“Judges play critical roles as custodians of law and justice. The judicial oath places a duty on judges to apply the law equally, and without fear or favor. The generally held view on gender and judging, however, indicate that the law may not always be applied fairly in matters relating to women and other minorities. This book comes at a time when the world is reawakening to discussions on the rights of women, especially during the Covid-19 pandemic. The chapters provide theoreti- cal and practical analyses and entry points for expanding our understanding of how judges apply the law and the potential for judicial interpretation to either promote women’s rights or diminish them. This book is a must-read for judicial officers, gender advocates, experts interested in judicial policy, judicial training, and judicial institutional development. It touches on issues at the intersection of gender, law, and development across Africa.” Justice Georgina Theodora Wood (Rtd.) (SOG, LLD (honoris causa), Former Chief Justice of the Republic of Ghana “A rich, timely, thoughtful, lively and diverse compendium of papers examin- ing the multiplicity of questions at the core of constitutional rights and freedoms across the African continent today. The book excellently captures the main issues raised at the conference in Arusha which illuminated the gaps in law and practice towards full and meaningful achievement of women’s rights. It highlights the slow but steady advances being made in the gender awareness of judges in Africa, while calling to action the need for more gender-sensitive training for judicial officers.” Justice Albie Sachs (Rtd.), Constitutional Court of South Africa    Gender, Judging and the Courts in Africa Edited by J. Jarpa Dawuni Women judges are playing increasingly prominent roles in many African judici- aries, yet there remains very little comparative research on the subject. Drawing on extensive cross-national data and theoretical and empirical analysis, this book provides a timely and broad-ranging assessment of gender and judging in African judiciaries. Employing different theoretical approaches, the book investigates how women have fared within domestic African judiciaries as both actors and litigants. It explores how women negotiate multiple hierarchies to access the judiciary, and how gender-related issues are handled in courts. The chapters in the book pro- vide policy, theoretical and practical prescriptions to the challenges identified, and offer recommendations for the future directions of gender and judging in the post-COVID-19 era, including the role of technology, artificial intelligence, social media, and institutional transformations that can help promote women’s rights. Bringing together specific cases from Kenya, Uganda, Ghana, Nigeria, Zambia, Tanzania, and South Africa and regional bodies such as ECOWAS and the African Commission on Human and Peoples’ Rights, and covering a broad range of thematic reflections, this book will be of interest to scholars, students, and practitioners of African law, judicial politics, judicial training, and gender stud- ies. It will also be useful to bilateral and multilateral donor institutions financing gender-sensitive judicial reform programs, particularly in Africa. J. Jarpa Dawuni is an Associate Professor of Political Science at Howard University, United States and the Founding Director of the Howard University Center for Women, Gender and Global Leadership. She is the founder and Executive Director of the non-profit organization, the Institute for African Women in Law (IAWL). Gender, Judging and the Courts in Africa Selected Studies Edited by J. Jarpa Dawuni First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, The International Bank for Reconstruction and Development/The World Bank; individual chapters, the contributors The findings, interpretations and conclusions expressed in this work are those of the authors and do not necessarily reflect the views of The World Bank, its board of Executive Directors or the governments they represent. The World Bank makes every effort to ensure, but does not guarantee, the accuracy or completeness of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgement on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Any and all disputes arising under this License that cannot be settled amicably shall be submitted to mediation in accordance with the WIPO Mediation Rules in effect at the time the work was published. If the request for mediation is not resolved within forty-five (45) days of the request, either You or the Licensor may, pursuant to a notice of arbitration communicated by reasonable means to the other party refer the dispute to final and binding arbitration to be conducted in accordance with UNCITRAL Arbitration Rules as then in force. The arbitral tribunal shall consist of a sole arbitrator and the language of the proceedings shall be English unless otherwise agreed. The place of arbitration shall be where the Licensor has its headquarters. The arbitral proceedings shall be conducted remotely (e.g., via telephone conference or written submissions) whenever practicable, or held at the World Bank headquarters in Washington DC. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-34458-0 (hbk) ISBN: 978-1-032-12952-5 (pbk) ISBN: 978-0-429-32786-5 (ebk) DOI: 10.4324/9780429327865 Typeset in Goudy by Deanta Global Publishing Services, Chennai, India Contents Acknowledgments x List of contributors xii Note from Chief Justice of Tanzania xiv Foreword xv 1 Introduction: Gender and judging across Africa: A case of old wine in new skins or new wine in old skins? 1 J. JARPA DAWUNI, PHD PART I Women and gender-related jurisprudence in the courts 23 2 An analysis of gender equality jurisprudence by Kenyan courts since the enactment of the 2010 constitution 25 NANCY BARAZA, PHD 3 To win both the battle and the war: Judicial determination of property rights of spouses in Ghana 40 MAAME YAA MENSA-BONSU AND MAAME A.S. MENSA-BONSU 4 “Judging” lesbians: Prospects for advancing lesbian rights protection through the courts in Nigeria 57 PEDI OBANI, PHD PART II Emerging gender issues in the courts 77 5 Femicide and judging: Social media as an alternative online court in Kenya 79 STEPHEN MUTHOKA MUTIE, PHD viii  Contents 6 Judging beyond gender: Maternal and infant mortality as an emerging gender-related issue in Ugandan courts 99 W. NAIGAGA KYOBIIKA   7 Revenge pornography as a form of sexual and gender-based violence in Ghana: Emerging judicial issues 123 MAAME EFUA ADDADZI-KOOM   8 Litigating gender discrimination cases before the ECOWAS Community Court of Justice and the African Court on Human and Peoples’ Rights 142 OSAI OJIGHO PART III Judicial appointments and gender representation in regional bodies and national courts 159   9 The feminine face of the African Commission on Human and Peoples’ Rights 161 REINE ALAPINI-GANSOU 10 Pursuing gender equality through the courts: The role of South Africa’s women judges 189 PENELOPE ANDREWS 11 One sauce for the goose, another for the gander: Zambian women judges and perceptions of illegitimacy 209 TABETH MASENGU, PHD PART IV Judicial training and gender 231 12 Unlocking gender inequality through judicial training: Insights from Tanzania 233 JULIANA MASABO, PHD 13 Gender awareness training in Judicial Training Institutes in Kenya and Uganda 254 NIGHTINGALE RUKUBA-NGAIZA, PHD  ix Contents PART V COVID-19 pandemic and gender-related judicial issues 277 14 The COVID-19 pandemic, courts, and the justice system 279 MUNA NDULO, DPHIL 15 Sexual and gender-based violence in Uganda during the COVID- 19 pandemic: New and old lessons for the criminal justice system 297 LILLIAN TIBATEMWA-EKIRIKUBINZA, PHD Index 321 Acknowledgments The preparation and publication of this book would have been inconceivable without the foresight and vision of several Chief Justices and heads of judiciar- ies across Africa who came together in Arusha, Tanzania, in June 2018 for the first Gender and Judiciary Conference in Africa to explore avenues for address- ing a myriad of issues and devise strategies for protecting women’s fundamental rights in Africa. Special thanks to Chief Justice Ibrahim Hamis Juma of Tanzania and Dr. Sandie Okoro, Senior Vice President and General Counsel of the Legal Vice Presidency, World Bank, who hosted the conference and have continued to champion judicial reform efforts, including ensuring more inclusive judiciaries. Her Excellency, President Samia Suluhu, Tanzania’s first female Vice President (Vice President at the time) opened the conference and set the tone for this book by calling on the courts in Africa to examine and develop gender-responsive solutions to overcome gender inequality and to end the impunity enjoyed by perpetrators of violence against women. I would like to extend my thanks to the contributors to the book, who care- fully analyzed the issues presented at the conference, and the Chief Justices, judges, academics, and various development practitioners who agreed to be inter- viewed on these chapters at a time when the world is grappling with a pandemic with social, health, and personal challenges. A special thanks to Judge Albie Sachs (Rtd), Constitutional Court of South Africa, and Chief Justice Georgina Theodora Wood (Rtd), of Ghana, who reviewed and endorsed the book. To the World Bank colleagues who contributed to the preparation of this book, thank you. I would like to recognize Nightingale Rukuba-Ngaiza, who contributed a chapter and task managed the preparation of the book, Francesca Daverio, who coordinated the peer reviews of the articles, Tamika Zaun, who meticulously handled the administrative details, Rowena Gorospe, who handled the copyright and other legal aspects in connection with the publication of the book, and other colleagues in other parts of the World Bank, including Nichola Smithers and her team from Governance; Markus Goldstein and his team in the Africa Gender Innovation Lab, Governance, who peer reviewed and provided invaluable insights on the chapters; and Mayya Rezvina, who handled the pub- lication aspects.  xi Acknowledgments Last but not least, I am grateful for the coordination, solicitation of quality papers, and editorial support provided by the Institute for African Women in Law, led by Jarpa Dawuni. Sheila Braka Musiime Chief Counsel The World Bank Contributors Maame Efua Addadzi-Koom is a Lecturer at Kwame Nkrumah’ University of Science and Technology, Kumasi and Co-Founder and Managing Partner at Grasil Consult. Reine Alapini-Gansou is a Judge at the Pre-Trial Division of the International Criminal Court. Penelope Andrews is a Professor of Law at New York Law School and is Co-Director of New York Law School’s Racial Justice Project. Nancy Baraza is a Professor of Law at the University of Nairobi School of Law. J. Jarpa Dawuni is an Associate Professor of Political Science at Howard University, United States, and the founder and Executive Director of the non- profit organization the Institute for African Women in Law. W. Naigaga Kyobiika is a Magistrate in Uganda and is Co-founder of a non- profit, Wanawake Kwanza—Women First. Juliana Masabo is a Justice of the High Court of Tanzania and a Senior Lecturer at the University of Dar es Salaam. Tabeth Masengu is an External Collaborator for the GLOBALCIT program at European University Institute and is an Honorary Research Associate at the University of Cape Town. Maame Abena Mensa-Bonsu is a D&D Fellow in Public Law and Justice at the Center for Democratic Development in Ghana. She is currently pursuing a Doctor of Philosophy (DPhil) in Law at the University of Oxford. Maame Yaa Mensa-Bonsu is a Lecturer at the University of Ghana and is a Legal Consultant. Stephen Muthoka Mutie is a Lecturer and Researcher at Kenyatta University School of Humanities and Social Sciences. Muna Ndulo is a Professor of Law at Cornell Law School.  xiii Contributors Pedi Obani is an Assistant Professor at the University of Bradford School of Law and Visiting Researcher at the University of Leeds. Osai Ojigho is the Country Director at Amnesty International—Nigeria. Nightingale Rukuba-Ngaiza is a Senior Counsel at the World Bank’s Legal Vice Presidency. Lillian Tibatemwa-Ekirikubinza is a Justice of the Court of Appeal and Constitutional Court Judge in Uganda and is an experienced legal scholar in judicial and legal matters. Note from Chief Justice of Tanzania I am happy to note that my conversation with Ms. Sandie Okoro, Senior Vice President and General Counsel for the World Bank Group, in Washington DC during the Law, Justice and Development Week in November 2017 led to the conference on Gender and the Judiciary in Sub-Saharan Africa in June 2018 in Arusha, Tanzania. The conference brought together chief justices, judges, magis- trates, and other concerned stakeholders to discuss ways judiciaries can guarantee every woman’s fundamental right to live free of discrimination and violence and promote women’s pivotal role in social and economic development. This book and its fourteen authors confirm that the conversations on gender equality and gender justice continued beyond the Arusha Conference. A few examples from the chapters underscore the need to sustain conversations on gender equality and gender justice. Ms. Maame Efua Addadzi-Koom takes us through revenge pornography, an emerging form of sexual and gender-based vio- lence, and how the courts and existing laws in Ghana have responded. Dr. Penelope Andrews takes us through South Africa’s Constitution, which she describes as trans- formational. She looks at female judges’ roles through their decisions and distinct ways to frame and analyze gender-related legal issues. Dr. Nancy Baraza discusses the Constitution of Kenya. Apart from applauding it for having made significant gains for gender equality and equity and protecting the human rights of all women and men in Kenya, she faults the Judiciary of Kenya for using its interpretive authority under the Constitution not to advance but to undermine gender equality. As the world is living through the disruptions caused by the COVID-19 pan- demic, Dr. Lillian Tibatemwa-Ekirikubinza shares with us her experience in Uganda. She examines the effects of pandemic-related restrictions on the incidence of sexual assault and evaluates the response of Uganda’s justice system to the imposed limits. The fourteen chapters of this book open up new frontiers for further conversa- tions. I commend the authors for contributing to the discussion on gender equality and justice in Africa. My final note is that conversations about gender equality and justice must continue, and we all have a duty to both encourage and be a part of such conversations if we are to achieve meaningful change and create more opportunities for women’s access to justice. Prof. Ibrahim Hamis Juma CHIEF JUSTICE OF TANZANIA Foreword Sandie Okoro Senior Vice President and General Counsel for the World Bank Group Gender inequality remains a threat to sustainable development worldwide. Ensuring gender equality is not only a matter of human rights, it is also “smart economics.” It is evident that “gender-smart development” policies have the abil- ity to enhance productivity and improve development outcomes. The benefits of gender equity are echoed in a number of World Bank publications, including the World Bank’s Women, Business and the Law reports, which analyze countries’ leg- islation to assess the legislative differences in the treatment of men and women in accessing economic opportunities. These reports have repeatedly found that economies become more resilient when societies pursue and implement policies aimed at achieving gender equality. As such, attaining gender equality is at the heart of the World Bank’s twin goals of ending extreme poverty and boosting shared prosperity. Over the years, the World Bank has embarked on a number of gender-respon- sive reforms, not only to mainstream gender in its policies, programs, and projects but also to monitor the development outcomes of its gender-related interven- tions. The Legal Vice Presidency has supported these efforts by strengthening knowledge and awareness of gender issues through the implementation of various initiatives. In particular, it has made progress in improving women’s access to justice by combining efforts focused on Sustainable Development Goal (SDG) 5, which relates to gender equality, and SDG 16, which relates to peace, jus- tice, and strong institutions. The World Bank’s Legal Vice Presidency has also published a series of legal compendia on the pressing issues of child marriage, female genital mutilation, and sexual harassment. It co-convened the High-level Group on Justice for Women, where, together with its partners, it developed two key reports on women’s access to justice. Moreover, it has also launched the Empowering Women by Balancing the Law initiative, which aims at identify- ing, addressing, and revising existing laws that impede the voice and agency of women and girls around the world. The idea to write this book emerged from one of the World Bank’s efforts to improve women’s access to justice, namely the Gender and the Judiciary in Sub- Saharan Africa Conference, which was held in Arusha, Tanzania between June 11–13, 2018. The Arusha Conference, which was jointly hosted and sponsored by the Judiciary of the United Republic of Tanzania and the World Bank, stemmed xvi  Foreword from a candid discussion I had with the Chief Justice of Tanzania Ibrahim Hamis Juma during the World Bank’s Law, Justice and Development Week in 2017. We shared a common concern: we both wanted to gain a better understanding of the factors that affect African women’s access to justice, including violence against women, barriers to the recruitment and retainment of women judges, and the consequences of excluding women from the workforce. The Arusha Conference convened over 200 participants, ranging from chief justices and delegates from various African judiciaries to presidents of regional courts and tribunals. We shared rich discussions on a range of issues, including gender equality, access to justice, judicial education, and the recruitment and promotion of female judicial officers. This resulted in the identification of several recommendations, including the need to raise gender awareness to eliminate ste- reotypes and unconscious biases; implement gender-responsive training; establish “justice on wheels,” or mobile courts; review how customary laws are applied to women; and ensure that gender parity is attained by appointing more women judges to local, regional, and international courts and tribunals. The analytical papers in this book follow up on some of the issues raised dur- ing the conference. They provide an interesting set of theoretically informed and empirically grounded analyses on sexual and gender-based violence; the role and representation of women in national and regional courts; gender-training and its potential to influence judicial outcomes; progressive gender equality juris- prudence; and emerging gender issues and the response from courts. In light of the COVID-19 pandemic, they also examine the changing environment of the justice sector and the challenges faced by justice sector institutions and the judi- ciaries in particular. I thank the editor, and the contributors—the academicians, lawyers, judges, and various justice-sector professionals—who have shared their incredible knowl- edge and experience and without whom we would not have this book. I would also like to thank my World Bank colleagues Sheila Braka Musiime, Nightingale Rukuba-Ngaiza, Francesca Daverio, and Tamika Zaun for shepherd- ing this work, as well as Markus Goldman and the Africa Gender Innovation Lab, Nicola Smithers, Deborah Hannah Isser, Manuel Vargas, Christine Owuor, Nyandeng Gajang, Imani Paige Jaoko, and Lyatitima Ernest Mate who provided critical input along the way. I hope that this book can help increase our understanding of women’s justice needs, particularly in Africa, and the ways in which the justice system can be improved. Change doesn’t happen overnight. But as a Tanzanian proverb goes, “Little by little, a little becomes a lot.” May we always strive for more equality, through both the large and small steps we take. 1 Introduction Gender and judging across Africa: A case of old wine in new skins or new wine in old skins? J. Jarpa Dawuni, PhD Every society has multiple and often intersecting ordering principles. Research has shown that gender is one major socially constructed ordering principle that has found its way into what we perceive as law and how we interpret, apply, and enforce these laws. Societal ordering principles are intrinsically present in institutions, and the judiciary is no exception. Judiciaries are institutions that are slow to adapt to change. Judiciaries across Africa, like those in other parts of the world, continue to evolve, albeit at a much slower pace than the lawyers and litigants who use these courts would like. Across Africa, the emergence of judiciaries as we know them today is linked to the colonially imposed imported legal systems and traditions, which radically disrupted and replaced existing systems, understandings, and manifestations of justice and human rights (An’Naim, 2002; Juma, 2002; Murungi, 2013; Pimentel, 2011). The presumptive roles of women and men in these societies were also affected and re-engineered, leading to new forms of gendered division of labor, revised societal expectations, and ultimately, new and reimagined rights and obligations (Steady, 2011; Tamale, 2020). African legal systems are currently anchored in, and operating largely within, pluralistic normative legal structures. African legal systems are derivatives of imported legal systems and living custom- ary laws, a combination that sometimes has deleterious effects on human rights and on women’s rights (Banda, 2005; Ndulo, 2011). The role of women and the gendered expectations of women in society continue to evolve across the continent in time and space. These evolution- ary patterns can be traced through the precolonial, colonial, and independence movement phases, leading up to the current phase of the post-democratic period (Achebe, 2020; Chukwu, 2002; Tamale, 2020). These shifts in gender constructs and the ensuing rights and freedoms women enjoy have taken different forms under political transitions that span everything from military and quasi-author- itarian dictatorships to democratic systems in the wake of the fourth wave of democratization (Mama & Okazawa-Rey, 2012). Closely linked to the fourth wave of democratization across Africa was the promulgation of new constitu- tions promising, among other things, liberalization, freedoms, rights, and equal representation. Democratization introduced various changes in judicial func- tions; some were subtle, whereas others were abrupt—such as the total overhaul DOI: 10.4324/9780429327865-1 2  J. Jarpa Dawuni and expansion of existing fundamental notions of equality (Fombad, 2011; Klug, 2010; Ndulo, 2001). Democratic constitutions promised fundamental changes, but the extent to which these promises have materialized over time varies. The failure to imple- ment these principles of good governance has led to an abdication of the execu- tive’s role of enforcing constitutionally guaranteed human rights and freedoms (Ndulo, 2001). Consequently, most African constitutions exist on a skeletal phantom of many unmet rights, resulting in a poor translation of the letter of the constitution (text) into the spirit of constitutionalism (actual guaran- tees and protections) (Okoth-Ogendo, 1988; Prempeh, 2007). Across Africa, constitutional changes and the ongoing legal transformations vary from one country to another and from one political regime to another. Constitutional transformation projects must juggle competing constituency interests such as religion, ethnicity, disability, and gender (Ndulo, 2001). Race is an extra con- sideration in the context of countries in Southern Africa, and in South Africa, to be precise (Klug, 2010). In most of these countries, gender is often not pri- oritized in discussions of human rights, or more specifically, of women’s rights (Banda, 2005). Notwithstanding the seismic constitutional changes that gained ground in the mid-1990s, the question of gender as a defining feature of many African constitu- tional transformation projects holds less primacy in the larger discourse on judi- cial politics in Africa (Andrews, 2001; Cassola et al., 2014; Tripp, 2016). Often, in popular parlance and even in written discourse, gender is confused with sex, leading most analysts, policymakers, and laypersons to think and act in ways that promote the ideology that “gender” is a women’s issue and to therefore dismiss “gender” as a woman “problem.” For the purposes of the discussions in this book, I conceptualize gender as the socially constructed ideas, beliefs, and practices of societal expectations regarding women and men. This conceptualization locates and challenges the prevailing binary distinctions between the normative ques- tion of “what ought to be,” translated as how women ought to behave or be, against the empirical question of “what is”—in other words, what is the status of women? Normativity does not operate in a vacuum but is built on a matrix of histori- cal, cultural, social, and political trajectories—which often intersect while being powering and disempowering for different constituents. In this matrix is located the question of how gender is constructed, reconstructed, and exported across time and space. As a social construct, gender lends itself to multiple interpretations based on the historical, cultural, political, class, and social structures across different tem- poral spaces. Definitively, what are perceived as the “rights” of women differ from one community to the next. African feminist/womanist perspectives on gender and judging must be formed from a premise cognizant of the matrix of gender visibility/inclusion or invisibility/exclusion in negotiating constitutional trans- formations. Any discussion of the historical development of legal and judicial sys- tems, and of subsequent constitutional transformation projects propelled by the tide of democratization, must be analyzed against the backdrop of how socially Introduction 3 constructed gender norms affect what is perceived as gender equity or equality by the law, the courts, and judges. Kenney (2013, p. 24) captures the essence of gender and judging when she notes, “Gender differences thus do not flow inevitably from sex differences; rather, gendering is the process by which we attach meaning to sex differences, most often to devalue whatever society associates with women.” Using gender as a measure of value makes sense when one examines the gendered outcomes of laws on multiple issues, such as women’s access to sexual and reproductive health, divorce, alimony, and equal pay. However, Kenney’s qualified assertion that gen- der is “most often” used to devalue requires a nuanced examination in a plethora of matriarchal traditional African systems and customs replete with examples of gender constructs that accord women value and respect (Steady, 2011; Tamale, 2020; Tripp et al., 2009). Therefore, in the process of reimagining law and gen- der, more research is needed to understand the ways in which traditional notions of womanhood, often couched as “motherhood,” can be harnessed to inform legal practices and judicial decision-making. Focusing on gender as an integral part of the judging process, the chapters in this volume are guided by two interrelated questions: To what extent does gender matter in the construction of law? and What role does gender play in judicial interpreta- tion of the law? The first question broadly explores questions regarding how laws (such as constitutions and treaties) are crafted and whether their crafters consider the gendered aspects of social expectations and the attendant legal and judicial outcomes for women. The second question examines the extent to which the courts have applied a gendered lens in their interpretative role when deciding cases. Empirical and normative assumptions regarding what the law is and what the law ought to be have traditionally been excluded from theorizing on how law func- tions (Kenney, 2013). Therefore, it is imperative for any discussion on the con- nections between law and gender to acknowledge the role of gender constructs in the making of laws by legislatures, interpretation of the laws by the courts, and enforcement of such laws by the executive. Judicial outcomes require a nuanced approach that examines not only the existence of laws but also their effect on promoting rights. The chapters in this book engage with these nuances from dif- ferent perspectives and with a focus on the relationship between laws and judicial outcomes for women. Setting the context: Gender and judging The nexus between gender and judicial outcomes (judging) has been explored by many studies, conducted largely in the global north. For ease of classification, I focus on three broad categories emerging out of this rich body of scholarship. First is the category of gender and judicial diversity—which has tended to focus on the question of “why not women?” Led primarily by socio-legal scholars, the analyses were driven by the noticeably paltry number of women acting as judges (Malleson, 2006). These studies centered on the issue of symbolic representation, 4  J. Jarpa Dawuni often advocating for the appointment of women to the bench as emblematic of democratic values of equality, institutional legitimacy, and representation. Thus, although representation was the driving force behind the initial questions, the discussion was not so much about women’s value-addition to justice but rather, about the right of women to serve as judges. Subsequent studies expanded the issue of judicial diversity beyond symbolic representation of women to include how women judges substantively represent the needs of women. This category of studies focused on gender and difference. Drawing largely from sociologist Carol Gilligan’s (1982) work on the “ethic of care,” these studies sought to “justify” the demands for diversity on the bench by advocating the “difference” women judges bring to judicial decision-making processes (Boyd et al., 2010; Coontz, 2000; Cowan, 2013; Kenney, 2013; Miller & Maier, 2008; Wilson, 1990). The debate moved from a focus on symbolic representation grounded in equality of representation to addressing substantive representation of women’s issues on the bench. In other words, what do women do differently that justifies adding them to the bench? The authors of these stud- ies examined the gendered outcomes of judicial-making processes to determine whether women judged cases differently from men. The case studies ranged from gender-specific cases of marriage, divorce, and alimony to other issues less related to gender, such as criminal cases, immigration, and the environment (Coontz, 2000; Hunter, 2015; Songer & Crews-Meyer, 2000). Most of these studies were inconclusive: most of them found no discernable gendered pat- tern in decision-making and little or no evidence suggesting that women were genetically or socially predisposed to ruling in a certain way. It soon became apparent that arguing that women should be present on the bench because they would make a difference was a false start and a limited entry point for making the case for judicial diversity (Malleson, 2003; Rackley, 2013; Hunter, 2008, 2015). The third category of gender and judicial outcomes moved beyond women’s roles as judges to an expansive inclusion of male judges by disaggregating the fram- ing and understanding of gender in judicial decision-making (Boyd et al., 2010; Sherry, 1986). This category may be considered a more viable body of schol- arship in that it moves from the normative aspects of justifying “why” women ought to be on the bench to a more empirical and inclusive analysis of “what” the courts ought to do to advance the rights of minority groups (in this case, women). Within this category, most of the studies examined how, and whether, judges—both female and male—apply a gendered analysis (whether consciously or unconsciously) to the interpretation of law to determine the rights of women, men, and other genders (Albertyn & Bonthuys, 2016; Baines & Rubio-Marín, 2005; Cowan, 2013). The chapters in this volume touch on each of the three gender-related catego- ries: representation, difference, and judicial outcomes. However, it is within the third category of gender and judicial outcomes that this book is framed. By examining the centrality of gender as a social construct and unpacking how it affects judg- ing, this book adds to the emerging scholarship on gender and judging in Africa Introduction 5 pioneered by Gender and the Judiciary in Africa: From Obscurity to Parity (Bauer & Dawuni, 2016), the first edited volume on women in African judiciaries. Collectively, the chapters in this book touch on four central issues. First, the book recognizes that although laws are central to advancing gender-equitable outcomes, the role of courts (and judges) in interpreting and breathing life into gender equity requires an understanding of how gender constructs affect law- making and judicial interpretation processes. Second, gender-equitable judicial outcomes and achieving gender equality should be the duty of all judges—both men and women—as is seen in the cases on maternal mortality in Uganda, mat- rimonial cases in Ghana, and land issues in Kenya, where male judges were pro- women in their rulings. Third, it underscores the need for judicial training on gender to be a centralized component of legal education curriculum generally and should specifically be embedded as a core aspect of continuous judicial training for judges, with appropriate monitoring and evaluation. Fourth, African judiciar- ies need to stay ahead of the curve in providing access to justice, especially for women, during times of crises. The current COVID-19 global pandemic has