Strength of a Woman - Women, Land & Property by African Woman & Child Feature Service

Strength of a December, 2011

Woman Special Edition: Women, Land & Property

Ten sisters lose land to State By Becky Kimani

ast year, Irene Mwangi and her nine sisters owned eleven acres of land in the fertile rich Subukia area of Nakuru

District. Yet, they lost it in a flick of a moment as the government turned them into squatters in favour of internally displaced persons. They were thrown off the 750-acre piece of land after their elder brother, Phillip Kamau Njoroge, who was left in charge of administering the estate by their late father, disposed of it without their consent. “We only heard on radio that internally displaced people (IDPs) were going to be taken to our land and when we arrived on the scene, we were chased away,” says Mwangi.

Horror She watched in horror as more than 265 families were moved from Pipeline IDP camp in lorries and ferried to the grounds, where each was allocated a two and a quarter acre plot. The elated IDPs, who after staying for more than four years in a tent, were disappointed to learn that they were being settled on disputed land, a matter which they would not take lightly. This led to a bitter exchange of words between the IDPs and girls with the former being adamant that they would not vacate the land. The ten siblings who claim that they were allocated 240 acres of the land, disowned the sale. “We were not consulted when our share was sold,” says Mwangi, who was accompanied by her seven sisters. Zipporah Warigia, one of the sisters, says that she has been instructed by the District Lands Board to collect the cash for the land that was sold, which she says was against her will. “It’s forbidden in the Bible to sell inherited land, yet our brother is forcing us to do so. It’s unfair that we as women are still not being given the

right to make such decisions,” observes Warigia. She argues that the Ministry of Lands failed to go through the proper channels in procuring the land. She is appealing to the court to cancel the entire transaction that resulted in their land being sold off to the government. The sisters met stiff opposition from the more than 75 squatters who are mainly from the Pokot and Kamba communities who have vowed not to leave the land.They are now appealing to the Government to remove the IDPs from their property.

Interim orders The ten women have obtained interim orders stopping the Government from resettling IDPs on their land in Subukia Constituency. The eight sisters, their sisterin-law and a niece have obtained orders against the Attorney General and the Permanent Secretaries in the ministries of Lands and Special Programmes seeking to stop resettlement of 265 displaced families on the land. They have also instructed their lawyer to seek a court injunction on grounds that their property was sold fraudulently. The women claim that they inherited the land after the death of their parents and have produced a grant issued by the High Court in Nakuru in December 1997 as proof. The eight sisters received 16.2 acres of land each while their sister-inlaw, Mary Wangari, inherited 80 acres from her husband after his death.

Petitioners Her daughter, Peninah Wangui, who is also one of the petitioners in the case, inherited 30 acres of the farm. The eight sisters are Wangeci Mburu, Winnie Muthoni, Damaris Riri, Ziporrah Waringa, Mary Nyambura, Harriet Wanjiku, Irene Kanyi and Loice Wanjiku. The ten women all own 239.6 acres of Ndonga farm. Director of Settlement Moses Akaranga, who had presided over the

resettlement of the displaced persons, ordered that the ‘squatters’ be moved out of the land as soon as possible. He denied being aware of any disputes on the property which was procured by the Lands Ministry. Attempts to reach Njoroge for a comment were futile.

How would you like your land served up ma’am? Just a dish of a title deed, this woman seems to say as she harvests tobacco. We will get there! A majestic she-herder, agrees. And for the desperate Kenyan women IDPs, land is the only way. — Pictures: genderlinks.org.za and Correspondent

Special Edition: Women, Land & Property

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December, 2011

Eviction notice sparks crisis in lake region settlement schemes

By Ajanga Khayesi

ama Alice Juma from Muhoroni town is desperate as she grapples with difficulties in life after a developer issued her with an eviction notice. While her three children are happy to be born here, Alice who has lived on the land since 1979 wishes that the village was better recognised under the new Government policies. She is considered a squatter in her own community. Relatively old enough to recall events, Alice, 50, admits that her age has witnessed challenges among land invaders, developers or intruders. However, the greatest challenge that she is now facing is that of acquiring a title deed for the parcel of land she occupies in Muhoroni. Allegations of irregularities in the land registration process has sparked off land crisis in the lakeside region where over 4,000 residents are facing eviction in Miwani, Chemelil, Muhoroni and Koru areas. Other affected persons in the eviction saga are Jacob Osida of Koru, Patrick Ojwang (Koru), Peter Odhiambo (Fort Ternan), Wilson Chelegoi, Odongo Obare and Joshua Ochola among others. They are all challenging land rights through Muhoroni Division Squatters Association.

Poverty Sandwiched between the vast sugarcane farms and Muhoroni Sugar Factory, lies old ironed roofed but dilapidated houses, enclosed with a handful maize plantations, which is an indication of the rate of poverty in the area. As travellers plying the Kisumu-Nairobi railway pass through the township, little do they know that some residents living in Muhoroni town are challenged with expulsion from owned parcels of land? “Long standing disputes over land ownership have taken shape since 1963. The disputes followed the white settlers in the area and the new government at independence in an agreement that the European had at will owned parcels of land to Africans to settle on,” explains Joshua Ochola of Muhoroni Division Squatters Association. For a village steeped in rich familial and cultural agriculture practices

including relating Kenya’s most famous production of sugar, not much has been done to develop the area or eradicate extreme poverty among the residents.

Clusters With parts of the deprived villages situated in the sugarcane zones of Chemelil, Miwani and Muhoroni, as well as those situated in the fertile Koru Hills, small clusters of huts and cattle kraals stand scattered on the expansive land. As Alice worked over her young maize plantation to uproot weeds on her small acreage farm as it is planting season in the area, a group of men walked hurriedly into her compound to deliver an eviction notice. “If evictions are executed, the county would be facing another group of Internally Displaced Persons (IDPs), a situation which may take long before durable solutions are found,” she observes. According to Alice, the current number of expected evictions in the township is large, though patterns are fluid and accurate data may be higher than what is being seen on the ground. Having no one to turn to, Alice sought legal advice from Kituo Cha Sheria through

the Nyando Human Rights Advocacy and Development (NYAHURIADEN). Leading lawyers from Kituo Cha Sheria went to the homestead which she claims her late husband Joseph Juma Ochola was buried 15 years ago, leaving behind four children and several grandchildren under her care. The compound has now been fenced off by Muhoroni Farmers Co-operative society.

Free legal services

“If evictions are executed, the county would be facing another group of Internally Displaced Persons (IDPs), a situation which may take long before durable solutions are found.” — Mama Alice Juma

“Started in 2006, as a non-profit and non-political organisation, Nyahuriaden arose out of the need by residents of Nyando District for legal aid in matters of governance access to justice as well as promotion and protection of human rights,” says Judith Ochanda, coordinator of the organisation. Bringing free legal services closer to the residents who really need, particularly the poor and marginalised members of the community, the justice centre has held clinics, capacity building and human rights awareness in the lakeside region. To lift the living standards of the community in Nyando through holistic and integrated approaches to development, the centre hires lawyers to defend land eviction from Nyando.

Top: Mama Alice Juma’s two of her three children walk home after assisting at the family farm. The children will become vagabonds if they are evicted. Below: Our land, our life: An official of Kituo cha Sheria, Nyando Branch consults with squatters over the pending eviction. — Pictures: Ajanga Khayesi The caseload includes landowners and farmers, some of whom still live on the formerly white settlers’ parcels of land; migrant workers on the sugarcane farms and business people in the urban centres of Muhoroni and Chemelil. Muhoroni Settlement Scheme was meant for those whose parents worked for the white settlers “but none of us has got a title deed or allotment letter from Ministry of Lands, an advantage favouring land invaders,” says Joshua Ochola, secretary to the squatters association. According to Ochola, the squatters appealed in the law court against an eviction

notice in 1993 after developers destroyed farm crops such as sugarcane, cassava and maize. “The Chief Magistrate’s court in Kisumu ruled that the status quo be maintained on the disputed piece of land,” explains Ochola. “However, land invaders are up in arms against the peasant man because the area is developing industrially and is agriculturally fertile,” notes Patrick Ojwang. Rusi Chelangat whose parents worked for 13 white settlers in the area, is among those facing eviction. She says her parents died before processing land ownership documents.

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Woman Special Edition: Women, Land & Property 3

December, 2011

Why the special edition on women land and property rights

and is a critical economic and social resource. It is both a sign of wealth as well as a symbol of cultural belonging. In Kenya, issues regarding land have therefore remained sensitive and complex. Most communities and individuals regard land as a basic factor in the attainment of economic independence and poverty reduction. Land is also a cultural tool which defines a people and identifies them in the context of things. Throughout the history of Kenya, land has remained a very sensitive issue for different reasons for different people – among them being that land is used as a currency to buy and sustain political support, a source of livelihood, a collateral for credit facilities, and measure for male achievement. Women have

particularly faced severe difficulties in accessing land rights, use and ownership. Women’s rights to property have in the past been unequal to those of men. Their rights to own, inherit, manage, and dispose of property have been under constant attack from customs, laws, and individuals - including government officials who believe that women cannot be trusted with or do not deserve property. The country is replete with anecdotes of widows chased from their land by in-laws or forced to engage in risky traditional practices involving unprotected sex to keep their property; daughters denied or allocated unequal land inheritance compared to their brothers by their parents; unequal distribution of matrimonial property upon divorce

or separation or lack of control over property by married women. Women in Kenya constitute 80 per cent of the agricultural labor force and provide 60 per cent of farm income, yet own only five per cent of the land. The devastating effects of property rights violations including poverty, disease, violence, and homelessness - harm women, their children, and Kenya’s overall development. Both the National Land Policy and the 2010 Constitution of Kenya guarantee women’s rights to land laying particular emphasis on the rights of women to matrimonial property, rights of widows and rights of pastoralist women to land. Provisions requiring the representation of both genders in elective and appointive positions are

also geared to ensure that women get into land administration bodies as well as dispute resolution forums. Despite these provisions, women’s rights to land remain one of the most contested issues in Kenya, and this came apparent during a project by UN Women on women land rights and property ownership where throughout the country the women told their untold stories on their experiences with the issues of land. In this special edition on Women land and property rights, the Strength of a Woman, a product of the African Woman and Child Feature Service is again bringing you the untold stories of women, marginalised groups, challenges with the COK2010 and land policy and the need to connect the dots on issues with land using practical experience.

Forcefully sterilised woman: “They evicted me from my farm because I had no uterus” By OMWA OMBARA

t was at the age of eleven when in class five and living with her parents in Mtwapa, Mombasa that Mary Juma had her periods for the first time. When she informed her mother, instead of counselling her and showing her how to use sanitary towels she became hostile and started interrogating her on how many men she had slept with and if those were really her periods or an attempted abortion. Juma had no boyfriend at the time and she did not know much about sex apart from what her parents had once told her, that babies dropped down from heaven.

Twenty years Juma’s mother immediately rushed her to a local clinic where the female nurse, questioned her about her sexual life and injected her with a family planning drug to “stop her from roaming the world like a wildcat.” From then on, Juma has never had children and deep in her heart she believes that that tragic injection sealed her fate. Despite a well-attended wedding that saw her move to Kawangware slums in Nairobi, the salonist has tried for the last 20 years to have even

one child, in vain. She is now 50 and has moved from one gynaecologist to another in vain in the search for a baby. “For several years I ran tests that consistently indicated that my tubes were blocked. I then went for a surgery to unblock the tubes but I would still not get a baby. After the surgery at a private hospital, I never had my periods after that. At one stage in her desperate pursuit for a child, one doctor diagnosed that she had fibroids. She was admitted at a Women’s Hospital in Nairobi where she paid KSh100, 000 for the surgery. “The doctor told me I was sterile and that having a uterus was not even necessary. He informed me that he would remove the fibroids and the uterus as well as it was not performing any useful function. When my husband heard that my uterus was about to be removed, he never came back to hospital. Instead he called the whole family for a meeting and I was decared a “No uterus useless woman”.

Disowned The family evicted her from their four-acre farm in Kawangware, a plot she had bought jointly with her

husband from her salon savings of over 15 years. However she was later to discover that her husband had registered the property in his brother’s name. His brother is a matatu conductor in Kericho. But Juma continued clinging desperately to hope when after the surgery the doctor told her he had good news for her. “You are a very lucky woman. I did not remove the uterus, I found the fibroids had not grown on the wall but somewhere safe,” he told a delighted Juma. Many years have come and gone no baby has come. She has tried to sleep with as many men as possible to get pregnant but the bitter reality has finally set on her – someone made her sterile and it was definitely at a hospital. She now lives in a room in Kibera as she finds a client once in a while to do her hair. But she can hardly live on that. Her husband never forgave her for her barrenness and married a more fertile woman. “They sterilised me at the clinic without my consent at a tender age and now I have to pay this painful price of having to live without a baby, so painful,” she told Strength of a Woman during the interview. Juma is happy that the

“They sterilised me at the clinic without my consent at a tender age and now I have to pay this painful price of having to live without a baby, so painful.” — Mary Juma

new Constitution gives women power to challenge discrimination and injustices against women who have been sterilised against their will and denied an opportunity to have children. “Most land in the community is passed on to children and women are only custodians for their sons till they attain the age of 18. Since I have no son, I cannot own land. Giving me a piece of land would be a total waste as I am considered useless.”

Juma says the new Constitution is the greatest thing that has ever happened to childless women as it makes them part of the society and allows them to inherit land from the in-laws. “Who knows? Although my former husband’s brother holds the title deed to my land which we acquired with my husband, maybe something somewhere will happen and I can get my land back. I can then adopt two sons and a daughter and give them my land.

Special Edition: Women, Land & Property

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December, 2011

Reforms critical to women’s well-being By Priscillah Nyokabi

and is at the core of Kenya’s political, social and economic problems. It was identified as an issue that will require total legal and policy reforms under Agenda IV — long term issues — of the Kofi Annan-led Kenya National Dialogue and Reconciliation Project. Therefore, Chapter Five of the Constitution in Article 68 requires the passing of revised and consolidated land related laws 18 months from the effective date of the new Constitution. In an agrarian country like Kenya, land is central to economic and social life. Women are also central to economic production in the agricultural and livestock sectors, contributing almost 80 per cent of the workforce in these sectors. Nevertheless, women hold only one per cent of registered land titles in their own names and another five to six of registered title deeds are held in joint names.

Access It is appalling that women who consist of 50 per cent of Kenya’s population rarely own any reasonable forms of property, land included. They do not have adequate access to the same and do not even participate in making major decisions pertaining to the allocation and use of property in land. Women’s right to land is a critical factor in status, economic well-being and empowerment. Land is a basic source of livelihood providing employment and it remains a major determinant of a farmer’s other productive resources and services. Land is also a social asset, crucial for cultural identity, political power and participation in local decisionmaking processes. Women’s access to other natural resources, such as water, firewood, fish and forest products — crucial for security and income — is dependent to their access to land. In law and practice, Kenyan women rights to property trail those of men. Their right to own, inherit, manage and dispose of property are under constant attack from customs, laws and individuals including some public officials who believe that women cannot be trusted with or do not deserve to own property. The devastating effects of property rights violations including poverty, disease, violence and homelessness harm women, their children and Kenya’s economy on the overall. Gender discrimination is one of the factors hindering sustainable land use in Kenya. While Kenya has no law prohibiting women from accessing credit

facilities, women face a variety of bureaucratic hurdles from the formal sector. Financial institutions, for example, require a form of collateral before they advance credit. Such collateral includes land, savings or capital goods, most of which are unavailable to an overwhelming majority of women. The many abuses suffered by women in respect of land rights largely flow from the legal framework. Currently, there are over 75 laws governing land which when taken together create an outdated, obscure and needlessly technical regime. Many of these laws are obsolete, while others conflict, supporting different land regimes within the same area. The problem is compounded by the poor state of land records and corruption in land registries.

