For immediate release

19 May 2022

The advancement of family law to question the role of fault in divorces and the protection of parties who are cohabiting – admission as amici curiae in cases before the Kenya Supreme Court and High Court.

Today was a great day for ISLA and her feminist litigation network (FLN) partners, Kenya Legal & Ethical Issues Network on HIV & AIDS (KELIN), Federation of Women Lawyers (FIDA) Kenya and Center for Rights Education and Awareness (CREAW). We were admitted as amicus curiae in two family law cases, in the Kenyan Supreme Court and High Court, respectively.

“Despite numerous advancements in international human rights standards aimed at ameliorating discrimination against women, family law remains resistant to change. Through the work of advancing the equality framework in family law, our interventions seek to redress and overcome the entrenched gender discrimination in this area of law” said ISLA’s Executive Director, Sibongile Ndashe  Using feminist legal methods to frame strategic litigation to advance women’s rights in the context of family law, and noting that the end of a familial relationship is often the site of the impoverishment of women, our model enables us to analyse laws which on the face of it, appear neutral, to surface the gender bias and to advance protection for women who have been rendered invisible by law. This model draws on prevailing regional and international standards to highlight the failure to legislate and the insufficiency in domestic law-making efforts. “Family law is an area of work where strategic litigation can yield much needed gains to bring about social change, which can be used to address the pervasive discrimination and inequality the women face when trying to assert their right to own, control, use, and access land and property.” Said Nyokabi Njongu KELIN’s litigation Counsel.

In Constitutional Petition No E075 of 2022 Coppler Attorneys & Consultancy v The Attorney General & The National Assembly, the Petitioners seek to have a right to divorce by consent recognized and protected by the Court. They seek to enforce Article 45 (2) of the Constitution which provides for the right to marry based on consent of the parties. The Petitioners’ case, which seeks to depart from the fault-based system of divorce, currently followed by Kenya, is that parties should similarly be allowed to divorce by consent. They seek to declare Part X of the Marriage Act 2014 which provides for the grounds that a party must satisfy in order to be granted divorce in a court of law. In this case, the Kenyan High Court has admitted ISLA along with FIDA-Kenya as co amici. In a brief to be filed with Court in the next 21days, the joint amici note that the case raised critical questions on the nature and extent of a state’s obligations to protect and remove gendered discriminatory provisions and guarantee the right to equal protection of the law in matrimonial laws, the joint amici are of the view that the historical evolution of the laws which provide for fault as a basis for divorce, along with their purpose, is critical in a court’s determination on the function of such laws. They will illustrate this to the court with the use of comparative law reforms and jurisprudence, which will contextualize the development of fault-based divorce as a system; and illustrate divorce reforms from fault-based to no fault.

In the Supreme Court petition no. 9 (E011) of 2021  Mary Nyambura Kangara v Paul Ogari Mayaka, the appeal raises questions concerning the nature and extent of states’ obligations to ensure the protection of various relationships which are not marriages, but which function as family forming unions. In this case, as amicus, ISLA’s submissions will aid the court in appreciating legal framework for the protection of parties in cohabiting relationships and highlight the application of the right to equality and the gendered impact of division of property in various intimate relationships.

Our FLN aims to develop a pool of African feminist strategic litigators.  We do this by investing in partner organisations and a raft of capacity strengthening activities such us the ongoing litigation institute.  In the two cases in which we were today admitted as amicus, we worked with network lawyers based in these three organisations, Nyokabi Njogu, Janet Anyango, who are part of our second cohort of FLN partners and Beatrice Njeri and, Carolene Kituku, who are our FLNFLN alumni,  to frame interventions which would provide the court with information which the courts will use in arriving at determinations which are consistent with the Constitution.The counsel on record for ISLA and FIDA-K in the High Court case is Beatrice Njeri, strategic litigation counsel in CREAW. The counsel on record in the Supreme Court case is Nyokabi Njogu, strategic litigation counsel in KELIN.

For further enquiries kindly contact

Lesego Nchunga

ISLA Women’s Socio-economic Rights Lawyer