What family is as provided for by the Kenyan constitution?
In the Kenyan constitution, the term family has been interpreted under Cap 4 Bill of rights Part 2 on fundamental rights and freedoms, Article 45 (1) to (4) (b) as:
(1) The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.
(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
(3) Parties to a marriage are entitled to equal at the time of the marriage, during the marriage and at the dissolution of the marriage.
(4) Parliament shall enact legislation that recognizes--
(a) Marriages concluded under any tradition, or system of religious, personal or family law; and
(b) Any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution.
Concept of family as perceived by the traditional societies in Kenya.
The population of Kenya includes forty-two traditional ethnic groups (CBS 1994), which can be broadly divided into three groups: the Bantu, Nilotes, and Cushites. These three categories of ethnic groups are spread all over the country, and no particular group can be tied to one region. The regional boundaries do little to separate the similarity of customs and beliefs possessed by each group, owing to their common heritage and contacts over hundreds of years. Commonly, then, cultural traits exhibited by one ethnic group of a broader group in one region are the same as those of another ethnic group of the same broader group in a different region. With the advent of modernity—education, technology, urbanization, Western religion and changing socioeconomic factors—the Kenyan society has increasingly become universal, and ethnic identities and affiliations are steadily fading. This has brought a degree of universality in the way of life as contemporary society adapts to new situations that were totally unknown to traditional society. Family life has also changed, with many families caught between the traditional family system that advocates for solidarity and the modern system, which is characterized by individualism, a shift that developed because of changing religious,
Social, political, and economic factors. Family relations are undergoing redefinition within the emerging structures of socially and economically viable domestic groups. The HIV/ AIDS pandemic in the 1990s has also given a new dimension to the Kenyan concept of marriage and family by challenging African traditional beliefs, marital roles, familial obligations, morality, and sexuality.
Nevertheless, although these changes are widespread, in view of the cultural diversity in the country and difference in pace of adaptation to the changing social and economic environment, family structures and forms are not uniform. Evidently, family and marriage relations in Kenya are gradually changing in response to the changing social and economic environment. In this regard, indigenously favored family systems are eroding, either through complete abandonment or evolution into more viable forms that are conventional with modern Kenya.
Trending issues relating to same sex marriages both in Kenya and across the globe
Same-sex marriage is also known as gay marriage or a homosexual marriage. This kind of marriage is a ceremonial union of two people of the same sex; a marriage or marriage-like relationship between two women or two men.
Couples do not acquire the legal status of spouses, yet they have successfully challenged the laws against same-sex marriage in the u.s this is due to the reason that; the United States government and most other American states do not recognize such marriages, even if legally contracted.
The U.S recent example;
The United States this past June did something that the Catholic Church and the Vatican have for years railed against: granted marriage equality to its gay and lesbian citizens. Yet, Pope Francis had nothing to say about it. Not then and not now. Considering that Pope Benedict often vocally expressed harsh condemnation of marriage equality -- even traveling to Spain to speak out against it when that country was among the first to legalize marriage for gays and lesbians and called it a "threat to the future of humanity"-- it's astonishing how silent Francis is on the issue. I've noted in the past how he had no comment as country after country in Europe legalized marriage for gays and lesbians. And then this past June, he had no comment after the U.S. Supreme Court decision.
Legal Pros of same sex marriages
Children and Your Rights
If you plan on having or raising children, your status as a couple greatly affects your rights regarding your children. In marriage, both partners have the same rights and responsibilities. In a divorce, both partners can seek custody and visitation rights like any married couple. Upon death, the remaining parent automatically becomes the primary legal parent.
Absent marriage, same-sex couples can sometimes turn to adoption in order to gain the rights of legal parents. While no states may deny adoption to same-sex couples -- as long as they get married -- unmarried couples may run into the same legal challenges unmarried opposite-sex couples face.
Joint Property Rights
Marriage generally creates a presumption of joint ownership of property accrued during the marriage. The presumption is the opposite for unmarried couples, where your property will be presumed to be owned by whoever acquired it. Deciding which presumption works best for you and your partner can be helpful in deciding whether or not to get married.
Government Benefits both to straight couples or same sex couples.
This is one of the largest reasons to get married, because the government provides a lot of benefits exclusively to married couples. A small sample of these benefits include Social Security benefits, health care benefits, nursing home care, and unpaid leave from your job to care for family members. In light of the 2015 Obergefell decision, federal and state benefits are available to all legally married couples in the United States, gay or straight.
Legal Cons Formalities in marriage.
Marriage, for all of its pros and cons, requires that certain formalities be performed, which may or may not be what you want. Unmarried couples can get together, and break up, without all the formalities (and court hearings) required for married couples.
Decide What Is Best For You and Your Partner
Given all of the above issues and factors, spend some serious time with your partner considering same-sex marriage legal pros and cons. If you plan on raising kids and you're ok with taking on the other partner's debts, then getting married may make sense. On the other hand, if you don't necessarily want to be burdened with the other person's debts or institutional marriage just isn't for you, then it may not be right for you.
Following the Court's Obergefell decision, same-sex marriage carries all of the same rights and responsibilities as for straight married couples. But if you were previously married or have some legal issues to iron out following the decision, you may want to meet with a family lawyer who specializes in same-sex legal issues who is familiar with the marriage laws in your state.
Transgender persons and how they are perceived both with family and society at large.
Every family is unique, with different family dynamics, as well as cultural, social, and religious influences. We are going to learn more about how these influences can affect the children in your life mostly since this is our next generation that is being molded.
