Gender And Access To Property

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GENDER AND ACCESS TO PROPERTY

The two terms gender and access to property denote how the masculinity or femininity relate to access to property. To concisely capture the discourse that is espoused by the two terms it is of vital importance that the research looks to the past.

It’s the past that usually informs our present course of action and this is best exemplified by the enactment of our laws. It has often been stated that laws are enacted to cure some mischief currently witnessed in society.

Access to property with respect to gender has a dark past, grounded in culture as well as legislation. It was the arena that women lost each time they entered the field. But that is the result you get from starting at a disadvantageous position where norms in society tends to portray the inability or rather the dangers that could arise with the potential of women owning property.

Property is defined as things commonly recognized as belonging to a person or group. Important types of property include real property (Access to land), personal property (other physical possessions such as a home, a car, etc.), and intellectual property (rights over artistic creations, inventions, etc.).

Women are very often discriminated against in their access to property. This includes: the legal incapacity for women to sign contracts, Marriage needing their husbands to sign or approve any purchase or administration of property, and women unable to inherit property.

Today women and girls make up 70 percent of the estimated 1.2 billion people living in absolute poverty, defined as living on less than $1 a day. Women hold only an estimated 1-2 percent of all titled land in the developing world.

With this, the “other” community of Intersex, Trans and other members of the LGBT community are further disenfranchised because in the hierarchy of opportunities, societal acceptability and, in our discussion access to property, this group of people is at the bottom.

Gender equality in property rights is critical not only as a human rights issue but also as a key driver of overall economic development.

Even though the word gender denotes both male and female the research endeavors to concentrate its lens at the place of women in our society with respect to their access to property.

Men have since time immemorial been the custodian of almost every noteworthy instruments in society from the mundane like which foods are theirs to eat to the brokerage of power in politics.

Hence this research insistence to navigate the issue at handplacing so much regard on women. The research will delve into the following in its quest to bring out the discourse; what is gender? What is access to property? How has culture viewed women with respect to accessing and owning property? What is the position of legislation both repealed and currently effective on accessing and owning property for women? What has been the courts stance in this? What consequences if any, were prevalent? The opinion of the researchers in view of the foregoing and what the present status quo.

 

What is access to property?

The term access to property connotes ways property can be acquired. In Kenya property can be legally acquired in the following ways, through purchase, inheritance, gifts and donation.

 

How has culture viewed women with respect to accessing and owning property?

At foremost it is prudent to understand what the term culture espouses in the present context. Culture in common parlance is simply a people’s or community’s way of life. Traditional African Societies were mainly governed by culture.

Culture involved a couple of do’s and don’ts for the particular member of society and it served the best way at the time of regulating the conduct of members in the absence legislation. The rich history of Kenya dominated by cultural practices has not been discarded it was adopted in the Promulgated Constitution on the eighth of August 2010.

Culture and tradition have greatly influenced the family system in Kenya. Our society is patriarchal and is known for its history of oppressing women. Many women surrender their power and human rights and remain prisoners of the society[1].

Feminists and women empowerment activists have contested that women are yet to get the credit they deserve for their important role in the family and society. According to Cain, …the category woman’ has not so much been wrongly defined by men, as it has been ignored and undervalued. Yes, women are nurturing. Yes, women value personal relationships. These attributes are to be valued”[2]

An African saying goes, “The place of a woman is in the Kitchen.” This is the conventional role of the woman; to be a good wife, to take care of the children, to be caring, forgiving and sacrificing[3]. Most men will propose that good wives are the ones who hold families together, are not ambitious or interested in politics, are hardworking and submissive. They should stay at home to love, obey and care for their husbands. Even when husbands are unfaithful, it is because their wives have neglected them. At work, they refuse to apply for positions because it is not feminine to look ambitious. A woman should only be seen and not heard[4].

This state of affairs led to discrimination of women with respect to property rights and matrimonial property both of which were to pass through to the beneficiary as a result of inheritance.

