The African society does not believe in ownership of land by women, the Ogiek, Endorois, Sengwer, Maasai, Boran, Yaku, Batwa and Hadza’be are just a few examples of them.
These communities are fighting for the recognition of their rights but as they do this, there is deafening silence on the right of women to the land within the communities.
Customary, statutory and religious laws seem to conspire to relegate women to inferior position where rights to land are concerned.
Land is an important source of security against poverty across the developing world, but, in many places, unequal rights to land put women at a disadvantage, perpetuates poverty, and entrenches gender inequality.
Women fight alongside their communities for land rights but their concerns are quickly forgotten when the communities get the right being sought.
It is clear that the property rights in land of ownership, control and access of the members to community land are not equal and the quest for community rights recognition takes precedence over all other identities within the community.
Women are perceived to be transient from their parent’s home awaiting marriage thus membership to society is a thorny issue.
An alarming number of cases are been reported of in-laws having evicted widows upon the death of their husband, for the widow is not considered as part of the family and is expected to return to her people and fend for herself and the children.
“My husband died after 15years of our marriage and though our marriage was customary I was forced out of our land. My in-laws wanted my brother in-law to marry me but I refused and returned to my parents place with my four children,” said Veronica kagendo.
There is little to indicate what the exact distribution of property at separation is. At dissolution, distribution of property depends on whether such property is land or otherwise and whether it has been acquired before or after marriage.
Generally, a divorced wife has a right to take her personal effects, presents given to her by her husband and gifts given to her by her family.
All other property – the house, furniture and land given by the husband or his family, remain with the husband. Among the Taita of Kenya, the wife is entitled to property acquired during the subsistence of the marriage provided it is the husband who divorces her. A divorced wife is not entitled to maintenance in any form. In some cases, however, for example among the Luhyia, Kisii, Masaai and Taveta of Kenya, the wife is not to take anything out of the matrimonial home even though acquired by her personal efforts.
It’s not surprising that less than 5% of all title deeds to land are held by women.
They produce nearly half of the world’s food but in some countries they own as little as 2% of the land according to figures from United Nations.
Women equal rights to access, own and control land, adequate housing and property are firmly recognized under international laws.
However, at country level the persistence of discriminatory laws policies patriarchal customs tradition and attitude in countries like Zimbabwe and Lesotho are still blocking women from enjoying their rights.
According to the FIDA Report (2009), Kenyan women are the main agricultural producers and food providers. Women constitute 80% of the agricultural labor and provide about 60% of farm derived income. Yet, only 5-6% of land in Kenya is registered jointly with women and only 1% is registered by women alone.
The Universal Declaration of Human Rights stipulates that human rights apply equally to all, regardless of sex, yet women around the world are disproportionately affected by human rights violations, which keeps them trapped in poverty.
Women have fewer benefits and protections under legal systems than men and are largely excluded from decision-making structures.
Women also lack control of financial resources, have larger work burdens, and are more likely to suffer from social isolation and threats or acts of violence.
Groups like ACORD (Agency for cooperation and research in Development), IFAD (International Fund for Agricultural Development), and United Nation-Habitat have been on the fore front line for years advocating for laws and policies that enhance equality between men and women in land ownership.
In recent years most African countries have at least begun the introduction of land policy reforms. The African Union has adopted a policy framework to strengthen land rights and secure livelihoods.
Policy makers, customary authorities, civil society organizations, and the development community are paying increased attention to land and natural resource rights.
International land rights NGO Landesa, has organized a series of trainings on the Constitution and extended community conversations in the remote rural community of Ol Pusimoru with women and traditional elders, as well as a short curriculum for the schools.
And early indications are that elders in particular have been transformed into powerful advocates for women and girls’ rights.
“Born in a Maasai community, a community true to its culture we never expected our father to give us land but maybe because we are all girls he did not have a choice. We all inherited land from him a decision even his community was against it but with time learnt to accept it,” Maryann Lengayan
Kenya’s new constitution was promulgated in 2010 and launched a bold new set of land rights for women within its broader responsibility to address both land rights security and gender equality.
Several provisions exist in the Constitution of Kenya 2010, guarantees the rights of women to own property including Land. These are provisions relating to; access to justice, national values and principles, equality and freedom from discrimination, the protection of the right to property, Principles of land policy, and judicial authority.
Article 40 (1) of the Constitution has entrenched equal rights for every person, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Article 40 (2) also goes on to demand that Parliament may not enact a law that permits the State or any other person to arbitrarily deprive a person of property of any description or of any interest in, or right over. Moreover, it is the States obligation as per Article 27 (4) of the Constitution not to discriminate directly or indirectly against any person on any ground.
Kenya is now at the forefront of the movement in sub-Saharan Africa to mainstream gender concerns: under the new constitution, its women are now able to own and inherit land and are guaranteed equal treatment to men under the law.
This reform ends widespread discrimination against unmarried, widowed, and divorced women, which was often upheld by customary law.