NAVIGATING THE SPECTRUM OF SOCIAL JUSTICE: EXPLORING HOW SOCIAL NORMS SHAPE PROPERTY RIGHTS
In Kenya, communities have diverse history of advancing cultural and traditional practices relating to land and property rights and the way they impact their progeny. This covers the acquisition of property, use or control and succession. The practices that are intended to ensure family wellbeing, however, progress male microaggression against women ownership of land stemming from implicit and actual biases being a blend of tradition and some colonial practices. The harmful practices have for long impeded women land tenure coupled up with institution barriers some of which unacknowledged despite the Constitution of Kenya 2010 and various national statutes, ostensibly safeguarding women’s rights to land and property. It is on this background that the proponents of equitable enjoyment of land and property rights champion societal evolution reflecting on oppositional notions of social oppression and social equity to formulate a commitment of realizing and sustaining supportive environment operating on a stance of equitable land and property rights.
KELIN in advocating for full enjoyment of health rights, targets all justice stakeholders in the community encompassing right holders and duty bearers including traditional justice actors to promote and protect women’s land and property rights and ultimately their wellbeing.
To achieve this, KELIN conducts research to understand the systemic sources of injustice and what constitutes ideal justice based on the lived realities of the women to promote evidence informed advocacy. A survey on The Impact of Luo Culture to Women’s Land Rights conducted by KELIN found that customary norms often relegate women to secondary positions regarding land ownership and inheritance, tethering their rights to male relatives such as fathers, brothers, or husbands. Consequently, women frequently encounter barriers when attempting to assert their rights to land, facing resistance and hostility from male counterparts within their communities. This inequality extends to matrimonial land and inheritance from paternal homes, where women are frequently displaced or denied rightful ownership. Equally, research on dowry practices in Kenya indicated systemic failures where people consider the token of appreciation as purchase price for the women. The research revealed that dowry positively establishes a woman’s position within the family she has joined, and it also gives her certain authority over family issues [1]. Dowry is also considered a show of commitment and a form of appreciation by the groom’s family. Dowry is perceived as a price for acquiring a wife, as such the women’s rights are relegated to secondary rights. For women, absence of land and property ownership marks the start of economic uncertainty and vulnerability noting most women solely rely on their land for their livelihood and their children. Lack of dowry payment also contributes to the women’s plight since her union to the man is considered to lack legitimacy thus upon the man’s demise, it may seem implausible for a woman to perceive herself as entitled to a share of the man’s property, this has a potential impact on the entire community.
Moreover, gender-based violence remains pervasive, further marginalizing women and hindering their ability to participate in decision-making processes related to land and property ownership. In instances where women do generate income from farming activities, they may be compelled to surrender control over the proceeds to male counterparts, devoid of autonomy in spending.
Since 2010, KELIN has been dedicated to addressing the plight of widows, orphans, and vulnerable children who have been unjustly denied their lawful rights to access and inherit land and property. Despite legal provisions such as Article 27, 40, 45, and 60 of the CoK, which mandates the elimination of gender discrimination in laws and practices, many women still face impediments when claiming their land rights. In cases of widows, they are deemed to only have user rights until their sons reach adulthood. As such, KELIN guided by Article 159(2)(c) of the Constitution of Kenya 2010, innovatively collaborates with traditional cultural institutions such as Councils of Elders to redress injustices through the utilization of traditional justice systems in Kenya.
For the many marginalized women, access to justice through alternative mechanisms has been a lifeline. Through interventions by KELIN alongside AJS practitioners, women have found avenues to challenge discriminatory practices and assert their rights within their communities seeing the resolution of 1463 cases of women’s right to land or property violation. However, challenges persist noting the challenge of enforcing some of the AJS agreements and there remains a collective hope that the wheels of justice will continue to turn in favor of gender equality and women’s empowerment.
The journey towards upholding women’s land and property rights in Kenya requires a multifaceted approach that addresses legal reforms, community empowerment, and the promotion of gender-sensitive policies as well as bolstering the skills of community paralegals, documenting infringements, and facilitating connections between women and nearby Alternative Justice System (AJS) practitioners.
KELIN serves as a catalyst for change and persists in its dedication to empowering women to assert their rights and forge new paths despite entrenched discrimination. AJS stands as a vital instrument for resolving disputes, underlining KELIN’s commitment to reclaiming rights and rebuilding lives.
[1] Dhako en dhiang’ – a woman’s position is equated to the cows given for her dowry
