Kenya: Property, Inheritance & Succession Rights by LWOB

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									KENYA   Property, Inheritance &
        Succession Rights
                                          TABLE OF CONTENTS

                                                                                                                           PAGE
SECTION I      EXECUTIVE SUMMARY                                                                                                   1
SECTION II RELEVANT INTERNATIONAL & REGIONAL LAW                                                                                   3
     A.       APPLICABLE TREATIES AND DECLARATIONS .......................................... 4
              1.        United Nations Instruments ....................................................................... 4
              2.        Regional Instruments ................................................................................. 5
     B.       GENERAL RIGHTS PROTECTED AT THE INTERNATIONAL AND
              REGIONAL LEVEL ............................................................................................. 6
     C.       SPECIFIC RIGHTS PROTECTED AT THE INTERNATIONAL AND
              REGIONAL LEVEL ............................................................................................. 8
              1.        Property Rights .......................................................................................... 8
              2.        Housing / Shelter Rights .......................................................................... 10
              3.        Inheritance Rights .................................................................................... 13
              4.        The Right to Health .................................................................................. 16
              5.        Rights Relating to the Family Unit .......................................................... 18
              6.        The Right to Information and Education ................................................. 19
              7.        The Right to Protection from Exploitation and Violence ........................ 19
     D.       IMPLEMENTATION AND ENFORCEMENT MECHANISMS ...................... 20
              1.        General Principles .................................................................................... 20
              2.        International Institutions .......................................................................... 21
              3.        Regional Courts and Commissions .......................................................... 22
SECTION III        KENYA – BASIC FACTS, LAW, ECONOMY & CULTURE                                                                   25
     A.       INTRODUCTION TO KENYA .......................................................................... 25
              1.        Geography ................................................................................................ 25
              2.        The People ............................................................................................... 26
              3.        The History .............................................................................................. 28
              4.        Kenyan Economic Profile ........................................................................ 31
              5.        The Industries of Kenya ........................................................................... 32
              6.        Literacy Rate ............................................................................................ 34
     B.       PUBLIC HEALTH .............................................................................................. 36
     C.       HIV/AIDS EPIDEMIC ........................................................................................ 38
              1.        The History of Kenya’s Response to the Epidemic ................................. 38


                                                            -i-
                                      TABLE OF CONTENTS
                                           (continued)
                                                                                                                        PAGE
         2.        Kenya National AIDS Plan III ................................................................. 40
         3.        Challenges and Risks Moving Forward ................................................... 41
    D.   CRIME IN KENYA ............................................................................................. 44
    E.   THE LEGAL SYSTEM AND GOVERNMENT OF KENYA ........................... 45
         1.        The Kenyan Constitution ......................................................................... 46
         2.        The Executive Branch .............................................................................. 47
         3.        The Legislative Branch ............................................................................ 49
         4.        The Judicial Branch ................................................................................. 49
         5.        Provincial and Local Government ........................................................... 51
    F.   SOURCES OF LAW ........................................................................................... 52
         1.        Legislation................................................................................................ 52
         2.        Customary Law ........................................................................................ 53
         3.        Islamic Law .............................................................................................. 55
    G.   THE STATUS OF INTERNATIONAL LAW IN KENYA ................................ 56
SECTION IV FAMILY & MARITAL LAW                                                                                               58
    A.   DEFINING FAMILY .......................................................................................... 58
    B.   DEFINING MARRIAGE .................................................................................... 59
         1.        Introduction .............................................................................................. 59
         2.        When Different Marriage Laws Apply .................................................... 61
         3.        Definition of Marriage ............................................................................. 62
         4.        Capacity to Marry and Requirements for Marriage ................................. 63
         5.        Marriage Ceremony and Rules for Marriage ........................................... 64
         6.        Registration of Marriage .......................................................................... 66
         7.        Conflicts Between Different Marriage Regimes...................................... 67
         8.        Divorce..................................................................................................... 68
    C.   CHILDREN’S RIGHTS AND LEGAL STATUS .............................................. 70
    D.   ORPHANED CHILDREN................................................................................... 75
         1.        Definition of Orphan ................................................................................ 75
         2.        Transmission of Parental Responsibility ................................................. 76
         3.        A Child’s Options Upon the Death of Both Parents ................................ 77