Understanding Children’s Gender
Gender is more complex than most of us have been taught. Gender is made up of three parts:
(1) Gender biology (our bodies or biological sex – our sex assigned at birth based on appearance of genitals),
(2) Gender expression (how we dress and act), and (3) Gender identity (how we feel inside). For most kids, these three facets of gender line up and the kids are typically gendered boys or girls (cisgender). For other kids, however, these three facets of gender align differently; these kids are Gender-expansive, which includes transgender kids.
Although our society teaches us that there are only two genders—male and female— there are really many genders. Not all children fit neatly into a male or female gender identity. For some children, the sense of being “both” or “neither” best describes their reality. Some of these kids speak of being more of one some days and more of the other on different days; these children might best be described as gender fluid. These are all normal variations in human gender and do not mean something is wrong with a child. A child’s gender is not what others tell them, but who they know themselves to be.
Even though we as parents have great influence over our children, parents can’t change a child’s true gender identity or expressions of their gender. However, we can help our children to have a healthy, positive sense of themselves in relation to their gender.
What Do We Mean by “Parenting and Family”?
When we talk about “family,” we are not referring only to people related by genetics. Families can come in all configurations, including adoptive or foster parents, grandparents, extended family, mentors, or one’s chosen family made up of close friends. Many youth have been rejected by their genetic and adoptive families and need support from other adults. Similarly, “parenting” can be done by a variety of adults in a child’s life, not just by legal parents or guardians. Thus our resources in this section of discussion, and in our work in general, are for all types of “family” and all adults who “parent” a child.
General Parenting Considerations
Parents have a very powerful role to play in a gender-expansive youth’s life. Research has shown that supportive parenting can significantly affect our children’s positive outlook on their lives, their mental health and their self-esteem. On the other hand, rejecting parenting practices are directly correlated to gender-expansive and transgender youth being more depressed and suicidal. Our Research shows that the most crucial thing we as parents can do is to allow our children to be exactly who they are. Every family is unique, with different family dynamics, as well as cultural, social, and religious influences. Some families have to consider their child’s physical safety in their communities more than others, but all families have to weigh the effects of their parenting approach on their child’s long term psychological well-being.
Safety Considerations for our kids.
Children not fitting into typical gender boxes are often the victims of mistreatment or even violence. Caregivers to gender-expansive children bear a burden to ensure the physical and emotional safety of these kids in the face of that general reality. Our role as parents is to love and accept our child, and we will help them learn how to deal with a world that sometimes doesn’t understand them.
Without alarming them, we can help prepare our children for unwanted questions or comments by helping them come up with respectful replies that maintain their boundaries; this way, they won’t be left on their own to come up with a response on the spot. We also need to teach our children how to access the support they need if it feels like things are becoming unsafe.
We each know our own communities best, so we each need to decide if our children are in physical danger by expressing their gender in public, and weigh this physical danger against the emotional harm of not allowing our child to be their true selves outside of the home. This can be tricky territory- our own discomfort, as well as a desire to protect our children, may lead us to decide to allow one set of behaviors in the home, and another set outside the home. But there is a cost to this choice: to your child’s sense of self, and potentially their experience of your support and acceptance. There are a number of safety considerations for you to consider – remembering to place your child’s needs at the forefront of your decision making process is the first step to protecting them.
Transitioning
When a person changes outwardly from one gender to another and lives in accordance with their gender identity, it is called going through transition, or transitioning. Transition can occur in two ways: social transition through non-permanent changes in clothing, hairstyle, name and/or pronouns, and medical transition through the use of medicines and/or surgeries to promote gender based body changes. There is no rule of thumb for when a transgender child should be allowed to transition socially and/or medically. There usually comes a time when your child’s discomfort or suffering is so obvious that despite your concerns, it is critical for them to live in the world as they choose. But how do you know when that is? How long after they tell you about their desire should you wait to allow them this form of expression?
In making this decision, two concerns typically rise to the surface: “Will my child be safe if I let them do this?” and “Wouldn’t it be better just to make them wait?” The most useful way to answer these questions is to first evaluate whether your child currently feels safe and satisfied, or if instead they are suffering.
If your child is suffering it is important to weigh the potential dangers that await them if they were to transition, compared to the dangers associated with their current depression. What is clear is that children who receive the support of their families have the best outcomes in terms of their future health and well-being.
Navigating Religious Communities Depending on the religion or religious community, acceptance of gender diversity can vary tremendously. It can be helpful to take stock of your religious community’s influences.
List the overt messages and messengers about gender and sexual orientation issues, as well as how LGBT people tend to be characterized. You might be able to identify people who you perceive as “safe.” Approach these members first about your situation and seek their counsel on how to approach others. It is also important to remember that gender diversity cuts across all racial, cultural and religious lines. With sensitive exploration, you may find people in your religious community who are more tolerant than others. Some people find they can educate their present religious community about gender.
Other families find they need to seek new religious communities that are more welcoming of their family. In the process of supporting your child, you may well lose important people in your life, but more than likely you will also gain some important new people to replace them.
School consideration.
Choosing a School or College Choosing a school or college with our kids is an important decision. Talk to the administrators or admissions staff about gender diversity to determine if the school will be a good fit for your child. This is as a form of avoiding neglection to our children and to also avoid unhealthy cases as one seen in one Kenyan school entailing a transgender child and pregnancy cases.
Identity Documents: What name should I use to register my child for school? What if I am asked to provide legal documentation that does not match my child’s gender expression? Just like the experienced case in Kenya relating to one by the name Audrey a transgender. Should I legally change my child’s name and/or gender? While legal name changes give you a great deal of leverage to ensure your child is referred to consistent with their gender identity, some parents are not able or ready to take this step. Many have found it helpful to approach the school, program, agency or organization in which their child is involved and simply request that their child be referred to by their preferred name. There are no laws preventing schools and other organizations from calling children by their chosen name. Much of the time all it takes is a little education to help them understand that it is the right thing to do.
