This theory was propounded by Hans Kelsen. It is all about the legal system being pure i. e. free from external forces and the concept of separating laws from morals need to be uphold at all times. Basically, law is defined as an interconnected system of norms, each norm being dependent on another more like a sequence or molecules whose validity is rooted in a Grundnorm which is the stepping stone of all laws. A law is considered a Grundnorm only if it attracts a minimum level of effectiveness and in case it ceases to have a minimum level of support then it should be replaced by another. A typical example would be the former Constitution of Kenya which was replaced by the current one back in 2010.
Law was also portrayed as a normative science which evolved around the epistemology of hierarchy of normative relations that is basically the pyramid of norms; placing the Grundnorm at the apex of the pyramid. This concept has been married into the Kenyan system via the Judicature Act where the Judiciary ought to be exercised in accordance to the Constitution, being the supreme law, making any law that is inconsistence with it be termed as null/void. It is also important in noting that the validity of the supreme law is not subject to challenge by any state organs. And that the rights enjoyed by Kenyans cannot at any given time create individualism of people because the language used is transparent enough in advocating for public interest. Meaning that once the commission of a crime is rendered permissible in law then it shall be of detrimental to the general public.
The commission of rape attracts acts such as assault and battery that are usually inflicted on the victim. It involves the use of force due to a struggle between the rapist and its victim. Section 24 of the Penal Code of Kenya [Cap 63] view both assault and battery as criminal offenses before the law. The Sexual Offenses Act defines sexual assault as unlawful penetration of the genital organs of another person with any part of the body of another or that person or even manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body. It went further and highlighted rape as the intentional and unlawful commission of an act which causes penetration with his or her genital organs and the other person does not consent to the penetration or even the consent is obtained by force or by means of threats or intimidation of any kind. The language used above draws the assumption that rape can be committed by any of the sexes. Even though the Act does not acknowledge marital rape as a crime, the constitution stands for equality between spouses through the Bill of fundamental freedom and rights, which has the binding element to all that are within its jurisdiction that need to be promoted and respected at all times. This argument is supported by international instruments such as Universal Declaration on Human Rights (UDHR) which is the mother of all declarations. Article 1 entails that one ought to be treated with equality and dignity also that parties to a union are entitled to equal rights. However, rape does the complete opposite of that.
Marital rape is a branch of domestic violence that is part of our daily lives which has been happening for a very long period of time. It strips off its victim’s dignity which is an alienable right that one needs to enjoy for just being a human being. At both international and national platform such an act is unwelcomed for. And allowing its occurrence shall mark us as betrayers of our very own existence.
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