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KENYA: New Constitution a Winner With Women

Susan Anyangu-Amu

NAIROBI, Aug 6 2010 (IPS) - A day after Kenyans voted to accept a new constitution, women across the country speak about their hopes and expectations.

The case of Elizabeth Chazima could stand for the story of millions of women in Kenya who have been robbed of their financial contributions to matrimonial assets.

Speaking to IPS from her modest grocery store in Jericho Estate, Nairobi, Chazima recounts how in the early 1990s, her husband sold the house they had bought together without her knowledge.

“My husband and I owned a modest home which we had bought from the city council. But one frosty morning, my six children and I woke up to loud bangs by rowdy youth who had been hired to evict us from the house.

“To my shock I was informed my husband and had sold the family home without my knowledge. Nor I had seen the money he received from the sale,” she recounts.

Attempts to seek redress proved futile because she had no legal claim to the family home since she had no proof of her contribution to buying the house.

The new constitution provides for the elimination of gender discrimination in law, customs and practices related to land and property.

“My mother who is sick took time to travel and go and vote,” says women’s rights activist Ann Njogu. “She said that finally, with the new constitution, she would have the ability to own land and have her rights in marriage whether during the union or after divorce.”

New dawn for women’s rights

Njogu is the chair of the Centre for Rights Education and Awareness (a non-governmental organisation aimed at confronting the low awareness of women’s real needs and rights in society). She says the new constitution will protect women’s rights to matrimonial property.

Under Kenya’s previous law, inheritance was governed by customary law, often preventing women from inheriting property from their parents or laying claim to joint assets when their husbands’ died.

“This is a historic moment for the women of this country who have for years battled with their in-laws in succession cases,” Njogu says.

A new Bill of Rights also provides that all marriages shall be registered under an Act of Parliament. This means that even customary law marriages will be certified, protecting women’s interests in disputes between a widow and her in-laws over property.

Currently, in the case of customary marriage it is the in-laws who attest to the existence of the union since they are the ones who oversee the traditional wedding. When embroiled in a succession dispute with such in-laws, it is highly unlikely they will assist the widow and her children.

In the new dispensation, all marriages will be officially registered. Women will also be protected from claims by other women who turn up following a man’s death, claiming to have been married to the same man under customary law and demanding a share of his estate – a common occurrence.

Representation in decision-making

According to Njoki Ndung’u, a member of the Committee of Experts which drafted the new constitution, Kenyan women to this point have been treated as second class citizens – the largest historically marginalised group in Kenya.

“Despite being 50 percent of the population, women’s needs are rarely reflected in the overall national policy because they do not feature in key decision making positions that distribute power and resources nationally,” Ndung’u says.

“With the new constitution, this will change because there are over 40 benefits ranging from simple gender-neutral language to those that are life-changing, like the non-discrimination clause outlawing bias on the basis of sex, pregnancy or marital status,” Ndung’u told IPS.

On Aug. 4, Kenyans went to the poll and an overwhelming 67 percent voted for the new Constitution. Ndung’u notes with approval that a third of elected and appointed posts in public office are now reserved for women.

Currently women constitute less than 10 percent of Parliament and occupy an even smaller proportion of posts in Cabinet and elsewhere in government.

Gendered budgets

Ndung’u, who steered the landmark Sexual Offences Act through an overwhelmingly male parliament in 2006, says this has meant issues that affect women are rarely given priority in policy and budgeting.

The new structure of devolution should also benefit women as national budgets are brought closer to the people: a minimum of 15 percent of the national budget will now be allocated at a local level. Currently only the Constituency Development Fund and the Local Authority Transfer Funds are controlled at the county level – representing just three percent of the national budget.

Ndung’u says the increased funding allocation will ensure more economic growth and opportunities for local businesses to grow.

“Women, who form the majority of the informal sector and small and medium business, will gain tremendously from this injection of funds into the counties. This means an overall well-being of the country, because if you invest in women, you invest in the whole nation.”

Accessible justice

Thanks to the new Bill of Rights, women discriminated against on any grounds can challenge it in court or complain to the National Human Rights and Equality Commission. Such cases will not be subject to court fees, making access to justice much easier for all, especially women.

There is also a provision for class action, allowing a person to institute proceedings in the interest of a class of person.

Harmful traditional practices have also been outlawed under the new constitution, meaning female genital mutilation and wife inheritance will be a thing of the past.

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