JUSTICE Briefing note POOR for the January 2010 Volume 4 | Issue 1 Women's Access to Land in Kenya 52675 n Andrew Harrington* Introduction The 2008 global report by the Commission on Legal Em- powerment for the Poor highlighted insecure access to land as a key cause of recurrent poverty and an impediment to de- velopment.1 Though land title does not ensure secure access, Kenyan women hold an exceptionally small proportion of registered titles.2 The impacts of being denied access to land are disproportionately felt by Kenyan women, denying them not only access to economic sustenance but also leaving them socially ostracized. Generally speaking, there can be said to be two main schools of thought on how to address women's land insecu- rity. The first school advocates increased attention to formal law, legal mechanisms and entrenched rights. The second school supports local systems and community approaches, either despite or within formal law. Proponents of the formal school downplay local norms and practices as they are seen Interview with widowed female land owner, Western Province. to undermine women's fundamental rights. Conversely, sup- porters of community practices laud them for their acces- sibility, application of local knowledge, low cost and speed. that access to land for women should not be framed as a `for- mal vs. informal law' issue. The same local power dynamics The majority of programming on women's access to land underpin, control and ultimately undermine access for wom- in Kenya has focused on formal legal approaches3; however, en in both arenas. These findings will be used to inform future there has been an increasing interest in the potential benefits initiatives on women's access to land. of engaging informal systems in support of women's access to land. This latter interest includes the advent of certain hybrid Kenyan land institutions which incorporate local norms and * The author is grateful to Dr. Tanja Chopra and Bonita Ayuko of the Legal Re- practices. sources Foundation for their help with the research and especially grateful to the community paralegals whose local knowledge and aid made field research pos- sible. The author can be contacted at andy_harrington78@hotmail.com. The World Bank's Justice for the Poor program in Kenya 1 "Making the Law Work for Everyone" Commission on Legal Empowerment recently partnered with the Legal Resources Foundation Trust of the Poor (2008). 2 "Voices of Women Entrepreneurs in Kenya" IFC Gender Entrepreneurship (LRF) to conduct an exploratory study on women's access to Markets & Foreign Investment Advisory Service IFC & World Bank (2006); land in Kenyan agricultural communities, the results of which "Land: Better Access and Secure Rights for Poor People" DFID (2007). 3 are summarized here.4 The goal of this research was to be- See generally: Harrington, A. "Women's Access to Land: A Review of the Lit- erature." Justice for the Poor/Kenya, World Bank (July 2008). gin developing an understanding of how formal and informal 4 A fuller exploration of the findings will be released in a forthcoming research justice systems govern women's access to land in agricul- report. Qualitative research was carried out in September and October, 2008 in Central Province (Nyeri North and Nyeri South Districts), Rift Valley (Nakuru, tural communities and how women navigate such systems in Koibatek, Eldama Ravine and Baringo Districts) and Western Province (Mumias, search of their rights. Results of this study strongly suggest Butere, Emuhaya, Kakamega and Vihiga Districts). the world bank Inheritance: A Key Way Women Access Land Past formal titling initiatives have led to men holding al- most all land titles in Kenya. These past initiatives per- mitted some informal practices, such as the patrilineal holding of land, to be extended and entrenched. Inheri- tance systems based on these patrilineal kinship structures remain strong and now operate supported by the formal system. Since women seldom purchase land, inheritance from men remains the principal manner in which women access land. The two key groups of women inheriting are widows and daughters. Though widows may not inherit land in the ab- Focus group interview with local family and elders, Central Province. solute sense under most patrilineal systems, they are often permitted to remain on their husbands' lands and retain a `life interest'--in essence holding land in trust for any sons who some cases, land-grabbers may engage the formal legal system will continue the patrilineage. Widows are known to suffer and rush to court to file an official succession claim and ex- land grabbing at the hands of brothers in law. clude female beneficiaries. Daughters are nearly universally denied access to land Local Mechanisms: "Custom", Power through inheritance because, under patrilineal systems, Dynamics & Lack of Engagement they are perceived as transients who will eventually marry away; they cannot inherit land because if they do it will be When women suffer such land disputes, research indicated incorporated into their husbands' patrilineage. Thus, broth- they follow a rough hierarchy of steps in their efforts to re- ers almost always seek to exclude their sisters from a father's solve them, usually working through local authorities, infor- inheritance--even if the father explicitly listed them in his mal and formal institutions. At each step, significant barriers will.5 For example, one paralegal interviewed recounted how exist to women's seeking justice. Cultural practices alone her father willed her and her sister the entirety of his land may be strong enough to deter a woman from pursuing her holdings. However, her neighbours and relatives intervened case and lead her to abandon a claim entirely. Otherwise, immediately after his death seeking to appropriate the land. dominant parties make false claims to `custom' in usurping Only after a lengthy and bitter court battle did she finally suc- women's lands, but since they are inevitably connected with ceed in securing her inheritance. local power structures (if not part of them), such claims are accepted by the community at a woman's expense. Bring- Usually, such land grabbing is not acceptable following lo- ing a land dispute to her family and community may also cal practices and usually runs against them. "Custom" is falsely result in hostilities. Such women are considered disruptive invoked as an excuse. Despite some instances linked to infor- and may be denied family support mechanisms. mal practices, the overarching motivations are self-serving. Some grab lands for economic reasons (as a commodity) while Should a woman approach the provincial administra- others do it for cultural reasons (a cultural commodity insofar tion, redress is unlikely. Provincial administration officials, as it increases the size of land holdings for inheritance by their mainly chiefs or assistant chiefs, are `gatekeepers' between sons). In-laws and brothers `forum shop' and use whatever the informal and formal systems. Instead of challenging lo- means available which best support efforts to attain their goals. cal power dynamics which are stacked against women, they They may engage community systems which they persuade to feel obliged to uphold them to retain their legitimacy in the support denying a woman land. They may choose to engage eyes of the community and maintain peace within it. They formal land mechanisms at the local level which exclude wom- are thus swayed by false justifications of "custom". They may en and likewise have the propensity to rule against women. In also be bribed by more powerful parties, or simply refer cases back to the family level. In the worst cases, chiefs themselves are directly responsible for land rights violations. One inter- viewee recounted how her chief had stolen her land deed and 5 Research indicated an apparent trend whereby daughters with good knowledge tried to appropriate her lands; upon attempting to fight back of formal legal rights are more likely to successfully demand and receive lands through inheritance as well as receive land as a gift from their fathers. The find- against this injustice, the chief went about destroying her and ing indicates this may be an area where further research ought to be considered. her family's reputation causing her to lose her job. Community-level land institutions also handle certain land issues and safeguard women's access to land. Land Control Boards (LCBs) were implemented to regulate trans- actions involving agricultural lands with an eye toward pro- tecting against unscrupulous and unfair sales.6 Land Dis- putes Tribunals7 (LDTs) were established inter alia to handle land disputes over agricultural lands. While perhaps tooled for different purposes (regulating land sales and presiding over land disputes respectively), both institutions are gov- erned by, and reliant upon, the same local power dynamics which disadvantage women. The propensity to reflect local power structures and reproduce negatives practices by both institutions mean women are disadvantaged in proceedings and frequently excluded entirely. This is of concern since the Draft National Land Policy aims to replace both institutions with a singular more inclusive mechanism, albeit still based on local power structures and practices.8 Formal Justice System: Community Focus group interview with local assistant chief, elder and research Pariah Status and Systemic Barriers group, Rift Valley Province. The few women who opt to approach the formal system ex- perience their own set of problems. Courts are seen by many Succession Act9, an intestate husband's widow only re- to undermine local power structures and breed community ceives a life interest in his estate; by contrast, a widower discord. Those interviewed as part of the study stated that has no such limitation. Daughters are not explicitly in- their communities were infuriated when someone went to cluded in the law as potential beneficiaries in the case that court--unless the claimant was part of the power structure their father dies intestate. This lack of explicit reference themselves or followed the hierarchy. Women who persevere is interpreted by local officials in a cultural manner which and pursue their case may become social pariahs--regardless excludes girls. of whether they win or lose--and are frequently cut off from family and community support mechanisms. They are also Filing a succession claim over land in court is a daunting liable to face threats and actual physical violence, possibly affair. The actual claim process includes a dizzying seven- even murder for their `audacity'. teen different legal steps to complete, thirteen forms to be filled out, numerous affidavits to be signed, and takes be- Even if successful in engaging formal courts, the laws tween seven months to one year to complete. Costs are also do not always favor women's rights. Under the Law of high. The minimum possible cost of fully completing a suc- cession claim is approximately Ksh 8985 (USD$117)--an exceptional amount considering the low household incomes typical of agricultural areas. Lawyers can facilitate and speed up succession proceedings, however, engaging their services can cost up to Ksh 60,000 (app. USD$780)--not including filing fees. Magistrates' courts are far more nu- merous than high courts, but are often barred from hearing succession claims; a cost cap on claims within their juris- diction precludes most succession claims. Cases therefore must progress directly to high courts which are fewer, more distant and in which proceedings are expensive and more complicated. 6 Land Control Act 1967 (Cap 302). 7 Land Disputes Tribunal Act (Act No. 18, 1990). 8 Draft National Land Policy for Kenya, Ministry of Lands, National Land Poli- cy Secretariat (May 2007), Section 4.3.4 Land Disputes Tribunals. Research team meeting with community paralegal, Central Province. 9 The Law of Succession Act (Cap. 160). Conclusion This preliminary study strongly indicates that the lack of ac- cess to land for women in Kenya's agricultural communities cannot be framed as a failing of formal or informal systems, but rather as issues with both. Even the creation of fused or hybrid mechanisms, such as the LCBs and LDTs, has not increased access to justice. Underlying power dynamics and the use of such systems by self-serving individuals undercut gender equity efforts. The findings strongly suggest that the key to increasing access to justice at both the community formal and informal levels is to address power dynamics and understand further how they operate to the detriment of women. This would be aided if concurrent formal reform addressed barriers such as overly complicated procedures and unrealistic costs which further prevent women from realizing their rights. With land issues currently receiving a significant amount of attention follow- ing 2007­8 post-election violence, now is an opportune time to bring greater attention to the problems and issues regard- Focus group interview with member of local Land Disputes Tribunal and ing women's access to land in Kenya. community paralegal, Central Province. What is J4P? Justice for the Poor (J4P) is a global research and de- velopment program aimed at informing, designing and supporting pro-poor approaches to justice reform. It is an approach to justice reform which: · Sees justice from the perspective of the poor/marginalized · Is grounded in social and cultural contexts · Recognizes the importance of demand in building equi- table · justice systems · Understands justice as a cross-sectoral issue Contact us at j4p@worldbank.org and visit our web- site www.worldbank.org/justiceforthepoor for further information. Justice for the Poor Briefing Notes provide up-to-date information on current topics, findings, and concerns of J4P's multi-country research. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank.