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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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