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

Author: Faith Kabata

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Lecturer, Kenyatta University School of Law
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 139 – 160


The main focus of the article is on the inadequacy of state responses in  eliminating gender-based violence in its structural and direct expressions.  The article departs from the premise that gender, sexuality, and identity are  cultural constructs and argues that culture and social constructs are dynamic  and changing, hence state responses to eliminate gender-based violence must  engage the positive and egalitarian aspects of African culture for social  legitimacy. While acknowledging that constitutional and legal frameworks  lay a normative foundational basis for protection against gender-based  violence, the effectiveness of these frameworks must be measured through  implementation. It is in the implementation of the constitutional and legal  norms that cultural contestations emerge, for instance, in the context of  structural forms of gender-based violence such as female genital mutilation  and marital rape. The main question that the article seeks to answer is  how states can bridge the gap between norms and implementation which  arises out of cultural contestations. Focusing on Kenya as a case study,  the article examines state responses to structural forms of gender-based  violence, specifically, female genital mutilation and marital rape. The Kenyan  constitutional framework recognises culture as the foundation of the nation  and the right to culture in the Bill of Rights, and on equal footing embraces  egalitarian principles which place dignity, freedom, and equality at the core of  societal relations. Applying doctrinal research methodology, we analyse case  law on female genital mutilation and legislative initiatives in the prohibition  of marital rape to identify and distil the judicial and legislative approaches  on the interplay between the prohibition of gender-based violence norms and  culture. Based on this, the article suggests proposals on how the progressive  aspects of African culture that resonate with the egalitarian constitutional  structure can be engaged in state responses to gender-based violence.