Abuses Without addressing land issues, especially the gender-related inequities, the new land laws would be incomplete and unable to solve the vexing, longstanding land grievances. Therefore, the proposed land laws must generally: Translate the broad constitutional principles in Chapter Five (Land and Environment) and the National Land Policy into tangible legal provisions promoting women property rights in land. A mechanism for gender equity in the envisaged land re-distribution of irregularly acquired land and resettlement programme proposed in the National Land Policy. Entrench affirmative action in

institutions that make decisions on allocation of land rights. Why the Bill ought to be passed together with the land bills Under Article 68 of the new Constitution of Kenya, Parliament is obliged to enact an array of legislation related to land. The legislation, aimed at dealing with historical social, cultural, economic and political problems relating to land in Kenya, includes legislation to “regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage”. The implication of Article 68 requirement is that the Constitution now demands that the issue of matrimonial property shall be part of the land discourse and legislation thereon shall be processed alongside the other landrelated laws. This is a departure from the past, whereby matrimonial property issues were lumped together with family and marriage-related laws. The grouping of matrimonial property law in the land law category brings in a number of advantages. First, the issue of regulating matrimonial property through legislation escapes from the controversies and delays associated with the family and marriage related laws. It is imperative to note that efforts to pass appropriate marriage laws in Kenya have stalled for decades, due to controversies over certain aspects thereof. Second, the Article 68 laws — including the matrimonial property law — are time bound and must be in place within 18

months from the date when the Constitution entered into force, that is, by February, 26, 2012. Considering the Article 68 requirement, it is unlawful for the organs involved in the preparation of the laws for the implementation of the new Constitution — principally the Kenya Law Reform Commission, the Attorney General, Parliament through its Constitution Implementation Oversight Committee, and the Commission for the Implementation of the Constitution — to process the Matrimonial Property Bill in the traditional law, that is, together with the family and marriage related laws. What Constitutes Matrimonial Property? The Matrimonial Property Bill, 2011 will replace the Married Women Property Act of 1882. It defines “Matrimonial property” as the matrimonial home (s); household goods and effects in the matrimonial home (s); immovable property owned by either spouse which provides the basic income for the sustenance of the family or any other property acquired during the subsistence of the marriage, which the spouses expressly or impliedly agree to be matrimonial property. Any property held by a spouse as trust property whether acquired by inheritance or otherwise shall not form part of matrimonial property. However, spouses may by agreement entered into before or during the marriage, exclude any property which would otherwise be regarded as matrimonial property from being such.

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Woman Special Edition: Women, Land & Property 5

December, 2011

Constitution offers platter for women to enjoy

eality is beginning to dawn on Kenyans of the full impact of women’s gains in the new Constitution, especially as far as land is concerned. Under the Bill of Rights Article 40 and that of The Republic, Article 10 (2) (b) on the National Values, states that every Kenyan regardless of their gender has a right to own land anywhere in the country, and women have as much right to own and even inherit their family land as much as their brothers and uncles. One year since promulgation of the new Constitution, more and more women are coming out and speaking openly about their rights and going a step further to defend them. During a recent national

By Odhiambo Orlale

media colloquium on women’s land and property rights organised by AWC Feature Services and partners, women’s representatives shared with fellow participants some unbelievable and shocking real life experiences touching on culture, matrimonial and property rights, religion, politics and human rights. A woman from Garissa County broke down as she narrated how her husband divorced her for defying Somali culture. The woman had bought a plot in which she put up a residential house where

she expected to live with her family. However, this ended up being her ticket for divorce. From Teso County, a widow wept as she recalled how her in-laws kicked her out of the matrimonial home saying there was no land for her to inherit in their homestead. Similar harrowing tales were reported by other women participants. In Nakuru County, a business woman lamented how she has been rendered an internally displaced person (IDP) since the 2007-2008 post elections violence after she was kicked out of her commercial

building. In Nairobi, a woman from the sprawling Kibera slums said she has been locked in a land dispute for the past decade with an uncle who has refused to surrender the title deed of her fathers’ land which he held in trust. However, all is not lost, there are many women like the late Nobel Laureate Prof Wangari Maathai and freedom fighter Wambui Otieno who stood up for their rights and succeeded. Another success story was from Taita-Taveta County in Coast Province where the first woman to be appointed a chief has used her office to support and protect fellow women from being harassed and disposed off their family land. In Narok, a woman member of the land board revealed how she has openly ensured that cases of women and widows are

given a better hearing. The above testimonies are just a drop in the ocean of what women’s empowerment can do, thanks to the new Constitution and particularly political dispensation that favours them. What is remaining is for more women to take leadership positions in key decision-making organisations and institutions as role models and use them to push the agenda to the next level by networking with the likes of Lands Permanent Secretary Dorothy Angote among others. The district land boards would be a good start followed by membership in the parliamentary committees on land and environment among others. Time has come for women to take the bull by the horns and enjoy the sweat of their labour and of their heritage.

Brothers charged with attempting to disinherit sister By Nzinga Muasya

ince time immemorial, inheritance of land for women in Ukambani has been a thorny issue. Women are generally not seen as potential land inheritors since it expected that they will get married. This, therefore, makes them have no say in their father’s land. Some fathers, out of goodwill might bestow land to daughters alongside their sons whether the girls are married or not. However, most of the female beneficiaries of such land often find themselves losing it to their male kin when the father dies. This is the scenario that played out in Kitui County recently when a female secondary school teacher found herself being evicted by her younger brothers from a parcel of land bestowed to her by their late father. The three brothers, reportedly in the company of other four hired men invaded the farm of Agnes Mumbanu Kinako at Maluma Village in Kitui County in September where in a matter of minutes they cut down all trees in the farm and dismantled a cowshed.

Felled Most of the felled trees were hybrid mangoes plants with sprouting fruits. Also felled were 178 species of Melia Volkensii locally known as mukau, a hardwood tree whose timber is in high demand. Banana, cassava and pawpaw plants were not spared in the mayhem. When she learnt of the incident, Mumbanu alerted the police who rushed to the farm and arrested the three brothers as well as the four youth, all of whom were armed with machetes, hoes and wood planks.

The brothers identified as Eric John, Timothy Mutemi and Douglas Kyalo were charged alongside the other three youth with malicious damage to property. Appearing before Kitui Principal Magistrate Afred Kibiru, they were charged that on September 17, 2011 at Maluma Location, Kitui County they destroyed the property of Agnes Mumbanu Kinako valued at Sh1.56 million.

Suspects Except for one young man, the three brothers and other suspects denied the charges. The brothers were released on a bond of Sh200,000 each and sureties of similar amount while the other three suspects were remanded in Kitui Prison after failing to raise the bond. Kavili Mukunga who pleaded guilty was handed a three year jail sentence without an option of a fine. In his defence, Mukunga told the court that he had been hired by the three brothers to “carry out some duties” but he did not know the farm belonged to someone else. When the matter came up for a second hearing in court, the brothers faced two more counts of forgery with intent to disinherit their sister of the land. The alternative charges read that on May 31, this year, they forged a signature of their late father Mutemi Kamwaki and in October 12, 2009, they forged a transfer letter of the disputed Maluma/Nzambani land to their company named Dater Enterprise Limited. They denied all the additional charges. The court was told that the farm belonged to their elder sister Agnes Mumbanu having inherited the same

A grief stricken Agnes Mumbanu Kinako talks to The Strength of a Woman at her farm. — Pictures: Nzinga Muasya from their late father. The case is still pending in court. The grief stricken teacher accompanied by officials of National Environment Management Authority (NEMA) and the press toured the farm a few days later where she broke down and wailed uncontrollably after seeing how her investment of over 20 years had gone down in a flash. The damage was a chilling message that she leaves the land. Kitui Central District Environmental Officer Boniface Mutinda described the act as callous noting that it was wrong for any person to cut down more than two trees without written authority from the environment regulatory authority. Mumbanu said she was given the seven-acre farm by her father 22 years ago where she had made investments running into millions of shillings. None of her brothers complained as they also got their share of land from their father. “After our father died in 2010, I received a letter from my young brothers demanding that I vacate the land since I was already married. They claimed that they could not give my husband a wife

and land and that as a woman I have no right to inherit any land from my father,” Mumbanu said amid sobs. She added that in the letter, her brothers, allegedly gave her 30 days to vacate the land threatening her with dire consequences if she did not heed the warning. “I could not comprehend the contents of that letter since these are my real brothers and for 20 years they never complained until our father died. When I tried to reach them, they were arrogant and insisted that I leave the land first before we can discuss anything else,” she said. Mumbanu says that she has offered money to her brothers for the land so that “as a family we can be at peace but they will hear none of it”. Mumbanu believes that she has every right to own and develop the land since she rightfully inherited it from her father, adding that her brothers are bent on arm-twisting to illegally disinherit her of the land. “I am at a loss. I can’t believe this beastly act came from my blood brothers,” Mumbanu said amid tears.

Special Edition: Women, Land & Property

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December, 2011

No longer preaching to the choir

he importance of quality community involvement in the land reform processes is not just a Kenyan problem, but a global reality for effective and meaningful socio-economic and political development. It has been established that the extent to which local communities are involved in decision-making processes as regards land reform, its management, ownership and control, is linked to greater beneficiary satisfaction with services and, therefore, a greater willingness to own and sustain the same. In Africa and other developing countries, land reforms and development efforts fail to have the impact intended, as grassroots communities and more specifically women, have a weaker voice in policy making due to their poverty, distance from policy makers, and wide cultural stereotypes and practices, which inhibits them from active land utilisation as far as ownership, access and control are concerned. Approximately 80 per cent of the women in Kenya live in rural areas and most derive their livelihood from agriculture. This underpins the importance of land as a resource and a primary factor of production. Over the years, this demand for land has at times led to severe landlessness, subsequently making land, its ownership, management and controls the bane of our existence. This situation was for a long time exasperated by lack of a clear legal framework for the management of land. Overlapping tribal and customary law systems, ineffective and inappropriate traditional governance and conflict management mechanism, and a

also the resettlement of widows and orphans at local level.

Goodwill

By Peter Ochola

hitherto weak land policy are some of the dynamics that have marginalised women from enjoying rights around land ownership and inheritance. The cultural perception of the role of women in relation to ownership of family property is central to any efforts to ensure the equal benefit by all from family resources. The treatment of women as users and not owners of family property has increased the vulnerability through the instances of denial of their customary rights to be joint beneficiaries of family property. The human right to equal treatment is, therefore, violated and the customary right to fully participate in the benefits of family property is also taken away when this happens.

Radical Departure The Constitution of Kenya 2010 is not just a breath of fresh air but a radical departure from both the existing social and cultural tenets of land ownership, more specifically its use, access and control by women. The Constitution of Kenya 2010 clearly recognises women as equal stakeholders in the use and ownership of land, and guarantees women related rights on the same. However, realising that the current practice will still need a lot of lobbying, moulding of opinions and perceptions, the Caucus for Women’s Leadership has embarked on a project that seeks to ingrain

in our laws and practices the principals of gender equality. The interventions are designed to facilitate strategic engagement forums at local level which will culminate in the formation of a critical mass of women and community leaders who are able take the lead in active participation and also act as catalysts in promoting and protecting women’s access and ownership to land and property. Because we are no longer “preaching to the choir”, the Caucus for Women’s Leadership has identified key opinion shapers and custodians of both culture and religion as an entry point for this campaign. These include local councils of elders, religious leaders and local land board officials. Many a time, these key pillars of opinion and community conscience, are the arbitrators and dispense justice when injustice of perceived injustice on land and property rights of women are concerned. And more often than not, it is justice denied — as a vast majority of these structures make their decision in total ignorance of the law, the various human rights instruments like CEDAW, and lately the Constitution of Kenya guided by the National Land Policy. The Caucus has previously implemented a human rights project on sexual and domestic based violence. This project worked very closely with the local councils of elders especially on awareness creation of the Sexual Offences Act, and

We are building on this goodwill and acceptance in the community, to demystify culture around land and property ownership, with the help of the custodians (local councils of elders). We will also effectively use the new provisions in the Constitution and the land policy to anchor this planned intervention and strengthen these structures to be triggers of change and not threats. We recognise that the indirect power and opinion held by these structures is very significant and cannot be ignored. That is why their knowledge and education of not just the cultural context, but also the current land reform framework is critical. The Caucus for Women’s Leadership has already established women outreaches, (the Women’s Regional Assemblies) located at the constituency and county levels. The Women’s Regional Assembly networks are a credible and critical mass of women leaders at the constituency and county levels, working on advocacy and have carried out various successful civic education activities. The Caucus for Women’s Leadership plans to proactively use the women’s assembly structures that are already recognised by both the formal and informal structures of governance at local and county level. The regional assemblies will leverage their platform to create a forum where both they and the local councils of elders meet to discuss issues on land ownership, use and control. This platform, where applicable, is also intended for the resolution of disputes involving widows, orphans and families over their rights to inherit land and property as espoused in the new law.

Perceptions hinder women from inheriting land By Karani Kelvin

and inheritance is something very emotional. In most families, it is the father who sits with clan elders and his sons and shares out his land. The words spoken and the things done on such days depend on culture and traditions. Usually, on such days, women are spectators. They are less likely to be involved in the process for, as the case often is, it is a man’s affair. What business do they have if the land is only going to be given to the sons? In African societies, land belongs to the men. Women can only till it but they know

the land is not theirs. This is a historically and culturally conditioned belief, which interestingly, persists to date. Since land and power often times went hand in hand, the man with a lot of land was the most powerful. Land, then, symbolised power. Given that women did not own land, they were less powerful than men. One can trace the power differences between men and women to land ownership. Since women had no land and were, therefore, less powerful than men, they were the ones to be subjugated. The consequences of this subjugation can be seen in the many discriminatory practices and attitudes in our society. The Constitution of Kenya

2010 deals a blow on the double standards of the previous law regime and the discriminatory elements of customary law. By declaring void all discriminatory laws and customs, it sets the stage for equality, equity, dignity and respect for human rights. As such, previously marginalised populations are given the same status as others. Women, of course, remain the biggest beneficiaries in this legal regime. It is like what Chinua Achebe would say: “They have been on their knees while men have been on their feet. It is no wonder then that the sun has always been shining on the men, for it always shines on those who are standing first.” The Constitution in many ways lifts women to their

feet, and when dawn comes, the sun will shine on men and women alike without any discrimination. Although the adoption of our Constitution switched on the lights for marginalised groups ending their prolonged and unjust stay in a legal blackout, more needs to be done for us to fully realise the benefits of the letter and spirit of the Constitution. When it comes to many issues like land inheritance, perception, not lack of laws is what stops women from enjoying their rights. The belief that land belongs to men and should only be shared out to them is still present. It is the persistence of this belief that even makes women themselves not demand

land from their families. The idea is still new to them and one can understand the difficulties of going about it. It is also possible that fathers who want to share out their land to their daughters do not know how to go about it as well. How are they to explain to their friends, most of who might still think it unwise to do so, that they are giving their daughters some land? Land inheritance by women is relatively new and unconventional. While we may have laws that guarantee women’s right to inherit land and other properties, it is likely that the perceptions that inform land and property inheritance may continue to pose a problem.

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Woman Special Edition: Women, Land & Property 7

December, 2011

Women remain biggest victims of double standards By Waikwa Maina

ennifer Wangari Kiama, a victim of corrupt deals, claims to have lost her land to two sisters who conspired against her as she was ailing in hospital after undergoing an operation. For Wangari, it is worse that they compromised her son promising to include his name in place of her mother in one of the three farms registered in their later mother’s Rakel Kiam’s names. Wangari could not control her emotions as she narrated how she one of her daughters called to inform her that the family lands which included two parcels in Othaya and another parcel in Nyahururu had been subdivided while she was recovering at the hospital. Both of her sisters who are married and their husbands have also been in the campaign to deny her access to the land.

Parallel titles “My mother died in July 1, 1999. I was later admitted at hospital. It was when I left the hospital that I discovered that one of my sisters then working with a law firm had acquired a parallel title deed for one of the parcels of land,” explains Wangari. She adds: “She then ordered for my eviction from the family land but I reported the matter to the area chief who together with his committee ordered that I be allocated my share, but they declined and accused me of tarnishing their name in the village. Wangari claims her sisters vowed never to allow her access the land and she now lives in the Majengo slums in Nyeri. “I have to hawk fruits in Nyeri town to earn a living for my two children and grand children,” she says. Unlike her married sisters, Wangari is jobless and cannot afford legal fees despite the fact that the original legal documents for the land that were in her mother’s name are still in her possession. Wangari later learnt that her son was also ordered to denounce her as a mother so that he would get the land on her behalf. Her sisters sold one of the parcels of land in Nyahururu without her knowledge and disregarding resolutions by village elders to include her in all land transactions. “I know I was entitled to inherit part of the land belonging to my mother but I

From far Right: What’s up? Double standards: Zeinab Y. Khamis from Kibra laments that some women conspire with fellow women, to deny other women land. Listen keenly, she says at a Land Colloqium seminar at The Silver Springs Hotel in Nairobi. — Picture: Correspondent have been left out, the costs of filling a case is prohibitive, what else can I do?” poses Wangari, a mother of three. In a separate incident, Margaret Nyawira has been to the highest office trying to get back a parcel of 23 acre land she bought back in 1973. “I bought the land in June 1973 on the terms of a willing buyer willing seller from a Machaki Saburu in Embu, Gachoka area. I was paying on instalments as per our agreement and cleared the payment in 1975,” explains Nyawira. She notes: “The payments were mainly through his bank account of which I have receipts and bank statements.” On clearing the payments, the seller drafted a final receipt to acknowledge she had cleared the payment and changed the title deed to her name. However, later in 1976, the seller’s relatives made an appeal against the sale to the Minister of Lands demanding a share of the land. The land was already in her name and she won the appeal.

