Kenya: New Constitution promises unprecedented rights for women

NAIROBI, Kenya — In 2010, Kenya drafted a new constitution to replace its problematic 1963 independence-era Constitution. The new Constitution, which 67 percent of Kenyan voters approved in the 2012 referendum, guarantees women unprecedented rights and protections.

For this, Kenya and her people should be congratulated.

But the overwhelming majority of the country’s 40 million people live in rural areas where details of the new constitutional rights have not yet been publicized. Across much of Kenya, neither women nor traditional village elders, who mete out justice in their communities, are aware of these historic changes.

Instead, the majority of Kenya’s people continue to live their lives under laws — both formal and customary — that operate untouched by the ideals enshrined in the new Constitution. This system often dramatically disadvantages women and girls, particularly in property rights.

For example, under the customary law of most ethnic groups, rarely can a woman inherit land from her father or be the sole administrator of her husband’s estate (unless she has her children’s consent), and she usually can only continue to live on the land as a guest of male relatives. Likewise, across rural Kenya girls are routinely pulled out of school and married off at an early age, their bride price sometimes paying for their brothers’ school fees.

The impact of this gap between the new Constitution and age-old practice can be seen in any rural village across Kenya today. Women almost universally have less education than men. They spend their days working the land; according to the FAO, Kenyan women perform 49 percent of the agricultural labor. But rarely do women hold secure rights to the land they till.

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The hard-won rights for Kenya’s women and girls enshrined in Kenya’s new Constitution are in danger of becoming mere platitudes, exercised only by a few urban residents, unless action is taken by the Kenyan government, international donors, and the international and local NGO community.

To arrive at a path forward, it is useful to look back and examine how Kenya fared in yet another battle for women’s rights: the battle against female genital mutilation.

Ten years ago last month former President Daniel arap Moi issued a presidential decree against the practice. But neither this unprecedented condemnation nor high-profile criminal charges brought against practitioners has stopped this entrenched cultural practice.

While it may be convenient to lay the blame for such failures on supposedly stubborn, old-fashioned, or recalcitrant village elders, a new pilot program in Kenya’s Mau Forest Complex to help educate the population about women’s land rights indicates that traditional elders and chiefs can become a dynamic part of the solution.

The pilot funded by USAID, and implemented by international land rights NGO Landesa, relies on the community conversation model first pioneered by the UNDP in its HIV/AIDS work in Ethiopia in the late 1990s.

In this instance, Landesa has organized a series of trainings on the Constitution and extended community conversations in the remote rural community of Ol Pusimoru with women and traditional elders, as well as a short curriculum for the schools. And early indications are that elders in particular have been transformed into powerful advocates for women and girls’ rights.

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Consider the transformation of Ol Pusimoru Assistant Chief Jonathan Sadera, who is completing a five-month course of trainings and community conversations with other chiefs and elders.

“When I first heard about women’s rights issue in the new Constitution, my first instinct was that it was a conflict trigger. That was my first reaction because I thought about Maasai culture, which held women at a lower level. Women were never supposed to be heard or participate in anything. So looking at it that way, I thought the new Constitution was an attempt to undermine the culture and would create conflict … ” said Sadera. “Now, I have come to think the whole question of gender equality is really about poverty reduction. Because, men have been the only ones making decisions about many things in society, distribution of property and land dealing. And men do not know it all. Women also have a role to play.”

As part of the community conversation, Sadera together with other chiefs and elders from his community are considering a new constitution or code of conduct for themselves to help ensure that they protect women’s rights and advocate for girls as they mediate conflicts in their community.

Through education and dialogue, they are transforming themselves into agents of historic change for Kenya’s women.

Sadera says he is already showing more respect for his two wives and affirming their rights.

Maasai traditional Elder Paul Mbuyuk says he will no longer routinely rule in favor of the man in a household dispute as he did in the past.

Both Sadera and Mbuyuk expect their community of Ol Pusimoru to be forever changed.

But the rest of Kenya still waits.

During his presidency, Daniel arap Moi deflected and dismissed early calls for a new constitution, telling his countrymen, "Do you think Wanjiku [the ordinary Kenyan] understands what a constitution is?"

In 2012, for a small community in the Mau Forest Complex, the answer is “yes.” 

Deborah Espinosa is an attorney and land tenure specialist with Landesa, a global organization which works to secure land rights for the world’s poor.

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