There can be no denying the fact that a society has the right to set behavioural norms particularly with regard to acceptable dressing.
Across the spectrum of social interaction – be it in professional or career situations, formal occasions, weddings or funerals – there is generally an expected mode of dressing and acceptable attire.
With Kenya undergoing a social, legal and cultural transformation; with the nation seeking to re-state its identity, values and aspirations; it is not surprising the issue of what is acceptable has come to the fore.
Most of the debate has revolved around women’s attire, particularly the mini-skirt. This is not the first time Kenya has had this debate.
I am told that in the 1970s, when the miniskirt first made its appearance within our social scene; it did so amid much heated discussion as to its appropriateness within an African nation that was and still is largely conservative.
The current debate has unfortunately been characterised by much heat but little light. Some county assemblies have perplexingly determined that they have the legal authority to set and enforce standards of dressing within their borders; despite there being no such power donated to them by the Constitution or Statute.
Let us be clear; in the same way a county cannot prescribe that a particular language be used within its border, a county cannot prescribe standards of dressing to apply within its jurisdiction.
The National Assembly could enact new legislation that expands on existing indecent dressing provisions in our laws. However, the same would almost certainly be challenged in the courts as infringing on the Fundamental Rights to Freedom of Expression under Article 33 and Freedom to Choose One’s Culture under Article 44.
It is also not inconceivable that a court could invoke Article 19(3) of the Constitution and declare the existence of a Freedom of Dressing; though one is not provided for in the written text of our Supreme Law.
Even if that Law was to be upheld as constitutional, the impracticalities of crafting coherent standards as well as establishing a workable enforcement regime would be well nigh impossible to overcome. A good law must be logical, practical and enforceable. Would the proposals being bandied about meet those standards?
Would the Legislature be able to logically ban mini-skirts, shorts and revealing upper body wear without banning swimsuits and swimming costumes? Would our police be expected to patrol the streets, not keeping a vigilant eye on possible armed thugs, but rather keeping an eye on hemlines?
Picture for one moment the sight of a police officer, tape measure in hand, stopping a woman or man in the street and measuring the length of flesh exposed between the end of their lower body garment and their knees.
If the police were spared the embarrassment of enforcing such a law and the same was delegated to the county staff, are we then saying that the streets are so clean that we can now turn our attention to the length of skirts?
It would be a different case altogether if Kenya was gripped by an epidemic of scanty and scandalous dressing. We are not. Our dressing is on the whole very decent and the few daring Kenyans who choose to under-dress or dress inappropriately are best dealt with, not by the law but rather by the cold, disapproving stares of the public which force a rethink of how to dress in the future.
The most dangerous and disgusting aspect of this whole miniskirt debate is the manner in which some quarters have used it as an excuse for rape or sexual harassment. Those lost souls would have us believe that just because a woman wears a short dress or skirt, she ‘deserves’ or is ‘asking’ to be raped or sexually harassed.
That is utter nonsense. Our female ancestors walked around in states of near nudity but they were not raped or sexually harassed. Only a sick mind, desperately grasping for some justification for its perverted nature would think that a miniskirt, or any other reason for that matter, is cause to rape or sexually harass.
Our national and county leaders should not treat this issue lightly. Well-intentioned legislation may end up creating a justification for evil minds to subject our mothers, sisters and daughters to unimaginable horrors all in the name of enforcing standards of dressing.
Even with the law as it stands today, we hear of women being stripped, ironically for being ‘under-dressed’.
By all means let us as a society encourage appropriate dressing based on the event, situation and other circumstances. However, we should not become a regressive and oppressive society that makes laws that are more at home in Taliban Afghanistan than a progressive, modern democracy.
Mr Mbiuki is an advocate of the High Court ([email protected]).