What is the position of legislation both repealed and currently effective on accessing and owning property for women?

Before the promulgation of the constitution and the Matrimonial Property Act 2013 women’s property rights were governed by the Married Women Property Act of 1882 a statute of General Application in Kenya pursuant to the Judicature Act Cap 8 Laws of Kenya[5].

Married Women’s Property Act, 1882, was adopted by Kenya as part of its laws. This, despite the fact that England found the law wanting and made changes thrice; in 1967, 1970 and 1973. Kenya soldiered on with the same law until 2010 when the new constitution was promulgated[6].

The MWPA of 1882 was intended to protect the property rights of women and this was exemplified in Part 1 (1) that, married women shall…..be capable of acquiring, holding and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she was a feme sole, without the intervention of any trustee[7].

It was however silent on how marital property was to be divided upon dissolution of marriage[8]

The effect of this silence is illustrated in the case of Gissing v Gissing[9] the husband purchased the matrimonial home and had it conveyed into his sole name. The wife provided money for furniture and improvements but there was no express agreement on how beneficial interest would be shared. Held, the House of Lords held that Mrs. Gissing made no contribution to the house from which a beneficial interest could be inferred as she had not contributed money directly to the property but had spent 220 pounds of her own money in buying furniture as laying of the lawn and Mr. Gissing always paid the Mortgage installments.

With respect to the Kenyan Jurisprudence Karanja v Karanja was the first case to recognize indirect contribution. The wife had made substantial contributions to the running of the household, assisted paying fees and run the home for five years when the husband was abroad. She brought an action under section 17 of MWPA that she made financial contributions towards purchasing matrimonial property supported by salary deductions to her husband’s account. Her husband had chased her away from their home. She was awarded one third of Ksh. 900,000 financial contributions. Held: the court held that in cases where the property was acquired as a joint venture, it will be regarded as belonging to the spouses jointly no matter in whose name the property stands and that the absence of an agreement or intention that the contributing spouse share in the matrimonial property does not exclude imputation of such intention

Ratio decidendi: the court went on to explain that where an African husband and wife are in salaried employment, it would be implied that the wife is contributing indirectly through payments for household items and other expenses which the husband would otherwise have to pay. The husband therefore held the immovable properties in trust for himself and his wife in proportions of two to one.

Subsequent cases on matrimonial property such as Neritic v Nderitu, Kivuitu v Kivuitu and Muthembwa v Muthembwa elucidated the observation held in Karanja v karanja[10] that property could be divided upon proof that one spouse had directly or indirectly contributed to the property.

This jurisprudence dictated the lay of Matrimonial property until the decision of Court of Appeal in Echaria v Echaria[11], the Court of Appeal held that the only basis for allowing division of matrimonial property was through direct financial contribution to property even though it was acquired through marriage.

The effect of this led to a destruction of all the gains that women had gained as a result of the previous court decisions on the matter and since the Court of Appeal was at that time the highest Court in the Land its decision was binding on all other courts and was not subject to appeal or review. The court’s function became functus officio.

Current legislative framework governing women’s access to property

  1. THE KENYA CONSTITUTION 2010

The dawn of the new Constitution ushered a new era and this is exemplified by the opening statement of the court in the case of Federation of Women lawyers Kenya (Fida-k) & 5 Others v Attorney General & Another[12] Only last year and in our early maritime history we constructed a great ship and called it our new Constitution.   In its structure we put in the finest timbers that could be found. We constructed it according to the best plans, needs, comfort and architectural brains available. We tried to address various and vast needs of our society as much as possible.   We sent it to the people who ratified it. It was crowned with tremendous success in a referendum conducted on 4th August 2010….…..The aspirations and hope of all Kenyans was borne on 27th August 2010. We achieved a rebirth of our Nation.   We have come to revere it and even have an affection for it.   We accomplished a long tedious, torturous and painful chapter in our history. We all had extraordinary dreams. It is a document meant to fight all kinds of injustices.   It is the most sophisticated weapon in our maritime history.   As Kenyans we got and achieved a clean bill of constitutional health

The result of the coming into force of this Constitution was its effect, it was established as the supreme law in our country and everything that was inconsistent to it was null and void to the point of its inconsistency[13]. In addition to this the general rules, international law shall form part of the laws of Kenya and any treaty or convention ratified by Kenya shall form part of the laws of Kenya under this Constitution[14].