“The payments were mainly through his bank account.” — Margaret Nyawira

Later, during a lands adjudication and division exercise, the seller acquired another title for the same piece of land. However, by that time Nyawira had already moved to Nyeri leaving the land under a caretaker.

She learnt of the deal when she visited a bank to secure a loan using the land as security. Unknown to her, the seller had sold the land to another person at higher price and the treacherous journey to reclaiming her land begun. “I visited Embu Land’s registry office to place a caution but the District Lands Officer turned me away. I raised the issue with the then Provincial Commissioner who sent a letter to the area District Commissioner directing him to investigate the issue and take necessary action,” she recalls. Armed with all her documents, Nyawira visited the District Commissioner who conducted investigations and it was established that the land

legally belonged to her. The District Commissioner later summoned the two and their witnesses to his office where the seller confirmed having sold the land to Nyawira and promised that they would amicably solve the issue outside the DC’s office. Nyawira had no objections to that. However, on leaving the DC’s office, the seller refused to communicate with her and left her stranded in Embu town. She went back to the DC’s office and he gave her a letter to take to the Ministry of Lands headquarters in Nairobi. The letter was addressed to the Chief Lands Registrar. The Chief Lands Registrar in Nairobi directed the Embu District Lands Office to have the parallel title deed in possession of the seller revoked, and if he declined to surrender it to the government, it be revoked through the Kenya Gazette, and that’s how it eventually went. However the new buyer continued to develop the land with houses and farming claiming he was doing so by the

“Women are conspiring to deny other women their land.”

“I know I was entitled to inherit part of the land belonging to my mother.”

— Samuel Wandimi

— Jennifer Wangari Kiama

Deal

strength of the title deed he acquired from the seller. “I have since then moved from one office to the other without success. I have been to the CID offices, Ministry of Lands Nairobi headquarters but all in vain. The person who bought the land after me is a very senior government officer, well connected and very wealthy,” observes Nyawira.

Violation Nyawira and Wangari are just examples of how women have suffered under multiple and systematic violation of rights to land through illegal and irregular title deeds acquisition. Ignorance on succession matters by the women is a serious issue that needs urgent attention by all stakeholders. “For example, instead of suing for illegal occupation and seeking eviction orders, the lawyers first file for trespass and ask for more money from the client so that they can file a case against illegal occupation and seek eviction orders,” observes Samuel Wandimi the Mt Kenya Human Rights Network Coordinator. However, most worrying is emergence of cases where women are conspiring to deny other women their land. These could be sisters or just women who take advantage of others’ ignorance. “I have many cases where women are fighting for property with other women; some of them are relatives while others involve cases where women conspire to illegally get land belonging to another woman. Such cases are nearly coming to per with those of men versus women,” notes Wandimi.

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Access to land elusive to women evictees By Joyce Chimbi

ue to the patriarchal nature of the Kenyan society, land is often owned and controlled by men. Government statistics still reveal that only a paltry three per cent of women own land title deeds. Consequently, women have very limited decision making powers in so far as land is concerned. Still, access to land remains limited to their role of labourers. In the agricultural sector, statistics from the Ministry of Agriculture reflect this assertion with an estimated 80 per cent of labour being provided by women. As the population How continues to grow, by an estimated one million people per year, and the stress on the limited resources continues to be felt, land remains out of reach for many women. Land being one of the most valued commodities has consequently elicited long drawn conflict and many Kenyans continue to find themselves homeless as the government moves in to reclaim public land.

Vulnerable Among the homeless, women and children hold the biggest number and are most affected as they struggle with harsh climatic conditions, insufficient food and uncertainties regarding their future. “It is worse for women who find themselves pregnant while in camps for the displaced, some children know of no other homes other than these camps where when it rains, they are exposed to serious and even life threatening respiratory diseases,” explains Roselyne Kemunto, a nurse in Eldoret. Even as the debates and controversy shroud land evictions, for those who have lived on land earmarked as illegally acquired, these are tough times. “Some of us settled in places such as Mau forest many years ago having been evicted from our homes in the infamous land tribal clashes of the 1990s and even as far back as the 1980s,” explains Eliud Bonosos who is one of the estimated 20,000 Ogiek people in existence. Observes Bonosos: “I have known no other home, just like the fish finds habitat and can only survive under water, so are the Ogiek with the forest.” The Ministry of Lands has so far reclaimed 500 parcels of land in various parts of the country.

December, 2011

Constitution offers hope for Gusii women

does one catch a butterfly?: Lydia Nyambura of Muranga says land in the region is too small to be apportioned to women. — Picture: Strength of a Woman Correspondent

Three years since the habitants of Mau were evicted and plans to relocate them continue to abort due to various reasons including lack of funds. Although the Minister for Lands, James Orengo has made it clear that the Treasury has allocated funds for the exercise, all does not seem well. Orengo faces the tremendous task of finding a host community that is ready to accommodate the newcomers. However, the Mau evictees are only some of the many Kenyans who have been left out in the cold. Almost four years later, a large number of the estimated 3,000 families displaced during the 2007 post-election violence are yet to be

“It is worse for women who find themselves pregnant while in camps for the displaced, some children know of no other homes other than these camps where when it rains, they are exposed to serious and even life threatening respiratory diseases,” — Roselyne Kemunto

settled. Speaking in reference to the displaced persons due to the 2007 violence as well as the Mau forest evictees, the Finance Minister Uhuru Kenyatta said: “The situation must be brought to a closure to enable genuine displaced persons to be settled in order to enable them (evictees) to live in a dignified manner.”

Abused According to Kantau Nkuruna of the Community Forest Association, Narok South: “Mau forest’s significance to the community around as well as to the country at large is not in dispute. This forest has been headed for destruction from years of encroachment and the consequent logging.” The Community Forest Association is a community led initiative that seeks to benefit from the forest while also protecting it. “Indeed the communities around the Mau Forest such as the Ogiek, Kipsigis and the Maasai acknowledge the need to save Mau. However, survival of the environment should be harmonised with that of the community,” explains Lucy Sadera, an Ogiek and a member of Maendeleo ya Wanawake Organisation. The District Officer for the Olokurto area in Narok Rift valley, Nyaigoti Mogeni explained the difficulties that they are facing in implementing strategies that are beneficial to both the indigenous community as well as the environment. Approximately 2,000 families have already been evicted from the Mau and the Government is yet to resettle them.

By Bob Ombati

ackson Nyang’au, 80, a resident of Kisii County has witnessed violation of the rights of the girl-child over time immemorial. Nyang’au, a father of seven — three sons and four daughters — says culture has been retrogressive and discriminative towards the girlchild. He observes that the new Constitution allows parents to treat their children equally including in bequeathing them land and other properties. Nyang’au, who has divided land to his sons, is only left with his Emonga (special portion) which will automatically revert to his last born son when he dies. The portion, which is relatively small can be fallow or used to grow crops only changes hands after the parents have died. “One of my daughters has no stable marriage. She is always with us. So, I will hand down my share to her so that she can also take care for her children,” explains Nyang’au. He observes that all children should be given an opportunity to inherit land and other property from their parents. Land is a highly treasured property second to food and money in Gusii. Any time land issues are raised, they elicit emotions especially during tussles over ownership. Gusii community is highly patriarchal but the reality is dawning for the traditionalists that the society has to peel off the traditional cultural skin to fit in the modern and progressive society, which recognises the rights of children regardless of their sex. Stereotypes associated with the traditional girl-child are slowly fading as the new law that recognises the rights of children and accords them equal rights in property ownership and development takes effect. It cannot be gainsaid that families have broken up in Gusii over lack of male children regarded as the heirs of their parents’ properties. Women who have not borne children have been scorned and disregarded. Contrastingly, men who sire only female children are regarded as not ‘men enough’. This forces them to push their wives into having many children in the search for a male child. Land demarcation has traditionally been done for male children with the assumption that the female children will be married and claim their shares from husbands. Few religious leaders have dared share their properties including land with their daughters and sons. He advises Kenyan men to consider their daughters when sharing family properties to avoid contravening the provisions on land issues in the new Constitution and land related conflicts which sometimes end tragically.

December, 2011

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Woman Special Edition: Women, Land & Property 9

Banking on law to correct wrongs By Barwaqo Aress

t is 4.30 am and Mkyamwina Bakari, 40, is already at work busy with her chores as a house help in a middle class estate in Mombasa. For a paltry KSh3,000 per month, life for the widowed mother of five is a daily struggle. She has to work hard to fend for her children who are with her mother in village. Five years ago, life was full of promise for Mkyamwina. Her husband was a respected businessman despite having dropped out of school in Form Two. They had a restaurant business that was flourishing. They had about 20 heads of cattle and 30 goats including chicken as well as a profitable miraa (khat) business and were living in their own home. The couple was envy of the village and had even constructed a semi-permanent rental house in Mombasa town which earned them a steady income. Mkyamwina never imagined she would one day perform domestic work to feed her children, or even undergo all manner of mistreatments from her inlaws following the death of her husband.

Death Her husband fell ill and died. Mkyamwina was not only chased from the matrimonial home but all their property confiscated. Her brother-in-law is now living in their house and drawing rent from it while she struggles to feed and educate her children. Efforts to seek redress from the area chief have not borne fruit as the husband’s kin have refused to honour summons to discuss the issue. Meanwhile, the local chief has written a letter for her to take to a children’s officer to try and recover her property. However, so far the matter is still pending. “Justice will one day prevail and my children will inherit their father’s property,” says Mkyamwina. However, she is emphatic that she will never remarry and go through such humiliation and suffering in the hands of in-laws. Mkyamwina’s predicament is an illustration of the mistreatment widows or divorcees go through and end up losing their right to inheritance of land and matrimonial property once their husband dies or the marriage ends. Despite the new Constitution that protects women from all manner of human rights violations, many are still ostracised and neglected as in-laws reap where they did not sow. Many women cannot afford legal redress for lack of awareness of their rights, poverty and illiteracy, so most of them just give up without even trying.

Equal access Lack of equal access to inheritance and matrimonial property rights in the society have condemned coastal women to abject poverty, reproductive health diseases, gender based violence and homelessness. Through the national land reforms, it

A coconut plantation at the Coast: Land in the region remains a thorny issue as women lack equal property rights at dissolution of marriage. — Picture: Correspondent is expected that widows and orphans as well as divorcees will not be robbed of their right to inheritance. In Article 223 (c) of the National land Policy it states: “The Government shall enforce existing laws and establish clear legislative framework to protect the rights of women in issues of inheritance to land and land based resources.” A women’s organisation in Mombasa is concerned that as long as women’s voices remain at the periphery of the decision making process, efforts aimed at empowering them socially economically and politically will remain futile and a waste of resources. Mombasa branch of the Caucus for Women’s Leadership says that despite shouldering the agricultural burden in the society to provide for their families, retrogressive cultural practices are still frustrating the full implementation of Kenyan laws that seek to empower women. According to Marion Waweru of the Caucus this is a direct consequence of discriminatory laws and retrogressive cultural practices on women’s access to and control of land and matrimonial property. Waweru said in Coast Province, the process of land adjudication, consolidation and registration crystallised men’s absolute ownership and control of land. “A woman tills the land, plants and collects the harvest for the man to take to markets and be custodian of the full collection of a season of harvest,” she observed. Waweru noted that only seven per cent of women in Kenya own land either jointly or separately, and that because of obstacles to land ownership, they are denied the rights that the country is obligated to provide under international law. These include the rights to property, housing and equal access to credit. “While coastal women face numerous obstacles in marriage, the burden becomes insurmountable if they divorce as they lack equal property rights at dissolu-

tion of marriage,” observed Waweru. Many divorced women become their children’s sole caretakers and with no source of income they become more vulnerable to domestic and sexual violence.

Advocacy “Poverty and other socio-economic challenges undermine their ability to leave abusive relationships or negotiate for safe sex,” reiterated Waweru. Waweru was speaking during a stakeholders meeting convened by African Women and Child Feature Service (AWCFS) to discuss how Coast women’s rights and access to land and property can be enhanced in line with the new constitution. The theme of the meeting supported by UN Women was “Scaling up advocacy activities in relation to land rights for women in Kenya through supporting the implementation of the land policy and the constitution”. Speaking on women’s land and property rights, Waweru hoped the Constitution will correct violations of land and inheritance rights for women at the Coast. “Coast women are banking on the Constitution to save them from further suffering by guaranteeing equal rights to land and property inheritance at family level,” she noted. The Caucus for Women’s Leadership is pushing for the implementation of the National Land Policy and the Constitution to finally resolve land use and tenure challenges for women. The Constitution assures security of land rights, equitable access to land and elimination of gender based discrimination in relation to land and property in land. Waweru said the Government must adhere to principles of nondiscrimination as the protection of women’s right to land and property is an indispensable aspect of the reforms and reconciliation process. Former councillor Margaret Olang’ who shared her experiences on

opportunities and challenges for women in relation to land and property regretted that cultures do not allow women to sit on committees discussing land matters. Olang’ noted that empowering women socially, economically and politically will push them into boardrooms and other decision making forums at various levels. She urged parents to write wills to protect their dependants from greedy inlaws and other relatives who confiscate matrimonial property after husbands’ deaths. “Poverty and hopelessness was driving many widows and divorcees into sex work after losing their matrimonial property rights,” observed Olang’. According to David Barisa, of Action Aid, Coast women are still unaware of the existing legal options that they can turn to when their rights are infringed. He added: “Lack of a gendered reparation and compensation framework at the national level further compounds challenges that women face.” He said despite women contributing about 80 per cent of labour, only four per cent own land and they continue to be underrepresented and marginalised at all levels of decision making. “Failure to effectively address sexual and gender based violence has resulted in grave psycho-socio and health disorders of survivors,” noted Barisa. He added: “This further increases women’s vulnerabilities to poverty, landlessness, marginalisation and continued cycle of violence and abuse.” Action Aid is working with faith based organisations, women’s and youth groups as well as opinion leaders and other partners to educate society to change their negative attitudes towards women’s land and matrimonial property rights. “We can have all the best laws in the world but when cultural attitudes are negative, the patriarchal society will always discriminate and frustrate efforts at empowering women,” observed Barisa.