                                                       -ii-
                                          TABLE OF CONTENTS
                                               (continued)
                                                                                                                              PAGE
SECTION V    LAND LAW & PROPERTY RIGHTS LAW                                                                                         82
    A.      SOURCES AND HISTORY OF KENYAN LAND LAW AND TENURE
            SYSTEM .............................................................................................................. 82
            1.         Statutory Land Law and Tenure .............................................................. 83
            2.         Customary Land Law and Tenure............................................................ 86
    B.      CUSTOMARY LAW: MATRILINEAL VS. PATRILINEAL SYSTEMS
            REGULATING LAND IN KENYA ................................................................... 87
            1.         Patrilineal Communities........................................................................... 87
            2.         Matrilineal Systems ................................................................................. 89
    C.      WOMEN’S LAND RIGHTS AND CONFLICTS WITH CUSTOMARY
            LAW .................................................................................................................... 89
            1.         Recent Land Law Reforms ...................................................................... 92
SECTION VI INHERITANCE & SUCCESSION                                                                                                 95
    A.      SOURCES AND HISTORY OF INHERITANCE AND SUCCESSION
            LAW .................................................................................................................... 95
            1.         African Customary Law ........................................................................... 95
            2.         Islamic Law of Succession....................................................................... 95
            3.         Hindu Law of Succession ........................................................................ 95
            4.         British Common Law & Present Day ...................................................... 96
    B.      INTESTATE SUCCESSION (WITHOUT A WILL) ......................................... 98
    C.      TESTATE SUCCESSION ................................................................................... 99
    D.      DISPUTE SETTLEMENT ................................................................................ 100
            1.         Procedural Requirements ....................................................................... 101
            2.         Provisions for Dependants ..................................................................... 101
            3.         Issues ...................................................................................................... 102
    E.      ISLAMIC LAW & OTHER RELEVANT RELIGIOUS LAWS ...................... 103
            1.         Sources of Islamic Law .......................................................................... 103
            2.         Sunnī v. Shī’a ......................................................................................... 104
            3.         Islamic Law of Inheritance .................................................................... 104
            4.         Wills ....................................................................................................... 104
            5.         Will Formalities and Estate Distribution ............................................... 105
    F.      CLASSES OF HEIRS AND ESTATE DISTRIBUTION ................................. 105

                                                            -iii-
                                     TABLE OF CONTENTS
                                          (continued)
                                                                                                                      PAGE
         1.        Defining the Heirs .................................................................................. 105
         2.        The Qur’anic Sharers ............................................................................. 106
         3.        Agnatic Heirs ......................................................................................... 107
         4.        Uterine Heirs .......................................................................................... 107
    G.   DISTRIBUTION TO THE QUR’ANIC HEIRS PURSUANT TO
         INHERITANCE LAWS .................................................................................... 107
         1.        Surviving Spouse’s Share ...................................................................... 107
         2.        Children’s Share..................................................................................... 108
         3.        Parent’s Share ........................................................................................ 108
         4.        Sisters’ and Brothers’ Shares ................................................................. 109
         5.        Nephews’, Uncles’, Cousins’ and Other Male Agnates’ Shares ........... 110
         6.        The Outer Family or Uterine Heirs ........................................................ 110
         7.        Adjustments to Qur’anic Portions .......................................................... 110
         8.        Shī’a Law ............................................................................................... 111
SECTION VII PROPERTY GRABBING                                                                                             112
    A.   STATUTORY LAWS AND FORMAL LAWS ................................................ 112
    B.   CUSTOMARY LAWS AND CULTURAL NORMS ....................................... 113
    C.   GENDER DISCRIMINATION ......................................................................... 115
    D.   OTHER CHALLENGES ................................................................................... 115
         1.        Competition for Land ............................................................................. 115
         2.        HIV/AIDS Pandemic ............................................................................. 115
SECTION VIII KENYA’S COMPLIANCE WITH INTERNATIONAL LAW                                                                    117
    A.   KENYA’S GENERAL POLICY ON AND COMPLIANCE WITH
         INTERNATIONAL LAW ................................................................................. 117
    B.   KENYA’S LAWS GOVERNING AND PROTECTING HUMAN AND
         CIVIL RIGHTS ................................................................................................. 119
         1.        Respect for Integrity of the Person ........................................................ 119
         2.        Respect for Civil Liberties ..................................................................... 123
         3.        Respect for Political Rights ................................................................... 125
         4.        Discrimination and Societal Abuses ...................................................... 125
         5.        Worker Rights ........................................................................................ 129
    C.   INTERNATIONAL CRIMES ACT .................................................................. 129

                                                      -iv-
                                     TABLE OF CONTENTS
                                          (continued)
                                                                                                                       PAGE
         1.       Offences ................................................................................................. 130
         2.       Request for Forfeiture of Property ......................................................... 131
         3.       Third Parties May Apply for Relief ....................................................... 132
         4.       Cancellation of Registration of Order .................................................... 133
         5.       Money or Property Recovered to be Transferred to ICC ....................... 134
    D.   KENYA’S HUMAN RIGHTS COMMISSIONS.............................................. 134
         1.       The National Commission on Gender and Development ...................... 134
         2.       The Kenya National Commission on Human Rights ............................. 136
    E.   KENYA’S TRACK RECORD OF COMPLYING WITH OR DEFYING
         ANY INTERNATIONAL OR INTERNAL PRESSURE ................................. 143
         1.       Case 1: Political Reform after 2007 Election ........................................ 144
         2.       Case 2: Female Genital Mutilation ........................................................ 148
         3.       Case 3: Abortion Rights: Conflicting Pressures and Ongoing
                  Debate .................................................................................................... 154
SECTION IX EXISTING PROGRAMS TO PROTECT PROPERTY &
           INHERITANCE RIGHTS OF WOMEN & CHILDREN                                                                          158
    A.   INTERNATIONAL PROGRAMS .................................................................... 158
         1.       2001 Declaration of Commitment on HIV/AIDS .................................. 158
         2.       Action for Children in Conflict, Kenya ................................................. 158
         3.       ActionAid International, Kenya ............................................................. 159
         4.       Centre on Housing Rights and Evictions ............................................... 159
         5.       The Habitat International Coalition ....................................................... 161
         6.       Human Rights Watch ............................................................................. 162
         7.       The International Centre for Research on Women ................................ 162
         8.       Stephen Lewis Foundation ..................................................................... 162
         9.       UN-HABITAT ....................................................................................... 163
    B.   NATIONAL PROGRAMS ................................................................................ 164
         1.       African Women and Child Feature Service ........................................... 164
         2.       Collaborative Centre for Gender and Development .............................. 164
         3.       Education Centre for Women in Democracy ......................................... 165
         4.       Federation of Women Lawyers – Kenya ............................................... 166
         5.       Forest Action Network ........................................................................... 166

