Kenya’s property law system does not allow women to enjoy full economic and social rights. The Constitution allows discrimination in customary property and family law and personal-status law. The Law of Succession Act does mandate equality between the sexes in inheritance, but it does not apply when there is a relevant customary law in existence. So, when a customary law exists prohibiting widows from claiming a deceased husband’s property, that law prevails. This, in turn, can lead widows to a life of poverty, forcing many to live in slums and even enter prostitution. Another prevalent customary law is that a widow must be cleansed by having unprotected sex with a man after her husband dies to rid her of his spirit, or face eviction from her clan. The high rate (4.9 percent of adults) of HIV/AIDS in Kenya exacerbates this problem.

The Kenyan government in the latest ICESCR periodic report claimed that although discrimination is allowed in customary law, “the courts have been very proactive in declaring the rights or women as far as property is concerned whether in matrimonial, succession or other suits.” The FIDA/IWHRC supplement report negates that allegation, saying that the government dismisses the negative impacts discrimination in the law has on Kenyan women, and that courts and other tribunals continue to take away women’s rights by not granting them land, water and housing.

Complied from: Kenyan Laws and Harmful Customs Curtail Women’s Equal Enjoyment of ICESCR Rights, Supplementary Submission to the Kenyan Government’s Initial Report under the ICESCR, Federation of Women Lawyers - Kenya (FIDA-Kenya) and the International Women’s Human Rights Clinic, Georgetown University Law Center, Washington, DC, USA, 3 October 2008 (PDF, 35 pages); 2008 Country Profile: Kenya, The United States President’s Emergency Plan for AIDS Relief, last accessed 29 December 2008.