Nairobi — Pressure is mounting to include a National Land Policy that ensures equal access to land between women and men in Kenya's new constitution.
"It is important that the National Land Policy is anchored on the new constitution. It is under the old law that women have suffered several abuses to their land and property rights, mainly through married women's lack of control of property and unequal division of property upon divorce or separation," observed Evelyn Opondo of the Federation of Women Lawyers-Kenya Chapter (FIDA-Kenya), speaking at a forum on land rights in Kenya held in Nairobi in November.
The draft land policy, currently awaiting cabinet approval, acknowledges "gross disparities in land ownership as well as discrimination in succession, transfer of land and exclusion of women in land decision making processes".
Land is a thorny issue in the East African country. It is the principal source of livelihood and material wealth for a majority, and carries cultural significance for many Kenyans.
Despite this, the power to control household resources, including land, lies with men. The problem, analysts say, is exacerbated by the largely conservative judiciary which has continued to give rulings that are unfriendly to women.
The case of Jacinta Wanjiku Kamau versus her husband Isaac Kamau Mungai illustrates this. Wanjiku's husband sold their family land without her consent or the consent of their eight adult children. The family depended solely on the land for their cash and subsistence crops and lived in a house on the property.
The sale failed to consider Kamau's interests, and upon completion of the transaction, the buyer, Ndirangu Gatigi, threatened to evict the family from the land, prompting Kamau to go to court for protection.
The court however argued that "It has never been the practice nor a legal requirement that before the legal proprietor of a piece of land disposes of it he or she should consult any third party be it his/her husband or wife."
Peter Echaria, a civil servant, married his wife Priscilla in 1964. She had a career of her own - first as an education officer, then as a management consultant - but had to stop working to accompany her husband abroad when he was assigned to a diplomatic posting. This was to have painful consequences.
When they divorced in 2001, the court had to determine the division of 118 acres of land which was their joint property. The court in its judgment held that "the beneficial share of each spouse to matrimonial property depends on his or her proven respective portions of financial contribution either direct or indirect towards the acquisition of property."
Priscilla Echaria was awarded just a quarter of the land.
Further, the court said "...the status of the marriage does not solely entitle a spouse to a beneficial interest in the property registered in the name of the other, nor is the performance of domestic duties. Even the fact that the wife was economical in spending on the housekeeping will not do."
This interpretation, gender activists say, fails to recognise the indirect contributions of women in their productive, reproductive and community roles.
Cases like these are widespread. Hilda Nguyai, FIDA-Kenya's client services officer says the organisation received 400 inheritance cases from January to the end of October 2008, most of them involving land. The figures have been increasing over the years.
"Many women have been denied land. Some are disinherited by their in-laws upon their husbands' deaths. Some are chased away and barred from accessing any matrimonial property," she said in an interview with IPS.
The Married Women's Property Act, which presently regulates the division of matrimonial property, was enacted by the British colonialists in 1882. Human rights and women groups are now calling for the law to be scrapped.
Their demands are reflected in the proposed land policy, which stipulates the need for the government to establish a legal framework that will divide land and other matrimonial property equitably between spouses. The policy also seeks to protect the rights of widows, widowers and divorcees through the enactment of a law on co-ownership of matrimonial property. This, it is believed, will guard against acts of selling and mortgaging of family land without the involvement of spouses.
Although calls are growing for legislation to guard against discrimination against women in the division of land and other matrimonial property, culture seems to be an obstacle. "There are customary practices that undermine efforts seeking to support women's access to land, and they are widely practiced," observed Rosemary Wachira, coordinator of the draft land policy.
Across Kenya and Africa, culture and tradition is frequently invoked to assign property rights to men, sometimes even holding that women are forbidden to own and inherit land.
Women and human rights activists contend that public education campaigns are crucial to encourage communities to abandon practices that bar women from owning and inheriting family land, but how long it will take to erode such cultural practices may be another matter.