Kenya: Women's and widows' inheritance rights in civil and customary law, including among the Bukusu ethnic group; prevalence of levirate marriage, including among the Bukusu ethnic group; consequences and state protection available for women who refuse such a marriage (2013-January 2014) [KEN104758.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Inheritance and Property Laws in Kenya

The Constitution of Kenya, promulgated in 2010, provides for equality between women and men and prohibits discrimination against any person on the basis of sex and marital status, among other grounds (Kenya 2010, Art. 27). Article 40 of the constitution states that "every person has the right, either individually or in association with others, to acquire and own property -- (a) of any description; and (b) in any part of Kenya" (Kenya 2010). Additionally, Article 60 states that land in Kenya "shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable," and in accordance with several principles, including the "elimination of gender discrimination in law, customs and practices related to land and property in land" (ibid.).

In November 2013, the Kenyan parliament amended its Matrimonial Property Bill, removing a provision that would require a husband and wife to divide their matrimonial property equally in the case of divorce (Daily Nation 12 Nov. 2013; Africa Review 20 Nov. 2013). The amended bill requires a couple's shared assets to be divided according to each spouse's individual [financial] contribution (ibid.; Daily Nation 12 Nov. 2013; Thomson Reuters Foundation 13 Nov. 2013). Sources suggest that women's domestic labour in the matrimonial home, including housekeeping and childcare, is not considered a "contribution" to the shared property (ibid; The Guardian 22 Nov. 2013). Following its amendment by parliament, the bill was sent to the President's office to await presidential assent (Daily Nation 12 Nov. 2013; Africa Review 20 Nov. 2013). In a 27 January 2014 telephone interview with the Research Directorate, a programs/legal officer at the Centre for Rights Education and Awareness (CREAW), a Nairobi-based non-partisan NGO whose mission is to "champion, expand and actualise women's rights" (20 Jan. 2014), said that the bill had not yet been signed into law (27 Jan. 2014).

1.1 Effectiveness of the Law

In a telephone interview with the Research Directorate, a programme officer at the Kenya Human Rights Commission (KHRC), an NGO founded in 1991 that campaigns for "the entrenchment of a human rights and democratic culture in Kenya" (n.d.), stated that "cultural norms of a largely patriarchal society" create a major barrier to the implementation of the constitution's inheritance laws (KHRC 23 Jan. 2014). The programme officer explained that a large part of society does not believe that women are entitled to inheritance and that raising citizens' awareness of their inheritance rights is an ongoing process that is not yet complete (ibid.).

In a 2012 report, Freedom House writes that "[t]raditional practices continue to restrict women's rights ... and women's property rights have been limited under customary and formal laws of inheritance and succession" (2012). Similarly, the US Department of State's Country Reports on Human Rights for 2012 indicates that "women experienced a wide range of discrimination in matrimonial rights, property ownership, and inheritance rights," noting that under traditional law, women in many ethnic groups are prohibited from owning land (19 Apr. 2013, 40). An article published in the 2012 annual report of the Federation of Women Lawyers-Kenya (FIDA-K), a non-profit, non-partisan organization dedicated to improving the legislative and policy framework for women's rights (FIDA-K and COHRE [2011], 3), states that women continue to face a "complex mix of cultural, religious and social obstacles" that impede their ability to own property (2013, 6).

Two sources report that, under customary law, only men are allowed to own land (FIDA-K 2013, 6; Thomson Reuters Foundation 13 Nov. 2013). A Guardian article written by representatives of Landesa, an international NGO dedicated to securing land rights for impoverished peoples of the world, states that, according to Kenyan custom, property is inherited by men and women move in with their husbands upon marriage and therefore do not own their own land (22 Nov. 2013). The Kenyan newspaper Daily Nation, citing a member of parliament, indicates that many women are not registered as a joint owners of property they share with their husbands (12 Nov. 2013). In an interview with Thomson Reuters Foundation, a FIDA-K representative stated that "women own one percent of the country's land title deeds in their own names and five percent of title deeds jointly with men" (Thomson Reuters Foundation 13 Nov. 2013).

