The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.
Women and Justice: Keywords
The South African Police Service (“SAPS”) had adopted the Employment Equity Plan (“EEP”), which sets numerical goals to produce gender and racial diversity. The appellant, Ms. Barnard, applied twice for a position in the National Evaluation Service of the SAPS in 2005. Despite being shortlisted, interviewed, and recommended as the best-suited candidate, she did not get the position on either occasion. This case concerns her second attempt, where the National Commissioner did not appoint Ms. Barnard on the grounds that it would not enhance racial representation at that salary level and that it was not necessary to fill the vacancy immediately because the post was not critical. While the Labor Court found that SAPS had unfairly discriminated against the appellant, the Labor Appeal Court found in favor of SAPS. On further appeal, the Supreme Court of Appeal (“SCA”) reversed the Labor Appeal Court’s decision and held that Ms. Barnard had been the victim of unfair discrimination on the basis of race, in violation of Section 9(3) of the Constitution and Section 6(1) of the Employment Equity Act (the Act). The Constitutional Court granted SAPS leave to appeal and unanimously reversed the SCA’s ruling in favor of Ms. Barnard. As the Court noted, the SCA found that SAPS had failed to rebut the presumption that the discrimination against Ms. Barnard was unfair. But, since the EEP was a valid affirmative action measure, the issue was not whether the Plan could overcome such presumption, but whether the decision the National Commissioner made under it was open to challenge. The Court found that the Commissioner properly exercised his discretion. Appointing Ms. Barnard would have aggravated the overrepresentation of white women at that salary level. And, the decision did not bar Ms. Barnard from future promotions.
Husband challenged his wife’s capacity to initiate legal proceedings without his consent. The common law permitted a married woman to sue without the consent of her husband only if the woman attained approval from the court first. The High Court held that this common law requirement was unfair discrimination because it applied only to women and not to men, a violation of Sections 20 and 28 of the Constitution, which respectively state that “all persons are equal before and under the law” and that “women have the right to equal treatment with men.”
The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Mario Somensi, upholding the constitutionality of Article 224(a) of the Penal Code which establishes a presumption of violence in sex crimes against minors. Somensi was convicted of rape and child abuse, and was sentenced to a prison term of eight years for rape and one year and ten months for child abuse. In his appeal and writ, Somensi argued he had committed no violence and that the presumption of violence set forth in Article 224(a) of the Penal Code was unconstitutional. The Court first noted that the provision in question predated Brazil’s 1988 Constitution and could not be found “unconstitutional” with respect to its construction. Rather, the Court examined its compatibility with the 1988 Constitution and found that the purpose of the presumption – to protect minors who legally are incapable of offering consent – was consistent with and expressed by the broad statement in Article 227 § 4 of the Constitution that “[t]he law shall severely punish abuse, violence and sexual exploitation of children and adolescents.” The STF held that the presumption did not violate constitutional principles, even when the presumption embraced what otherwise would be a factual matter requiring evidentiary proof.
Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment as between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without impinging on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.
The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) reviewed the constitutionality of the 1998 Amendment 20 of the federal Social Security Law. The amendment imposed a maximum value on the amount of social security benefits that could be paid to a beneficiary under the general social security system at R$1,200 per month. On its face, the R$1,200 maximum applied equally to a number of eligible benefit categories, including maternity or pregnancy-related leave. The amendment was challenged on the grounds that, when read together with Article 7, Section XVIII, of the 1988 Brazilian Constitution, the amendment had a discriminatory effect on women. This provision essentially guarantees that an employee is paid her full salary during maternity leave. By imposing a cap on social security coverage during maternity leave, Amendment 20 would require the employer to cover the difference between the R$1,200 cap and the employee’s full pay. The party challenging the amendment argued that this created a negative incentive to employers who would discriminate in hiring women or in setting women’s salary by paying women less in order to stay under the R$1,200 cap. The Court agreed that Amendment 20 was discriminatory in its effect. In a unanimous decision, the STF held that the effect of Amendment 20 conflicted with the Brazilian Constitution’s equal protection provisions that prohibit discrimination on the basis of sex. The Court therefore ordered that Amendment 20 be interpreted in a manner consistent with the Article 7 of the Constitution such that implementation of the social security cap does not extend to maternity and pregnancy-related leave.
The Forum for Women, Law and Development in Nepal petitioned the Supreme Court to revise a law allowing men to take second wives if their first wife is significantly ill or handicapped and gives consent. The Court found that this law was inconsistent with Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, and with international women’s rights conventions, including CEDAW. In its ruling, the court stated that a husband should care for a sick or handicapped spouse and that requiring consent could promote domestic violence. By taking action to change this law the Court showed a dedication to real reform based on the Constitutional mandate for gender equality, crucially recognizing that accepted traditional practices must be reappraised.
