3. MODELO PROPUESTO
3.2 Elementos de Evaluación
3.2.5 Niveles de Solución de Incidencias y Problemas
Customary rights are guaranteed by the community, so do not offer exclusive ownership of land. The family members and the clan leaders are important witnesses to the transactions. Customary rights are formalised on registration but can be transferred even before registration. Sharing is strongly encouraged, weakening the potential for wealth accumulation and infrastructure investment, and farmers who need more land for cultivation are able to use land belonging to others through customary crop sharing arrangements. Customary rights offer stronger security of tenure for men than women because women’s access to land is linked to the institution of marriage. While ancestral land is subject to statutory law, the urgency to complete formal transaction is absent where customary rights are strong. Where customary rights are weak, there is an urgency to complete the procedures because statutory rights are the source of legitimacy.
Statutory land rights give exclusive rights over the land and all the resources on it to the registered owner: he can transfer, lease, subdivide, charge and develop the land. Where there are no common customary norms among the residents of an area, statutory sources of authority tend to be more important entrenching individualisation of property and weakening access for others to key sources located on private land. Men are typically the registered landowners holding title deeds, and there is no legal bar against selling family land without their wives’ consent, so that married women can seldom stop their husbands from selling valuable family property.
A constitutional amendment in 1997 provided that all Kenyans were entitled to fundamental rights and freedoms, whatever their sex, and prohibited laws that discriminate on the basis of sex. However, section 82(4) exempted certain laws from the prohibition against discrimination. It permitted discrimination:
with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law and with respect to the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons
Therefore, in spheres such as marriage, inheritance, and the application of customary law, discrimination was tolerated. Additionally, under section 82(6), if a Land Control Board gave or withheld consent to a transaction, this decision could not be challenged as discriminatory.
The National Land Policy Secretariat identified insecure land tenure as a problem associated with the management of land. The land policy (section 3.3) defines land tenure as ‘the terms and conditions under which rights to land and land based resources are acquired, retained, used, disposed of or transmitted’. It acknowledges that existing policies and laws on land have not provided equal protection to all categories of land rights, and the colonial and post colonial land administration has undermined traditional resource management institutions, and created uncertainty in access, exploitation, and control of land and land based resources. The National Land Policy25 provides for the protection of the rights of children and wives to private land. It also provides for protection from discrimination in alienation, holding and transmission of land based on sex, ethnicity or geographical origin, which is expected to improve security of tenure for women and children.
The former constitution of Kenya provided for enforcement of women’s property rights, but there is little record of women ever proceeding to institute suits to enforce their rights. Under The New Constitution26 Parliament is committed to enact legislation to regulate the recognition and protection of matrimonial home during and on termination of marriage, and to protect the interest in land of dependants of deceased persons, including spouses in actual occupation of land.
5
Legal pluralism and land dispute resolution
Legal pluralism recognises multiple legal orders, which are supposed to be more flexible, dynamic and responsive to uncertainty and change than a single, fixed legal system with a static property regime. Individuals may choose between these legal frameworks as the basis for their claims on a resource. The flexibility in informal sources of authority is sometimes seen to serve the interests of the poor better than the rigid formal sources of authority. However the legitimacy of informal sources of authority is not
25 Section 3.3.1.3.
always assured, especially when challenged by a claim supported by the formal system.
The institutions of the chief and village elders is a point where customary law and statutory law merge, and are often used to solve land disputes. The chief in the rural setting is always a local person and well versed with the customs of the people, and works with village elders who not only know the customs but also the families. Many issues are resolved at this level, drawing upon customary norms. Where conflicts go beyond them to the courts of law, then customary rights are explained by the chief, and thus non-statutory laws blend with the statutory. In the research 45% of respondents questioned about land conflict resolution indicated that they preferred statutory sources of authority, while 55% preferred customary sources. This is an indication that customary sources of authority serve the needs of rural communities slightly better. The relatively high cost of litigation disadvantages the poor from seeking redress through statutory mechanisms such as the courts of law, which are sometimes slow and corrupt, with judicial officers impatient and dismissive of women’s issues. Rural women, who most need court protection, have limited access. Customary systems, however, tend to favour men over women, especially in matters of land and property because of the patrilineal nature of the society. Most customary conflict resolution mechanisms are dominated by men with minimal or no female representation. There are a few women chiefs in Kenya but they work with village elders who are men.
Claims are as strong as the institutions that support them. When customary claims are pitted against statutory claims, the claim supported by stronger institutions win. In the Matter of theEstate of Ruenji27 and Re Ogolla’s Estate,28 for example, the High Court held that where a man has undergone a Christian or civil marriage, a subsequent wife and her children could not claim property.
6 Conclusions
Property rights in the Nyando basin vary over the different land tenure systems. In the ancestral lands the community is more tightly connected by customary norms, and statutory laws are applied less frequently. Customary norms link woman’s property rights to the institution of marriage, thus compromising their access, making them vulnerable, and providing poor security of tenure. In the newly settled areas the people are socially disconnected and have no common customary norms amongst them, and statutory sources of authority tend to be more important. Both men and women can purchase land, and their rights are protected by the
27 Estate of Ruenji (1977) KLR 21. 28 Re Ogolla’s Estate(1977) KLR 18.
written laws of the land, but some customary norms that link land ownership to marriage still apply at individual level. Women who have money can purchase their own land and are free of these encumbrances.
Inheritance is the most common way through which people acquire land in rural Kenya, and contributes to women’s disadvantage. Their male counterparts are provided with a head start because they inherit land and can lease or transfer for money to invest in alternative livelihoods, whereas the women can only cultivate the land unless they purchase it.
The new constitution is expected to reduce this vulnerability through relevant provisions in the Bill of Rights. Part (2) on ‘Rights and Fundamental Freedoms’ spells out the specifics on ‘equity and freedom from discrimination’. Article 27(1) states that ‘every person is equal before the law and has the right to equal protection and equal benefit from the law’; article 27(3) provides that ‘women and men have the right to equal treatment including the right to equal opportunities in the political, economic, cultural and social spheres’; article 27(4) further provides that ‘the state shall not discriminate directly or indirectly against any person on any ground including race ,sex, pregnancy, marital status, health, ethnic or racial origins, color, age, disability, religion, conscience, belief, culture, dress, language or birth’. Article 40, on the protection of the right to property also offers some gain for women.Article40(1) states that ‘subject to article 65, every person has a right either individually or in association with others, to acquire and own property of any description in any part of Kenya’. According to article 40(2), parliament shall not enact a law that permits the state or any other person to limit or in any way restrict the enjoyment of any right under this article on the basis of any of the grounds specified or contemplated in article 27(4). Women’s access to matrimonial property is also improved by the new constitution. Article 45(3) states that ‘parties to marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage’. Their security of tenure is also strengthened by article 45(4) which states that ‘Parliament shall enact legislation that recognises marriages concluded under any tradition or system of religious, personal or family law’.
The National Land Policy establishes three key land institutions: the National Land Commission, District Land Boards and Community Land Boards. The platform at the community level will allow the incorporation of customary systems and could be used to improve customary rights affecting women’s access to property and to counter customary rights that compromise that access. It is supported by the proposed constitution (chapter 5) which encourages communities to settle disputes through recognised local community initiatives consistent with the constitution and eliminates gender discrimination in law, customs and practices related to land and property in land. Civil society groups should follow keenly the bills to be drawn up by parliament to ensure that they do not take away the gains given in the constitution.
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