Custody Issues: Many lawyers and judges have no experience with the issues related to gender and children. If your child lives in two households and you are experiencing disagreement about your child’s gender status and what is best for your child, obtain therapy and/or mediation as your first steps. Try to reach an understanding outside of the courtroom about how to proceed with parenting your child. This may mean having to make compromises, especially if your child is young; though perhaps not ideal, it likely preferable to going to court and facing a potentially negative outcome.
If your family is already in the family courts system, you should immediately seek the counsel of an attorney familiar with issues and rights related to gender-expansive and transgender identities. It is also advisable to secure the professional support of doctors and therapists who can speak to the court about gender- expansive and transgender children and what they think is in the best interest of your child with regard to gender expression.
Though in several countries such as the U.S, Italy and others, same sex marriages has been approved, the likes of countries such as Uganda have held firm to the assertion that same sex marriages is immoral and has been banned in such a country. Whereas in a country like Kenya, the exact point of what is to be said of this kind of family and rationships is not yet clearly expressed.
Each and every person is a human being who has rights and freedoms regardless of the persons gender type. Everyone should therefore be respected and loved as one.
Inheritance laws
Equal Rights in Inheritance
Legislation should prohibit discrimination against women and girls in inheritance and explicitly allow females to inherit property and land on an equal basis with males. Laws governing lines of succession should ensure equality of rank between mothers and fathers, between brothers and sisters, between daughters and sons, and between spouses. Legislation should state that civil laws shall have supremacy over customary laws and practices that discriminate against women and girls.
Legislation should state that, upon remarrying, a surviving spouse retains the full rights in any property she inherited from the deceased’s estate. Drafters should repeal any laws that terminate interests upon remarriage for the widow, but not the widower. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009, § 5)
Promising Practices: Mojekwu & others v. Ejikeme & others (5 NWLR 402, Nigerian Court of Appeal, December 9, 1999): The two great grandsons and the granddaughter of Reuben Mojekus, who died intestate, appealed the ruling of a lower court in favor of five male members of Reuben’s brother’s family with regard to the inheritance of Reuben’s property. The litigation began with the appellants’ request for a restraining order against the respondents, who had trespassed by entering Reuben’s compound where the appellants were living. This case involved the practice of “Nnewi,” where a man dies without sons but has daughters. A daughter must remain unmarried and bear children who effectively become her dead father’s heirs to inherit and carry on the male lineage. The appellants claimed that Nnewi had been performed for Virginia, Reuben’s daughter and the appellants’ mother and grandmother, which entitled her and her children to inherit Reuben’s property. The respondents, on the other hand, claimed that the custom of “Nnewi” had been performed for Reuben’s other daughter, Comfort, entitling her and her children to inherit the property, but since Comfort had died childless, Reuben is considered under customary law as having died without a surviving male heir, thereby causing the property to pass to Reuben’s brother or the brother’s male issue. On appeal, none of these arguments, all of which were based on Nigerian customs, prevailed. Finding that these customs were discriminatory against women and “repugnant to the principals of natural justice, equity and good sense,” the court concluded that the appellants, as Reuben’s blood relations, were entitled to inherit his estate and that it would be inequitable to throw them out of their home. While not explicitly stated, the court based its ruling on fundamental rights guaranteed to women under the Nigerian Constitution and an international convention to which Nigeria was a party.
Other recent judicial decisions also have supported women’s rights when there is a conflict between customary and formal legal systems. In Kenya, the Court of Appeals cited to the non-discrimination standard of Kenya’s Constitution, the African Charter on Human and People’s Rights, and CEDAW, when it prevented the enforceability of customary law in inheritance and also found that the fact that girl children might later be married should not impact their equal share in inheritance. (Rono v. Rono, Court of Appeal, 2005) In 2004, the High Court in Tanzania used CEDAW to confirm that administrative rights to property belong to a widowed spouse, not her husband’s family. (Chilla v. Chilla, (January 6, 2004) High Court of Tanzania at Dar es Salaam). In 2012, the High Court of Botswana overturned customary law in granting women the right to inherit family homes. Tswana custom had prescribed that the family home is inherited either by the first-born or last-born son, depending on the tribe. (Mmusi and others v Ramantele and Another, High Court of Botswana, October 2012.) See: Security of Tenure for Older Women (HelpAge, 2012).
CASE STUDY: In South Africa, The Bhe case concerned two minor girls who sought to inherit their deceased father’s estate, and was brought against their grandfather who, under “black” law and custom, was to inherit. The girls argued that that the rule of primogeniture under black law and custom must be interpreted in line with the Constitution, so as to allow them and other girls in their position to inherit from their deceased father’s estate. On September 26, 2003, the Cape High Court found for the girls, and declared that certain sections and regulations of the Black Administration Act were unconstitutional and invalid, and that Section 1(4) (b) of the Intestate Succession Act 91 of 1987 was unconstitutional and invalid. The Court concluded:
We should make it clear in this judgment that a situation whereby a male person will be preferred to a female person for purposes of inheritance can no longer withstand constitutional scrutiny. That constitutes discrimination before the law. To put it plainly, African females, irrespective of age or social status, are entitled to inherit from their parents’ intestate estate like any male person. This does not mean that there may not be instances where differentiation on gender lines may not be justified for purposes of certain rituals. As long as this does not amount to disinherison [sic; i.e.: disinheritance] or prejudice to any female descendant. On the facts before us, therefore, the first two applicants are declared to be the sole heirs to the deceased’s estate and they are entitled to inherit equally.
