III. Customary Framework for Women’s Land and Property Rights in Kenya

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Customary Land Tenure in Formal Law

Customary tenure and community rights to land are legally recognized in Kenya, including in the 2010 Constitution,[138]  but the nature and scope of these rights has not yet been defined in formal law. The forthcoming community land legislation is expected to establish the legal framework governing communal land rights. There are also efforts on the part of the Judiciary to document customary laws and rules for individual communities, although these efforts are still in early stages.

Customary rules and laws are recognized in Kenyan legislation, but the Constitution invalidates them to the extent that they are inconsistent with its provisions.[139]  This provision is critical given a history in which Kenyan courts often ruled on matters involving customary law without regard to the principle of gender equality, to the disadvantage of women living under customary law. The Constitution also explicitly states that the elimination of gender discrimination in laws, customs and practices related to land and property in land is a guiding principle of land management.[140]  However, according to some estimates only 5% of land in Kenya is registered jointly in the names of women and men and just 1% is registered solely in the names of women.[141]  Ongoing reforms, including the implementation and enforcement of the Constitution’s gender equity provisions and the development of progressive property, marriage, and succession legislation, have the potential to affect change long-term, but at present women’s customary rights to property in Kenya remain severely limited.[142]

There is significant interaction between the formal and customary systems in Kenya, although the relationship remains only vaguely defined in law, including in the recently enacted land legislation.[143]   The gaps between formal and customary law are often where women’s rights are undermined.

Formal courts have had, and continue to have, jurisdiction over customary marriages, divorces and succession.[144]  In practice though, few Kenyan women take disputes over their land rights to formal courts.[145]  This may be due to the costly, lengthy and time-consuming legal process involved.

Customary Land Tenure

This section presents an overview of customary land tenure systems in Kenya.

Customary land tenure systems in Kenya fall into three main categories: community, clan- and family-based, and individual.[146] Land rights are most often acquired by individuals and households through intergenerational succession, even where the individual or household has only a use right to the land.[147] In family or clan-based systems, there is a central household head or family elder who holds the land on behalf of other family members, who have individual use rights which grant them a significant amount of freedom to use and, in some instances, transfer the land on a seasonal basis, but cannot permanently alienate the land.[148]

Approximately 65-70% of land in Kenya is estimated to fall under the category of “community land”,[149] defined broadly by the National Land Policy to include a variety of customary tenure rights.[150] This includes clan land, group ranches, communal grazing lands, and community forests. Each of Kenya’s 42 tribes has its own governance structure and customary rules which govern access to and use of these lands.  These customary rules and structures often exclude women from rights to land that are available to men and from community-level decision making on land and property rights. In a report to CEDAW, the government reportedly explained, “the area in which most customary laws disadvantage women is in respect of property rights and inheritance.”[151]

Women are frequently disadvantaged even where customary land is held by individual households.  The man is traditionally considered the head of household and “owner” of the family’s land and women are often excluded from decision-making around the household’s allocation, management, and use of land the proceeds from it.[152] Given that women’s rights tend to be relationship-based, a woman’s autonomy with regard to land rights improves with the strength of her relationship with her husband, father, or other male relative.

Legitimacy of WLR under Custom

In general, under customary laws in Kenya independent land rights for women are not culturally legitimate.  A number of different norms and rules related to marriage and succession show that a woman’s land rights depend on a relationship with a male.  For instance, nearly all communities in Kenya are patrilineal,[153] meaning lineage is determined through the male blood line and women rarely inherit customary land rights from their husbands or fathers.  Women’s rights to land are generally considered secondary to those of men, as they rely on a relationship with a male who has the primary rights.

[A]mong various Kenyan communities, women do not traditionally own land or other immovable properties. At best, they have usufruct rights, which are hinged on the nature of the relationship obtaining between them and men either as husbands, fathers, brothers or such other male relatives.[154]

This is also evident in various customary rules around the land rights of women as wives and daughters.  In many communities, if a man dies and leaves behind only daughters his property reverts to his father or other male family members and is essentially treated as if he had no children.[155]  Similarly, a woman who is married is often also not considered part of her husband’s lineage.[156] This is shown by the practice of some communities of levirate, or wife inheritance, in which a widow must marry the brother or another male relative of her deceased husband to maintain access to her marital home and other resources.[157]  At the same time, once married, women can rarely return to land in the natal community.

