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KENYA: A Brand New Constitution, But Can Women Enjoy Land Rights?

Suleiman Mbatiah

NAIROBI, Nov 23 2010 (IPS) - Mary Kimani wishes her husband were still alive. Holding her one-year-old son in one hand and a hoe in the other, she recounts with bitterness how she and her children lost their livelihood to her husband’s family.

Lucy Wanjiku Macharia tends coffee bushes at her farm at Nyarugum-Nyeri in Central Kenya. Only five percent of women in Kenya own land.  Credit: Suleiman Mbatiah/IPS

Lucy Wanjiku Macharia tends coffee bushes at her farm at Nyarugum-Nyeri in Central Kenya. Only five percent of women in Kenya own land. Credit: Suleiman Mbatiah/IPS

“The road accident that took my husband changed my life completely. That was the end of me and my children,” Kimani told IPS. She was married for seven years and, together with her late husband, worked hard to own land, a house and a vehicle.

But only a few months after she buried her husband, her in-laws ejected her and her two children from the homestead. Today, even as she is haunted by the past, she works hard to keep hope glowing, working as a casual labourer on neighbourhood farms.

“I must move on. I have to feed my children, educate them and help them make a descent living,” she told IPS.

Kimani’s in-laws sold the house and land before giving the vehicle to a close relative. She had no right to the property. In Kenya, many women lose their rights to property after divorce or the death of a spouse. According to human rights experts, women’s socially sanctioned dependence on men leaves them vulnerable to “cultural traditions” that do not recognise women’s ownership of land and other property.

Men most often are willing to enforce such so-called customs, says Njoki Njehu, executive director of Daughters of Mumbi Global Resource Centre. The organisation is an independent, non-ethnic network bringing together people of diverse origins as well as “honouring women’s roles in anchoring family and community”.

“But it is not only men; some women who were themselves denied rights because of retrogressive practices uphold such practices to deny other women their rights,” Njehu told IPS. She explains that if a mother did not get land she will not champion her daughter or daughter-in-law’s cause in this regard.

Kimani appreciates that Kenya’s new constitution, promulgated in Aug 2010, represents gains for the women of Kenya. Section 40 of the Kenyan constitution promises the right to own property to “every person”, while section 60 ensures “equitable access to land” and “security of land rights” but without mentioning women or acknowledging their historical landlessness.

Njehu recalls the 2005 referendum: “Politicians mobilised communities to oppose the draft constitution as it would allow women to inherit land.”

Kimani is worried that men won’t enforce the constitution as it stands. “Customs and practices still hold women back. We are discriminated against in several areas that include land and property rights. The society positions men as the sole property owners,” Kimani points out.

The customary laws of some ethnic groups demand that land and other property that a woman acquires before or during the marriage belongs to her husband, who can sell it without her consent. “The key role of a woman is to take care of the property. Should your husband die, others stream in for inheritance. You can’t escape,” says 32-year old Grace Akinyi*.

Akinyi raises the issue of “wife inheritance” where widows are forced to marry again. It is still being practised, especially in western Kenya. According to her, should a woman decline to be inherited and she succeeds, she is often under constant pressure to sell the property at discounted prices.

She has been a victim of this practice. “A woman who owns land is still defined through her ties to men. Women are not recognised as owners in title deeds,” laments Akinyi.

According to international nongovernmental organisation (NGO) Human Rights Watch, customary laws in sub-Saharan Africa have greater influence than civil law when it comes to women’s property rights. And, acccording to a report entitled “The National Land Policy: Critical Gender Issues and Policy Statement”, only five percent of women in Kenya own land.

Hubbie Hussein, director of Womankind Kenya, women must be empowered as part of the effort to eradicate poverty as they produce 80 percent of food crops in sub-Saharan Africa but have no claim to land. Womankind Kenya is a local NGO based in North-Eastern Province, Kenya, with its head office in Garissa.

The predominantly Muslim zone has all manner of religious and cultural rules to limit women’s property ownership. Most residents are of Somali origin. “We often train women on what Islam provides for them with respect to property rights. Men have used religion as a tool to deprive women of their rights,” Hubbie told IPS in a telephonic interview.

Womankind Kenya uses religious texts, the constitution as well as international charters advocating for women’s rights to educate women on the ground. She adds that cases of discrimination against women are common but that affected women do not take any steps out of fear of being stigmatised.

“Girls never get an equal share of their parents’ property. It is a worrying trend here. Whenever a case arises, a council of men will sit to settle it and in the end rule in men’s favour,” Hubbie said.

Gender and human rights advocates believe that if women enjoyed equal property rights they could change the social landscape for the better.

*Name changed to avoid persecution.

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