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Exploring Land Rights for Women in Kenya

land rights for womenThe Kenyan Constitution states that men and women are equal under the law. Despite the new legislation, women in Kenya still face discrimination for exercising their rights to own land with their name on it rather than their husbands’ name.

Women’s Land Rights in Kenya

Property and land rights for women recently expanded in Kenya, particularly for married women, a group denied land ownership in the past. Passed in 2013, the Matrimonial Property Act states that marriage between a man and a woman rests on a foundation of equality. It recognizes spouses as equal property owners and protects women’s rights to land ownership during marriage, divorce and separation.

The Act follows the repeal of previous gender-discriminatory laws, anointing a new progressive path for the country. Before the Act’s enactment, Kenya’s government enforced the Married Women’s Property Act of 1882, a piece of legislation leftover from the era of British colonization, explained Chief Executive Officer of Kenya Land Alliance (KLA) Faith Alubbe in an interview with The Borgen Project. KLA is a non-governmental organization (NGO) that advocates for equal land access in Kenya.

“For women, land ownership is very important for them to be able to feed their families, for them to be able to access or use land and to control it,” said Alubbe. “As it is right now, most women only access and use land. They rarely control and own it.”

Today, nearly a decade after the Act’s passage, only 10.3% of Kenyan women own land title deeds, according to statistics from KLA. Even with the implementation of this new law, varied customs and traditions that bar women from land ownership exist throughout Kenya’s 47 counties. Without complete and clear access to land titles, the disproportionate impact of homelessness and poverty on Kenyan women could worsen.

Land Advocacy for Kenyan Women

“How come women work on land a lot, use the resources, but they never own or control it?” This was the question Alubbe asked herself that propelled her deeper into land advocacy. Alubbe’s work in human rights and land justice in Kenya stretches back to 2006 when she worked for the Kenya Human Rights Commission, an NGO that promotes democratic change, and for the Federation of Women Lawyers (FIDA-K), an NGO that extends free legal representation to women in Kenya.

From KLA’s efforts partnered with its network of 50 organizations, Alubbe informs Kenyan communities about their rights and helps individuals secure proper land title documentation to actualize land justice in Kenya and throughout East Africa. While Alubbe worked for FIDA-K, she was a member of the team that pushed for the passage of the 2013 Matrimonial Property Act.

Despite the Act’s intentions of creating greater land equality, as noted in a report by the Human Rights Watch in coordination with FIDA-K, it falls short of total enforcement. The Act does not recognize couples who are unofficially married although many Kenyan couples are not legally registered in their counties, disbarring them from protection under the law.

Justice System vs. Patriarchal Custom

Alubbe also believes the act has only been partly successful. Women rarely exit the court system empty-handed, but getting couples to trial, an expensive and often lengthy process, stands in the way of land justice for women. The financial hardships of covering court fees and paying lawyers can be enough to stop a woman from trying her case in the court system.

“With the precedents that are coming out of court, [the Matrimonial Property Act] has not been as successful as we had hoped it to be because [of] gray areas and a lot of discretion,” said Alubbe.

These “gray areas” could pertain to patriarchal traditions, customary laws and alternative justice systems found in countries that govern Kenyan communities, explained Alubbe. Customary laws, laws that oftentimes discriminate against land ownership for women, control more than 65% of the land in Kenya, according to HRW.

Rather than turning to the justice system, married couples in rural areas undergoing divorce will instead meet with community elders and chiefs for an efficient and affordable alternative. But, outside of court systems, customary laws that insist women have no entitlement to matrimonial property prevail, potentially leaving women with only their personal belongings and no roof over their heads.

“Those at the community level prefer [alternative justice systems] because it’s accessible and affordable. Though it can be very patriarchal, and since it’s not very regulated, it might also defeat justice,” said Alubbe.