An article published by the Star [Kenya] in 2011 indicates that most women in Kenya are unaware of their rights to own property, noting that the laws establishing their rights "are overshadowed by customary practices" and that Kenya's "patriarchal society far overrides the effectiveness of the law" (4 Apr. 2011). The same article adds that women's property rights are "under constant attack by customary laws and government administrators such as chiefs and village elders" who believe that women should not and cannot own and manage land (The Star 4 Apr. 2011). The programme officer at the KHRC stated that if a widowed woman is not informed about her inheritance rights, she may give up or lose her inheritance to a son or brother of her deceased husband (KHRC 23 Jan. 2014). She explained that the local chief is instrumental in the succession process because he writes a letter of introduction for the heir "to kickstart the judicial process of probate and administration" (ibid.). Chiefs therefore have the ability to protect widows' rights of inheritance, but they do not always do so and sometimes arrange for a male relative to inherit the property instead (ibid.).

A report submitted by FIDA-K and the Centre on Housing Rights and Evictions (COHRE) to the UN Committee on the Elimination of Discrimination Against Women (CEDAW) in 2011 states that the provisions of the 2010 constitution "risk restrictive interpretation by Kenya's courts, which interpret women's rights from a very patriarchal point of view" (FIDA-K and COHRE [2011], 7). The programs/legal officer at CREAW also indicated that, although the constitution protects women's property rights, courts often demand proof or records showing that a woman has contributed to the household -- which many women do not have -- before they are willing to uphold her rights (27 Jan. 2014).

1.2 Situation of Widowed and Divorced Women

Sources indicate that women traditionally lose their property rights once they are divorced or widowed (FIDA-K 2013, 6; IPS 2 Dec. 2010). Various 2010 sources report that widows can be expelled from their homes after the death of their husbands (ibid.; Daily Nation 7 Dec. 2010). In their 2011 report, FIDA-K and COHRE state that women "across the country continue to experience violations of their property rights including evictions from their matrimonial and natal homes because of harmful practices on inheritance and divorce" [2011], 12). The FIDA-K representative told Thomson Reuters Foundation that many women are "'sent away without anything'" after a divorce (13 Nov. 2013). The KHRC program officer gave the example of women in polygamous marriages, who, after the death of their husbands, may be disinherited or expelled by one of the other wives (23 Jan. 2014).

In an interview with Think Africa Press, a widow from Nyanza province, whose experience is described as "typical of that of a widow in Kenya," is cited as saying that most of the widows where she lives cannot inherit property from their late husbands, which forces them to return to their parents' homes (Think Africa Press 15 Sept. 2012). In the same article, a representative of an NGO working with widows in Ugunja [Nyanza province] indicates that widows face "discrimination and stigma" from their community because of traditional "cultural beliefs," and that there have been instances in which widowed women have been chased from the village, accused of killing their husbands, or beaten by their relatives (ibid.).

The KHRC program officer stated that, in some families, parents will set aside a plot of land for their daughters who marry, so that they have a place to go in case the marriage breaks down; however, the land that is chosen for daughters is usually of low value (23 Jan. 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.2.1 Levirate Marriage

Sources indicate that levirate marriage [also known as wife inheritance or widow inheritance in Kenya], whereby a widow is required to marry her deceased husband's brother or another relative, with or without her consent (US 19 Apr. 2013, 39), is practiced among some communities in Kenya (ibid.; AlertNet 4 Oct. 2013; FIDA-K Dec. 2012). In focus group discussions organized by FIDA-K with 973 male and female participants across the country, 46 percent of respondents indicated that wife inheritance was practiced in their communities (Dec. 2012, 32). According to the Country Reports 2012, poor and uneducated women outside of major urban areas were at greater risk of being forced into a levirate marriage (US 19 Apr. 2013, 39). An Inter Press Service article from 2010 indicates that wife inheritance is particularly prevalent in western Kenya (2 Dec. 2010).