 

Marriage Practices

Customary marriages follow the rules and practices of the specific community; each of Kenya’s forty-two tribes is governed by its own customary laws, although there are significant similarities across communities.[158]  Most marriage practices are patrilocal, meaning the wife leaves her family and relocates to her husband’s community upon marriage.[159]

Bride price is commonly paid among almost all ethnic groups and is often a requirement for the formalization of a customary marriage.[160]  The price is usually negotiated by the parents of the bride and groom, often taking the form of livestock or cash paid to the bride or her family.  Although recent news reports indicate that the price demanded has climbed higher than most can afford, a 2012 proposal to ban the practice was extremely controversial and ultimately failed.[161]  The Marriage Act, 2014, recognizes the practice of paying bride price, but a token amount is considered sufficient to prove a customary marriage where the custom of the parties requires a dowry or bride price payment.[162]  Many argue that the practice cannot be obliterated, even if outlawed, and the result of doing so may in fact mean doing away with customary marriage completely.

Polygamy is practiced among many Kenyan ethnic groups and there is no universal limit to the number of customary wives a man may legally have.[163]

Woman-to-woman marriages are practiced by some ethnic groups, including the Kalenjin, Kuria, and Kamba, although the practice has been dying out.[164]   The non-sexual arrangement typically involves an older woman who has been unable to have children taking on the role of ‘husband’ to a younger woman, who is encouraged to take a male sexual partner from the older woman’s clan and have children who are then regarded as the offspring of the marriage.[165]   The practice allows the older woman to propagate her family line and maintain property within the family, and highlights the importance of lineage to the transfer of land rights under customary law in many parts of Kenya.

Divorce under customary law typically involves clan or family elders, in large part because the marriage is seen as a union between clans or families, not just the individual parties.  Wives are not usually entitled to maintenance upon separation or divorce, and rarely receive a share of their husband’s property.[166]  In addition, the refund of the dowry paid characterizes divorce in many ethnic groups in Kenya and those unable to return the dowry are often forced to stay in their unions despite wanting to dissolve them.  This is based in part on a perception of dowry as “buying” a wife, which can reduce her to property in the eyes of the community and her husband.

Widows' Rights

Widows’ land rights are dependent on a variety of factors, including age, number of children, and the widow’s relationship with the deceased’s family, and are often insecure under customary law due to her status as outsider to the family lineage.

Example: Widows are seen as stewards of the land for their sons and are limited in what they can do with inherited land. Because inheritance is meant to secure their sons‘ inheritance and ensure that the patrilineage persists, it is not for the widows‘ own benefit, since as replicated in the Law of Succession Act noted above, widows receive a life estate and their interest terminates upon death. After a widow dies, land goes to any sons or returns to the patrilineage. In some areas, widows can be seen as holding land in trust for their sons until a designated age. When sons take over, a widow may remain securely on the land, but if there are no boys, her position is tenuous since she lacks a link to the patrilineage.[167]  As noted above, many communities practice wife inheritance, which would allow the widow to retain her marital property by marrying a male relative of the deceased.  In addition, some communities practice widow cleansing, in which the widow must have sex with a social outcast paid to ‘cleanse’ her in order to stay in her marital home.[168]   Both practices require women to submit to unwanted sexual relationships to retain property rights to which they should otherwise be entitled.

The likelihood a widow will inherit any part of her deceased husband’s land and other property is influenced by factors that include her age, whether she has borne children and the gender of those children, and her general relationship with the husband’s family, among other variables.

Example: In a study on land rights in western Kenya[169]  it was found that individual women’s specific qualities are perceived to be significant to women’s vulnerability to land expropriation. A childless widow, and more specifically a widow who does not have a son or sons, is locally perceived as particularly vulnerable in retaining a claim to family land under customary law. A woman of ‘bad character’, which might include accusations of practicing witchcraft, being sexually promiscuous, drinking alcohol or being rude or stubborn, particularly towards in-laws, is also perceived as vulnerable.