Meera Dhungana, an important women’s rights advocate in Nepal, petitioned the government to deem void a provision of the Bonus Act in the Constitution of the Kingdom of Nepal that prevents married daughters of a deceased from receiving compensation upon his death. The petitioner claimed that this provision discriminates against women based on their gender and marital status, thus contradicting the Constitution and international gender rights conventions. The Court denied the petition, finding that the Bonus Act treats male and female successors equally unless a daughter is married, in which case she has equal inheritance rights with her husband. This case marks the limitations to legal reforms that the Supreme Court will consider in the defense of gender equality, showing a consideration of Constitutional law, international conventions, and practical outcomes for women.
After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW. This ruling represents an important step in reevaluating widely accepted laws from a gender equality standpoint. In addition, the Court acknowledged that it was constitutional to employ positive discrimination to guarantee equal rights for women, allowing for proactive defense of women’s rights in Nepal.
A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.
A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.
The Court upheld a petition to quash a provision of the Nepalese Passport Act that requires women under the age of 35 to procure a letter of consent from a guardian before obtaining a passport. The Court ruled that the provision was contrary to Article 11 of the Constitution because it infringed on equal treatment between men and women, was contrary to the mandate for positive discrimination to ensure equality for women, and inhibited a woman’s right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Thus, the Court quashed this provision and directed the Ministry of Foreign Affairs to issue passports to Nepali women without a letter of permission, putting an end to a highly prejudiced practice that had prevented women from accessing education, employment, and cultural enrichment outside of Nepal.
The Forum for Women, Law and Development in Nepal brought a petition to the Supreme Court filing for an exhaustive law ensuring privacy for vulnerable groups; particularly women, children, and persons living with HIV/AIDS. The Court ruled that enforcing the right to privacy for these and other sensitive parties in legal proceedings is inextricable from other Constitutional rights, including life and dignity, and vital to ensuring justice. Therefore, the Court ordered a directive for a law to be passed ensuring the right to privacy and set forth detailed guidelines for maintaining privacy to be followed in the interim. This ruling guarantees a crucial right to victims of gender violence and other abuses, opening a window for them to seek justice without fearing further injury from social stigma, discrimination, or retaliation. Furthermore, the ruling acknowledges that certain Constitutional rights much be positively enforced through legal codes.
A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape. Although the Court did not have the power to change sentencing terms on existing offences, it directed the legislative authorities to change sentencing terms for marital rape, showing recognition of the gravity of rape as a violation of rights and dignity while also exhibiting a proactive will to reform legal codes in the name of equality.
Citing reports that a traditional custom called Kamlari sends over 10,000 children between the ages of 7 and 8 into servitude for wealthy households or small businesses, a petition called for new controls on this practice which is against both Nepalese constitutional law and the Convention on Rights of the Child, 1989 (CRC). The Court ordered the Government of Nepal to frame laws to abolish Kamlari and ensure protection of affected children. In addition, the Court called on the government to develop comprehensive legislation addressing the underlying issues that perpetuate such harmful practices, such as education and employment, especially amongst girls and women. By rooting out the base causes for harmful traditional practices, the Supreme Court of Nepal showed a crucial willingness to identify and address the societal problems driving harmful practices, providing hope for real change in women’s and human rights.
Women of Badi origin, an ethnic minority subjected to social and economic exclusion in Nepal, are often forced into prostitution and become single mothers. The petition sought to rectify the common practice of denying citizenship and other rights to Badi children when the father cannot be found. The Court ruled that it was unconstitutional to deny citizenship on such claims and, furthermore, amended a law that gave men precedence over women in birth and death registrations. Finally, in light of the range of abuses suffered by the Badi, the Court ordered a study on problems faced by the Badi community directed that all recommendations produced be implemented. This case is remarkable not only in recognizing the impacts of ethnic and gender discrimination but also in going beyond the petitioners request to proactively address the wider range of related rights abuses.
A petition claimed that the traditional practice of electing young girls as Kumaris, or “goddesses”, who are expected to follow certain social restrictions and appear at religious festivals violated the rights of the child. After ordering a study the Court found that this practice did not prevent the Kumari from getting an education or qualify as child labor. Rather, the Court found Kumaris to be an important cultural and religious institution and ordered compensation for former Kumaris who had not been socially reintegrated and ordered a study to find recommendations for preserving the rights, interests, and social security of current and ex-Kumaris. This case shows an astute consideration of the balance between cultural preservation and child’s rights in a country with deep cultural and religious traditions. Additionally, it sets the important precedent of considering the practical well-being and rights of the child before implementing human rights reforms.
The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.