Women's Land and Property Rights in Kenya

WOMEN’S LAND AND PROPERTY RIGHTS IN KENYA— MOVING FORWARD INTO A NEW ERA OF EQUALITY: A HUMAN RIGHTS REPORT AND PROPOSED LEGISLATION The InTernATIonAl Women’s humAn rIghTs ClInIC* georgeToWn unIversITy lAW CenTer EXEUTIVE SUMMARY ..................................................................................3 I. RESEARCH METHODOLOGY .................................................................4 II. MOVING FORWARD TOGETHER: AN OPPORTUNITY FOR GENDER-SENSITIVE LAND REFORM .................................................... 5 III. SEX-DISCRIMINATORY LAWS DOOM WOMEN TO PERPETUAL POVERTY AND MINIMAL, IF ANY, ACCESS AND CONTROL OVER PROPERTY AND LAND .............................................................................6 A. Land Laws Perpetuate Discrimination Against Women .....................6 B. Existing Marriage and Divorce Laws Rob Women of Their Matrimonial Property .......................................................................13 IV. ABSOLUTE SOLE OWNERSHIP BY MEN DENIES WOMEN’S RIGHTS TO LAND AND MATRIMONIAL PROPERTY ....................... 18 A. Men’s Exclusive Control over Land Violates Women’s Rights to Property, Housing, and Credit ......................................................... 18 B. Married Women’s Lack of Control Over Their Matrimonial Home and their Indirect Contributions Are Dismissed in Violation of the Right to Equality in Marriage .......................................................... 23 C. To Rectify Historic Disadvantages Imposed on Women, New Laws Must Require Joint Spousal Registration and Consent for Acts Involving Matrimonial Property ......................................................28 V. WOMEN IN POLYGAMOUS UNIONS FACE EXTRA BARRIERS TO KEEPING THEIR MATRIMONIAL PROPERTY AS THEY MUST OFTEN SHARE IT WITH MULTIPLE CO-WIVES .............................. 33 A. The Continued Practice of Polygamy Deprives Women of Their Rights to Equality in Marriage, Dignity, and Property ..................... 33 * This human rights report was originally authored by Jennifer Smith, Cassandre Theano, Lauren Torbett, and Jennifer Toussaint, Spring 2008 student advocates with the International Women’s Human Rights Clinic at Georgetown Law. It was supervised and edited by then, Attorney-Fellow Tzili Mor, under Clinic Director, Susan Deller Ross. The report was produced in conjunction with the Federation of Women Lawyers: Kenya (FIDA-KenyA), currently headed by Patricia Ny- aundi, with invaluable supervision and input from Claris Ogangah and Evelyne Opondo, and the participation of Goreti Nyariki, Hellen Kwamboka Ombati, Jane Serwanga, Mukiri Githinji (Nanyuki), Florence Kajuju (Meru), Charles Kariuki (Meru), and Mwangi Wanjohi (Nanyuki). The clinic would also like to thank participating U.S. attorneys, Frank Mugabi (DLA Piper, New Perimeter) and Ginger T. Faulk (Baker Botts LLP). Support for this clinic project was provided by DLA Piper, New Perimeter Fund, with follow up support from Baker Botts LLP. Staff and members of TIST (The International Small Group &Tree Planting Program) extended generous in-country assistance and logistical support. 1 Georgetown Journal of International Law B. Kenya Must Regulate Polygamy to Protect Co-Wives and Children From Its Harms ............................................................................... 36 VI. A UNIFORM DIVORCE LAW WILL CURB BIASED JUDICIAL DISCRETION THAT HAS LEFT WOMEN BEREFT OF THEIR HOME AND POSSESSIONS AT DIVORCE ........................................................... 36 A. Gaps in Divorce Laws and Wide Judicial Discretion Leave Women with Nothing at Divorce, Violating their Rights to Equality, Housing, and an Adequate Standard of Living ................................................ 38 B. New, Clear Laws on Equal Division of Matrimonial Property at Divorce Are Critical ......................................................................... 41 VII. LACK OF SECURE LAND AND PROPERTY RIGHTS INCREASES WOMEN’S VULNERABILITY TO DOMESTIC VIOLENCE AND HIV TRANSMISSION ...........................................................................................46 VIII. TO STEM WOMEN’S POVERTY AND MARGINALIZATION, KENYA MUST LIMIT THE APPLICATION OF SEX-DISCRIMINATORY CUSTOMARY LAWS .................................................................................... 52 A. Application of Discriminatory Customary Law Violates Women’s Basic Human Rights ........................................................................ 52 B. To Beget Kenyan Women’s Equal Footing with Men, Kenya Must Abolish Sex-Discriminatory Customary Laws .................................. 56 IX. PROCEDURAL FAIRNESS IN LAND ADJUDICATION WILL BETTER PROTECT WOMEN’S RIGHTS ................................................... 