Special Edition: Women, Land & Property

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December, 2011

Married at 15 and vagabond at 30 By Lydiah Ngoolo

t 15 years, Muvai Munyithya thought marriage life was a bed of roses and without hesitation, threw her hat into the ring. She was soon to realise that marriage can be a bed of prickling thorns. She dropped out of school in the tender age of 15 to delve into marriage. Today she is 30, with nobody to turn to and nowhere to call home. She was married in 1996 and has been blessed with eight children. Things worked well for the first two months of her marriage but in subsequent years things have been very bad. Muvai is the fourth born in a family of eight - five sisters and four brothers. Her husband’s father died in Nuu before she was married. The family then moved and bought land in Kiteta village in Mui location Mwingi East district. She met and lived with her husband on his mothers’ one acre of land which was too tiny to accommodate all the family members. Due to pressure two of her brothers in law bought land in Machakos and settled there. However, her 37-year-old husband never moved out of her mother’s small shamba. She leased land elsewhere and grew many pawpaw trees. She ensured that her trees survived perpetual lack of rain through small scale irrigation. The shamba was fertile and through hard work she could get a good harvest. However, things went haywire for her when her husband developed a habit of idling and beating her regularly on petty disagreements. The husband could

sell the food at a throw- away price just to raise money for less important things. She would be thoroughly whipped whenever she questioned his wayward behaviour. She could attack and beat her even when she is pregnant but luckily she has never had a miscarriage. When their differences reached intolerable heights, the good neighbour who had leased land to them sent them away from the farm. He accused them of inviting bad omen by turning his farm into a battle field that was culturally unacceptable. Since the two could no longer become compatible, her husband threw

“Had I known, I could have taken my time in school more seriously and could have acquired enough knowledge.” — Muvai Munyithya

Marriage is no bed of roses for teenage girls who drop out of school, as “vagabond” Muvai Munyithya, 30, of Mwingi seemed to have learnt. She claims her brothers threw her out of family land for encroaching on their inheritance. — Picture: by Lydia Ngoolo her out of their matrimonial home albeit to her relief. She went back to her mother (name withheld) with her children in tow and begged for land to farm. Her mother sympathised with her situation and offered her a small piece of land where she set up camp to start life once again. But it did not take long before trouble started. “Within weeks on my settling within my mother’s land, one of my brothers started complaining that I was encroaching into his inheritance. Soon he incited my mother and both wanted me out of their land. These litany of tributions made me curse the day I was born,’’ laments Muvai. When she showed signs of not willing to leave the contested land, her brothers changed tact. Her brother could come in the middle of the night, quarrel her, beat her up and pelt her

house with stone and many a times chase her children away. Landless and unable to find peace at the home and fearing that her brother would one day injure her, one day she moved out with her children but unsure of her destination. However, she ended up at the nearby Mui trading centre where she rented a house for KSh 400 a month which was enough for her and her children. She later secured a job as a house maid from the neighbourhood which earned her KSh2,000 a month. She advises young women to take their time before deciding to marry adding that education should be taken seriously. “Had I known, I could have taken my time in school more seriously and could have acquired enough knowledge on how to fight for my rights,” she says. But she says that the Government should punish men who abandon their families.

Right to inherit land must be all inclusive By Karani Kelvin

hen the late Pastor Ngoya leaves a will stating that his daughter Aminata should be given a portion of his land, his brother Jumbe and son Ababio are greatly opposed to the idea and try everything possible to ensure that the girl does not get her land. Aminata, the character in Francis Imbuga’s Aminata, is a successful woman by all accounts. Against odds, she has managed to be a lawyer, an accomplishment which alongside her generous nature has won her the support of women and some men in her clan. Even the village idiot Agege seems to have noticed. While her success seems to rub some men like her paternal

uncle Jumbe and brother Ababio the wrong way, the fact that her father allocated her some land is a point of contention.

Ploy Realising that their ploy to deny Aminata her piece of land would not work, Jumbe who is the headman of Membe resigns while Ababio decides to commit suicide. This, for them, is far much better than to witness the land being handed over to Aminata. Aminata’s troubles make one wonder: don’t women have the right to inherit land or any other property? Land surveyor Evans Wachemba says that there is a general perception that women do not inherit land but the truth is that some are given land by their parents.

With the new constitution, there is a huge expectation that women will not be discriminated against when land is being shared out on the basis of their gender. However, Wachemba, argues that the discrimination over land cannot be blamed on the previous legal regime. “If people want to share out land to daughters, there is nothing that bars them from that. I remember an old man in Luhyaland who gave his daughters land in 2002,” he says. However, he observes, that although women are sometimes allocated land, the sizes differ significantly with what the men get. It is this misogynist discrimination over land that the Constitution seeks to address. The new law puts it

clearly that there should be no discrimination over land. Further, it asserts that women have the same status as men. In Article 60 91) (f) it states: “Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable and in accordance with the principle of elimination of gender discrimination in law, customs and practices related to land and property in land.”

Change While most families have over time denied daughters their right to inherit land, things are bound to change in this constitutional dispensation. The National Land Policy, that was drafted in anticipation of the new Constitution

has guiding principles that include participation, gender sensitivity, inclusion as well as transparent and good democratic governance of land. The National Land Policy identifies need for Constitutional provisions on equitable access to land and the protection of rights of women, minorities and children in matters of access, control and ownership of land. The National Land Policy that is Sessional Paper No 3 of 2009 states in Article 3.6.10.3 (224) (h): “The Government shall ensure proportionate representation of women in institutions dealing with land at all levels.” Hopefully with this discrimination on land on the basis of gender will be no more.

Strength of a

Woman Special Edition: Women, Land & Property 11

December, 2011

Mijikenda women jump over cultural hurdles to acquire property

alindi District in the Kilifi County is one of the areas with some of the worst and most controversial squatter problems in the entire country making ownership of land especially among women, a near impossibility. Mijikenda culture and tradition, just like the rest of Africa have for centuries relegated women to second class citizens when it comes to ownership of property especially land. However, those archaic cultures currently come into direct confrontation with the new Constitution and women at the Coast can now have a reason to smile. Women in Malindi have suffered because of the culture that has barred them from economic empowerment. One woman in Malindi cannot describe the situation any better. The woman, for the mere fact that she only gave birth to daughters was chased out of her matrimonial home.

Abject poverty “Like many others, I have been left to languish in poverty after being abandoned by my spouse as a result of my inability to stake claim to property acquired in marriage”. The Constitution appreciates all women irrelevant of social status. Under Article 60 (1) (f)) the Constitution has called for elimination of gender discrimination in law, customs and practices related to land and property in land. Among the Mijikenda, despite land being owned communally, it has always remained as men’s property at all levels. Even during inheritance, it is the boys who inherit. However, long before the new Constitution was written, a group of more than 80 women came together in Malindi to find ways in which they could sustain themselves. These women went beyond the cultural ties, bought land and constructed houses. Although the huge investments are in informal settlements, it has not changed the fact that women in Malindi today control a sizable percentage of investments in land. Majority of the women first identified tourism — the pillar of Malindi’s economy as a good but narrow entry path towards economic independence. The women decided to trade with tourists selling curios and ornaments as well as plaiting their hair, massaging them or just painting tattoos on them. The Silversands, Casuarina, Coral Key, Dorado and Blue Key beaches between the Vasco Da Gama Pillar and the Malindi Marine Park became indirectly the centre from which the women pursued their source of livelihood. Even the hurdle of not having been to school did not dissuade Baharini Women’s Group from diving deeply into the tourism business. This is a group made up of female beach traders and artisans. They have even learnt and mastered languages such as English, Italian and German to ease their dealing with clients.

By Kigondu Ndavano

“Some of us have been in business for the last 30 years and we are familiar with the tourism seasons which are dictated by bookings, bed occupancies and sometimes origin of the visitors,” explains Consolata Ogutu, chairperson of the group. During our interview at the Tropical Village beach access road tourist market, Ogutu is forced to cut short our discussion and attend to Italian tourists who have stopped at her temporary stall. “Ciao a tutti benventi, abbiamo tante cose belle, cerchiamo insieme e io spiego tutto (hello all, welcome, we have very nice items here, let’s go through them together and I shall explain everything to you),” Ogutu says to them. Initially, members of the Baharini Women’s Group operated individually. The reason they came together was borne out of the suffering most of them experienced as they attempted to join beach trade that was initially almost completely dominated by men. They decided that by coming together, they would strengthen their bargaining power and ability to trade at the beach. “We would be chased around by the police and even arrested for illegal hawking at the beach, yet there were no laws then controlling business at the beach,” Ogutu recalls.

One two three, and shake a shoulder. It is the sweet dance of success in Kilifi County as the Miji Kenda women dance their way to freedom after acquiring land against archaic traditions. Three beautiful “sisters” need land. Consolata Agutu, a beneficiary of the Baharini Women Group who have managed to build houses through savings. — Picture: Correspondent

Competition However, perhaps the most notable achievement for the women is the fact that through a sense of undeclared competition, majority of them today own plots and have been able to build residential homes. Some of them even own rental houses from which earn them attractive income. “Most of the members reside in informal settlements such as Maweni, Muyeye, Majengo Mapya and Kisumu Ndogo, we have been able to acquire plots despite heavy resistance from men and by ruthlessly saving and sacrificing,” says Ogutu. She adds: “We have been able to build admirable houses for ourselves and our families.” Although some of them may be living in temporary mud houses thatched houses that have been roofed with Makuti, the plots hosting the structures belong to the women and they do not have to pay rent. At least 40 members of the group have their own permanent houses. Some of these buildings are complete and installed with amenities such as water and electricity despite being informal settlements. To pull resources and encourage investment by members, the women’s has divided itself into groups of 10. They

organise fund raising through merry-goround where a member carries home KSh35,000 per session. According to Gladys Mlanda: “If a member is and still stays in a rental house, once she joins the merry-go-round which is mandatory, she is encouraged to consider acquiring a plot and starting to construct a house no matter what the quality.” Through group’s savings the members have registered with various financial institutions including the Kenya Women Finance Trust. Today majority of them have qualified to get loans of between KSh20,000 to KSh150,000. With land ownership still controversial in Malindi, members of the women’s group are encouraged not to fear settling on new settlements especially when such land is confirmed to be private. “This is because in many instances where squatters have settled on private land negations and a sale agreement is the preferred solution and not evictions,” explains Ogutu. Before venturing into beach trade in 1992, Ogutu had lived in a rental house in Kisumu Ndogo area. In 1991, she heard that there was a new informal settlement in Maweni area. After acquiring her plot for between KSh5,000 and KSh10,000, Ogutu who had a large family and was separated

from the husband says she built a temporary makuti thatched mudwalled house. Unfortunately, this was demolished by the Malindi Municipal Council askaris within less than six months. During that period she has enjoyed the relief of not paying rent. Ogutu notes: “The demolition was a big loss to majority of the beneficiaries who were mainly poor women who had gone through divorce or had been thrown out of their matrimonial homes through separation, death of spouses or merely being single mothers unwanted in the family.” With majority of the plot and house owners being women, there was an unconfirmed fear that perhaps the plan was to disrupt the women and help men who were interested in the land take over. Ogutu is full of praise for one village elder from Maweni, Mohammed Kadiri, who even after the demolition brought together the village elders and after creating a new list of settlers organised a new charge for the plots amounting to KSh5,000. “Of this amount, KSh2,000 was meant for the boundaries while KSh3,000 was meant for the land. It was not clear where the money for the land was going but as women we were set to move from the slavery of paying rent and not worried about accountability,” explains Ogutu. “Our main interest was land and shelter.”

Special Edition: Women, Land & Property

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December, 2011

Legacy of a woman who defended, protected land Women commemorate Wangari Maathai at Freedom Corner

By Omwa Ombara

hen you see an African woman dancing in public, in broad daylight, there is something serious going on. It is her way of expressing joy, pain, anger, protest or hope. It all depends with the occasion. To quote African literary writer Chinua Achebe’s words: “A frog does not jump in the broad daylight for nothing.” Thus it was not for nothing that there was a memorable outpouring of emotions at Freedom Corner, Uhuru Park, Nairobi on November 29, when over 2,000 Kenyan women dressed in beautiful vitenge and matching headgears turned up to commemorate the life of Nobel Laureate Wangari Maathai. They arrived in droves, as early as 6 am but all unified with one purpose for Wangari’s legacy: to green politics through Wangari’s vision by planting trees. Seventy one trees, waited to be planted to symbolise the age at which Wangari died.

Loved Land Maathai is remembered as a woman who loved land. She fought for and defended land and the environment from being exploited at a time when women were regarded as lesser beings and did not have a voice to speak against a strong regime. Kenyans will always remember Maathai for storming Karura Forest, on the outskirts of Nairobi, to lead environmentalists and human rights activists to stop the grabbing and destruction of the forest. Maathai had to face off with riot policemen who lobbed tear gas at her. During the midday bloody commotion she was not only roughed up by the riot police but also had her dreadlocks physically plucked off in the full glare of the media. It was her defence of Uhuru Park that shot her to greater fame when she led protests against former President Moi who had planned to put up a sky scrapper within the park. Her action saved the park and today when many Kenyans sit under trees within Uhuru Park, few of them know that it is a woman who defended the land. In her protest Wangari led many women to plant trees within the park as an act of preserving it. She was the first African woman to win the coveted Nobel Peace Prize. In her nomination, Maathai was recognised

as the first woman from Africa to be honoured with the Nobel Peace Prize on her contribution to sustainable development, democracy and peace. In her recognition, it was said she represents a source of inspiration for everyone in Africa fighting for sustainable development, democracy and peace.

Role model The trees that she planted at Uhuru Park many years back provided a cool breeze and shade for guests especially for the uniformed security officers who gathered under the great Africana tree — the tree that Wangari loved, to protect themselves from the scorching sun. The women who had travelled from all over the country danced and wept freely without restraint for the woman they truly loved and cherished, one who was a role model and leader who inspired many. They greeted each other in the universal women’s language — warm hugs and shrill screeches that would have impressed the little Hummingbird in the forest that Wangari loved so much, as they voiced their excitement and appreciation of each other. Those who had not had a chance to dance, grieve, mourn or sing funeral dirges for the fallen heroine of Tetu because of the State burial whose programme was strictly controlled by state machinery definitely had their day. As Kayamba Africa, Nyakinyua Women Dancers, and Embu Traditional Dancers set the celebration mood with African drums, some of the elderly women from rural Kenya who could have been mistaken for professional mourners danced round the field in circles in such authentic styles yet to be captured in Kenya’s entertainment circles. They swayed and gyrated their hips naughtily in ways only women know how. Others danced moving forward, some backwards. For some, there was no choice but to dance on one leg. They shook their shoulders and heads as if possessed by some spirits and for one moment, the elderly women seemed transformed into youth as they forgot their backaches and stiff joints. It was such unusual display of talent as women outdid each other with ululations and whistle blowing. Kenya Women Parliamentarians led by Gichugu Member of Parliament

Prof Wangari Maathai.

— Pictures: internet and Correspondent

and Presidential hopeful Martha Karua, abandoned their handbags and political airs and joined the public in a true reflection of what the Mau Mau veterans had observed. “That Wangari loved the common man irrespective of her status and mingled freely with the poor despite being an international figure.” Minutes before the official function started, the women stopped to sing the national anthem in Kiswahili. The grounds were muddy but who really cared? Wangari’s women planted trees as a battalion of journalists clicked their cameras each trying to catch the moment — Wangari’s moment. Despite all the pomp and colour it was indeed a solemn occasion with speeches that left the women crying for more.

