The Oppression Olympics concept coined by Elizabeth Martinez is yet another fruit of Critical Legal Studies (CLS), the gift that keeps on giving. CLS emerged as a family of theories. These theories were constructed to counter the existing predominant legal theories and argued that these conceptions perpetuated patterns of the injustice of whites, men, the wealthy, employers, and heterosexuals. The victims in this case then became blacks, women, the poor, employees, and homosexuals. But remember, CLS is a gift that keeps on giving. Before long, Kimberle Crenshaw’s intersectionality theory was birthed because as it turned out, some victims were ‘more victims’ than others. Crenshaw argued that the focus on white women among women and black men among blacks overshadowed the plight of black women who became more oppressed in the process, thus the Oppression Olympics.
“All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave”
Akasha Gloria Hull, Patricia Bell-Scott, Barbara Smith
Oppression Olympics is a competition among marginalized persons to determine who is facing the most exclusions in the society, and in most cases, the most vocal marginalized group is deemed to have won. It has also been described as the “verbal banter between marginalized groups who are trying to determine the weight of their many intersectionalities of oppression with the aim of determining who has had it the worst”. The law recognizes the marginalized groups in Kenya to include women, the elderly, persons with disabilities, children, youth, members of minority or marginalized communities, and members of particular ethnic, religious or cultural communities. In Kenya, the most vocal group among the historically marginalized persons has been women.
The Constitution of Kenya contains extensive provisions of equality and non-discrimination centred on the elimination of historical exclusions of the marginalized groups. However, the most debated, legislated and litigated provision on equality and inclusion is the two-thirds gender principle. This principle, which requires that members of all elective and appointive bodies constitute a two-third gender balance, cuts across several chapters of the constitution. The principle was introduced to increase the representation of women in the mostly male-dominated political and decision-making spaces in the country. The two-third gender rule has been a subject of legal debate and judicial interpretation over the years. The first time the principle was presented to the judiciary for interpretation was under the shadow of a constitutional crisis. The Attorney General filed a Constitutional Reference in which he sought the Supreme Court’s Advisory Opinion on whether or not the two-thirds gender principle was applicable to the National Assembly in the upcoming general elections.
Similarly, the two-third gender principle prompted another much acclaimed petition by the Federation of Women Lawyers – Kenya alleging that the Judicial Service Commission in making recommendations of persons as judges to the Supreme Court to the president, violated the gender principle. While there have been other cases challenging the lack of representation of other marginalized groups, i.e., National Gender and Equality Commission (NGEC) v Independent Electoral and Boundaries Commission (IEBC), Center for Rights Education and Awareness (CREAW) v Attorney General and Another, none of them rival those solely addressing the rights of women.
The increase in the number of women in parliament occasioned the increase in the number of gender-responsive debates and bills tabled before the house. Consequently, a number of legislations in favour of women have been enacted. These include the Marriage Act of 2014, the Matrimonial Property Act of 2013, the Prevention Against Domestic Violence Act of 2015 among others. The coming into law of these legislations have further attracted lawsuits which further the gender agenda in Kenya. For instance, FIDA-Kenya once again filed a petition, this time around, challenging the constitutionality of Section 7 of the Matrimonial Property Act which requires women to prove contribution towards acquisition of matrimonial property despite the expansion of the definition of contribution to include non-monetary contribution. Regardless of the fact that this petition was unsuccessful, the issues of women have been debated, discussed, and addressed more than their counterparts of the marginalized groups’ category.
The visibility of women in Kenya through the increase of women in political spaces, the enactment of gender-responsive laws, and litigation on the same has led to the double-invisibility of other marginalized categories. The elaborate measures taken to further the gender discourse has eclipsed the plight of other marginalized groups in Kenya. This has been furthered by the law which while explicitly creating more spaces for women through more special seats and the two-thirds gender principle, has not been keen to address the issues of other marginalized groups beyond political representation. This has therefore created an ‘Oppression Olympics’ scenario where the rights of women are elevated to the expense of those of other minorities.