The Bhe case found that the practice of male primogeniture (the custom of the firstborn male inheriting the entire estate) as provided for under customary law is discriminatory, and classified as unconstitutional all legislation that allows such discriminatory laws to be applied. In 2004, after the decision in Bhe, South Africa enacted the Reform of Customary Law of Succession and Regulation of Related Matters Act, which gave widows and daughters equal inheritance rights with widowers and sons. See COHRE, Huairou Commission, Open Society Foundations, UNDP, et al., Tools for Change, Applying United Nations Standards to Secure Women’s Housing, Land and Property Rights in the Context of HIV, p. 32-33.
Secular legislation
Drafters should enact superseding civil laws to address provisions that discriminate against women and girls in religious laws. For example, Tunisia enacted legal reforms that run contrary to Sharia law in cases where the deceased leaves no sons. Rather than distribute the estate to the paternal family, the Personal Status Code designates the paternal daughters and granddaughters ahead of the deceased’s brothers and paternal uncles in succession rank to inherit the father’s total estate before eligible heirs. In this case, the line of succession ranks the surviving spouse first, then daughters, then granddaughters. Also, the estate of a daughter who dies before her father goes to her children, rather than her father. (See: Anna Knox, et al., Connecting Rights to Reality: A Progressive Framework of Core Legal Protections for Women’s Property Rights, International Center for Research on Women; Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006; OECD Development Centre, Gender Equality and Social Institutions in Tunisia)
Legislation should enact an optional secular law governing personal matters, including marriage, divorce, dissolution of marriage, inheritance, children and family, which applies to people of any religious affiliation.
CASE STUDY: Lebanon recognizes and entrusts personal status matters to 18 different religious denominations. Consequently, each religious denomination operates independent of the state judiciary and uses its own courts, laws, and procedures on personal status for its members. The result is a fragmented framework of family law as regulated by each religious denomination, which tend to discriminate against women. See: CEDAW, Initial Report of Lebanon, 2004. Lebanon has attempted to codify inheritance in a secular law for non-Muslims. The succession law brings important legal reforms to previous Islamic law, such as the lack of differential treatment based on sex and granting larger portions of the estate to the surviving spouse. It does not, however, apply to Muslims, thereby leaving Muslim women subject to succession rules of Sharia, which makes several distinctions based on sex. (See: Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006; Section on Family Law and Marriage Laws)
PROMISING PRATICE: The Maldives passed a law aimed at preventing domestic violence that, among other things, shows an interaction between secular and Sharia law, and allows that a marriage can be dissolved at the request of a woman upon the perpetration of domestic violence if certain “Thafriq” grounds are met. “Thafriq” is the right of a woman under Sharia law to demand the dissolution of a marriage (Part 9). If those grounds are met, the marriage is treated as immediately dissolved under the new law. See also Passing of Domestic Violence Bill in the Maldives and Domestic Violence Bill carrying key changes.
Equal shares between wife and husband in marriage
Legislation should ensure that wives and husbands are entitled to inherit equal shares of a marriage.
For example, Malawi’s law specifies that upon the death of the spouse, the surviving spouse (or spouses in the case of a polygamous marriage) and children inherit equal shares of the property, subject to protection for the property in the marital home. Art. 16.
CASE STUDY: Legislation should address discrimination against women and girls found in religious laws and ensure they may inherit equal portions to males. Iran’s legal system is based on Islamic principles, or the Ja’fari school of Shi’a Islam. Article 913 of the Civil Code governs inheritance between spouses in marriage. On its face, the provision discriminates against women by allocating them smaller shares than men. Where the wife dies, the husband may inherit: ¼ of her estate where she has surviving descendants; ½ if she has no surviving descendants, and; 100 percent of her estate if there are no other heirs. When the husband dies, the wife may inherit: 1/8 of his estate where he has surviving descendants; ¼ of his estate where he has no other heirs, and; where he has surviving multiple wives, an equally divided portion of the ¼ or 1/8 portion to be shared with other the wives.
Individuals in Iran have found creative ways to ensure their spouse can inherit as they desire. A testator can bestow a maximum of 1/3 of his or her estate, leaving the remainder to be divided among the heirs according to law. For example, a husband either purchases property under his wife’s name or transfers property titles to his wife’s name to ensure she can inherit more than 1/3 of his estate or the designated share under the Civil Code. Fathers have likewise used the same method to provide for their children. This enables the testator to determine how to designate his estate in spite of the law. (See: Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006)
Equal right to inherit all types of property
Legislation should ensure that wives and husbands are entitled to inherit equal kinds of property. For example, a legal system that states a husband may inherit the entirety of his wife’s estate, but she may only inherit moveable chattel and the cash value of buildings and trees on her husband’s estate constitutes discrimination against women and should be amended. Such laws discriminate against women in the short- and long-term: land and real property tends to increase in value, while moveable goods have a tendency to depreciate over time.
(See: Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006)
CASE STUDY: Legislation should grant equal rights to daughters and sons to inherit irrespective of customary laws. The discriminatory Zimbabwean case of Magaya v. Magaya (1999), 3 LRC 35, 40 (Zimbabwe Supreme Court) addressed a daughter’s inheritance rights under the Administration of Estates Act 1997. Article 68 of the act states that the estate of deceased is to be administered according to customary law, which favors men over women. The Court examined the issue of discrimination against women where a man with two wives dies intestate, leaving a daughter by the first wife and sons by the second wife. In this appeal to the Supreme Court of Zimbabwe, the daughter of the first wife sought to overturn the decision of a magistrate that where there was a man of the family entitled to claim heirship, a woman of the family could not be the heir, under the customary law of Africa. The daughter based her challenge on international human rights agreements to which Zimbabwe was a party. The justices held that where the marriages were solemnized under customary law, the intestate laws under customary law apply. Noting that the Zimbabwe Constitution’s prohibition against discrimination did not include gender (Section 23, which also does not apply to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law), and that, in any event, the Constitution exempted customary laws regarding the devolution of property on death, the justices upheld the decision of the magistrate. The justices justified the decision in favor of the male heir, deeming that the daughter would not honor her obligation to care for her original family due to her commitment to her new family. The justices reasoned that women would be inclined to divert the property of her original family to the new family. The justices believed that sons, on the other hand, would be more likely and able to honor their obligations to both their original and new families. In concurring opinions, the justices found support in a number of analogous laws and cases, including the customary laws of the deceased's tribe, noting that when the marriages are under a tribe’s customary law, the customary laws of succession of that tribe control. This decision and its reasoning discriminate against women. Drafters should ensure that women are guaranteed equal inheritance rights with men.