State burial Karua who had initiated the function noted that although Wangari had been given a State burial, which she deserved, the ordinary Kenyan had not been given a chance to participate fully in the event. She reiterated that this was not in contempt of the State burial but simply an expansion of the space for the public to participate and enforce Wangari’s legacy. Observed Karua: “Prof Maathai fought for democracy, human

rights and the environment. She withstood harassment, violence — both verbal and physical, but she never wavered in her stance and pursuit in what she believed in. “I remember her fight to preserve the ground on which we now stand, to celebrate her life. Those were the days when dissent was not tolerated, yet she dared speak out for the environment, and yes for us Kenyans so that we could, as we do today continue to enjoy this park.” In her speech, Karua captured Wangari’s steadfastness, commitment and courage that made her a winner. “She paid heavily but never gave up, she won,” she noted. Karua further recalled how many a times, Wangari led wananchi to reclaim grabbed land and especially to protect riparian land and recreational facilities, within Nairobi and beyond. She called on Kenyans to commit to join hands “to make it our individual and collective responsibility to give our country Kenya the minimum recommended ten per cent forest cover”. Deputy Executive Director at UNEP Amina Mohamed nostalgically eulogised Wangari as “an exceptional woman, sister, environmentalist and a great African CONTINUED ON PAGE 3

December, 2011

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Woman Special Edition: Women, Land & Property 13

Women commemorate Wangari Maathai at Freedom Corner

CONTINUED ON PAGE 3 — internationally recognised for her persistent struggle for democracy, human rights and environmental conservation”. Mohamed paid a glowing tribute to Wangari as “a great listener, an excellent teacher, a wise counsellor and a faithful friend whom we all continue to mourn”. Mohamed described Wangari as a dear friend of the United Nations family, a patron of and the inspiration behind the UNEP-led Plant for the Planet Billion Tree Campaign that has registered over 12 billion planted trees since its launch. She said Wangari was a jury member of the UNEP Sasakawa Prize in 2009 and was appointed as a United Nations Messenger of Peace by the United Nations Secretary-General Ban Ki-moon. In 2006, she was appointed Goodwill Ambassador to the Congo Basin Forest Ecosystems where she advocated for the protection of forests in the Congo Basin Region. “It is my plea to every one of you in Nairobi and other parts of Kenya, to make commitment to annually plant a minimum of 71 million trees for each year of her life, starting from today. In this way, we will contribute towards increasing Kenya’s forest cover while at the same time continue to instil in our communities the value of environmental conservation. This

From Left to Right: Kenya Women Parliamentarians led by Gichugu MP commitment will create a lasting Martha Karua, and Nominated MP Rachel Shebesh plant a tree to honour legacy of Wangari Maathai’s great Martha at Freedom Corner, Wangari does her favourite thing in the past. work for present and future generaBelow: Nyakinyua Women Dancers commemorate Wangari, and right tions,” reiterated Mohamed. Women jig to Kayamba Africa tunes during the event. Maendeleo ya Wanawake chair Ms Rukia Subow praised Wangari for — Pictures: internet and Correspondent her struggle to emancipate women. “Despite her high profile, she was she was cut off from the land of the living model and a leader who inspired her. able to come down to the level of the she kept mum. The rich in her death are “Wangari taught us one thing. I can common woman because she had a heart now ashamed. God will give her a posimake a difference in the space I have for the poor, especially the rural woman,” tion among the great,” said Njoya. been given by God to occupy. I do not observed Subow. He rejected a call by Mau Mau vetwant to live in a country where your sex Speaking on behalf of Unifem founderans to build a monument for Maathai matters before you are given an opporing director (now UN Women), Dr Margaat Freedom Corner, saying it would be tunity. I do not want to live in a country ret Schneider, Phoebe Asiyo said that as against the tenets of her principles. a close friend of Wangari’s she was deeply where only the rich can make it and the “We must remember her alive. Every poor have no chance to exercise their hurt by her death. rights,” noted Shebesh to a cheering audi- wonderful encounter in this freedom corSchneider sent her condolences to ner will be an encounter with Wangari’s Wangari’s family and the community. “Her ence. ghost,” Njoya reminisced. There were endless speeches, each commitment to sustainable development The women made a declaration to loaded with important meanings and and peace was impressive. Her ability to carry on Wangari’s vision in this annual message but to crown it all was the offsecure a living environment was immeasthe-cuff speech by the Rev Timothy Njoya tree planting event, reminded by her urable,” Schneider said in her message. words: “in the course of history, there Even the young women could not help that captured the day and the moment: comes a time when humanity is called “To whom has the arm of the Lord being humbled by maathai. Nominated to shift to a new level of consciousness, been revealed? There was nothing in MP Rachel Shebesh, passionately proto reach a higher moral ground. A time Wangari’s appearance that Moi desired. fessed Wangari’s Hummingbird philosowhen we have shed our fear and hope She was despised and held in low esteem phy. Shebesh, who was nominated to carto each other.” by the State. She took our pain, she was ry the torch for women’s empowerment As the women formed a Mugiithi train pierced for our trangressions. She was at the African Women’s Decade, joined at the end of the function, one could say led like a lamb to the slaughter but like a Parliament after Maathai had served. for certain that Wangari’s legacy lives on. sheep she did not open her mouth. When However, she found Maathai to be a role

Special Edition: Women, Land & Property

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December, 2011

Kicked out for refusing to be inherited In Kuria, land

issues is a man’s affair

By John Syengo

f Beth Syengo-Mutunga’s husband would have died this year, she probably could not have suffered the injustice of losing her share of the family land as well as his estate, courtesy of the new constitution. When the new constitution was promulgated on August 27, last year, it was almost 15-years after Paul Syengo died in 1995. Upon his death, Syengo was blocked from inheriting the share of land to which her late husband was entitled. As a result of this, she lacked a place to put up a house for three children and land to farm. For the one and half decades after her husband’s untimely death, Syengo’s family has literally had no abode and have been living in rented houses. Syengo recalls her late husband’s relatives telling her that she had no right to reside in the Manyatta like family homestead at Ndunguni Village, Ngomeni Division, Kyuso District where they had a two-roomed house when Mutunga was alive. She suffered since her beloved husband, a former Kenya Army captain breathed his last.

By Fred Okoth

Entitlement She is bitter that she lost entitlement to her husband’s land on account of her gender. She says the bad blood with her husband’s kin resulted from her rebuffing a draconian and outmoded culture that called for her to be inherited by one of her late husband’s brothers. She said her refusal automatically led to her losing the right to belong to his family or inherit anything from him. However, Syengo is awake to the fact that were the new Constitution in place at the time, she could have inherited her late husband’s estate not to mention his share of the family land. “The new constitution has given women the leeway to own land and property jointly with our spouses on equal footing. Women, therefore, have the right to block and challenge attempts to disinherit them of land and property like it happened to me,” says Syengo. Although her assertion appear to be true as Article 45 (3) of the Bill of Rights chapter in the new constitution states: “Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” This came a little too late for her. “To tell you the truth, I do not see myself benefiting from this provision in the Constitution because my husband’s family denounced me and shared the family land without allocating anything to me. In consolations, I am told they set aside less than acre for my first born son,” she explains, noting that the frustration did not bog her down. Syengo-Mutunga who is currently the Executive Director of the Kenya

Beth’s family pose for a picture in better days. She says her father-inlaw gave her son a token piece of land. Network of Grassroots Women (Kengrow), a non-governmental organisation recalls that before hell broke loose, she lived well. Life took a down turn four months after her husband’s death in road accident while on attachment at an army detachment in Isiolo.

Summoned “Four months after I had buried my husband next to our rural house and

“I chose to disobey by father in-law. I felt it was backward and an insult for me to be inherited.” — Beth Syengo-Mutunga.

returned to Nakuru to continue with my teaching job, I was urgently summoned by my father-in-law,” she recalls. On arrival, her father-in-law informed her that it had been decided that she be inherited by one of her husband’s sibling. According to Syengo, the two were paraded before her and she was asked to make her choice. However, she rejected the suggestion. “I chose to disobey by father in-law. I felt it was backward and an insult for me to be inherited. After all I was educated and free to choose the life I wanted to live,” she explains. It was at that time that her in-law banished her for disloyalty. He sent her away and told her that the share of family land would go to the elder of her two sons when he came of age. She says in the community women are not land owners. “Even at that time, what hit me like a thunderbolt was the declaration by my father-in-law ( he died last year) that, not only me but even my last born daughter had no right to inherit any share of the family land,” says Syengo. A lot of water has passed under the bridge and recently her husband’s family summoned her elder son, Daniel, who was allocated a piece of that family land. Although she dismisses the piece of land allocated to her son as tokenism which he will share with his brother (Victor), she is bitter that her daughter (Faith) and she were not considered.

he issue of women inheriting and owning land is a strange affair in some parts of the country. Among the Kuria, land is strictly a man’s affairs with women simply being observers. This is extended even when a man dies, whereby his male relatives are allowed by custom to ‘take care of the land’ on behalf of the woman since she is viewed as not being capable of managing the land. According to Dennita Ghati, chairperson Education Centre for the Advancement of Women (ECAW), the issue of women inheriting the land is something that is still very strange to the locals and may take much longer to even come to a point of being discussed. “Here, when it comes to land, women simply have no say ‘that’s it’,” observes Ghati. She observes that the women have not been allowed to own land by customs in the past and this has left them not keen on looking into the issue. Through her organisation, Ghati has been involved in sensitising women on their rights in the region, which include land ownership.

Perception Ghati notes that it will take a lot of effort to change the perception of both sexes if women are to be allowed to own land within the community. She cites an example of cases where men die leaving behind huge chunks of lands. She says the male relatives then move in to manage the land and subdivide for the woman a small piece just next to her house to plant food crop. The inequality is extended to agricultural produce which comes out of the farm since even here, it is the men who have a say on how it is to be used. The bigger pieces of land taken by the man are then used to grow tobacco, which is the most common cash crop in the region. Women are then employed as casual labourers in their land to work on tobacco. This community’s customs also do not allow women to grow cash crops. “About 99 per cent of the labour in the tobacco farms is by women,” notes Ghati. When the crop eventually matures and collected by tobacco buying companies, the payment is made to men. Unfortunately the family hardly benefits as the men disappear immediately they have cashed the cheques into the nearby towns of Migori, Homa Bay and Kisii only to come back empty handed. According to Ghati, until women are allowed to have ownership of land as well as a say on how it can be used, there is very little that can be done to improve their lives in this area, which remains one of the poorest in the country.

December, 2011

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Woman Special Edition: Women, Land & Property 15

Women working in their farms in Kisii. The new constitution has given women the leeway to own land and property jointly with spouses on equal footing. — Picture: Ben Oroko

Community key in translating rights to reality By Ben Oroko

he role women play in relation to land cannot be gainsaid. While women have been the engine driving economic development in their immediate communities and countries, especially in the agricultural and business, their access, control and ownership of land continues facing challenges from conservative sociocultural traditions and practices which prohibit women from owning land. While statutory law protects women’s right to land access, control and ownership, cultural practices anchored in various African communities have hindered them from exercising these rights. The conservative patriarchal cultural traditions and practices paint a gloomy picture about women’s land and property rights.

Within marriage According to a study conducted by Women and Law East Africa (1995) on inheritance laws and practices in Kenya, women only own land to the extent that they perceive or believe this to be the case, especially within marriage or other cohabitation relationships. It only dawns on them that they neither own nor control property when such relationships turn sour. However, for women celebrating the gains made in the new constitution in relation to land and property rights, the challenge is in translating these rights

into reality. Among the Gusii women do not traditionally own land or other immovable properties. Ownership of land and associated resources is anchored in patriarchal cultural traditions and practices. Mzee Peter Atambo Mugoya, 67, a Gusii elder from Nyamburuga Village, Kiangoso Sub-Location in Manga District of Nyamira County says: “Though the new constitution has provided for equal opportunities in land and property ownership between men and women, it will take a long time for the community to reconcile the provisions and the ageold socio-cultural practices which do not allow them to entrust land ownership rights on women.” He observes: “Translation of women’s land and property rights into a reality will depend on the community’s gradual willingness to enforce such laws without conflicting the existing customary and statutory laws on land and property rights in relation to women.” Mugoya admits that customary law pertaining to women’s land and property rights, like statutory law is purely based on social relations between men and women, specifically husband and wives. “According to many African customary laws and practices especially among the Gusii community, women regardless of their marital status cannot own or inherit land. The community’s tradition has over the years assumed that women are part of the community’s wealth and, therefore, have no right whatsoever to claim land and property rights from their

male spouses,” explains Mugoya. He notes: “It is alien and against socio-cultural practices of the Gusii community for a woman to claim land and property ownership. This is seen as if the woman is wrestling power from the man, who is naturally the custodian of the community’s land and property.” According to the Gusii customs and practices, men are naturally entitled to control household land because the community authorities who are predominantly male entrust the land to male heads of households from where the land is passed on to male heirs for continuity.

Male relatives Access to land for most women depends on their relation with male relatives, especially husband, brothers, fathers and brothers-in-law. “According to the Gusii customary law and practices, a husband has an obligation to provide a piece of arable land for his wife to conduct farming activities,” explains Mugoya. He adds: “It is the man who also decides which piece of land the woman can use and for how long.” However the customary practices allow a daughter who has been rejected by her husband and has not been remarried to be allocated a portion of family land since the community regards her as one of their own. Similarly, a woman who was never married and did not bear children or has opted to adopt children also entitled to family land.

He says according to the Gusii tradition and practice, land is mainly controlled by male members of the family based on the assumption that land rights are held in trust for all members in the household. Mary Orwenyo, a women’s leader and a widow from Nyamira County laments that customary land registration systems which more often than not require proof and authority from a husband for a woman to acquire a land title deed independently, continue to deny women their right to land and property ownership. “The requirement of a husband’s proof and authority before a woman is allowed to process and acquire an independent land title deed under the customary land registration systems is a major obstacle to single women’s rights to land and property ownership,” she observes. Orwenyo, who is also the chairperson of Nyamira District Maendeleo Ya Wanawake Organisation blames sociocultural practices that discriminate against women, especially payment of bride price for discouraging women from owning land. In most customs it is assumed that once bride price has been paid then automatically that makes a woman her husband’s property. “Land among the Gusii community is passed through inheritance, especially through the male members from father to son since according to the community’s customary law, women are perceived as outsiders who cannot be entrusted with the community’s land and property,” notes Orwenyo.

Special Edition: Women, Land & Property

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December, 2011

Floating houses leave women a traumatised lot

By Diana Wanyonyi

wanaisha Mussa is seated outside her two-bed roomed house counting and arranging coins as per their denomination. This is the money she will use to settle her ground rent to the landowner. The 60-year-old mother of seven is optimistic that the coins will be enough to clear her monthly ground rate of KSh500. Though she owns the house customarily, legally she does not own the land that her house was built as it belongs to landlord whom she is obligated to pay the monthly ground rate. Like the legendary Hekaya za Abunuwasi tales, where Abunuwasi once asked his neighbour on the on the top floor to hold his house as he was demolishing his on the ground floor, so do the floating houses of Mombasa. While her case of a floating house may sound strange, Mussa symbolises the story of many women and men in Kisauni Constituency, Mombasa County, where three quarters of residents own houses but have been denied the right to the land where they have erected their houses.

Prime Property Kisauni Constituency is the richest in provision of facilities having the most important offices and historical monuments with one of the largest market in East Africa — Kongowea. Despite the riches and fame, residents in Bilima area are living in anguish, silently suffering from the nightmare at hand. Most of them are squatters, a problem that has continuously siphoned their pride of owning land. Women at the Coast have been the hardest hit. Over centuries they have been marginalised on issues of land and property ownership. They have bowed down to discriminatory laws and practices which deny them access to and control of land and matrimonial property in their own motherland. As Mussa sits on her kitimoto (sitting stool), drawing water to fill jerricans waiting by her customers, her cracked palm and toes came to live. Her pale buibui spattered with water turned black bringing back its original colour when it was new. “I sell fresh water for ten shillings per jerrican to some residents, I spend the money I get basic needs and paying monthly ground rate of KSh500,” explains Mussa. She says: “Sometimes I beg for money for my family livelihood. Then she suddenly remembered.” Mussa explains how she ended up here: “I came to this place many years ago when most of the land was covered with bush. I took over this land after my husband’s death.” However, her life here was not going to be easy. “One day someone came and claimed that he is the owner of the land. I was shocked beyond words. To add insult it injury, he gave us orders to pay monthly ground rates,” says Mussa. She explains: “I started paying monthly rates at five shil-

Nowhere to lay our heads. Mijikenda women watch in horror as their houses are demolished by alleged “real owners”. bottom: Mwana Juma Ali prepares porridge for her five children. She is traumatised by the floating houses of Kisauni. — Pictures: Kigondu Ndavano and Diana Wanyonyi lings which was later increased to seven shillings then it went up to KSh17, KSh80, KSh100, KSh200 and KSh400. This amount increased gradually to KSh500.” Fenny Katana is a single parent who had inherited 0.0587 acres of land from her father, but this has been sold out bit by bit by the landowner. “My father handed over this land to me after he retired as an engineer with the Mombasa Portland Cement,” explains Katana. She adds: “There was an agreement between my father and the land owner that for the bit which was supposed to mine, I pay half of the cost and the remaining dues were given to him as a token locally known as kajama. Katana notes that everything went on as planned and Mombasa Municipal Council also gave their approval but after some years she discovered that the same land had double allocation.

Duped Many residents are living in fear of being evicted any time with this ticking time bomb. “We are scared most of the time. We have witnessed several occasions where strangers come to assess our land,” explains Katana. She adds: “We have tried to get help from the relevant authorities but in vain.” Besides Katana, is Mwana Juma Ali was duped KSh42,000 by her landowner’s lawyer claiming that he had settled the bill of the land she was living on. “I thought he had paid for the land

me with the money I gave him only to realise he had deceived me,” explains Ali who later discovered that the same land had been sold to a private developer. “I was forced to go to his office in Malindi but I was stunned to hear that he had been sacked long before,” notes Ali. She adds: “Later I was informed of his death in Kitale. Now, the private developer has built a house on the land and I don’t know my fate.” According to Amina Zuberi, Mombasa District Convener of the Women’s Regional Assembly, a programme of the Kenyan Caucus for Women’s Leadership, women rarely own land titles either individually or jointly. “Women at the Coast have been suffering the degrading and even lifethreatening consequences of their lack of property rights and this has resulted in absence of economic security,” says Zuberi. She adds: “The denial of equal property rights has put coastal women at greater risk of poverty, diseases, violence and homelessness. When it comes to inheritance, she ends up in the cold with her children soon after her husband dies or is divorced.” Zuberi blames gender bias in customary law and lack of procedural safeguards for land disputes saying that women are subjected to the status of second-class citizen.

