Owing to widespread injustices in land matters, the 2010 Constitution sought to remedy this state of affairs by first recognising the uniqueness of land and including provisions on it. Chapter Five is thus dedicated to land and environment, an indication of their importance in the country’s development and heritage.
Article 260 provides for ownership of land as a form of property as a right of every person in Kenya, regardless of their gender. This right to own property is guaranteed in Article 40(1).
Also relevant are the national values and principles of governance, which include non-discrimination and protection of the marginalised. The Constitution also stipulates that State organs and public officers have the duty to address the needs of vulnerable groups within society, including women, older citizens, persons with disabilities and children among others.
In addition, Article 60 of the Constitution stipulates that land should be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The Constitution envisions the elimination of the subjugation of certain groups, such as women and girls, when it comes to landholding and the need to ensure that land is a resource that is accessible to all.
It seeks to protect and promote the realisation of the legitimate expectations of such groups to hold land in any part of the country. The Land Act, 2012, the main legislation on land management, imports these principles.
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The Constitution calls for the elimination of gender discrimination in law, customs and practices related to land. It seeks to secure land rights for men and women.
This is because secure land rights are important in helping to eliminate gender discrimination, social exclusion of vulnerable groups, and social and economic inequalities linked to inequitable land rights. But despite the progressive jurisprudence from courts and the constitutional Bill of Rights guaranteeing the right to own property and equal protection for women and girls, little if anything, has changed.
Women's rights are still subjugated by traditional paternalistic tendencies when it comes to land inheritance or adjudication. Men still view women as incapable of owning land; they are expected to only manage the land on behalf of the men in their lives be it fathers, brothers or even sons.
Despite the women being described as the “heads of houses”, this is only considered so for purposes of “the house as a physical structure shelter that symbolically embodies a matrifocal unit of consumption and resource sharing, which is the smallest unit of society”. When it comes to land and any other property, such units are subordinated to larger, patriarchal units.
Male inheritance remains the norm despite national legislation enforcing equitable inheritance of property. This practice has seen some families end up in court to seek protection of the women, notably even before the promulgation of the current Constitution. Women are not even consulted when land is being sold.
Strengthening of County Land Boards to ensure representation and transparency in all land transactions will offer some relief. County Land Boards should enact legislation that requires that all family members be adequately consulted before any land sale transaction is approved. This would be similar to spousal consent, only that it should also involve children, especially where there are only daughters, to avoid their exclusion and disinheritance.
The effective implementation of land reforms in the post-2010 Constitution will largely depend on strict observance and operationalisation of the national principles and values on participation, equity, social justice, equality and non-discrimination of the marginalised in landholding and administration. Although the law has recognised women land rights, there is need to ensure such rights are also socially recognised.
- The writer is an advocate of the High Court