Illustrative Examples:
In South Africa, in marriages under the default full community or partial community property systems, the widow may inherit all of the joint marital property. The widow will inherit the entire estate if there are no children. Even if excluded from the spouse’s will, a practice that should not be permitted by law, a widow may still seek maintenance.
Estate law in the Bahamas specifies that:
Art. 4. (1) the residuary estate of an intestate shall be distributed in the manner mentioned in this section, namely —
(a) If the intestate leaves a husband or wife and no children, the surviving husband or wife shall take the whole residuary estate;
(b) If the intestate —
(i) Leaves a husband or wife and —
One child, the surviving husband or wife shall take one half of the residuary estate and the remainder shall go to the child;
Protecting Widows and Girls’ Rights in Testate Succession
Legislation should guarantee to both women and men, irrespective of marital status, the capacity to make a will. Drafters should develop guidelines on the forms and procedures of wills for establishing validity. Legislation should state that a benefactor may bestow by will any property to which he or she was entitled to at the time of death by law. Legislation should prohibit a married person from bequeathing the marital home to a person other than the spouse in the will if he or she is survived by the spouse. Legislation should clarify that a person may only bestow by will his or her own share in jointly held marital property.
Legislation should mandate that every will should provide maintenance for dependents, which includes surviving spouses. The CEDAW Committee Gen. Rec. 29 specifies that disinheritance of a surviving spouse should be clearly prohibited.
Example: The Canadian HIV/AIDS Legal Network has developed guidelines on how to determine maintenance:
Article 46. Determination of maintenance
(1) The court shall make an order of maintenance to any and all dependents of the deceased who, in the court’s determination, require maintenance in order to satisfy their needs, notwithstanding the provisions of the will, if any.
(2) The court shall determine the nature and amount of maintenance payable to a dependent under this Section having regard to:
(a) The nature and quantity of the property representing the deceased’s estate;
(b) The responsibilities and needs which each of the dependents of the deceased has and is likely to have in the foreseeable future;
(c) The lifestyle, income, earning capacity, property and resources which each of the dependents of the deceased has and is likely to have in the foreseeable future; and
(d) The deceased’s reasons, so far as ascertainable, for not making adequate provision for a dependent.
(3) Where the dependent is a child, in determining the nature and amount of maintenance the court must have particular regard to:
(a) the financial, educational and developmental needs of the dependent, including but not limited to housing, water, electricity, food, clothing, transport, toiletries, child care services, education (including pre-school education) and medical services;
(b) The age of the dependent;
(c) The manner in which the dependent is being, and in which his or her parents reasonably expect him or her to be, educated or trained;
(d) Any special needs of the dependent, including but not limited to needs arising from a disability or other special condition; and
(e) the direct and indirect costs incurred by the parent or guardian of the child in providing care for the dependent, including income and earning capacity forgone by the parent or guardian in providing that care.
(4) Where the dependent has a disability or disabilities, in determining the nature and amount of maintenance the court must have particular regard to:
(a) The extent of the disability;
(b) The life expectancy of the disability;
(c) The period that the dependent would in all likelihood require maintenance; and
(d) the costs of medical and other care incurred by the dependent or their parent or guardian as a result of the disability (Sections (3) and (4) are derived from Namibia, Maintenance Act of 2003, ss. 16(3) and (4))
(5) Where the estate is insufficient to satisfy the maintenance needs of all dependents, the court shall make equitable maintenance orders in accordance with available assets and the factors in Sections (2), (3) and (4).
(See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009)
Restrictions on Testamentary Freedoms
Drafters should also restrict testamentary freedoms to ensure spouses receive some part of their deceased spouse’s estate, which includes the marital home. Legislation should ensure that widows are entitled to an “equitable share in the inheritance of the property of her husband” and have the right to remain in the marital home. Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Art. 21(1).
Legislation should prohibit testators from granting guardianship of children to someone other than the surviving spouse, and state that any testamentary provision that does so is null and void. Laws should state that widows automatically become the guardian of their children upon the death of their husband, unless the child’s best interests, as determined in accordance with law and procedures by a competent authority, dictate otherwise.
(See: COHRE, Women and Housing Rights Issue Brief 7, p. 8. See: Harmful Practices; UN-Habitat, Progress Report on Removing Discrimination against Women in Respect of Property & Inheritance Rights (2006))
Protecting Widows and Girls’ Rights in Intestacy
Inheritance laws should ensure equality between males and females’ right to inheritance in cases of intestacy. Laws governing intestate succession should automatically provide spouses a share of the estate, including a life interest and right to reside in the marital home. Some countries provide a succession order in intestate cases, placing widows as the first in line for succession. Legislation should provide widows with the full right to their own property. See: Section on Marital Property Systems. The Canadian HIV/AIDS Legal Network recommends two devolution options for surviving spouses in intestacy: 1) Granting the spouse a set preferential share, and 2) devolve the entire estate, if smaller than a certain value, upon (in order of succession) the surviving spouse and children, the deceased’s parents, and the next category of succession.
