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Women fault Succession Act

By - | November 1st 2012
By - | November 1st 2012

By Harold Ayodo

A case filed by the Federation of Women Lawyers Fida-Kenya may open a new chapter on the right of widows to property.

The women lawyers are seeking orders to declare as unconstitutional sections of the Law of Succession Act barring widows from inheriting matrimonial property.

Fida Kenya, which has sued the Attorney General want Sections 32, 33, 35 (1), 35 (5) and 35 (6) of the Law of Succession Act declared unconstitutional.

They argue that the sections are in contravention of articles in the Constitution that provide for property rights regardless of gender.

Fida-Kenya lawyer, Jacqueline Ingutiah moved to court recently after Norah Auma Asola was evicted from her matrimonial home by in-laws after the death of her husband.

Norah who was married in 2004 was kicked out with her daughter and step-children immediately after her husband died on November 8, 2010.

Her late husband had two other wives who had passed away and left children before Norah was married. 

According to an affidavit sworn by Norah, her in-laws accused her for not delivering a male child and that she was not entitled to inherit property.

She went to report her eviction at Sondu-Miriu Police Station and the chief of Nyalunya Location in Nyakach, but got no assistance.

“My in-laws packed my clothes in torn nylon sacks and took them to the offices of the chief, where I collected them,” Norah says in her affidavit.

Norah, who today lives in Kawangware, Nairobi, sought assistance from Fida who moved to court seeking her property rights under the Constitution.

She is struggling to make ends meet by sharing a single room with an elderly woman.

According to Fida-Kenya Executive Director Grace Maingi–Kimani, the organisation handles up to 40 similar cases of widow evictions daily.

Grace says the organisation that offers free legal aid to mostly women handled a record 763 cases involving property rights between 2009 and 2011 alone.

“Approximately 37 per cent of the cases involved land ownership disputes, matrimonial property (12 per cent) and inheritance cases (51 per cent),” Grace says.

According to her, majority of women are evicted from their homes for being women, meaning they traditionally lack property rights.

Others are failing to give birth or only delivering daughters and failure to participate in primitive traditions like widow cleansing or widow inheritance.

Strange rites

Under widow cleansing, a widow is coerced into having unprotected sex with a male relative of her late husband before living in the homestead.

The women lawyers argue that prevalence of customary law in succession matters despite the existence of the Law of Succession Act and Constitution is hurting widows.

“Many widows have been forced out of their cosy matrimonial homes into the slums following beliefs that women lack property rights,” Ingutia says.

Ingutia says Sections 32 and 33 of the Law of Succession Act discriminate against certain communities by allowing customary and tribal laws on distribution of estates.

Fida-Kenya argues in the matter that the Law of Succession Act fails to provide adequate protection for widows and full, and equal rights to property.

Grace quotes a barrage of reports and studies that show glaring disparities between property rights of widows and widowers.

For instance, the latest Kenya Health and Demographic Survey that states that four per cent of women in the country are widows and widowers are one per cent.

However, the Judiciary has made strides in restoring widows evicted from matrimonial homes but unfortunately, majority of rural women have no access to courts.

In some occasions, not even the provincial administration comes to the aid of the disadvantaged widows evicted following death of their husbands.

According to the petition filed by Fida-Kenya, the Constitution prohibits discrimination on grounds of sex, marital status and bestows upon women equality of gender.

Ingutia also refers to articles of the supreme law that the State has the fundamental duty to observe, protect, promote, fulfil and respect rights of vulnerable groups.

The writer is an advocate of the High Court of Kenya.

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