sexual health and human rights in the african region - The ICHRP

shares constituted unfair discrimination on the ground of sex contrary to section
82(1) of the Constitution of Kenya.
[30] The Court of Appeal allowed the appeal. It observed that sex was a protected
ground under section 82(1) of the Constitution. 215 The approach of the Court was
that section 82(4), 216 which excludes the application of section 82(1) to matters,
inter alia, relating to ‘devolution of property on death or other matters of
personal law’ must be understood as weakening the equality guarantee in
section 82(1) rather than providing section 82(4) with absolute immunity from an
equality inquiry that draws its authority from fundamental law. The Court then
proceeded to fill in the gap created by section 82(4) of the Constitution by
drawing from equality clauses of international treaties and the Women’s
Convention in particular. The Court observed that Kenya had ratified the
Women’s Convention. It said that ‘current thinking on the common law theory is
that both international customary law and treaty law can be applied by states
courts where there is no conflict with existing state law, even in the absence of
implementing legislation’. It found that a decision to allocate greater shares to
sons did not ‘resonate with the noble notions enunciated in our Constitutions
and international law’. More specifically, the Court said that such an outcome
constituted discrimination contrary to the Women’s Convention.
[31] Notwithstanding that the Kenyan Court of Appeal was primarily drawing from
the Women’s Convention rather than the African Charter in order to invalidate
the provisions of the Succession Act, customary law, and more significantly
section 82(4) of the Kenyan Constitution, the case illustrates the domestication of
international human rights norms even in the face of contrary domestic laws.
Though a rare example, the case shows that, given judicial willingness, even in a
jurisdictions that follow a dualist tradition, the highest court of the land can pave
the way for according human rights the status of fundamental law even when
there has not been domestic incorporation by the legislature.
2.7 Sex as a Protected Ground under Domestic Jurisprudence
[32] ‘Sex’ is a universally protected ground under African Constitutions. In this
respect, African constitutions largely emulate the Universal Declaration and the
Covenant on Civil and Political Rights. The following equality and nondiscrimination
clauses are illustrations:
• Constitution of Cameroon of 1996
Preamble to the Constitution of Cameroon
215 For the text of section 82 – the main equality clause of the Kenyan Constitution, see section 3.3 below.
216 For the text of section 82(2) see section 3.3 below.
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