Land inheritance is something very emotional. In most families, it is the father who sits with clan elders and his sons and distributes the land. The words spoken and the things done on such days depend with culture and traditions.
Usually, on such days, women are spectators. They are less likely to be involved in the process for, as the case often is, it is a man’s affair. What business do they have if the land is only going to be given to the sons?
In African societies, land belongs to the men. Women can only till it but they know the land is not theirs. This is a historically and culturally conditioned belief, which interestingly, persists to date.
Since land and power often times went hand in hand, the man with a lot of land was the most powerful. Land, then, symbolised power. Given that women did not own land, they were less powerful than men. One can trace the power differences between men and women to land ownership.
Since women had no land and were, therefore, less powerful than men, they were the ones to be subjugated. The consequences of this subjugation can be seen in the many discriminatory practices and attitudes in our society.
Colonialism introduced common law which in many instances was considered to be more positive than customary law. Of course, one notes the double standards of common law as interpreted and implemented by Europeans but that is a story for another day.
At independence, we adopted both common and customary laws to help us chart our way into the new country. Unfortunately, we also adopted the double standards of common law and inherited the discriminatory elements of customary law.
The Constitution of Kenya 2010, however, deals a blow on the double standards of the previous law regime and the discriminatory elements of customary law. By declaring void all discriminatory laws and customs, it sets the stage for equality, equity, dignity and respect for human rights.
As such, previously marginalised populations are given the same status as others. Women, of course, remain the biggest beneficiaries in this legal regime. It is like what Chinua Achebe would say: “They have been on their knees while men have been on their feet. It is no wonder then that the sun has always been shining on the men, for it always shines on those who are standing first.”
In many ways, the Constitution lifts women to their feet, and when dawn comes, the sun will shine on men and women alike without any discrimination.
Although the adoption of our Constitution switched on the lights for marginalised groups ending their prolonged and unjust stay in a legal blackout, more needs to be done for us to fully realise the benefits of the letter and spirit of the Constitution. When it comes to many issues like land inheritance, perception, not lack of laws is what stops women from enjoying their rights.
The belief that land belongs to men and should only be shared out to them is still present. It is the persistence of this belief that even makes women themselves not demand land from their families. The idea is still new to them and one can understand the difficulties of going about it.
It is also possible that fathers who want to share out their land to their daughters do not know how to go about it as well. How are they to explain to their friends, most of who might still think it unwise to do so, that they are giving their daughters some land?
Land inheritance by women is relatively new and unconventional. While we may have laws that guarantee women’s right to inherit land and other properties, it is likely that the perceptions that inform land and property inheritance may continue to pose a problem.
This article was also published in the Kenyan Woman Issue 25 (Download the PDF)