By Patricia Kameri-Mbote, chair of the University of Nairobi’s Department of Private Law
|Ruth Kamula, a farmer in Kiboko, Kenya, among her maize crops|
Access to land for women is critical for their participation in Kenya’s governance because land-based resources comprise the backbone of the national economy and the basis of many livelihoods. Interventions in the multiple functions of land — economic, political, social and conservation — are all critical for women’s empowerment.
Despite recent favourable provisions in the Constitution and the National Land Policy, women are yet to realize their rights to land and land-based resources. U.N. Women considers the issue of access to land and related resources for women critical to the empowerment of women in the political, economic and social spheres, and supported the pilot project on enhancing women’s land property rights in Kenya in 2011. The issues covered ranged from national policy issues to local grassroots’ concerns.
The Constitutional promise
Gender-facilitative provisions which provide a crucial anchorage for gender equality in the Constitution of Kenya include:
- Article 60(1) asks for land in Kenya to be held, used and managed in an equitable, efficient, productive and sustainable manner and in accordance with principles of equitable access to land, security of land rights and the elimination of gender discrimination in law, customs and practices related to land and property in land.
- Under Article 61, all land in Kenya belongs to the people of Kenya as a nation, as communities and as individuals.
- With regard to legislation, Article 68(c)(iii) provides for the enactment of laws recognizing and protecting matrimonial property especially the matrimonial home, while Article 68(c)(vi) provides for the protection of dependants in the actual occupation of land in the event of the land owner’s death. This protects widows and their children with unregistered interests in land from eviction from their homes, which happens in some cases and has become more common where the deceased succumbs to HIV/AIDS-related ailments.
- The principle of at least a third representation of women in elective and appointive bodies will facilitate women’s representation in land administration bodies, from the National Land Commission to the county and lower levels of land administration. This idea has been taken into account in the draft National Land Commission bill.
The provisions of the National Land Policy’s Sessional Paper No. 3 of 2009 elaborate the constitutional provisions on equitable access to land and the protection of human rights for all, especially women, minorities and children in matters of access to and ownership of land. Some of the facilitative policy provisions are:
- Land policy principles similar to the ones in the Constitution emphasizing equity and non-discrimination.
- Participation, gender sensitivity, inclusion and transparent and good democratic governance of land as guiding values.
- Protection of human rights for all Kenyans and specifically protection against laws, customs and practices that discriminate against women.
- The recognition, protection and registration of community rights to land and land-based resources taking into account multiple interests of all land users, including women.
- Ensuring that the rights of women in pastoral areas are recognized and protected.
- Putting in place appropriate legislation to ensure effective protection of women’s rights to land and related resources.
- Repealing existing laws and outlawing regulations, customs and practices that discriminate against women in relation to land.
- Enforcing existing laws and establishing a clear legislative framework to protect the rights of women in issues of inheritance to land and land-based resources.
- Making provision for joint spousal registration and documentation of land rights, and for joint spousal consent to land disposals, applicable for all forms of tenure.
- Securing inheritance rights of unmarried daughters in line with the practices of the respective communities.
- Facilitating public awareness campaigns on the need to write wills to protect dependants in the event of death.
- Carrying out public education campaigns to encourage the abandonment of cultural practices that bar women from inheriting family land.
- Ensuring proportionate representation of women in institutions dealing with land at all levels.
The policy also identifies the land rights of women as requiring special intervention and also points out the difficulties HIV and AIDS places on women, proposing that the principle of non-discrimination be adhered to and enforced. On Matrimonial Property, the Policy proposes:
- Review of succession, matrimonial property and other related laws to ensure that they conform to the principle of gender equity;
- Enactment of specific legislation governing division of matrimonial property to replace the Married Women’s Property Act of 1882 of England;
- Protection of the rights of widows, widowers and divorcees through the enactment of a law on co-ownership of matrimonial property;
- Appropriate legal measures to ensure that men and women are entitled to equal rights to land and land-based resources during marriage, upon dissolution of marriage and after the death of the spouse; and
- Mechanisms to curb selling and mortgaging of family land without the involvement of the spouses.