The above provisions of the Constitution had the effect of giving international instruments force grounded under the supremacy clause of the constitution. State parties shall accord women in civil matters legal capacity identical to that of men. These opportunities include rights to conclude contracts, administer property and equal treatment in the administration of justice[15]. It further goes on to add that, state parties are to take all appropriate measures to eliminate discrimination against women.

The constitution of Kenya abhors discrimination of whatever kind and this has been reflected under Article 27[16], every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The State shall not discriminate directly or indirectly against any person on any ground of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

The Universal Declaration of Human Rights highlights the right to own property[17], as a result of this provision signatories to this convention need to ensure compliance and since Kenya is not only a signatory but has entrenched in its law that international instruments shall have the force of law. Then it follows its provisions just like The Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), have to be followed to the letter and spirit.

Article 40[18] every person has the right, either individually or in association with others, to acquire and own property–of any description; and in any part of Kenya. The phrase every person is taken to mean men, women and even transgender since it has already been established in the case of Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others[19] by Justice Odunga’s where he observed and held as follows “…it is my view that to discriminate persons and deny them freedom of association on the basis of gender or sex is clearly unconstitutional. That would contravene the provisions of Article 27(4) of the Constitution which provides that:

  • The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.….”

 

  1. MATRIMONIAL PROPERTY ACT

This act gave women a new set of rights in relation to land ownership, including the right to consent to the sale of land bought jointly with their husbands. In Kenya a woman’s right to own property, inherit and manage or dispose of her property has greatly attacked customary practices that grant woman only secondary rights to land through male relatives.

Federation of women lawyers said through their research that despite the fact that about 32%of households in Kenya are headed by women, only1% own land titles on their own while 5% own land jointly with their men.

This act strengthened women’s land rights which reinforced the equal rights enshrined in the constitution to both spouses when they own property.

However law experts and rights advocates say there are still too many obstacles including;

  1. Cultural traditions
  2. Luck of awareness

Such obstacles prevent women from accessing their fair share of land and property especially in cases of inheritance. Again despite the matrimonial property act giving women the capacity to register their property, the majority of women struggle to get there as they are not aware that they should be registered as owners.

Under this Act women can now buy and register land individually and can inherit land from their parents instead of the land being automatically split to all children. In case of a polygamous marriage each wife has a right to a portion of land based on the contribution to the purchase and upkeep of the land.

In case of divorce settlement, the law now takes into account factors other than how much each person in the marriage paid for it, meaning a woman’s nonmonetary contributions including; domestic work, home management, childcare and firm work, give her the right to more in regards to the couple’s land.

This act has its limitations since millions of women in Kenya still find themselves fighting to hold their property after a divorce or the death of their husbands, this is because this act only applies when husband and wife have bought property together. It does not cover ancestral property which has been inherited from the husband’s father.

This was clearly illustrated in Bridget Aniang’o when her husband died in 2009, the land they owned had been inherited from Aniang’o’s father-in-law giving her no legal rights to keep once her husband died. So her brother-in-law was able to sell the land. Without her consent, when she consulted with the husband’s family, and the village chiefs and elders, she was only allowed to build a house, however the buyer of the land contested the decision and sued Aniang’o’s seeking to evict her and the children. Her case is being heard at the magistrate court of Kisumu.

Rights experts say that women’s land rights is still slow, especially in rural parts of the country where patriarchal traditions and community justice system often override national legislation.

FIDA has been using radio talks and TV shows to create awareness to women about their property rights.