57 A. Gender Balance in Land Bodies will Better reflect Community Needs. ............................................................................................. 58 B. Land Disputes Bodies Prevent Women From Presenting Effective Claims ............................................................................................. 65 C. Implementation of Land Laws Require Mandatory Education and Training ...........................................................................................69 X. STRONGER WOMEN’S PROPERTY RIGHTS WILL EMPOWER AND BENEFIT THE NATION AS A WHOLE ...................................................... 70 XI. KENYA’S LEGISLATURE SHOULD TAKE IMMEDIATE ACTION .. 72 APPENDIX: LAND EQUALITY ACT ........................................................... 73 2 [Vol. 40 WOMEN’S LAND AND PROPERTY RIGHTS IN KENYA EXECUTIVE SUMMARY The Kenyan government has demonstrated its laudable commit- ment to gender equality by ratifying international human rights conven- tions, such as CEDAW, and promulgating a National Gender and Devel- opment Policy. Yet, women in Kenya still suffer the degrading and even life-threatening consequences of their lack of property rights and the result- ing absence of economic security. The denial of equal property rights puts Ke- nyan women at greater risk of poverty, disease, violence, and homelessness. This situation is a direct consequence of discriminatory laws and practices con- cerning women’s access to and control of land and matrimonial property. Kenya’s land laws were developed against a customary law system in which women had no rights to own land and only limited rights to access or use land. Then, the process of land adjudication, consolidation, and registration crystallized men’s absolute ownership and control of land. Today, women rarely own land titles either indi- vidually or jointly with their husbands. Because women face daunting obstacles to land ownership, and thus to housing and loans based on their lack of land ownership, they are denied the rights that Kenya is obligated to provide under international law, including the rights to property, housing, and equal access to credit. Once married, Kenyan women are at the mercy of a legal system that does not provide clear and equal access to the use, management, and control of matrimonial property. The Married Wom- en’s Property Act of 1882, an antiquated British law, contains the sole technical clause available for courts to regulate property distribution between spouses, often depriving wives of any share, much less equal share to matrimonial property. Moreover, discrimination against women flourishes where no law exists to define and address the control and management of matrimonial property. Furthermore, polygamy forces women to share hard-earned matrimonial property with multiple co-wives and children, all bound to receive an ever smaller share of resources. Some husbands use property earned by the first wife to acquire additional wives. While Kenyan women face numerous obstacles during marriage, the bur- den becomes insurmountable if they divorce. The lack of equal property rights upon divorce and the fact that many women become the sole caretakers of their children often drives them into poverty. The precarious economic posi- tion of women renders them more vulnerable to be target of domestic violence, and undermines their ability to leave abusive relationships or to negotiate safe sex. As a result, women and their children face serious physical and psy- chological health harms, including increased risk of contracting HIV/AIDS. Finally, women are unable to effectively assert their rights to property because of gender bias in customary law and the lack of procedural safeguards for land disputes. Women are excluded from the decision-making process as men hold the vast majority of seats in institutions that adjudicate land rights. The deci- sions emanating from those bodies are often based on discriminatory and degrading notions about women’s inability to manage or own land, some of which are enshrined in customary law. As a result, women are subjugated to the sta- tus of second-class citizens who must rely on men as the sources of their rights. To ensure Kenya fulfils its international and domestic commitments to guar- 2009] 3 Georgetown Journal of International Law antee women’s equal rights to land, property, housing, and credit, the legislature should: • Pass laws that require spouses to register land and property jointly; • Enact incentives, such as tax credits and subsidies, for joint registration; • Ensure the availability of alternative forms of collateral to land and as a cor- rective action, lengthen payment periods for loans extended to women; and • Enshrine in law and titles women’s occupancy and secondary

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