dem- onstrated how fragile judiciaries remain in Africa and the impact of such fragility on further restricting women’s access to justice through the courts. Progress, process, and prospects for gender-equitable judicial outcomes The chapters in this book are guided by three main questions. First, what progress has been made in crafting gender-inclusive laws? Second, what role does gender play in judicial interpretation processes? Third, what are the prospects for cen- tralizing gender as an integral part of judicial decision-making and appointment processes? In principle, the aspiration that constitutions will promote gender equality has been enthusiastically received by women and gender rights activists. However, the record shows mixed outcomes on how the courts have interpreted the constitutional rules on equality to promote gender equity. On the one hand is the question of whether constitutions have gone far enough in making gender- specific judicial provisions for issues affecting women and other minorities. On the other hand is the question of what judiciaries are doing to sensitize judicial officers to the role of gender as a social construct in existing laws and in the interpretation of such laws. In the ensuing section, I discuss the four key themes running through the book: legal instruments as progress toward achieving gender equality; judicial interpretation as a process for achieving gender equality; judicial training as a prospect for gender equality; and judicial appointments and gender diversity as progress, process, and prospect for gender-equitable outcomes. Legal instruments as progress toward gender equity The third wave of democratization, which began in the 1990s, saw countries across Africa adopting new constitutions that granted varying levels of freedoms and rights (Ferejohn & Pasquino, 2003). Legal scholars have long debated the 6  J. Jarpa Dawuni role of law in achieving equity, justice, and order in societies. Law has tradition- ally been assumed to embody norms grounded in neutrality, impartiality, and rationality (Murphy, 1991). If these assumptions are taken to be true, then there is an expectation that these principles would lead courts to accord women the same rights as men. By examining three legal instruments—constitutions, leg- islative acts, and treaties—this section analyzes the potential and challenges of using these legal instruments to achieve gender equity. Whereas domestic and international legal instruments have provisions seeking to protect and safeguard against gender-based discrimination, the analyses in these chapters demonstrate that the progress made through the enactment of laws is only the first step toward achieving gender equality. As part of its post-apartheid democratic aspirations, South Africa embarked on an ambitious project of judicial transformation. The Constitution of South Africa (1996) has been hailed globally as a progressive constitution with pro- visions for achieving equality and justice for all. As in all other constitution- making projects, at the center of the constitutional debates in South Africa were questions about how to achieve diversity and equality across all aspects of South African institutions and practices. Achieving diversity and equality was a mecha- nism to correct the past injustices inflicted by racial oppression in the country (Klug, 2010). Although racial equity was a primary focus, women’s rights groups made a strong case for including gender diversity in the Bill of Rights as a fundamen- tal tool for achieving diversity and equality (Albertyn, 2009; Andrews, 2001). Despite the inclusion of constitutional provisions in efforts to transform the judi- ciary, including the establishment of the Judicial Service Commission (JSC) in Section 178, the pace at which women have been appointed to the judiciary has been much slower than anticipated. The path for black women and other women of color has been particularly narrow (Masengu, 2016). In Kenya, Article 27 of the 2010 Constitution of Kenya (Kenya Constitution, 2010) aims to correct past discrimination against minority groups. Of interest to this discussion is Article 27 (6), which obligates the state to use affirmative action policies to correct past wrongs. Additionally, Article 27 (8) provides that no more than two-thirds of one sex shall hold any particular public office, a pro- vision commonly referred to as the two-thirds rule for gender equality (Aura- Odhiambo, 2018). Some progress has been made in the Kenyan judiciary, with a narrowing of the gap between women and men; but much remains to be done to create a gender-inclusive institutional culture that accepts women as equal to men in the context of judicial leadership (Dawuni, 2020). The Constitution of Ghana (1992) does not have a specific provision on affirmative action for gender equality to correct past gender-discriminatory prac- tices. The rights of women can be inferred broadly from Chapter 5 of the consti- tution, which guarantees human rights generally. Article 17 (2) states: “A person shall not be discriminated against on grounds of gender, race, colour, ethnic ori- gin, religion, creed or social or economic status.” Another general provision on nondiscrimination based on sex is Article 35 (6)(b), which obligates the state to Introduction 7 “respond appropriately to achieve reasonable gender balance in the recruitment and appointment to public offices,” and a third is Article 27 (3), which guaran- tees women “equal rights to training and promotion without any impediments from any person.” The Directive Principles of State in Chapter 6 of the constitu- tion shift the obligation to the legislature and other organs of government to pass laws and policies that promote gender equality. The Directive Principles of State provided the grounds for the advocacy and eventual passage of the Domestic Violence Act (Act 732) of 2007. These principles have also been used by wom- en’s groups to advocate for the Affirmative Action Bill, which was stalled in parliament for several years (Skinner, 2020; Tsikata, 2009). Constitutions are often the supreme law of the land, safeguarding, among other things, the principles of fairness, equality, justice, and representation. Evidence from judicial interpretation often shows the contrary, lending support to the argument that constitutions without constitutionalism are an empty promise of the law (Fombad, 2014; Ndulo, 2001; Prempeh, 2007). Consequently, constitu- tions depend on courts to set the wheels of justice rolling. As the fundamental law of the land, constitutions can either promote or impede the rights of women and other minority groups. Further, constitutions can provide radical shifts for gender-equitable opportunities through gender-sensitive constitution-making processes, a point discussed later in the chapter. As research examining the role of women in constitution-making has shown, constitutions have the potential to reproduce and create new gender inequities when gender-responsive actors, women, and gender-neutral processes are not central to the constitution-making processes (Maingi, 2011; Tripp, 2016). The prospect for the constitutional realization of gender-equitable outcomes is closely linked to gender-inclusive constitution-making. The United Nations Women Global Gender Equality Constitution Database provides a comprehensive over- view of countries whose constitutions contain provisions on women’s equality and for the protection of women’s rights (UN Women, 2016). These “women- responsive” constitutional provisions are closely linked to the active participation of women’s groups in constitution-making processes (Andrews, 2001; Cassola et al., 2014; Ezeifeka & Osakwe, 2013; Jagwanth & Murray, 2005). From a legislative perspective, acts of parliament are generally binding sources of law. Parliaments can pass laws to address loopholes in existing laws or create new ones where no law exists on a subject matter. Globally, more than 140 countries have passed some form of law related to domestic and gender-based violence (Htun & Weldon, 2012; Klugman, 2017). Yet, available data indicate that across the globe, domestic violence cases continue to rise (Tavares & Wodon, 2018). In many countries where domestic violence and sexual harassment laws have been passed, Richards and Haglund (2015) find, an effective enforcement mechanism is crucial to ensuring that the rights are protected. The chapter in this volume by Addadzi-Koom on revenge pornography in Ghana demonstrates the current shortcomings of using the Domestic Violence Act 2007 (732) to protect women victims of technology-induced violence. In the Nigerian context, Obani’s chapter shows how the Same Sex Marriage Prohibition Act 2014 is used 8  J. Jarpa Dawuni to effectively deny sexual minority rights. As I write this chapter, the novel coro- navirus pandemic is still raging across the world, and the continent of Africa has not been spared from the rise in domestic violence cases (Mlambo-Ngcuka, n.d.). Tibatemwa-Ekirikubinza’s chapter on sexual violence in Uganda and Ndulo’s comparative study of judiciaries during the global pandemic collectively demon- strate the inadequacy of laws to protect women before and during times of crisis. Operating within the African regional context, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003 (the Maputo Protocol) is hailed as a regional legal instrument critical to ground- ing the equality of women across Africa. To date, it remains the most compre- hensive body of law at the African regional level led by women, and for women, in addressing women’s issues across a broad spectrum of rights and freedoms. Across Africa, women have demanded their right to participate in the lawmak- ing processes—in national constituent assemblies or in treaty-making processes (Eziefeka, 2013; Mutua, 2006; Tripp, 2016). Advocacy by women’s organizations in the mid-1990s for women’s inclusion in constitution-making processes demon- strated unequivocally that when given the chance to participate, women gener- ate and support gender-responsive constitutions (Bond, 2008). Women’s groups have made demands for women-inclusive provisions and in some cases have radi- cally rejected less optimal outcomes (Maingi, 2011; Tripp, 2016). As the chap- ter by Ojigho on two regional courts demonstrates, regional treaties on women’s rights require gender-sensitive judicial interpretation if they are to move beyond their mere existence. Alapini-Gansou’s chapter on the African Commission on Human and Peoples’ Rights provides a potent analysis of women commission- ers’ roles in capitalizing on available legal instruments to advance human rights generally. These three categories of legal instruments—constitutions, acts of parlia- ment, and international treaties—provide glimpses into the progress made in passing laws that address gender inequities at the national and regional levels. Notwithstanding these developments, this chapter offers three conditions for their effectiveness. In the first place, these three legal instruments collectively highlight the need to center the experiences and voices of all minority groups in the lawmaking processes. These voices should be allowed not only to be pre- sent but also to be heard. As the United Nations Security Council Resolution on Women, Peace and Security, Resolution 1325 (2000), has shown, women must be included as active agents in finding solutions to peace and security. Furthermore, involving women in the lawmaking processes should not be mere window dressing, as we have seen in the context of the domestic violence laws passed by African countries. These laws must be backed by strong enforcement mechanisms through budgetary allocation and the training of judicial and police staff. Finally, laws passed in the international and African regional contexts should be used by courts in judicial decision-making processes. Judicial use of treaty instruments requires the implementation of active and ongoing judicial training mechanisms to ground international and regional laws in domestic legal and judicial practices. Introduction 9 Studies conducted in Argentina, Chile, South Africa, and Botswana strongly suggest that gender-specific provisions in constitutions provide women’s advo- cacy groups with stronger entry points for demanding women’s rights (Lambert & Scribner, 2018). Through gender-responsive constitutional transformation, some countries, such as South Africa, Rwanda, Kenya, and Uganda, have lifted the veil of gender neutrality and gender blindness by inserting specific provisions in their constitutions that support gender equality, yet the full realization of these provi- sions is yet to be seen (Kabira, 2012; Mutua, 2006). Judicial interpretation as a process for gender equity Central to the aspirations driving the discourse and support for democratic change is the hope that constitutional transformation will lead to substantive equality for all citizens. Although these liberal constitutional aspirations may sound idealistic to some, they nonetheless provide the guarantees and safeguards for citizens to advocate for equitable opportunities for all (Abbiate et al., 2018; Mbondenyi & Ojienda, 2013). The drafting of constitutions, legislative instru- ments, and international treaties is not an automatic guarantee of women’s rights. The inherent continuity of the lawmaking process holds a legacy in common law countries, where judges have a bigger role in lawmaking through their setting of precedents that are binding on lower courts. However, which cases will make it to the highest courts probably depends on the prioritization of the appeal process by the higher or superior courts; the salience for the public of the issues at stake; and the existence of strong pressure groups, such as civil society. In Benin, Kang and Wing (2021) find that more civil and political issues and fewer economic and social issues affecting women make it to the Constitutional Court. Judicial interpretation of existing laws can lead to progressivity in gendered realities via decisions that advance women and the rights of gender minorities—or it could lead to a regression or stagnation of women and gender rights. I conceptualize this dichotomy as old wine in new skins versus new wine in old skins. A case of old wine in new skins or new wine in old skins? Constitutional transformations are of no use if the old methods of judicial func- tion and judicial interpretation have not changed to fit the letter and the spirit of new circumstances and aspirations for democratic equality. In this analogy, constitutional changes and transformations are the new skins—promising, among other things, equality, fairness, and justice. As alluded to earlier, where constitution-making processes fail to involve women as contributors or listen to the concerns of gender minority groups, it can lead to a case of old wine—the reproduction of existing gender inequities. The old wine scenario arises through carrying over archaic, hegemonic imperialistic colonial rules or laws and discrim- inatory cultural practices that are often presented as principles of customary law and advanced as cultural relativist arguments to protect the “cultures” of non- Western societies (Bond, 2008; Obiora, 1997). 10  J. Jarpa Dawuni The South African Constitution of 1996 and the Kenyan Constitution of 2010 have been heralded as progressive constitutions with provisions for achiev- ing gender-equitable outcomes (Andrews, 2001; Kabira, 2012). At the regional level, the Maputo Protocol is significantly symbolic as a progressive instrument for women’s empowerment at the continental level. To what extent have these laws moved the scales of justice toward gender-equitable judicial outcomes? Pouring new wine (new constitutions) into old wineskins—in this case, stagnant judicial interpretation processes—does not provide optimal outcomes for achiev- ing the spirit of constitutional gender equality. The paradox of constitutions without constitutionalism is highlighted in several chapters in this book. Baraza on Kenya and Mensa-Bonsu and Mensa-Bonsu on Ghana, respectively, examine a litany of cases on women’s rights and find instances where the courts failed to pronounce on women’s constitutional rights. In the context of Nigeria, Obani characterizes the persistent violation of sexual minority rights as a blatant viola- tion of the Nigerian constitution. And Kyobiika shows how judges in Uganda are beginning to acknowledge maternal and infant mortality as a constitutional issue. A systematic review of how judiciaries are using laws to decide gender-based cases is important in ascertaining the progress being made or the lack thereof. The litany of constitutional cases discussed by the various chapters in this book is by no means exhaustive of all the constitutional cases across the continent or even in one country. The cases in this book present mixed outcomes. The chapters on Kenya and Uganda highlight progressive developments in advancing women’s rights in land and in health, respectively. On the other hand, in both Kenya and Ghana, we witness the current failure of the courts to pronounce on important emerging issues such as technology-enabled gender-based violence. To push the issue onto the judicial agenda, Addadzi-Koom in this volume challenges the courts in Ghana to recognize revenge pornography as a form of gender-based violence, often perpetrated against women, with debilitating effects, including the loss of life. As the chapters in this book demonstrate, reversing the stagnation of old wine in new skins places an obligation on judiciaries to hear and pronounce on emerging gender-related cases, such as those involving social media–induced violence in Kenya and Ghana. Ironically, the substance of these cases is by no means new; these forms of violence have always been perpetrated against women. What may be new and therefore justifies their being classified as “emerging” is the increased frequency of their occurrence as they become more violent and widespread. If gender is to be centered in judicial interpretation, judges—both men and women—must be sensitized to the gendered dimensions of the cases they adjudicate. I turn to the issue of judicial training, presented as a prospect for achieving gender-equitable judging. Judicial training as a prospect for gender equity How do socially constructed gender norms influence the law? To what extent does the social conditioning of judges affect judicial interpretation processes? Introduction 11 Existing studies suggest that these and many other questions surrounding gender as a social construct and an ordering principle in law appear not to have been prioritized by judiciaries across Africa (Bauer & Dawuni, 2016). Judicial training is necessary to keep judicial officers abreast of new laws and procedural rules. In most instances, judges receive their first judicial train- ing when they are inducted into the judiciary. These trainings are often carried out by Judicial Training Institutes (JTIs) or via on-the-bench training through attachment to other judges (Goldbach, 2016). Judicial training may be offered as part of continuous judicial training by the judiciary or through individual activi- ties and initiatives such as conference participation and acceptance of invitations to dialogues and seminars (Oxner, 2001). The World Bank has incorporated judi- cial training as part of the broader goal of justice sector reform (Laver, 2012). Judicial training programs have also been carried out by international organiza- tions, such as the United Nations Office on Drugs and Crime (UNODC) Global Judicial Integrity Network (GJIN). The GJIN provides training to supplement or complement what is offered at the national levels. Additional judicial training programs involving African judiciaries are implemented through collaborative site visits to the U.S. Federal Judicial Center, The Hague in the Netherlands, and other countries in the global north. The Judicial Institute for Africa (JIFA), based at the University of Cape Town, South Africa, is one of the few regional hubs that cut across national jurisdictions, even though most of the work is car- ried out in the Southern Africa region. With a plethora of issues to be covered during judicial training programs, judiciaries across the globe are becoming aware of the need for gender-sensitive judicial training; but this awakening has not come without its own challenges (Schafran, 2001). In Germany, Schultz (2013, p. 597) observes that “deficits in the initial legal education than in further train- ing” are to blame for the difficulty in infusing gender into the judicial decision- making process. In the Philippines, Miwa (2013) credits the relative success of gender-sensi- tive training to judicial leadership and to extra mechanisms such as the Gender Justice Award for judges who produce gender-sensitive decisions and demonstrate gender sensitivity to women litigants. Minamino’s (2014) study of employment discrimination cases in Japan elucidates how systematic gender bias is reproduced in judicial decision-making when judges follow social mores that position men as the “male breadwinners” in the family. Minamino (2014) notes that democratic principles of openness and transparency in judicial decision-making processes can be fulfilled if judicial education programs and training opportunities chal- lenge the gendered aspects of the law. Judicial training efforts across Africa have been anchored within the larger democratic development discourse on the need for judicial reform as a precursor to promoting democratic values and development. Driven by the law and devel- opment discourse that emerged in the late 1980s, the push for judicial reforms has been spearheaded by development agencies, multilateral financial organiza- tions such as the World Bank, and philanthropic organizations such as the Ford Foundation (Trubeck, 2006). These externally funded and often externally led 12  J. Jarpa Dawuni trainings tended to focus on strengthening judiciaries to promote liberal demo- cratic values and were largely driven by capitalist norms of trade liberalization (World Bank, 2012). Feminist critiques of development policies nestled within the Women and Development (WAD) and Gender and Development (GAD) discourses provide better insights into how gender and women’s issues had tradi- tionally not been prioritized in these law and development and judicial transfor- mational processes (Nyamu-Musembi, 2006). To be effective, judicial training must be localized and practical. Judicial train- ing requires resources, but judicial leaders across Africa are saddled with meager budgets; for that reason, deciding what topics to prioritize in judicial training becomes an issue. In addition, the problem of resource allocation means that judiciaries are susceptible to external pressures and influence by funding agen- cies, meaning that those agencies often determine what topics should be covered (Trubeck, 2006). As the chapters by Masabo on Tanzania and Rukuba-Ngaiza on Uganda and Kenya, respectively, show, gender has not been prioritized in judicial training programs. The idea that the law is rational and that judges will remain neutral, unbiased, and impartial may partly explain the continuity of a blind gaze on the role of gender constructs in decision-making processes. Correcting the “gender- blind gaze” requires an investigation into how judicial training can be made gen- der responsive. Masabo’s outline of the history of judicial education and judicial training in Tanzania shows a longstanding absence of gender concerns in all judi- cial training programs. Masabo argues that although gender can be introduced as a stand-alone course in training programs, the gendered aspects of judicial decision-making should be incorporated into all other judicial training topics. As Masabo notes in her chapter, the failure of judiciaries to provide gender sensitization training to judges has not been lost on women judges’ associations, because it has reproduced the “double care burden” of women’s issues on women judges—a situation where women must do the double work of care at home and at work. The Tanzania Women Judges Association has taken on an extra burden of care work by providing gender-sensitive training to members of the judiciary and the public. Other studies confirm the double burden of care; for instance, in Ghana, the women judges’ association has provided gender sensitization training to members of the judiciary and has raised awareness of women’s rights among members of society (Dawuni, 2016). To foreground the understanding of gen- der issues and to lessen the burden placed on women judges in leading the fight for gender equality, Masabo advocates for making courses on gender mandatory in the law school curriculum rather than mere electives. Using the examples of Kenya and Uganda, Rukuba-Ngaiza demonstrates how judicial training on gender-related issues has not been provided by the judiciary, partly because of budgetary constraints but also a result of low prioritization. She argues that inclu- sion of gender training in the performance contracts of judicial officers is impera- tive and robust evaluation of the limited gender training and the effectiveness of the JTIs is necessary to justify a continuous investment in both. Nevertheless, through the chapters on Tanzania, Uganda, and Kenya, we do find that judges Introduction 13 who received gender-sensitive training testified to the impact of that training on their later rendering of gender-sensitive decisions. Training of judges regarding unconscious gender bias will help to illuminate the gender-blind spots in judicial decision-making. The absence of judicial train- ing on the impact of gender bias will invariably reproduce existing gender inequi- ties in society. As Ojigho potently argues, in the Economic Community of West African States (ECOWAS) and African Court scenarios, of the few cases that were decided in favor of women, the judges did not focus on gender as a defining feature of the reliefs sought. Rather, the decisions were located within the larger human rights framework. Although the decisions need to be commended, the fact that the courts are failing to prioritize gender as a determinative factor in the biases and discrimination women suffer in society requires urgent attention. For the sake of reversing the gender gaze, I argue for the necessity of shifting the duty of understanding gender as the burden of “women” judges to understanding it as a (hu)man-made problem requiring sensitivity on the part of both female and male judges. Consequently, dismantling the masculinist practices, beliefs, and privileges that contributed to producing these inequitable gender constructs should equally be the responsibility of men. A key strategy for alleviating the problem requires intentionality in adhering to gender-focused judicial training that aims to decon- struct inequitable gender norms through the lawmaking and judicial interpreta- tion processes. To borrow from Audre Lorde (1984), the “master’s tools will not dismantle the master’s house.” In the analogy as used here, the master’s house refers to the existing gender inequities in law, and the master’s tools represent the usual judicial training programs that do not incorporate gender sensitivity. These chapters insist that gender-sensitive judicial training must become the new tools for gender-conscious judicial interpretation. Thus, gender sensitivity training can be the sledgehammer used to break down the master’s house. Gender-sensitive judicial training increases the prospects for gender-equitable judicial outcomes. However, gender-sensitive judicial training is not a sufficient condition; nor can it singularly ordain gender-responsive and progressive out- comes. Other intervening factors are at play, including the level of executive interference in judiciaries, along with the presence of an active civil society and media creating awareness of gender cases that come to the judiciary. Additionally, an active public interest litigation bar that brings gender cases to court and an engaged public that scrutinizes and reacts to judicial decisions are key players. Discerning the impact of these factors requires further research. To draw the curtain on this discussion, I postulate that judicial training is one tool that is largely within the control of national judiciaries, which gives them enormous leeway in deciding what trainings are offered to judges. Gender- awareness training can illuminate gender gaps in the law, which could in turn lead to gender-responsive judicial outcomes. This trajectory is by no means lin- ear, as externalities such as a judge’s predisposition to change can alter the course of the linear projection presented. Nevertheless, providing gender-inclusive judi- cial training is still a good way to start. 14  J. Jarpa Dawuni Gender diversity as progress, process and prospect In this section, I briefly discuss the importance of gender parity and gender diversity as necessary conditions for inclusive and progressive judging. Across Africa, a body of scholarship on women in African judiciaries is emerging (Bauer & Dawuni, 2016; Cowan, 2013; Kamau, 2013; Klibi, 2016; Masengu, 2016). Notwithstanding the progress made in some countries, the process for appointing women and their promotion to higher courts remains contested in some jurisdic- tions, including Egypt, Algeria, Namibia, and Sudan. Even in countries where women have made gains as judges, as Masengu’s chapter brings home, the reality is that lingering societal perceptions of gender bias have led to perceptions of women judges as being illegitimate occupiers of the bench. Considering the emergence of the postcolonial state in the mid- to late 1950s, available studies suggest that across the continent, women judges have made tremendous progress at domestic (Bauer & Dawuni, 2016) and international courts (Dawuni & Kuenyehia, 2018). In addition to their progression in judicial appointments, women judges have made commendable gains as leaders of judi- ciaries across both civil and common law countries (Dawuni & Kang, 2015). In tracing women’s access to the bench in Nigeria, Uzebu-Imarhiagbe concludes that the history of women in the legal profession is not a history of exclusion but of reception and advancement. In the admission and appointment of women lawyers into the bar and the bench, there was no deliberate consensus or policy by government to achieve gender integration. The driving force was need, the need for qualified legal practitioners. (Uzebu-Imarhiagbe, 2020, p. 11) In a few countries, such as Egypt, women continue to fight for their right to be judges (Hamad, 2016). In Uganda, although women represent more than 40% of the judiciary, access to the highest judicial office as Chief Justice has yet to be realized, with women going only as far as occupying the deputy Chief Justice position (Dawuni, 2020). Despite the progress women have made in becoming judges, women judges are not immune to gender-based discrimination during judicial appointment commission hearings, as the chapters by Andrews and Masengu show. Andrews provides evidence showing how in South Africa the intersectional nature of historical racial discrimination against blacks and “colored” people, and of gender discrimination against women, is slowing the opportunities for black women to be appointed as judges. Similarly, Masengu’s chapter sounds the alarm on the unfounded perceptions of illegitimacy women judges in Zambia continue to face. Media representations of women judges during appointment processes tend to reinforce the percep- tion that women are “outsiders” coming to the bench, a perception that leads to harsher lines of questioning by appointing bodies (Escobar-Lemmon et al., 2016). Introduction 15 Masengu’s chapter is by no means invoking “the difference women make” argument for women’s appointment to the bench, as doing so would lead us down the slippery road of essentialism—the idea that all women are the same and will make a difference for all women (Kenney, 2013). Evidence from Constitutional Court decisions has shown that women judges on constitutional courts have effec- tively adjudicated cases that advance the rights of both women and men (Baines & Rubio-Marín, 2005). The chapter by Andrews shows that despite being few, women judges on the Constitutional Court of South Africa have delivered some progressive judgements on women’s rights issues. Diversity in the composition of the bench matters for promoting democratic principles of equality, representation, and inclusion. Zambia and Zimbabwe have achieved gender parity, with more than 50% representation of women within all levels of the judiciary. Yet, other Southern African states are strug- gling, including Namibia, which, at the time of this writing, has no woman on the Supreme Court. These examples, though relatively few when compared across all 54 states, do signal that we cannot yet conclude that sex diversity does not matter. More studies are needed to understand the changing dynam- ics in different countries and the struggles women face in judicial appointment processes. Although progress has been made in diversifying the sex composition of some benches, the process of making judicial appointments should be closely and constantly monitored. Women judges have made valuable contributions to the bench through jurisprudence, socialization of male colleagues on gender-related matters, and challenges to enshrined male institutional structures (Dawuni, 2016). Gender diversity on the bench signals progress toward gender equity in representation. Women and men should have equal access and opportunity to be judges and to adjudicate cases; because when they do, understanding of the pro- cess of using gender as an ordering principle in judicial appointments increases, as do the prospects for gender-responsive judging. Contributions of the book The selected essays in this book make important contributions to theory, prac- tice, and policy by broadening our understanding of the nexus between gender and judging within the African context. Additionally, the findings are relevant for policymakers interested in understanding how laws affect women’s rights and women’s access to justice through the judiciary. These policy implications are instrumental in expanding the Women in Law and Business project of the World Bank by moving the discussion beyond examining the existence of laws to tak- ing a closer look, by measuring judicial outcomes, at what these laws mean for women. Additionally, the contributions in this volume provide important entry points for the operation of the World Bank and other development agencies by highlighting the need to reform the justice sector and to prioritize institutional reforms that are gender inclusive. These changes can be implemented through 16  J. Jarpa Dawuni programs aimed at promoting gender-inclusive lawmaking and gender-inclusive judicial training. Taken individually and collectively, the chapters in this book cover several important debates by providing contextualized analyses within specific coun- tries. First is the lingering question of what happens to women’s rights after the promulgation of constitutions. Second, how are courts handling emerging gender issues such as the use of social media to inflict gender violence? Third, some chapters focus on the need to develop an expansive judicial interpretation that allows inclusivity in the definition of “gender” to protect non-gender binaries. Fourth, the trans-nationalization of gender beyond domestic courts is evident in the chapters on the African Commission and the ECOWAS Court, where we witness the roles women play in justice delivery, and how gender is constructed in judicial decisions, respectively. Fifth, two chapters—Tanzania, and Kenya and Uganda—underscore the importance of putting gender on the agenda of judicial training. Sixth, the chapters on Zambia and South Africa highlight the contin- ued significance of promoting gender diversity in judicial appointments. Seventh, the chapters on the COVID-19 pandemic drive home the need for courts to be well equipped to deal with cases of violence against women, both during times of peace and more so during times of crises. Organization of the book The chapters in this book bring together socio-legal academic scholars, mem- bers of the judiciary, human rights defenders, and development policy analysts to examine a broad range of issues on gender and judging. All the chapters are grounded in different theoretical and methodology frameworks. Some are writ- ten from a highly academic perspective, and others are more policy oriented. Woven through each narrative are policy, judicial, and legal recommendations. Together, these chapters provide specific case studies from which patterns emerge for further exploration and for extrapolation to appropriate contexts. Although these case studies may not be, and do not claim to be, generalizable across the continent, this book is the first volume to provide a selection of comprehensive studies on gender and judging within the African context—and that is a signifi- cant contribution. The 14 chapters in this volume have opened new frontiers for research on gender and judging across Africa. By emphasizing how gender as an ordering principle affects judicial interpretation processes within domestic and regional courts, this book has broadened the discussion on gender and the judiciary beyond a narrow focus on the symbolic representation of women as judges in African judiciaries. In examining judicial decision-making processes and out- comes, the chapters have queried the centering or decentering of gender in court cases, judicial training, and judicial appointments. Through the case analyses, we see both what happens when judges fail to recognize gender as an order- ing principle in judicial decision-making processes and the critical role judicial training plays in making judges gender aware. The book is organized into four Introduction 17 interrelated categories. These categories are not mutually exclusive but cover themes that run concurrently across some chapters. The case studies in this book do not promise to exhaust the plethora of gender-related issues across the continent. Neither do they provide definitive answers to the complex questions concerning gender and judging. Instead, the book makes an important contri- bution to our understanding of gender and judging by highlighting the loop- back mechanism between the process of lawmaking as a necessary condition for gender-sensitive judicial decision-making, the essential elements for achieving progress in judicial interpretation of gender-sensitive cases, and the prospects for achieving gender equity by centering gender in judicial training of judges and promoting gender diversity on the bench. This book breaks new ground as the first volume to examine the nexus between gender and judging from African perspectives. The individual chapters presented will no doubt open new research avenues and generate more research questions about gender and judging across Africa. 