It’s clear that Kenyan laws have recently granted women rights to claim land after divorce if the land was jointly bought during their marriage but they still have no automatic access to inherit through the husband’s family.

MARY RONO V JANE RONO & ANOTHER

This is a succession matter relating to Stephen Rono. At his death he left a number of movable and immovable property. He had two wives and nine children (6 daughters and 3 sons).

The 1st wife had 3 sons and 2 daughters, the 2nd wife had 4 daughters. The land in dispute comprised of 192 acres, the land at first instance was to be divided as follows; the 1st proposal by the 1st wife was that, they have 108 acres 22 acres to go to her 3 son and 14 acres to her 2 daughters and herself.

The second wife was to share 70 acres to her 4 daughters and herself getting 14 acres each. This was unfair to the second wife and proposed 50/50 share of 96 acres to each wife. The court held that “the situation was peculiar though not uncommon in that, one house has sons while the other has daughters. It follows that all the daughters will get equal share and all the sons will also get equal shares. However due to the fact that daughters  have an option of marrying, they will not get equal share to boys, as per the widows if they were to get equal shares then the  second widow will be disadvantaged as she does not have sons. Her share should be slightly more than that of the first widow whose sons will have bigger share than daughters of the second widow.

The distribution was as follows;

  1. First widow (Jane Rono) – 20 acres
  2. Second widow (Mary Rono) – 50 acres

Total – 70 acres

  • Each daughter got 5 acre, total 30 acres
  1. Each son got 30 acres, total 92 acres

However the ruling in the appellate court ordered the previous distribution to be set aside as follows;

  1. First widow-30 acres (Jane Rono)
  2. Second widow- 30 acres (Mary Rono)
  3. The nine children 14.44 acres to each

This was after the argument that the deceased ought to have been distributed equitably taking into account all relevant factors and the available legal provisions.

 

  1. TRANSGENDER PEOPLE

When looking at the rights of transgender people in accessing property, one has to take into account their access to work or any source of income because it determines the ability to finance the access and acquisition of property.

A study done by the European Union Agency for Fundamental Rights (FRA) stated that only 49% of the transgender respondents (age range 18-81) are in paid work and 38% of single transgender people are poor, more than twice the number for the general 18-64 year old population (14%).

Many transgender people experience discrimination when looking for a job. Others suffer physical violence from people intolerant of their lifestyle. As a result to hide their preferred gender because they fear it might threaten their employment status.

This affects their access to property because they face discrimination from trans phobic individuals who are unwilling to transact with them. The discrimination also appears in other ways such as access to decent housing where landlords do not want to rent to trans people.

However in countries where the “other “category is recognized, there are laws that protect them from this type of discrimination.

Multiple countries legally recognize non-binary, gender queer or third gender classifications. These countries include Argentina, Austria, Australia, Canada, Denmark, Germany, Iceland, India, The Netherlands, Nepal, New Zealand, Pakistan, Thailand, U.K, U.S.A and Uruguay.

In Pakistan there is the Transgender Persons Act 2018 which not only ensures the right to be recognized as per his/her perceived gender identity, it also spells out their fundamental rights, including inheritance and access to other forms of property.

In America, the U.S. Department of Housing and Urban Development (HUD) has stated that discrimination against transgender home buyers or tenants based on their gender identity or gender nonconformity may be illegal sex discrimination under their federal Fair Housing Act.

In Kenya, the constitution under article 27 “The State shall not discriminate directly or indirectly against any person on any ground of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”

Property in Transgender Persons

Overall the right for trans-people to own property in their desired gender is dependent upon the legality and acceptability of the jurisdiction to recognize the process. In countries where Transgender and “others” are recognized as a third gender, trans-gender people can own property in their assumed name.

If the transition happens after one has already owned property, they have to be granted a Gender Recognition Certificate through:

  • Statutory declaration – a statement witnessed by a magistrate or solicitor (a small fee will be charged);
  • Deed Poll

This will subsequently reflect all their documents including ID cards, passports, log book, personal possessions, mortgage and title deeds.

