janu ary 1976) 993

UNTS 3

2 Article 20 of the A frican Cha rter on Huma n and Peoples’ Rights (adop ted 27 June 1981, entered into fo rce

21 October 1986) (1982) 21 ILM 58

3 Articles 18 (2), 17 and 29(7)

4 Articles 5, 6 an d 17 of the Protocol to the Afric an Charter on Hum an and Peoples’ Rights on the R ights

of Women in Africa (adop ted 01 July 2003, entere d into force 25 November 20 05) (adopted 13 Septembe r,

entered int o force 25 November 2005) CAB/ LEG/66 6

5 S Tamale “The Right t o Culture and the Cult ure of Rights: A Critical Pe rspective on Women’s Sexual

Rights in Af rica” (2008) 16 Fem Leg Stud 47, 55

6 V Benneker, K Ger xhani & S Stei nmetz “Enfor cing Your Own Right s? The Role of Social Norm s

in Compliance w ith Human Right s” (2020) 8 Social Inclusion 185

140 STELL LR 2022 1

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