Various sources identify the Luo ethnic group of western Kenya as one in which wife inheritance is traditional (Yonhap News Agency 29 Oct. 2010; The People 22 Sept. 2013; Daily Nation 22 Dec. 2013). A Korean news report about a Luo woman who obtained refugee status in Korea indicates that Luo widows are inherited by a brother-in-law or "any other suitor chosen by the village elders," and that women who do not comply are believed to have a curse that will lead to the deaths of loved ones (Yonhap News Agency 29 Oct. 2010). An article published by AlertNet states that, among the Luo [of Northern Tanzania], women who refuse levirate marriage will be cursed and blamed for their husband's death (4 Oct. 2013). A Luo woman interviewed by the Kenyan newspaper The People stated that, after the death of her husband, her in-laws demanded that she go through the widow inheritance process before they would permit her to build a new home (22 Sept. 2013).

Sources indicate that the widow inheritance can be practiced as part of a "cleansing" ritual (The Star 4 Apr. 2011; AlertNet 4 Oct. 2013; Agot et al. 17 Nov. 2010). According to a 2010 article on widow inheritance and HIV prevalence among the Luo in Bondo district, published in the peer-reviewed scientific journal PLOS ONE, a widow must engage in a sexual ritual with a brother-in-law, cousin-in-law, or another man to "cleanse" herself of the "impurity" she is believed to have acquired upon her husband's death, which prevents her from participating fully in community life (ibid.).

Sources suggest that the original purpose of wife inheritance is to ensure that a widow is provided for by her deceased husband's family (ibid.; The Star 4 Apr. 2011). According to the Star, however, the practice has been gradually "exploited [and] commercialised," and most in-laws take advantage of the practice to take control of the widow's property (4 Apr. 2011). Inter Press Service states that a woman who successfully refuses a levirate marriage "is often under constant pressure to sell the property at discounted prices" (2 Dec. 2010). Various sources indicate that a woman who refuses to be inherited will be disowned or evicted by her in-laws (CREAW 27 Jan. 2014; SMAK 26 Jan. 2014; The Star 4 Apr. 2011). Similarly, the Daily Nation writes that engaging in "customary sexual behaviour" such as wife inheritance and ritual cleansing is the only way widows can keep their property (7 Dec. 2010).

The People suggests that the Luo widow it interviewed was able to avoid a forced remarriage because she had the support of one of her brothers-in-law and because she left her village and resettled elsewhere (22 Sept. 2013). The CREAW programs/legal officer stated that the authorities, including the police and the courts, make efforts to protect women from forced levirate marriage, for example, through the implementation of a restraining order (27 Jan. 2014). He emphasized, however, that state protection can be "limited" and the provision of security is not always efficient (CREAW 27 Jan. 2014). He explained, for example, that if the widow's in-laws live in the same community as the widow, it is easy for them to wait until an opportunity arises -- such as when the police return to their station -- before approaching her (ibid.). They may also use "intimidation" tactics and threats, including death threats, against the woman -- for example, by sending a mob of people after her, or by hiring a gang of youths to frighten or attack her (ibid.). The programs/legal officer explained that women may decide to relocate if the threats persist and this "burden becomes too much to bear" (ibid.). Further or corroborating information about state protection could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. The Bukusu Ethnic Group

According to an article published by West FM, a radio station and news site based in western Kenya (10 June 2012), the Bukusu [also known as BaBukusu] ethnic group is one of the 17 Kenyan groups belonging to the Luhya community of East Africa, and is "the largest tribe of the Luhya nation" (n.d.). The US Country Reports 2012 indicate that the Luhya are one of eight major ethnic communities in Kenya, comprising 5.3 million people (19 Apr. 2013, 47). West FM indicates that the Bukusu live in the districts of Bungoma, Trans-nzoia, Uasin Gishu, Kakamega, and Lugari [all in western Kenya] (n.d.). A 2013 Daily Nation article also indicates that the Bukusu are the dominant group in Bungoma County (18 Nov. 2013).

