Saturday, May 06, 2006

underground thunder

As I try to learn more about the country I call home, I have in the last couple of months come across movers who have remained "hidden" except to the circles they travel in. By this I mean that there are really some brilliant leaders, researchers and scholars out there who are making a name for Kenya even as corruption tries to nibble into its worth. One such researcher is
  • Patricia Kameri-Mbote

  • I recently had the priviledge of attending a talk she presented on Law, Gender and Land: Kenya. I learned alot about the structure of Kenya's laws and if I dare say so, she has a number of recommendations (see below) that suggest a solution to the inequality of land ownership for women. There are more like her the deeper I dig and from her I see a brilliance that will bring Kenya to great prosperity.

    Law Gender and Land: Kenya
    • Resilient Laws that make land ownership hard for women
    • Environmental degradation meaning that there is less land for cultivation
    • Only 1/3 of Kenya’s land is arable – competition to own land

    What has the Kenyan government done so far?
    • Attempts to review constitution to allow women access to title deeds
    • Land policy reform

    o Masculinity currently determines who gets power in terms of land rights
    o Access to land is possible but this is determined by the woman’s relationship to the male
    o The law is limited in ways of mediation to solve land dispute problems
    o Women have access to land but the decisions are still dependent on men
    - These decisions include land and land resources e.g. goats, cattle etc.
    o The women continue to work on the land however they don’t own the actual deed
    o Control: some women have this but they are the exception (control refers to decision making)
    o Ownership: statutory land laws identify the title holder as the owner, therefore the structure is in place to allow land ownership for the women however few women are aware f this
    o There is some land that is without title and this land ownership is then given to the person in control

    Land is a sign of wealth and an identity despite the land being unproductive and lying idle, hence a reluctance to leave rural areas to go to more productive areas

    Other factors of influence include: Age – elders
    Marital status

    Law creates entitlements to land control

    Kenya’s legal framework:
    Centralism: state machinery making all laws legal
    Pluralism: this is Kenya’s current system
    Tiered interactive normative system within which there are others legal systems in Kenya’s case these include – statutory, Muslim law, customary law, religious law.
    Semi-autonomous Law: family law
    International Law: CEDAW to protect women, however the law still has to be made national by parliament and this can take years
    Domestic Law: Constitutional law
    - Kenya currently has two constitutions, as there is an ongoing review of the old colonial constitution. The current constitution is considered and operative constitution and in it there is an entitlements to fundamental rights and protection from discrimination e.g. sex

    Other laws e.g. customary law makes it harder to implement this aspect of the constitution: in many ethnic groups one owns what they bring with them in marriage
    The spouse is required to show contribution to land development to show interest in land. This often goes unrecorded in the case where the labor is not paid because the women’s work on the farm is taken as her duty.

    • The pluralistic laws do not take the single women into considerations and instead consider the woman in transition. Through her marriage, she will gain access to land.
    • Children need protection from losing land they are entitled to. The effects of HIV/AIDS has meant that children are left orphaned and their parent’s land occupied by relatives. There is also less focus on land for food production when the attention is on caring for the sick. This keeps the poor further marginalized.

    Land tenure typologies:
    Individual/ private owned – protected by statutory law and provided under title deeds
    Government owned – given out of those in the government’s favor, women often left out of these deals because they are not as well connected
    Community owned – group ranches often among pastoralist communities, began in the 50’s in order to consolidate land
    - An example is the Rendille where the women have started conservancies with the permission of the chiefs. Here they build wells for easy water access.

    Upon death: Law of Succession takes into effect except among the Muslim community (1981).
    All dependents receive land with the woman being considered last
    Upon her death she may not pass the land on to anyone
    Should she remarry she forfeits all rights to the land – this is not the case when a widower remarries
    25% of land belongs to the spouse through the Law of Succession and the rest is divided among offspring

    Most women get around this by giving land to unmarried daughters as security.

    1. According to the speaker, the law is not the problem as land access dependant on relationship to male holder of the title deed
    2. There are too many laws and law institutions with overlapping areas of focus
    3. The law does not match the situation on the ground
    4. The laws are still applied in gendered contexts e.g. women are still considered as producer and not owners

    Changing Paradigms: Suggestions
    • Rather than create new laws we should work through the ones we have now
    • Educate people on their rights and the fact that they can take the cases to court
    • Creating test cases by using the courts
    • Tying land rights to land use: giving the title to whoever works on the land and uses it most
    • Taxing idle land
    • Social Engineering: education women
    • Community ownership through women owning land as part of women’s groups: increase the power through numbers

    1. Law has limitations, we should work around these
    2. There is too much focus on the married woman, what of the single woman, unmarried, widowed, separated or divorced?