Taking Care of Women and Children

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The Honorable Lady Justice Mary Ang’awa, judge in the High Court of Kenya, was honored as Woman of the Year at the Association of Adventist Women’s Conference, October 11, 2008.

The standing of women and children in society has always been important to Judge Ang’awa. In the 1990s, she established the SINAGA Center, a charity to empower children through literacy, numeracy, home-management and market-oriented skills. Twenty-five hundred children have undergone training in this program.

Among many church offices, she has been a Pathfinder leader and a women’s ministry leader. But it is in the courtrooms of Kenya that Judge Ang’awa has established an international reputation for women’s justice.

Question: When I visited the Nairobi court where you preside there were courtrooms set aside for Muslim law. Is there more than one legal system in Kenya?


Answer:
There are four systems of laws in Kenya. This is very significant for the marriage bill, for instance. There is the customary law marriage for Africans, the Hindu law marriage for Hindus, the Muslim law for those professing Islam and the civil marriage for those who are mainly from the European decent.

Although the respective faiths issue a marriage certificate to the latter three systems of marriages, the system under the customary law is not issued with a marriage certificate at all. A certificate may only be obtained if the couple goes to a church to convert their marriage from customary law into a Christian marriage. Difficulties arise when a person wishes to prove that she is the lawful wife without a marriage certificate.

For example, there was a lady who claimed she was single in order to be entitled to a government house with her job. The law then was that housing could only go to married men or single woman. She would lose this right the minute she got married.

She lied about being married. Then when her husband died, she reported it to her employer, but the employer said: You were single. The brothers to the deceased came and made claim on his property and his widow lost the entitlement she would have had from her late husband. When she retires she will also lose the house.

This law has now changed, and married women are now entitled to government houses.

Question: What happens in a divorce case with people in a mixed marriage?

Answer: If you mean a mixed marriage between a couple professing two different religions, the trend is that a Muslim may marry a Christian because the Christian believes in one God. If they do so then the Christian may convert to Islam and the marriage would be under the Islamic law.

The Muslim or Christian would never marry a Hindu or vice versa, as their cultures would not permit it. If this does occur, then the couple would opt to marry under the civil law, since it is a government ceremony without any religion being involved.

If you mean a marriage between people of different races the marriage would be under the civil law.

If the marriage is between people from different tribes the marriage would generally be according to the culture of the man’s tribe and if the clan accepts the said girl. If the clan does not accept the new spouse the couple may marry under the civil law, meaning that the marriage would be conducted by a Kenyan government official - the district officer.

Question: It sounds very complicated. What happens when children are added to the picture? Or, if families are formed without marriage?

Answer: In Kenya, children are very special. When both parents are alive but are not married the law requires that the parental guidance, or responsibility, first lies with the mother when the child is of tender age.

In some customs, the law requires that the mother keeps the children, but returns to her father’s home, while other tribes require for the children to be left behind in the child’s father’s home.

If the father dies, then all the child must prove through his mother is that the father supported him or her, and as such the child is described as a dependent and therefore is entitled to the estate of the deceased father.

Question: You said that children are very special people - do they have special rights?

Answer: The Children’s Act granted very special rights to children. It created Children’s Courts, together with magistrates to preside over those courts. A child has a right to go to school and to education, a right to play and to be protected. The child has been given powers to sue his or her parents if those needs are not provided for.

Question: Did you help write this law?

Answer: No, it was an adaptation of an international instrument passed by the United Nations in 1970ss, but it took Kenya until 2001 to get it enacted.

Question: You have been a real advocate for women and for human rights in the courts of Kenya. What steps have been taken to protect women’s rights?

Answer: Since December 2005, I have been the chair of the Kenya Women Judges Association, which not only includes all the Honorable Lady Judges, but also those lady magistrates who wish to join the organization.

Our aims are to advocate for more representation of women in the judiciary, to advocate for gender-friendly laws and to train the magistrates and judges on the laws important to women such as the Law of Succession, the Sexual Offences Act and the Jurisprudence of Equality Program that deals with human rights laws and its application of the UN international instruments.

Our country has made strides in improving the law for women, but there is a lot yet to be done.

It was a victory for women when the Sexual Offences Act was passed in 1996.

Question: What is did this act do?

Answer: It introduced new offenses that never existed before, like child trafficking, sex harassment in the office and rape against boy children. It provided protection for a victim giving evidence in court. The act also included a taskforce to implement the act, headed by the honorable Lady Justice Joyce Aluoch. Most laws are passed without such an implementation arm, but this one has it.

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