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

Abstract

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