African Customary Law and Women’s Ownership of Land in Kenya

Women play a significant role in the agricultural sector in Kenya, where they provide over 70 percent of the workforce. With women’s considerable contribution to fighting hunger, malnutrition and food insecurity, one would expect them to have a bigger stake in land ownership. However, just the opposite is true, as women are instead deprived of secure tenure of the land they work.

Women make up just 5 percent of registered landholders, with only 8 percent of Kenyan women jointly-owning land with men. As a result of this violation of the right to property, women are subjected to poverty, disease, violence, and homelessness and this continues to harm women, their children, and the overall development of Kenya.

For Kenyan women, customary laws and customs have been, and sadly continue to be, used to constrain their right to land ownership. In re the Estate of Andrew Manunzyu Musyoka, the deceased died intestate leading to an application taken to the High Court of Kenya by the descendant’s daughter. As the first-born of his first customary marriage, the daughter sought to be included in the list of beneficiaries to his land. This assertion was met with the counterargument from the respondents that the application of African customary law stood to exclude her from inheriting. The customary law rule of the Kamba people is that a female married under African customary law is ineligible to inherit from the estate of her deceased father. The High Court went on to hold that the applicable African customary law was discriminatory on the grounds of sex. Therefore, the law was deemed to be repugnant to justice and good morals and inapplicable to the case at hand. In applying the Succession Act, the High Court stated that section 40(1) of the Act provides that all children, whether male or female, are beneficiaries and should share in the deceased’s estate. Furthermore, under section 29 of the Act the daughter would still be entitled to her father’s estate whether she was married or not.

Although the re the Estate of Andrew Manunzyu Musyoka is a recent 2005 case, women continue to be victims of unequal access to land due to discriminatory and patriarchal customs and attitudes.

Formally, Kenya has progressive laws in place which are capable of being used to combat discrimination and inequality against women in land ownership. The Constitution of Kenya, 2010, enshrines several protections for women on their land and property rights including Article 2(4), which provides that “any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” Article 27 prohibits discrimination on any ground including sex and marital status and expressly states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Equally important, Article 61 requires the Kenyan parliament to enact legislation to regulate the recognition and protection of matrimonial property. This applies in particular to the matrimonial home during, and on termination of marriage, to protect the dependants of the deceased person holding interest in the land including the interests of spouses in actual occupation of the land.

In 2011, the CEDAW Committee urged Kenya to establish a clear legislative framework to protect women’s rights to inheritance and ownership of land and introduce measures to address negative customs and traditional practices, especially in rural areas, which affect full enjoyment of the right to property by women. Since the recommendations by the CEDAW Committee, Kenya has consequently enacted laws that recognise the principle of equality to land ownership. For instance, the Land Act, No. 6 of 2012 provides in express terms that there shall be non-discrimination in ownership and access to land. It further requires any state officers discharging their functions and exercising their powers under the 2012 Act to be guided by the values and principles of the elimination of gender discrimination in law, customs and practices related to land ownership.

Despite the enactment of these pieces of legislation which formally entrench the rights of women to own land, customary norms which continue to marginalise and discriminate against women result in the majority of women in Kenya not being able to exercise their right to own land.


Sources:

FAO, ‘Country Programming Framework for Kenya: 2014-2017’ (2014) 9 Available at:
http://www.fao.org/3/a-bp634e.pdf accessed 28 March 2018.
The World Bank, ‘Gender in Agriculture Source Book’ (2009) 15 & 16 Available at: http://siteresources.worldbank.org/INTGENAGRLIVSOUBOOK/Resources/CompleteBook.pdf accessed 28 March 2018.
Human Rights Watch, ‘Double Standards: Women’s Property Rights Violations in Kenya’ (2003) 15(5A) Human Rights Watch, 1 Available at:
https://www.hrw.org/report/2003/03/04/double-standards/womens-property-rights-violations-kenya accessed 27 March 2018.
Re the Estate of Andrew Manunzyu Musyoka [2005] eKLR (HC) 2.
Ibid 6.
The Global Initiative for Economic, Social and Cultural Rights, ‘Joint Shadow Report to the United Nations
Committee on Economic, Social and Cultural Rights’ (2016) Available at:
http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/KEN/INT_CESCR_CSS_KEN_22790_E.docx accessed 28 March 2018.
UN Committee for the Elimination of All Forms of Discrimination against Women, ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women’ (5 April 2011) UN Doc CEDAW/C/KEN/CO/7, para 42.
Land Act 2012, (Kenya) s 5(2).
Ibid s 4 (2).

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