                                                       -v-
                                 TABLE OF CONTENTS
                                      (continued)
                                                                                                                PAGE
     6.        Grassroots Organisations Operating Together in Sisterhood................. 166
     7.        International Commission of Jurists – Kenya Section ........................... 167
     8.        International Potato Center .................................................................... 167
     9.        Kenya AIDS NGOs Consortium............................................................ 168
     10.       The Kenya Land Alliance ...................................................................... 168
     11.       Kenya National Commission on Human Rights .................................... 168
     12.       Pamoja Trust .......................................................................................... 169
     13.       The Society for Women and AIDS in Kenya ........................................ 169
     14.       Women Fighting Aids in Kenya ............................................................ 170
C.   CONCLUSION .................................................................................................. 170




                                                  -vi-
                                               SECTION I
                                          EXECUTIVE SUMMARY

This Report addresses the issues associated with property, inheritance and succession rights of
women and children in the Republic of Kenya (Kenya). This Report was drafted by lawyers
from McDermott, Will & Emery and Caterpillar with extensive input from Lawyers Without
Borders. The Report is based on our review of various types of topical material including
international and regional treaties, Kenya’s domestic statutes and its new Constitution, articles,
texts and reports (including those by various non-governmental organisations (NGOs) and supra-
national organisations). Unless otherwise specified, all information herein is current as of May
2011.

This Report is structured in a series of sections. Section II focuses on the international and
regional legal framework applicable to property, inheritance and succession rights of women and
children. Section III introduces the reader to Kenya so as to better assist the reader in
understanding the context in which this Report is set. Section IV outlines family and marital law
in Kenya with a focus on how aspects of Kenyan society, such as customary law and religious
accommodation, impact the interpretation and enforcement of the law. Section V discusses the
statutory framework relating to land law and property rights in Kenya. Section VI focuses on
inheritance and succession in Kenya and again highlights the impact of accommodation for
tradition, custom and religion thereon. Section VII articulates the challenges faced by women
and children in securing and enforcing their property and inheritance. Section VIII discusses and
illustrates Kenya’s compliance with international law. Section IX summarises the existing
programs operated by the Kenyan government and NGOs aimed at generating and protecting the
rights of women and children in Kenya. Section X provides recommendations for improving,
promoting and preserving the property and inheritance rights of women and children in Kenya.

It is important to recognise that, in some instances, a disconnect exists between tenets enshrined
in modern domestic and international law and traditional customs and values prevalent among
the Kenya population. For instance, while Kenya has acceded to and ratified international and
regional treaties and covenants that prohibit discrimination against women (see the Annex),
cultural practices still exist in Kenya today that prevent women from inheriting land, including
property grabbing, “wife inheritance” and the predominance of patrilineal societies.1 Moreover,
despite the broad rights and protections granted to children under Kenya’s Children’s Act of




1
   Federation of Women Lawyers – Kenya & The International Women’s Human Rights Clinic, Georgetown
University Law Center, Kenyan Laws and Harmful Customs Curtail Women’s Equal Enjoyment of ICESCR Rights
18 (3 Oct. 2008) [hereinafter Kenyan Laws and Harmful Customs] (a supplementary submission to the Kenyan
government’s Initial Report under the ICESCR), available at http://www2.ohchr.org/english/bodies/cescr/docs/info-
ngos/FIDAKenya41.pdf (last visited 19 July 2011). Both ratification and accession signify a state's agreement to be
bound by the provision of a treaty and have the same legal effect. The procedures for ratification and accession,
however, differ. When a state ratifies a treaty, it first signs the treaty and later ratifies. When a state accedes to a
treaty, it simply approves the treaty, it does not first sign the treaty.
20012, female children or children of a disinherited wife struggle to enforce their rights against a
cultural or religious backdrop that can marginalise them.3

This conflict is by no means unique to Kenya and is in fact faced by all nations attempting to
strike a workable balance between respecting and protecting the traditional values, customs and
religious views of their inhabitants and upholding what are increasingly viewed as fundamental
rights and freedoms. It is in this respect that perhaps the fluid and changing nature of
communities and their customs may help to allow traditional views to evolve such that they
dovetail with these fundamental rights and freedoms. As the Report will show, although Kenya is
attempting to address tensions and inequalities that arise from this conflict, time will be the true
arbiter of progress.




