Land is the most important asset for people in Kenya because majority of people depend in agriculture for their livelihood. Land has been the source of identity, cultural heritage and an important source of security against poverty in Kenya. However, land ownership in Kenya is patriarchal, in that men who are considered as the head of the family have absolute ownership and control over the land while women have limited rights to ownership. Women have only access right but lack ownership rights. Ownership of land, housing and other property provides direct and indirect benefits including a secure place to live, the means to the livelihood and a measure of wealth. Land has been recognized as the primary source of wealth, social status, and power providing the basis for shelter, food and economic activities.
OWNERSHIP OF LAND BY WOMEN IN KENYA
Many women in Kenya’s farming communities are denied their rights to land ownership. Daughters may not inherit an equal share of their father’s estate or nothing at all. On the other hand, women risks been chased away of their late husband’s land and if they refuse, they risk physical violence and being chased off the land. In most Kenyan customary law, the right of a woman to own property is curtailed. As a practice, the head of the family has been the man who holds land and other property on behalf of the family members. Upon divorce or separation, it has been the wife who leaves the matrimonial home leaving only with her self-acquired property including the children and landed property remains with the husband. The children risk lack of support and maintenance from their father and many end up dropping out of school. For both widows and daughters, this means they lose their livelihood and are denied their rights and outcomes of this perpetuate further hardships to women especially those in rural areas and their children.
Research has shown that Kenyan women account for majority of agricultural labour (70%) but they hold only 1% of registered land titles. This situation is attributed to conduct of land titling programs and attitude held by customary laws. The previous land tenure practices were been consciously extended, integrated and modified by men to the detriment of women. Women dominate rural areas because they are often left behind while their husbands move to the urban centers in search of better paying job. This shows that the transformation of the economy depends very much on the quality of women’s contribution. Similarly, the quality of the entire labour force is also completely dependent on women performance as mothers, the custodians of family health and welfare especially those of children. Since land is the source of livelihood to many Kenyans, this means that unequal rights to land put women at a disadvantaged, perpetuate poverty and entrench gender inequality. Women property rights are critical for achieving poverty reduction and gender equality, yet efforts to secure them are often compromised by many challenges. Women rights to own, inherit, and control property on equal basis with men has been violated since the time memorial. This contributes to poverty, homelessness, dispossession, diseases including HIV/AIDS, and violence.
While Kenyan women face numerous obstacles during marriage, the burden becomes insurmountable if they divorce or separate. Many divorced widowed women have found themselves stripped off all property at the termination of the marriage simply because it is assumed that the man has unquestionable prerogative to ownership. Under the law, when a man dies, the wife should inherit his property as his next of kin and hold such property in trust of the children. This has not been the practice since the male in-laws usually appropriate all tangible property leaving the woman helpless.
However, The National Land Policy (2009) has acknowledged the injustices that women has suffered and that is why there was a repeal of previous laws that governed land rights in Kenya since independence. The National Land Policy requires that the government should repeal all laws that discriminate on women including customary laws. There is also need to make provisions for joint spousal registration and documentation of land rights. The policy recommends that there should be consent of spouses in disposing family land. It also recommends that inheritance rights of unmarried daughters should be secured through legislation. It further obligates the government to come up with laws that will recognize indirect contribution to the acquisition of the matrimonial property by women. There is also need to review Law of Succession Act with specific objectives of coming up with laws that will govern disposal of matrimonial property. It goes ahead to recommend that the government should come up with the laws that will curb selling and mortgaging of family land without the involvement of spouses.
The policy can be said to have attained its mandate because through it, the previous laws which were discriminatory against women were repealed and the new laws that came into force since 2011 included all the recommendations that were laid down by the policy. These laws are:
• Land Act 2012
• Land Registration Act, 2012
• Matrimonial Property Act, 2014
These laws have created statutory rights to land for spouses. These rights include:
Spouse deemed ownership though not on title- where land is held in the name of one spouse, but the other spouse has contributed to the productivity, upkeep or improvement of the land, the contributing spouse shall be deemed to have acquired an ownership interest in the land. This ownership shall be recognized as if they were registered.
