Review of Kenya’s Compliance with the ICCPR

A letter to the Human Rights Committee of the United Nations regarding violations of women’s property rights in Kenya to assist in their review of Kenya’s second periodic report on its compliance with the International Covenant on Civil and Political Rights (ICCPR) at the eighty-third session. The Women’s Rights Division of Human Rights Watch has reported and conducted advocacy on women’s property and inheritance rights abuses in Kenya for the past several years. These abuses grossly violate women’s civil and political rights.

March 10, 2005

Re: Review of Kenya’s Compliance with the ICCPR

Dear HRC Members:

We write to share with you information about violations of women’s property rights in Kenya to assist your review of Kenya’s second periodic report on its compliance with the International Covenant on Civil and Political Rights (ICCPR) at your eighty-third session. The Women’s Rights Division of Human Rights Watch has reported and conducted advocacy on women’s property and inheritance rights abuses in Kenya for the past several years. These abuses grossly violate women’s civil and political rights.

Background

Women in Kenya are denied equal property rights, putting them at greater risk of poverty, disease (including HIV/AIDS), violence, and homelessness. A woman’s access to property usually hinges on her relationship to a man, be it her husband, father, son, or other male relative. When the relationship ends through death, divorce, or separation, the woman stands a good chance of losing her home, land, livestock, household goods, money, vehicles, and other property.

A complex mix of factors underlies women’s property rights violations in Kenya, particularly discriminatory laws and customs. The current situation reflects Kenya’s traditional, patriarchal property systems and the failure of Kenya’s government to combat discrimination against women. Adoption of the draft constitution under consideration in Kenya would remedy some of these problems, as would a display of greater political will and investment of resources to end this blatant discrimination.

Violations of Property Rights in Kenya

• Inheritance from Husbands. Many widows are excluded from inheriting from their husbands. When men die, widows’ in-laws often evict them from their lands and homes and take other property. If a woman has a son, she may be able to keep her property in trust for her son, but even this is not guaranteed.
• Inheritance from Parents. Women seldom inherit from their parents on an equal basis with their brothers since women are expected to marry and be “absorbed” and provided for by their husbands’ families.
• Customary Practices Relating to Inheritance. In some areas, widows are forced to engage in risky traditional practices involving unprotected sex in order to keep their property. These practices include wife inheritance, whereby a widow is “inherited” by a male relative of her deceased husband, and ritual “cleansing,” which involves sex with a social outcast, usually without a condom.
• Division of Property upon Divorce or Separation. Divorced and separated women are expected to return “home” to their parents with virtually none of their matrimonial property. Divorced and separated women are frequently expelled by their husbands from their homes with nothing more than their clothing.

In Kenya, where twice as many women have HIV as men, the HIV/AIDS epidemic magnifies the devastation of women’s property violations. Widows who are coerced into the customary practices of “wife inheritance” or ritual “cleansing” run a clear risk of contracting and spreading HIV. Moreover, AIDS deaths expected in the coming years will result in millions more women becoming widows at younger ages than would otherwise be the case. These women and their children will likely face not only social stigma against people affected by HIV/AIDS but also deprivations caused by property rights violations.