According to customary laws in the Kilifi and Kakamega Kenyan counties, land titles are attributed solely to a woman’s husband or owned by his family. Any acquisitions or improvements to a couple’s property, regardless if they are made by the wife, do not belong to her. Although 96% of rural Kenyan women are responsible for farming, Oxfam reports, their contributions to the land are theirs only to sow not to reap for personal benefit.

If she can manage the costs, under the Matrimonial Property Act, she must also present proof of monetary or non-monetary contributions to her matrimonial property. But, what classifies as substantial evidence is not clearly outlined under the law, explained HRW. Unpaid care work, labor women are predominantly responsible for, can make or break a woman’s case, but it is also dependent on the judge’s interpretation of proof.

Consequences of Patriarchal Land Ownership

Due to ambiguities in legislation and customs that trump a woman’s ownership of land, less than 2% of land in Kenya is owned by women. These gaps in land title enforcement fail to protect women’s rights, intensifying the number of women who face the threat of eviction and poverty.

Separated, divorced and widowed women risk losing their homes to their husbands or their husbands’ families under customary laws. The Kilifi and Kakamega counties, where men are the majority landowners, also possess two of the highest divorce and separation rates in Kenya.

When women in Kenya are disbarred from owning land, which is a significant generator of income, they struggle to access other resources, including credit and agricultural crops. Alubbe adds that without disposable income or secure credit, education for women’s children falls through the cracks and malnutrition becomes a stark reality for families.

“Because land is the primary factor of production in Kenya, without land, then the level of poverty is quite high for women,” said Alubbe. Breaking down poverty by gender, Kenyan women are more likely to fall into poverty than men. For single, divorced and widowed women, this is especially true. Nearly 31% of divorced women fall into poverty while 38% of widowers fall into poverty, according to the World Bank.

Looking Ahead

Women in Kenya depend on land they can call their own. The law says women can finally own land — a crucial acknowledgment of Kenyan women’s contributions to their communities. This issue of land ownership extends beyond Kenya’s borders, though. According to the World Bank, only 30% of the world’s population has land titles today. Throughout rural sub-Saharan Africa, only 10% of the population has land titles.

Yet, Alubbe is personally working to expand access to land titles. This September, she personally drove herself to Kenya’s counties to train community members and assist with land registration and land rights for women in Kenya. After stopping in Laikipia, she noted that registration was going well and her key focus is for women to be part of the registration process.

“We are very hopeful because more women are gaining more knowledge,” said Alubbe. “Women themselves are being more sensitized and aware that to be involved, [they] should own land.”

– Grace Mayer
Photo: Flickr

1 reply
  1. Saiesha
    Saiesha says:

    Transcript: Faith Alubbe, Chief Executive Officer of Kenya Land Alliance

    Can you explain what KLA is/does?

    Kenya Land Alliance is an umbrella organization of civil society organizations that work on land justice. We mainly work in four areas. The first to advocate for community agency. So community agency, we normally advocate that communities should be able to identify and claim their rights to land, so that it is accessible, and so that there is less political interference from external forces like from the government or even from us, ourselves.

    And then the second thing we do is advocate for strengthened land governance processes where we normally say that communities have to be part of the solution. They have to be part of the advocacy. And then the third area that we advocate for is knowledge management and knowledge building of all land sector actors, where we work with other like-minded organizations to produce information to produce [land title] documentation. And then the fourth area is of course building Kenya Land Alliance itself where we have a membership of 50 organizations. And then as ourselves, as the a secretary to working together with the members to just actualize land justice in Kenya and across East Africa.

    What is your role as Chief Executive Officer for KLA?

    As the chief executive officer, of course, I am a team leader, I have to lead the team, strategic decisions have to be made by me in terms of leading the team. Of course there’s an element of consultation, but I’m a team leader, the face of Kenya Land Alliance, the spokesperson of Kenya Land Alliance. I also implement some projects that are politically explosive. So, I also ensure that, basically, the machine is working. I’m like the glue that ensures that Kenya Land Alliance is working, it’s reaching out to developmental partners we are reaching out to government agencies we are reaching out to fellow CSOs we are reaching out to communities, I’m the glue that does that. Other than that. I’m also the face of the organization.

