Neutron Diffraction

We can briefly examine a Human Rights Watch Report on Property Rights in Kenya. Property rights of women in Kenya are bound up with the structure of the country's land law. What tended to have been driving reform since independence (1962) has been the need to ensure an equitable division of land between the different ethnic groups within Kenya. A related problem has been the different customary jurisdictions, with frequent contradictory provisions and the historical structure of title inherited from colonial times which favoured male ownership of land.

Reforms have been made in the law of succession and family law, but

gender imbalance in land ownership remains. At present, five different legal systems that apply to marriage. These are:

• civil (under the Marriage Act)

• Christian (under the African Christian Marriage and Divorce Act and the Marriage Act)

• Islamic (under the Mohammedan Marriage, Divorce and Succession Act)

• Hindu (under the Hindu Marriage and Divorce Act) and

• Customary (under customary laws).

At a constitutional, level discrimination on the basis of sex is prohibited, but there are exceptions which allow discrimination in personal and customary law. Though there is an ongoing process of constitutional reform, it is hoped that this will enhance women's rights.

The failure to effectively protect women is one reason they remain

‘worse off than men’:

By just about any measure, women in Kenya are worse off than men. Their average earnings are less than half those of men. Only 29 per cent of those engaged in formal wage employment are women, leaving most to work in the informal sector with no social security and little income.

The numbers of women in formal employment are decreasing. Women head 37 per cent of all households in Kenya, a number likely to grow as AIDS claims more victims. Eighty per cent of female-headed households are either poor or very poor, in part due to their limited ownership of and access to land. Girls receive less education than boys at every level, and women's literacy rate (76 per cent) is lower than men's (89 per cent).Violence against women is commonplace: 60 per cent of married women reported in a 2002 study that they were victims of domestic abuse. In another study published in 2002, 83 per cent of women reported physical abuse in childhood and nearly 61 per cent reported physical abuse as adults. According to women's rights advocates, there is only one shelter for battered women and their children in the entire country.

A similar pattern can be observed in relation to land holding:

Women’s land ownership is miniscule despite their enormous contribution to agricultural production. Women

nationally. The agricultural sector contributes over 80 per cent of employment and 60 per cent of national income.

Women constitute over 80 per cent of the agricultural labour force, often working on an unpaid basis, and 64 per cent of subsistence farmers are women. Women provide approximately 60 per cent of farm-derived income, yet female-headed households on average own less than half the amount of farm equipment owned by male-headed households. Rural women work an average of nearly three hours longer per day than rural men. With so many women working in the agricultural sector and so few in formal employment, it is all the more devastating when women lose their land. (ibid)

Customary law derives from custom and practice, but is also formally recognised by legislation and the Kenyan legal system. The tendency towards a complex patterning of customary law reflects the fact that each ethnic or tribal grouping may have its own law.

Customary law is enforced by tribal leaders or elders, but may also be applied in court proceedings. Customary laws that relate to property can be traced back to the pre-colonial period. Precisely because customary law is fluid, and changes as custom changes, it is not necessarily resistant to social change. However, what is problematic is the fact that the norms of customary law are rooted in customs that may themselves be deep-seated and hard to change. Consider the practice of wife inheritance that is practised in some parts of Kenya. Although there are many different permutations to this practice, some common features can be suggested. In the past, this custom was one way of ensuring a degree of social protection for widows. Widows were not themselves able to inherit land, so, providing that the widow herself was inherited went some way to making sure that the widow and her dependents would be supported. The rituals associated with wife inheritance involved the

‘cleaning’ of the widow. There was a fear that she would be contaminated with her husband's spirit. In one particular ritual, the widow would have to have sexual intercourse with a social outcast:

• Women’s property rights closely relate to wife inheritance and cleansing rituals in that many women cannot stay in their homes or on their land unless they are inherited or cleansed. According to one women's rights advocate, Women have to be inherited to keep any property after their husbands die. They have access to property because of their husband and lose that right when the husband dies.' Women who experienced these practices told Human Rights Watch they had mixed feelings about them. Most said the cleansing and

inheritance were not voluntary, but they succumbed so that they could keep their property and stay in their communities. (ibid)

SELF ASSESSMENT EXERCISE 1

1. What are the inherent problems with the structure of Kenyan society and law that tend to militate against women's property rights?

2. What do the figures quoted above suggest about the social and economic position of Women in Kenya?

3. What is customary law? Are there any particular problems with customary law as far as women's rights are concerned?

Customary Law

See Steiner and Alston (2000 PP.420-421) on how customary practices can change. The example concerns the Sabiny people in eastern Uganda.

It shows that the norms of customary law can change to reject practices that are unacceptable from a human rights perspective.

SELF ASSESSMENT EXERCISE 2

Read Steiner and Alston’s summary of the article by An-Na’im on Pp.

426-428. This piece concerns state responsibility under international human rights law to change religious and customary practices. An-Na’im concerns himself with the way in which customary law can change.

What does An-Na’im suggest in relation to the authority of customary law? Why is an understanding of the basis of customary law important (or a human rights lawyer or activist)?

Summary

Women’s rights are an integral part of human rights. Women’s rights guarantee the inherent dignity of women, but are also relevant to the struggle against poverty. Women face structured disadvantage in many if not all countries of the world, although we concentrated on the developing world in this unit. We have also seen that furthering the protection of women's rights involves complex issues of social change.

It is necessary that advocates of human rights do not approach cultures in a high-handed way, but seek to engage in constructive and sensitive cross-cultural dialogues in order to break down resistances to those changes that are necessary to empower women.