THE PLACE AND POWER OF CUSTOMARY LAW IN (DIS) EMPOWERING

WOMEN IN LAND MATTERS

JEANNE JADHER NANGA AWUOR

JEANNE JADHER C/O CHRISTINE OYIER P.O.BOX 215 MASENO

jeannejadher@students.uonbi.ac.ke

0792979759
THE PLACE AND POWER OF CUSTOMARY LAW IN (DIS) EMPOWERING WOMEN
IN LAND MATTERS
DECLARATION

I declare that this research paper is my original work and has neither been submitted nor
pending submission in any institution or site in the internet. Additionally, references made by
other people in articles have been fully cited and acknowledged.
THE PLACE AND POWER OF CUSTOMARY LAW IN (DIS) EMPOWERING WOMEN IN LAND
MATTERS

ABSTRACT

The question of the place and power of customary law in (dis) empowering women in land
matters is challenged by International laws as they recognize the rights of women as equal to
the rights of men. Under Article 2(5) of the Constitution of Kenya states that general rules of
international law shall form part of the law of Kenya. Apart from international laws, Kenya has
also adapted the Constitution and Acts that protect women from the shackles of customary law
that (dis) empower them in land matters.

Several provisions exist in the constitution that guarantees the rights of women to own lands
and property and participate in matters related to land. These are provisions relating to: Article
48;Access to justice, Article 27(2) ;equality and freedom from discrimination, Article
40(1);protection to right to property, Article 60(1) ;principles of land policy and Article
159(2) ;Judicial authority.

Examples of Acts are the; Marriage Act, Matrimonial Property Act, Law of Succession Act and
the Land Act.

Using the above references, we will be able to determine the place and power of Customary
law in Kenya in terms of (dis) empowering women in land matters. The research paper will
critically examine how customary law has evolved from the pre-colonial period to now, the
post-colonial era where the Constitutions and Acts enacted by the parliament have been
placed.

Key words: Customary law, Women’s rights in land matters, Constitution and Acts of
Parliament.

1. Introduction

Customary law may be defined as consisting of the unwritten norms and practices of small-scale
communities which dates back from pre-colonial times but has undergone transformations due to
colonialism and capitalism.
In Kenya there is a complex link between customary laws, customary practices and women’s rights
especially associated with land matters. They occupy a disadvantaged position under customary law as
Traditional African societies are governed on the basis of patriarchal structures where women’s
individual interests were subsumed under the interests of the group.

In the pre-colonial period when customary laws were followed strictly, the land issues that women went
through were discrimination in the ownership of land. This was throughout their lives including before,
during, and after marriage, but especially at the death of the spouse.

Even though the post-colonial era has not fully eradicated customary law, it has enacted laws; the
constitution, which helps to cover the loopholes that the customary law had; disempowerment of
women in land matters, that has greatly assisted in the establishment of women’s rights associated with
land issues.

The constitution

Kenya’s Post Independence constitution had section 82(4) which entrenched the discrimination of
women in land issues by retaining the enforcement of customary law in personal matters. This provision
was used by courts post-independence to disenfranchise women and insist on the application of
customary law.

A notable case was also the S.M Otieno case, where his widow was barred from burying the deceased,
insisting on the application of the personal law of the deceased husband.

The new 2010 constitution of Kenya also includes rights that protect women from the norms of
customary law by providing articles that allow them to get involved in land issues.

Customary law practiced in Kenya violated the international laws put in place which recognize the rights
of women as equal to those of men. Due to the fact that Kenya ratifying regional and international law,
there law becomes part of Kenyan law thus they were required to eradicate all forms of discrimination
against women, including discrimination of the issues associated with land ownership and disputes. This
is captured in Article 2(5) of the constitution which states that, general rules of international law shall
form part of the law of Kenya.