    I saw your LinkedIn too and, you know, it was very vocal about being a human rights lawyer and you’re land justice activist. And I was wondering what drew you to become a human rights lawyer, and how that has kind of influenced your work at Kenya Land Alliance.

    I was working at the Kenya Human Rights Commission on transgenerational justice issues.

    And, and before the Kenya Human Rights Commission I was at the Federation of Women Lawyers[-Kenya]. The Federation of Women Lawyers, of course, land being the basic form of production in my country. I would get land issues a lot, especially women and land. That made me interested. How come women work on land a lot, use the resources, but they never own or control it? So that’s when I started doing advocacy around land. But when I was at the Federation of women lawyers, I used just to work on women and land.

    When I moved to Kenya Human Rights Commission, I was privileged to handle a case of veterans, colonial era veterans who had been mistreated by the colonial government, and their claims were just around land and freedom. So I continued working on land. With the veterans we were looking for, and we had a case and we were able to even able to take to the Royal Court of Justice in the UK, and we got a very favorable out of court document.

    So, since 2006 to date. I work on land and human rights. That’s what I do day to day. That’s why I call myself a human rights lawyer and the land justice activist. Because I’ve been working on land since 2006.

    You mentioned in your previous email, you know, sharing some experience, advocating for women’s lands rights. And I was wondering if there were any, you know particular experiences that stood out or maybe stories are lessons you’ve kind of learned in all the years that you’ve been, you know, working on this issue for women in Kenya?

    Of course, we’ve had lessons that we’ve learned, and I think one of my key lessons that I’ve come to learn is that as much as we have international instruments that protect rights to learn and provide for communities to be able to own land, they have rarely helped communities at a local level. And one of the things that Kenya Land Alliance is really seeking to do is that we have processes that involve the common person, the people who live right at community level, so that they can be able to to contribute in their policy formulation so that whatever is formulated at the international level should be able to really impact people that aren’t local and for us. Another key lesson that I’ve learned from my advocacy is that coalition, building, and working in partnership with like-minded persons really fosters an agenda. This has been possible because, like Kenya Land Alliance, can’t be everywhere but if we partner with organizations that are in different areas then we get to learn and share from each other. That has also been a really key lesson for me.

    I’d say the last key lesson that I’ve really learned is that as professionals, we should not work in silence. As a lawyer, I just think that the legal system can handle land issues, but it’s always better if we have a lawyer, we have an environmentalist, we have a food security expert, we have a gender person, so that we have a multi disciplinary approach to land issues—it fast turns solution development. Because what we’ve been doing most of the time you get that lawyers wants to sit in their own corner and think that the law is absolute, environmentalists also have their own ideology, food security experts also, you know, so those are the three lessons, I think I’ve learned over time.

    And then you said that, you know, lawyers, especially when it comes to land rights issues, they can handle those issues and they shouldn’t remain silent. Have you seen like lawyers and the legal system be silent in the past about these things?

    The legal system is not silent, but at times, and there’s always that aspect of discretion that comes in, that we borrow from these disciplines. The legal team, like in Kenya, we have beautiful pieces of legislation. But there’s always that need for implementation and effective enforcement so that communities can really benefit. So the legal system has played a huge role in the advocacy of community-centered land justice. But there’s always that need of other disciplines, just coming in and also just contributing to the agenda.

    In my research, I’ve come across the Matrimonial Property act that was passed in 2013, are you familiar with that?

    Yes, I was a part of the advocacy effort that was developed by the Federation of Women Lawyers

    Can you talk about that experience?

