For over three decades, Kenyan women have pushed for affirmative action, a set of public policies and initiatives to eliminate gender discrimination.
And there is no doubt the ambitious drive to enforce the affirmative action set family lawyers, gender activists and non-governmental organisations on a collision course with the government.
Land has been one of the most contentious issues in Kenya and generally, women have been denied an opportunity to enjoy the fruits of their fathers’ sweat when it comes to inheritance.
Over the years, women have been considered “foreigners” in their birthplace as soon as they get married and had no right or legal basis to claim their parents’ property.
But this scenario changed abruptly after the new Constitution was promulgated last year. A section of the law in the new dispensation eliminates gender discrimination in land inheritance.
Simply put, it is now illegal to deny Kenyan women the right to inherit their father’s estate on the basis of marital status, according to articles 27 and 60 of the Constitution of Kenya 2010.
Under the old constitution, dating back to independence and which critics say exacerbated corruption, tribalism and gender discrimination among other shortfalls, where parties owned property jointly, women did not have equal access or rights to it.
Article 27 of the new Constitution, signed into law by President Kibaki on August 27, 2010, guarantees women freedom from discrimination.
“In the family realm, women will seek to access property as daughters or members of a family whose member has died or as spouses,” says prominent family lawyer Judy Thongori.
Mrs Thongori says the provision on equality as enshrined in the new Constitution has been reinforced by the Act in articles 27 and 60 which now allows children to inherit property irrespective of their status.
“Women provide the bulk of labour in agriculture and head one in every four households, yet only about five per cent of them own land in their own names,” she says.
Eldoret-based family lawyer and former Federation of Women Lawyers (Fida) representative in North Rift, Ms Sally Mbeche, argues that although the Constitution outlaws discrimination on the basis of age, sex, occupation, race and tribe, and guarantees the right to equal treatment, women still find a huge difference between what the law says and real life.
The family lawyer says that a serious campaign should be started to educate rural womenfolk on their rights to inheritance and other goodies offered by the new Constitution.
City lawyer Titus Koceyo is apprehensive that women might abuse the provision in the Constitution by inheriting property both from their matrimonial homes and their parents’ estates.
“The courts must be vigilant and discourage such attempts by litigants,” warns Mr Koceyo.
He is, however, upbeat that the new Constitution has increased the bargaining power of women in society and outlawed any form of discrimination against gender.
A case study is a recent judgment made by Lady Justice Mary Kasango in Meru which gave a clear road map that gender equality must be observed when sharing the parents’ estate.
In a landmark ruling that has attracted sharp reactions from a cross-section of Kenyans, Lady Justice Kasango ruled that married daughters had a right to inherit their parents’ property.
The judge made the ruling in a succession case where Ms Consolata Ntibuka challenged her brother’s decision to evict her from a portion of land left behind by her father on the grounds that she was married.
“It does not matter whether a daughter of the deceased was married or not when considering whether she is entitled to inherit her parent’s estate,” ruled Justice Kasango. Her judgment was the first since the promulgation of the Constitution.
Prior to her findings, the courts had delivered varying decisions on the issue of inheritance by women.
And by sheer coincidence, three ground-shaking judgments have been delivered by prominent women judges — Lady Justices Kasango, Martha Koome and Kalpana Rawal.
In 2005, Lady Justice Koome reaffirmed provisions of the Law of Succession Act that daughters, just like sons, have an equal right to inherit their parents’ property.
“The law does not distinguish the deceased’s children on the basis of their gender or marital status,” observed Justice Koome.
Three years later, Lady Justice Rawal overruled the application of a Maasai custom which denied women from inheriting their fathers’ property.
She ruled that the daughters of the late Lerianka ole Ntutu, who had died intestate (without a will) had a legitimate claim to inherit his property.
The Ntutu daughters had complained that their brothers planned to exclude them from the inheritance.
The definitive question the judge had to consider in arriving at her decision was whether the court would apply the Law of Succession Act or the customary law of the Maasai community.
She finally held that any tenet of customary law which would abrogate the right of daughters to inherit their father’s estate would be repugnant to justice and morality and could therefore not be applied.