Land Law and Gender Issues in Kenya (original) (raw)
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Women ' s Land and Property Rights in Kenya
2010
In order to make these guides useful and user-friendly, when possible we have uploaded the full-text laws and articles that we cite to into the LandWise library. The footnotes throughout this guide are all hyperlinked to full-text laws, articles or other citation information. When you hover over a footnote, the citation information will pop up in a bubble. When you click on the footnote, you will be taken to the full-text of the item the footnote is referencing. Background Kenya's legal framework is undergoing significant changes following promulgation of a new Constitution in 2010.[1] This is particularly true in the areas of land and property rights and women's rights, which require the development of new legal frameworks that conform with the provisions of the Constitution. Relevant provisions include: a Bill of Rights recognizing the right of women to equal treatment under the law and prohibiting gender-based discrimination;[2] devolution of services, including land-related services to the county level;[3] recognition of traditional dispute resolution mechanisms; [4] a prohibition on the use of traditional dispute resolution mechanisms in a way that contravenes the Bill of Rights;[5] and, requiring legislative implementation of the principle that women make up at least one-third of the members of elected or appointed political bodies.[6] A set of land laws giving effect to the Constitution, the Land Act, Land Registration Act, and National Land Commission Act, were approved in 2012. A new set of marriage laws, the Matrimonial Property Act, 2013, and the Marriage Act, 2014, recently replaced the older framework, which included seven different marriage laws but did not include explicit provisions governing customary marriages. Other legislative reforms, including Community Land and Evictions and Resettlement Bills, are currently under development and debate. Despite a progressive legal framework, Kenyan women's land rights continue to lag behind those of men. Customary law, which often discriminates against women and limits their land and property rights, governs at least 65% of land in Kenya,and the patriarchal nature of Kenyan society often limits the rights of even those women not living on land governed by custom.[7] Some estimates indicate that as little as 1% of land is titled in the names of women and 5-6% is titled jointly by women and men.[8] This guide provides an overview of the formal and customary legal framework governing women's land rights in Kenya. Although this guide is not a comprehensive review of the legal and customary framework governing women's land rights in Kenya, it provides the reader with a broad assessment of the status of women's rights and challenges. Section II provides a summary of legal provisions relevant to the governance of land, including the laws on marriage, divorce, and inheritance. Section III describes the customary legal framework governing women's land and property rights, looking broadly at practices common across ethnic groups. Section IV provides a brief assessment of the overall status of women's property rights in Kenya, based on the preceding sections. Acknowledgments The author would like to thank Eileen Wakesho, Patricia Kameri-Mbote, and Renee Giovarelli for reviewing and providing valuable comments and insights for this practice guide. II. Formal Legal Framework for Women's Land and Property Rights Constitution The Kenyan Constitution recognizes three broad categories of land-public, private, and community.[9] Public land includes (among others) government-owned or occupied land:[10] The State retains the right to regulate the use of land "in the interest of defense, public safety, public order, public morality, public health, or land use planning."[11] The State has the right to acquire other property for a public purpose or in the public interest provided the acquisition is carried out in accordance with the Constitution, which requires prompt and just compensation for owners as well as good-faith occupants. [12] Public land was called Government land in the prior constitution. Private land consists of registered land under freehold tenure and land held under leasehold tenure:[13] Private land owners have absolute proprietorship and the rights of exclusion except in cases of compulsory acquisition by the Government, as outlined in sections 107-120 of the Land Act, 2012.[14] The right to acquire and own property is guaranteed to all Kenyans.[15] Women's rights to land are legally equal to those of men under Art. 27(1),[16] which provides that, "every person is equal before the law and has the right to equal protection and equal benefit of the law," but in reality there is a significant gap between men's and women's rights to land. Community land consists of land legally registered to a group, transferred to a community through a legal process, or declared community land by an act of Parliament, as well as lands traditionally occupied by huntergatherer communities, lands held, managed, or used by specific communities as "forests, grazing areas, or shrines", and land held in trust by a county government for a specific community.[17] The equality of women and men is enshrined in the Bill of Rights: Equal treatment of all persons under the law.[18] The right to equal treatment for women and men in the, "political, economic, cultural and social spheres. "[19] It also prohibits discrimination by the state or a person, both direct and indirect, based on a variety of factors, including race, sex, pregnancy, marital status and disability.[20] The Government also has a mandate to implement legislation and affirmative action programs to redress disadvantages to individuals and groups as a result of past discrimination.[21] Any treaty or convention ratified by Kenya shall form part of the laws of Kenya.[22] This is important because the Government of Kenya has ratified a number of international conventions and treaties with nondiscrimination provisions, including women's rights conventions that support women's equal rights to land, such as: the Universal Declaration on Human Rights (1948); the International Covenant on Economic, Social and Cultural Rights (ICESCR 1966); the Convention on the Elimination of All Forms of Discrimination
The new Constitution is a culmination of the incremental steps taken by the country to level the socio- legal terrain in favor of women’s rights and interests in land. The new Constitution represents a significant improvement in women’s and men’s rights and status in Kenya in all spheres of life. Land is one of those spheres. There is therefore need to consider the broader definition of land (water and space inclusive) as natural resources, as well as other property and assets in all matters land. Land and other property (such as cattle, extractive minerals, machinery etc.) can be used for farming and production, and can also be the basis for wider political empowerment for women. Having access to secure land and property tenure can provide a home and enable women to engage in political struggles over resources; land is an asset to bring to marriage and can be used as collateral for loans. As such, land and property are the foundation of economic empowerment, giving many women in Kenya the confidence to take risks and to negotiate rights to resources, but also providing them with ‘peace of mind’ In this publication, the opportunities and suggestions given that if women are to make a wholesome contribution to the Kenyan society they must take advantage of the framework in the new Constitutional dispensation is given great prominence.