    Of course, before the enactment of the Matrimonial Property Act of 2013, Kenya was using the Married Women’s Property Act of 1882. So with the enactment of the Matrimonial Property Act of 2013, we were able to get some gains for women in the matrimonial setup, like protection of the matrimonial property, recognition of spouses as equal property owners in marriages. The matrimonial property act even goes as far as speaking to division of matrimonial property and borrowing from other laws like the constitution 2010. So it’s a current law that is very progressive.

    Has this act been successful from your point of view, or is there stuff that’s still kind of standing in the way of giving married women the right to equal land ownership?

    Of course we can say with the precedents that are coming out of court, it’s not been as successful as we had hoped it to be, because we think gray areas and a lot of discretion. Like when it comes to division of matrimonial property, there are so many incidents? that are contradicting each other. Of course, the issue of the right holders not being aware of most legal entitlements. So they can not really claim what they don’t know.

    For most women, the legal process is fairly lengthy and expensive. So most women shy away from seeking legal processes to solve their matrimonial property issues, because of how lengthy their process is. It can be technical for women. It can also be lengthy. So the property Act is a beautiful piece of legislation, though results prove that most men still prefer the alternative justice systems that are mainly found in communities.

    I was doing research on that too, is that to do with customary laws in each of the counties that Kenya has—Is that what you’re referring to?

    Yes. So those are some of the alternative justice systems. Those at the community level prefer that, because it’s accessible and affordable. Though it can be very patriarchal, and since it’s not very regulated, it might also defeat justice. But there’s always that need of aligning formal and informal forms of justice so that women don’t lose out in the long run.

    So that’s also important that it’s something that is being addressed by the judiciary. The judiciary has adopted forms of always referring to both formal land and informal land, in terms of customary practices, and what type of marital regime a woman was married at, the issues married and the customary regime get that the judiciary tries to incorporate the regime as well.

    Why do you think it’s so important for women to have equal access to land ownership? How does this impact women’s lives in Kenya.

    As I mentioned, land is the main form of identity. Land is the main intergenerational gift, gift between generations. In my country, it is the main form of production, because agriculture employs almost 70% of the population in Kenya, agriculture is performed on land. We’ll get land is a key factor in production, in livelihoods, securing of livelihoods and sustainable livelihoods. So for women, land ownership is very important for them to be able to feed their families, for them to be able to access or use land and to control it. As it is right now, most women only access and use land. They rarely control and own it. Why so that also compromises the level of engagement, they can have in terms of securing their livelihoods, because, in my country, land is the main form of credit. If you have land, then you get credit very easily because it’s sort of more secure and generally accepted. So if we can only own, can only use and access, then in terms of accessing credit, they are very disadvantaged.

    I can also forward an article I did for a local daily on women land rights. I did it like a month ago I think it will also give you more insights of the current status of women and landed King.

    For the matrimonial property act two of 2013, you know what happens when a woman is unable to secure some property if she’s separating or divorcing from her husband. You know what is she supposed to do and what have you seen women do in the past?

    For the longest time, there has always been this argument that contribution has to be proven, so that when you say returns to the acquisition of property, marital property you have to, to prove it. That has been the argument for so long, but we have precedents, that are coming out right now, whereby even a work, like for instance, the contribution can be can be quantified like in work that is not financial, like in kind, company child bearing, the work a woman does around the house. As long as she can prove that she was legally married and one of the regimes. Then, even that is considered as a contribution. So you get that rarely women come out of the legal system, empty handed, but there’s always been that issue of: “Should we continue advocating for equal share, or should we go for equitable share.” Because we normally argue that, for instance, if a woman has five, under age children, we get that children might go with their mother.

    Even if the mother gets 50% of the property she still has five children to care for. So is equal share better than equitable share because if she’s going with five underage children, she should get an equitable share that reflects the responsibilities … moving forward. Some of the, of the judicial officers have taken that up and it surely may vary equitable, but of course there’s room for improvement. So women rarely come out of the system empty handed, but we ought to ban them.

