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Exploring the Land Rights for Women in KenyaThe Kenyan Constitution states that men and women are equal under the law. Despite the new legislation, women in Kenya are still discriminated against for exercising their right 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 that was 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. 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 exacerbate further.

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 who 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 matrimonial property is not entitled to women 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 made 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 is classified 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 for income, they are prevented from accessing other resources, including credit and agricultural crops. Alubbe added 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. Law says women finally can—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 have land titles today. Throughout rural Sub-Saharan Africa, only 10% of the population have land titles.

Yet, Alubbe is personally working to expand access to land titles. This September, she was personally driving 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 said registration was going well and her key focus is for women to be included in 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, we should own land.”

—Grace Mayer
Photo: Flickr

Gender Inequality in MalawiWhile the idea of women being denied property may seem antiquated, it is a modern norm furthering gender inequality in Malawi. In the central and southern regions of Malawi, land is intended to be passed down to women through generations; however, Bridget Matinga-Katunda, a researcher at Stellenbosch University in South Africa, explained that this matrilineal system is not as good as it may sound. She stated, “Even under matrilineal systems, decision-making power on land ownership usually lies with male clan leaders who decide who gets a piece of land.”

Excluded from Ownership

Ministry of Hope Malawi, a nonprofit helping orphans and other at-risk communities, spoke to The Borgen Project on this issue. The Program Director for this organization, Daniel Moyo, recalls his personal experience with gendered land laws in Malawi. He describes a “patrilineal culture” where “men own the land and women have no access to land.” According to U.N. Women, around 70% of women work in agriculture. Therefore, despite taking care of the land, they are still not entitled to its ownership.

Additionally, the United Nations states that Malawian legal codes do “not provide for the division of matrimonial property upon dissolution of the marriage. This matter has been left entirely to the courts to decide.” Even if modern legal codes attempt to address the gender inequality in Malawi regarding land ownership, societal trends – often discriminatory – determine who inherits the land. This is especially true if the woman in question is not in a position of power in the community.

Moyo commented, “Personally, after the death of my Dad, all the land we had was confiscated by people we did not even know, leaving us and mum with no land.” His situation is not unusual. Reuters News uncovered that only around 17% of Malawian females are landowners. This parallels the lack of power and representation, as the World Bank reports that in 2019, only 23% of parliamentary seats in Malawai were held by women.

Advocating for a Cultural Shift

While there are legal protections in place for women, the land delegation and nuptial divisions are vague. Groups within the culture are open to interpret them and often adhere to sexist traditions and thought processes. Furthermore, less than one percent of land in Malawi is purchased. Almost all of it is inherited or acquired through marriage. Women report deep insecurity on their land ownership especially if something were to happen to their husbands. Malawian society’s cultural attitude toward women as more inferior to men is often used to justify the sexist land laws.

In order to correct these injustices, a policy shift is necessary to help widows survive and take care of children. Updating the territorial legislation in Malawi could vastly improve its gender equality and the overall economy. Moyo explains that “decision making in the homes is often left to the men. This is one key issue [and at] Ministry of Hope we have been championing women leadership and helping the women to have a voice and not just take everything that the man says…how to use money, how many children to have…they say women in Malawi produce seventy percent of the food but they consume only thirty percent of the same.”

Similarly, organizations such as the Malawi Law Society are fighting for a legal system that is more modern and just. However, an all-encompassing solution must go beyond legality and address the nuances of Malawian agriculture and its connection to gender. Providing social, economic and ownership protections for these laborers is crucial for correcting sexist land laws in Malawi.

Moving Forward

Organizations such as the Ministry of Hope are fighting the discriminatory land laws and working toward ending gender inequality in Malawi by shifting cultural perception. Individuals can help by funding nonprofits based in southern Africa that provide guidance along with financial assistance. Moving forward, continued work by these groups will hopefully help end discriminatory practices.

– Annie Bennett
Photo: Flickr

Land_Ownership_Laws
Conflicts over the appropriation of land in Africa can be traced back to colonial times, when lands were deeded to settlers at the expense of the local communities, and later, when countries began to pull out of colonies, to favored tribes and factions.

During the 20th century, many countries across sub-Saharan Africa chose to nationalize lands in order to redress such inequalities, and today many unique factors such as increased competition due to population growth, decreased supply of arable land due to climate change, poor land records, and general corruption have led to conflicts in the region.

A new report published by the World Bank reveals that stronger land ownership laws and management may be the key to improving agricultural productivity across the continent within the next decade. Land policy and management reform is necessary to alleviating poverty because land is often the most valuable asset that people can own, and because countries with clear land tenure policies are seen as better potential investments.

10 facts on poverty in Africa.

If sound policies are in place, the land can also be a mechanism for the transfer of wealth through generations. Furthermore, lack of access to land hits those in rural areas the hardest because the majority of the population depends on land for the production of food. A 2008 report from the Southern African Development Community states that the key to easier land access is a reduction of costly transfer fees and policies that make sure that the possibility of land ownership is a right for people of all demographics, regardless of ethnicity or sex.

The World Bank study also states that while many African countries have legal institutions that are capable of documenting land ownership, only about ten percent of rural land is registered. This leads to land disputes and even “land grabbing” after the death of land owners. In cases where land is held by groups or tribes, there also needs to be a method of registering communal land. More collaboration between countries would also be extremely useful, as there are some countries that appear to be getting the process right. Tanzania, for example, has registered sixty percent of its communal land at a fraction of the cost that other nations are completing the task (approximately $77 kilometer to Ghana’s $500-700 per kilometer).

Concerning land registration, disputes are bound to happen, but according to the World Bank, the establishment of impartial, uncorrupted institutions that are capable of dealing with such disputes is necessary. In some countries, like Ghana, tribunals specialized to deal with land issues have blossomed as subsidiary branches of already existing judicial systems, but they are unsurprisingly just as vulnerable to corruption and backlog as any other governmental system. The study states that most successful approaches to alleviating this include paying judges overtime and hiring retired ones to reduce congestion in the system, training judges better in land procedures, and changes in institutional culture where corruption occurs.

People’s identities are often inextricably tied to the land that they or their ancestors lived on and worked. This is not only true for Africa, but also for places all over the world. Thus, it’s vitally important, not only if we are serious about meeting the Millennium Development Goals in reducing poverty, but also if we care about the basic rights to provide for themselves and their families.

 Samantha Mauney

Sources: World Bank, SADC Photo: NPR