1 Women Land and Property Rights in KenyaPauline Vata-Hakijamii Kenya | World Bank Conference on Land and Poverty | 20th-24th March 2017

2 Can Legal Provisions Help Increase Gender Equality?

3 “ Marriage does not guarantee equal share of property, appeal court rules”“The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra,”  “It is not a matter of mathematics merely, as in the splitting of an orange in two for, as biblical Solomon found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts,”  “The thinking behind equal share in marriage was woven to convert honest people into gold diggers, pleasure lovers and marriage-hopping brides and grooms.” “Our new constitutional dispensation is no safe haven for spouses who will not pull their weight. It cannot be an avenue to early riches by men who would rather reap from rich women or women who see in monied men an adieu to poverty,” “I do not think that getting married gives a spouse a free-to-cash cheque bearing the words ‘50 per cent’.”

4 History Matrimonial Property Act 2013 1967 commission law & marriage1981 Succession Act Event 1b 2010 Constitution Married Women Property Act 1882 Repealed 2013 Matrimonial Property Act 2013 Marriage Act of 2014 Community Land Act, 2016 History Timeline of repeal and enactment of legislation

5 Women’s participation in land administration institutionsLand boards draw their mandate from the Land Control Act of 1967 and their primary role is controlling transactions in agricultural land. ( whoever who sits on these boards must have agricultural land within jurisdiction of the board. The Land Control Act retains no gender sensitive language and does not specifically call for inclusion of women in the administrative structures. Furthermore, it is common knowledge that men own most of agricultural lands in Kenya therefore chances of women sitting in these boards is quite minimal. Secondly, the boards enjoy wide discretion without adequate mechanisms for accountability, leading to great variations in decision-making. In many cases and in practice when the board refuses approval of certain transactions they are ignored and this opens a Pandora’s Box for violations of rights especially for weaker parties like women.

6 Can Legal Provisions Help Increase Gender EqualityCan Legal Provisions Help Increase Gender Equality? Customary land tenure vs Community Land Act, 2016 It must be stated from the onset that not all customary practices are repugnant; customary law forms part of the law of Kenya as per Article 2(4) of the Constitution and Section 3 of the Judicature Act. However it must not be inconsistent with the constitution or any other written law. The ambiguity from the former constitution provided grounds for judges to rule in favour of customary law over common or statutory law. Hence, in the S.M. Otieno case,16 customary law relating to burial was held to have precedence over common or statutory law. Happily, Article 2 (4) of the 2010 Constitution clearly provides that any law, including customary law, which is inconsistent with the Constitution is void to the extent of the inconsistency. The Community Land Act, 2016 gives effect to Article 63 (5) of the 2010 Constitution and brings out equality aspects. However despite these assertions it does not specifically provide for mandatory seats to be given to women in the different strategic institutions created under the Act like the community land management committees. It is common knowledge that without such clear provisions women are likely to be left out in these key institutions where decisions are made.

7 Customary land tenure vs Community Land Act, 2016The Act is also categorical in regards married women, the law provides that every man or woman married to a member of the community shall gain automatic membership of the community and such membership shall subsist until the spouses legally divorces and the woman remarries or the woman remarries after the death of a spouse. As for unmarried women, they have equal rights to the community land as their male counterparts and shall be part of a registered community who shall form the community assembly which shall consist of all adult members of the community. However the gap here is that there is no particular mention of the threshold of women in the quorum for decision making by the community. This is an issue of concern given community land is formerly the customary system of land ownership in which women had no rights to own land and only limited rights to access or use land, therefore it is quite easy for their voices to be muzzled in the community land system.

8 Situating women’s land rights discourse in the existing institutional, legal and policy contextDespite the progressive laws concerning land and matrimonial property Only 5% of land titles are registered jointly to women and men, and only 1% of all titles are registered separately to women. Matrimonial Property Act, 2013 The law also recognizes contribution by a spouse towards acquisition of matrimonial property - both monetary and non-monetary. Non- monetary contribution includes domestic work, management of the matrimonial home, family business and property, childcare, companionship and farm work. The courts also have the duty to determine what amounts to contribution and the entitlement as provided in Section 6(1) of the Act. It therefore means that for a spouse to get anything after divorce, he or she must prove some sort of contribution to the matrimonial property. This takes us back to the old practice, which was considered oppressive to the women where they had to prove their wifely duties to be able to get matrimonial property.

9 Situating women’s land rights discourse in the existing institutional, legal and policy contextLet us look at how the good judges in Kenya have interpreted this “non-monetary contribution”. Justice Tuiyot said that by recognizing non-monetary contribution, the Act was in sync with Article 45(3) of the Constitution and that each party should walk away with what he or she deserves, a lazy spouse gets nothing. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property. That surely is oppressive to the spouse who makes the bigger contribution. That cannot be the sense of equality contemplated by Article 45(3). Essentially, in many marriages there exist child bearing and care and companionship. How then would this be quantified?

10 Situating women’s land rights discourse in the existing institutional, legal and policy contextNow we get to the ugly of the matrimonial property act Section 7 says: “Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” This section, as shown earlier, will take the women back to the era where women had to prove their “wifely” duties as seen in the case of Echaria vs Echaria. It could also subject the spouses to try and prove contribution through monetary value.

11 The place of “come we stay” marriages or cohabitation unions in the new lawsThe Marriage Act, 2014 defines cohabiting as living in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage, (though what amounts to ‘long term’ is not defined). However that is as far the statute goes it does not recognize cohabitation as a category of marriage therefore it is not clear what these unions amount to. There is lack of security in these unions unless through a court declaration( which is not consistent in their declarations) as much as they amount to most marriages in Kenya. These unions leave spouses in precarious situations when it comes to inheritance upon the demise of a spouse given they have no legal standing and it can only be pronounced by a court order. Consequently, the benefits granted to marriage unions are not available to cohabitees whose union is marred by legal uncertainties. Cohabitees are not eligible for maintenance upon separation. Further, upon the death of one party, the surviving party is ordinarily not eligible to inherit from the deceased’s estate unless they can prove that the survivor evolved from a mere cohabitee to a dependant under section 29 of the Law of Succession Act. i.e cohabitee can only benefit from the estate of the deceased if they have an issue( a child)

12 Recommendation Cohabitation unions constitute most “marriages” in Kenya, the government should recognize these unions as marriages through an amendment of the Marriage Act. The constitution calls for two thirds gender rule and this must be seen practically to ensure inclusion of women in decision making on land matters. The government should also ensure gender equality in land administration bodies, and ensure that these institutions are trained on women’s equal rights to land and property and how to protect them. Polygamy has been recognized in the Marriage Act (Customary Marriages – Part V). The Law of Succession Cap 160 section 26, equally recognises polygamy and provides for co-wives and their children. However unlike monogamous marriages the Matrimonial property act is silent on spousal consent for polygamous unions which is disadvantageous to these sort of unions. Section 7 of Matrimonial Property should be repealed or subjected to interpration to standardize the aspect of Non-Monetary contribution.

13 Seems legal provisions can be used to advance genderEquality depending on who interprets the law or who sits at the bench