A community study in western Kenya[170] found that young widows are more vulnerable than older widows in terms of land tenure security, probably because young widows had less time to secure their relationships among their in-laws. All these point to a need to closely examine local contexts of customary governance and community dynamics, including the attitudes and roles of specific local leaders, to understand the kinds of opportunities and challenges individuals face in securing their inheritance.[171]

Children's Inheritance under Custom

As discussed above, daughters are often considered impermanent members of their natal family and are often excluded from inheritance of land and other property as a result.

Just as widows are not considered firm members of a patrilineage, daughters are perceived as transients in natal families, as there is an underlying presumption and expectation that they will eventually marry out of the lineage. Daughters thus have great difficulty accessing land through inheritance, since marriage would transfer their lands outside the natal holdings into their husband‘s.[172]

The marital status of a daughter may have an effect on her right to access and use family land; although unlikely to gain ownership or control over land, unmarried daughters are more likely to be granted use rights to land in their natal home.  This distinction is recognized in the National Land Policy, which directs the Government to secure the inheritance rights of unmarried daughters.[173]

Example: Daughters may be treated differently depending on their marital status and circumstances, though these distinctions are not always made. As a result, unmarried daughters are more likely to inherit land than married. In the few cases where it is permitted, formal titles usually remain with a male (brother or father) to ensure land stays fixed to the patrilineage. These daughters can grow crops on the land but cannot sell it. Brothers almost never permit married daughters to inherit land because their inheritance directly diminishes their brothers‘ access to patrilineal lands for themselves and their sons. Married women are not considered part of their natal family; married daughters may not even bother attempting to return and claim inheritance, since their exclusion is seen as traditional‖ and impossible to overcome. The only possibility for married daughters to obtain land is when their father specifically wills it to them or gifts it to them before his death, though even here, brothers still often interfere.[174]

 

Enforcement of Customary Law

Though the formal courts can resolve land disputes, traditional leaders such as elders and local Government-appointed chiefs are often the first place people go to resolve a dispute over customary land, and these positions are overwhelmingly held by men.[175]  The use of local mechanisms to resolve land-related disputes is strongly encouraged by the Constitution,[176] which also prohibits gender discrimination in law and customs related to land and property.[177]

The cost and complexity of filing a formal court case serve as significant deterrents for women whose land rights have been violated, although another, possibly greater, deterrent appears to be the potential for negative, and potentially violent, responses by the person or people violating her rights as well as the community at large.[178]  Even a basic succession petition requires significant resources to complete and may lead to significant conflict within the family.

It is often seen as disruptive and disrespectful for a woman to initiate a court proceeding to enforce her rights, and in one report interviewers found many respondents who claimed that communities are often “infuriated” when someone goes to court, particularly when the petitioner is a woman.[179]

To avoid these challenges, and preserve household peace and harmony, most women avoid the courts, choosing instead to deal with violations of their property rights through informal channels.  They may first approach family elders to resolve a dispute; a married woman will usually approach her in-laws while an unmarried woman will approach her natal family elders.[180]  These elders traditionally bring the disputants and the family together to discuss the dispute before arriving at a resolution to the problem.[181]  However, as women’s land disputes are often with other family members (e.g., with brothers who claim their sisters’ inheritance or in-laws who have evicted a widow) women are often unable to secure a resolution in their favor.[182]  In some communities, cultural practices that do not allow women to appear before the elders result in a woman’s case being discussed in her absence.  They can also suffer harassment and violence for complaining about the violation at all, in addition to losing their family support network.  As a result, many women do not bring their grievances to the formal or customary dispute resolution mechanisms, even though they may have a valid claim.[183]

Example: [T]he number of steps and the complexity of the paperwork required to file a succession claim are a substantial procedural impediment. There are a total of 17 different legal steps to complete; at least 13 forms to fill out; numerous affidavits that require a lawyer, a number of which must also include the signatures of sureties to back a claimant who must be identified and brought to the lawyer; and multiple locations to visit. There is also an approximate time frame for succession proceedings of seven months to one year. Obtaining the most basic of documents—for example, a death certificate—can lead to further intrafamily struggles. Intricately related to the number of steps are the significant costs involved, including for filing a case, administration fees, hiring a lawyer, or carrying out an official survey. Respondents noted that only women with the necessary monetary resources can fight a land dispute. A formal succession claim can cost over KSh 60,000 (approximately $780)—even more if there is another claimant and it becomes adversarial.[184]