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Osgoode Hall Law Journal, 28(3), 507–522. https​:/​/di​​gital​​commo​​ns​.os​​goode​​.york​​u​.ca/​​ohlj/​​vo​l28​​/iss3​/1 World Bank. (2012). Initiatives in justice reform 1992–2012. Justice Reform Practice Group. http:​/​/doc​​ument​​s1​.wo​​rldba​​nk​.or​​g​/cur​​ated/​​en​/57​​58114​​68175​​15411​​3​/pdf​​/7072​​ 90WP0​​Full0​​00Box​​37005​​0B00P​​​UBLIC​​0​.pdf​​ Part I Women and gender-related jurisprudence in the courts   2 An analysis of gender equality jurisprudence by Kenyan courts since the enactment of the 2010 constitution Nancy Baraza, PhD Introduction Since independence, gender inequality due to patriarchy were the norm in Kenya. Generally, society was characterized by a discriminatory social system coupled with negative stereotypes against women (Nzomo, 2018, p.54). Kenyan courts sustained these social norms by failing to protect the human rights of women (Kameri-Mbote, 2018, p.23). Women suffered unmitigated discrimina- tion, especially in matters of inheritance, land ownership, marriage, and shar- ing of matrimonial property, among other areas. This exposed the majority of them to poverty (McCullough et al., 2016, p.4). Discrimination against women was caused partly by the normative deficiencies of the then Constitution and a lack of judicial will and know-how on the part of judges to interpret the law to favor promotion of human rights, especially those of women. Nzomo rightly notes that the independence Constitution provided for and legitimized patriarchy and discrimination against women in issues of matrimonial property ownership, and devolution of property on the death of a spouse, by allowing customary law to apply to the detriment of the female gender (Nzomo, 1991, p.3). The economic impact of discrimination against women with regard to prop- erty ownership in Kenya has persisted to date. A 2016 Gender and Poverty Assessment by the World Bank (World Bank, 2018), for instance, found that currently, Kenyan women are less likely than men to own land or housing prop- erty. Only 12% of women between the ages of 20 and 49 reported any individual ownership of land, compared with 39% of men. In the realm of housing, men are 32% more likely to have sole ownership. The implications of women’s marginali- zation in property and land ownership cannot, therefore, be overstated. Research carried out by the World Bank has shown that insecure land tenure can lead to economic inefficiency, especially for women, who have in some countries in Africa been shown to under-invest in their land, which can lead to them realizing substantially lower agricultural yields. This is true of Kenyan women, who are condemned to poverty due to precarious land ownership and access. The Constitution of Kenya 2010 (hereinafter referred to as the Constitution), however, seeks to change this paradigm. Normatively, the constitution contains far-reaching commitments to a wide range of rights and an ambitious vision of social equity and has the potential to address historical injustices and grievances DOI: 10.4324/9780429327865-3 26  Nancy Baraza suffered by women (Baraza, 2018a, p.75). It provides for national values and principles of governance that bind all state organs and state officers, including the courts and judicial officers (Fitzgerald, 2010, p.62). These values and princi- ples include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized. State organs are enjoined by the constitution to take all these values into account whenever they interpret or apply the Constitution (Fitzgerald, 2010, p.3). Further, the Constitution requires the judiciary to promote the gender equality principle and fairness through transformative judicial decision-making (Baraza, 2018a, p.76). Article 259 specifically lays down the rule of judicial interpretation as follows: This Constitution shall be interpreted in a manner that promotes its pur- poses, values, and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; permits the development of the law, and contributes to good governance. To buttress the Constitution, the Supreme Court of Kenya has reaffirmed the requirement under Article 259. In its Advisory Opinion No. 2 of 2011 (In the Matter of Interim Independent Electoral Commission [2011] eKLR), the Supreme Court ruled that the constitution, which is the supreme law of the country, calls for a transformative and purposive approach in their judicial decision-making. In a unanimous decision, the seven justices of the Supreme Court, Justices Willy Mutunga (Chief Justice), Nancy Baraza (Deputy Chief Justice), Jackton Ojwang, Smokin Wanjala, Philip Tunoi, Njoki Ndungu, and Mohammed Ibrahim affirmed the provisions of the constitution on interpretation, noting that it should be transformative. The Supreme Court confirmed that the Constitution requires the courts, in interpreting the Bill of Rights, to promote the values that underlie an open and democratic society, based on human dignity, equality, equity, and freedom, and the spirit, purport, and objects of the Bill of Rights, thus setting the pace for other courts to adopt transformative decision-making in interpreting the principles of the Constitution. Consequential legislation to the Constitution has also been enacted since 2010. This includes the Marriage Act, the Matrimonial Property Act, the Protection from Domestic Violence Act, and the Land Act, among others. Together with the constitution, these laws are crucial to addressing women’s marginalization. Since 2010, the courts have been making decisions in matters critical to gen- der equality and gender justice in line with the constitutional and the new laws (Kameri-Mbote & Muriungi, 2016, p.93). Opinions, however, vary on how well these recent court decisions uphold gender equality in areas that have perpetu- ated discrimination and gender inequality. There is scanty literature analyzing judicial decisions since 2010 to gauge the courts’ fidelity to the Constitution’s principles of gender equality. This chapter seeks to fill that gap. The chapter is organized in six parts. The first part gives an overview of the constitutional provisions relevant to gender equality. The second part discusses transformation as a theory and its relevance to the discussions at hand. The third Equality jurisprudence by Kenyan courts 27  part is an exploration of the courts’ decisions on marriage, inheritance, domestic violence, access to matrimonial property, and inheritance prior to the enactment of the 2010 constitution. The fourth part explores court decisions in similar areas since the promulgation of the Constitution in 2010. The fifth part discusses some possible threats to the transformative work by the judiciary. The sixth part gives a conclusion to the chapter. Gender equality in the Constitution The vision of social equity and gender justice enshrined in the Constitution marks a break from a past characterized by gender discrimination and inequality (Mutunga, 2015, p.5). Several articles of the constitution entrench gender equal- ity and the demands of social justice in areas of equal treatment with men, equita- ble access to land, recognition of equality of ownership of matrimonial property, protection from gender-based violence (GBV), inheritance and equality in mar- riage, and women’s equitable participation in elective and appointive positions in the country (Fitzgerald, 2010, p.3). Equality is listed as one of six essential values upon which governance should be based. These expressions of principle are given legal force in Article 10, which includes equity, social justice, equality, non-dis- crimination, and “protection of the marginalized” among the national values and principles of governance that are to be used in applying and interpreting the Constitution and other laws, and in making or implementing policy decisions. Of importance is Article 27 of the Constitution. The right to equality and non-discrimination as expressed in Article 27 of the Constitution represents a substantial improvement on the right as provided in Article 82 of the previ- ous constitution (Fitzgerald, 2010, p.3). The Article begins with a guarantee of equality before the law and equal protection and benefit of the law, a guarantee that was not present in the previous constitution. Moreover, equality is defined as including “full and equal enjoyment” of all rights and freedoms. These provi- sions provide important additional protection, which goes beyond the protec- tion from discrimination provided in Article 27 (4). Article 27 (4) prohibits discrimination on an extensive list of specified grounds: “race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.” The list grants substantially increased protection to women (Fitzgerald, 2010, p.3). Article 27 (6) creates a duty of affirmative action, a concept defined in Article 260, which obligates the State to take legislative and other measures, including but not limited to affirma- tive action programs and policies designed to redress any disadvantage suffered by individuals or groups as a result of past discrimination. Article 27 (8) requires the state to take measures to ensure that “not more than two-thirds of the mem- bers of elective or appointive bodies” are of the same gender. Separate provi- sions create reserved places for women in the National Assembly, Senate, and County Assemblies. These provisions should have a substantial positive effect on women’s representation and role in the decision-making process at all levels of government (Fitzgerald, 2010, p.4). 28  Nancy Baraza The Constitution in Article 2 (5) and (6) adopts international treaties ratified by Kenya before 2010. Notable among the conventions is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which calls upon States Parties to take all appropriate measures to eliminate discrimina- tion against women in the political and public life (Nzomo, 2016, p.45). Kameri- Mbote and Muriungi rightly argue that the 2010 Constitution heralded a new era, as it re-envisioned the governance charter by revamping fundamental rights and freedoms and providing for far-reaching institutional reforms. It expanded the purview of and made provision for affirmative action and social justice (Kameri-Mbote & Muriungi, 2016, p.93). Mutunga posits that the Constitution is a radical document, which looks to a future that is very different from the past in its values and practices. It seeks to make a fundamental change from colonial- ism and repressive post-colonial years of independence (Mutunga, 2015, p.5). He further states that Kenya has moved from a past characterized by much, which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analyzed and justified rationally. The idea of a constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law (Mutunga, 2015, p.5). In stark contrast to the independence Constitution, the 2010 Constitution sets up an institutional framework of checks and balances, including through strengthened judicial review, something for which women activists actively lob- bied (Baraza, 2018, p.3). In a nutshell, the Constitution potentially provides an enabling institutional architecture for the realization and protection of women’s rights and gender equality principles. Such was the extent of its reform in favor of gender equality that the 2010 constitution is known informally as “the women’s constitution” (Baraza, 2018, p.3). Additionally, the Constitution spells out how the judiciary is to interpret its robust Bill of Rights. Article 259 states that the Constitution shall be interpreted in a manner that promotes its purposes, values, and principles; advances the rule of law, and the human rights and fundamental freedoms; permits development of the law; and contributes to good governance (Mutunga, 2015, p.5). There is no doubt that the Constitution offers the courts an opportunity to break from the old way of judicial interpretation, which failed to consider soci- etal values as the basis for decision-making. The courts are expected to “liberate themselves from previously self-imposed restraints that undermined their position in the equilibrium of governmental power” (Mutunga, 2015, p.5). Such restraints included a legal culture in which judges and lawyers failed to relate their actions to the purposes of a Constitution in any functional democracy. Muigai notes that the Kenyan courts have previously adopted a positivist approach to judicial interpretation, which ignored constitutional values such as equality and social justice (Muigai, 2004, p.45). The realization of gender equality under the Constitution is a possibility but it requires innovative and transformative judicial decision-making by the judiciary. The framers of the 2010 Constitution were alive to feminist approaches to the Equality jurisprudence by Kenyan courts 29  interpretation of the Constitution when they entrenched a method of interpreta- tion in the constitution (Baraza, 2018a, p.75). The constitutional requirement for transformative judicialism seeks to diminish the difficulty that courts have previously faced by setting parameters for purposive interpretation. According to Baraza (2018a, p.76), this interpretive approach considers societal values and requires judges to be the guardians of the socio-political transformation project of the country. Difficulties in judicial interpretation require all provisions of the Constitution to be construed according to the doctrine of interpretation that the law is always speaking, thus avoiding doctrinal and textual capture (Mutunga, 2015, p.5). The argument in this chapter is that the Constitution’s normative provisions, coupled with the imperative of purposive interpretation placed on the judiciary, offer an excellent opportunity for the judiciary to move away from the past and uphold gender equality and the human dignity of all people. However, the chap- ter is also aware that the purposive role of the judiciary faces threats not just from itself but from parliament and executive arms of government, as will be discussed elsewhere in the chapter. The following section examines the meaning and theo- retical perspectives of transformation. Transformation The Cambridge dictionary, 1995 edition, defines transformation as “a complete change in the appearance or character of something or someone, especially so that that thing or person is improved.” This definition of the concept of transfor- mation is reflected in the design and spirit of the Kenyan Constitution, consider- ing the historical inequalities in Kenya and the intention of the constitutional purpose of shaping a new and different future that is anchored in social justice. Klare, who coined the term “transformative constitutionalism,” says that trans- formative constitutionalism means a long-term project of constitutional enact- ment, interpretation and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction (Klare, 2012, p.146). He further states that transformative constitutionalism is anchored by progressive jurisprudence from the judiciary and observance of the Constitution by other state organs, and indeed all Kenyans (Klare, 1998, p.152). In this view, achieving equality in the context of transformation requires an understanding by lawmakers, judges, and those in charge of institutions of society that equality forms the center of the constitutional vision and promise of transformation, as well as an understanding of equality as a value and equality as a right. Langa also argues that transformation is a social and an economic revolution, while. Albertyn and Goldblatt perceive transformation to be a movement from the one side of the bridge to the other, and this would have to be radical move- ment which requires a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge in 30  Nancy Baraza achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of oppor- tunities which allow people to realize their full human potential within positive social relationships (Langa, 2017, p.353). Transformative judicial interpretation is premised on the concept of transfor- mation. It draws from Ronald Dworkin’s theory of constructive interpretation, which posits a principle-based mode of interpretation (Zegrebelsky, 2001, p.621). Dworkin’s principle-based approach to interpretation considers societal values and principles as foundational to judicial decision-making. This approach faults the positivist approach, which considers interpretation as merely guided by rules, precedents, and procedures, and judges as mere mouthpieces of the legislature (Zegrebelsky, 2001, p.622). The positivist approach, however, remains common among judges and lawyers, especially in the common law systems, and dominated judicial thought among most Kenyan judges, especially before 2010. Dworkin’s approach leads to transformative constitutionalism, the very expectation of the constitution of Kenya. A transformative Constitution and its attendant trans- formative constitutionalism are both about a change from a status quo that is neither acceptable nor sustainable (Mutunga, 2015, p.5). The Constitution of Kenya is transformative and aims at changing the society to make it more egalitarian and alive to gender equality. Although the word “transformation” does not appear in the Constitution of Kenya, it has now been widely accepted that the Constitution aims at radically changing or transforming the political, social, cultural, and economic space in Kenya (Mutunga, 2015, p.5). Judicial decisions on gender issues in Kenya prior to 2010 Patriarchal decision-making in matters of succession arising out of a narrow judi- cial interpretation of the law by the courts was rampant in the judiciary prior to 2010. Property of a deceased patriarch customarily devolved to the male members of a household, principally the sons of the deceased (Kamau, 2015, p.4). Where a deceased person had no son, such property devolved to the deceased person’s brothers. It was assumed that girl children or women could not inherit, at least under customary law, on the basis that women never really belong to any clan, as they move from their clan of birth to their husband’s clan. Most customs only allow some inheritance to unmarried daughters and divorced women when they return to their parents’ home, but even in such instances, the inheritance given to such women is small compared with that of sons or men. These practices serve to entrench gender inequality further, as they peg what a person may inherit from their parents’ estate on their gender without referring to other relevant factors (Baraza, 2008, p.5). An examination of some cases demonstrates the skewed nature of judgments, mostly against women, prior to 2010. In the case of Mary Rono v Jane Rono & another, [2008] 1 KLR 803, for instance, the High Court awarded a lesser share of the deceased father’s estate to the girls and a bigger share to the brothers, agreeing Equality jurisprudence by Kenyan courts 31  with the brothers that the girls would get married elsewhere and get property from their husbands (Baraza, 2008, p.5). The sons had based their argument on tribal culture, which did not permit girls to inherit land from their father. Upon appeal, the Court of Appeal reversed the High Court decision, noting that the law of succession in Kenya did not discriminate against girls. Although the High Court decision was overturned by the Court of Appeal in Eldoret High Court Civil Appeal 66 OF 2002), [2005] eKLR, the case reflected the common judicial attitude at the time. Regarding division of matrimonial property, until 2013, when the Matrimonial Property Act was enacted, Kenya relied on an old 1882 piece of legislation—the Married Women Property Act (MWPA) of England—to find relief for women seeking a share of matrimonial property. The Act laid the ground for a considera- tion of women as legally distinct individuals, contrary to the situation prevailing under the doctrine of coverture that underpinned the old English law (Kameri- Mbote & Muriungi, 2016, p.45). Judicial construction of the provisions of the MWPA presented mixed but dismal results in terms of delivering property rights for married women. For instance, in Echaria v Echaria, Civil Appeal 75 of 2001 (2007) eKLR (C.A.), the court held that a married woman had to prove financial contribution in order to get a share of the matrimonial property upon divorce. Given the injustice and harshness visited on married women, who mainly per- formed unpaid household chores, the court in Kivuitu v Kivuitu Civil Appeal 26 of 1985, eKLR had earlier remarked obiter that contribution need not be financial. According to Kameri-Mbote and Muriungi, there were many instances of women and children being disinherited when male members of households or husbands opted to dispose of the matrimonial property with the concurrence of the courts (Kameri-Mbote & Muriungi, 2016, p.45). This was the position in Jacinta Wanjiku Kamau v Isaac Kamau Mungai, Civil Appeal 59 of 2001 (2006) 59 K.L.R, where the court emphasized that the husband was under no legal obli- gation to seek the consent of the wife before disposing of the land that was used as matrimonial property as long as it was registered solely in the husband’s name. Though the wife worked to maintain the land, she was only awarded 0.25 acres of the land to enable her to fend for herself and the eight children. A similar hold- ing regarding the interest of a married woman was made in Margaret Mumbi Kagiri v Kagiri Wamairwe & 3 others. (2007) 181 K.L.R. 8 (C.A. K). In the case of Kamore v Kamore [2000] 1 EA 80, the court considered the prin- ciple or doctrine of trust. It held that there was a need to show evidence of contri- bution by a spouse and thus departed from Nderitu. The court held that it could not make a finding of a resulting trust in favor of the wife without evidence of either express or implied intention of the donor. It further noted that there was a need to demonstrate contribution for a share of matrimonial property to vest and that section 17 of the MWPA gave no power to the court to pass any proprietary interest from one spouse to another (Kameri-Mbote & Muriungi, 2016, p.45). In Kimani v Kimani, [2000] 1 EA 80, 81, 85, the parties had undergone a Christian marriage and were blessed with two children but later lived sepa- rately after strains in their relationship. After alleged battery, the wife left the 32  Nancy Baraza matrimonial home for good and later filed for divorce. Within the pendency of the divorce proceedings, she brought an application for a share of property. During trial, the husband was able to prove that he contributed to the purchase of the property alone. Kuloba J, unconvinced that the wife had made any finan- cial contribution toward the acquisition of the property, held that contribution must be proved on evidence (Kameri-Mbote & Muriungi, 2016, p.45). The trial equated the behavior of the wife wanting to share in the matrimonial property with her “riding on the husband’s back with her hands in his pocket.” This decision was reversed by the Court of Appeal, on the basis that the trial judge was biased generally against women, and remitted to another trial judge for retrial. Customary marriages in their several variants have existed in Kenya along- side their formal and religious counterparts. However, customary law generally, and customary marriages in particular, have, until the 2010 constitution, been assigned an inferior status to civil and religious marriages (Osogo & Ahaya, 2015, p.47). Customary marriages include polygamous unions, woman-to-woman mar- riages, and widow inheritance, among others. Subjugation of customary mar- riages, expressed through court decisions, has previously caused a lot of suffering to the concerned parties. From the onset of colonialism, courts have entrenched a dim view of African forms of marriage, and in most cases, they have declared them either immoral or not worth being called marriages (Cotran, 1983, p.42). In R v Amkeyo [1917] 7 EALR 14, the question that arose during the trial was whether a woman married under African customary law could testify against her husband in a criminal case in which she was the only witness. The husband had been charged with stealing an animal skin, which he hid in the matrimo- nial house. Applicable common law deemed a husband and wife as one person, and neither could be compelled to give evidence against the other. In this case, the court found that the African wife could give evidence against her husband because the two did not meet the criteria of being considered married. According to Hamilton, CJ, a wife married under African customary law was not a legal wife or spouse under the formal law. Consequently, the court compelled her to give evidence against her husband. This case is indicative of how African customary law was degraded to the bottom of the legal rules hierarchy and made way for judicial precedence, ordinances, and statutes (Osogo & Ahaya, 2015, p.47). In Maria Angoi v Macella Nyomenda, Civil Appeal No.1 of 1981(unreported), the court was faced with the question of whether a woman-to-woman marriage custom among the Kisii tribe was repugnant to justice and morality. A woman- to-woman marriage is a customary practice whereby a woman whose husband is dead “marries” another woman and chooses a male figure from her husband’s clan to sire children for the dead husband. The High Court held that the practice was repugnant to justice and morality, since it prevented the other woman from freely choosing whom to marry. Thus, there was no marriage. The decision did not consider the circumstances of the local community and the intention underlying the woman-to-woman practice in African communities, whose perpetuity was guaranteed through children (Baraza, 2018, p.71). Equality jurisprudence by Kenyan courts 33  Judicial decisions since 2010 Since the promulgation of the Constitution in 2010, some Kenyan courts have begun to embrace transformative and purposive judicial interpretation of cases and this has led to significant strides toward realizing gender equality in marriage, access to matrimonial property, protection against gender-based and domestic violence, and inheritance. Courts have been developing jurisprudence with some radical judgments that have upheld the principles of equality (Kameri-Mbote & Muriungi, 2016, p.45). The following part discusses some of these cases. Inheritance Since 2010, the courts have been emphatic that all children, whether male or female and irrespective of their marital status or financial status, are eligible to inherit in equal shares unless they indicate to the court that they do not wish to inherit. These decisions have been made as a result of women challenging being disinherited by their brothers and uncles. In re Estate of Francis Mbaria (Deceased) [2018] eKLR, one of the female children filed an application for revocation of a grant that had been issued and confirmed to one of the male children (her brother). She protested the mode of distribution of the estate of her deceased father, citing unfairness, and principally on the ground that the female children had each been allocated 1 acre of land, unlike the male children, who were given a bigger portion. The brothers had argued that the female children were happily married and had property of their own and thus ought to be satisfied with the 1 acre of the land that they had been allotted. The court, in considering the argu- ment that married female children should not inherit from their parents, as doing so is unfair to their brothers, rejected the argument as being based on backward and patriarchal customs. Accordingly, the court held that all the children were entitled to an equal share (Kameri-Mbote & Muriungi, 2016, p.45). Similarly, in Joshua Cheruiyot v Rachel Korir [2017] eKLR, six sisters in their old age who had been totally disinherited by their brothers were able to success- fully apply for revocation of grant and obtain a declaration that all the children were to have an equal share of their deceased father’s property. The rationale for providing for equal inheritance for both male and female children in the spirit of gender equality was aptly put by Justice Kimaru in Peter Keingati & 4 Others Vs Ann Nguthi & 3 Others [2014] eKLR, where he stated that due to “the promulga- tion of the constitution 2010, particularly Article 27 that prohibits discrimina- tion of persons on the basis of their sex, marital status or social status, among others, the time has now come for those discriminative cultural practices against women be buried in history.” Gender-based violence (GBV) Gender-based violence (GBV) is one of the most prevalent human rights viola- tions in Kenya. Violence against women is perhaps the most widespread and 34  Nancy Baraza socially tolerated human rights violation, cutting across borders, race, class, ethnicity, and religion. GBV in Africa, as elsewhere in the world, is a complex issue that has at its root structural inequalities between men and women, young and old. This results in the persistence of power differentials between the sexes. World Bank research