2
  The Children’s Act, 2001, No. 8 2011 (2007), available at http://www.kenyapolice.go.ke/resources/Childrens_Act
_No_8_of_2001.pdf (last visited 11 July 2011) [hereinafter Children’s Act].
3
  Dr. Patricia Kameri-Mbote, The Law of Succession in Kenya: Gender Perspectives in Property Management and
Control, NAIROBI: WOMEN & LAW IN EAST AFRICA, at 5-6 (1995), available at http://www.ielrc.org/content/
b9501.pdf (last visited 11 July 2011).



                                                     -2-
                                     SECTION II
                       RELEVANT INTERNATIONAL & REGIONAL LAW

This section analyses international and regional human rights instruments and their impact in
Kenya.

The application of international law in Kenya was directly affected by the new Constitution of
Kenya, adopted in August 2010. Under Kenya’s prior constitution, Kenya’s president was
conferred with executive powers which implicitly granted to him the power to sign treaties. But
a treaty would not be binding in Kenya until it was formally transposed into Kenyan law by an
act of Kenya’s Parliament. As a result, not all treaties and other instruments signed by Kenya’s
president had a binding effect in Kenyan law.

This situation changed following the adoption of the new Constitution. Under the new
Constitution, general rules of international law are considered applicable law within Kenya.
More specifically, Articles 2(5) and 2(6) of the new Constitution provide that any treaty or
convention ratified by Kenya shall form a part of the law.4 Because the Constitution is silent on
when a treaty must have been ratified to be considered part of Kenyan law, it appears that the
new Constitution has retroactive effect, including previously-ratified treaties. Moreover,
informal reports suggest that Kenya’s Justice Ministry is considering tabling a bill to ensure that
Kenya cannot withdraw from treaties it ratifies.5

While certain questions remain open, international conventions and treaties ratified by Kenya
form part of Kenyan law in the current legal environment. Section A identifies and discusses
applicable international treaties and declarations. Section B discusses general rights that are
protected at the international and regional level, focusing on non-discrimination, equal treatment,
and the right to economic, social and cultural development. Section C discusses several specific
rights of women and children protected at the international and regional level, including rights to
property, housing and shelter, inheritance, health, the family unit, education and information, and
protection from exploitation and violence. Finally, Section D concludes by discussing
implementation and enforcement mechanisms.

The treaties and instruments relevant to the current analysis are reflected in the Annex.




4
  The application of this article is not, however, without controversy. For instance, Article 2(1) states that the
Constitution is the supreme law of Kenya and that any law inconsistent with it is null and void. This could raise
questions about the status of a ratified treaty that is inconsistent with other parts of Kenya’s new Constitution.
Furthermore, although ratification is an executive function, this is distinct from subsequent interposition of the treaty
into national law, which is the province of Parliament under Article 94. Thus, although ratified treaties and
conventions now have the force of law in Kenya, one should avoid oversimplifying the impact of the new
Constitution.
5
  See Aggery Mutambo, Kenya: Ministry Considers Bill to Entrench Treaties, DAILY NATION, 23 Feb. 2011, at
http://allafrica.com/stories/201102240199.html (last visited 11 July 2011).



                                                          -3-
A.      APPLICABLE TREATIES AND DECLARATIONS

1.      United Nations Instruments

There are several United Nations (UN) instruments that relate to all people, including women
and children. The Universal Declaration of Human Rights (UDHR) was adopted by the UN
General Assembly on 10 December 1948 at the Palais de Chaillot in Paris, France. It was
proclaimed as a:

        [C]ommon standard of achievement for all peoples and all nations, to the end that
        every individual and every organ of society, keeping this Declaration constantly
        in mind, shall strive by teaching and education to promote respect for these rights
        and freedoms and by progressive measures, national and international, to secure
        their universal and effective recognition and observance, both among the peoples
        of Member States themselves and among the peoples of territories under their
        jurisdiction.6

The International Covenant on Civil and Political Rights (ICCPR)7 and the International
Covenant on Economic, Social and Cultural Rights (ICESCR)8 were adopted on 16 December
1966 by the UN General Assembly and complement the UDHR.9 Collectively, these three
instruments – the UDHR, ICCPR and ICESCR – are often referred to as the International Bill of
Rights.