Legislation should mandate that customary systems grant women equal inheritance rights with men and should state that conflicts between civil and customary or religious laws are to be resolved in a manner that promotes gender equality and respects widows’ rights. Drafters must provide for public awareness and outreach about these laws to communities and religious and traditional leaders to facilitate implementation. For example, Ghana has passed the Intestate Succession Law, providing the surviving spouse a larger share of the estate and rights in the other’s property in both statutory and customary marriages that are registered. Implementation has been challenging due to a conflict with traditional family structures, which does not view the widow as part of her husband’s family and therefore not entitled to a share in her husband’s estate. Outreach is a necessary component to facilitate effective implementation. (See: Elom Dovlo, International Law and Religion Symposium: Religion in the Public Sphere: Challenges and Opportunities in Ghanaian Lawmaking, 1989-2004, 2005 Brigham Young U. L. Rev. 629 (2005))
CASE STUDY: A Kenyan succession case demonstrates the often complex interactions between customary and formal law in relation to gender and inheritance. In the Nandi culture in Kenya, elder women who are childless traditionally are allowed to marry another woman of childbearing age to become a wife. This practice is known in Nandi culture as woman-to-woman marriage and was at issue in the case of Katam v. Chepkwony (2010). In this case Ms. Katam, who had two children at the time, married an elderly childless woman who owned substantial property. The marriage was conducted in a traditional Nandi ceremony involving bride price paid at the time of the engagement and at the time of the wedding, as well as a marriage contract, and an agreement that Katam would inherit from her spouse, the elder woman. When the elder woman died, Katam claimed that she was the deceased’s widow. Katam’s claim was contested by male in-laws of the deceased who claimed that the customary marriage had never taken place and that Katam was simply a servant of the deceased. The court held in favor of Katam, finding that she had indeed entered into a woman-to-woman marriage under Nandi customary law and that she was entitled to inherit from her woman spouse. The Katam case highlights the fact that an understanding of the particular features of customary laws in a given location is important to effectively address women’s inheritance rights.
Ensuring Effective Administration of Inheritance
Legislation should ensure that either women or men, irrespective of marital status, have standing to administer an estate. Laws should grant the surviving spouse the automatic right to administer the estate. Where the deceased is survived by multiple wives, laws should grant each wife the right to administer her separate marital home, household property within and surrounding residential land; the joint right to administer all other property of the deceased or to select or petition the authorities to designate another administer. The administrator should be empowered to administer and distribute the estate with the same rights over the property as the deceased would have if alive. Laws should charge the administrator with ensuring a final inventory of the deceased’s property is made and sworn to by two non-beneficiary witnesses, and to that end, meet with the surviving spouse and children, investigate title deeds and bank accounts, and consult with community leaders, employers, relatives and neighbors who may have knowledge of the deceased’s assets. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009)
Laws should provide for need-based, low-cost or free legal assistance programs for women and girls dealing with inheritance issues. Promotion of paralegal programs focused on inheritance issues may also be included in legislation.
Legislation should include public awareness programs aimed at educating all stakeholders, including traditional, religious and community leaders as well as politicians and security officials about widows’ human rights and the law, as well as rural and urban women and girls on their human rights, remedies and how to enforce them. Legislation should create and support enforcement mechanisms, such as a police unit, to facilitate women’s property and inheritance claims.
Illustrative Examples:
To increase the knowledge and abilities of locally elected women to advocate on property and inheritance issues, the Khan Foundation provided information and skills training to 400 locally elected women so that they would be able to help promote awareness and action on issues and laws pertaining to property and inheritance rights. Participants in the program were also introduced to the Women’s Lawyers Network, which is funded by the Khan Foundation and can serve as a free legal resource at the local level.
Madaripur Legal Aid Association (MLAA) has developed a network of women leaders from grassroots women’s groups that it uses to provide information and logistical support for the promotion of women’s rights. MLAA conducted a field survey to assess awareness of property and inheritance rights and Muslim inheritance law among local women. The survey results were used to develop informational materials, which were then used as a training tool for hundreds of community leaders and thousands of grassroots women.
Laws should prohibit compelling an heir to hand over an inheritance share to another third party using force, coercion or fraud. Where a widow or heir chooses to give her share to a male member as a guarantee for their financial support, legislation should provide that a written contract stating the terms of agreement, amount and schedule of support to be provided by the male to the woman, and remedies for breach of contract, and bearing the signatures of both parties and a witness, is required for the validity of such transfer. Legislation should require responsible authorities overseeing such transactions to confirm identification and registration numbers before authorization.
Information Gathering and Monitoring
Legislation should require a comprehensive review of all formal and customary laws to ensure women’s have equal rights to housing, land and inheritance. Legal reviews should pay particular attention to achieving consistencies among and within laws. For example, drafters should ensure that statutory laws comply with and transpose constitutional provisions that protect the rights of widows. For example, the Law Reform Commission of Tanzania conducted an extensive review of the country’s succession laws, including their impact on the rights of women, and made recommendations for reforms of the law in a final report. The Law Society of New South Wales, Australia conducted a similar review of the Property (Relationships) Act and its impact on women’s inheritance. The submission to the Law Reform Commission can be found here.
CASE STUDY: Ghana’s Constitution provides for equality between spouses with regard to inheritance, access to joint marital property, and division of joint marital assets upon dissolution:
(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this article-
(a) Spouses shall have equal access to property jointly acquired during marriage;
(b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. (Article 22).
Although Ghana’s Constitution prohibits discrimination based on several grounds, including gender, the same article provides an exception with regard to adoption, marriage, divorce, inheritance and “other matters of personal law” (stating that nothing in this article shall prevent Parliament from enacting laws that are reasonably necessary to provide…for matters relating to adoption, marriage divorce, burial devolution of property on death or other matters of personal law”) (Article 17). Drafters should extend non-discrimination guarantees to all personal matters, including adoption, marriage, divorce, inheritance, where discrimination against women is often prevalent.