has indicated that in 2014, 22% of Kenyan women and 19% of Kenyan men agreed with the statement that if a wife went out with- out informing her husband, he would be justified in hitting or beating her. The social norms justifying GBV in Kenya appear to have been changing: the share of the population who agreed with the above statement fell by about half between 2003 and 2014 (DHS, 2018). However, in 2014, about half of all women (45%) between the ages of 15 and 49 reported having experienced physical violence (World Bank, 2018). The Kenyan state has, in most cases, perpetrated or tolerated violence against women, through either action or non-action, by prioritizing custom or tradi- tion over the respect of fundamental freedoms and rights belonging to women. Previously, there had been little commitment from the state to protect citizens from the vice of GBV; the existing criminal laws were not adequate to address the issue, and in any event, they were ignored in favor of customs by law enforc- ers. The Constitution recognizes several important general principles that are of importance to gender equality and that have a general bearing on GBV in the country (Aura, 2015). These principles were either not given recognition by the previous Constitution or were given inadequate treatment. A significant development consequential to the 2010 constitution was the enactment of the Protection from Domestic Violence Act of 2015. The Act is fundamental, as it is the only piece of legislation that addresses violence within the family set-up. The Constitution at Article 29 provides expressly for the free- dom and security of the person. Article 29 (c) protects all persons from any form of violence from either public or private sources, and Article 29 (d) prohibits any manner of torture, whether physical or psychological. The Constitution further places the duty on the state and its organs to ensure that the Bill of Rights is fol- lowed. Article 21 (3) of the Constitution places this duty on all public officers. The state and public officers are required to address the needs of vulnerable groups within the society, including women, older members of the society, persons with disabilities, children, youth, members of minorities or marginalized communities, and members of particular ethnic, religious, or cultural communities (Aura, 2015, p.4). Since 2010, the courts have been developing jurisprudence in the area of GBV. In NML v Peter Petrausch [2015] eKLR, Rika J held that “gender-based vio- lence is the most prevalent human rights violation in the world. No other form of sex discrimination violates so many fundamental rights as articulated in the 1948 United Nations Universal Declaration of Human Rights”. The claimant, in this case, was a domestic worker who was consistently sexually harassed and threatened by her employer. The case indicates the gravity of domestic violence matters. The recent case of C.K. (A Child) Through Ripples International as Her Guardian and Next Friend) & 11 Others v. Commissioner of Police/Inspector General of The Equality jurisprudence by Kenyan courts 35  National Police Service & 3 Others [2013] eKLR is significant. In this case, the High Court’s finding that the failure of the police to enforce Section 8 of the Sexual Offences Act 2006 effectively infringed upon the petitioners’ right to equal pro- tection and benefit of the law, contrary to Article 27 (1) of the Constitution of Kenya, 2010, was a step in the right direction. Also, the court observed that by failing to enforce existing defilement laws, the police contributed to the develop- ment of a culture of tolerance for pervasive sexual violence against girl children with impunity (Aura, 2015, p.4). On the other hand, Wakiaga J in Republic v Johana Mweni [2018] eKLR, while commenting on the issue of domestic violence, stated that The court is alive to the rise in the number of deaths arising out of domes- tic violence or in the family setting and therefore any Judgement/Sentence meted out by the court should send a warning that the home is a city of refuge and not a place where one has to be on his/her guard as was in the case herein. These are profound sentiments by the courts, not previously known for regarding domestic violence, because it afflicts mostly women, as a serious offense, and dem- onstrate transformative decision-making. Within a patriarchal society, it should be noted that although the Protection from Domestic Violence Act of 2015 is a great milestone in addressing GBV, the vice still persists due to ignorance of the law among many Kenyans and the perseverance of socio-cultural habits that still condone such violence. Sharing of matrimonial property Matrimonial property is now governed by the Matrimonial Property Act of 2013. This legislation replaced the old English Married Women’s Property Act of 1882, which was introduced in Kenya in the colonial period as an Act of general appli- cation. The 2013 law recognizes non-monetary contributions, such as housework, toward the acquisition of matrimonial property. The introduction of non-mone- tary contributions in consideration of marital property distribution upon divorce is a shift from earlier case law, which was seen in Peter Mburu Echaria vs. Priscilla Echaria [2007] eKLR before the enactment of this Act, and set out the direct financial contribution of a spouse in a marriage as the basis of determination of the distribution of marital property in divorce cases (Kameri-Mbote & Muriungi, 2016, p.17). In ZWN v PNN [2012] eKLR, the court shared the properties equally between the spouses. Equality in marriage Courts have also since 2010 affirmed equality of parties in a marriage, a depar- ture from the past. In the case of Agnes Nanjala -vs- Jacob Goes, Appeal No. 127 of 2011 (UR), the court affirmed equality of spouses and appreciated that the 36  Nancy Baraza Constitution guarantees equality of parties to a marriage and both are entitled to equal rights at the time of the marriage during the marriage and at the dissolution of the marriage. There have also been progressive court decisions on matters of the rights of women in customary marriages. Courts had previously failed to protect women in polygamous unions. They had also been inconsistent in articulating the position of customary practices such as the much-respected woman-to-woman marriage, which is a reality among several communities (Baraza, 2018a, p.71). Departing from the court’s attitude in R. vs. Amkeyo discussed earlier, the courts have dealt positively with polygamy and the institution of woman-to-woman marriage. In the case of Eunita Geko & Another v Philip Orinda Petition No. 237 of 2014 [2015] EKLR, the court upheld the validity of a woman-to-woman marriage under the Kuria customs, a clear departure from the decision in Gisege Angoi v Macella Nyomenda, discussed earlier, in which the court had declared woman-to-woman marriage immoral and repugnant to morality. The “repugnancy” clause in the Kenyan Judicature Act, chapter 8 of the Laws of Kenya, was a colonial require- ment as a criterion for the application of African customary laws. Threats to the judiciary’s efforts to uphold gender equality Although the Constitution has the potential for realization of gender equal- ity, customary law, which has historically held de facto sway over formal law (Hallward-Driemejer & Hasan, 2012), still threatens to lessen the impact of the transformative constitution, especially in matters of inheritance of land by women. Kamau (2011a, p.4) acknowledges that customary law contains aspects that often run counter to principles of gender equality and non-discrimination espoused in the constitution, especially the right of women to inherit equally with men. Indeed, World Bank research (World Bank, 2015) has also found that Kenya is indeed notable as one of a minority of African countries where there are formal inheritance rights. However, the research also notes that though the Constitution establishes non-discrimination articles, some subordinate statutes do have lingering gender biases. For example, the Law of Succession Act distin- guishes between male and female surviving spouses. It is also worth noting that since the promulgation of the Constitution, the right guaranteed to women to inherit land from their parents has hardly benefited them due to hostility from their male siblings against allowing them to inherit, basing their arguments on customary practices (Kamau, 2011b, p.4). Although the judiciary has been transformative in its decisions, the legislature and the executive pose a real threat to its efforts, particularly given that one of the key distinctive features of the constitution relating to gender equity is the not more than two-thirds gender rule, which is meant to ensure fair representation of women in the legislature and appointed positions. The provision has been repeat- edly undermined and contested by both the legislative and executive branches, and no enabling legislation has been enacted or implemented. This spells real danger to women’s representation in elective and appointive positions envisaged Equality jurisprudence by Kenyan courts 37  under the constitution. Further, Kenya is currently considering constitutional amendments, and women fear that the entire not more than two-thirds gender rule might be repealed if men’s current attitude toward it is anything to go by (Kamau, 2011b, p.4). Conclusion This chapter set out to examine the nature of judicial decisions on gender equality since the promulgation of the constitution of Kenya 2010. It has high- lighted the normative and procedural provisions that are of importance for equality generally and for gender equality in particular. Further, it explored the duty that the constitution imposes on the courts in decision-making. It exam- ined relevant decided cases before the 2010 constitution and demonstrated how narrow approaches to interpretation by the courts sustained gender inequality. It noted that the courts are under an obligation to depart from the positivist approach of the past when making decisions that touch on the rights of men and women. A significant part of this chapter was then devoted to an analy- sis of jurisprudence on gender equality on disparate areas of law as emanating from the various courts of law. The analysis has shown that in the majority of cases, the courts have been transformative and bold in asserting themselves and giving effect to constitutional provisions on gender equality. It also noted that although the judiciary has been transformative, both the legislature and the executive threaten to derail equal participation of men and women in all spheres of life. References Aura-Odhiambo, R.A. 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The Status of Women’s Human Rights in Kenya and Strategies to Overcome Inequalities. Cambridge: Cambridge University Press. Nzomo M. (2018). Gender and Governance in Kenya: Women’s Journey Beyond Numbers. In Changing the Mainstream: Celebrating Women’s Resilience (Kabira W, Kameri-Mbote P, Kabira N and Meroka A eds). Nairobi: African Women Studies Centre, University of Nairobi. Osogo A.J., & O. Ahaya. (2015). The Wretched African Traditionalists in Kenya: The Challenges and Prospects of Customary Law in the New Constitutional Era. Strathmore Law Journal, 1(1), 41–58. Patricia Kameri-Mbote, P. (2016). The quest for equal gender representation in Kenya’s Parliament: Past and present challenges. In Japhet Biegon (ed.), Gender Equality and Political Processes in Kenya (39–64). Strathmore University Press. Procter, P. (1995). Cambridge International Dictionary of English. Cambridge: Cambridge University Press. Equality jurisprudence by Kenyan courts 39  World Bank, 2015. Women, Business and the Law Report. Available at http:​ /pub​​ /​ docs.​​ world​​bank.​​org​/e​​n​/810​​42151​​99219​​49813​​/Wome​​n​-Bus​​iness​​-and-​​t​he​-L​​aw​-20​​16​.pd​f World Bank, 2018. Http:/documents 1​.wor​​ldban​​k​.org​,​/pdf​​/keny​​a​-pov​​erty-​​and​-g​​ender​​ -asse​​ssmen​​t​-201​​5​-201​​6​-ref​​l ecti​​ng​-on​​-a​-de​​cade-​​of​-pr​​ogre​s​​s​-and​​-the-​​road-​​ahead​​.pdf Zegrebelsky, G. (2001). Ronald Dworkin’s Principle-based Constitutionalism. London: Oxford University Press. Constitutions The Constitution of Kenya 2010 The Independence Constitution of Kenya 1963 Statutes Judicature Act, chapter 8 of the Laws of Kenya Matrimonial Property Act of 2013. Protection from Domestic Violence Act of 2015 2014 Marriage Act, the 2013 Cited cases Agnes Nanjala -vs- Jacob Goes, Appeal No. 127 of 2011 (UR) C.K. (A Child) Through Ripples International as Her Guardian and Next Friend) & 11 Others v. Commissioner of Police/Inspector General of The National Police Service & 3 Others [2013] eKLR. Echaria v Echaria, Civil Appeal 75 of 2001 (2007) eKLR (C.A.). Eunita Geko & Another v Philip Orinda Petition No. 237 of 2014 [2015] EKLR. Joshua Cheruiyot v Rachel Korir [2017] eKL., Kimani v Kimani, [2000] 1 EA 80. Kamore v Kamore [2000] 1 EA 80. Lucy Wanjiru Kariuki v Republic, Criminal Revision 12 of 2014 [2015] eKLR. Maria Angoi v Macella Nyomenda, Civil Appeal No.1 of 1981(unreported). Margaret Mumbi Kagiri v Kagiri Wamairwe& 3 others. (2007) 181 K.L.R. 8 (C.A. K). Mary Rono v Jane Rono & another, [2008] 1 KLR 803. Mary Rono v Jane Rono & another, Eldoret High Court Civil Appeal 66 OF 2002), [2005] eKLR, MJK v FML Civil Suit 39 of 2012. NML v Peter Petrausch [2015] eKL., Peter Mburu Echaria vs. Priscilla Echaria [2007] eKLR. Peter Keingati & 4 Others Vs Ann Nguthi & 3 Others [2014] eKLR. Republic v Amkeyo [1917] 7 EALR 14. Republic v Johana Mweni [2018] eKLR. Republic v Collet Wafula [2016] eKLR. Re Estate of Francis Mbaria (Deceased) [2018] EkL. Supreme Court of Kenya Advisory Opinion No. 2 of 2011(In the Matter of Interim Independent Electoral Commission [2011] eKLR. 3 To win both the battle and the war Judicial determination of property rights of spouses in Ghana Maame Yaa Mensa-Bonsu and Maame A.S. Mensa-Bonsu Introduction Customary law has long been problematic for wives seeking access to marital property in Ghana. In both matrilineal and patrilineal family systems, marriage does not entail the self-acquired estates of the spouses (Mensa-Bonsu, 2012). The self-acquired property, therefore, became family property on the intestate death of the owner, leaving the surviving spouse without an interest in the prop- erty which they should rightfully own. The cultural bias in favor of males in succession and other customary laws have served to widen the economic chasm between males and females, with the latter often unable to enjoy the products of their labor. From pre-independence times until the 1992 constitution, Ghanaian courts determined disputes involving marital property largely under custom- ary law, which, as noted, is often disadvantageous to wives. What progress was made toward parity resulted from judges’ reliance on their own culturally shaped notions of fairness, and standards of progressive thinking. The 1992 Constitution of Ghana has provided Ghana’s legal order with a new and apparently more just standard for the distribution of marital property. This chapter evaluates semi- nal cases from before and since 1992 to establish the practical impact of Article 22 of the 1992 constitution on the financial fortunes of ex-wives (i.e., widowed or divorced). We seek to answer the following questions: 1. Have judicial outcomes improved for women since the 1992 constitution took over the regulation of spousal property rights? 2. Has the rhetoric of judicial law-making in fact evolved along the lines of the 1992 constitution? The chapter is divided into three sections. The first briefly examines the state of Ghana’s law prior to the coming into force of the 1992 constitution. It out- lines the customary law position and the judicial efforts at progressing beyond this position through the substantial contribution doctrine, statute law, and the application of equitable principles. The second provides an extensive review of the trends in the outcomes and rhetoric since 1993, when the constitution came DOI: 10.4324/9780429327865-4 To win both the battle and the war 41  into force. Of particular interest is the import of Article 22 on the judicial deter- mination of spousal rights to marital property. Finally, we consider the challenges posed by judicial interpretation of the relevant provisions and caveats applied by subsequent courts. We provide a critical analysis of the potential tensions between Article 22 and other constitutional provisions. While not proposing specific reforms, the insights this chapter will achieve are critical for accurately assessing the progress we have made toward creating a just and equitable society and how much remains to be done. We advance these arguments with the goal that they will contribute to the evolution of Ghana into a consciously shaped, rather than reactionary, society, with the full intent to advance the rights of women. Property rights of wives: Before 1992 This section provides an overview of the state of the law up until the 1992 constitution entered into force by looking first at the outcomes and then at the rhetoric under which the said outcomes were achieved. The goal is to contextualize any changes that the 1992 constitution has achieved in respect of both the guiding principles for the distribution of property between spouses upon the dissolution or determination of marriage, and the portions of the estate that have typically fallen to the female spouse. We do this by examining the landmark cases from Ghana’s independence in 1957 until December 1992, when the last dictatorship ended. Judicial rhetoric The rhetoric of the pre-1992 regime on spousal rights was centered on three things: customary law, equity, and statute law. In that era, both the rhetoric and consequent outcomes were based exclusively on customary law. The experience of ex-wives and widows was especially dire under these laws, leading to court-led initiatives to soften the impact of customary law on them. But as the court would not depart too far from the customary law rule, the improvement was not over- whelming. The statutory interventions, though helpful, did not apply to every ex-wife/widow in every circumstance (Watnizek, 1991). Equity was also some- times invoked to provide relief in particularly unjust situations. However, cus- tomary and statute law could not be entirely sidestepped. Equity could, therefore, not serve as a wholesale rectifier of the harsh impact of customary law and statute law. Thus, the situation until the 1992 constitution entered into force was one of inconsistencies and inequality for wives. We now examine briefly how women fared in terms of outcomes under each of these three sources of judicial rhetoric. Customary law The decision in Quartey v. Martey (1959) set out the judicial understanding of customary law in respect of the property rights of widows. In that case, the 42  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu plaintiff, who had been married to the intestate under customary law for over 25 years, sued her deceased husband’s family for expenses incurred in the course of the funeral and for a one-third share in his estate. She argued that as she had assisted her late husband both in his work and financially, and as he had by such assistance acquired the properties, she was entitled to a share thereof. Ollennu J held that by customary law, it was the duty of a man’s wife and chil- dren to assist him in carrying out the duties of his station in life. The proceeds of that joint effort, and any property acquired with such proceeds, were by custom- ary law the property of the man and not the joint property of the spouses.1 The only right of a widow, the court further held, was to maintenance and support from the family of her deceased husband. Unsupported by evidence (Daniels, 1972), Quartey v Martey nevertheless became firmly entrenched in the jurispru- dence and was followed in a long line of cases, including Yaotey v. Quaye (1961), Adom v Kwarley (1962), Manu v. Kuma (1963), and Jonas v. Ofori (1988). Ayer v. Kumordzie (1964) held that even the chattels a husband provided to his wife for her personal use were limited to the duration of the marriage and save for those expressly declared to be gifts, fell to be returned upon its dissolution. The case of Quaico v. Fosu (1965) ameliorated the condition of widows. There, the court found, for the first time, that under Akan customary law, a widow, while she remained unmarried, had a proprietary interest equivalent to a determinable life tenancy in her deceased husband’s property. Further, and per- haps more importantly, she did not have to live in the property; she could rent it out and enjoy the rental income therefrom. While the family acquired title to the late husband’s estate, it was subject to the life interest of his children and the occupational rights of the widow. Quaico v. Fosu not only gave widows, at last, a proprietary right, albeit only a non-heritable, inalienable, potentially temporary one; it also provided a potential source of income for the widow. As for ex-wives, they remained firmly under the Quartey v. Martey regime until the doctrine of substantial contribution was adopted by the courts. Substantial contribution doctrine In the 1970s, the courts introduced the doctrine of substantial contribution, which deemed a wife to have acquired a proprietary interest in property if she had contributed to its acquisition (financially or in-kind) to a degree exceeding the duty of wifely assistance contemplated by customary law. The scope of this inter- est, however, was to be determined by the court on a case-by-case basis. In Yeboah v. Yeboah (1974), where the doctrine was first espoused, the wife had, at her own expense, flown repeatedly to Ghana from their London residence to supervise the construction of the property in dispute and paid the costs of structural changes thereto. The court held that the wife was a joint owner of the house and further, that the conduct of the parties prior to, during, and subsequent to the acquisition of the property displayed an intention to own the matrimonial home jointly. What the principle of substantial contribution entailed was elucidated by Abebreseh v. Kaah (1976), Clerk v. Clerk (1981), and Achiampong v. Achiampong To win both the battle and the war 43  (1983). In Abebreseh, the court found that part payment for the land and sole support of the family during the construction period amounted to a “substantial contribution.” In Clerk, the court stated that it would, or at least could, hold the overwhelming role in family life played by a stay-at-home wife and mother as a substantial contribution; but only if the wife, having had the option of a career, had forfeited it to take care of the home needs of the family. Achiampong added the rule that the substantial contribution could be established by proving either an agreement between the couple giving the wife some beneficial interest in the matrimonial home, or the wife’s direct financial improvements, renova- tion, or extensions to the property, or that she had applied her income for the family upkeep, thereby financially enabling the husband to acquire the property in dispute. Substantial contribution continued as the guiding principle of a wife’s rights in marital property acquired until 1993, when the Fourth Republic began. But it had unclear thresholds, and each judge relied on their own estimation of what acts exceeded the Quartey v. Martey standard. In some cases, contributions that were held not to be insubstantial were nonetheless not held to be enough to convey an interest in the property to the wife; for example, paying in part for and personally supervising the construction of the property (Abobor v. Abobor, 1987) and paying all household bills and the children’s school fees to enable the husband to devote his earnings to the property (Otoo v Otoo, 1984, Odoteye v. Odoteye, 1984–86). In others, contributions of the same kind and in some cases to an even lesser extent were held to suffice (Anang v. Tagoe, 1989–90, Domfe v. Adu, 1986). The case law was thus very inconsistent. Statute law The three pieces of legislation that had the greatest impact on the fortunes of wives prior to the birth of the 1992 constitution are §48 of the Marriages Act 1884-1985,2 (Cap 127), the Matrimonial Causes Act, 1971 (Act 367), and the Intestate Succession Act, 1985 (PNDCL 111). All three created rather complex legal regimes, an exhaustive overview of which is beyond the scope of the pre- sent chapter. It is important to note, however, that Cap 127 created monoga- mous unions, and, by its §48, gave the widow acknowledged under it a third of the husband’s estate. By creating the possibility of a man supporting his ex- wife financially, Act 367 seemingly reversed the customary law rule in Ayer v. Kumordzi. But it did not apply automatically to all forms of marriage in Ghana.3 Even among those to which it applied, it operated to reverse the rule only in “deserving” cases. This subjective standard led to more inconsistency. In Beckley v Beckley (1974), the court made an order of maintenance in favor of the wife. By contrast, in Happee v Happee (1974), the wife was awarded a lump-sum payment but, being held to have been a poor example of a wife, was not granted mainte- nance. Nevertheless, the impact of Act 367 must not be under-appreciated. For, although it did not have much of an impact on women’s property rights, it did, practically speaking, improve their daily economic circumstances by making it 44  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu possible for them to receive lump-sum settlements4 or periodic financial support for themselves and/or their children.5 PNDCL 111 gave widows a tangible propri- etary interest in their husband’s estate. But the impractical mandatory apportion- ment made sale of the property inevitable, and being insubstantial, particularly in polygamous unions,6 the widow’s portion was hardly ever sufficient (Mensa- Bonsu, 1994). Equity and/or the judge’s own conscience Writing in 1972, Daniels, noted that bill-paying wives had become so common that the courts had shaken off the constraints imposed on them by the strict doctrine of customary law (Daniels, 1972). But, absent clear legislative guidance, these equity-based decisions only compounded the deep inconsistency in the case law. In Deborah Takyiwa v. Kweku Adu (1971), a customary law wife was awarded half the farm she had jointly cultivated with her husband on her own land. Would she have been awarded half the farm if it had been jointly cultivated on his land? It is doubtful. Indeed, in Owusu v. Nyarko (1980), decided nine years later, the Quartey v. Martey position was reiterated. In Bulley-Neequaye v. Acolatse (1969), and also in Reindorf alias Sacker v. Reindorf (1974), property bought by a wife in her husband’s name was found by the court to be held in trust for her. In Domfe v. Adu (1986), the court found that the respondent having contributed the initial working capital, and having worked jointly to establish the business, the husband, in whose sole name the business was registered, held it and the profits in trust for himself and his wife. A trend clearly emerges from these cases. Only where the wife had purchased the property or had held the financial power that culminated in the property acquisi- tion were the pre-1992 courts unhesitating in granting a proprietary interest to the wife. Wives who could not prove financially quantifiable contributions did not find the courts so protective. In sum, prior to the 1992 constitution, Ghana’s legal regime on property dis- tribution upon the dissolution or termination of marriage was not exceptionally kind to wives. Though the initial starkness of their position under customary law had been somewhat ameliorated under the substantial contribution doctrine, statutory interventions, and equity, the situation was still far from ideal. Property rights of wives after the 1992 constitution Since January 1993, the 1992 constitution has been the fundamental law in Ghana and has amended all legal regimes to remove any inconsistency with itself. For clarity, we reproduce Article 22, the relevant provision for our purposes. Article 22 1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will To win both the battle and the war 45  2) Parliament shall, as soon as practicable after the coming into force of this constitution, enact legislation regulating the property rights of spouses 3) With a view to achieving the full realization of the rights referred to in clause (2) of this article (a) spouses shall have equal access to property jointly acquired during marriage (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage While the language of the provision is gender neutral, its genesis is not. Article 22 originally appeared under the section titled “women’s rights” in the proposals upon which the Constitution was drafted (Government of Ghana, 1991). The section’s preamble acknowledges the “great sorrow and distress” that the then state of the law caused widows and recommended that it be changed permanently through constitutional entrenchment (Government of Ghana, 1991). In this section, we study a number of important decisions to answer the research questions. We ascertain whether judicial outcomes have truly improved for women since the 1992 Constitution took over the regulation of spousal prop- erty rights. We also evaluate whether the rhetoric of judicial lawmaking in fact aligns with the 1992 Constitution. This is not an exhaustive review of every case that has been decided under the Constitution. Rather, it is an evaluation based on a group of cases, which together demonstrate the potential viewpoints from which Article 22 could be interpreted. Substantive judicial outcomes Judicial outcomes have generally been better for wives since the coming into force of the 1992 constitution. In a number of important cases, the court has held that the wife was entitled to a share of the matrimonial estate. The interest awarded her has ranged from one-third to half of the matrimonial estate. It is worth noting that in all those cases, the wife was held to have made a substantial and pecuniary contribution to its acquisition. Still, this is quite an improvement on the Quartey v. Martey regime, under which her contribution, regardless of its magnitude or proof, entitled her to nothing. In another line of cases, the court has, while pronouncing a significant set- tlement figure, refused to treat the relevant properties as jointly owned at all. In all those cases, too, that decision turned on the wife not having made a substan- tial financial contribution to their acquisition. This second line of cases shows that the court does not, or has not yet begun to, fully match its rhetoric to its decisions. For though it has said more than once that it is willing to consider non-quantifiable contributions to the family life as a contribution to the family asset portfolio, when this has been all that the applicant relied on, the court has not yet found that a non-pecuniary contribution created a proprietary interest. Nevertheless, it is a credit to the courts that post 1992, they have been more open to viewing such actions as potentially entitling wives to some interest in marital property. And it must not be understated how much better wives in such 46  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu a position have fared post 1993 than their counterparts under the Quartey v. Martey regime did. The circumstances of the cases and the profiles of the women who bring these cases have not changed much. In the post-1992 cases, the partner claiming is still more frequently the one with significantly less earning power. In Quartson (2012), the claimant was a housewife, while her husband was a sailor. In Katey (2016), she was a beautician; he was a geodetic engineer. In Arthur (2013), the wife was a housewife; the husband was an international footballer. The applicant in In Re George Ntim (2012) was primarily a subsistence farmer. In these cases, the contribution proved by the wives was largely of domestic services rendered by them. The cases align with the findings of sociological studies: economic inequal- ity of spouses continues to be a feature of Ghanaian marriages, and women are more frequently the vulnerable partner (Deere et al., 2013). One new develop- ment is the phenomenon of the man as a plaintiff/petitioner seeking an interest in the property, as in the case of Mensah (1993). But this remains rare. Again, this confirms the data that women are still largely lower than men on the employ- ment/economic hierarchy. That, in turn, implies that female spouses are more dependent than male spouses on judicial largesse in determining their entitle- ment to the property. Like the pre-1992 wives, these post-1992 wives did not act to ensure that their joint ownership was reflected in the title documents, though they were usually aware of the disputed properties at the time of their acquisition. Admittedly, in a good number of cases, the wife was so unevenly matched with her husband economically that it was not necessarily an option for her to get her name onto the paperwork. This was the case in Arthur, Katey, and In Re George Ntim. But this is not the scenario in other cases. Gladys Mensah was an equal partner and manager of the business they established jointly. She collected monies and kept the accounts. Yet, she let her husband put 4 houses totaling 16 bedrooms, several plots of vacant land, a 20-foot container, and several cars in his name only. In Quartson, the sailor-husband was away for long stretches of time; several years in one instance. The wife, with the money he remitted to her, purchased materials and supervised the construction of the matrimonial home to its completion. She also claimed to have acted as a director in a jointly run company, yet her name was conspicuously missing from the title documents, and the court found from the evidence a discernible intention in the absent partner to hold the house as sole