The rights granted in the International Bill of Rights are supported by the following UN
conventions: the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD)10, the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW)11, and the Convention on the Rights of the Child (CRC).12

Other UN instruments relevant to the situation of women and children in Kenya include the
Habitat Agenda13 (reaffirmed by the Declaration on Cities and Other Human Settlements in the

6
    Universal Declaration of Human Rights, 10 Dec. 1948, 217 A (III) U.N.T.S. Preamble, available at
http://www.unhcr.org/refworld/docid/3ae6b3712c.html (last visited 11 July 2011) [hereinafter UDHR].
7
    International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171, available at
http://www.unhcr.org/refworld/docid/3ae6b3aa0.html (last visited 11 July 2011) [hereinafter ICCPR].
8
   International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3, available at
http://www.unhcr.org/refworld/docid/3ae6b36c0.html (last visited 11 July 2011) [hereinafter ICESCR].
9
  Kenya acceded to the ICCPR and the ICESCR on 1 May 1972.
10
    International Convention on the Elimination of All Forms of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S.
195, available at http://www.unhcr.org/refworld/docid/3ae6b3940.html (last visited 11 July 2011) [hereinafter
CERD]. The CERD became binding in Kenya via accession on 13 September 2001.
11
    Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979, 1249 U.N.T.S.
13, available at http://www.unhcr.org/refworld/docid/3ae6b3970.html (last visited 11 July 2011) [hereinafter
CEDAW]. Kenya acceded to CEDAW 9 March 1984 and ratified the Maputo Protocol on 6 October 2010.
12
    Convention on the Rights of the Child, 20 Nov. 1989, 1577 U.N.T.S. 3, available at http://www.unhcr.org/
refworld/docid/3ae6b38f0.html (last visited 11 July 2011) [hereinafter CRC]. The CRC was ratified by Kenya on 30
July 1990.
13
      The Habitat Agenda Goals and Principles, Commitments and the Global Plan of Action, at
http://www.unhabitat.org/downloads/docs/1176_6455_The_Habitat_Agenda.pdf (14 June 1996) [hereinafter Habitat
                                                                                                (continued…)


                                                      -4-
New Millennium14), the Declaration on the Protection of Women and Children in Emergency
and Armed Conflict,15 and the Declaration of the Rights of the Child.16

2.      Regional Instruments

Regional instruments relevant to the protection of women and children in Kenya include the
African (Banjul) Charter on Human and Peoples’ Rights (commonly known as “the Banjul
Charter”),17 the African Charter on the Rights and Welfare of the Child (ACRWC)18 and the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa (commonly known as “the Maputo Protocol”).19

In addition, Kenya has endorsed several guidelines and principles that relate to the rights of
women and children, including the Principles on Housing and Property Restitution for Refugees
and Displaced Persons20 and the relevant Explanatory Notes,21 The Human Rights of Woman – A
Reference Guide to Official United Nations Documents, and the Beijing Declaration and the
Beijing Platform for Action.22 Further, the Beijing Declaration and the Beijing Platform for


Agenda]. The Habitat Agenda developed into a separate UN agency called the United Nations Human Settlements
Programme or UN-HABITAT, which is headquartered in Nairobi, Kenya. The fact that Kenya hosts UN-HABITAT
may suggest that Kenya has a particular interest in promoting the Habitat Agenda.
14
    G.A. Res. 2, U.N. GAOR, 25th Special Sess., U.N. Doc. A/RES/S-25/2 (2001), available at
http://www.unhabitat.org/downloads/docs/2071_246_A_RES_S25_2.doc (last visited 11 July 2011).
15
     G.A. Res. 3318, U.N. GAOR, 29th Sess. U.S. Doc. A/RES/29/3318 (1974), available at
http://www.unhcr.org/refworld/docid/3ae6b38a14.html (last visited 11 July 2011). The Declaration on the
Protection of Women and Children in Emergency and Armed Conflict was applied by Kenya as member of the
United Nations and effective from 1974.
16
     G.A. Res. 1386, U.N. GAOR, 14th Sess., U.N. Doc. A/RES/14/1386 (1959), available at
http://www.unhcr.org/refworld/docid/3ae6b38e3.html (last visited 11 July 2011) [hereinafter Declaration of the
Rights of the Child]. The Declaration of the Rights of the Child is a non-binding declaration adopted by the UN
General Assembly in 1959 and replaces the Geneva Declaration of the Rights of the Child dated 1924.
17
    Organization of African Unity, African Charter on Human and Peoples' Rights, 27 June 1981, CAB/LEG/67/3
rev. 5, 21 I.L.M. 58 (1982), available at http://www.unhcr.org/refworld/docid/3ae6b3630.html (last visited 11 July
2011) [hereinafter Banjul Charter]. The Banjul Charter became binding in Kenya via accession on 23 January 1992.
18
    Organization of African Unity, African Charter on the Rights and Welfare of the Child, 11 July
1990, CAB/LEG/24.9/49 (1990), available at http://www.unhcr.org/refworld/docid/3ae6b38c18.html (last visited 11
July 2011) [hereinafter ACRWC]. The ACRWC was acceded by Kenya on 25 July 2000.
19
   Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 11 July 2003,
at http://www.hrea.org/index.php?base_id=104&language_id=1&erc_doc_id=806&category_id=&category_type=
&group= (entered into force 25 November 2005) [hereinafter Maputo Protocol]. The Maputo Protocol was signed
by Kenya on 17 December 2003 and entered into force on 25 November 2005.
20
   U.N. ESCOR, Sub-Commission on the Promotion and Protection of Human Rights, 56th Sess., U.N.
Doc. E/CN.4/Sub.2/2005/17 (2005), available at http://www.unhcr.org/refworld/docid/41640c874.html (last visited
11 July 2011) [hereinafter Principle on Housing and Property Restitution]. Kenya formally endorsed the text of the
Principles on Housing and Property Restitution for Refugees and Displaced Persons on 11 August 2005.
21
   U.N. ESCOR, Sub-Commission on the Promotion and Protection of Human Rights, 57th Sess., U.N.
Doc. E/CN.4/Sub.2/2005/17/Add.1 (2005).
22
   United Nations, Beijing Declaration and Platform of Action, 15 Sept. 1995, A/CONF.177/20 (1995) and
A/CONF.177/20/Add.1 (1995), available at http://www.unhcr.org/refworld/docid/3dde04324.html (last visited 11
July 2011) [hereinafter Beijing Declaration]. The Beijing Declaration and Platform of Action was adopted on 15
September 1995 at the Fourth World Conference on Women, which was convened by the United Nation. Kenya
was one of the 189 participating countries in the conference.