“Women were excluded from the decision-making process as men held the vast majority of seats in institutions that adjudicate land rights,’” notes Zuberi. “The decisions that emanated from those bodies were often based on discriminatory and degrading notions about women’s inability to manage or own land, some of which were enshrined in customary law.”

Patriachy However, Athman Juma, 59, blames men for being reluctant and unwilling to fight for their land rights leaving the burden to women. “Men are not cooperative; they isolate themselves leaving the problem for women to handle all by themselves. I don’t know as to why they fear private developers more than their native fellows.” The new Constitution under Chapter Five, states clearly that: “land in Kenya shall be held, used and managed in a manner that is equitable, productive and sustainable, and in accordance with the following principles equitable access to land”.

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Woman Special Edition: Women, Land & Property 17

December, 2011

Woman reduced to destitute Empower after 50 years in marriage rural women By John Syengo

at the point that the protestors were forced to scamper to safety as the hired youth took advantage to pull down the houses in supersonic speed. Narrating her predicament Syukau said she doubted the authenticity of the court order as she had a case pending before the Mwingi court challenging her husband’s move to disinherit her of the land she lived in. “I have lived here for years since I was married in 1956 and this land belongs to me and my children. I went to court over a year ago when word went round that my husband wanted to disinherit me of the land and transfer the ownership to my step daughter.”

t 77-years-old and having been married for nearly 50 years, Syukau Lisi and her 16-member family in Migwani District of Kitui County have for the last five months been reduced to a life of destitution courtesy of a marriage gone awry. Towards the end of July, auctioneers cut short their sleep when they arrived at dawn in company of mean looking hirelings and in a terrific force flattened all the houses within the compound. Although Syukau managed to salvage a few personal effects, the loss incurred during the unexpected raid cannot be counted. Under armed police guard, the auctioneers descended on the Kathukumani Village home in Kaliluni sub-Location unannounced on the morning of Tuesday July 26. They were armed with an eviction order from a Machakos court. With the help of hired youth, the auctioneers proceeded to pull down all the structures in the compound living the family members without a roof over their heads. Since then, Syukau and her family have been living in a rented shop plot hoping that the court would overturn the ruling to disinherit her. She feels the eviction was the result of a clandestine arrangement as she was never served with any court summons. Syukau has already filed an appeal in the Machakos High Court seeking orders overturn the unfair ruling.

Court order Syukau sued the husband to pre-empt the move to transfer the ownership of the land to a different person because she had the right to own the land which she and her children have lived on for over 55 years. Syukau lamented that she did not have any other place to go to if the eviction was successful. She is hopefully that the Machakos Court will rule in her favour and overturn the order that led to her forceful eviction. Her brother-in-law David Musee Mbinga says that his brother had no justification to disinherit Syukau of her land and that the forceful eviction although on the strength of a court order was uncalled for. He added that family elders had also earlier ruled that the land in question belonged to Syukau and should Lisi want her out, he should provide her with alternative land to settle on. To him, the eviction order was the least he expected to happen as natural justice dictates that the land belongs to Syukau as she had lived on and cultivated it for the many years she has been married. Migwani District Commissioner Were Simiyu said he had heard about the bid to eviction of the elderly woman from her land following a court order but said he would investigate to find out whether anything fishy was going on. “Since this matter is still a subject of a court case, I cannot comment but I wonder whether the land tribunal sanctioned the change of ownership of the land in question.”

— Picture: John Syengo

“Since this matter is still a subject of a court case, I cannot comment but I wonder whether the land tribunal sanctioned the change of ownership of the land in question.”

Surprise eviction Before the surprise eviction, Syukau had been fighting attempts by her husband to disinherit her of the land where the family homestead and farm were located. She had even filed a case before the Mwingi Senior Resident Magistrate’s court seeking orders blocking an attempt to dispose the land. In the meantime, the husband who is sickly stays at the home of Syukau’s senior co-wife in Kangundo District. It is alleged that due to pressure from some of his grown children, the man has made several futile attempts to disinherit Syukau of the plot of land where she lives with her children. A visit to the homestead soon after the auctioneers came calling;

— Syukau Lisi

left many people wondering whether the home had been hit by a strong hurricane as besides the flattened houses, personal property including beddings, boxes and beds were strewn all over. The auctioneer who arrived under the escort of the Migwani Police Station Commander and with the backing of a dozen youth armed with hammers and metal bars brought down all the 11 houses at the compound within 30 minutes. The Strength of a Woman gathered that the auctioneer was executing a court order to evacuate all the buildings belonging to Syukau Lisi’s family on the plot of land as it had changed ownership. The Machakos court had issued an order to the new owner of the land — Rose Ongili — who is Syukau’s step daughter. However, the auctioneers did not have it easy executing the court order as angry villagers initially physically opposed the move to demolish the houses. The police had to lobby a number of tear gas canisters. It was

By FRANK OUMA

here is need to put in place measures that will ensure rural women are empowered socially and economically. It is only when women are empowered that they can own land and houses among other property. This way they can have collateral that will enable them access loans and other finances that can help build their economic and social base. According to an assistant minister in the Ministry of Co-operative Development, Linah Jebii Kilimo empowerment will enable women them be at par with their male counterparts. “Women are the backbone of the country’s economy and we have to improvise ways of assisting them initiate sustainable income generating activities and which will uplift their living standards,” she said. Kilimo was speaking when she opened a one week seminar on women economic empowerment held at the Tot World Vision Hall in Marakwet East Constituency, Elgeyo Marakwet County. The forum that drew participants from the country was organised by Japanese International Corporation Agency (JICA) in collaboration with Jomo Kenyatta University of Agriculture and Technology (JKUAT). Kilimo asked women to take advantage of the government’s goodwill to boost themselves economically and avoid overdependence on men for upkeep. “As women, we have to wake up and get a share of the available resources by seeking loans,” reiterated Kilimo. She challenged women leaders in the country to spearhead campaigns aimed at educating the people on the need to join cooperative societies. “Women have to apply for loans to start various businesses so as to uplift their standards of living instead of sitting at home and waiting for men to give them,” observed Kilimo. She asked more women to join cooperative societies and save so that it can become easy for them to access loans from financial institutions. Kilimo said it is only through formation of cooperatives that residents in the region could market their farm produce collectively and get better returns. According to the JICA/JKUAT programme coordinator Joan Mugambi, there was need to empower women through education and training. “We have to train our women on the need of making maximum use of the available resources in their areas,” she said. Mugambi noted that phase one of the programmes funded by JICA was started in Marakwet, Turkana, Narok and Kisumu and will be rolled out to other districts that include Mwingi, Isiolo, Mombasa and Garissa.

Special Edition: Women, Land & Property

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December, 2011

Legislation on land must ensure women enjoy their human rights By Jane Godia

ecently, a very prominent doctor in Kenya who was operating from the Coastal town of Mombasa died. His brother, a pastor with the Anglican Church of Kenya in Ugenya, Siaya District decided that his widow had no business being in his house, as she had not had any children with him. The doctor and his second wife had married according to the community’s traditions and even held a church wedding to legalise their marriage after the death of his first wife. They had lived together for more than ten years. Why did this man of God feel that his brother’s wife did not deserve to be in the home she had been living in irrespective of whether they had children or not? Was not this the woman who took care of his brother in good and bad times? Did she not nurse him in his sick bed only as a wife can do? Where did the Pastor leave his moral ethics as he, a man whom society expected to defend and protect the disadvantaged including widows, should have been at the forefront of defending and

comforting his sister-in-law? Was this woman not human? Did she not have the right to human and women’s rights? Human Rights Day will be marked all over the world on December 10, 2011. This will also mark the end of the 16 days of activism against gender based violence campaign which started on November 25. While violence against women has received a lot of global attention, not many people link it to their human rights. It is always being stressed that women’s rights are also human rights. This is why when we campaign to end violence against women, we must also fight for their rights to be given due recognition. One area where women, particularly those from Africa have faced violence is in times of land and property inheritance. Many communities, and individuals, whether learned or illiterate have treated women’s right to land and property ownership as well as inheritance with contempt. Mistreating of women and meting violence on them when it comes to their rights in relation to property and land cannot be understated, and the case gets worse with women who have

lost their partners. Human rights of each and every individual must be respected, including that of widows. The National Land Policy 2009 recognises human rights for all Kenyans and protection against discriminatory laws, customs and practices. Recognition, protection and registration of community rights to land and land based resources taking into account multiple interests of land users including women is one factor that the Policy highlights. The National Land Policy is key to ensuring that legislation around land will ensure effective protection of women’s rights to land and related resources. The legislation must enforce existing laws and establish a clear framework to protect inheritance rights of women. This will then put in their tracks, men like the pastor from Siaya who felt that once his brother had died, then the widow had no business being in the homestead. By setting out to observe the International Human Rights Day, the United Nations was looking at how to reiterate the issue of dignity and justice for all, women included. In being at the tail end

of the activism against gender based violence, this day reiterates that it is only elimination of violence against women that will lay a strong foundation to ensure that their human rights are respected and upheld. This includes respecting their right to inherit and own property. When women suffer violence as a result of being denied their right to inherit property, their children also suffer in the process because rarely will a woman go away and leave behind her children. By ensuring that women’s human rights are respected and protect, their access to property and land will be made easier. Eventually this will lead to reduction in poverty levels as food and accommodation will not be problem. This is especially true where a home was bought or constructed by the father/husband before he died or if in the case of rural women, they already had a homestead put up for them. It is, therefore, important that as Kenya gets underway in writing legislation on land and property rights, women’s human rights must be paramount if the Millennium Development Goals and Vision 2030 are to be realised.

Land issue in slums remains a thorny issue BY HENRY KAHARA

any may think that land problems are only witnessed in developing areas and choose to keep a side slum areas, but this is far from the real truth. Jane Njoki Uhuru a resident at Mathare slum is one of the victim who tells it all. Njoki has already bought three plots of land in Mathare area and today she can only get access of two. Not that the third one is an productive but the area leader has been barring her from utilizing it. “I was given this land by the project and I even have the card which they gave me but whenever I construct a rental house in my third plot, the area leader Mr. Eli Odhiambo incites boys to come and destroy my house,” says the mother of three. Njoki says that land situation issues are worse in slums for you can hardly separate them from tribalism. “Things are bad here for we are composed of diverse communities for you can’t know whether somebody is against you because you come from different community from his,” she says. Njoki says that the last house to be demolished was late August this year (2011). According to her the house has cost her more than Kshs500, 000 but she even didn’t get any benefit from it for they demolished it before she had recovered the money. “I built the house and barely two months down the line they came at night around 11pm, and destroyed it,” says Njoki who adds that when they came to check what was going on the boys threw stones un to them. Although she is not sure of the reason behind the hostility Njoki says that some

communities are not yet to come into terms with the fact that women can own property especially land. “From the time we passed on the Constitution we were freed from inenequality and discrimination there is no man or woman when it comes to rights we are all Kenyans,”says Njoki qouting Chapter 4 Part 2 (27) Equality from discrimination. Although Njoki has already reported the matter to the area chief and at Muthaiga police station nothing more had been done as the area leader has defied the orders. “I have reported this to the chief,

“I was born and brought up in Mathare and he is threatening to evict me where does he want me to go, even post election violence never evicted me.” — Jane Njoki Uhuru

An aerial view of Mathare Valley in Nairobi. and he has written to the leader and has summoned him to his office but he has defied the orders,” says bitter Njoki. “Last time I reported him to Muthaiga police station, but when he was summoned he thretened to evict me from this area,” she says adding that even post election violence never went to that extent. “I was born and brought up in Mathare and he is threatening to evict me where does he want me to go, even post election violence never evicted me,” she recalls. Njoki who her land is located near Mathare river, plot no.H093, had it earlier located near Baraka Hospital plot no.G078 but it was transferred to that area by the project owners (Germans) due to bad politics of the area. “Before my plot was near the hospital but bad politics made the project owners to transfer me to this area, I never wanted it for the environment is not conducive for business but I had to,” says Njoki a mother of three. For now she says that the area leader has been telling her to give her a piece of land so that she can be allowed to build house without interruptions. “The area leader and his two friends

— HENRY KAHARA

Kabaka Soyu and mzeeOnjoro want me to pay them or to give them a piece so that they can allow me to construct my rental houses here but this is my property and I will not,” she swears. According to her this is jealousy and tribalism as during last year 2007 post election violence not even a single property was burnt or stolen as she were with her husband who shares the same tribe with the area leader. “My husband is a friend to this men but he is at home for he is a polygamy, I have been calling her to come so that we can solve the issue together but he is claiming to be busy harvesting and preparing the land for planting,” says Njoki fire wood supplier. Njoki is not the only victim Peter Kariuki says that his business was burnt during on January 2008 and nobody has ever taken a step to speak for him and others who suffered the same loss. For now Kariuki who has opened a new business says that he is not in a position to do it well for some people has built vibanda outside his business. “I was born and brought here in 1969; we are eight children my mum used to tend this land here before the projects begun.

December, 2011

Strength of a

Woman Special Edition: Women, Land & Property 19

HIV and Aids pose challenge to land and property inheritance By Paul Mwaniki

o many people, mentioning the phrase “writing a will” might be seen as a bad omen or a prediction of death. Issues dealing with dividing what you have at an early age are unheard of and only left to few elderly men as other would better die while clinging to their wealth. In Central Kenya where land is highly valued when it comes to inheritance matters, cases are piled up in court with brothers suing each other for taking what was meant for them after their father’s deaths. In most of these cases women are not regarded as beneficiaries of these properties. The tradition has been that they are subject to getting married and will get property through their husbands. However, this contrary to the new Constitution’s doctrines that has given equal rights to all members of the family in owning and inheriting property. The Constitution guarantees equitable access to land rights, efficient, productive and sustainable use of land by all and specifically prohibits gender discrimination in law, customs and practices related to land and property. Women have experienced gross disparities in land ownership as well as discrimination in succession, transfer of land and exclusion in land decision making processes. For Lucy Nyaguthi, a widow from Matanya in Laikipia Central District and a mother of five, a will could have totally changed her life if her late husband had written one. Nyaguthi who has gone open on her HIV positive status was widowed in 2009 and was left to take care of three children, the last born being six months old and also HIV positive as two had already died. By the time of her husband’s, death they were living in their four acre farm in Laikipia Central District where they reared animals and lived in harmony with her in-laws.