owner. The wife in Tabury (2013) was just as industrious and as involved in the business that made them rich as Gladys Mensah. Yet, she too let her husband vest all properties acquired with the proceeds from their joint enterprise in his name. It cannot be said, therefore, that the vulnerability of wives in respect of the matrimonial property is entirely a function of economic inequality. There are clearly social and cultural factors at play that are beyond the reach of the law that must be addressed in the larger society. In particular, the cultural narratives on women, personal responsibility, and property must be rethought. Where the husband is the petitioner in respect of the settlement of matrimo- nial property, two outcome trends are visible. In one line of cases, the husband To win both the battle and the war 47  is petitioning to be named sole owner of the property to which he held the title and which he also built or helped to build (Verdose v Verdose-Kuranchie, 2009 and Esseku v. Inkoom, 2013). The wives, inevitably, failed in a similar coun- terclaim. However, where the wife was the owner of the land and constructed the house either solely or with minimal participation of the husband (as occurred in Kwawukume, 2009, Owusu, 2011, and Nanor, 2018), the wives succeeded in holding on to their property as sole owners. These cases are far away from the injustice that Quartey v. Martey spawned. But they remain a small minority. The final observation we make about the outcomes for wives in the Fourth Republic is this: while more wives have got higher percentages of the matrimo- nial property, the situation is not as heartening as it may appear at first glance. This is because now, as then, such wives often face a great challenge of providing proof of contribution, especially in respect of property other than the matrimo- nial home. Thus, the court might award 50% of the matrimonial property to her. But more than 50% of the assets under contention may remain completely outside the definition of matrimonial property. Given the similarity between fact trends of pre- and post-1992 cases, a wife’s chance of profiting from the asset portfolio of the couple beyond just the matrimonial home is still minimal. On the outcomes front, therefore, it is fair to say that we are almost as far away from the constitutional ideal as we are from the Quartey v Martey days. That means the journey is far from over. Rhetoric The 1992 constitution is barely mentioned in the earliest cases of the Fourth Republic. Rather, equity and the substantial contribution doctrine are the princi- pal points around which the decisions are made. The rhetoric changed noticeably in Mensah v. Mensah (1993), where the 1992 constitution made its first, albeit peripheral, appearance as a guiding principle in a matter of property distribu- tion between spouses. The court held that in the absence of clear equities in matrimonial property, the court would treat equality as equity. But even with marginal mention, the role the constitutional terminology played in pulling out the entrenched roots of customary law and replacing it with constitutional com- pliance should not be overlooked. In Boafo v Boafo (2005), the court held that the Mensah rule of “equality is equity” is not what it called “a blanket” rule apply- ing blindly and in all cases. Instead, the equities of each case were to be consid- ered. The court then reintroduced the language of the substantial contribution doctrine but collocated it under Article 22 and the “equality is equity” rubric (Barnes, forthcoming, 2020)7; a development discussed more fully later on in this chapter. The constitutional rhetoric finally comes into its own in Gladys Mensah v. Stephen Mensah (2012), where the Supreme Court not only dwelt extensively on Articles 22 and 358 but expressly pronounced the substantial doctrine rule unconstitutional. Quartson v. Quartson is alone in this line of cases. Although, again, the outcome is not undesirable, the language is puzzling and disappointing, 48  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu because the Supreme Court oddly ascribed the birth of the substantial contri- bution rule to Parliament’s inaction in respect of its Article 22 obligation to regulate the distribution of marital property upon dissolution or determination of marriage. It is important to note that the court expressly spoke of substan- tial financial contribution. It then, confusingly, held that the Court of Appeal was wrong to hold that the wife had no interest in the matrimonial home and yet refused to give her a share therein. Fortunately, Arthur v. Arthur (2013) set things right again. In that case, the court found the wife’s performance of her housekeeping duties and as the personal driver (to her husband) sufficient to amount to such substantial contribution as to grant the wife an interest in the matrimonial home. This position has been followed in a number of cases, includ- ing Kofi Tabury. Arthur further established the assumption, albeit rebuttable, that property acquired during the subsistence of the marriage is marital property and therefore should be shared between the parties. The court found that to hold otherwise, as the Court of Appeal had in the same case, would be inconsistent with the Constitution. However, this is not to be taken as inconsistent with the constitutional right to own property alone. The Supreme Court indicated that some categories of properties could be excluded from this presumption, as deter- mined on a case-by-case basis. In the second line of cases discussed in the preceding section, the court once again relied heavily on the constitution to reach its decision. Although the women in these cases did not succeed in their requests, the language of the judi- cial decision-making is consistent with that of the first line of cases, in which the women succeeded at least in part. In Fynn, for example, the meaning of the relevant constitutional provisions was discussed quite extensively and was central to the decision. Additionally, the court discussed Article 18 and concluded that the property in question was not jointly owned. Electroland v Adomako (2019) saw an interpleader by a husband succeed on the ground that the property sought to be attached was his personal property, not jointly owned property, and as such could not be used in satisfaction of his wife’s business debts. It is interesting to note that in both lines of cases, the courts continue to search for proof of contribution or the intention of the parties at the time of acquisi- tion as discernible from the couple’s conduct at the time. In Gladys Mensah, the court makes a radical move away from the substantial contribution doctrine and reframes the principles within the language of the constitution, thereby extend- ing and strengthening the equality principle. To go contrary to this new exposi- tion of the law was no longer merely a departure from equitable principles. It was, per Arthur, in contravention of the constitution. In the decade since Gladys Mensah, the court has reiterated its position that a substantial, and specifically a financial, contribution is not required to create a proprietary interest in matrimo- nial property. Yet, there remains a marked insistence on the contribution (the desirability of which we discuss in subsequent paragraphs) that belies Dotse JSC’s conviction that the post-1992 precedents had “sounded the death knell of the substantial contribution doctrine” (Gladys Mensah v. Stephen Mensah, 2012). The early post-1992 decisions give no real explanation of why the court could not To win both the battle and the war 49  seem to get beyond proof of contribution even as it waxed eloquent about equal- ity and equity. In the later cases, however, the courts have attempted to explain both why they accept housekeeping as contribution and why they still require proof of contribution. In these discussions, the Constitution and its dictates have dominated the dialogue and the decision. The foregoing discussion has reviewed and reflected on the case law on the property rights of wives. It has examined the trends in outcomes to know whether wives are faring better in the Fourth Republic and if so, how much. The discussion has also assessed the rhetoric of judicial reasoning to determine its commensurability with the outcomes. Our discussion leads us to answer both the research questions posed earlier in the affirmative. Yes, the likelihood that a widow or ex-wife will be sent away empty-handed has reduced considerably. Yes, the rhetoric on judicial equity for spousal rights has become increasingly cen- tered on the Constitution. In spite of some lingering challenges, there has been a marked movement in the rhetoric toward recognizing the rights of wives to marital property irrespective of financial contribution, or indeed, any contribu- tion. But the outcomes have not always been as consistent as one would expect, nor have they always matched the rhetoric. Nevertheless, from the preceding discussion, it is beyond debate that the 1992 constitution has had a palpable and positive impact on the fortunes of wives when a marital property falls to be distributed. Outcomes versus rhetoric: Where are we now? We have seen that the outcomes for women have improved in actions for the distribution of matrimonial property. We have also noted how the rhetoric has evolved from the harsh rule of Quartey v. Martey through the substantial contri- bution doctrine to the present position, touted as the “Jurisprudence of Equality,” which, according to the courts, aligns with the purposes of the 1992 constitution. This section evaluates the truth of that assertion. We examine Nanor v. Nanor and Electroland v. Adomako (supra) to assess the validity of the courts’ parameters when called to determine whether the matrimonial property is jointly owned. While conceding their necessity, we draw attention to the problematic nature of these parameters. The relevant facts of Nanor are as follows: the husband sought, upon divorce, the matrimonial home, another of his wife’s three houses, and a plot of her land. He did not deny that all the property was acquired by his wife with her own funds alone. But he argued that because he had run some of the purchasing errands and had done some amount of the construction supervision, he had contributed to the completion of the matrimonial home and should be granted a half share. In respect of the other properties, his argument was that he had married her under the Marriage Ordinance (Cap 127) and that it was he who introduced his wife to the person who helped her acquire goods on credit to begin her textile busi- ness. For those reasons, he invited the court to hold him the owner of half of her wealth. The High Court rightly rejected his arguments. 50  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu Article 22 concerns Of interest to this chapter is the court’s reasoning for refusing to hold that the matrimonial home was joint property. The court held that being married ipso facto could not create a proprietary interest in each other’s assets. The husband’s involvement in the construction of the matrimonial home had been no more than what his duty to care for his partner entailed. Therefore, it did not create title in him. This decision, on the facts presently given, is not very different from Clerk, where the court ruled that the acts of the wife, which were pleaded as giv- ing rise to entitlement in the marital property, were merely what was expected of a “good wife,” or indeed Ribeiro,9 where the minority argued that the bare domes- tic services rendered by the wife did not give her rights to her husband’s property. Yet, it is hard to say it was untenable. If it is not, then in principle, neither were the two earlier cases. In that case, Mensah and Arthur are by implication wrong. But there are additional facts to Nanor that help shape the discussion. The husband had essentially been supported by his wife for almost the entirety of their marriage. She had borne all the bills of their joint life and family. The husband even admitted that all sums he had expended personally on the matrimonial home had been reimbursed to him by his wife at his instance. Nor did he claim to have borne the larger share of the domestic or child-raising duties. His wife’s suc- cess was in spite of, rather than because of, him. It is clear, then, that the husband of the marriage had not conducted himself in such a way that it was reasonable to hold him co-owner of his wife’s property. The point is this: the requirement of contribution to the acquisition of the property is not unreasonable even in a constitutional era that promotes spousal rights to the property. By necessary implication, then, it is possible, even if not easy, to determine the facts of each case: whether the conduct of a spouse exceeds what is a reasonable minimum and attains a level that gives the other spouse an advantage or opportunity to acquire assets. Even so, there are two opposite but equally grave concerns with the substan- tial non-pecuniary contribution requirement. On the one hand, given Ghana’s history of cultural and customary law bias against wives’ property interests, there is a high risk of retrogression to the old forms if the terminology of the new era resembles or even echoes the terminology of the old days. It makes it easier for the old rules to creep into the workings of the new ones, thereby eroding all the benefits of the 1992 constitutional regime. For example, in a significant number of the cases discussed, the court sought or somehow managed to quantify the non- pecuniary contributions proved by a party. The judges’ discussions and assess- ments of the wife’s claim of financial contribution would not, in some instances, sit awkwardly in Abebereseh or Yeboah. But on the other hand, without further clarification on where parenting and home management, as a duty of the couple, end, and where title-creat- ing housekeeping and parenting begin, the court appears to be saying that no duties of parenting or cohabiting exist in the absence of property. We illus- trate with Quartson, where the wife pleaded her housekeeping and childrearing To win both the battle and the war 51  as contribution sufficient to create a title in her. The court found that Mrs. Quartson’s assumption of her husband’s parental duties in addition to her own amounted to a contribution to its acquisition. For the purposes of this chapter, and, without endorsing the traditional view of gender roles, we shall assume, as the case law does, that in a Ghanaian marriage, the woman’s role is to keep the house and raise the children, while the man’s is to pay the bills. On that premise, it is tempting to think that Mrs. Quartson succeeded because she was playing the other parent’s role in addition to her own. But as we demonstrate, deeper engagement with the facts will show this reasoning to be only superfi- cially attractive. First, if there had been no matrimonial home, would Mrs. Quartson not have cared for the children when her husband failed in doing his part? If she would have, then the court ought to have been clearer as to what extent her care of her children differed from what she would have given them if there had been no property. This distinction must be discernible, it is argued, for the line between parenting/partnering simpliciter, and parenting/partnering as the root of title, not to be arbitrary. Mrs. Quartson rose to the occasion when she was made a single parent. The paradox here is that it does not mean necessarily that she contrib- uted to his assets. But it also does not necessarily mean that she did not. The court should have engaged more fully with the facts to explain how they met the threshold of contribution. For example, what if a housewife pays school fees for a long period of financial difficulty and then is reimbursed by the husband and after that reimbursement, he acquires properties? Do the school fees years count as her contribution to those houses or not? The effort required for a housewife to step into her husband’s shoes is sig- nificantly greater than what would be required for the managing director of a transnational bank to do the same. It seems unfair to undervalue the housewife’s effort simply because it was reimbursed. It also seems unfair to say the wife, who is the managing director, had no interest in her matrimonial home because step- ping into her errant husband’s shoes had been easier for her. Moreover, the court should not appear to be relieving parents whose union has acquired no property from the ordinary obligations of parenthood. It is concerning that Mensah and, especially, Arthur do not draw the line clearly between partner/ parent duties simpliciter and partner/parent acts creating title in the matrimonial property. We do not by this analysis either endorse or reject the rightness of the view that marriage should ipso facto render all assets of both parties jointly held. That rule exists in several countries on other continents, and as with all things, has its merits and demerits. However, an evaluation of these is, for want of space, beyond the scope of this chapter. What we seek to do by this analysis is to assess whether what the court has been saying and doing is indeed what the 1992 constitution of Ghana requires it to do. Our answer is that the court must, with the greatest respect, reflect on and clarify where the ceiling of wifely/husbandly duty ends and where the floor of property-creating duty begins. Otherwise, improved outcomes notwithstanding, it cannot claim to have aligned the legal order with the consti- tutional purposes for which Article 22 was enacted. 52  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu Article 18 concerns In Fynn, the Supreme Court first grappled with the effect of their broad interpre- tation of Article 22 on Article 18. In that case, a husband sold a store, and his wife sought to have the sale overturned on the grounds that the store was jointly owned property and the sale was without her knowledge and consent. The court held that parties within a union retained their Article 18 right to own property alone. As such, the property of one spouse did not automatically become the property of the couple, and the spouse retained the power to dispose of such prop- erty unilaterally. The court refused, therefore, to overturn the sale. Fynn was applied in Electroland v Adomako (supra). The facts of that case and the court’s reasoning are helpful aids to understanding the import of the Mensah rule as it would have operated had the caveats not tempered it. In Electroland, where the husband successfully resisted the attachment of his house in the sat- isfaction of a judgment debt against his wife, the court discussed extensively the practical implications of Mensah for Article 22 and concluded that the right to equitable distribution of marital property did not arise while the marriage sub- sisted. The court held further that absent proof of contribution to its acquisition, property did not become jointly held only because of the continued subsistence of the marriage. To hold otherwise would have amounted to removing the right of a married person to hold property alone under Article 18, and that would, of course, be unconstitutional. Again, premised on the model of the Ghanaian marriage as described earlier, it is immediately evident that there is tension between Articles 18 and 22. As noted earlier, to hold, as the court did in Mensah and Arthur, that housekeeping and childrearing duties suffice as contribution to property acquisition is to hold that all property acquired during marriage is marital property unless one spouse is a bad partner. Indeed, the court held it to be a rebuttable presumption in Arthur. This, in turn, means that no party in a union may dispose of their property alone. While it could be argued that it is ideal for a married couple to make decisions about their individual property jointly, it can hardly be argued that the law should compel them to. Such a legal state of affairs would, in addition to dis- couraging citizens from legally combining their estates, have the most deleterious effect on commerce. In the Fynn case, the third party had diligently conducted her enquiries into the ownership of the store before proceeding with the sale. To reverse it because of an undiscoverable third-party interest would have been inequitable and would have set a poor precedent for the sanctity of commercial transactions. Be that as it may, the question of what the Constitution requires the courts to do is easily answered in respect of Article 18. It requires the courts to uphold and protect the sole ownership of self-acquired property. To do this, the courts have had to introduce some limits on their own jurisprudence under Article 22 in order to prevent a headlong collision of the two constitutional provisions. Seen in that light, the limitations on the Mensah and Arthur principle are not unrea- sonable, even if, as discussed, they may be problematic. To win both the battle and the war 53  Conclusion This chapter has been driven by three critical inquiries. First, we juxtaposed the landmark cases decided before the 1992 constitution entered into force with those decided thereafter to determine whether outcomes have truly improved for women since the 1992 constitution took over the regulation of spousal prop- erty rights in Ghana. We then examined the rhetoric of the post-1992 jurispru- dence to ascertain whether the dictates of the 1992 Constitution have attained a centripetal role in judicial reasoning and decision-making in this sphere of the law. Finally, we tested the constitutional compliance of the judicial reasoning in the jurisprudence by examining its implicit and explicit ramifications. We found that the language of judicial reasoning was undoubtedly in consonance with the Constitution. The answer to the question on outcomes was more complicated, being at once yes and no. While fewer women are walking away empty-handed from the fruits of their efforts, they are not necessarily getting the full value of their labor. We conclude that the court needs to further illuminate both its rules under Article 22 and the limitations it has put on its interpretation. We note that the profiles of the wives indicate clearly that there are problems of socialization that need to be tackled if Article 22 is to be fully realized; there is only so much the law can do. Parliament’s deplorable failure to enact the legislation envisioned in Article 22 has ensured that the court’s journey toward constitutional imple- mentation will be a muddled, stumbling journey. But even so, it is on its way. And, in spite of the rough terrain, it is a worthy path the court is charting. Notes 1 Ollennu based his decision on Okwabi v. Adonu (2 W.A.L.R 268), which decided that a child did not become co-owner of property acquired from the joint industry of the child and the father. The case had nothing to do with marriage, yet the learned judge found that the principle could apply to property acquired by the husband from the proceeds of joint efforts of himself and his wife. 2 Formerly known as the Marriage Ordinance. 3 Act 367 applies to marriages other than monogamous ones only on application by a party to the marriage. See Section 41. 4 e.g., Clerk v Clerk (n 13), Ribeiro v. Ribeiro (n 14), Gyang v. Gyang (Accra H.C., Jan. 30, 1987), Okang v. Okang, (Accra H.C., Sept. 3, 1985). 5 e.g., Abobor v. Abobor (n 12), Ahmed v. Ahmed (Accra H.C., Oct. 4, 1988), Addai v. Addai (Accra H.C., Sept. 16, 1983). 6 Further, HJAN Mensa-Bonsu has argued that the conflation of the widows’ and chil- dren’s interests in a polygamous society has eroded the benefits of the Act when (as is commonly the case) there are multiple spouses or children of multiple mothers. See Henrietta Mensa-Bonsu, “The Intestate Succession Law of Ghana: Practical Problems in Application” (1994) 8 Yearbook of African Law, 105. 7 Some writers have criticized the judgment as reintroducing the language of substantial contribution—and by extension, its challenges—into the post-1992 era. See M.Y.A Barnes, “Equality is Equity..​ or is it? A critical Examination of the Equality Principle .​ in Distribution of Marital Property.” In C. Dowuona-Hammond et al, Ghana@60: Mobilising the Law for Ghana’s Future (Wildy, Simmonds and Hill, forthcoming, 2020). 54  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu 8 Which allows the court to enforce any other internationally recognized human rights not expressly provided for in the Constitution. 9 This was an application for financial provision under the Matrimonial Causes Act. However, the court discussed the point and intimated that it would have been willing to grant her a proprietary interest had she applied for one. Constitutions and legislation Ghana Constitution, 1992 Intestate Succession Act, 1985 (PNDCL 111) Marriage Ordinance (Cap 127) Matrimonial Causes Act, 1971 (Act 367) Property Rights of Spouses Bill Intestate Succession Bill Lands Bill Other Government of Ghana, Accra Report of the Committee of Experts on draft Proposals for the Constitution, 1991, Assembly Press. Case law Abebreseh v. Kaah [1976] 2 GLR 46-42 Abobor v. Abobor (Accra H.C., Feb. 16, 1987) Achiampong v. Achiampong [1982-83] GLR 1017-1039 Adom v. Kwarley [1962] 1 GLR 112 Amissah-Abadoo v. Abadoo [1974] GLR 110 Anang v. Tagoe [1989–90] 2 GLR 8 Arthur v. Arthur [2013–2014] SCGLR 543 Ayer v. Kumordzie [1964] GLR 622 Beckley v. Beckley [1974] 1 GLR 393 Boafo v. Boafo [2005–2006] 705 Bulley-Neequaye v. Acolatse (1969) C.C. 51 Clerk v. Clerk [1981] GLR 583 Deborah Takyiwa v Kweku Adu, Unreported judgment of the High Court (Sunvani Suit No. L.C. 7/66) May 18,1971 Domfe v. Adu [1986] 1 GLR 653 Happee v. Happee [1974] 2 GLR 186 Electroland v. Adomako Unreported, decided April 22, 2009 HC Fynn v. Fynn [2013–2014] 1 SCGLR 727 Gyang v. Gyang (Accra H.C., Jan. 30, 1987) In re George Ntim: Marfoa v. Agyeiwaa, unreported suit no J2/42/2012 SC In re Kofi Antubam (decd); Quaico v. Fosu [1965] GLR 138 Kofi Tabury v. Adwoa Yeboaba unreported, decided January 24,2013 CA Kwawukume v. Kwawukume unreported, July 30, 2009 (CA) Jonas v. Ofori (Accra H.C., Jan II 1988) To win both the battle and the war 55  Manu v. Kuma [1963] 1 GLR 464 Mensah v. Mensah [1993–94] 1 GLR 111 Mensah v. Mensah [1998–99] SCGLR 350 Mensah (Gladys) v. Mensah (Stephen) [2010–2012] 1 GLR 204 Odoteye v. Odoteye [1984–86] GLRD 61 Okang v. Okang (Accra H.C., Sept. 3, 1985) Okwabi v. Adonu 2 W.A.L.R 268 Otoo v. Otoo (Unreported, June 26, 1984 H.C.) Owusu v. Nyarko [1980] GLR 428 Owusu v. Owusu March 17, 2011 (CA) Nanor v. Nanor Unreported, decided November 19, 2018 Quartey v. Martey [1959] GLR 377-383 Quartson v. Quartson [2012] 2 SCGLR 1077 Reindorf alias Sacker v. Reindorf [1974] 2 GLR 38 Ribeiro v. Ribeiro [1989–90] 2 GLR 109 SC Shardow v. Shardow unreported, July 31, 2009, High Court Sykes v. Abbey [1995–96] 1 GLR 81-90 Yaotey v. Quaye [1961] GLR 573 Yeboah v Yeboah [1974] 2 GLR 114 Bibliography Agyeman-Budu K. (2017) “The pursuit of actual equality: Women’s matrimonial property rights in Ghana since independence.” in Ghana @ 60: Governance and Human Rights in Twenty-First Century Africa, M. Addaney & M.G. Nyarko (eds.). Pretoria: Pretoria University Law Press. Appiah, E.M., Oduro, A.D., Baah-Boateng, W., & Boakye-Yiadom, L. (2011) Situation Analysis of the Intestate Succession and Property Rights of Spouses Legislation in Ghana. Legon: Department of Economics, University of Ghana. Archampong, E.A. (2007/8) “Matrimonial property division at marriage breakdown: The way forward.” KNUST Law Journal, 4, 78–98. .​ Barnes, M.Y.A. (in press) (2020) “Equality is equity..​ or is it? A critical examination of the equality principle in distribution of marital property.” in Ghana@60: Mobilising the Law for Ghana’s Future, C. Dowuona-Hammond et al. (ed.). London: Wildy, Simmonds and Hill. Daniels, E.W.C. (1972) The Legal Position of Women Under our Marriage Laws. (Vol IX No. 1), UGLJ, 1. Daniels, WC. (1965) “Towards the integration of the laws relating to husband and wife in Ghana” University of Ghana Law Journal, 20(2): 22 Daniels, WC. (1976) “Marital family law and social policy in WC Daniels, essays in Ghanaian law.” University of Ghana Law Journal, 92–117. Daniels, WC. (1977) “Notes and comments: Dissolution of customary law marriages by the court.” 9 Rev. GHANA L., 71, 76. Dankwa E.V.O. (1982–85) “Property rights of widows in their deceased husbands’ estate.” University of Ghana Law Journal, XVI, 1–24. Deere C.D., Oduro A., Swanamithan H., Doss, C. (2013) “Property rights and the gender distribution of wealth in Ecuador, Ghana and India.” The Journal of Economic Inequality, 11(2) 249–265. 56  Yaa Mensa-Bonsu and A.S. Mensa-Bonsu Doss, C.R., Deere, C.D., Suchitra, J.Y., Oduro, A.D., Hillesland, M. (2012) Lessons from the Field: Implementing Individual Asset Surveys in Ecuador, Ghana, India and Uganda. Bangalore: Indian Institute of Management Fenrich, J, & Higgins TE. (2001) “Promise unfulfilled: Law, culture, and women’s inheritance rights in Ghana.” Fordham International Law Journal, 25(2): 259. Kuenyehia A., & EO Aboagye (2004) “Family law in Ghana and its implications for women.” In Akua Kuenyehia (ed.), Women and Law in West Africa Situational Analysis of Some Key Issues Affecting Women, 23. Legon: University of Ghana. Mensa-Bonsu, H.J.A.N. (1994) “The intestate succession law of Ghana: Practical problems in application.” Yearbook of African Law, 8, 105–127. Mensa-Bonsu H.J.A.N. (2011–2012) “Ensuring equitable access to marital property; when the holy estate becomes an unholy ex- state- will the legislature walk the road paved by the courts?” University of Ghana Law Journal 99(1). Oduro, A.D., Baah-Boateng, W., Boakye-Yiadom, L.(2011) Measuring the Gender Asset Gap in Ghana. Legon: Department of Economics, University of Ghana. Accra: Woeli Publishing Services. Watnizek, U. (1991) “Integration of personal laws and women's access to property in Ghana: The matrimonial causes act of 1971.” Third World Legal Studies, 10, 75–107. Woodman, G. (1974) “The rights of wives, sons and daughters in the estates of their deceased husbands and fathers.” Legon Family Research Papers, No. 1. Legon: University of Ghana. Woodman, G. (1982) “The adaptation of customary law to the matrimonial causes act, 1971.” Review of Ghana Law, 13–14, 218, 219. Woodman, G. (1985) “Ghana reforms the law of intestate succession.” Journal of African Law, 29(1): 118. 