Sale or charge void, if spousal consent not obtained- disposition including sale, transfer, lease and charges of any land or a dwelling house held in the name of one spouse shall require the consent of the other spouse. A lender or purchaser is now under a duty to inquire whether the consent of the other spouse has been obtained. If the spouse undertaking disposition misleads the lender or the purchaser, the sale, transfer or charge shall be void, at the option of the spouse who did not consent to the transaction.
Previously, the status of marital property was covered by Married Women’s Property Act (1882) in absence of a specific Kenyan statute. The Act was extended to parties married under customary law. The Act followed the common law doctrine of separate property-each spouse retains as personal property whatever he or she owned before the marriage as well as what he or she acquired during the marriage.
The Married Women property Act has been repealed most recently by the Matrimonial Property Act (2014) meaning that the 1882 Act is no longer applicable to matrimonial causes in Kenya. The new Act has embraced direct and indirect contribution to the acquisition of the matrimonial property which was not clearly highlighted in the 1882 Act. However, a party who is claiming entitlement to a share in the matrimonial property has to prove that they put in some form of direct, indirect, material or emotional contribution.
IMPACT ON WOMEN DENIAL TO LAND RIGHTS AND IMPACT ON THEIR CHILDREN
Lack of land rights by women indicates that they are victims of discrimination since land is considered the most fundamental resource to women’s living conditions, economic empowerment and to some extent, their struggle of equity and equality within a patriarchal society. Lack of property rights upon divorce or separation and the fact that women become the sole caretakers of their children often derives them into poverty. As a result, together with their children face serious physical and psychological health harms including increased risk of contracting HIV/AIDS.
Land title deeds remain the major form of collateral security required when requesting for credit this has negative impact on women socio-economic status. Denial of women to own land is denial of their economic strength and this inhibits principles that pertain to a child as provided by law since women are the sole custodians of their children. There is also a strong association between poverty and child maltreatment. Rates of child abandonment are higher in communities with high levels of unemployment and concentrated poverty. The impact of child maltreatment is a profound and enormous and a single incident affects the victim not only today, but quiet often tomorrow and beyond as well.
It has become clear that the improvements in household welfare are typically more pronounced when women hold the rights. However, women are constrained in their ability to own, control and access land as compared to men. This gender disparity leaves women and the households they manage economically and socially vulnerable. It not only undermines women’s ability to address their and their children’s food, health and educational needs, it also undermines agricultural productivity.
IMPACT OF SECURE RIGHTS TO LAND BY WOMEN
Secure rights to land can confer economic benefits because land serves as a source of income through agricultural production and sale, and can serve as collateral for credit. Ownership of land largely defines access to opportunity, housing and food and nutrition security, as well as the ability to realize empowerment, social status within the community and political power.
Who benefits depends on who within the household holds those rights. When men alone enjoy those rights, women and their children may not be able to reap the benefits fully. Women tend to spend the income they control on household needs, whereas men spend on personal goods.
Women ownership to land enhances intra-household bargaining and decision making power and this allow them to influence household income and expenditures in a manner that reduces household poverty and benefits their children. And when women have land rights, children have higher levels of educational attainment. Improved status of women also renders them less vulnerable to domestic violence.
Women’s increased economic empowerment through secure land rights can lead to increased household food production and food security and women will be less vulnerable to engaging in transactional sex as a mean of survival. This can also serve as an income source to cover costs associated with the HIV/AIDS, improving women’s ability to cope with the economic and social impact of the disease.
Failure to enforce ownership of land to women in agricultural communities, where farming is the main source of income denies women economic opportunities and are pushed to extreme poverty since farming is the traditional and predominant source of income for many women. This affects the children because in most community, it is the woman who bears the burden of raising the children. This subject the said children to extreme poverty and some risk running away from their homes in search of peace, satisfaction, food and other basic needs and this leads them to the street. Thus, with secure rights to land, women and girls can improve food security, education, health and economic development for themselves and their families.