Outdated family law – milking women dry

Achieng had lived with Jack for more than five years having married through the Kikuyu customary law. As fate would have it, Jack succumbed to cancer, leaving her with two young children to raise. She could not give her children the lifestyle they were accustomed to. School fees was due while the rent to the house they had lived in for the last five years was overdue. Worse, she learnt that he had a ‘mpango wa kando— a parallel home, complete with wife and children whom he visited often – and given the bigger share of his earnings. She got a burnout trying to follow up her case to have the entire inheritance registered to her name but in vain. She has joined a group of Kenyan women who are seeking justice from Kenya’s out-dated Family Law system.

What is family?
One of the most profound and basic interests of any society is family. The United Nations Universal Declaration of Human Rights in 19^8 affirmed that the family is the basic unit of society. Since then, the United Nations has repeatedly emphasised the role of the family as the ‘natural and fundamental group unit of society* and the ‘basic unit of society’ in many of its conventions. The same has been stated in many constitutions including Kenya’s. Article 45 (1) of Kenya’s 2010 Constitution states that ‘the family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.’

Other than the new Constitution, family matters under Kenyan Law are found in scattered and often conflicting laws. Kenya’s Family Law mainly covers marriage, divorce and matrimonial property all of which feature under other laws including:

• African customary laws of different ethnic groups,

• The Hindu Marriage and Divorce Act based on Hindu law.

• The Mohammedan Marriage and Divorce Act cased on Islamic law,

• The Marriage Act and the African Marriage and Divorce Act—for those who choose to marry under formal law regardless of the cultural or religious affiliations.

In a similar fashion, there is no single law governing matrimonial property and it is addressed within various laws, including the Constitution, the Matrimonial Causes Act, the Married Women’s Property Act and the Law of Succession Act. Check them out.

Inheritance
When a family loses a husband to death, the Law of Succession Act does not support the woman enough in respect to inheritance rights. The basic provisions of the Act guarantee equal inheritance rights for male and female children, and the equal right to produce a Will by both male and female parents.

However, Sections 32 and 33 of the Act expressly exclude all agricultural land, cattle and crops from legislated inheritance and instead places their succession under the purview of customary law as specifically defined in the Kenya Gazette.

In addition, rules governing ‘intestate’ succession (where there is no will) create a hierarchy for inheritance which directly discriminates against women Thus, under Section 39 of the Act. priority in the absence of children or spouse is given to the father of the deceased over the mother Furthermore, a woman’s inheritance rights are made void should she remarry following her husband’s death.

Divorce
The bias against women is again evident when it comes to divorce, as the women are more-often-than not asked to leave their matrimonial home with nothing to their name. Check out the following case by the Kenyan Court of Appeal: Peter Mburu Echaria Vs Priscilla Njeri Echaria. The court held that the status of marriage or the performance of domestic duties could not entitle a woman to a beneficial interest in matrimonial property after divorce. This is a departure from previous case from the same court, which was to the effect that matrimonial property ought to be divided equally between the spouses after divorce.

The continued discriminatory customary norms have made it difficult to apply a common standard for assessing gender justice such as that enshrined under the Convention on the Elimination of All Forms of Discrimination Against Women.

Domestic violence
On matters of domestic violence, provisions of the Sexual Offences Act governing rape and sexual violence do not provide adequate protection for married women While most forms of sexual offences are totally prohibited. Section 43 (5) of the Act states that all acts described as unlawful and intentional shall not apply in respect of people who are lawfully married to each other. Therefore, marital rape becomes a challenge to prosecute in court.

More concerns have been expressed over Section 38 of the Act, which provides that anyone making a false accusation of sexual offences is liable to penalties ‘equal to that of the offence complained of’. The UN Committee on Economic, Social and Cultural Rights has said t hat the provision should be immediately relaxed as it discourages women who have been raped from taking their cases to court.

Onward fight
Nancy Baraza, of the Kenya Law Reform Commission, says the laws ’embody and perpetuate either express or latent gender bias, inequality or discrimination. They cannot obviously pass close scrutiny against international instruments and standards which as a nation we recognized and accepted In reality, the society appears to have moved ahead of these laws, even as they desperately and in futility try to hold it back.’

With such oppressive old laws, efforts have been made towards legal reform of family laws; the draft Marriage Bill 2007, Family Protection Bill 2007 and the Matrimonial Property Bill 2007 are models for such reforms. So, Kenya’s Achiengs should feel at home.

END: PG38/16-17