Promising Practice: Uganda’s Succession Act was challenged in court in 2007 by a women’s human rights NGO, Law and Advocacy for Women in Uganda. The Constitutional Court declared the following provisions of the law unconstitutional:
Art. 27: provides only for male intestacy
Art. 27: grants a widow 15% of an estate and a widower 100%
Rule 8(a) of Second Schedule to Succession Act: widow loses her right to live in the marital home upon re-marrying, while a widower loses his right upon death
Art. 43: the father may appoint a guardian even if the mother is still alive
Art. 2(n) (i) and Art. 44: Male lineage has precedence over the female lineage in selecting a guardian
Art. 14: Automatic acquisition of marital home to the wife but not the husband
Art. 15: Legal separation ends a wife’s acquired domicile
It will require Parliamentary action to amend the law and address the gaps created by this ruling. Legislation to address the problem, including amendments to the Succession Act and passage of the Marriage Bill, remain pending. (See Dora Byamukama, Effectiveness of legislation enacted to address harmful practices against women in Uganda, including maltreatment of widows and female genital mutilation, 2009) Legislation should require studies on inheritance and property laws and practices throughout the country to understand the nature and extent of discrimination against women and girls in inheritance and property rights. Legislation should establish and support monitoring mechanisms to evaluate implementation of these laws and women and girls’ inheritance and property claims.
UNDER CURRENT CONSTITUTION MARRIED DAUGHTERS HAVE A RIGHT TO INHERIT PARENTS’ ESTATE
‘‘…….In my view, the law as it is now, it matters not, whether a daughter of the deceased is married or not when it comes to consideration of whether she is entitled to inherit her parent’s estate. Article 60 (f) of the Constitution of Kenya 2010 provides for elimination of gender discrimination in respect of land. Marital status of a daughter is not a basis to deny her the right to inherit her father’s estate…’’.
Married daughters too have a right to inherit their parents’ estate, the Court has held. This was held by Lady Justice Mary Kasango sitting in Meru High Court in a succession case where the objector, Consolata Ntibuka was challenging her brother’s decision to evict her from the piece of land piece of land left behind by her late father on the ground that she was married. Justice case Kasango stated that it did not matter whether a daughter of the deceased was married or not when considering whether she is entitled to inherit her parent’s estate. The case turned on the provisions of the current Constitution which forbid the state or any person from discriminating any person on the basis of a person’s marital status. Article 60 of the new Constitution provides for the elimination of gender discrimination in law, customs and practices related to land and property.
The Constitution particularly Articles 27 and 60 of the Constitution settle the question whether married and unmarried daughters have a right to inherit the family’s wealth. Prior to the promulgation of the Constitution the courts delivered varying decisions on the question. In 2005 Lady Justice Martha Koome in Re Estate Priscilla Wairimu Kamau [2005] eklr reaffirmed the provisions of the Law of Succession Act, that daughters, just like sons, have equal rights to inherit their parents’ property. She held “the law does not distinguish the deceased’s children on the basis of their gender or marital status.”
In 2008 High Court Lady Justice Rawal In Re Estate of Lerionka Ole Ntutu (Deceased) [2008] eklr overruled the application of a Maasai custom which disentitles daughters from claiming their father’s inheritance and ruled in that the daughters of a Maasai man who had died without leaving a will had a legitimate claim to inherit his property. The ruling was made in a case in which the daughters of the late Lerianka Ole Ntutu, who hailed from Narok in Uasin Gishu District, complained to the Court that their brothers planned to exclude them from the inheritance.
The definitive question before Lady Justice K. Rawal was whether the Court was to apply the Law of Succession Act or the customary law of the Maasai community. Justice Rawal held, among other things, that any tenet of customary law which would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and it could not be applied.
Similarly, in Rono v Rono & another (2008) KLR G & F 803, the Court of Appeal deliberated on a case in which a dispute arose as to the mode of distribution of an estate of the deceased with some sons contending that their sisters had the option of getting married and moving away. In his ruling Mr. Justice Waki held, among other reasons, that the fact that the girls would one day get married was not a determining factor when it came to the distribution of the net estate of the deceased. The court had a duty to exercise its discretion judiciously when it came to distributing the estate.
In the instant case, the brief facts were that the deceased, Rukunga Kaimathiri was survived by fourteen children, among them Samson Kiogora and Consolata Ntibuka. He died intestate (without leaving a Will). Subsequently, Samson filed an application for confirmation of grant which made no provision for daughters of the deceased. His application provoked protest from Consolata. Consolata’s protest was on the ground that although she was at one time married, she got divorced in 1981 and returned to her deceased father’s land. More specifically she stated that she was living on what was her deceased mother’s portion of land upto and until the time confirmation of the grant was being sought. She had further stated that she lived in the house that belonged to her late mother and cultivates the rest of her late mother’s portions of land.
Kiogora’s testimony to the court confirmed that Consolata lived and cultivated a portion of that land. Witnesses to Samson and Consolata stated that although Consolata had once gotten married to a man called Njogu, the two were no longer living together and that Consolata was living on a piece of land that had been earmarked for her late mother. It was further stated that the house in which Consolata lived had been constructed for her mother by one of her step brothers who lived in the US.
The issues for determination were whether Consolata was entitled to inherit her deceased father’s estate and the rightful owner the house in which Consolata was living. While holding in favor of Consolata, the court stated that Kiogora was forbidden not only by Article 60 (f) of the Constitution from discriminating against Consolata because of her marital status but was also prohibited by Article 27 of Constitution. Article 27 of the constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.