Harmony As she narrated her story to Strength of a Woman, Nyaguthi who lives in a single room at Kwa Mwea Village in the outskirts of Nanyuki says problems started when her husband Christopher Kibanya tested positive in 1996, only one year after they got married. He stayed in denial and never disclosed it to his wife. “We lived on hoping that all was well but my husband despite knowing the danger he was putting the entire family never spoke a word,” explains Nyaguthi. “At times he was very rude to me and we even had children who developed problems and two died at home since he never produced money to take them to hospital.” Nyaguthi recalls that whenever the children got ill, she would buy drugs over the counter. She regrets never taking them to hospital as she could have known the real problem and confronted

her husband. “I came to know the whole truth in 2007 when I was pregnant and had to go for ante-natal care. This is when I learnt that I was HIV positive and what followed was a long battle with my husband and countless separations,” Nyaguthi remembers. She explains: “We finally buried our differences and I decided to continue taking care of him as his health was deteriorating and none of his family members wanted to be Top: Widows denied access to their land after near him and our two their husbands’ death under GROOTS, Kenya children.” dance with women prisoners at Nanyuki Her problems started Prison during an educational visit. Inset: ID immediately after his with name of her late husband shows she was death. “Before coming married to him. — Pictures: Paul Mwaniki back home due to poor health, my husband used to work in Nairobi and after our entire struggle to put together a family known to be home throughout their 12 he died in 2009,” explains Nyaguthi. She years of marriage. recalls: “My in-laws put the entire problem “They convinced me to leave Matanya on me. They accused me of infecting my since I was visiting the Nanyuki District husband with the virus despite knowing Hospital many times due to my health very well that he is the one who infected and that of our son,” recalls Nyaguthi. me.” She adds: “My mother-in-law told me to settle in a house she had in the village. Death certificate I thought this was a good idea but after only one week, the same mother came They even tried to block her from and told me the house had been sold and signing the death certificate form at the the new owner w moving in immediately. hospital where her husband had died After the eviction she went back on allegations that she was too sick and to live with her brother but has since could not reach the medical facility. relocated to Kwa Mwea where she does “However, a nurse at the hospital manual jobs to cater for her son and said they knew me and I could make it daughter. there since I was always there during his Nyaguthi is also involved in care illness,” says Nyaguthi amid sobs. giving and education to the HIV infected Immediately after the man’s burial, persons in Laikipia. the family organised secretly of how she “One thing I am proud of is the new would be evicted from what she had constitution; whenever we are involved with our training and care giving we are strong in telling people about how much the document will do especially in liberating women,” she notes. She lamented that her in-laws sold her four-acre land and there is nothing she could do as it had already changed hands and the new owner had put a lot of effort in developing it terming. At the same time, despite neighbours having known her and the family, no one came to her rescue, not even the area chief. “The location land committee do not in any way help people solve the problems. Those sitting in the committee are the same wazee who oppress their daughters-in-law and there is nothing much expected of them in the committees,” notes Nyaguthi. However, she does not understand the land policy and hopes more could be done to educate people on the ground about it. — Lucy Nyaguthi Kibanya “We are the most affected people

“However, a nurse at the hospital said they knew me and I could make it there since I was always there during his illness,”

on the ground and as we continue empowering other women we need to have every law in our finger tips just like we are doing with the new Constitution,” she advises. Under the Grassroots Organisation Operating Together in Sisterhood (GROOTS Kenya) over 20 women, some of whom have been evicted from their homes following deaths of their husband as a result of HIV, have been campaigning strongly for women’s rights especially on issues of property and land. For Mary Muthoni, a mother of three who hails from Daiga in Laikipia East she was not even allowed to bury her husband. “I feel very sad as I was thrown out of my home by my brothers-in-law who said that I had not contributed anything to the wealth of my late husband,” says Muthoni. “After the burial they shared everything we had and never thought of their brother’s children but I have gone to court over the matter and the case in on-going.” Laikipia Groots coordinator Winnierose Mwangi says they are also taking care of two orphaned children who were thrown out by their uncle after their parent’s deaths and all their property seized in Rumuruti. The children were even denied a chance to attend school. “The boy and girl who are under the care of one of our members were rescued by neighbours who always saw them working in the farm all day while their cousins went to school,’ says Mwangi. “The neighbours became concerned and contacted us for assistance and through the provincial administration we are following the matter.” Mwangi observes that most women are being subjected to these problems but do not know where to seek assistance. Currently she is only armed with her ID card that after their traditional marriage was changed to include her late husband’s name instead of that of her father.

Special Edition: Women, Land & Property

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A time bomb that is unresolved land issues By Odhiambo Orlale

enyans have been maimed, divorced, killed and/or gone to war over land disputes pitting siblings, couples, neighbours and communities against each other. There is no doubt that land is one of the most sensitive and explosive issues in the country today. However, it is women who remain on the receiving end. Though women form 52 per cent of the 40 million Kenyans and are major players in the development of the country, they have been getting a raw deal as far as land ownership due to socialcultural factors and gender blind laws. The status of women remains relatively low with inequalities and inequities prevailing in many aspects. Historical injustices that are bedevilling the country today have links to pre-colonial days when the Sultan of Zanzibar conquered the coastal strip of East Africa and then ‘acquired’ a ten mile strip that was followed by the colonial administration that took over the prime farms in the Rift Valley and parts of Central Province by displacing most of the residents. The post-independence regimes of presidents Jomo Kenyatta and Daniel Moi did not do any better as they failed to answer the land question and instead created more settlement schemes across the country. They also dished out prime land to their cronies and kinsmen. The recent land clashes related to post-election violence in the past two decades has left thousands of men, women and children displaced. Indeed, next to politics, Kenyans are ready to do literally anything to acquire, purchase and/or preserve whatever parcel of land they desire. The recent evictions in Syokimau area of Mavoko District near the Jomo Kenyatta International Airport is testimony of Kenyans’ love for land and the extremes that they can go to ensure that they own it. Desperate faces of weeping and devastated women and children brought to the fore the time-bomb that is the unresolved land question in the country. The media is awash with gory stories and photos or films of husbands selling family land behind the backs of their wives and children leading to open conflict and animosity, if not murder. However, these scenes may soon end if the Sessional Paper No 3 of 2009 on National Land Policy, the new Constitution and the Matrimonial Property Bill 2011 which have taken a deliberate stand to address the issue of land ownership, access and inheritance. Under the land issues requiring special intervention in the National Land Policy, the following related issues were highlighted: historical injustices; pastoral land issues; coastal regional land issues; land rights of minority and marginalised groups; land rights of women; land rights in informal settlements and for informal activities; land rights of children; and the impact of HIV and Aids pandemic on agricultural production and access to land rights. In Article 220 of the policy under the

December, 2011

Gusii ready for new Constitution

Knock! Knock! Anyone at home? No. Only women, goats, cows and children. A pensive Beatrice Mtawa from Samburu told Strength of a Woman that her community regards women as property along with the cows, goats and children. Below: Kenyan IDPS scramble for food at a camp. Some of these women own land and other property. — Picture: Correspondent

headline of Gender and Equity Principles, culture and traditions were singled out as continuing to support male inheritance of family land while there was lack of gender sensitive family laws. “Women are not sufficiently represented in institutions that deal with land. Their rights under communal ownership and group ranches are also not defined and this allows men to dispose of family land without consulting women.” However, things are changing at the recruitment of public and decisionmaking levels. With the Land Policy in place, land management will take a different turn that will see an end to corruption and discrimination. The women’s rights are further upheld in the Matrimonial Property Bill 2011, Article 8, which states that owner-

ship of matrimonial property, shall be deemed to rest on the spouses in equal shares irrespective of their contribution of either of them towards the acquisition thereof, and shall be divided accordingly upon the occurrence of divorce or dissolution of the marriage provided that in appropriate circumstances a determination can be made during subsistence of the marriage. And in the same spirit, the Constitution under Land and Environment Chapter Five, Article 60, which states categorically that land in Kenya shall be held and used in a manner that is equitable, efficient, productive and sustainable; and with the following principles – equitable access to land; security of land tenure; and sustainable and productive of land resources.

By Bob Ombati

ackson Nyang’au, 80, a resident of Kisii County has witnessed violation of the rights of the girlchild over time immemorial. Nyang’au, a father of seven — three sons and four daughters — says culture has been retrogressive and discriminative towards the girl-child. He observes that the new Constitution allows parents to treat their children equally including in bequeathing them land and other properties. Nyang’au, who has divided land to his sons, is only left with his Emonga (special portion) which will automatically revert to his last born son when he dies. The portion, which is relatively small can be fallow or used to grow crops only changes hands after the parents have died. “One of my daughters has no stable marriage. She is always with us. So, I will hand down my share to her so that she can also take care for her children,” explains Nyang’au. He adds: “We should discard retrogressive cultures and traditions and change with times. It is imperative that we conform to modern realities of life.” He observes that all children should be given an opportunity to inherit land and other property from their parents. Land is a highly treasured property second to food and money in Gusii. Any time land issues are raised, they elicit emotions especially during tussles over ownership. Gusii community is highly patriarchal but the reality is dawning for the traditionalists that the society has to peel off the traditional cultural skin to fit in the modern and progressive society, which recognises the rights of children regardless of their sex. Stereotypes associated with the traditional girl-child are slowly fading as the new law that recognises the rights of children and accords them equal rights in property ownership and development takes effect. It cannot be gainsaid that families have broken up in Gusii over lack of male children regarded as the heirs of their parents’ properties. Women who have not borne children have been scorned and disregarded. Contrastingly, men who sire only female children are regarded as not ‘men enough’. This forces them to push their wives into having many children in the search for a male child. Land demarcation has traditionally been done for male children with the assumption that the female children will be married and claim their shares from husbands. Few religious leaders have dared share their properties including land with their daughters and sons. Nyangau’s counsel is that children should focus on the value of the land and not the size, stressing that as land shrinks, majority Kenyans will be forced to embrace intensive farming to reap maximum benefits from their shredded pieces of land. He advises Kenyan men to consider their daughters when sharing family properties to avoid contravening the provisions on land issues in the new Constitution and land related conflicts which sometimes end tragically.

December, 2011

Strength of a

Woman Special Edition: Women, Land & Property 21

Woman evicted as husband absconds By Kariuki Mwangi

aving a happy family is usually the dream of every woman but for one Margret Kaimuri from Mbiruri, Embu East District, the family has been a thorn the flesh. Kaimuri was married 14 years ago before the marriage that was marred in ups and downs ended with her being forcefully evicted and thrown out with her three children. With tears flowing down her face, Kaimuri narrates how her husband of 14 years left their home for Kisumu in 2008 in the name of looking for a job to be able to cater for the wife and the children. Since then he never came back to them and does not bother about the children. However, her in-laws blamed her for being behind their son’s departure. Since 2008 when her husband left, Kaimuri had been living in peace with the in-laws until three months ago when she woke up to find her brother-in-law

demolishing the house she was living in. “He was demolishing the house using metal bars without bearing in mind that me and the children were inside,” says Kaimuri, who was injured in the process as she tried to salvage some goods from the house. The man demolished the house with everything locked up inside. The only things Kaimuri was able to save were few clothes. Upon inquiry of what was the reason behind the demolition, Kaimuri was told that the family had decided to chase her away arguing that the church she attends is a cult whose beliefs caused her husband’s disappearance. “They alleged that I used the powers of the alleged church to drive my husband away from home so that I could take over his land and benefit from it,” she says. They told her to quit going to that church or face eviction. Kaimuri says that even after her husband, Bernard Mwaniki, was called and informed on what had befallen his family, he did not take any action and instead sent word that the wife had no

right to be in that place or be involved with any of his property at the home. The only person who took sides with her is the father-in-law but due to the fact that all the others were against her, he could not do anything about the issue. Kaimuri says her three children aged 13, 9 and three were taken in by a neighbour who took care of them for one week before introducing her to the Women in Need Network, a community based organisation that takes care of women with challenges.

Shelter The issue was reported at the Runyenjes Police Station and at the district gender office but no action was been taken. Kaimuri and her children are now under the care of the organisation where they have been sheltered. The children are also able to go to school. Efforts by village elders to bring them together and work on a solution for the crisis has not borne any fruits as the brother-in-law fled shortly after committing the act. The family says no talks can take place in his absence.

According to Margaret Kariuki, programmes secretary at the Women in Need Network, they receive many cases of domestic violence related to land and property ownership. “Most of the affected women are illiterate and have no idea of where to report the cases,” says Kariuki. Currently they have been able to provide a safe haven for eight families where the children are also able to access schooling. They have also been trying to seek legal assistance for those affected. Kaimuri is now calling for intervention by appropriate authorities so that she can access the farm and earn be able to earn a livelihood for her children. She says despite the fact they do not want her in the home, the children have a right to their father’s property. “These well-wishers cannot be able to sustain and educate my children for the rest of our lives and I am disturbed that I cannot take care of my children,” she observes. Kaimuri now works as a casual labourer in the various farms in Runyenjes.

Making the Land Policy Provisions Real

omen’s rights to land in Kenya are limited in all land uses – agriculture, pastoralism and urban development. Indeed women’s access to, control over and ownership of land is mediated by customary norms that hold that land is too important to be held by women who are seen as transient. Indeed in some communities, women are perceived as property to be owned and not as persons capable of being property owners. These views limit women’s enjoyment of other rights since land is both the basis of identity and belonging at the national, local and family levels. It is also the proxy for women’s enjoyment of political, economic and social rights. Women are closely associated with land through production of food but in most Kenyan communities, women do not own land or other immovable properties - they have use rights, which are hinged on the nature of the relationship between them and men who own the land as husbands, fathers, brothers and even sons. This places women in a precarious position in terms of survival and livelihoods and also stifles their effective role and contribution to national development. With agriculture and other land based natural resources being the main sources of livelihood, the consequences for women not owning, controlling or accessing land are grave. Land reform seeking to restructure and redesign property, use and production structures and attendant support services has thus focused on women’s rights to land under the broad goals of justice, fairness, inclusion and equity. Both the National Land Policy and the 2010 Constitution of Kenya guarantee women’s rights to land laying particular emphasis on the rights of women to matrimonial property, rights of widows

By Patricia Mbote

and rights of pastoralist women to land. Provisions requiring the representation of both genders in elective and appointive positions are also geared to ensure that women get into land administration bodies as well as dispute resolution forums. Despite these provisions, women’s rights to land remain one of the most contested issues in Kenya. While national Constitutions - as the supreme law of the land- and land policies - as roadmaps for way forward - provide a good fulcrum for women’s empowerment, they are not selfenforcing. Vigilance is needed to ensure that the rights are realised. Women’s rights to land have to be contextualised within a broader context of insecure rights to land for many poor Kenyans and youth. The wave of evictions and demolition of property occasioned by illegal and irregular allocation of land nuances women’s rights to land. While the expectation with the promulgated of the Constitution and in the implementation of the National land Policy was that the culprits of such evictions and demolition would be the land grabbers, the poor, including women, have become the victims of land grabbers who have offloaded illegally and irregularly acquired land to unsuspecting Kenyans. It is therefore imperative that the quest for women’s rights to land address the different causes of dispossession because gender is a factor in all of them. Women need to be innovative and proactive in drumming up support for

women’s rights to land by firstly, seeking to have the land question as a 2012 election issue. The main challenges in the way of land reform in Kenya have been identified as: State sovereignty over land; unequal distribution of land resources; the plurality of property systems and tenure insecurity; unsustainable management of the environment and natural resources; the need to enhance agricultural productivity and other land uses; HIV/Aids among others. There is a gender variable in all these factors and by addressing them, land reforms that have remained a mirage will be realised including women’s rights provided for in both the land Policy and the Constitution. Secondly, women should require that addressing the land question adverts to social aspects and not only to economic, political and legal issues. Focusing on the social aspects would bring relational aspects to the fore and thus allow for women’s claims against other people, promoting value-enhancing relationships between the property holders and the society; and neighbours and family members. Most significantly, this would be a recognition of the fact that land rights mesh with social assets such as family relations, belonging to group and worship sites that are not be transactable in the market place. Thirdly, women should require that rights of ownership to land are subjected to the greater public good

for posterity In this regard; there should be greater regulation of land rights to ensure that land rights promote greater public good and also an alignment of rights to responsibilities. Land rights should, for instance, be linked to resources on the land. In this way, women’s rights to land will include rights to environmental resources, genetic resources and knowledge associated with the land and resources which is a more robust rights’ regime. Further, land rights should incorporate ecosystem goods and services and be linked to sustainable environmental management thus ensuring that the needs of current generations are not met at the expense of the needs of future generations. Both the Constitution and National land Policy articulate sustainability considerations which can amplify the provisions on women’s land rights. In a nutshell, legal and policy reforms through facilitative provisions are only the beginning of a much longer journey towards gender equity in land matters. Social engineering to change attitudes is a critical leg of the journey that we must make if land rights are to be secured meaningfully for the women of Kenya. How soon we take off on that journey, only time will tell! In the meantime, there is need for awareness raising and capacity building to ensure: Increased knowledge and awareness of the legal and policy provisions; enhanced participation of women in decision-making; and demand for acceleration of legislation and implementation of gender sensitive laws and policies regarding land and property. In this regard, a broad range of interventions are required namely: civic education; advocacy and research. Media campaigns and documentaries highlighting salient issues on women’s rights to land are vital for each of these interventions.

Special Edition: Women, Land & Property

Communities must be involved in writing new laws

Strength of a

Woman

December, 2011

Women challenged on their rights

By Edna Mokaya

egislation governing land inheritance have not been adequately. Historical injustices at the Coast has left a majority of the population either as squatters and landless. Of this population women and children have suffered the most and continue to suffer yet they are the primary managers of land resources. At the Coast land remains a sensitive that requires special and sustained interventions to be solved. It is a fact that many women at the Coast are not aware of their land rights and the few who know their rights do not know what procedures to follow or institutions to consult in claiming infringed rights. For example, Jane Katana, 46, is widowed, her husband died last year. Katana did not know her rights and she lost everything after her husband died because her in-laws took everything away, leaving her and the children defenceless. “My husband did not write a will. Immediately he was buried I was shown the door by my in laws,” she said. According to Benjamin Odhiambo of Kituo cha Sheria what is required are clear programmes designed to reconstitute and strengthen land rights of rural communities especially women so as to protect them from further marginalisation and discrimination. “Such programmes must in particular seek to guarantee a secure land rights framework for the poor and the marginalised groups, ensure equal distribution of productive land and redress historical land grievances,” notes Odhiambo. He says that there a need to sensitise the community on the provisions of the National Land Policy and Chapter Five of the Constitution to enable them further participate in the constitution implementation process and specifically land reform, from an informed position. He said that public is very crucial in the implementation process as it assists in making an informed and integrated decision on matters of public concern. “To ensure that the public is well informed, there is need to continually hold public forums and present bills to the community for comments and recommendations. It is these views that are further consolidated together and presented to the relevant institution for generation of polished laws,” he advises. Odhiambo challenges Parliament to enact the Matrimonial Bill so that issues of inheritance are taken care of.