4 “Judging” lesbians Prospects for advancing lesbian rights protection through the courts in Nigeria Pedi Obani, PhD Introduction The year 2020 marks two and a half decades since the United Nations Fourth World Conference on Women, popularly called the Beijing Conference. The ensuing Beijing Declaration and the Platform for Action marked a significant milestone in the global gender equality discourse and still significantly influence the international and various national agendas for women’s empowerment and gender equality. In addition to legal reforms, courts represent an important forum for promoting gender equality issues. In Nigeria, the courts play an important role of denying enforcement to discriminatory customary practices and statutes entrenching gender inequality (Ekhator, 2015; Enabulele & Bazuaye, 2019). Nonetheless, issues of women’s sexual and reproductive health and rights are still impacted by legal, cultural, and religious factors, among others, including the legal restrictions on same-sex relations (Anozie, 2020). In addition to the extant criminalization of sexual offenses against the “order of nature” under the Criminal Code Act (1916) and more recent Penal Code provisions, Nigeria has in recent decades witnessed more restrictive legal changes on non-heterosexual relations, which have in turn spurred the LGBT (lesbian, gay, bisexual, and transgender) movement (Sogunro, 2017). This is not unconnected with the trends of increas- ing focus on lesbian, gay, bisexual, transgender, and queer (LGBTQ) issues in the global political discourse and in social justice movements (Amaya & González, 2019; Ashford, 2010; United Nations, 2013). The attributes and experiences of non-heterosexual sexualities and non- binary genders in Nigeria are often homogenized under the description of “gay” or LGBT, whereas the term LGBT itself “encompasses a complex and contradictory set of identities, political agendas and collective actors” (Amaya & González, 2019: 372; Namwase et al., 2017). At the same time, the LGBT movement in Nigeria has been expanding in recent years to include emerging gender identi- ties and sexualities (Sogunro, 2018). There is also growing reference to the term “queer” in the LGBT movement in Nigeria, and across the African continent, in relation to deconstructing sexuality (Massaquoi, 2013; Matabeni, 2014; Moreau & Tallie, 2019). Lesbians1 specifically face intersecting forms of discrimination that impact their access to justice (CEDAW, 2017). However, lesbians have DOI: 10.4324/9780429327865-5 58  Pedi Obani been historically under-represented in the scholarly literature on sexual minori- ties (Currier & Migraine-George, 2017), and feminist literature exploring themes around sexual minorities has been disapproved of in mainstream scholarship (Malumfashi, 2019; Whitsitt, 2003). Lesbians are also under-represented in the LGBTQ movement in Nigeria. To date, there has only been one decided case by a Nigerian court that specifically involves lesbian rights (freedom of association), the case of Pamela Adie v Corporate Affairs Commission (2018), which will be discussed in more detail further on in the chapter. In contrast, there are currently 15 cases before the Federal High Court in Lagos, all on issues involving the rights of gay men.2 This also makes it even more likely that the recognition of sexual minority rights in Nigeria may come through a case on gay rights. Adopting a feminist intersectional perspective, this chapter uses qualitative research methods to address the question: how can courts protect lesbians in Nigeria against discrimination on the grounds of their gender identity? The research combines analysis of legislation and case law, interview data, and participant observations to understand the links between the legal framework and experiences of lesbians in the society (Venturi, 2017; Ashford, 2010). Attempts were made to secure interviews with members of the lesbian community (including self-identifying lesbians and LGBTQ advocates), being mindful of the heterogeneity of the com- munity and how intersecting identities might affect an individual’s experiences of discrimination. Initial attempts to contact LGBTQ organizations in Nigeria through emails were unsuccessful. The experience revealed the challenges of conducting qualitative research on LGBTQ issues due to the sensitive nature of the subject and the vulnerability of members of the community (Suen, 2015). Another round of attempts was made using the snowballing technique. This involved contacting LGBT scholars and advocates outside Nigeria, who assisted with identifying willing respondents in Nigeria. Through this, it became possible to gain access to key actors in the LGBTQ community in Nigeria and have mean- ingful engagements for this research. In the end, five key informant interviews were conducted with two self-identified Nigerian lesbians who have themselves experienced various forms of discrimination in Nigeria and are leading activists, one Nigerian lawyer who has been directly involved in LGBTQ advocacy and seeking justice for lesbians through both formal and informal justice mechanisms in Nigeria, and two queer scholars. The chapter is divided into four sections. The first section presents the ground- ing of the research in intersectionality theory. The second section highlights two levels of discrimination experienced by lesbians through expounding on social discrimination and forms of violence, and discrimination and erasure in legisla- tions. The third section focuses on access to justice in the courts and draws from the jurisprudence of the African Charter on Human and Peoples’ Rights system and domestic courts in African countries such as Botswana and South Africa for the analysis of constitutional rights protections. The fourth section builds on the research findings to make pragmatic recommendations for a multi-stakeholder approach and judicial activism for the protection of lesbians against discrimina- tion in Nigeria. “Judging” lesbians 59 Framing intersectionality as context and reality Situating this study in intersectionality theory is necessary to support analyzing and framing of how lesbians experience intersecting forms of vulnerability to vio- lence and discrimination and inequality, which also creates barriers to accessing justice. The relationships between inequality and social identities, such as gender and sexual orientation, are interactive rather than additive (Bowleg, 2008). As such, a generalized human rights analysis for female sexual minorities is only a first step toward understanding the diverse experiences occasioned by respective multiple identities and would not capture the cumulative effects of the interac- tions between inequality and social identity. Generally, negative attitudes toward minority sexual orientations often converge with other social identities, includ- ing age and economic status, to occasion human rights violations (Biddulph, 2006; Afe et al., 2019). Even within similar settings, the experiences of sexual minorities are known to differ based on multiple identities such as ethnicity, reli- gion, social class, income, geographical location, health status, age, educational qualifications, race, and more (Meyer, 2012; McGuffey, 2018). In the African context, some of the nuances are mostly reflected in tensions between the regulation of female sexuality in formal institutions, particularly “Westernized” settings, versus more traditional societies. For instance, while female nakedness has been used as a sign of protest (Tamale, 1996) and con- notes a spiritual dimension in some traditional settings, it is common to have women’s dress codes regulated in churches, schools, and other formal settings as a means of upholding “morality.” Moreover, the history of lesbianism in African societies has been characterized by fluidity and complex meanings beyond the simplistic and rigid binary understanding of same-sex relations in Western litera- ture. In addition to women engaging in same-sex relations, the concept of minor- ity female identities is further complicated by men who adopt feminine roles or attributes or are sexually attracted to other men—such as the “Yan Daudu” in northern Nigeria (Ayeni, 2017; Gaudio, 2009) and the “Gor-Digen” in Senegal (M’Baye, 2013). “Yan Daudu” describes cross-dressing males who also display sexual ambiguity and are associated with feminine attributes. “Gor-Digen” means “man-woman,” who are also cross-dressing or gender non-conforming. The com- plexity of meaning around gender and sexuality is well covered in the African queer literature (Amadiume, 1987; Gay, 1985; Kendall, 1999; Oyèrónké, 2005). Intersectionality theory expands our understanding of the location of multi- ple identities and how they intersect while opening up possibilities for exploring the links between the identities and individual or group experiences (Crenshaw, 1991). Intersectionality itself is rooted in the experiences of women of color and the limitations of homogeneous feminist approaches, which did not account for the different yet convergent social identities of women (Crenshaw, 1991; Schiller, 2000). McCall (2005) identifies three approaches adopted by intersectionality theory scholars to manage the complex intersecting social relations in social life: anticategorical complexity; intracategorical complexity; and intercategorical complexity. Anticategorical complexity challenges set categories because “social 60  Pedi Obani life is considered too irreducibly complex … to make fixed categories anything but simplifying social fictions that produce inequalities in the process of produc- ing differences” (McCall, 2005, p.1773). Intracategorical complexity acknowl- edges established social categories and mainly manages complexity by focusing on particular social groups at neglected points of intersection, represented by individuals. Intercategorical complexity similarly acknowledges established social categories and analyzes relationships of inequality along multiple and con- flicting dimensions rather than focusing on complexities within a single group. The application of intersectionality in this chapter is “group-centered” (Choo & Ferree, 2010) and falls under McCall’s (2005) intercategorical approach. This group-centered intersectionality analysis has been applied by scholars to understand the experiences of individuals who belong to a single group, such as black lesbians, but have experiences differentiated by the other categories with which they also identify—such as race, class, or ethnicity (Moore, 2012; Collins, 2004). The racial dimension is not a major concern for the LGBTQ movement in Nigeria. However, other categories such as gender, sex, ethnicity, class, age, education, and location (in urban or rural areas) are some of the prominent cat- egories experienced. This research considers how intersecting categories (such as gender, sexual orientation, class, and location) experienced by lesbians in Nigeria affect discrimination and access to justice. Lesbians’ experiences of discrimination Social experiences Overall, lesbians experience diverse forms of vulnerability to violence and dis- crimination in different spheres of life (Azuah, 2016; The Initiative for Equal Rights, 2018). There are two main angles to the consideration of lesbian vulnera- bility and discrimination in society; one is in connection with the wider Nigerian LGBTQ community, and the second is in relation to heterosexual women. Within the LGBTQ community, lesbian issues generally receive less attention, as the focus is mainly on gay and bisexual men. This is attributed first to the patriarchal foundations of the Nigerian society and the fact that women’s issues are generally not prioritized in the public domain. In the words of Interviewee 1: The idea that gay men are a direct breach to patriarchal notions means that even people who are ordinarily anti-LGBT don’t often see women as a threat to this social understanding of what sexuality means, it’s this whole patriar- chal system. If anything, even lesbian sexuality is considered entertainment for men. Another possible explanation is that the origin of the LGBTQ movement in Nigeria is connected to the prevention of the spread of HIV/AIDS among gay and bisexual men, while lesbian issues have emerged more recently in the public domain (Interviewee 5). “Judging” lesbians 61 The second angle questions whether lesbians, and indeed other queer women, face forms of vulnerability and discrimination that are either distinct from and/ or additional to those experienced by heterosexual women. Two perspectives emerge in connection with this. First, lesbians face similar forms of vulnerability and discrimination as most women, irrespective of their sexuality. This perspec- tive was not popular among the key informants connected to the LGBTQ com- munity compared with other lawyers working in specialized areas (including land law, customary succession, and adoption rights issues) who were contacted for this study (cf. Ayebazibwe, 2019). Conversely, the more prevalent view among the key informants is that lesbians face additional forms of discrimination com- pared with heterosexual females simply because of their sexual orientation. For Interviewee 5: The discriminations that lesbians face in Nigeria which I have recognized is literally all the kind of discrimination that women face. (What) queerness does to that is only to deepen such discrimination. The only thing you may add to that in respect of women who are gender non-conforming is they experience a piled on layer of violence which is both systemic and social, … and basically amplifies the effect of the baseline discriminations that women already face. Within the home, lesbians, particularly young lesbians who are closeted or whose families do not approve of their sexual orientation, are exposed to various forms of abuse, including financial, physical, and social stigmatization. In some cases, it is family members who perpetrate social stigmatization, rejection, and various forms of violence against lesbians. Interviewee 4: And so we see a lot of things like “corrective rape” happening within our community, where your family member can arrange somebody for you, some- one that is going to rape you in an attempt to “correct” your sexual orien- tation and to make you straight. And we see people suffer from that. We see people go to the churches for so-called “deliverance” and sometimes the church that is supposed to protect you (is) the one that violates you. So, we hear cases of rape again…, cases of sexual assault. Additionally, there is workplace discrimination, with lesbians experiencing unwanted social advances from men in the workplace and being denied opportu- nities for career advancement on grounds of their sexual orientation; indiscrimi- nate arrest on grounds of perceived sexual orientation; blackmail and extortion from persons threatening to expose their sexual orientation to their families or the public; pathologization of lesbianism as a condition that needs to be treated; and trivialization as something that is “not to be taken seriously” or “a form of entertainment for men” (The Initiative for Equal Rights, 2019a; Human Rights Watch, 2016). Lesbians in Nigeria appear to be additionally vulnerable to pov- erty and physical assault and other forms of discrimination and human rights 62  Pedi Obani abuses, especially when they are forced out of home and have to live with stran- gers or miss out on educational and livelihood opportunities as a result. Also, on the political level, even though there is no rule against participation in electoral processes, there is no record of a lesbian running for political office, and they remain under-represented in the political space, where laws affecting them are made mainly by men (The Initiative for Equal Rights, 2019a). Erasure in statutes Within domestic laws in Nigeria, there are instances of tacit forms of erasure of women and non-gender-conforming persons. This commonly occurs where legal provisions relating to sexual minorities directly address men only, even though the spirit of the law is understood to cover sexual minorities generally. Instances are found in the Criminal Code Act (1916), the Armed Forces Act (1993), and the Same Sex Marriage (Prohibition) Act (2013). The Criminal Code Act (1916) provisions sanctioning offences “against the order of nature” do not expressly mention women as “perpetrators” except when the female involved “permits a male person to have carnal knowledge of … her against the order of nature” (Criminal Code Act (1916) s. 214). The Criminal Code Act (1916) s. 217 expressly states: “Any male person who, whether in public or private, com- mits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to pro- cure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony, and is liable to imprisonment for three years.” Remarkably, similar prohibitions of unnatural offenses have in recent times been declared unconstitutional in countries such as India (Misra, 2009; Ruduša, 2019) and Botswana (Montz, 2019), particularly in cases involving consensual sexual relations between adults that are held in private. In contrast, Shari’a laws of some states in northern Nigeria criminalize lesbianism. For instance, the Shari’a Penal Code Law 2000 (Zamfara State) prohibits both sodomy (Liwat), defined as having “carnal intercourse against the order of nature with any man or woman” (Shari’a Penal Code Law (2000) s. 130), and lesbianism, defined narrowly as sexual acts between two women (Shari’a Penal Code Law (2000) s. 134). Paradoxically, the punishment for sodomy is more severe (100 lashes and one year’s imprisonment for the unmarried, and stoning to death for the mar- ried) than that for lesbianism (50 lashes and a term of imprisonment of up to six months). Having “carnal knowledge against the order of nature” is also prohibited under the Armed Forces Act (1993) s. 81 with respect to persons subject to the service law under the Act. This offense renders the perpetrator liable, upon conviction by a court martial, to imprisonment for a term of seven years or any lesser pun- ishment under the Armed Forces Act. Interpreting the provision of the Armed Forces Act (1993) s. 81, the Supreme Court of Nigeria in Magaji v. The Nigerian Army (2008) defined the order of nature as “carnal knowledge with the female “Judging” lesbians 63 sex.” It is possible that there was no reference to sex between females in the case because the appellant before the court was a male. Nonetheless, the court in this case missed an opportunity to proffer an inclusive definition of “carnal knowledge against the order of nature” in the context of diverse sexual identities of both males and females. The Same Sex Marriage (Prohibition) Act (2013) s. 4 generally criminalizes the contracting of same-sex marriage or civil union, social activities, or public display of amorous relations by same-sex couples, or any form of support for these activities. The Same Sex Marriage (Prohibition) Law (2007) for Lagos State con- tains similar provisions as the national Same Sex Marriage (Prohibition) Act (2013) (Sogunro, 2017). The Same Sex Marriage (Prohibition) Act (2013) s. 5(3) directly sanctions a person or group of persons who administers, witnesses, abets, or aids the solemnization of a same-sex marriage or civil union, or supports the registration, operation, and sustenance of gay clubs, processions, or meetings, liable on conviction to ten years in prison. Although there is no mention of les- bians or bisexual or queer women throughout the law, it was applied by the court in the Pamela Adie case to uphold the Corporate Affairs Commission’s refusal of registration to a non-governmental organization for lesbian rights. The Same Sex Marriage (Prohibition) Act (2013) is seen as critical to addressing issues of dis- crimination and violence against lesbians and other sexual minorities in Nigeria (Ayeni, 2017; Human Rights Watch, 2016). Interviewee 2: It is with the Same Sex Marriage (Prohibition) Act that even just holding hands in public can be seen as a criminal activity. Previous legal provisions on homosexuality and carnal knowledge against the order of nature focus on the sexual act itself and not on identifying as a gay or lesbian. When people know that same sex cannot display affection in public, people take advantage of it. Just on the basis of perceived sexual orientation, people mob a suspect, a gay man or a lesbian. People are emboldened to carry out these atrocities, because they feel society supports them, they feel religion supports them, they feel the law supports them. The law, the Same Sex Marriage (Prohibition) Act and others, has emboldened perpetrators of violence. Moreover, in the Nigerian setting, where there is a lot of pressure on young women to get married (Ntoimo & Isiugo-Abanihe, 2014), the Same Sex Marriage (Prohibition) Act (2013) restriction on same-sex marriage exposes les- bians to additional layers of stigmatization, vulnerability, and rights violations. Interviewee 3: Sometimes, due to the pressures, they are forced to get married and end up in a dysfunctional relationship. This confuses their children. They are hardly home and they expose themselves to health infections because they cannot be in stable relationships. It is multilayered because even to be in a relation- ship is a problem. For instance, one of my friends had to pretend and say that her lover is her sister. Her landlady went as far as making enquiries and 64  Pedi Obani decided that she cannot continue renting out her house to two women who are together. You cannot be open about the relationship. At some point, you have to prove that the person is your sister. You have to be cautious; you have to live correctly, if you are with your girlfriend, there are certain things you cannot do in public. Despite the challenges noted by interviewees, a recent survey of social percep- tion on LGBT rights indicates changing attitudes and a slight (7%) decrease in the level of support for the Same Sex Marriage Prohibition Act: 75% sup- port in 2019 compared with 90% support in 2015 (The Initiative for Equal Rights, 2019b). Former President Goodluck Jonathan, who signed the Same Sex Marriage Prohibition Act into law in 2014, declared two years later, in 2016, that “in the light of deepening debates for all Nigerians and other citizens of the world to be treated equally and without discrimination, and with the clear knowledge that the issue of sexual orientation is still evolving, the nation may, at the appro- priate time, revisit the law” (Feder, 2016). Nonetheless, the Same Sex Marriage Prohibition Act remains in force throughout Nigeria, being a federal-level law, subject to judicial or legislative review. Access to justice in the courts It is difficult to conclusively assess the judicial attitude to lesbian rights in Nigeria for several reasons. First, most cases do not make it to court either because the victims are closeted and do not wish to press charges or because the justice deliv- ery system, particularly the police, has failed to diligently investigate and pros- ecute the matter, thereby effectively “revictimizing” the victim. Illustrating an instance of workplace discrimination that went unreported, Interviewee 2: This happened because she (the victim) would have to narrate what has hap- pened and the fact would include revealing her own sexual orientation. Was she ready? She was not ready. Would the table turn? Possibly, yes, the table could turn! They (the police) leave the investigation and start discussing her sexual orientation. Second, the chance of obtaining justice also varies according to the rights viola- tions alleged. For Interviewee 1: If you are using your sexuality as the focal point, the Nigerian court system has so far proven to be inhospitable to recognizing that same sex relation- ships exist and that there are people who go beyond the binaries of male/ female identity or the straight sexual orientation. The perception is, therefore, that cases of police brutality or unlawful arrest would likely be “easier” to establish in court and obtain justice. A ready example is the case of Ifeanyi Orazulike v. Inspector General of Police & Abuja Environmental “Judging” lesbians 65 Protection Board (2014). Ifeanyi Orazulike (the applicant), a renowned LGBT advocate, filed a motion on notice in the Federal High Court in Abuja for the enforcement of his fundamental rights. The applicant claimed that he was arrested by the police during his birthday celebration in his office in Abuja and subjected to humiliating and dehumanizing treatment during the raid of his office and his detention. The raid occurred after the enactment of the Same Sex Marriage (Prohibition) Act (2013). The police did not bring any charges against the applicant that warranted the raid. The court ruled in favor of the applicant, stating that his rights to personal liberty, dignity, and freedom of movement had been violated. There are also laws protecting against discrimination and violence that extend to everyone in the society and can form the basis for instituting related actions in court. An example is the HIV/AIDS (Anti-Discrimination) Act (2014) for the prevention of discrimination based on real or perceived HIV status and the provision of access to healthcare and other services to everyone. Another is the Violence against Persons (Prohibition) Act (2015), which “prohibits all forms of violence against persons in private and public life and provides maxi- mum protection and effective remedies for victims and punishment of offenders” (Explanatory Memorandum, n.p.). The Violence against Persons (Prohibition) Act (2015) is only applicable in the Federal Capital Territory Abuja and needs to be enacted by the house of assembly of each of the remaining 36 states to became effective in other parts of the country. A third factor affecting access to justice is linked to how personal attributes, such as wealth, income, level of education, and overall status in the society, offer intersecting layers of protections to the LGBTQ community in general and influence the decision to even engage the justice systems. Interviewee 3: “the more visible you are, the easier it gets.” This is seen as a critical deciding factor in instances of successful enforcement of fundamental rights protection by the LGBTQ community, as in the Ifeanyi Orazulike case. Most lesbians in Nigeria live in vulnerable situations, including those in rural or remote areas with limited availability of justice, and most who cannot afford the high cost of legal repre- sentation are unable to access justice systems without external support from non- governmental organizations. Heterosexual women in Nigeria face comparable barriers to accessing justice (CEDAW, 2017). This informs the expectation that progress with gender equality issues, including sexual and reproductive autonomy for women in Nigeria, might culminate in a recognition of lesbian sexuality. Interviewee 1: This [advancement of lesbian right issues in close connection with sexual and reproductive rights from women] is different from the way gay issues are evolving. Because women have long faced this whole idea of your body is not yours. It’s either your father’s or your husbands or just society’s decision to decide (that) you can’t show this, you can’t show, you can’t wear that, you can’t be seen here, you can’t open your hair here. Women’s bodies have been policed for such a long time that if there is any breakthrough in that 66  Pedi Obani it is much more likely that that is where you will have that breakthrough in women’s sexuality. The only case so far decided on lesbian issues in Nigeria is Pamela Adie v. Corporate Affairs Commission. In the Pamela Adie case, the respondent (the government agency in charge of company registration and related matters in Nigeria) had rejected the registration/reservation of the applicant’s proposed name of an organ- ization that was to be called “Lesbian Equality and Empowerment Initiatives.” The applicant requested the court to declare that the respondent’s refusal was a violation of her rights to freedom of expression and association under the Constitution of the Federal Republic of Nigeria (1999) and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (1983). The applicant sought a court order enforcing her right to assemble and associate under the stated name and to have the name registered. Additionally, the applicant requested an order of mandamus directing the respondent to issue a notice of approval of the proposed name for registration. The court held that “so far as the Same Sex Marriage (Prohibition) Act is still operative in Nigeria and has not been repealed, the case of the Applicant must fail.” This justifies the following observation by Interviewee 2: If the Same Sex Marriage (Prohibition) Act can be systematically addressed, then the problem is half solved. The next issue would be the Criminal Code, and this is deeply engrained in the religious nature of the Nigerian society. Other decided cases on gay rights also allow a preliminary assessment of indi- cations of justiciability of sexual minority issues in Nigerian courts.3 In an ear- lier case, Teriah Joseph Ebah v Federal Government of Nigeria (FGN) (2014), the applicant instituted the action on behalf of the “Gay Community in Nigeria” and asked the court to consider the constitutionality of the Same Sex Marriage Prohibition Act. The case was dismissed for lack of locus standi because the court noted that there was no such community in Nigeria. The applicant had insti- tuted the originating summons before the Federal High Court of Abuja under the Fundamental Rights (Enforcement Procedure) Rules (2009). The Fundamental Rights (Enforcement Procedure) Rules (2009) requires the court, among others, to encourage and welcome public interest litigation on human rights and pro- vides that no human rights case may be dismissed or struck out for lack of locus standi (Onuora-Oguno, 2017). In fact, the court in the Pamela Adie case noted that one of the fundamental changes brought about by the Fundamental Rights (Enforcement Procedure) Rules (2009) was a move away from procedural techni- calities and that the court, being a court of justice, “will not allow technicalities to stand in the way of substantial justice,” contrary to the Teriah Joseph Ebah decision. The Pamela Adie case is therefore still considered by some of the key informants in this study as an instance of access to justice in the court. The per- ception of the interviewees is in line with the idea that justice is not tantamount “Judging” lesbians 67 to victory in court: existing layers of discrimination against lesbians would need to be progressively dismantled one at a time, and every “victory” is an important milestone to accessing justice. Constitutional rights protection Cases on LGBTQ issues in Nigeria have been mainly argued on the grounds of constitutional rights. Although the courts are yet to declare on the constitution- ality of legislative restrictions on same-sex relations, human rights protections and the enforcement procedures feature prominently in the court decisions on LGBTQ-related issues in Nigeria. Much of the scholarly focus on LGBTQ issues in Nigeria has also been on the implications of laws sanctioning homosexuality on constitutionally guaranteed human rights (Akogwu, 2018; Anozie, 2020), the right of the Nigerian government under international law to legitimately exer- cise national sovereignty to impose the restrictions in the Same Sex Marriage Prohibition Act (Nnamuchi, 2019), and the cultural and moral dimensions of the restrictions (Arimoro, 2018). The Constitution of the Federal Republic of Nigeria (1999) s. 42 prohibits any form of discrimination against any citizen of Nigeria “of a particular community” or “sex” on the basis of being a member of the particular community, sex, or other listed group. The Nigerian Constitution does not expressly prohibit discrimi- nation on the ground of sexual orientation, unlike the Constitution of South Africa 1996 s. 9(3), which prohibits the state from unfairly discriminating against anyone on one or more grounds, including sexual orientation. Nonetheless, the African Charter on Human and Peoples’ Rights (1981) (“Banjul Charter”) Art. 2, which has been enacted into law in Nigeria since 1983, requires that “every individual shall be entitled to the enjoyment of the rights and freedoms rec- ognized and guaranteed in the present Charter without distinction of any kind such as …, sex, … or other status.” The Banjul Charter Art. 2 does not expressly mention “discrimination,” but the Banjul Charter Art. 6 refers to distinction and equality before the law. Any law prohibiting marriage on a “suspect ground” offends against equality and considering sexual orientation as a “suspect ground” also suggests discriminatory treatment (Rudman, 2015). The Nigerian Constitution s. 37 also expressly guarantees and protects the right to private and family life of all citizens. In line with this, it is the right of citizens to enjoy their privacy, including the right to carry out sexual activities within their private spaces. In South Africa, in the case of National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), the Constitutional Court held that the offense of sodomy was inconsistent with the fundamental rights to equality, dignity, and privacy guaranteed in the country’s constitution. The court distinguished between the right to hold religious beliefs and the state’s ability to impose these beliefs on the entire population, “even in moderate and gen- tle forms.” It further stated that there was no valid purpose suggested for the limitation and “the enforcement of the private moral views of a section of the 68  Pedi Obani community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose” (Jernow, 2011, p.18). Similarly, in the Botswana case of Letsweletse Motshidiemang v Attorney General; LEGABIBO (Amicus Curiae) (2019), the High Court held that the provisions of the Botswana Penal Code that criminalized (attempts to commit as well as commission of) unnatural offenses violated constitutional protections of the rights to liberty, dig- nity, privacy, and freedom from discrimination. The High Court of Botswana further held in that case that the Botswana Penal Code s. 167, which had hith- erto criminalized “indecent” practices between persons, whether in public or in private, should be amended to exclude practices carried out in private in order to ensure compliance with the Constitution of Botswana. The Nigerian Constitution s. 39 guarantees every person the freedom of expression, including the freedom to hold, receive, and impart ideas and opin- ions without interference. The Nigerian Constitution s. 40 also guarantees every person their freedom of association, including the freedom to “form or belong to any political party, trade union or any other association for the protection of” the individual’s interests. The right to freedom from discrimination and rights to pri- vate and family life, freedom of expression, and freedom of association are, how- ever, violated by laws criminalizing LGBTQ activities, with nuances for lesbians. In the Kenya case of Eric Gitari v. NGO Board & 4 others (2015), the Kenya High Court held on the basis of the proportionality principle that it was wrong for the national non-governmental organization (NGO) board to refuse to register an LGBT association on the basis of moral beliefs, as this was an infringement of the freedom of association of LGBT minorities. Notwithstanding, same-sex relations are still criminalized in Kenya. The High Court in the Kenya case of EG & Ors. v. The Attorney General & Ors. (2019) ruled against decriminalizing same-sex relations, stating that the extant restrictions do not violate the right to privacy and dignity enshrined in the Constitution of Kenya 2010 Arts. 28 and 31, and that a decision to the contrary would promote same-sex unions, which was against the values of the Constitution of Kenya. The Nigerian Constitution s. 45(1) also provides that neither the right to pri- vacy nor freedoms of thought, conscience and religion, expression, and peaceful assembly and association “shall invalidate any law that is reasonably justifiable in a democratic society: (a) in the interest of defense, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.” These grounds for limitation of human rights are far reaching and yet to be adjudicated by the courts in Nigeria, even though the links between law and morality in connection with sexuality remain topical (Agyeman-Budu, 2018; Meerkotter, 2019). Nonetheless, based on the rule of law, arbitrary interference with human rights is not justifiable. Rather, any limitation of rights can only be justified if it is propor- tional, considering the extent of the limitation and the outcome. The principle of proportionality has been applied by national courts in other jurisdictions to assess restrictions on constitutional rights. In striking down the sodomy laws in the case of National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), the “Judging” lesbians 69 Constitutional Court of South Africa considered the lack of valid purpose sug- gested for the limitation while also observing that “the private moral views of a section of the community…, cannot qualify as … a legitimate purpose” (Jernow, 2011, p.17). Similar reasoning has also been applied by the African Commission of Human and Peoples’ Rights in interpreting the impact of “claw-back clauses,” which have a similar effect of limiting the applicable rights guaranteed in the Banjul Charter. A claw-back clause is a