A 2010 research paper published in the International Journal of Sociology and Anthropology, entitled "The Influence of Islam on Bukusu Indigenous Beliefs and Practices Relating to Inheritance, Kenya" provides the information in the following paragraphs (Barasa and Onkware Aug. 2010, 157). The research is based on qualitative data collected from 73 Bukusu respondents in 2007 in Bungoma district, including 24 adherents of an indigenous religion, 24 Muslim elders, 24 Muslim youths, and 1 "public comforter" (ibid.).

The Bukusu have patriarchal inheritance rules that dictate that only male children can inherit property from parents, including land, cattle and profits from the land (155). Women cultivate the land and can own their household property (156). A widow can be "inherited" after her husband's death by her brother-in-law, a cousin, a close relative, or a clan member (156). Upon the death of a patriarch, a brother or the eldest son is "normally" in charge of the property until it is distributed among the male descendants (159). On some occasions, women may be given some property, such as cars, money, or a plot of land to build a house, in order to contribute to their financial stability (160). These women are usually widowed, divorced, or "unstable in their marriages" (160). Women rarely complain when they are denied the inheritance that they are owed according to the Qu'ran -- half of what men inherit -- due to the patriarchal nature of the Bukusu community (160). There have been only "a few enlightened widows" who have appealed to the local Muslim family courts to demand their inheritance (160).

Despite the influence of outside forces including colonialism, Islam, Christianity, and Westernization, the core elements of Bukusu community and culture, including many indigenous inheritance beliefs and practices, have remained intact (159). Bukusu inheritance rules were found to be "entrenched" to the point that they have not been changed by the "Islamization" of the community; many Bukusu Muslims continue to follow Bukusu traditions rather than Muslim rules with respect to inheritance, although they may adopt other Islamic beliefs and practices (159, 161). Additionally, the conflict between Bukusu and Islamic inheritance rules has led some Bukusu people to resist converting to Islam or to abandon Islam and return to their indigenous religion or convert to Christianity (159). Corroborating or further information on Bukusu inheritance customs could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Africa Review. 20 November 2013. Janet Otieno. "Kenya's Matrimonial Property Bill is a Mockery to Women." [Accessed 23 Jan. 2014]

Agot, Kawango E., Ann Vander Stoep, Melissa Tracy, Billy A. Obare, Elizabeth A. Bukusi, Jeckoniah O. Ndinya-Achola, Stepehn Moses, and Noel S. Weiss. 17 November 2010. "Widow Inheritance and HIV Prevalence in Bondo District, Kenya: Baseline Results from a Prospective Cohort Study." PLOS ONE. [Accessed 20 Jan. 2014]

AlertNet. 4 October 2013. Kizito Makoye. "Widow Sexual Cleansing Ritual Continues." (Factiva)

Barasa, Janet Nasambu Kassilly, and Kennedy Onkware. August 2010. "The Influence of Islam on Bukusu Indigenous Beliefs and Practices Relating to Inheritance, Kenya." International Journal of Sociology and Anthropology. Vol. 2, No. 7. [Accessed 20 Jan. 2014]

Centre for Rights Education and Awareness (CREAW). 27 January 2014. Telephone interview with a programs/legal officer.

