There is an urgent need for constitutional recognition of women's equal property rights. As you are aware, Article 70 of the current constitution provides that all Kenyans are entitled to fundamental rights and freedoms, whatever their sex. Under article 82(1) and (3), laws that discriminate on the basis of sex are prohibited. However, article 82(4) exempts certain laws from the prohibition against discrimination. It permits discrimination "with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law" and with respect to "the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons." In other words, in areas vital to women's property rights, such as marriage, inheritance, and the application of customary law, discrimination is condoned. In addition, article 82(6) provides that if an official body controlling transactions in agricultural land (such as a land control board) gives or withholds consent to a transaction, this decision may not be deemed discriminatory.

The draft constitution addresses many of the current constitution's shortcomings. If enacted and implemented, it could mean the difference between life and death for many Kenyan women who would otherwise suffer the grave deprivations of property rights violations. The draft constitution includes provisions that we consider quite significant, including provisions that:

• prohibit discrimination on the basis of sex and marital status (art. 34(1));
  
• guarantee women's right to equal treatment with men, including equal rights to inherit, have access to, and control property (art. 35(1));
  
• prohibit any law, culture, custom, or tradition that undermines women's dignity, welfare, interest, or status (art. 35(4));
  
• guarantee every person the right to acquire and own property (art. 54(1));
  
• ensure that every person has the right to adequate housing (art. 59); and
  
• require parliament to enact laws protecting matrimonial property, including the matrimonial home, during and at the termination of marriage and laws protecting spousal rights to inherit land (art. 235).

The text of these provisions is reproduced in the attachment to this memorandum.

There is, in our view, one notable drawback to the draft constitution with respect to women's property rights. That is the provision in article 31(4) of the draft constitution, which reads: "The provisions of this chapter on equality shall be qualified to the extent strictly necessary for the application of Islamic law to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance." Thus, although the draft constitution would drastically improve most women's property rights, Muslim women would not be entitled to the full benefit of these constitutional rights. According to fundamental principles of human rights, constitutional protections should apply equally to women from all religions and ethnic groups.

Human Rights Watch stands ready to support and collaborate with you in your work on women's rights and human rights generally. We are happy to know that many Kenyan organizations will provide information to delegates of the National Constitutional Conference highlighting important women's rights and human rights issues. We hope that this memorandum is helpful for that purpose.

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Human Rights Watch, the largest international human rights organization based in the United States, conducts fact-finding investigations into human rights abuses in some seventy countries around the world, including the United States. The Women's Rights Division of Human Rights Watch, established in 1990, documents and reports on state-sponsored and state-tolerated violence and discrimination against women in various regions of the world. Our report, "Double Standards: Women's Property Rights Violations in Kenya," is available on the Human Rights Watch website at http://hrw.org/reports/2003/kenya0303/.

Attachment:

Notable Provisions of the Draft Constitution Addressing Women's Equal Property Rights

Article 34 (Freedom from Discrimination)

1. The state shall not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, sex, pregnancy, marital status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language or birth.

1. Women have the right to equal treatment with men, including the right to equal opportunities in political, economic and social activities.

2. Women are entitled to be accorded the same dignity of the person as men.

3. Women and men have an equal right to inherit, have access to and control property.

4. Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women is prohibited.
   
   
5. The state shall -
   1. protect women and their rights, taking into account their unique status and natural maternal role in society; and

   2. provide reasonable facilities and opportunities to enhance the welfare of women to enable them to realise their full potential and advancement.

4. [Parties] to a marriage are entitled to equal rights in the marriage, during the marriage, and at the dissolution of their marriage.

Article 54 (Property)

1. Every person has a right to acquire and own property either individually or in association with others.

Article 59 (Housing)

1. Every person has the right to have access to adequate housing.

2. No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.

3. Parliament may not enact any law that permits or authorizes arbitrary eviction.

Within two years of the coming into force of this Constitution, Parliament shall -

4. a. enact law for - ...
   4. the protection of dependants of deceased persons holding interests in any land including the interests of spouses in actual occupation of land;

   5. the recognition and protection of matrimonial property and in particular the matrimonial home during and at the termination of marriage;