Clause 2 of the Article 27 further states that the said equality includes the full and equal enjoyment of all rights and fundamental freedoms while clause 3 provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Clauses 4 and 5 requires the state and any person not to discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social original, colour, age, disability, religion, conscience, belief, culture, dress, language or birth .
The Court lay emphasis on clauses (3) (4) and (5) of Article 27 of the Constitution and held that Consolata’s marital status was not a basis to deny her the right to inherit her deceased father’s estate. It further stated that upon building the house and handing it over to Consolata’s mother, the house ceased to belong to Consolata’s step brother and since it was being occupied by Consolata, the house belonged to her.
The Matrimonial Property Act, 2013, establishes that the default property regime is separate property for married couples, although parties have the right to enter into an agreement regarding property rights prior to the marriage that will then apply instead. [64] Since men are more likely to have property rights in land than women, this default regime makes it difficult for wives to gain property rights within marriage. Marital property, defined as the marital home(s), household effects and goods inside the marital home(s), and “any other immovable and movable property jointly owned and acquired during the subsistence of the marriage”, [65] is considered the property of both spouses. It is unclear if this language will be interpreted to exclude property acquired by one spouse for use by both.
Each spouse retains exclusive rights to property he or she held prior to entering the marriage, and is entitled to marital property according to his or her contribution.[66] Under the Act, contribution refers both to monetary contributions and non-monetary contributions, including domestic work, child care, companionship, and farm work.[67] Property acquired during the marriage and owned by and titled in the name of only one spouse would therefore remain the sole property of that spouse and not be considered part of the marital property.
There is a rebuttable presumption that when property is held jointly in the names of both spouses, their interests in the property are equal,[68] while property held in the name of one spouse is presumed held in trust for the other.[69] The legal effect of this trusteeship upon the death of the owner-spouse is unclear, as the Law of Succession Act limits the property rights of surviving spouses.
In polygamous marriages, marital property, as defined above, acquired prior to the second marriage is owned equally by the husband and first wife, while property acquired subsequent to the second marriage is considered owned by the husband and both wives (and so on for subsequent marriages), taking into account each party’s contribution.[70]
Importantly, the Act does not explicitly state the categories of land to which its provisions apply. It is possible that community land will be exempted from the category of matrimonial property in the forthcoming Community Land Act.
Divorce and Property Distribution
Divorce is permitted under the Marriage Act, 2014, for all types of marriages. Kenyan law includes significant gaps when it comes to the distribution of property in cases of divorce which have been only partially filled by the Matrimonial Property Act. As a result Kenyan courts have had wide discretion in determining the appropriate division of property in divorce and succession cases. Case law has historically been conflicted owing to different understandings by judges of customary law, with which they are likely to be less familiar, as well as a range of interpretations of the term “contribution” in the context of determining spouses’ proportional rights to contested property. [71]
Under the Matrimonial Property Act, 2013,[72] matrimonial property is to be divided between the spouses upon divorce or the dissolution of the marriages, but “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition”.[73] The term contribution has been clarified to mean both monetary and non-monetary contributions, including domestic work, child care and companionship, making it significantly more inclusive of the types of contributions typically made by women to the household. It remains to be seen how the courts will apply the Act, and its inclusive definition of contribution, in future divorce cases.
SUMMARY OF THE ABOVE
As Kenya moves towards achieving gender parity in many sectors, both the matrimonial institution and the family set up have encountered many changes. Both men and women are venturing into areas which were previously seen as no go zone for certain genders. The Constitution 2010 and its reforms are progressively accorded more protection to married women.
GENDER AND FAMILY: THE EVOLVING TRENDS
Gender and family law should first be looked at from the historical aspects. When one mentions gender in relation to the family, what comes to mind is the oppression and subjugation of women that has long However, there are still a number of factors which interfere with the attainment of its objectives. For instance in areas where the influence of tradition is strong, women, show reluctance to assert their new rights. This problem is also aggravated in judicial interpretation which may tend to lean towards custom in their application of the new law and factors such as economic factors influence enforcement of law. The essay demonstrates the impact and challenges encountered in gender and family law in Kenya. It seeks to examine the relationship between gender and equality capturing parental responsibility; further it touches on child custody and division of the matrimonial property. It also examines impact of the new Marriage Act 150 on modern family units and how it is applied by the courts in cases of divorce, maintenance and division of matrimonial property, and the extent to which other existing systems of customary and religious law will influence its operation.
Persisted and to some extent continues to subsist in some regions. However, some of the biases or forms of discrimination against women are not practiced by all communities and are mostly attributable to the cultural practices of certain communities and religious groupings. A good example is the Female Genital Mutilation 1 that is no longer widespread as it used to be in the earlier parts of the 19th Century.
This essay seeks to examine the impacts and challenges in gender and family law in Kenya, children and gender roles, issues of equality in the family, division of property upon dissolution of marriage, education, women at the workplace, family and property law, same sex marriages and gender based violence in the family set up.
Most strides made in relation to gender issues are attributable to legislation rather than voluntary concessions on the part of the perceived oppressors. In Europe for example, before the enactment of the Married Women’s property Act of 18822; women were treated as lesser beings in every aspect of life. They were denied the rights to vote, own property, obtaining higher education without their husband’s permission, they could not keep their salary as this was considered their husband’s property.in most countries, women were equated to children and in the United
CONCLUSION
Just like every other division of law gender and family law has evolved to new levels which need to be addressed legislatively. The position of women is no longer in the kitchen, she has shown that can compete on the same level as the man, this can be attributed to the enlightening of the woman in school and through the media. However much still needs to be done especially in the so called marginalized areas
No comments:
Post a Comment