limitation clause that permits, under normal circumstances, the breach of a human rights obligation based on specific public reasons (Higgins, 1976; Udombana, 2000). This makes a claw-back clause distinct from a derogation clause permitting the breach or suspension of a human rights obligation only during war or public emergency, as special circumstances. In line with the principle of proportionality, the African Commission on Human and Peoples’ Rights in the case of Constitutional Rights Project v. Nigeria (1999–2000) declared: “[T]he justification of limitations (under Article 27(2) of the Charter) must be strictly proportionate with and absolutely necessary for the advantages which follow. Most important, a limitation may not erode a right such that the right itself becomes illusory.” The Banjul Charter Art. 27 (2) reads: “[T]he rights, and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.” Similarly, the African Court on Human and Peoples’ Rights in the case of Mtikila v The United Republic of Tanzania (2013) held that the jurisprudence regarding the restriction on the exercise of rights has devel- oped the principle that, the restrictions must be necessary in a democratic society; they must be reasonably proportionate to the legitimate aim pursued. Once the complainant has established that there is prima facie violation of a right, the respondent state may argue that the right has been legitimately restricted by “law,” by providing evidence that the restriction serves one of the purposes set out in Article 27(2) of the Charter. Furthermore, as the African Commission on Human and Peoples’ Rights reiter- ated in Article 19 v. Eritrea (2007), “the Commission’s jurisprudence has inter- preted the so-called claw-back clauses as constituting a reference to international law, meaning that only restrictions on rights which are consistent with the Charter and with states parties’ international obligations should be enacted by the relevant national authorities” (para. 92). Moreover, arbitrary deprivation of rights cannot be justified through “claw-back” clauses. It is therefore not enough for the state to rely on restrictions in existing domestic law, as the court men- tioned in the Nigerian case of Pamela Adie. Rather, human rights restrictions must be shown to be necessary and proportional. Recommendations and conclusion Progress with women’s rights issues in Nigeria, particularly around sexual and reproductive autonomy, benefits all women and can be expected to become a 70  Pedi Obani watershed for lesbian rights. This should therefore be a rallying point for both gender and sexuality rights advocates to promote strengthening of the legal framework for the protection of women’s gender and sexuality rights. Given the unique positionality of lesbians, it is further necessary to unpack the social and legal drivers of vulnerability and discrimination, which lesbians experience dif- ferently, depending on their respective social identities. Although the institu- tion of law, and justice systems, has in most cases primarily presented barriers to accessing justice for lesbians (and other sexual minorities), it also presents principles that can be drawn on for their emancipation. Achieving social change for lesbians through the courts would require a pro- active approach to the interpretation of fundamental rights guarantees in the Nigerian Constitution. Such a proactive approach could entail relying on the existing fundamental rights guarantees to protect lesbians from discrimination, various forms of violence, and outright human rights violations, which they experience because of their gender and sexual orientation, among other reasons. For this purpose, the interpretation of similar fundamental rights guarantees and the proportionality principle as applied in other jurisdictions to cases involv- ing sexual minority rights offers elements for assessing the legality of any inter- ference with rights on the grounds of gender or sexual identity. There is room for cross-jurisdictional learning drawing on the jurisprudence from the African Commission and domestic courts in other African jurisdictions on issues of pro- portionality in relation to the rights of sexual minorities. Some skepticism exists over the value of law in addressing marginalization and violence against sexual minorities, and it is suggested that law reforms need to occur as a part of wider strategies for transformation (Spade, 2015; Devji, 2016). The law and the courts hold key places in addressing discrimination against sexual minorities in Nigeria. As currently constituted, the notorious Same Sex Marriage (Prohibition) Act (2013) and other similar criminal sanctions are largely blamed for recent incidents of violence and discrimination against sexual minorities in Nigeria. These discriminatory practices are reflected in the court cases, particularly the decision of the court in the Pamela Adie case. In line with these developments, the judiciary has a primary duty to enforce the rule of law— particularly the Nigerian Constitution—and nullify, rather than enforce, any leg- islative provision that is relied upon to justify arbitrary limitations or violations of fundamental rights. From the few cases so far available on sexual minority rights in Nigeria, the law has been used to sometimes maintain the status quo, sometimes to remove techni- calities that affect access to justice, and at other times to create a paradox whereby sexual minorities are granted audience in the courts but do not achieve their desired “justice” outcomes. In the words of Iñaki Regueiro De Giacomi, “[L]aw functions at the same time as a tool to maintain the status quo of a community—which is what it is often used for—but there are also some exceptional and wonderful cases where law proves to be the opposite, a tool for social change” (Lalor et al., 2016, p.37). In the Nigerian context, the current trend in advocacy for sexual minor- ity rights has entailed legal challenge of a specific provision(s) of the Same Sex “Judging” lesbians 71 Marriage (Prohibition) Act (2013) on grounds of incompatibility with fundamen- tal rights guarantees and/or challenge against fundamental rights violations with- out any direct reference to the sexuality of the victims (usually of assault, unlawful arrest, or other forms of inhuman and degrading treatment). It is expected that the jurisprudence arising from such cases would eventually form the legal basis for a challenge to the constitutionality of the Same Sex Marriage (Prohibition) Act (2013) and other discriminatory laws highlighted in this chapter. Overall, the domestic courts remain a “last hope,” yet to be fully explored for access to justice for lesbians and many others in vulnerable situations in Nigeria because of both salient and underlying barriers to access to justice. Other quasi- judicial institutions and agencies that form part of the justice system, particularly the police, also play an intervening role and are more commonly involved in cases affecting lesbian rights. The police have been identified as playing an essen- tial role in the investigation and prosecution of cases (especially criminal cases). As such, any reforms aimed at enhancing the role of the courts in protecting lesbians against discrimination in Nigeria will necessarily have to address other social and legal barriers that affect the capacity of women and lesbians to seek redress in courts and engage with the justice system. Notes 1 The chapter adopts the definition of a lesbian as “[A] woman who is emotionally, romantically, sexually or relationally attracted to other women” (The Initiative for Equal Rights, 2019a). 2 Interviewee 2. 3 A case in which the issues of same-sex marriage was mentioned, specifically in con- nection with women, is Mr. Afam Okeke v Madam Helen Okeke (2017). In Okeke’s case, one of the issues for determination in the appeal was the validity of a customary practice that allows a woman to have posthumous children for her deceased husband. In delivering the lead judgement, Yakubu JCA stated that while advances in technol- ogy and globalization influence societal culture, this should not compromise the value system and ethos through encouraging practices such as same-sex marriage. Although the condemnation of same-sex marriage in the Okeke case was by way of obiter dictum, as this was not an issue for determination in the present case, it reflects the judicial attitude toward same-sex marriage as an “alien” and “immoral” culture that is not to be encouraged in Nigeria. References Afe, T.O., Ogunsemi, O., & Oyelekan, A. (2019). Social distancing toward gays and lesbians among college students in Lagos, Nigeria. Journal of Gay & Lesbian Social Services, 31(4), 546–557. doi: 10.1080/10538720.2019.1654424. Agyeman-Budu, K. (2018). Law & Morality in Africa: Towards a Rational Public Policy Framework for Regulating Intimate Human Conduct in Ghana (Unpublished doctoral dissertation). Fordham University, New York. Akogwu, A. (2018). Assessing the Human Rights Implications of the Nigerian Law Dealing with Sexual Orientation (Unpublished doctoral dissertation). University of Pretoria, Pretoria. 72  Pedi Obani Amadiume, I. (1987). 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In defense of constitutional morality recent jurisprudence from the global south on LGBTI rights affirms constitutional morality. Retrieved from: https​ :/​ /ww​​w​.sou​​thern​​afric​​aliti​​gatio​​ncent​​re​.or​​g​/wp-​​conte​​nt​/up​​loads​​/2019​​/07​/P​​olicy​​-brie​​f​-on-​​ Const​​​ituti​​onal-​​Moral​​ity​.p​​df Meyer, D. (2012). An intersectional analysis of lesbian, gay, bisexual, and transgender (LGBT) people’s evaluations of anti-queer violence. Gender & Society, 26(6), 849– 873. https://doi​.org​/10​.1177​/0891243212461299. Misra, G. (2009). Decriminalising homosexuality in India. Reproductive Health Matters, 17(34), 20–28. Montz, B. (2019). The fight to decriminalize homosexuality since the repeal of Section 377. 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Pretoria: Pretoria University Law Press. Nnamuchi, O. (2019). Nigeria’s Same Sex Marriage (Prohibition) Act and threat of sanctions by western countries: A legitimate case of human rights advancement or what? Southwestern Journal of International Law, 25(1), 120–154. Ntoimo, L.F.C., & Isiugo-Abanihe, U. (2014). Patriarchy and singlehood among women in Lagos, Nigeria. Journal of Family Issues, 35(14), 1980–2008. https://doi​.org​/10​.1177​ /0192513X13511249. Onuora-Oguno, A.C. (2017). Protecting same-sex rights in Nigeria: Case note on Teriah Joseph Ebiah v Federal Government of Nigeria. In S. Namwase & A. Jjuuko (Eds.), Protecting the Human Rights of Sexual Minorities in Contemporary Africa (pp. 238–244). Pretoria: Pretoria University Law Press. Oyèrónké, O. (Ed.). (2005). African Gender Studies: A Reader. New York: Palgrave Macmillan. Rudman, A. (2015). The protection against discrimination based on sexual orientation under the African human rights system. 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Discrimination against Persons Based on Sexual Orientation & Gender Identity Expression in Nigeria. Lagos: Initiative for Equality. Sogunro, A. (2018). Citizenship in the shadows: Insights on queer advocacy in Nigeria. College Literature, 45(4), 632–640. https://doi​.org​/10​.1353​/lit​.2018​.0037 Spade, D. (2015). Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law. Durham: Duke University Press. Suen, T.Y. (2015). Methodological reflections on researching lesbian, gay, bisexual and transgender university students in Hong Kong: To what extent are they vulnerable interview subjects? Higher Education Research & Development, 34(4), 722–734. DOI: 10.1080/07294360.2015.1051009 Tamale, S. (1996). Taking the beast by its horns: Formal resistance to women’s oppression in Africa. African Development, 21(4) 5–21. The Initiative for Equal Rights. (2018). Human, Not Number: Lived Experiences of Sexual Minorities in Nigeria. Lagos: Initiative for Equal Rights. 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Attorney General; LEGABIBO (Amicus Curiae) (2019) MAHGB-000591-16 (High Court of Botswana) Magaji v. The Nigerian Army (2008) LPELR-SC.204/2004 (Supreme Court of Nigeria) Mr. Afam Okeke v. Madam Helen Okeke (2017) LPELR-42582 (Court of Appeal of Nigeria) National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998) CCT 11/98 [1998] ZACC 15 (Constitutional Court of South Africa). Pamela Adie v. Corporate Affairs Commission (2018) Suit FHC/ABJ/CS/827/2018 (Federal High Court of Nigeria at Abuja) Strydom v. Nederduitse Gereformeerde Gemeente Moreleta Park [2008] 30 ILJ 868 (Equality Court of South Africa) Teriah Joseph Ebah v. Federal Government of Nigeria (FGN) (2014) Suit FHC/ABJ/ CS/197/2014 (Federal High Court of Nigeria at Abuja) Treaties, constitution and statutes African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (1981) Cap. A9 Laws of the Federation of Nigeria 2004 Armed Forces Act (1993) Cap. 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P3 Laws of the Federation of Nigeria 2004 Same Sex Marriage Prohibition Act 2013 (Nigeria) Shari’a Penal Code Law of 2000 (Zamfara State, Nigeria) UN Human Rights Committee (HRC), CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984 Part II Emerging gender issues in the courts   5 Femicide and judging Social media as an alternative online court in Kenya Stephen Muthoka Mutie, PhD Introduction When the hyena is the judge, the goat has no rights Kenyan proverb On December 10, 2019, a petition, which included five demands and a call for the Ministry of Education to commit to ensuring higher learning institutions uphold the laws on sexual harassment outlined in the Sexual Offences Act No. 3 of 2006 section 23 and 24, was delivered to the Cabinet Secretary in the Ministry of Education in Kenya. This petition was dubbed #CampusMeToo and was waged on social media. This petition came against the backdrop of the rising number of femicide1 cases in the country. According to Counting Dead Women − Kenya, a nationally recognized and respected Twitter account that creates an online archive highlighting the number of Kenyan women who are victims of femicide reported in the Kenyan media, 108 women were victims of femicide between January 1, 2019, and December 30, 2019. What is also problematic, however, is that when these deaths are reported in the Kenyan mainstream media, the facts are often one-sided, a distortion that directs the public conversation in the wrong direction. Inadvertently, this one- sidedness serves to disparage the reputations of victims, often portraying them as having contributed to their deaths by being involved intimately with other men apart from those who killed them, or by failing to requite affection from their partners (Mutune, 2019). While femicide victims are blamed, the killers are often sanitized as cool men who had never shown any signs of “stress” or staunch African men who could not bear “love gone sour.” Gender-based violence (GBV) has a long history in Kenya. It is a normalized violation of women dating back many decades (Morrison, 2007). The Kenyan communities uphold, practice, and normalize violence against women, mostly perpetuated as a form of discipline. It is noteworthy that the most practiced gen- der-based violence occurs in the family setting in the form of domestic violence, which is the use of force or threats by a husband or boyfriend to coerce or intimi- date a woman into submission (National Gender and Equality Commission, DOI: 10.4324/9780429327865-7 80  Stephen Muthoka Mutie 2016). According to the 2008–2009 Kenya Demographic and Health Survey, about 45% of women aged between 15 and 49 years had experienced gender- based violence. Some of these GBVs end up being femicide cases. The World Bank’s Poverty and Gender Assessment report 2015–2016 notes that “in 2014, 22 percent of Kenyan women and 19 percent of Kenyan men agreed with the statement that a husband is justified in hitting or beating his wife if she goes out without telling him” (World Bank, 2018). Historically, there has been a strong link between physical violence and mar- riage, with a prevalence of GBV among women who have been married. World Bank research has shown that “women who have ever been married, and espe- cially those who have gone through a marital dissolution” are more likely to have experienced physical violence than women who had not been married, indicating that current or former spouses are often perpetrators of violence (World Bank, 2018). Additionally, age can also play a role in the risk that a woman experiences GBV, as well as whether the woman is remarried, and her employment status. Women who marry after the age of 25 are less likely to experience GBV than women who marry before they turn 15. In addition, women who have married more than once are almost four times more likely to have experienced GBV than women who have been in only one union (World Bank, 2018). Whereas GBV and femicide may now be a national tragedy in Kenya, mainly rooted in exploitive power dynamics and entrenched by a cursory application of the law, there is a human rights need to spark a national conversation on these vices. This conversation has already begun in earnest in the new media, specifi- cally in social media. Social media2 in Kenya provides a national conversation that preserves the integrity of women’s voices and builds a shared understand- ing that both men and women can speak up and speak out without the fear of reprisals. It provides an alternative space for articulating and amplifying resisting voices. Femicide and GBV are unethical and illegal practices that hurt women and families. However, in most cases, the necessary measures are not taken to effec- tively enforce the Sexual Offences Act No. 3 of 2006, especially sections 3, 4, 5, 8, 9, 10, 11, 23, and section 24 on sexual offenses relating to positions of authority and persons in a position of trust, or to prevent femicide and violence against women in formal courts. In Kenyan parlance, statements like “no stone will remain unturned until we bring the culprits to book” are mostly used, and then forgotten. The national anger subsides until another femicide or GBV case is reported. According to #CountingDeadWomenKenya, eight Kenyan women are currently being killed every month by their boyfriends or husbands. While this “deliberate forgetting” has been propped up by the perennial lack of good- will from advocates and judges in Kenya, another possible late entrant in this debilitating forgetting is the traditional media.3 The traditional media is guilty because it portrays patriarchal notions, like violence against women, as the real- ity and recognized culture of the Kenyan people and taken over by the spirit of the Kenyan law. According to Fiske (1987, pp.4–5), “what passes for reality in any culture is the product of that culture’s codes […] ‘reality’ is always already Femicide and judging 81  encoded, it is never ‘raw.’” Therefore, Kenyan traditional media has been able to define, package, and perpetuate masculinities that objectify, erase, and murder women while using the law to escape liability. Hard questions, thus, need to be asked. If the Kenyan girl/woman cannot feel secure in the family4 and in the formal courts, where else can she feel secure? Who watches over the watchman5? This chapter argues that in social media, Kenyan women, and those angered by the partial application of the law that denies women justice, use social media to provide the evidence needed to “bring the culprit(s) to book.” In other words, social media “turns the stones for the law enforcers.” This chapter thus discusses the connection between gender, judging, and the issue of femicide and GBV in Kenya. Situating social media in feminist scholarship Gusse (2016, p.2) argues that social media, specifically Twitter, has facilitated the rise of #BlackLivesMatter by creating an environment where social-political movements can flourish. These movements are accomplished by determining the unique characteristics of social media in activism (resistance to censorship, the efficiency of communication, horizontalist structure, and hashtag activism) and analyzing how #BlackLivesMatter has utilized these principles. According to scholars, social media outlets, that is, Facebook, Twitter, Tumblr, etc., employ a bottom-up structure to produce user-generated content and are therefore not subject to this degree of censorship (Gusse, 2016; Heather & McVey, 2016). Conversely, traditional mass media outlets like CNN, The New York Times, and Vox use a top-down format to produce content, allowing such content to be controlled and influenced by the political elite. Because of this, traditional mass media outlets are subject to a certain degree of censorship that makes them less likely to voice alternative viewpoints or run stories that may upset the political status quo. In Kenya, social media has not only been used to express dissenting opin- ions on socio-political issues in the country but also serves as a platform where dissent can be circulated to the masses in a way that traditional mass media cannot. In essence, social media can give a voice to the voiceless. Jackson and Banaszczyk (2016) examine how hashtags have worked in the past to chal- lenge dominant silences about gendered violence. Anchoring their study on the hashtags #YesAllWomen and #YesAllWhiteWomen, they powerfully contended that hashtags can be representative of a more traditional feminist counter-public seeking to influence, challenge, and rewrite dominant public narratives about violence against women. Social media can also reflect an oppositional counter- public that challenges the tendency in traditional feminist spaces to collapse women’s experiences along the lines of gendered oppression. In the same way, social media in Kenya manifests and articulates resist- ance on the miscarriage of justice in the formal courts, especially in femicide and GBV cases. Using hashtags #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow, social media provided spaces for, transformed, and influenced 82  Stephen Muthoka Mutie broader public narratives on issues central to women’s lives. The cases in point were Winfred Mwende in Makueni County (who was captured on camera being beaten by her husband to unconsciousness), Sharon Otieno (who was allegedly killed by people known to her and closely linked to Migori County Governor Okoth Obado), and Ivy Wangechi (a final year Bachelor of Medicine student who was hacked to death by Naftali Kinuthia because he could not stand rejec- tion). Social media played a central role in all these cases, although in varying degrees. One of the ways social media intervened was to bring these cases to the public. The traditional media got the information from social media. The public outrage that followed these cases was necessitated by social media. In these cases, social media was telling “their side of the story” in instances whereby the formal- ity in the formal courts seemed to buy into the myth of “oppressed masculinity.” Using mixed methods as part of my methodology, I combined an examina- tion of the text of tweets, the use of questionnaires with ten women judges, and an analysis of existing discourse on social media. I purposely sampled out tweets that engaged the Kenyan law by demanding justice for women who suffered the brunt of femicide or GBV. The research focused on the tweets that touched on and emanated specifically from the three cases under investigation here. The tweets sampled and interrogated were between September 2018 and May 2019. From each hashtag, and each case, I studied tweets within a month. The tweets were contained in the hashtags #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow. These online interlocutions were interpreted alongside what the ten female judges said offline in the questionnaire I circulated. Social media, in my opinion, is the new judge in Kenya today. There has been a deliberate feminization of social media in Kenya, especially in matters of judg- ing. Inside the suffocating “bricked walls of patriarchy” (Roy, 2019) that seem to define the Kenyan judicial system is a new light threatening to break down the Kenyan gender-blind judicial system. Mobile internet, especially in smartphones, has become the primary means by which new internet users are sharing informa- tion, particularly information that deals with issues of public concern, especially women’s access to justice (Macharia, 2014; Napoli & Obar, 2014). As with the mobile phone, greater access to social media has the potential to create gender equity and access to justice (Liew et al., 2014). My locus of enunciation in this chapter is that social media in Kenya provides a pool of knowledge that when given space in the judicial system, can contribute and restore the dignity of Kenyan women by bringing out particular kinds of memory production in ways that subvert normative temporalities. As it were, and following the above trajectory, social media can function as counter-publics for the debate and exchange of ideas and facilitate constructive dialogue about justice for women. Through social media, feminists can document what happens to Kenyan women daily and how their cases are handled in the formal courts. This documentation, I argue, provides a foundation for rewriting (her)stories and restores women within the discourse of gender, feminism, and the law. Handled well, social media can remove the veil of silence that has for so long been cast over the legal narratives that threaten to continue keeping the Kenyan woman Femicide and judging 83  marginalized by the same Kenyan law that is supposed to protect her, with the hope of increasing access to justice for women. The “artifacts of political engagement”6 in Twitter, showing women being molested by men and shared on social media, touch on collective memory in our lived realities. The use of social media shows how traumatic experiences are being viewed and remembered in Kenyan society today. By collecting and fore- grounding these experiences in social media, Kenyans denounce the silencing of femicide and GBV cases in the formal court of law, where, in most instances, these cases are deemed private and relegated to the privacy of the family. By exposing these cases, social media maps directions for new forms of remember- ing and memory activism (Altinay & Pető, 2015, pp.379–385). In the hands of a feminist, social media is feminized and acquires a radical angle that refuses multi-faceted exclusions, intolerance, and erasure as well as the exclusion of chal- lenging memories from women. At the same time, sharing these traumatic expe- riences and the dark sides of Kenyan law, social media produces new solidarities among and between feminists. Conceptual and analytical framework I draw on André Brock’s (2012) critical technocultural discourse analysis (CTDA) framework to examine the complexities involved in social media com- munication with a particular focus on how Twitter hashtags can be used to help women access justice. According to Brock (2012), CTDA is a multimodal ana- lytic technique for the investigation of internet and digital phenomena, artifacts, and culture. It integrates an analysis of the technological artifact and user dis- course, framed by cultural theory, to unpack semiotic and material connections between form, function, belief, and meaning of information and communication technologies (ICTs). CTDA requires the incorporation of critical theories like feminism to integrate the epistemological standpoint of underserved ICT users to avoid deficit-based models of underrepresented populations’ technology use. In the Kenyan case, the underserved populations are, due to the many patriarchal bottlenecks, women. Locating itself within this framework, this chapter foregrounds the power of social media in constructing a new technoculture that resists the pernicious wave of violence and its normalization that has gripped the Kenyan socio-polit- ical spaces; a kind of culture that is genderless. Social media has the capacity of becoming a counter-public (Fraser, 1992; Farrell and Rabin, 1996). Women, who, as I have already argued, are newcomers and a minoritized community, utilize social media to display artifacts of their engagement in a patriarchal sys- tem. There is a culture that permeates the discourses in these artifacts of engage- ments. According to Williams (1977), these artifacts, i.e., the photos, videos, or even quotes that accompany these photos/videos, gain meaning because they are shared, oftentimes, by someone known to the recipient. Of course, the Kenyan case proves otherwise; most interlocutors are new to one another and only joined together by their chagrin about femicide and GBV cases. These artifacts, 84  Stephen Muthoka Mutie therefore, become imbued with meanings that are understood as actively lived and felt, yet are meanings that have not gained full expression but may lead to new starting points and new conclusions. Within this meaning creation, new cultures are formed in the form of online activism, a tsunami that can puncture patriarchal myths that normalize violence against women. Pacey (1983) argues that technology is a construction of technical artifacts, practices, organizations, actors, and beliefs that are governed by a particular cul- ture. This kind of formulation is advanced by CTDA, which focuses on represen- tations within and of technology and is keenly interested in the technological artifact as a “set of rules and resources built into the technology by designers during its development which are then appropriated by users as they interact with the technology” (Orlikowski & Iacono, 2001). This definition is advanced in this research to accommodate the photos, memes, drawings, and streams of videos shared in the identified hashtags. These artifacts advance particular public dis- cussions whose purpose is to resist patriarchal practices that dehumanize women. The culture constructed online, thus, humanizes women, giving not only voice but also life to female bodies. In this way, Brock (2012) argues that CTDA offers a critical approach to technology artifacts that reorients technocultural practice to the cultural context in which the artifact is being used. Speaking and appealing to the emotion of the recipients, the culture of the social media hashtags draws people to action, bringing together online affec- tive publics and counter-publics and propelling people toward participation in constructing contested public spaces (Papacharissi, 2014). Relying on feminist beliefs, CTDA draws directly from the perspective of the group under examina- tion; the Kenyan feminist interlocutors in #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow platforms; and discussions meant to decenter theories of technological determinism (advancing misogynist notions that normal- ize violence against women) premised upon the beliefs of a dominant patriar- chal Kenyan culture. The hashtags #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow platforms shaped online and offline activism in three cases: Winfred Mwende’s, Sharon Otieno’s, and Ivy Wangechi’s cases. CTDA “formu- lates technology as cultural representations and social structures to simultane- ously interrogate culture and technology as intertwined concepts” (Brock, 2018, p.1012). This theoretical framework opens ways to analyze online discussions that touch on Kenyan law and its attendant opaqueness through a critical deconstruc- tion of the activities of the discussants involved in engaging with seeking justice for women victims. In this sense, the theory can be seen as providing “a holistic analysis of the interactions between technology, cultural ideology, and technol- ogy practice” (Brock, 2018, p.1013). Within this framework, it is imperative to examine the intricacies of technology use by taking into consideration the actors involved and the cultural capital they possess (Nissenbaum & Shifman, 2017), their technological literacy skills, and the relationships between old and new media (Srinivasan, 2013). According to Mohammed (2019), who borrows from Brock (2012), Srinivasan (2013), and Pillay (2016), the new media use disrupts Femicide and judging 85  notions of binaries between old and new technology, online and offline affor- dances among others, because these binaries do not reflect the complexities of the relationships between digital technology and social movements in the physical world. This point will be pursued later in this chapter. Social media provides the subaltern with a voice to discuss and articulate not only the daily lived realities of Kenyan women, especially bringing to light the many femicide cases, but also informally contravening the sub judice rule7 to dis- cuss miscarriage in justice or even lauding justice when well served. Importantly, the 2010 constitution of Kenya was born out of the need to ensure that all Kenyan men and women would be part of the process of telling a different story—a dif- ferent narrative about how they wanted to be protected. It was a people-driven process that entailed several stages of civic education, collection, and collation of views, and I would add that at various stages of the process, it was indeed a women-driven process (see also Sivi-Njonjo, 2016; Kameri-Mbote, 2016; Omondi, 2016). Social media has been instrumental in bringing these cases to the public knowledge and ensuring that justice is served in the formal courts. Social media and judging: Lived realities of a Kenyan woman #When a woman goes to report some of these cases, she is told “Hii ni mambo ya nyumbani” [these are family matters] #And here you talk of due process … In Kenya, all that matters is the judge. Why hire a lawyer when you can buy the judge The data from the femicide awareness platform Counting Dead Women Kenya paint a gloomy picture of the status of femicides in Kenya. Their report shows that 46 women were victims of femicide between January and May 2019. By November 16, this figure had risen to 82 cases of reported femicide (Mutune, 2019). Another strand of data from