This human rights report and companion legislation was originally authored by Dorrella Gallaway, Dan Gatti, Jessica Hinkie, and Jennifer Schingle, Spring 2008 student advocates with the International Women's Human Rights Clinic at Georgetown Law. It was supervised and edited by Clinic Director, Professor Susan Deller Ross; Clinic alumna, Ginger T. Faulk, also edited the report, as did Dan Gatti. The report was produced in conjunction with the Federation of Women Lawyers: Kenya (FIDA-KENYA).
FIDA requested the assistance of Georgetown students to investigate whether current Kenyan law on intestate succession effectively protects the equal rights of women and conforms to international law. After extensive background research on the law of intestacy in Kenya as well as the law of intestacy in several other legal systems and relevant international legal conventions, students from Georgetown traveled to Kenya between March 29 and April 8, 2008, to hear about the lives of some of the people who have been affected by the inheritance system in Kenya, as well as the people who administer the law and advocate for legal reforms in Kenya. More than 80 interviews in total were conducted by the Clinic and FIDA-Kenya, covering a wide range of the population of Kenya, including rural farmers, lawyers, non-governmental organizations [NGOs], judges, religious leaders, government officials, Parliamentarians, academics, ministers, and many others, both in the city of Nairobi and in the smaller towns of Meru and Nanyuki, Kenya.
A central finding from all these interviews is that the women of Kenya are some of the most responsible, hard-working, intelligent, creative and productive members of Kenyan society. The women of Kenya do the majority of the agricultural labor. They take primary responsibility for the family, for the maintenance of the family home, and for the raising and educating of children. Women in Kenya play an important and an increasingly direct role in the Kenyan economy. They are starting businesses, investing in property, starting schools, investing in their education and that of their children, working to improve the environment, and working on public health projects. In the words of journalist Mildred Ngesa, in Kenya, "Women carry the whole world."
Unfortunately, another central finding in this report is that women in Kenya continue to face enormous obstacles to achieving equality. Women are the majority of Kenya's population; they perform 70% of the agricultural labor, but they own less than 1% of the land, and control very little of the income produced by their labor. According to Lily Murei of the Kenya Land Alliance, "[T]he majority of the women are the ones who actually provide either in terms of labour, either in terms of livestock herding; it's the women that provide the labour, but to a larger extent, they don't benefit from anything accruing from land." The general counsel of a major bank in East Africa added "Women do all the backbreaking work but it is the men who get the funds from the cash crops."
Kenya's Law of Succession Act has many provisions that recognize and embrace the idea that men and women should have the equal right to inherit property. The terms of the Act permit women to inherit. The Act treats male and female children the same in terms of their right to inherit property from their parents. Widows are permitted to inherit property and are given priority over brothers or other male relatives to become the administrators of the estates of their husbands. Despite these provisions, however, widespread discrimination persists. As the government of Kenya stated in its 2007 responses to the CEDAW Committee's questions, "As much as the Kenya Law of Succession Act is meant to harmonize inheritance laws, in practice the transmission of land rights is largely done within customary laws which discriminate against women and children."
This report will document some of the ways that the Law of Succession Act has failed to live up to the promise of a legal system that ensures equality for all citizens. This report will also present solutions. With only a few amendments, the Law of Succession Act can be made into a statute that is effective and fair to all Kenyan citizens.
Part II of this report will describe some of the personal, social and economic costs of continued discrimination against women in matters of inheritance. Part III will document the ways that deficiencies in the Law of Succession Act allow and perpetuate this discrimination by failing to provide adequate protection for widows from harmful cultural practices (Part III.A); failing to inform people of their rights and provide access to legal process in order for women to access their rights under the Act (Part III.B); and excluding Muslims and persons in certain agricultural regions from the Act's protections (Part III.C). Part IV documents ways in which the Law of Succession Act fails to ensure equal rights for all citizens even where it does apply. Specifically, the Act fails to grant widows full ownership rights of property inherited from their husbands, provides inadequate protection for polygynous families, and excludes many children born out of wedlock. Part V concludes that women and children in Kenya suffer as a result of discriminatory inheritance laws, customs and practices and that Kenya has an obligation to reform its laws to ensure women's protection and contribute to a safer and more productive future for the country.