By YUSUF AMIN

he provincial administration has been called upon to help women in their land and property rights. However, this can only happen if the community rises up and unites to eliminate gender discrimination. A women’s group in Mpeketoni, Lamu County has called upon the community to come together to wipe out gender based violence and discrimination especially in land inheritance for women. Mpeketoni Multi-Purpose Women’s Group, has vowed to mobilise women to fight for their rights which have been undermined for a long time in the whole region. Led by the group’s secretary Grace Gathoni, the women noted that they have been sidelined in the community for a long time when it comes to making decisions with regards to land. They regretted that land inheritance has been the centre of conflicts among most coastal communities. Gathoni urged women to read the Constitution as they will be able to understand that they can fight for their rights.

Knowledge “This will enable women get their share in inheriting family land in areas like Kilifi and Lamu counties where squatters have been a problem for a long time,” reiterated Gathoni. She noted that the Constitution was opposed to discrimination and called upon community leaders to help end the misconception that women cannot inherit land. They should also help to ensure that there was equal distribution of resources. She also urged chiefs and sub-chiefs who are on the ground to conduct

Goodwill: A well cultivated land in Mpeketoni, Lamu. Chiefs in the area have been asked to lend a supportive hand to women so they can rightfully acquire land. — Pictures: Yusuf Amin civic education among all sexes on the rights of women as enshrined in the Constitution. “Chiefs are the ones who can fight land inheritance discrimination in the society and they should go round and teach the people, especially men, who say that women have no right to inherit family land since they are married to other families,” noted Gathoni said. At another public baraza in Vitengeni Division in Ganze District, the area councillor Teddy Mwambire urged women not to be cowards and come out

openly to fight traditions that hindering them from getting their rights in the society. Mwambire said for a long time women in the district have been so quiet especially in matters of leadership. He urged them to take advantage of the constitution to demand for their land rights and engage in agricultural production. “If women can access land in the society there would be a lot of development in the community and the poverty being experienced in the district will be reduced,” noted Mwambire.

Community

“This will enable women get their share in inheriting family land in areas like Kilifi and Lamu counties where squatters have been a problem for a long time,” reiterated — Grace Gathoni

At the same time Kilifi District Commissioner Katee Mwanza has asked the local community to cooperate with the provincial administration to end the squatter problem that has been thorn in the flesh of the district leaders for a long time. Mwanza noted that the provincial administration was working closely with the Land and Settlement Ministry to ensure that squatters are resettled in the settlement schemes that have been established by the Government. He revealed that Gathecha Settlement Scheme, Kapecha, Kibarani Settlement Schemes and others that are on the process of being established and urged the residents against politicising the programme. “Every landless person will get land in the settlement schemes and they should be patient and cooperate with the relevant officers,” reiterated Mwanza. He called on the local leaders in the district to come together and seek a lasting solution to the squatter problem.

Strength of a

Woman Special Edition: Women, Land & Property 23

December, 2011

Owners without title deeds:

Culture, customs and Aids undermine women’s property rights By Dr Akinyi Nzioki

ulture and customs continue to support male inheritance of family land. The lack of gender-sensitive family laws has created a conflict between constitutional provisions on gender equality vis-à-vis customary practices that discriminate against women in relation to land ownership. Moreover, international conventions of women’s human rights dealing with property, which have been ratified by the Kenya Government, have not been translated into policies or laws. When it comes to land inheritance, women are regarded as neither belonging to the homes where they were born nor to where they are married. Women’s access rights to use land are also associated with their relationship to men — as mothers, wives, sisters or daughters. Again, women’s rights to land continue to be determined by their marital status, and by laws of male inheritance, succession and divorce. The draft National Land Policy recognises that gender, equity principles and the impact of HIV/Aids pandemic on agricultural production and access to land rights as special areas requiring concerted effort.

Family heads Generally, title deeds are given in the name of the head of the family or group representative, whereby by such heads or representatives are often men. The problem is that titled land is being transferred almost exclusively to male individuals — as husbands, grandfathers, fathers or sons, without provision for how women’s rights are to be defined and determined. Fathers continue to transfer land to sons only. Adjudication and land tilting is being conducted in favour of the already established patterns, thereby, denying women their share in family land. The positive aspect of the customary norms which ensured women’s rights of access to land and inheritance, as well as security of tenure over family or community land, are not recognised in the title deeds. Despite the law allowing anybody to own land regardless of sex, only five per cent of women in Kenya own land registered in their own names. A large number of women have limited economic resources and also lack decision-making power at the household level to buy land independent of their spouses. Although the Law of Succession Act provides for wives, and all children, including daughters to inherit property and titles, specific socio-cultural factors hinder them from enjoying this right. Often, women have been forced to surrender their titles to male relatives, relinquish their inheritance rights or sell land cheaply as a result of social pressure. There is no law that governs property belonging to a married couple. Most of the time, matrimonial property, including land, is registered in the male spouse’s name. Problems arise upon death,

divorce or separation. On the other hand, land distribution to the landless and re-settlement schemes is often biased towards male heads of households and invariably the registered leaseholders are men. This leaves women particularly disadvantaged in the event of widowhood, divorce or polygamous unions.

Divorce Upon divorce, women lose access to re-settlement land, as they are the ones who get evicted and not the man. Again, women are not sufficiently represented in institutions that deal with land — land boards From left: Mary Getui, National Aids Control Council chair. Centre: Esther Murugi, or tribunals are generally Minister Special Programmes. Right: Alloys Orago, Director Nacc at the Laico dominated by men and women’s representation Agency in Nairobi. They awarded 24 women for leading the fight Against HIV and remains limited. other forms of family discrimination. — Picture: Courtesy UNAids Besides the open discrimination women face, livestock and property tenancy and land is the single most dominant asset they also have to shoulder the extra ownership, are vested in men. for the poor and non-poor households in burden of HIV/Aids. In most cases, widows are rural Kenya. It is important to recognise HIV/Aids in Kenya in not just a major disadvantaged because they do not have that the impact of HIV/Aids on rural public health problem and development any property — the land and property is household is not equal. The poorer challenge but is increasingly creating often grabbed by in-laws under the guise households, those with small land severe negative socio-economic effects. of custom. Such practices, commonly holdings, are much less able to cope with The realisation that Kenya was losing experienced by survivors of Aids, have the effects of HIV/Aids than wealthier 500 people daily to HIV/Aids led the left affected households destitute and ones. HIV/Aids infection ultimately Government to declare HIV/Aids a more vulnerable to further consequences. stretches the resources of a household National Disaster. More than a million In certain communities, a widow could beyond its limits as both material and people have developed Aids and died also lose her husband’s property if she non-material resources are rapidly since 1984, leaving behind close to one does not marry his male relatives, a consumed in caring for the infected. million orphans. practice referred to as “wife inheritance.” As a result the major survival The increased vulnerability of women strategies often include sale of assets. Disadvantaged to HIV/Aids in Kenya is further worsened More evidence is emerging that even by unequal inheritance rights to land. land, the most important agrarian asset, The result is that women’s inferior It is now widely recognised that may not be spared in the quest to cope economic and social status directly all spheres of public policy, including with illness. The effect of HIV/Aids on increases their vulnerability to HIV, and land, have to be rethought in relation individual land rights presents a clear limits their ability to control their sex to the HIV/Aids crisis. Given the manifestation of the impacts of the lives and protect themselves. disproportionate degree to which women epidemic on the land sector. HIV/Aids The land policy recognises poverty, are affected by the spread of the virus, affects the terms and conditions under HIV/Aids and gender as crosscutting both in terms of infection rates and as which individuals and households access, issues. It states that, resources shall primary caregivers to people infected with own, use or decision making positions be channelled in a targeted manner to HIV/Aids, it is critical that such policy and held by women and men over land. address poverty-related and HIV/Aidslegislative interventions be gendered. Discriminatory property and occasioned problems. inheritance practices compromise Youth and women must be Poverty women’s ability to fall back on coping empowered as part of the struggle to options — particularly in Aids-affected eradicate poverty. Youth and women’s The impact of HIV/Aids is felt most rural households. This has severe concerns will be part and parcel of antiacutely at the household level with repercussions for women and economic poverty programmes. the burden weighing most heavily on security of the household. Title deeds The new policy recognises the the poorest households, most of them issued in the name of male heads of impact of HIV/Aids on total economic headed by women, those with the fewest households, leave women without secure productivity, especially on utilisation and resources with which to cushion the tenure in case of divorce or death of a production from land based resources. economic effects. husband. Poverty breeds powerlessness Rural settlements might need to be HIV/Aids, like all communicable — the inability to control one’s life. reorganised with a view of rationalising diseases, is linked to poverty. Often, women are forced to endure an agricultural production systems. Understanding the complex relationship abusive relationship to safeguard their Further, the policy states that the between poverty and HIV/Aids is access to land through their husband, pandemic has adversely impacted on the central to appreciating the impact of rather than seeking a divorce and with property rights of widows and orphans, the pandemic on the rural livelihoods. narrow coping livelihood strategies who are invariably disinherited of their Poverty is a key factor in the spread of available to them. They may compensate family land wherever male household HIV/Aids and at the same time, HIV/Aids by undertaking risky livelihood measures heads succumb to illness. The HIV/ can impoverish people in such a way as such as engaging in unsafe sex. Aids pandemic thus underscores the to intensify the pandemic itself. When husbands die, many women urgent need to reform cultural and To bring the nexus of land and HIV/ find themselves dispossessed of the legal practices that discriminate against Aids into context one has to understand home and land since the rights to certain women and children with respect to the centrality of land to social and assets, including agricultural tools, access and ownership of property. economic safety nets of household — as

Special Edition: Women, Land & Property

Strength of a

Woman

December, 2011

Land and property disinheritance By Ken Ndambu

emories of the death of Ngei Mulwa six years ago is still vivid in the mind of his widow Christine Ngei. “Were it not for harassment and mistreatment by his relatives probably I could not be remembering him that much,” the middle aged woman narrated her ordeal in the hands of her in-laws. Christine then removes her handkerchief from her handbag and wipes her tears as she recalls the sad moments she has undergone since the death of her husband. She then gains courage and gives the testimony of the experience she has lived with after the husband passed on to attentive stakeholders at a land and property disinheritance of widows and orphans by deceased relatives meeting in a remote Kitui village where the vice is high. Christine says after the husband died in 2006, she was left under the care of the brother-in-law who first promised to help bring up his late brother’s siblings but later turned to be a thorn in the flesh. Two years later, the man whom she had hoped would help her suddenly became an enemy and used all means at his disposal to have her ejected from the family but the clan somehow intervened and allowed her to stay put.

Hunger “When he failed to achieve his mission, he devised another method of ensuring that there is no food to feed the family by letting his herd of livestock graze in my farms destroying all the crops,” says Christine asserting that she has lived with the problem up to date. The story of Mithe Mulwa who lost her husband five years ago is the same. She says when she decided to sell one of the pieces of land left behind by the late husband to educate the children, the clan objected fearing that she will get the money and run away from the matrimonial home. Instead, the clan through one of the brothers-in-law decided to dispense the sale on her behalf but to her surprise she never got any penny and the children were forced to leave school for cheap labour. The brother-in-law who helped the clan to sell the land died before the transfer was transacted. Sensing danger of losing the land and the money, the buyer has now turned to the widow for refund of the money she never got.

“I am caught up in a vicious cycle as the same clan is forcing me to repay money I do not have,” narrated Mithe to members of the meeting held at Kyusyani market in Lower Yatta District, Kitui County. Christine and Mithe are some of the widows and orphans in the region who are traumatised by myriad of problems of land property disinheritance and hope the new Constitution will empower them to inherit property of their deceased husbands. A section of widows and victims of land and property disinheritance listen to Thanks to a proceedings at the Kusyani Stakeholders’ meeting. Below: Groots-Kenya Programme programme dubbed Officer Ann Sabatia. — Pictures: Ken Ndambu Women and Property Watchdog (WDG) which has come out strongly property are infringed. Although the new Constitution to sensitise widows, orphans and other Kitui Paralegal Coordinator Josphat recognises the clan, traditional norms vulnerable groups on their rights on land Kasina said most of the cases brought and cultural values which tend to impede and property inheritance. to his office by widows and orphans on justice to vulnerable members of the Operating under the umbrella of Tei land and property disinheritance are clan society should be done away with for fair wa Woo Community Based Organisation related. justice to all. (CBO), the programme being tried in five “Most of the cases arbitrated by the Groots-Kenya Official Nyaguthi sub-locations in lower Yatta District seeks clan do not favour the victims,” observes Mwangi said the Organisation with to equip widows and orphans with the Kasina adding that there is conflict funding from the European Union strives needed knowledge and information on between the customary law and the to educate the widows and orphans at how they can be the sole beneficiaries country’s legal mechanism hence need to grassroots level where the vice is high of their deceased husbands’ land and draw the barrier between the two. The due to high illiteracy level the best way property. customary law has always put widows to avert land and property disinheritance. “Challenges are many including harmful and orphans on the receiving end when it “Property disinheritance in most cultural practices which impede widows comes to land and property inheritance. communities of Kenya has seriously and orphans from getting proper justice “According to Kamba Culture, marginalised the widows and orphans to have control over their late husbands’ a woman is not to speak on issues hence need to contain the vice through property,” says Jennifer Nyumu the concerning land and cannot take the community driven programmes,” said Ms Coordinator of Tei wa Woo CBO. infamous traditional oath known as Mwangi. She says unless all stakeholders ‘kithitu’ meaning that a widow cannot She said the Organizations has are brought on board and seek ways of come up and firmly defend land she projects in 18 regions in the country dealing with the vice, the widows and believes belongs to her late husband,” including Kitui, Kendu Bay, Gatundu, the orphans will continue to suffer as the says Kasina. Nanyuki, Limuru and Busia where the society’s lust for wealth increases. communities have rich cultural practices Ignorance The Kyusyani stakeholders meeting likely to deny widows and orphans their was organised by Groots-Kenya and He however asserts that the right to inheritance. brought together various stakeholders community is not only ignorant of land From the case studies in the project including Lands Officials, Provincial and property inheritance but also lacks areas, the victims lack knowledge on Administration, Teachers, Paralegals and knowledge and information on how to how to administer properties of their Churches whom the victims turn to for administer properties of their deceased departed husbands observing that most help when their rights for inheritance of spouses. of the victims have not legalised their marriages and lack vital documents like birth certificates,” observes Ms Mwangi. Groots-Kenya Programme Officer Ann Sabatia said since 2003 the organisation has initiated four programmes of community response to HIV/Aids and another component of women leadership and governance alliance to give women more say in decision making on national — Jennifer Nyumu issues.

“Challenges are many including harmful cultural practices which impede widows and orphans from getting proper justice.”

Executive Director: Rosemary Okello Editorial Director: Arthur Okwemba Managing Editor: Jane Godia

Strength of a Woman is a publication of African Woman and Child Feature Service E-mail: info@awcfs.org www.awcfs.org

Sub-Editors:

Duncan Mboyah, Joyce Chimbi, Omwa Ombara

Contributors:

Priscilla Nyokabi, Odhiambo Orlale, David Kiarie, Waikwa Maina, Peter Ochola, Karani Kevin, Ajanga Khayesi, Bob Ombati, Barwaqo Aress, Dorothy TA, Juma, Kigondu Ndavanu, Partricia Mbote, John Syengo, Fred Okoth, Ben Oroko, Diana Wanyonyi, John Syengo, Dr. Akinyi Nzioki, Becky Kimani, Frank Ouma, Paul Mwaniki, Kariuki Mwangi, Bob Ombati, Nzinga Muasya,Edna Mokaya, Henry Kahara, Henry Owino, Waikwa Maina.

Design & layout: Noel Lumbama (Noel Creative Media Ltd)

This paper is produced with support from The Open Society Foundation, HIVOS, AND UN-Women