For countries which do not have these rights such as those in Africa and the Middle East, the transact as the gender assigned at birth but socially live as their desired gender. This puts them in a very vulnerable position.

Their fate is mostly left to the whims of the person who has power.

INTERSEX PERSONS

Intersex people often have difficulty obtaining legal identity documents that reflect their gender, or may not be issued identification at all, which can prevent them from going to school, opening a bank account, getting a job and ultimately, accessing property.

In addition, intersex persons face other forms of institutionalized discrimination including: cultural and personal beliefs, opinions, attitudes and behaviours based on prejudice, disgust, fear and/or hatred.

The right to non-discrimination is guaranteed in various international human rights instruments. Further, national laws are clear on respect of human rights. The Constitution of Kenya 2010 provides that every person has inherent dignity and the right to have that dignity respected and protected. The use of the word “person” without any distinction to sex if liberally interpreted can be construed to also cover the intersex people. With this, the right to own property under Article 40 of the Constitution is applicable to intersex persons.

ACCESS TO PROPERTY FOR THE GAY AND LESBIAN COMMUNITY

Same sex marriages pose several questions on property laws. Mostly in terms of succession where the surviving partner is at risk of being disinherited by the family of the deceased.

In the South African case of Laubscher N.O. v Duplan and Another [2016] the  matter concerned the intestate succession rights of unmarried same-sex partners in a permanent same-sex partnership.

The deceased and the respondent had lived together since 2003 and during this time had undertaken reciprocal duties of support.  Their partnership was neither solemnized nor registered.

On 13 February 2015, the deceased died intestate leaving behind no descendants or adopted children.  His parents had also passed one and his brother, the applicant, was the only surviving sibling and executer of the deceased’s estate.

The dispute was about whether the respondent is entitled to inherit the intestate estate notwithstanding the fact that there was never a formal solemnisation or registration of their partnership.

This was an appeal against the decision of the High Court which had granted an order declaring the respondent to be the only intestate heir to the estate of the deceased.  Furthermore, the applicant was removed as the appointed executor of the deceased estate.

The appeal was dismissed.

Conclusion

Recommendations to improve access to property for “other” include:

  1. Establishing neighbor support and security programs and training relevant agencies on the specific needs of transgender/intersex people.
  2. Ensure the establishment and implementation of appropriate measures which provide effective protection against discrimination on grounds of sexual orientation or gender identity in employment and occupation in the public as well as in the private sector.
  3. Create awareness for the plight of minorities.

Research Done By

ANTHONY WANGILA RAKULA

CORINA OYIER

FELIX KIMATHI

WANJIRU KIIRU

ALFRICK RIOBA

 

[1] Engels, F., Morgan, L.H, & Engels, F. (1972). The origin of the family, private property and the state. New York: Pathinder Press

[2] Cain, P. A. (1989) Feminism and the limits of equality. Santa Clara University School of Law at p. 836

[3] Kabira, W., Muthoni, W. (1994). The road to empowerment. Nairobi: African Women’s

Development Communica􀆟on Network, FEMNET

[4] Ibid

[5] Section 3, The Judicature Act Cap 8 Laws of Kenya

[6] < https://www.standardmedia.co.ke/article/2001231875/the-rise-of-kenya-s-matrimonial-property-sharing-law> accessed 15th July 2019

[7] The Married Women Property Act of 1882

[8] Ibid

[9] (1970) All ER 780

[10] Supra note

[11] Civil Appeal No. 75 of 2001[2007]

[12] [2011] eKLR

[13] Article 2(4), The Constitution 2010

[14] Article 2(5)(6), ibid

[15] The Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), Section 15

[16] The Constitution of Kenya 2010

[17] Universal Declaration of Human Rights, Article 17

[18] Ibid

[19] [2014]eKLR