                                                      -5-
Action set out an agenda for the empowerment of women in a number of areas, which was
subsequently reviewed and reaffirmed in 2000 (“Beijing + 5”),23 2005 (“Beijing + 10”)24 and
2010 (“Beijing + 15”).25

B.       GENERAL RIGHTS PROTECTED AT THE INTERNATIONAL AND
         REGIONAL LEVEL

In general, the protection and recognition of women’s inheritance rights derive from the most
fundamental principles described above: that all human beings are equal and enjoy rights without
distinction as to gender. Importantly, under international law, the rights to equality and non-
discrimination are enshrined in the International Bill of Rights – i.e., the UDHR, the ICCPR, and
the ICESCR.26 These rights have jus cogens status.27 This status is explicitly recognised in
Article 4 of the ICCPR which states that even when the life of a nation is threatened by a public
emergency, State Parties28 may derogate from certain obligations under the ICCPR, but such
measures may not involve discrimination based solely on the grounds of gender.

The CEDAW, the main international instrument protecting women’s rights, condemns
discrimination against women in all its forms and commits State Parties to take all appropriate
measures:

         To modify the social and cultural patterns of conduct of men and women, with a
         view to achieving the elimination of prejudices and customary and other practices
         which are based on the idea of the inferiority or the superiority of either of the
         sexes or on stereotyped roles for men and women.29

Furthermore, Article 16 of the CEDAW requires State Parties to eliminate discrimination against
women in the context of marriage and family relations. Kenya is a State Party to the CEDAW,
which means that this convention has effect in Kenyan law.
23
     G.A. Res. 3, U.S. GAOR, 23d Special Sess., U.N. Doc. A/RES/S-23/3 (2000), available at
http://www.un.org/womenwatch/daw/followup/ress233e.pdf (last visited 11 July 2011) [hereinafter Beijing + 5].
24
   U.N. ESCOR, Commission on the Status of Women, 49th Special Sess., U.N. Doc. E/2005/27-E/CN.6/2005/11
(2005), available at http://unispal.un.org/UNISPAL.NSF/0/ED4DACFEEEF8BB5885257053004BC308 (last
visited 11 July 2011).
25
   U.N. ESCOR, Commission on the Status of Women, 54th Special Sess., U.N. Doc. E/2010/27, E/CN.6/2010/11
(2010), available at http://www.peacewomen.org/assets/image/Resources/report_csw54_2009_2010.pdf (last visited
11 July 2011).
26
   Universal Declaration of Human Rights, supra note 6, at arts. 1-2; International Covenant on Civil and Political
Rights, supra note 7, at art. 3; International Covenant on Economic, Social and Cultural Rights, supra note 8, at art.
3.
27
    A peremptory norm, a fundamental principle of international law considered to have acceptance among the
international community of states as a whole. Unlike ordinary customary law that has traditionally required consent
and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by
any state. Under the Vienna Convention on the Law of Treaties, any treaty in violation of a peremptory norm is null
and void.
28
    “State Parties” are states that have ratified and acceded to the CEDAW. By becoming a party to CEDAW, a state
is legally obliged to take all appropriate measures to eliminate discrimination against women and advance gender
equality. See CEDAW, supra note 11, at arts. 2-5. These obligations are not subject to alteration by individual
governments and also extend to private life. See id. at art. 16.
29
   Id. at art. 5(a).



