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EMPOWERING WOMEN
Several constitutions in the region exempt customary and religious laws from the principle of nondiscrimination in family and inheritance law, undermining women’s property rights. Women in customary marriages cannot contest discriminatory customary laws on the grounds of unconstitutionality, and even the protection of a repugnancy test is uncertain. Subjecting all sources of law to the principle of nondiscrimination strengthens women’s rights. If protections are important enough to be included as a guiding constitutional principle, they should protect the entire population and cover the important family and financial decisions that affect everyone’s lives. Even with the constitutional provision of nondiscrimination in place, many statutes remain on the books—or are even added—that accord women and men different property rights (box 5.1). Ensuring the primacy of this constitutional provision is thus an important start but not the final step.
Reforming Formal Law A basic step for improving women’s economic rights and access to property is to bring consistency to legal provisions, including by removing contradictory provisions in existing areas of the law. Discriminatory legislation, BOX 5.1
Removing Exemptions to Nondiscrimination Provisions in Kenya Kenya’s new constitution, agreed to by referendum in 2010, removes the exemptions to discrimination granted to customary laws in family and inheritance matters since independence. Although religious laws remain exempt, this move represents a major breakthrough in how women’s property rights may be enforced in the future. How constitutional litigation will be used to challenge discriminatory customary practices, and whether it will alter judicial decision making, has yet to be seen. Cases such as Otieno v. Ougo (1987)—in which the claim of the widow and children to determine the burial arrangements for the deceased (with resulting implications for the division of the estate) were set aside in favor of the customary laws of the husband’s clan—could be decided differently in the future. But progress will also depend on judicial independence from ethnopolitical pressures. The new constitution also allows for the direct application of international law in courts without the need for domestic enacting legislation, making Kenya a monist state. This, too, could affect how the courts deal with discriminatory legal provisions from all sources. Source: Women–LEED–Africa database; Stamp 1991.