* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
Three years ago, the world cheered Kenyan lawmakers and lauded the country as a whole when parliamentarians drafted and voters approved provisions in the country’s new constitution to guarantee women equal access to and control over land.
The move was based on the understanding that about half of the agricultural labor in Africa in general and Kenya in particular is done by women. In this context, support for women’s rights to the land they farm is part of a larger strategy to economically empower some of the most disadvantaged women in the world – Africa’s rural women.
The Swedish International Development Cooperation Agency (SIDA) has noted that “Women’s access to land and property is central to women’s economic empowerment, as land can serve as a base for food production and income generation…. Agricultural production and food security also increase when women are granted tenure security.”
Women having secure rights to land is not just good for women. It is good for families and communities. And good for Kenya.
But then last Tuesday (November 12th) a majority of Kenya’s parliamentarians – over the objections of many of Kenya’s female lawmakers – voted to amend the country’s Matrimonial Property Bill, which has been in development since 1997. The bill, which is intended to define the rights of spouses in relation to matrimonial property, earlier contained progressive provisions that echoed the constitution’s protections of women’s land rights. Last week’s amendments gutted these provisions.
The bill is now headed to President Kenyatta for signature.
The bill before the President does not comply with fundamental protections of spousal land rights as established in the 2010 Constitution and 2009 National Land Policy. The Bill as stands is unconstitutional and, if passed, would signify a tremendous setback for women’s land rights in Kenya.
As amended, the bill defines matrimonial property as only property that is jointly owned by the spouses. Given the predominant customs in Kenya in which men inherit property and women move to their husbands’ households and therefore do not own land, very little, if any, property will be considered matrimonial property under this narrow definition.
If signed into law, this bill will allow women to be stripped of any family property (including the home in which they live) upon divorce or the death of their husband. Even though married women contribute to the well-being of the family, caring for the home and for children, and raising food for the family, their labor will not count in the division of property. This is at odds with the constitutional mandates that laws protect the property interests of dependents, including spouses, and include the right to occupy as an interest to be protected.
At the same time, the bill also provides that any household debts are evenly shared between husband and wife upon dissolution of the marriage.
This is an unfortunate step backward for Kenya. The matrimonial property law offers an opportunity to make real the promises made in the country’s new Constitution. To ignore those promises not only contradicts the rule of law (adherence to the Constitution) but also denies Kenyans the benefits that equal property rights for women can provide.
Research shows several benefits across development areas - including gender equality and women's empowerment, nutrition and food security, reduction of disease and violence, and environmental sustainability - when women have secure rights to land and related assets and resources.
We know from research and experience that it matters who within a household has rights to and control over land—women and men must have equal rights. While male farmers often focus on cash crops, women more often focus on growing crops that provide their family with good nutrition. There is an increasing body of research that confirms the ripple effect of women’s land rights. A study in Nepal found that children are less likely to be underweight if their mothers own land. Another, in Nicaragua and Honduras, presented at the World Bank, found that families spend more on food when the woman of the house owns land. And a study in Ghana found that families allocate a larger proportion of their household budget to food when the woman owns a larger share of the household's farmland.
At the passing of the new constitution, Kenya – where 35 percent of children are stunted from poor nutrition -- appeared poised to begin reaping such benefits.
The Federation of Women Lawyers in Kenya is appealing to President Kenyatta to reject the bill. They have announced that if Kenyatta does not heed their call, they will challenge the bill in court.
Now is the time for Kenya and Kenyans to live up to the words expressed by President Kenyatta in a speech to Parliament earlier this year: “We will champion the rights of all Kenyans, preserving and defending them not only through good governance and respect for the rule of law but also by extending the right to social protection.” If these words are to have any meaning for Kenyan women, the bill should be revised to conform with the promises guaranteed to women under the Kenyan Constitution.
This post originally appeared on The Guardian's website.
Tim Hanstad is President and CEO and Renee Giovarelli is Senior Attorney and Advisor at Landesa, a global development non-profit that works to secure land rights for the world’s poor women and men. Follow us @Landesa_Global