The constitutional provisions of the land are also based on the National Land Policy, which identifies
women’s land rights as an issue requiring special intervention. The key principles in the constitution are;

 Article 48 of the Constitution provides for the right to access to justice and states, “the state
shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and
shall not impede access to justice”

The implications of Article 48 are that even poor people can now seek court intervention when their
rights are violated. Women who have been denied land or property rights can go to court even when
they have no money to pay for legal or court fees by invoking the provisions of Article 48.
  Article 27(2) of the Constitution states that “equality includes the full and equal enjoyment of all
rights and fundamental freedoms”
 Article 27(3) provides that “women and men have the right to equal treatment including the
right to equal opportunities in political, economic, cultural and social spheres.”

The implication of Article 27 is that one cannot justify the discriminatory treatment of a woman or girl
on the basis of their sex when dealing with issues of property and land.

 Article 40 (1) provides that, “every person has a right, either individually or in association with,
to acquire and own property of any description and in any part of Kenya”.
 Article 40 (2) prohibits parliament from enacting any law that allows the government or any
individual to
(a) …“deprive a person of property of any description or of any interest in, or right over, any
property of any description or
(b) …to limit or in any way restrict the enjoyment of any right under this Article on the basis of
any of the grounds specified or contemplated in Article 27(4).”

The National Land Commission Act of 2012

The National land Commission (NLC) Act aims at giving effect to the constitutional provisions for the
establishment of a National Land Commission to manage land in Kenya.

The Act provides a framework for ensuring that land reform initiatives guarantee the equal right of
women to possess, inherit, access, and transfer their land to persons of their choice. It, however, does
not provide clear mechanisms for addressing historical injustices women of Kenya have faced during the
era of customary law in ownership, access, control and management of land and property including
landless women or displaced.

The redress for this is that;

 The commission should develop guidelines through a participatory and inclusive process,
particularly ensuring the participation of women, on how equal rights for women will be
achieved.
 It should also put in place monitoring processes to ensure compliance with the principles
espoused under the Constitution.

The Land Act No 6 of 2012

Section 12 of the Act states that the National Land Commission, may allocate public land on behalf of
the national and county government land by way of public auction, or through application targeting
groups to improve their disadvantaged position. Women, as a disadvantaged group stand to benefit
from this provision.
Section 5 of the Act -provides for the recognition of customary land rights. It clarifies that there shall be
no discrimination under any land holding tenure; free hold, leasehold, or customary in access or
ownership issues.

Community Land Act, 2016

In section 30 of the Act every member of the community is declared to have equal right to benefit from
community land. Equal benefit of community land under section 30 protects against enforcement of
discriminatory land ownership and practices.

Failure of the government to uphold women’s right in matters pertaining land issues despite
constitution guarantee.

However, at some extent, the government has also failed to uphold women’s rights to property and in
some cases have made the discrimination worse. Kenyan women are denied there right to own land
which is in Article 1(2) of the constitution and Article 11 which is right to housing. Kenya’s land statutes
discriminate against women by;

 Vesting in men’s sole ownership rights to registered land

 Invoking customary law which generally confers exclusive control of land to men
to govern land rights, and which is insulate from appeal and judicial scrutiny

Kenya has over 75 land laws, which create a confusing and anachronistic legal framework that fails to
recognize women’s land rights. In the draft National Land policy, the government acknowledged the
injustices this framework has caused, in particular to women. The bodies that govern land lack adequate
procedural safeguards to protect the right of women because; women are nearly absent from land
bodies, land dispute procedures remain biased against women, and husbands may sell matrimonial land
without their wife’s consent.

This thus shows and proves that as much as Kenya as a country has evolved from customary law and
enacted the constitution and other statutes; Customary law still affects the common law put in place
and the discrimination against women in land issues still continues.

Factors that influenced the changes of customary laws regarding women on land issues.

Apart from the constitution and Acts there are certain factors that also influenced the changes in
customary norms and practices. These factors include;

 Girls being allowed education

 Women’s economic empowerment
 Awareness of their rights
 Local women’s groups and NGO’s for example chamas(women saving’s group) that allow
women to have capital to buy land.
In Karanja vs. Karanja, the court recognized that as a result of women being educated and earning
salaries, it is quite possible for both married and unmarried women to acquire their own land.