the Open Africa report on “Femicides in Kenya” shows that 84 women were murdered between January and October 2019 by their boyfriends and/or husbands (Odhiambo, 2018). The report indicates that Kenya is among the countries with the highest numbers of female homicides and abuse against women. For example, 38.5% of girls and women in Kenya aged 15 to 49 have experienced physical violence at least once in their lifetime, and 24% of these women experienced physical violence in 2018 alone (Mutune, 2019). This is despite having many laws in the country that aim to protect women from all kinds of harm. In Table 5.1, I describe three particular cases that were discussed in the three hashtags, whether they went to court or not, and the outcome of the prosecution (convicted, acquitted, or otherwise). It is noteworthy that before social media, many similar cases would take place, and even the police would not be informed (Chepkwony, 2016, p.12). It could be reported to the village head, then the chief, a process that could take weeks. In most cases, the village head would revert the case to the family (in case of battery) or the clan (in case of death) (Okoth-Ogendo, 1979; International Development 86  Stephen Muthoka Mutie Legal status of cases discussed in social media Table 5.1  Prosecution Cases Conviction Acquited Other Julius Nzomo Daudi against Convicted: The Republic of Kenya Serving 12-year (August 2018) jail term Governor Zackary Okoth released on a Ksh5 Obado against The Republic million cash bail. of Kenya (murder of Sharon Otieno) (Sept. 2018) Naftali Kinuthia against the bond denied on 17th Republic of Kenya (murder day of June 2019 of Ivy Wangeci) (April Could not start on 2019) March 6, 2020 as planned. Source: Kenya Law Cases Database, 2020 Law Organization, 2020). However, due to social media, and through online activism, it took a few hours before the three cases in Table 5.1 were brought to the public. The mainstream media, the Director of Public Prosecution (DPP), the Inspector General’s office, and all citizens were involved in the conversation. Hinging my discussion on the online conversations on the three cases presented in Table 5.1, I argue that the swift action of the arrest of the accused persons was engineered by social media. The discussion they led online approached the cases from all possible angles, interpreting the applicable laws and pointing out the potential loopholes. These conversations enlighten the public and educate women on the possible laws they can use to seek justice. This later function con- firms the points made by judges F, G, and I (see the next section in this chapter) that one impediment of women’s access to justice was a lack of information about the available laws that protect them. Although there were many femicide cases in Kenya before social media, a paltry number of perpetrators were punished (Brown, 2020). For instance, if it were not for social media, the likes of Julius Nzomo, Zachari Obado, and Naftali Kinuthia would probably remain unprosecuted. Nzomo was captured on camera beating his wife Mwende unconscious. Images of the unconscious Mwende sur- faced online, and this prompted the DPP to swing into action. Consequently, Nzomo, the perpetrator, was arrested, charged, and arraigned before court. He was convicted to serve 12 years’ imprisonment.8 The hashtags #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow draw national attention to the violence and killings against women by amplifying the plight of Kenyan women. There follow samples of some of the online inter- locutions, which I will interpret later alongside what the ten female judges said offline in the questionnaire I circulated: Femicide and judging 87  #Straight members of the societies do not want to hear the reasons these crimi- nals had for carrying out these heinous acts, we demand justice for the fami- lies of the victims. It is their right # TotalShutdownKe #SayHerNameKE [1] #TotalShutdownKe #SayHerNameKE We are tired of being murdered. We can’t even be safe in our own houses. We will not be silent anymore. Let’s fight for our right to live. Let us rise and say [2] #NoToFemicide, #TotalShutDownKe Women’s rights are fundamental rights. [3] #We salute all women & womxn for their bravery, determination and resolve; for breaking barriers and disrupting patriarchal spaces; for calling out injus- tice and demanding transparency & accountability among duty bearers; for their compassion & #SayHerNameKE #TotalShutDownKE [4] #I am marching because I want to change the narrative and stop normalizing violence against womxn. What we want accountability #TotalShutdownKe #SayHerNameKe [5] #Ivy’s aunt is speaking, she wrote a paper on achieving justice for women and girls in Kenya, “I never expected that I would be living the story of my paper.” #TotalShutdownKE #JusticeForIvy #SayHerName #HerLifeMatters [6] #Don’t say “died” when you mean “murdered.” People die from old age. Or from terminal diseases. But it’s not plain old death to be hacked by a machete in the head. The passive voice invisibilises murderers and does little to give victims justice. #totalshutdownke #sayhername [7] #There should be a national inquiry to the killing of women, special courts to deal with SGBV issues, and the establishment of Gender Recovery Centers in all the 47 counties. We demand accountability #HerLifeMatters [8] #One of the family members speaking had just come from a funeral to bury their daughter. Truly, this is a national tragedy. People should not have to go through this and with nil justice. #HerLifeMatters [9] #The fact that #sexualviolence is being normalized is not only a grim represen- tation of our realities but a serious injunction on what the Kenyan soci- ety is turning into. We demand state accountability for these violations. #HerLifeMatters [10] #@CSMargaretKobia and @Rachelshebesh will today join other women leaders at a vigil night at @uonbi from 4-9 pm to protest against the widespread kill- ing of women and girls and appeal for justice. @FredMatiangi will also be in attendance. #HerLifeMatters [11] #Time has come for the government of #Kenya to live up to its obligations to protect, prevent against and punish perpetrators of #sexualviolence includ- ing femicide; and to collectively affirm the rights of women to self-determi- nation and bodily autonomy. #HerLifeMatters [12] #HerLifeMatters, it is indeed a tragedy that lives are lost in the name of love. we are watching because we could be the next victim and demanding justice before it all gets out of hand! [13] #@CS Matiangi commits DCI effort and investment in tackling femicide, GBV, and reviving gender desks at police stations. Where are the commitment 88  Stephen Muthoka Mutie to paper and hard action? What are the timelines? We want to hold this to account. #HerLifeMatters #TotalShutdownKE [14] #WE DEMAND TO LIVE We demand for a police department that solely deals with violence, femicide and rape cases against women. We demand accountability. We demand justice #HerLifeMatters #EndFemicideNow @ FeministsKE [15] #When a woman goes to report some of these cases, she is told “Hii ni mambo ya nyumbani” #EndFemicideNow #HerLifeMatters #KTNNewsCentre @ Michellengele [16] #Are there adequate laws protecting women from gender-based violence? We demand justice and accountability. #HerLifeMatters [17] #We demand accountability. We want justice. There are more than enough laws that protect girls and women in Kenya, more than anywhere else in the world. Article 100 of the constitution is among them [18] “GBV has been shrouded in a conspiracy of silence, thus perpetuating impunity. We need to strategise on how we can make laws more impactful to the lives of people,”@Rachelshebesh, @PSYGKenya #EndGBV #GBVConferenceKe #HerLifeMatters [19] #Proving Malice aforethought is essential in murder cases … Now the narrative for the defense will be that Kinuthia had bought an Axe for his own use chopping firewood, and he visited Ivy, but a mob of irate guys thought they were thugs and beat them up. Kinuthia survived. Ivy didn’t … So the prosecution will have to prove beyond reasonable doubt this was not the case … it is a basic right. We want justice. Remember the case of Matheri, Nyamwacha, all who had seemingly over- whelming evidence of murder … they were never convicted of murder … it all depends on the Judge. We demand accountability #kibetosh #HerLifeMatters [20] #Apart from proving malice aforethought or premeditation, the rest of your sub- mission is hogwash or at best muguka wisdom. Court process is not a circus where accused have time to come up with tales. The two incoherent cases you quoted are not in any way related and their verdict was never acquittal. Proving criminal case is easier than acknowledged. We demand accountabil- ity is the key #Jalaal Kafkaesque kibetosh #HerLifeMatters [21] #Hahahahah …yet the cop who followed and killed Ainamoi MP together with his Female Companion in 2008, who happened to be the cop’s lover only got 10 years in a case that put current CJ into ridicule a accused of favouring the cop because he was came from his tribe. The cop has now finished his ten-year sentence and is most likely out. In the meantime, two innocent people died, and the family was left to lick their wounds. We demand Accountability. Accountability is the key to justice. As a Precendent [Precedent] … what is the difference btwn that case and this one concerning Kinuthia ad Ivy. Similarities. In both cases the victim was followed by her male lover. Femicide and judging 89  Figure 5.1  Hashtag Courts In both cases the culprit was well armed In both cases the culprit traveled hundreds of Kilometers in pursuit of the victim who did not know she was being followed. And here you talk of due process … In Kenya, all that matters is the judge. Why hire a lawyer when you can buy the judge. @#kibetosh Jalaal Kafkaesque, #HerLifeMatters [22] In these conversations, the word justice has been used 12 times in the 22 tweets. The word right(s) has been used 6 times and the word accountability 14 times. These three words are correlated. When the word justice is used, it is mostly introduced by the word no/nil,- or demand. This information is presented in Figure 5.1. Some of the tweets have more reactions from the online publics, with 12 tweets (55%) interpreting applicable laws ([1], [2], [3], [4], [10], [11], [15], [18], [19], [20], [21], [22]), another 6 (27%) expressing disgust about the blindness of the Kenyan law on femicide cases ([10], [12], [15], [20], [21], [22]), one (5%) appealing for and 16 (73%) demanding action ([1], [4], [5], [8], [9], [10], [13], [14], [15], [17], [18], [20], [20], [21], [22]) against femicide and GBV cases. See Figure 5.2 for this information. In Figure 5.2, 54% interpreted the Kenyan law, 27% expressed disgust about the opaqueness of the Kenyan law on femicide, 5% appealed for action, and 73% demanded justice and accountability. What becomes apparent is that the users of this platform make social media a site of engagement; a public platform where oppressive discourses can be contested and resisted. The result is a technoculture with a common purpose, demanding action. This technoculture is gender-inclu- sive, objective, and humane. The aim of the hashtags is not only to honor femicide victims but also to use online activism to seek justice for women. For instance, in the first tweet in #TotalShutdownKE, Renoh Omollo said on the day of the protest on March 8, 2019, “there is a war against our bodies, there is a war against Kenyan womxn and together we are raising our voices to say no to this femicide and violence against womxn. No consequences befall these perpetrators. We note that violence 90  Stephen Muthoka Mutie Hashtags Engaging the Law Figure 5.2  against womxn has been normalized and, therefore, escalating because of the sys- temic power structures that favour men” (Feminist Collective, 2019). What can be seen from the tweet is the deliberate deletion of the vowel “e” in “women.” The word is deliberately changed to “womxn.” This refusal to be yoked together with the tormentor problematizes the general view in a patriarchal society; that women are appendages of men (daughter of so and so, wife of so and so, mother of so and so). This view can be seen through the rationalization that follows these murders, which as the women judges interviewed for this study suggested, affects the judgment that is meted out to the culprits in the formal court of law. Perceptions of women judges To supplement the data from Twitter, this study benefited from data collected using a questionnaire circulated and filled in by ten purposely sampled out female high court judges in Kenya. The study chose female judges due to their position- ality and gender. Views from the ten judges are relatively representational. After the ten judges filed the questionnaires (typing their answers to the questions asked), I analyzed their responses and retyped them, following similarities and divergences in their responses. In this way, I was able to minimize unnecessary repetitions and redundancy. For anonymity, the judges are referred to as A, B, C, D, E, F, G, H, I, J. The main question in the questionnaire was: does social media impact on jus- tice in Kenya? The answer to this question was an affirmative yes: all ten judges agreed that social media can influence the outcome of court cases in Kenya. Seven out of the ten high court judges who answered the questionnaires said that one of the problems making femicide cases problematic to handle was the general public’s rationalization of crimes against women and girls. Quoting the Naftali Kinuthia case against the Republic (refer to Table 5.1), judges A, B, and D blamed societal normativity as an impediment to justice for women. However, the same judges strongly agreed that it is wrong for any man to harm a woman, Femicide and judging 91  irrespective of the motivation, and any man who kills a woman for whatever reason deserves the full punishment provided by the law. According to these judges, the public is always out to defend the perpetrator’s action, even to the extent of working tirelessly to sanitize the killers. Others (mis) use the law to entrench male entitlement to the female body. The responses from judges A, B, and D were also noted in #HerLifeMatters and #EndFemicideNow, where approximately 5% of the tweets tried to sanitize Naftali Kinuthia as “a teetotaller who had never shown any sign of stress, a gentleman who was being misused by Ivy Wangechi, and a generous man who was always sending money to his cheating girlfriend.” It is noteworthy that the use of the terms “teetotaller” and “gentleman” in the tweets contradicts research findings, which have noted that the risk of a woman being subject to GBV in Kenya “declines with the education level of her spouse but increases if her spouse has a history of alco- hol abuse” (World Bank Group, 2018). This is because although the victim was highly educated, the perpetrator had no history of alcohol abuse. It becomes clear that the use of the words “gentleman” and “teetotaller” serves to advance patriarchal interests in the case, as seen through the argument of the other 75% of the tweets, which contended that the problem with Naftali was his failure to stand rejection, a warped sense of male entitlement that can best be described as toxic masculinity. This latter group argued that the spirit of the law is very harsh on criminals like Kinuthia, men who justify murder or assault. Women are not and have never been chattels. Any man who harms a woman, irrespective of the motivation, deserves the full punishment provided by the law. This latter group (75%) also blamed the law for being silent on issues of femi- cide. According to this group, by being silent on issues of GBV and femicide, the law itself was being toxic. Out of toxicity, the law becomes sensational and reactionary, and judgment is served overly from a patriarchal point of view aimed at disparaging the reputations of victims (Mutune, 2019). According to this toxic strand of the law, those killed by their husbands contributed to their murders by being involved intimately with other men apart from those that killed them, or by failing to reciprocate affection from their partners. Others, like Sharon Otieno, were being blamed for accepting monetary favors from the men who kill them. The killers are sanitized as men who had never shown any signs of “stress” or as men who could not bear “love gone sour” (Mutune, 2019). One of the key demands for #TotalShutdownKE was that existing laws and action plans be reviewed to determine why they have failed to protect women from violence and murder. Approximately 30% of the tweets under this hashtag talked about the failure of Kenyan law to deal with this seemingly new occur- rence in the Kenyan courts. This was also acceptable to three judges according to the way they answered the question of whether there was a possibility that laws can be misread to deny women justice. The judges, just like some of the tweets, discussed the failure of Kenyan laws to even define what constitutes femicide or what qualifies a case as femicide. There was agreement among the views of the female judges who filled in the questionnaire that social media, and especially these hashtags, amplified these femicide and GBV cases, a kind of activism that 92  Stephen Muthoka Mutie positively influenced the nature of judgment meted out to the culpable culprits. These hashtags did this by letting the public know what was going on in the court of law, and what the Kenyan law said about cases of similar nature. To the question of how the judges dealt with femicide cases that are brought before them, all the ten female judges who filled in the questionnaires for this study agreed that the law on femicide in Kenya is governed under the murder regime. There is no law that specifically provides for femicide. Femicide is treated like any other murder case despite its uniqueness. The fact that judicial officers also exercise discretion in sentencing opens a door for the judicial officers to deal with every femicide matter independently. This has thus produced mixed results for the sentencing of convicts. What these honorable judges seemed to suggest, and frown upon, is that there is no consistent legal jurisprudence in Kenya on fem- icide. The same sentiments were expressed in the hashtags #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow. Online discussions on these platforms about the inadequacies of the Kenyan law to combat femicide and GBV cases corroborated the offline response from the ten female judges. From the analysis of the data collected, the study argues that although there is legislation that criminalizes gender-based violence and codi- fies the rights of people to live free of violence, social media plays an emblem- atic role by amplifying the relevant clauses. The related sanctions may serve a deterrence function. Legislation can also be receptive to victims by providing protection and access to support services. Social media, as can be noted from the foregoing, enhances other interventions designed to reduce GBV in low- and middle-income countries. To wit, researchers have identified strategies, including group training, social communications, community mobilization, and livelihood strategies, which help in addressing underlying risk factors for violence, includ- ing social norms regarding gender dynamics and the acceptability of violence (Arango et al., 2014). The problem of non-prosecution of femicide and GBV cases in Kenya presents a conundrum—the paradox between the existence of laws, on the one hand, and the lack of prosecution of cases, on the other hand. The Kenyan government has performed relatively well in the enactment of laws, policies, and regulations on the response, prevention, and management of gender-based violence. The problem therefore lies with the lack of effective implementation of the law. For instance, Article 29 (c) of the Kenyan constitution provides that every person has the right to freedom and security of the person, which includes the right not to be subjected to any form of violence from either public or private sources. Besides, many laws have been enacted in Kenya to protect people from gender- based violence. These laws include The Protection against Domestic Violence Act 2005, 2015; The Sexual Offences Act 2003; The Matrimonial Property Act 2013; The Marriage Act 2014; and Penal Code Cap 63 (Revised Edition 2012). Other national instruments include the Criminal Procedure Code (Revised Edition 2012), the Prohibition of Female Genital Mutilation Act (2011), and the National Gender and Equality Commission Act (2011). Article 2 (5 and 6) of the Constitution of Kenya provides that all international laws, treaties, and Femicide and judging 93  conventions form part of Kenya’s laws. Kenya has ratified several treaties that govern gender-based violence, including The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979; The Declaration on the Elimination of Violence Against Women (DEVAW), 1993; and The African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (known as the Maputo Protocol), 2005. By Article 2 (5 and 6) of the Constitution of Kenya, upon domestic ratification, these international treaties became part of the laws of Kenya and are applicable within the domestic arena. Despite the many laws governing gender-based violence, there is a likelihood of judicial officers misdirecting themselves on the laws. This can be attributed to various factors such as little knowledge about their existence. Also, the enact- ment of the Acts has not been matched with adequate training and dissemina- tion of the Acts to law enforcement officers and relevant justice system agents, such as prosecutors, who have the responsibility to bring the right charges to court. Although the government has audited various laws and repealed discrimina- tory provisions, subsequent legislations have remained gender neutral in their language, thus making it difficult to deal with discrimination in situations where the law fails to categorize discrimination as an offense. Also, the co-existence of customary and religious laws that are not consistent with the legislative prohibitions could cloud the reasoning of judicial officers. The seemingly con- flicting co-existence of customary, religious, and the formal Kenyan law was seriously critiqued in the hashtags #TotalShutDownKe, #HerLifeMatters, and #EndFemicideNow, especially in the cases of Winfred Mwende, Sharon Otieno, and Ivy Wangechi. The agreement among the tweets was that by homogenizing these deaths, it watered down the motive behind the many killings. It appears that formal courts have taken judicial notice of the fact that the home (private sphere) has now become an unsafe haven for women. Therefore, any sentences passed must reflect the fact that offenses of this nature have pricked the judicial conscience. However, the three hashtags disagreed and accused judges of doublespeak, inconsistency, and laziness. Courts dealing with the offense of murder are allowed to exercise judicial discretion by considering any mitigating factors in sentencing an accused person charged with and found guilty of that offense. In applying the law governing femicide, the courts are likely to exercise their discretion judiciously, although in some cases, the courts may be too lenient on the accused persons. When the court is lenient on the accused, what results is an injustice to the woman, the victim of the femicide, as was seen in the cases of Sharon Otieno and Ivy Wangechi. Do you, the judges, accept social media evidence in court when determining femicide cases? Judges argued that in the normal course of life or business, most people are likely to use their mobile phones: taking pictures, sending or receiving text messages, accessing the internet to send or receive an email, record a video, play music, and/or send or receive instant message service. This data is more often than not shared on social media. The data can be produced as primary evi- dence by the person who shared the data on social media. Section 106B (4)(d) 94  Stephen Muthoka Mutie of the Evidence Act provides for the admissibility of such evidence. Social media consequently becomes relevant in courts only where there is a person to authen- ticate the information shared on social media. This information is necessary, as it would help courts in decision-making. Social media brings out femicide cases to the public. The unedited streams of videos that circulate present the event as it occurred with the unedited voices of the argument, if there was any. Here, the viewers become the jury, discussing the evidence produced and passing judgment. Of late, these discussions are spe- cifically addressed to the necessary state apparatus like the DPP or the Inspector General of Police. The inclusion of social media in judging seems to have been brought forth by the continual instrumentalization of women’s stories as part of the common public narrative in the formal courts. Additionally, social media strongly reflects underlying norms within Kenyan society. By sharing and calling for justice for the victims of GBV and femicide, social media persuades others to see the brunt of violence against women. Additionally, by sharing this infor- mation and discussing it, social media provides new information that influences individuals to accept it. Furthermore, it informs listeners about what others learn, thus facilitating coordination. This shows the shifting attitudes around GBV. To this end, Winfred Mwende and David Nzomo’s case would serve as an example. The incident, which captures extreme levels of brutality against a seemingly defenseless wife, woke the silent social media. Irate “netizens”9 took to Twitter under the tagline #ArrestNzomo to demand justice following the ruth- less attack. The video that sparked outrage among members of the public caught the attention of the DPP. The streams of videos that circulated on social media with captions #ArrestNzomo, and his eventual arrest and speedy prosecution and sentencing to 12 years, shows the centrality of social media in search of justice for women. As already argued, the Kenyan formal courts have used opaqueness of some laws to deny women justice. It is also important to note that the Kenyan courts have in the past used the sub judice rule to deter people from debating on issues of the public interest but which were yet to be determined. The repealed Constitution of Kenya in section 79 (2) secured the common law position on sub judice. In recent times, however, and especially in this era of technological advancement, it has become clear that information about trials can be shared via social media. The sub judice rule is no longer an automatic bar to public discussion on matters pending before the court in Kenya. However, under the Constitution of Kenya, 2010, any limitation on the freedom of expression guaranteed under Article 33 must be justified. It is, thus, no longer enough to front sub judice as an automatic bar to public discussion on matters pending before the court. When interrogating what #HerLifeMatters and #EndFemicide discussions have achieved, one repeated point of discussion which Kenyans belabor concerns miscar- riage of justice in the formal courts. It would seem that social media shines light on the miscarriage of justice. Social media can shine light when existing redress mecha- nisms are corrupt or opaque. One case in point in Kenya involved the rape and killing of Sharon Otieno. One of the accused persons was an influential, wealthy politician, Femicide and judging 95  but because of the evidence provided in the social media, including recorded phone calls, the formal court had to detain the accused. However, the accused was later released on bail of 5 million Kenyan shillings. In her incisive book Digital Democracy, Analogue Politics: How the Internet Era Is Transforming Kenya, Nanjala Nyabola explains how social media has “rein- vigorated feminist discourse in Kenya.” Nyabola describes how social media had cultivated a movement with the hashtag #MyDressMyChoice to call out a series of attacks on women in November 2014. The #MyDressMyChoice movement was created on the Facebook page of Kilimani Moms, a coalition of mothers from Nairobi who called for protests to support the right of women to dress as they wish. Following these protests, the Kenyan judiciary started to prosecute those caught molesting women, which as Nyabola suggests, is “the first time there had been a prosecution for this kind of behavior in recent memory” (2018, p.127). Social media can be used to curb femicide in Kenya. Femicide is the ulti- mate form of violence against women and girls, often taking various forms and linked to gender power imbalance and historic gender-discriminatory practices, norms, and beliefs. For a case to be considered femicide, there must be an implied intention to carry out the murder and a demonstrated connection between the crime and the female gender of the victim (Kumari, 2013; Laurent et al., 2013). Femicide and gender-based violence are increasing all over the world, and this is exacerbated by the current global pandemic. Failure to comprehensively address femicide will signal to abusers that these actions are acceptable. The judiciary has a role in sending a signal that perpetrators will be punished for violating the fundamental human right to life of their victims. Conclusion To conclude this chapter, I briefly mention a subject elided in the argument so far—the downside of femicide and GBV cases playing out entirely on social media. Often, when this happens, there is the possible trolling of the survivors by supporters of the accused. This trolling may cause more harm to the victims. Therefore, as we embrace the changes brought about by online activism, we should also consider the impact of the “cancel culture” on both the accusers and the accused. However, through careful analysis, the chapter has established that social media in Kenya provides a powerful platform for the articulation of formally silenced voices, and therefore, its use has more advantages than its drawbacks. Indeed, it is helping victims get justice, because courts can no longer ignore these hashtags and also, judges are using social media artifacts to strengthen the evi- dence used to prosecute cases. Judges can help in two ways. The first is through judicial support of social media evidence guided by acceptable legal norms, which will enable them to administer justice. The second is creating awareness about the legal implications of using social media wrongly. Through judicial activism, judges should partici- pate in sensitization and creating awareness among the masses and disseminate existing norms on the rights of women and girls. 96  Stephen Muthoka Mutie This chapter has shown that social media provides an alternative judicial forum that enables crafting an informed definition of femicide and its weight; it shines light on the miscarriage of justice in the judicial system through cor- ruption and opaqueness of the Kenyan law on issues of femicide. Social media is feminized; both men and women are involved; the war against femicide involves both men and women in the social media; this is important, because the boy child also has to be emancipated to know that his sister, mother, and the child must also be respected. Through social media, WE CAN ALL BE FEMINISTS! Notes 1 The term ‘femicide’ is used in this study to denote the killing of women because of their gender. In this sense, femicide is understood to be motivated by misogyny and prejudice against women. For a case to be considered femicide there must be an implied intention to carry out the crime and a demonstrated connection between the crime and the gender of the victim. 2 Here the term social media will be applied to describe the various forms of media content that are publicly available and created by end-users. Social Media is a group of Internet-based applications that build on the ideological and techno- logical foundations of Web 2.0, and that allow the creation and exchange of User Generated Content. 3 This includes Radio and Television 4 Many femicide and GBV cases are perpetrated in the confines of the family/ home, by a close family member or a person known to the family. In most cases, these cases are left to be handled by the family, in a private arbitration or informal courts. In almost all cases, the girl/ woman cannot get justice because the family, the customary courts are punitively patriarchal. The figure of the father is the law by itself. 5 Watchman here refers to the formal Kenyan courts. Their mandate is to protect peo- ple from all sorts of violations, violence or any sort of harm. 6 Clark (2015) uses this phrase to stand for the photos, memes, quoted sayings, and original or curated commentary that is shared on social media. What is important is not just the photo, meme, or the quote itself; the item gains meaning because it was shared by someone known to the recipient. These artifacts therefore become imbued with meanings that are understood as actively lived and felt, yet are mean- ings that have not gained full expression but may lead to new starting points and new ­conclusions. 7 The sub judice rule is a common law principle that generally prohibits public discus- sion on matters pending before the court. It is a principle used in cases where there was genuine fear that lay jury members would be swayed by public opinion. 8 Kenya Law Cases Database, HCCRA NO.78 OF 2019; Julius Nzomo Daudi v Republic [2019] eKLR 9 A term coined in a 1992 by Michael Hauben to describe a person actively involved in online communities or the Internet in general. References Altinay A., & Pető, A. (2015). “Europe and the century of genocides: New directions in the feminist theorising of genocide.” European Journal of Women’s Studies, 22(3), 379–385. Femicide and judging 97  Arango, D., Morton M., Gennari, F., Kiplesund S., & Ellsberg, M. (2014). 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