Land is a critical resource in Kenya, having economic, social, political,environmental and cultural significance. Kenya’s population continues to relyon land for both subsistence and economic activities. In fact, the increaseof the population from about 20 million people in the 1960s to about 40million currently, has put enormous pressure on land. Only a third of Kenya’sland is arable while the rest is arid and semi-arid. With most Kenyans stillliving off the land, contestations over access to, control over and ownershipof land are prevalent. In the broader Kenya context, the land question hasemerged as a major political issue that can erupt anytime and threaten theexistence of the state, as was witnessed in the post-election violence inDecember 2007 (Kameri-Mbote and Kindiki, 2009).

While women’s rights to land and property are protected under the Constitution of Kenya(2010) and various national legislations, in practice, women remain disadvantaged. The mainrestriction is customary law and practices, which prohibit women from owning or inheritingland and other forms of property. These customary laws and practices are enhanced bystereotypical practices and socialization of women in believing they are not meant to ownor inherit land or any other property. Customary practices in Kenya generally grant womensecondary rights to land, namely through their relationships to a male relative, and womenare rarely able to inherit land in their own right. In addition, women face serious obstaclesin claiming their property rights either because they are unaware of their rights or they areunable to lay claim to this right.

This paper will focus on the situation analysis on how women’s poverty in Kenya is related to land, the international and regional human rights instruments on land rights for women that Kenya has acceded to and policy issues which should be addressed in the proposed land policy to guarantee women land rights and ownership.

This study focuses on the role of Kenyan women and gender activists in shaping the 2010 constitutional reform process in Kenya and the outcomes of this in relation to advancing gender equality and a women’s rights agenda.  Constitutional reform is an important window of opportunity with respect to renegotiating the rules of the game regarding how power is exercised and resources are distributed.  For non-elite groups, it is thus a relevant site of contestation for struggles aimed at institutional and political change that address discrimination and exclusion.  We aim here to use the Kenyan case to see how women can increase their access to influence and decision-making through political action and social mobilisation.

Women in Kenya, as elsewhere in developing countries, are denied the full enjoyment of propertyand land rights, in spite of the governments commitment to promoting gender equality by ratifyinginternational instruments that seek to protect women’s rights. Until August 2010, the constitutionprohibited discrimination on the basis of sex, but undermined this protection by condoningdiscrimination under personal and customary laws. Kenya has made positive steps in developinga Constitution that reflects international standards of gender equality, and enacting laws to giveeffect to the constitutional provisions. However, due to the deeply entrenched prevailing patriarchalattitudes, it is still difficult to attain the equality envisioned by the Constitution of Kenya 2010. Thenewly enacted laws, including the National Land Commission Act 2012, the Land Act 2012 and theland registration Act 2012 all entrench principles of gender equality in access to land. The generalpublic is not yet fully aware of the new changes that are likely to improve the women’s lot if fullyimplemented.

While women’s rights to land and property are protected under the Kenyan Constitution of 2010 and in various national statutes, in practice, women remain disadvantaged and discriminated. The main source of restriction is customary laws and practices, which continue to prohibit women from owning or inheriting land and other forms of property. Customary practices in Kenya generally grant women secondary rights to land, namely through their relationships to a male relative; women are rarely able to inherit land in their own right.1 Kenya has undergone legal reforms that are geared towards granting Kenyan women equal inheritance rights. This paper highlights some of the key challenges that women face as a result of customary practices while at the same time looks at some of the legal reforms that promotes women’s rights highlighting gaps that still exist.

The Beijing Platform for action calls for bringing a gender perspective to all structures,institutions, policies and programs. Its paragraph on gender mainstreaming specifi callystates that “governments and other actors should promote an active and visible policy ofmainstreaming a gender perspective in all policies and programs so that, before decisionsare taken, an analysis is made of the effects on women and men, respectively.”1 This isconsistent with the approach of the United Nations Commission on Human Security whichquite successfully integrates gender concerns throughout their report. The report concentrateson distinct but interrelated issues concerning confl ict and poverty. These include protectingpeople in confl ict and post confl ict situations, shielding people forced to move, over comingeconomic Insecurities, guaranteeing essential health care and ensuring universal education.The commission discusses for example the differential impact of poverty on women as wellas man and specifi c problems that women face as immigrants or refugees. The report alsorecognizes the important role women play in peace process including confl ict resolution.2

Access to land and property rights are extremely important for women’s economicempowerment in Kenya. In most rural areas of Kenya, access to land is the basis ofeconomic sustenance, ensures greater security and leads to higher investments forincreased productivity. Some authors note the limits of the economic potential land andproperty rights have in Kenya, since formal titling programs have had a weak impact onperceived land rights, credit and crop yields.2 A greater number of authors argue formalrights are crucial for economic development.3 Others note a proliferation of smaller scalecredit-giving organizations which do not require land as collateral; however, withoutsecure access to agricultural land, there is little incentive to invest available credit in landwhich could be easily lost. Regardless of this debate, access to land and property rightsfor women is a cross-cutting issue which affects economic development, human rights,and access to justice.

The 2008 global report by the Commission on Legal Empowermentfor the Poor highlighted insecure access to landas a key cause of recurrent poverty and an impediment to development.1 Though land title does not ensure secure access,Kenyan women hold an exceptionally small proportion ofregistered titles.2 The impacts of being denied access to landare disproportionately felt by Kenyan women, denying themnot only access to economic sustenance but also leaving themsocially ostracized.