These provisions, taken together with other non-discrimination provisions in the Constitution (Article 10 and 27 and particularly Article 45(3) which provides that “Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”) provide a robust context for engendering land reform and ensuring that women’s land and property rights are realized.
The Land Act and the Land Registration Act have ingrained women’s rights to land by making spousal rights to matrimonial property overriding rights that must be protected even if not noted on the register. Further, they require spousal consent for the transfer, dealing with and registration of any rights to matrimonial property.
The struggle continues
The promulgation of the Constitution,the enactment of the National Land Policy and the new Land Acts which have very progressive provisions on women’s access to land are not enough. A number of challenges still sit in the way of actualizing the provisions. These include:
1) Discriminatory customary laws and cultural practices related to:
- Land as male property.
- Women as property.
- Women’s rights to land predicated on fiduciary relationships to fathers, spouses, brothers and sons.
2) Women do not legally own land and few have land registered in their names
3) Non-representation in formal and traditional land decision-making institutions:
- Institutional frameworks for land administration and management (Community Land Boards and the Land Dispute Tribunals) are highly centralized, complex and bureaucratic.
- Traditional/informal governance structures using laws that discriminate against women.
4) Insecure rights to land especially in the event of the death of male fiduciary.
5) Lack of awareness of the Constitutional and the National Land Policy provisions on women’s rights to land by women and land decision-makers.
6) Past discrimination against women in areas such as education and politics stands in the way.
Alleys of hope and windows of opportunity
Women’s access to land is a ubiquitous issue that must be confronted if the quest for womens economic empowerment is to be realized. It is linked to violence against women, women’s participation in politics and women’s voice in the domestic, local and national spheres.
With the new constitution, there is hope and some windows of opportunity which can greatly contribute to the realization of women’s land and property rights:
1) With devolution and the emergence of counties as sites of local power, addressing women’s access to land will facilitate their effective engagement at this and lower levels of governance.
2) Land reform is a good entry point for women’s empowerment. The Constitution and the National Land Policy recognize women’s rights to land and provide for equity and the creation of a transparent and accountable system of land administration and management. These progressive provisions form a critical fulcrum on which women’s empowerment can be anchored.
3) Using different interventions targeting different stakeholders to ensure that the gains fought for over the years are realized.
- New laws being enacted to implement the Constitution such as laws on marriage, succession, bill of rights, devolution, land and governance and laws being revised to reflect the new constitutional dispensation. These provide invaluable spaces for grounding women’s rights to property in law.
- New institutions at the County and National levels will be established which will be impact on women’s property rights and there is need for interventions in the configuration of these institutions. More specifically, women’s voices need to be heard at the National Land Commission and County governance institutions.
- Targeting national law and policy making actors and structures as well as local structures including religious and traditional institutions to rally allies in the quest for women’s land and property rights.
There are a number of interventions that can facilitate the actualization of women’s gains in the Constitution and the National Land Policy. These include:
- Awareness-raising through civic education for different target groups on specific provisions of the Constitution, the National Land Policy and other laws related to women’s property rights. This can also be accomplished through information packaging and dissemination to facilitate increased knowledge and awareness of the provisions as well as clear misconceptions.
- Capacity building at national, local and community levels to enable women to contribute to the land reform agenda, law reform and the configuration of institutions; participate in and access land administration and management institutions; and redress grievances through formal and traditional dispute resolution forums. Gender training of national and community actors involved in diverse aspects of women’s property rights and dispute resolution can also facilitate the implementation of the favourable provisions in both the Constitution and the National Land Policy.
- Lobbying and advocacy through workshops and media campaigns to raise awareness, build capacity, and accelerate the pace of legislation and implementation of gender sensitive laws regarding land and property.
- Information generation through research on diverse issues related to women’s property rights in statutory, religious and customary law and to identify and mobilize critical networks and allies at the national, county and community levels.