Centre for Rights Education and Awareness (CREAW). 20 January 2014. "Communication and Advocacy Officer." [Accessed 27 Jan. 2014]

Daily Nation [Nairobi]. 22 December 2013. Elvis Ondieki. "Tracking the Akuku Clan." (Factiva)

Daily Nation [Nairobi]. 18 November 2013. Erick Ngobilo. "Candidates Intensify Vote Hunt for Bungoma Senatorial By-election." (Factiva)

Daily Nation [Nairobi]. 12 November 2013. "MPs Pass Contentious Matrimonial Property Bill." [Accessed 20 Jan. 2014]

Daily Nation [Nairobi]. 7 December 2010. Nancy Baraza. "Women Still Denied Equal Property Rights." (Factiva)

Federation of Women Lawyers-Kenya (FIDA-K). 2013. "So Far, How Far... Realizing Women Land and Property Rights." By Teresa Omondi and Faith Alubbe in Casting THE Vote: Is it the Turning Point for Women? Annual Report 2012. [Accessed 20 Jan. 2014]

Federation of Women Lawyers-Kenya (FIDA-K). December 2012. Base Line Survey on Community-Based Legal Assistance Schemes Partnerships - (LASPS): Survey Report. [Accessed 24 Jan. 2014]

Federation of Women Lawyers-Kenya (FIDA-K) and the Centre on Housing Rights and Evictions (COHRE). [2011]. Joint Submission Shadow Report to the United Nations Committee on the Elimination of Discrimination Against Women. [Accessed 20 Jan. 2014]

Freedom House. 2012. "Kenya." Countries at the Crossroads 2012. [Accessed 20 Jan. 2014]

The Guardian [London]. 22 November 2013. "Why Kenya Must Not Pass its Revised Marriage Property Bill." [Accessed 23 Jan. 2014]

Inter Press Service (IPS). 2 December 2010. Suleiman Mbatiah. "A Brand New Constitution, But Can Women Enjoy Land Rights?" (Factiva)

Kenya. 2010. The Constitution of Kenya. [Accessed 20 Jan. 2014]

Kenya Human Rights Commission (KHRC). 23 January 2014. Telephone interview with a program officer.

Kenya Human Rights Commission (KHRC). N.d. "Who We Are." [Accessed 28 Jan. 2014]

The People. 22 September 2013. "Nyanza Widows Break Chains of Wife Inheritance over HIV." [Accessed 20 Jan. 2014]

Single Mothers Association of Kenya (SMAK). 26 January 2014. Correspondence to the Research Directorate from the founder and project director.

The Star. 4 April 2011. Mercy Njoroge. "Despite Law, Women Still Don't Own Property." (Factiva)

Think Africa Press. 15 September 2012. Rachuonyo Duncan. "Empowering the Nation's Widows." (Factiva)

Thomson Reuters Foundation. 13 November 2013. "Kenyan Women to Fight Bill Denying Them Property Rights in Divorce." [Accessed 23 Jan. 2014]

United States (US). 19 April 2013. Department of State. "Kenya." Country Reports for Human Rights Practices for 2012. [Accessed 20 Jan. 2014]

West FM. 10 June 2012. "About Us." [Accessed 24 Jan. 2014]

West FM. N.d. Fredric Juma. "The Bukusu Community." [Accessed 15 Jan. 2014]

Yonhap News Agency . 29 October 2010. Kim Eun-jung. "Seoul Court Grants Refugee Status to Kenyan Widow." (Factiva)

Additional Sources Consulted

Oral sources: A representative of FIDA-Kenya could not provide information for this Response. Attempts to contact representatives of the following organizations were unsuccessful: African Centre for Empowerment Gender and Advocacy (Kenya); Association of African Women for Research and Development; CREAW Kenya; Coalition on Violence Against Women (Kenya); Groots Kenya; Kenya Voluntary Women's Rehabilitation Centre; National Council of Women of Kenya.

Internet sites, including: Amnesty International; ecoi.net; Kenya – Ministry of Gender, Children and Social Development; Kenyan Human Rights Association; Kenyan Woman; Kibera Community Justice Centre; Landesa; Single Mothers Association of Kenya; Social Institutions and Gender Index; Ugunja Community Resource Centre; Womankind Kenya.