Archive 2003

 

Women's Property Rights in Kenya's Draft Constitution
A Joint Letter to Delegates of Kenya's National Constitutional Conference

Nairobi
August 2003



To: Delegates of the National Constitutional Conference

Dear Delegates:

By enacting a new constitution, Kenya has the opportunity to lay a solid foundation for the legal protection of women's equal property rights. The constitutional review process constitutes an important opportunity to do away with problematic provisions of the current constitution, which permits discrimination when it comes to customary and personal laws that affect women's property rights.

Women's rights to own, inherit, and control property on an equal basis with men are violated in Kenya and in many other sub-Saharan African countries, contributing to poverty, homelessness, dispossession, disease (including HIV/AIDS), and violence. Many women are excluded from inheriting property, evicted from their homes when they divorce or their husbands die, stripped of their belongings, and sometimes forced into customary sexual behaviors, including "wife inheritance" and ritual "cleansing", in order to keep their property. These practices not only discriminate against women, they undermine Kenya's development and its fight against HIV/AIDS.

The draft constitution currently under review contains vital provisions that would protect the property rights of your mothers, sisters, daughters, and wives. Enacting the draft constitution would further bring Kenya into compliance with its international human rights obligations, including the rights to nondiscrimination and equality before the law. These rights and others relating to women's equal property rights are set forth in the African Charter on Human and Peoples' Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights-all of which Kenya has ratified.

The signatories to this letter represent a range of Kenyan and international organizations and experts that are deeply concerned about women's property rights violations. Individual women who have experienced such abuses have also signed this letter. We strongly support the language relating to women's property rights in the draft constitution. Together, we wish to urge the delegates to the National Constitutional Conference to take this historic opportunity to enshrine in law the equal property rights protections that women deserve.

The Current Constitution

The current constitution provides that all Kenyans are entitled to fundamental rights and freedoms, whatever their sex, and prohibits laws that discriminate on the basis of sex. However, article 82(4) exempts certain laws from the prohibition against discrimination. It permits discrimination "with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law" and with respect to "the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons." Thus, in areas vital to women's property rights, such as marriage, inheritance, and the application of customary law, discrimination is condoned. In addition, article 82(6) provides that if an official body controlling transactions in agricultural land (such as a land control board) gives or withholds consent to a transaction, this decision may not be deemed discriminatory. In other words, if a land control board issues a decision permitting a man to sell family agricultural land, his wife cannot challenge that decision as discriminatory.

The New Draft Constitution

The draft constitution addresses many of the current constitution's shortcomings. If enacted and implemented, it would constitute a profound step forward for Kenyan women and their families and communities.

The draft constitution prohibits discrimination on the basis of sex and marital status in article 34(1), which provides:

 

    Article 34 (Freedom from Discrimination)

    (1) The state shall not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, sex, pregnancy, marital status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language or birth.

 

  • The draft constitution provides for equal rights relating to marriage and its dissolution. Article 38(4) provides:

     

      Article 38 (The Family)

      (4) [Parties] to a marriage are entitled to equal rights in the marriage, during the marriage, and at the dissolution of their marriage.

     

  • The draft constitution guarantees women's right to equal treatment with men, including equal rights to inherit, have access to, and control property and prohibits any law, culture, custom, or tradition that undermines women's dignity, welfare, interest, or status. Article 35 provides:

     

      Article 35 (Women)

      (1) Women have the right to equal treatment with men, including the right to equal opportunities in political, economic and social activities.
      (2) Women are entitled to be accorded the same dignity of the person as men.
      (3) Women and men have an equal right to inherit, have access to and control property.
      (4) Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women is prohibited.
      (5) The state shall -

        (a) protect women and their rights, taking into account their unique status and natural maternal role in society; and
        (b) provide reasonable facilities and opportunities to enhance the welfare of women to enable them to realise their full potential and advancement.

     

  • The draft constitution guarantees every person the right to acquire and own property in article 54(1), which provides:

     

      Article 54 (Property)

      (1) Every person has a right to acquire and own property either individually or in association with others.