                                                        -6-
Regional human rights instruments also protect women against discrimination on the basis of
gender and recognise women’s rights to equality before the law. For example, Article 2 of the
African Charter on Human and Peoples’ Rights states that “[e]very individual shall be entitled to
the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter
without distinction of any kind such as . . . sex.”30

The Beijing Declaration and the Beijing Platform for Action, adopted on 15 September 1995 at
the Fourth World Conference on Women, are comprehensive international instruments
reaffirming the commitment of the international community to take all necessary measures “to
eliminate all forms of discrimination against women and the girl child and remove all obstacles
to gender equality and the advancement and empowerment of women.”31 In support of this
conference, on 8 September 1995, Kenya, as of one the participants, issued a statement in which
it explained the current situation of women and recognised the problems regarding the
inheritance rights of the women despite the adoption of new laws in this matter:

        [T]he majority of Kenya women are not able to acquire credit facilities from
        commercial banks and financial institutions which require title deeds on land and
        property as security and collateral. In this context, the government of Kenya has
        enacted laws giving equal rights for men and women to inherit land and property.
        However, the women are still to overcome socio-cultural factors that despite
        legislation still inhibit women from co-owning or owning land and property
        which are key factors in economic empowerment of women.32

Overall, de jure or de facto prohibition of discrimination against women is designed to guarantee
the equal enjoyment of various civil and social rights, in particular the right to inheritance,
property, and housing. De facto discrimination against Kenyan women with respect to having
access to, acquiring and securing land, property and housing, including through inheritance,
arguably constitutes a violation of women’s right to protection against discrimination and may
affect or impair the realisation of other protected human rights, including, but not limited to, the
rights to education, health, family, and the right to adequate standards of living.

Another right linked to equality and non-discrimination is the right to development. The Banjul
Charter states that:

        1.      All peoples shall have the right to their economic, social and cultural
                development with due regard to their freedom and identity and in the equal
                enjoyment of the common heritage of mankind.




30
   Banjul Charter, supra note 17, at art. 2.
31
   Beijing Declaration, supra note 22, at ¶ 24.
32
    Fourth World Conference on Women by the United Nations Development Programme (UNDP) in
collaboration with the United Nations Fourth World Conference on Women Secretariat, Statement by Hon. Nyiva
Kitili Mwendwa, MBS, M.P., Minister for Culture and Social Services (4-15 September 1995, Beijing, China).



                                                   -7-
         2.      States shall have the duty, individually or collectively, to ensure the
                 exercise of the right to development.33

In particular the right of women and children to development is protected by several international
instruments, such as the Beijing Declaration reaffirming, for example, the commitment to:

         The empowerment and advancement of women, including the right to freedom of
         thought, conscience, religion and belief, thus contributing to the moral, ethical,
         spiritual and intellectual needs of women and men, individually or in community
         with others and thereby guaranteeing them the possibility of realizing their full
         potential in society and shaping their lives in accordance with their own
         aspirations.34

Moreover, the Beijing Declaration also deals with women’s and girls’ access to economic
resources as a means to further advancement and empowerment.35 On the other hand, the CRC36
and the ACRWC37 protect children’s right to develop by, for example, conferring responsibility
to their parents in the upbringing and development of their children.38 Children have the right “to
a standard of living adequate for the child’s physical, mental, spiritual, moral and social
development” and their parents or guardians are responsible for securing living conditions
necessary for the child’s development.39

C.       SPECIFIC RIGHTS PROTECTED AT THE INTERNATIONAL AND
         REGIONAL LEVEL

1.       Property Rights

         a.       Women

The right of women to own property is granted by several international instruments.
Fundamentally, Article 17 of the UDHR states that “everyone has the right to own property alone
as well as in association with others” and that “no one shall be arbitrarily deprived of his
property.”40 In addition, the Habitat Agenda includes commitments to non-discriminatory access
to housing, and the right to inheritance and ownership of land.41 The particular empowerment of
women is highlighted in this context. Countries are required to review all applicable laws and
“[u]ndertake legislative and administrative reforms to give women full and equal access to
economic resources, including the right to inheritance and the ownership of land and other

33
   Banjul Charter, supra note 17, at art. 22. See also Habitat Agenda, supra note 13, ¶¶ 24-25, 27.
34
   Beijing Declaration, supra note 22, at ¶ 12.
35
   Beijing Declaration, supra note 22, at ¶ 35. See also id. at ¶¶ 9, 13, 24, 26, 27 (articulating further statements
regarding the right of development).
36
   CRC, supra note 12, at Art, 18(1).
37
   ACRWC, supra note 18, art. 20.
38
   See also CEDAW, supra note 11, at art. 5(b); Declaration of the Rights of the Child, supra note 16, at Principle 6.
39
   CRC, supra note 12, arts. 27(1)-(2). See also id. at art. 32 (protecting children from economic exploitation or
work that could damage the child’s development).
40
   UDHR, supra note 6, art. 17.
41
   Habitat Agenda, supra note 13, at ¶ 27.