Contributing Factors

• Discriminatory Laws and Customs. Property and inheritance rights discrimination is manifested in a number of laws:
• Kenya’s current constitution (the most recent amendment of which became effective in 1998) outlaws discrimination on the basis of sex, but undermines this by permitting discrimination in personal and customary laws, which largely govern inheritance and division of property upon divorce. A new draft constitution would remedy this, but the constitutional review process is delayed indefinitely.
• The Law of Succession Act provides that male and female children should inherit on an equal basis and that spouses should also inherit equally, except that a widow’s inheritance rights are terminated upon remarriage. The Law of Succession Act should have improved women’s ability to inherit, but is largely unenforced and exempts Muslims and property in certain districts.
• There is no uniform marriage statute, and no requirement that customary marriages be registered, leading to confusion that facilitates property rights violations. Case law establishes that family property may be evenly divided if the woman can prove contribution, but in practice, women rarely get property upon separation or divorce.
• Land laws, while not discriminatory on their face, do nothing to promote or facilitate women’s land ownership. In effect, only 5 percent of land titleholders are women.
• Finally, customary laws based on gender distinctions give men greater rights than women to own, inherit, acquire, manage, and dispose of property.
• Ineffective Courts. Lawyers and individual women complain that Kenya’s courts are biased against women, slow, corrupt, and often staffed with ill-trained or incompetent judges and magistrates. These problems discourage women from using both secular and Islamic courts to assert property claims. The Family Division of the High Court, which was established to expedite family law cases, is an important institution, but operates only in Nairobi and is thus inaccessible to many women.
• Unresponsive Government and Traditional Authorities. Local authorities—governmental and traditional—are more apt to apply discriminatory customary law than statutory law when handling property disputes, and are often unresponsive or ineffective. Police and central government officials acknowledge that women have unequal property rights in Kenya, but do not consider this a priority issue and have virtually no programs to prevent and remedy such violations.
• Biased Attitudes. Many men—and some women—in Kenya believe that women should not be entitled to property rights, at least not on an equal basis with men. These attitudes influence the interpretation of customary laws, and vice versa. This cycle legitimizes women’s subordination and inequality.
• Obstacles to Women Claiming Property Rights. Women face serious obstacles to claiming their property rights. Many Kenyan women are unaware that they have legal property rights or have no idea how to enforce them. Even if they know of their rights, the time and expense of pursuing claims may be insurmountable. Women also face violence and social stigma if they attempt to claim property. Moreover, women’s NGOs that work hard to fill the void left by the government to prevent and remedy property rights violations work under extreme resource constraints.

Violations of the ICCPR

• Articles 2 and 3 (Nondiscrimination and Equal Rights of Men and Women). The fact that men in Kenya have greater rights than women, in law and in practice, to own, access, control, and inherit property violates the ICCPR provisions on nondiscrimination and equality. Kenya’s poorly functioning legal system and unresponsive authorities deprive women of effective remedy for violations of their rights, in violation of Article 2(3).
• Articles 12 and 17 (Choice of Residence and the Right to Noninterference with One’s Home). The ICCPR prohibits arbitrary or unlawful interference with one’s home and guarantees the right to choose one’s residence. In Kenya, women’s insecure tenure in their homes due to property-grabbing violates these rights.
• Articles 16 and 26 (Recognition as a Person before the Law and Equality under the Law). Unlike men in Kenya, women face significant obstacles to realizing their right to administer property, an aspect of the right to equality under the law. Moreover, as the HRC noted in General Comment 28, this right means that “women may not be treated as objects to be given together with the property of the deceased husband to his family.” The practice of “wife inheritance” in Kenya violates this right.
• Article 23 (Right to Equality in Marriage and at its Dissolution). As noted in the HRC’s General Comment 28, “Women should also have equal inheritance rights to those of men when the dissolution of marriage is caused by the death of one of the spouses.” Clearly, women should also have equal property rights in connection with divorce. In Kenya, women have lesser rights to property than their husbands both in the context of inheritance and with respect to division of family property upon divorce, in violation of the ICCPR.

Kenya’s delegation reporting to the HRC should clarify the following issues during its upcoming presentation:

(1) What steps will the government take to address the discrimination in law and in practice in the area of women’s property and inheritance rights?
(2) What measures will be implemented to improve women’s knowledge of their property rights?
(3) What steps will the government take to ensure enforcement of the Law of Succession Act and case law relating to division of family property?
(4) How will the government engage traditional leaders to promote women’s equal property rights?
(5) How will the government ensure that its HIV/AIDS programs address the ways that women’s property rights violations put women at risk of contracting HIV and inhibit their access to HIV services and treatment?

We hope that this information is useful to the HRC in its review of Kenya’s compliance with the ICCPR. If you have any questions, please do not hesitate to contact us.

For more information on violations of women’s property and inheritance rights in Kenya, please see Human Rights Watch’s report: Double Standards: Women’s Property Rights Violations in Kenya (2003)

Sincerely,

CC: Joanna Weschler, U.N. Representative