2019
The 2010 Constitution of Kenya put in place clauses that support gender equality in land ownership and control but this has not led to women enjoying secure and equal rights to land. Women are the majority in the agricultural sector but their role is confined to provision of labour on land owned by a male member of the family. This paper adopts a historical perspective to trace the origin of this problem. It explore show the Swynnerton Plan of 1954 collaborated with patriarchy to close out women from owning and controlling land and how this influenced gender relations in agricultural production in Kenya and Nandi District in particular. The paper is an outcome of oral data collected in the field, archival material from Kenya National Archives and secondary data, mostly books and journals on the subject from various libraries. The main argument is that political, economic, social and ideological factors interacted in a complex manner and influenced men and women ownership of land. Ge...
Women’s Rights to Land Ownership and Use in Vihiga County, Kenya: Need for Communication
2020
For the Luhya speaking people of Western Kenya as well as for everywhere in the world, women are important for economic development and access to land is central for food production and income generation. Though they constitute the majority of the agricultural workforce (70-80 per cent), their access to and control over land is globally estimated at 5 per cent. This study sought to investigate women’s rights to land ownership and use in Vihiga County, Kenya. The specific objectives were to establish the extent to which women have knowledge of their right to land ownership and the cultural factors that influence land ownership. The study was carried out in 2018 and it employed a survey design. The target population was 10,000 respondents from Vihiga County which comprised the four sub-counties: Sabatia, Hamisi, Emuhaya and Vihiga households and the Ministry of Lands. Simple Random Sampling was used to select a sample size of 384 respondents comprising women, chiefs and county land ad...
Translating rights into practice: a study on womens land rights in Kenya
2011
The majority of Africa"s population lives in rural areas and depends on subsistence farming for their livelihoods. 10 Land provides men, women and children alike with shelter, food and water while being the principal means of agricultural production. It is not simply a commodity but is intrinsically linked with the social and cultural lives of the different communities inhabiting it. Families and communities, therefore, seek to retain control over land within their kinship group, making inheritance the primary means by which land is transferred. 11 Inheritance patterns in most African communities are patrilineal, meaning that land is passed on from fathers to sons. 12 Daughters are expected to leave their natal home upon marriage and become part of their husband"s family through whom they will access land. Until then, they may access land through their fathers, brothers or other male relatives. More complicated, however, is the situation of widows and, in particular, of divorced women. Their access to land is, among other factors, highly dependent on their relations with their in-laws and the negotiation power they hold. Control over land, as the principal means of production, is an important source of economic and political power in rural areas. 13 Women"s lack of control over land, resulting from unequal inheritance rights, lies at the heart of power inequalities between men and women. 14 Women"s inferior socioeconomic position leads to their exclusion from decision-making processes and consequently serves to uphold male control and dominance. Socioeconomic and political inequality thus mutually reinforce each other and ensure female dependency and subordination. Women"s historic exclusion from law making, independent of the legal system one talks about, has been central to the maintenance of unequal gender relations. 15 It has led to the selective translation of social norms into legal provisions which, as a result, fail to reflect the perspectives of women. In addition, women are often excluded from participation in bodies 10
Women's Land Rights: Cultural Dynamism and Decentralized Land Administration in Kenya
2015
Beginning the early 1990’s Kenya has placed a lot of emphasis on alternative mechanisms for addressing local level land issues. However, despite the legal, policy and institutional measures taken, women still lag behind in securing their land rights. This study focuses on the role played by the decentralized land administration systems at the local level.The study examines what these institutions are doing to the cultural terrain within which women’s land rights are negotiated. Reference is also made on the cultural knowledge that is being invoked in dealing with women’s land rights. The findings indicate that women’s inclusion in these devolved institutions is positively influencing women’s stature at the local level. It is also evident that legal and policy reforms alone cannot guarantee women’s land rights. However, economic empowerment of women through education holds the key in enhancing their access and control over the land resource.