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Securing Women’s Property Rights in Kenya

Published in: Daily Nation

As the world celebrates International Women’s Day, women in Kenya still face hurdles in owning and using land and property.

“I feel like a prisoner,” a 45-year-old widow told me last year during an interview about the subject in Kakamega. “I’m limited in what I can do with land. ‘You can plant here, not there.’ I fear I will get nothing, based on the signs from my mother-in-law.” Her husband had died six months earlier, and she feared she would not get a share of their home, land and business or any inheritance from her husband’s estate.

Land access and ownership is crucial to gain access to markets and better standards of living for women. It is also particularly important for women and girls who are heads of households whether by circumstance or choice.

Widows are still disinherited,  including being evicted from family homes and land, with serious consequences for them and their children, in some Sub-Saharan African countries,  including  Malawi, Mozambique, South Africa, Tanzania, Zambia and Zimbabwe, as well as Kenya. In rural areas of Kenya where residents have limited access to justice, discriminatory traditional practices operate by default.

Forcibly evicting a widow from her matrimonial home and land is illegal under Kenyan law, and a succession law bars her husband’s relatives from arbitrarily appropriating her inheritance.  But the laws aren’t always enforced and justice is hard to come by, especially in rural areas.

When women take these cases to court, they must pay expensive legal fees or proceed with no legal representation. If they are successful, they are stigmatized, ostracized and disowned by their communities. And in many cases poor and rural women struggle to enforce any favorable court decision.

The Constitution provides that parties to a marriage have equal rights at the time of the marriage, during the marriage and upon dissolution of the marriage. The Kenyan government has enacted laws that aim to secure women’s rights to property, and repealed several discriminatory laws.

The Marriage Act calls for registering all marriages--effectively granting women a legal basis for land ownership claims. The Matrimonial Property Act protects women’s rights to property acquired during marriage, and the Land Registration Act defers to it. The Land Act provides spouses some protections from having their home or land leased or sold without their knowledge. The Law of Succession Act gives both male and female children the same inheritance rights.

But the laws have serious gaps and are poorly enforced.

The Marriage Act locks out couples who are not officially married. The Matrimonial Property Act’s ambiguity around what constitutes evidence of contribution made by spouses to property acquired during the marriage and calculating distribution of matrimonial property dissuade many women from claiming their property or results in discriminatory outcomes since Kenyan women largely contribute in non-monetary terms, which is hard to quantify.  

The Law of Succession Act provides more protections for widowers than to widows since widows lose their “lifetime interest” in property if they remarry. The deceased’s father is given priority over the mother where there is no surviving spouse or children. And pastoral and agricultural land, crops, and livestock in certain districts, are exempt, as are Muslims, with women only inheriting a fraction of what men can under Muslim inheritance norms. Widows in rural areas whose livelihood is closely tied to these pastoral and agricultural land may be evicted with no recourse because the law defers to customary law and traditional practices in these communities. Widows in areas where pastoral or agricultural land is exempted face being evicted from their homes with no recourse in law.

Women also face myriad social and cultural problems trying to enforce their rights to use, own, manage, and dispose of land and property. Discriminatory social and traditions practices perpetuate the notion that sons should inherit land, and that women and girls should negotiate use of land through male relatives such as fathers, uncles, brothers, husbands, and sons.

Further reforms are in the works and could help address some of these issues if well thought-out and enforced. Last month Parliament called for submissions related to an amendment of the Law of Succession Act (National Assembly Bill No. 75) to protect the rights of the spouse(s), children, and other relatives whom the person considered family or had maintained prior to their death, to any property not disposed of by their will. Any revision of the law should align with the Matrimonial Property Act and ensure equality between women and men in how an estate is managed.

The Kenyan government should provide accessible legal information and advice and make sure it reaches marginalized groups, especially rural women and girls. Women have made strides toward equality in Kenya. But Kenya has a long way to go to make the right to land and property a reality for all women.

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