"Ways to improve the legal status of Kenyan women"

Kenya has created new laws to give women protection and equality, but Brian Dan Migowe, 23, a Commonwealth Correspondent from Kenya, says gaps in legislation and lack of enforcement mean women still face hurdles.

In the recent years, Kenya has put into place important legal protections for women. These include  provisions of the Bill of Rights in Chapter 4 of the 2010 Constitution stipulating equality and freedom from discrimination, equality in access to political rights, protection of the right to property, and access to justice.

In addition to the said provisions, an indication by the constitution in article 2 that is part of the law of Kenya provides the Convention on the Elimination of Discrimination Against women. Domestic laws also provide additional protections: the National Gender and Equality Commission Act, Prohibition of Female Genital Mutilation Act 2, Age of Majority Act, the Law of Succession, the Counter Trafficking in Persons Act and the Marriage Act.

The Marriage Act 2014 for instance bridges the gap previously created by the four family laws, in which there were cases of men marrying under the Christian and/or civil law – which respect monogamous unions – and then turning around to change them unilaterally to become polygamous ones later. It also clearly provides for spousal equal rights in matrimonial property, and where a man embraces polygamous relationship, the right to the property of the first wife will be protected. It gives legal recognition to polygamous marriages but places safeguards to protect the first wife. In accordance to article 40 of the Constitution 2010, property acquired at the time of the marriage, during the marriage and at the dissolution of the marriage will be shared on a 50/50 basis. This is a great milestone towards women’s property rights in Kenya. A Kenyan wife now more than ever before – as the law clearly spells out – has the legal protection in holy matrimony.

Unfortunately glaring gaps still existing within these laws. For instance, the Sexual Offences Act criminalizes false accusations of rape, which deters reporting by victims. The Act explicitly excludes married women and men from the general protection against rape if the perpetrator is their spouse.

Right to inheritance – the key legislation in this area being the Law of Succession Act – confers right to a female person, whether married or unmarried, to make a will in the same way a male person can. The act provides extensive measures to ensure rights of widows and children in monogamous as well as polygamous situations. However, a number of provisions of the Act leave doubt on its effectiveness in curbing persistent discriminatory process. Section 32 states that the provisions of the Act on shall not apply to agricultural land, crops or livestock, situated in such areas as the Attorney general may specify. Further it states that the property in question shall be governed by the law or the deceased’s tribe, religion or sect as the case may be. These state that property set out in section 32 continues to be regulated by various laws of succession which govern the Marriage Act.

This has far reaching consequences for women, particularly those governed by customary law and communities where land and livestock are the most important forms of property. Under customary law, some communities granted wives and daughters the right of maintenance only. This limited interest was however terminated on return of a widow to her family or on her marriage. The exception in section 32  therefore has the effect of perpetuating the discriminatory traditional practices.

However the most prevalent issue in Kenya affecting women’s rights is the lack of enforcement of the already existing legal protections. Despite the Children’s Act, 26 per cent of children are still involved in child labour and despite the Trafficking Act, human trafficking continues to increase. Of more particular concern is the status of women living in the slums and informal settlements of the three major cities in the country. These women face high risks of gender-based violence daily due to minimal policing and convictions, which also present inadequate access to the already limited sanitation facilities available.

photo credit: Woody H1 via photopin cc
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About me: I am a law student with a passion for writing and youth advocacy. I observe people, nature, the environment and daily life and am enthusiastic about sharing them on pen and paper.

I am an open-minded individual who acknowledges the diversity of the world’s population. Sometimes I am awed by how life plays out, but in writing I make the story as I want it. My hobbies are swimming and indoor games.

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Opinions expressed in this article are those of the author and do not necessarily represent the views of the Commonwealth Youth Programme. Articles are published in a spirit of dialogue, respect and understanding. If you disagree, why not submit a response?

To learn more about becoming a Commonwealth Correspondent please visit: http://www.yourcommonwealth.org/submit-articles/commonwealthcorrespondents/

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