                                                        -8-
property, credit, natural resources and appropriate technologies.”42 The CEDAW contains a
similar provision, specifying that women are entitled, among other things, to the right to bank
loans, mortgages and other forms of financial credit, on an equal basis with men.43

The Beijing Platform for Action requires governments to undertake legislative and
administrative reforms to give women full and equal access to inter alia ownership of land and
other property44; give women equal rights with men to economic resources45; enable women to
obtain affordable access to housing and land46; and enhance at a national and local level, rural
women’s income-generating potential by facilitating their equal access to and control over
productive resources, land, credit, capital, and property rights.47 CEDAW further protects
women in rural areas by obliging States Parties to ensure rural women have access to participate
in all community activities, including access to agricultural credit, and equal treatment in land
resettlement schemes.48

The Banjul Charter states that “the right to property shall be guaranteed” and “[i]t may only be
encroached upon in the interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws.”49

Beyond ownership, the CEDAW protects the rights of women to acquire, manage, administer,
enjoy and dispose of property,50 as well as the right to conclude contracts.51 In furtherance of
these rights, the CEDAW stipulates that all contracts or any other private instruments having a
legal effect “which is directed at restricting the legal capacity of women shall be deemed null and
void.”52 Additionally, many international instruments require equality between women and men
“as to marriage, during marriage and at its dissolution.”53

Separately, the Principles on Housing and Property Restitution for Refugees and Displaced
Persons affirm certain state obligations in respect of property rights. Namely, this instrument
provides that men and women have equal rights with respect to the restitution of their former
homes (including property ownership and inheritance)54 and also have joint ownership rights for
the male and female heads of households.55 It also provides that states must implement measures
to protect women and girls from being discriminated against56 and disadvantaged in the



42
   Id. at ¶ 72(e).
43
   CEDAW, supra note 11, art. 13.
44
   Beijing Declaration, supra note 22, at Platform for Action, ¶ 63.
45
   Id. at ¶ 167.
46
   Id at ¶ 62.
47
   Id. at ¶ 168; see also ¶ 68.
48
   CEDAW, supra note 11, art. 14(2)(g)-(h).
49
   Banjul Charter, supra note 17, art. 14.
50
   CEDAW, supra note 11, art. 16(1)(h).
51
   Id. art. 15(2).
52
   Id. art. 15(3).
53
   UDHR, supra note 6, art. 16(1). See also ICCPR, supra note 7, art. 23(4); CEDAW, supra note 11, art. 16(1)(c).
54
   Principles on Housing and Property Restitution, supra note 20, § 4.1.
55
   Id. § 4.2.
56
   Id. § 4.3.



                                                       -9-
restitution process57 and must afford women representation in the decision-making process on
restitution.58

        b.       Children

The international and regional instruments discussed immediately above do not explicitly confer
to children the right to property. A child’s right to property, however, can be inferred from other
rights. For example, the CRC provides that “States Parties shall protect the child against all other
forms of exploitation prejudicial to any aspects of the child’s welfare.”59 Similarly, the ICESCR
states that “[c]hildren and young persons should be protected from economic and social
exploitation.”60

2.      Housing / Shelter Rights

        a.       Women

Several international instruments recognise the right to housing as a fundamental human right.61
According to the UDHR, “[e]veryone has the right to a standard of living . . . including
housing.”62 More specifically, since the adoption of the UDHR in 1948, the right to housing has
been recognised as an important component of the right to an adequate standard of living.63

The ICESCR is widely viewed as the most significant instrument regarding the right to housing.
According to Article 11(1), “[t]he State Parties to the present Covenant recognise the right of
everyone to an adequate standard of living for himself and his family, including adequate food,
clothing and housing and to the continuous improvement of living conditions.”64

In December 1991, the UN Committee on Economic, Social and Cultural Rights adopted
General Comment No. 4 on the right to housing, with a focus on its adequacy. The committee
guides State Parties not to interpret the right to housing narrowly or restrictively as “merely
having a roof over one’s head or…as a commodity. Rather it should be seen as the right to live
somewhere in security, peace and dignity.”65 Based on this broad interpretation, General
Comment No. 4 identified seven aspects of the right to housing that determine “adequacy”: (i)
legal security of tenure including legal protection against forced evictions; (ii) availability of
services, materials, facilities, and infrastructure; (iii) affordability; (iv) habitability; (v)

57
   Id. § 4.3.
58
   Id. § 14.2.
59
   CRC, supra note 12, art. 36.
60
   ICESCR, supra note 8, at art. 10(3).
61
   See UDHR, supra note 6, at art. 25(1); CERD, supra note 10, art. 5(e)(iii); CEDAW, supra note 11, art. 14(2);
CRC, supra note 12, art. 27(3).
62
   UDHR, supra note 6, art. 25(1). See also CERD, supra note 10, art. 5(e)(iii).
63
   Habitat Agenda, supra note 13, ¶ 61.
64
   ICESCR, supra note 8, art. 11(1) (emphasis added).
65
    Office of the United Nations High Commissioner for Human Rights, Committee on Economic, Social and
Cultural Rights, General Comment 4 – The right to adequate housing, 6th Sess., at ¶ 7, U.N. Doc. E/1992/23 (1991),
available at http://www.unhchr.ch/tbs/doc.nsf/0/469f4d91a9378221c12563ed0053547e?Opendocument (last visited
July 11, 2011) [hereinafter General Comment No. 4].



                                                      - 10 -
accessibility for disadvantaged groups; (vi) location; and (vii) cultural adequacy.66 At the
international level, this is the single most authoritative legal interpretation of the right to housing.
Further, the committee made clear that:

         The right to adequate housing applies to everyone. [This right] cannot be read
         today as implying any limitations upon the applicability of the right to individuals
         or to female-headed households or oth
								
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