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KENYA LAND ALLIANCE

Taking Stock of gains made on Women Land Rights as evisaged in the implementation
of the Constitution of Kenya 2010
Our land mark achievement in the realization of women land rights was the promulgation of a gender sensitive constitution and specifically the entrenchment of principles of
equality between men and women, inclusiveness, non-discrimination and protection of the marginalized (including women).
As we join the rest of the world in celebrating the International Womens Day it is time to reflect on progress made in realization of women rights since the promulgation of the
Constitution, call for change and celebrate acts of courage and determination by men and women who have made their voices heard in the quest to promote the realization of
women land rights
In taking stock of gains on Women Land Rights, Kenya Land Alliance appreciates that each success becomes a foundation upon which the realization of women land rights is
anchored.
Gain made within the Constitution

Status in practice

Principles of Land Policy in Article 60 of the Constitution, eliminates genders


discrimination in relation to land and property and gives everyone including
women the right to inheritance and unbiased access to land.

A set of land laws have been enacted: the Land Act, Land Registration Act, and National Land Commission Act, all of 2012.
Land Act 2012, prescribes for equitable access to land; security of land rights; elimination of gender discrimination in law, customs
and practices related to land and property in land.

Article 45(3), provides that parties to a marriage are entitled to equal rights
at the time of marriage, during the marriage and at the dissolution of the
marriage.

Land Registration Act 2012 sets out to mainly reorganize and integrate the joint registration of title deeds.
Marriage Act 2014 requires the registration of all marriages amongst other provisions. However, it does allow for polygamy and thus
is expected to have major implications for womens bargaining powers in polygamous relationships

Article 68 (c)(iii) provides that Parliament shall enact legislation for the
protection of matrimonial property with special interest on the matrimonial
home during and upon the termination of the marriage

The Matrimonial Property Act, 2013, explicitly states that married women have the same property rights as married men.
Matrimonial Property Act 2013 recognizes non-monetary contributions such as, farm work, child care, domestic work,
companionship and management of the matrimonial home and family business and property.
The Land Registration Act includes strong protections for the land rights of spouses by allowing for joint tenancy for married
couple, and requiring spousal consent for the disposition of any land or dwelling.
The proposed amendments to the Land (Amendments) Bill, 2015 do not give full effect to constitutional provisions seeking to
protect matrimonial property and spouses in actual occupation of land. It seeks to remove spousal rights over matrimonial
property and customary trusts as overriding interests; introduces tenancy in common (ownership in divided shares), in the place
of joint tenancy(ownership in undivided shares) and seeks to remove the recognition of the unregistered spouses rights who has
contributed through the labor to the productivity of the land.

Article 159 (2) (c) provides that alternative forms of dispute resolution
including reconciliation, mediation, arbitration and traditional dispute
mechanisms shall be promoted

Council of elders eg Luo Council of elders , Kalenjin elders and Njuri Ncheke are applying article 159 in resolving some of the
communitys most difficult issues especially disputes related to land , through mediation.
The Judiciary and National Land Commission are yet to adopt frameworks to facilitate the uptake of ADR.

On Security of tenure and settlement of landless citizens and those who lost
their land due to insecurity (including women), Article 40 provides that every
person has the right to individually or in association with others to acquire and
own property (a) of any description: and (b) in any part of Kenya.

National Land Commission Act 2012, established a commission to manage public land on behalf of the national and county
governments and probe and redress past, present and historical land injustices.
Legislative reforms to further secure women land rights including Community Land and Evictions and Resettlement Bills are under
development and debate
Community Land Bill 2013 aims to limit the exploitation of community natural and land-based resources by establishing institutions
to protect the rights of individuals and the community. It also seeks to ensure that the communities do benefit from the resources
and are protected legally from evictions.
The ongoing titling process addresses discrimination of women in respect to land rights.
Over 2 million titles have already been given although women have not benefited as well as men.

On the general principles for the electoral system and process, article 81(b)
provides that a one third requirement for either gender in elective bodies giving
women a Kenya at least 1/3 minimum in elective public bodies.

The Supreme Court of Kenya held that this particular right for women is progressive in nature.
This is a setback for women both economically, socially and politically because by the government going slow in progressively
realizing this right, womens participation in active day to day decision making including those relating to Land , at the top
echelons of power is affected.

Although there has been significant progress towards protection of land rights, the same laws that have enabled women to be legally and socially empowered are now facing great
challenges.

Slow implementation of the available laws


Conflict between the National Land Commission and the Ministry of Land
Limited political will
Cultural impediments and other constraints limiting employment options and participation in decision making
Insufficient access to financial services and awareness on available land laws

Moving forward, there is need for political goodwill, gender sensitivity and commitment to upholding the constitution.