    Do you know the percentage of women who own property in Kenya. I think I’ve seen around 10% of land?

    If you got to KLA, you will get the latest statistics. We did a study of almost 4 million title leads that were issued by the current administration between 2013 and 2017. And after that, it was only out of the 4 million titles, only 1% were being given to women. If you go to our website you’ll get like two or three recent studies that we’ve done on women property rights. We’ve even done a study around settlement schemes, when finding out how many women have benefited from the allocations, and the number is very negligible.

    Can you go into that a little bit more. It’s very negligible, the number.

    The number is very negligible. Ah, maybe it can be explained by maybe culture, maybe people still look at themselves as land owners, but also the issue of having that historical disadvantage of always having access and use, but not control and own. That has been at the record disadvantage that women are still dealing with.

    Are you hopeful about the situation for securing land rights for women in Kenya? Obviously you’ve been doing this for many years and, you know, have you seen a lot of progress being made since 2006, when you started?

    Yes, yes, we are very hopeful because more women are gaining more knowledge. More laws are keeping the inclusion of women as a bare minimum. Women themselves are being more sensitized and aware that to be involved that we should own land. With the Community Concession Act of 2016, which is going on right now in Kenya, which is very important for us because 70% of land in Kenya is community land. So we are pleaing that women are included, and the women are also aware that they need to be included and have voting rights on their community land—something that was not happening before. So that is a big, big stride.

    Most government agencies are developing gender policies. With the development of gender policies, then the woman is automatically included in the development agenda, right from the community level. So we are hopeful that it will get better and better.

    So women are being incorporated into the decision making for the agency’s development, is what you’re saying?

    Yes so women are being included, so what we are still working on is, they should have enough knowledge to translate into benefits for their constituency. So when a woman is elected, you’re elected to represent a certain interest, we should see the benefit of your election to your constituency, to the people you are representing, but in terms of inclusion, you get that most government agencies now demand for the inclusion of women.

    Unknown 23:48

    The Borgen Project does a lot of focus on global poverty, but we also focus on you know women’s issues and a lot of civil rights issues in a lot of countries. I was wondering if you thought the land title rights issue for women, because it can be so hard for women to secure access—Do you think that impacts poverty and homelessness rates for women in Kenya?

    Of course, of course, because land is the primary factor of production in Kenya, without land, then the level of poverty is quite high for women. There is the issue of malnutrition. There is the issue of lack of access to credit, because without land the woman is limited. She cannot have a secure livelihood, she cannot provide good nutrition for her family, and basically she can not even have disposable income in order to educate and feed her children. So yes, without secure land rights for women, their quality of life is very compromised.

    Those are officially all my questions I was wondering if there was anything you’d like to add or if there’s, you know, any questions you have for me.

    Okay, the time I’m interacting with your project.I read a little bit on the website that you shared, and I think you guys do very good work in terms of just highlighting the key advocacy initiatives that so many of us are doing and they’re never documented well. Maybe because some of us might not know how to do it well, or maybe we have some form of limitations. But when I read the website I was very inspired I was like yes, this is what we should be doing, doing, and documenting so that other people can learn from whatever initiatives we are doing. Yeah. Other than that I do not have any question but I will forward to that article I was talking about because it is very recent maybe can just give him more insights

    Those are all my questions, again thank you for taking the time to do this.

    Thank you for being patient with me. At times it’s so crazy, when you go to the community there’s rarely good internet’s to be able to interact.

    Can I ask you what you were doing this week? I know you’ve been so busy and you’ve been traveling because you’re driving right now.

    This week I’m in a place called Laikipia. And we were just visiting communities that want to register their lands.

    How did that go?

    It’s going really well. We are doing the sensitization part, so that the communities can take up the baton. We can’t be there all the time. But if they understand this is what they need to do, these are the steps, then they pick it up.

    And then, were you working with a lot of women?

    Yes, that actually that is actually our key focus that women have to be included in the registration process.

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