     

  • The draft constitution ensures that every person the right to adequate housing. Article 59 provides:

     

      Article 59 (Housing)

      (1) Every person has the right to have access to adequate housing.
      (2) No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.
      (3) Parliament may not enact any law that permits or authorizes arbitrary eviction.

     

  • The draft constitution requires that parliament enact laws to protect matrimonial property and laws protecting spousal rights to inherit land. Article 235 provides:

     

      Article 235 (Tenure of Land)

      Within two years of the coming into force of this Constitution, Parliament shall -

       

        (4)(a) enact law for -

        (iv) the protection of dependants of deceased persons holding interests in any land including the interests of spouses in actual occupation of land.
        (v) the recognition and protection of matrimonial property and in particular the matrimonial home during and at the termination of marriage.


    There is, unfortunately, one notable drawback to the draft constitution with respect to women's property rights. That is the provision in article 31(4) of the draft constitution, which reads: "The provisions of this chapter on equality shall be qualified to the extent strictly necessary for the application of Islamic law to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance." Thus, although the draft constitution would drastically improve most women's property rights, Muslim women would not be entitled to the full benefit of these constitutional rights. According to fundamental principles of human rights, constitutional protections should apply equally to women from all religions and ethnic groups. Such equal protection would be consistent with Kenya's international human rights treaty obligations to ensure equal treatment of men and women, and with the provision that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." (Article 27, Vienna Convention on the Law of Treaties, 1969).

    To better protect the rights of countless Kenyan women whose property rights have been violated or who are at risk of such abuse, we urge you to enshrine women's equal property rights unequivocally in Kenya's new constitution and to ensure effective enforcement of those rights.

    Sincerely,

    /s/ Janet Walsh
    Janet Walsh
    Human Rights Watch, New York

    /s/ Ann Njogu
    Ann Njogu
    Centre for the Rehabilitation and Education of Abused Women, Nairobi

    /s/ Joseph Schechla
    Joseph Schechla, Coordinator
    Housing and Land Rights Network, Habitat International Coalition, Cairo

    /s/ Mercy Wahome
    Mercy Wahome
    Society for Women and AIDS in Kenya, Nairobi

    /s/ Davinder Lamba
    Davinder Lamba
    Mazingira Institute, Nairobi

    /s/ Anne Gathumbi
    Anne Gathumbi
    COVAW - Coalition on Violence against Women, Nairobi

    /s/ Kristen Skonieczny
    Kristen Skonieczny
    Development Alternatives, Inc., Washington, DC

    /s/ Amos Kibire / Dr. M. Hutchinson
    Amos Kibire / Dr. M. Hutchinson
    Education Centre for Women in Democracy (ECWD), Nairobi

    /s/ Diana Lee-Smith
    Diana Lee-Smith
    Urban Harvest, Nairobi

    /s/ Mbekar Daniell Peter
    Mbekar Daniell Peter
    Men for Gender Equality Now, Nairobi

    /s/ Rose Otaye
    Rose Otaye, HIV/AIDS Activist, Nairobi

    /s/ Catherine Muthoni
    Catherine Muthoni
    Consultant on gender issues, Nairobi

    /s/ Richard Strickland
    Richard Strickland
    International Development Specialist, Washington, DC

    /s/ Neema Nungari Salim
    Neema Nungari Salim
    Women and Law in East Africa, Nairobi

    /s/ Ann Wanjiru
    Ann Wanjiru
    GROOTS Kenya, Nairobi

    /s/ Shiela Keetharuth
    Shiela Keetharuth
    Amnesty International, Kampala

    /s/ Odenda Lumumba
    Odenda Lumumba
    Kenya Land Alliance, Nairobi

    /s/ Grace Maingi
    Grace Maingi
    Organization: International Commission of Jurists, Nairobi

    /s/ Geeta Rao Gupta
    Geeta Rao Gupta, President
    International Center for Research on Women, Washington, D.C.

    /s/ Gay McDougall
    Gay McDougall, Executive Director
    International Human Rights Law Group, Washington, D.C.

    /s/ Birte Scholz
    Centre on Housing Rights and Evictions

http://www.hrw.org/press/2003/08/kenya082203-ltr.htm

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