Kenya is characterised by the co-existence of several institutional frameworks. Unofficial “family codes” and ownership rights vary substantially between three main groups: the Muslim population, traditional society and modern society. In some cases, a given couple may belong to two of these societies. For example, a customary marriage may be followed by a statutory marriage, thereby creating conflicts in relation to the rights and obligations of each spouse. Moreover, some judges do not respect modern institutions, which has a negative impact on the situation of women.
The government of Kenya sets the minimum age for statutory marriage at 16 years for women and men. However, there is no such limit for Muslim or customary marriages. Considering that only a minority of the population choose the route of statutory marriage, the prevalence of early marriage is not surprising. A 2004 United Nations report estimated that 17 per cent of girls between 15 and 19 years of age were married, divorced or widowed.
Polygamy is forbidden in statutory marriages, but allowed in Muslim and customary marriages (an estimated 60 per cent of total marriages). In the event of divorce, only statutory marriage requires that couples follow legal procedures and provides any degree of equality for women. Repudiation is permissible for Muslim and customary marriages, both of which allow husbands to end the union without following official divorce procedures. By contrast, it is very difficult for wives to end such marriages.
Statutory marriage stipulates that parental authority be equally shared by men and women; Muslim and customary marriages are discriminatory in this matter. Following divorce in statutory marriage, mothers typically maintain custody of children until the age of 16 years. In the case of Muslim families, young children usually stay with the mother, but the father is awarded custody of sons older than 7 years and daughters older than 14 years. Custody is almost always awarded to the father when a customary marriage ends in divorce.
In 1991, Kenya established an inheritance law that enforces equality between men and women, but it is not applied to all citizens and some judges do not respect the law. For example, judges sometimes rule that married daughters are ineligible to inherit or, in cases in which the heirs are in dispute, they may transfer the affair to an elders council that follows discriminatory customs. Islamic Sharia law is discriminatory in that daughters typically inherit only half of the share to which sons are entitled.
The Constitution officially provides equal protection against threats to physical integrity for all citizens. However, violence against women remains an issue. There is no specific law against such violence, which is generally accepted by public opinion and women are frequently beaten by their husbands. Sexual acts with very young girls (less than 14 years of age) are not recognised as criminal acts, nor is spousal rape. The police and the justice system rarely prosecute other cases of rape.
The government of Kenya forbids female genital mutilation (FGM) in public hospitals and the health minister is taking steps to eradicate this practice altogether. However, FGM is far from being eliminated. It is estimated that about 40 per cent of women have undergone FGM; the figure may be lower in urban areas but is much higher in some rural regions.
There is no evidence to suggest that Kenya is a country of concern in relation to missing women.
The Constitution guarantees equality of ownership rights for all Kenyan citizens. Women are free to buy, own and sell assets as they choose. However, in practice women’s access to land and access to property other than land are severely restricted by custom, which essentially prohibits women from owning land. In fact, women only own 4 per cent of land in Kenya. Even when women are able to acquire assets, their husbands often act as intermediaries in the transaction.
This situation also has negative implications for women’s access to bank loans. Since they rarely have assets of their own, Kenyan women cannot provide the collateral required by lending institutions.
These constraints to ownership and borrowing are more prevalent amongst women in Kenya’s lower class and less common for middle or upper class women.
There are no legal constraints on women’s freedom of movement in Kenya. However, cases are reported of husbands who deny this freedom by refusing to let their wives travel or visit friends.
Freedom of dress is generally well respected, even amongst the Muslim population.
Afrol News (n.d.), Gender Profile: Kenya, www.afrol.com/Categories/Women/profiles/kenya_women.htm.
CIDA (Canadian International Development Agency) (2002), Gender Profiles: Kenya, CIDA, Gatineau, QC.
Kameri-Mbote, P. (1995), “The Law of Succession in Kenya: Gender Perspectives in Property Management Control”, Women and Law in East Africa, No. 3, Nairobi.
Kibwana, K. (1992), “Women and the Constitution in Kenya”, Women, Laws, Customs and Practices in East Africa, Kabeberi-Macharia, J., ed., Women & Law in East Africa, Nairobi.
Lawless, J. and R. Fox (1999), “Women Candidates in Kenya: Political Socialization and Representation”, Women and Politics, Routledge, pp. 49-76.
Mbeo, M.A. and O. Ooko-Ombaka (eds.) (1989), Women and Law in Kenya: Perspectives and Emerging Issues, Public Law Institute, Nairobi.
Oboler, R.S. (1985), Women, Power and Economic Change: the Nandi of Kenya, Stanford University Press, Stanford.
Rhoodie, E.M. (1989), Discrimination Against Women: A Global Survey of the Economic, Educational, Social and Political Status of Women, McFarland, Jefferson, NC.
Robertson, C. (1996), “Grassroots in Kenya: Women, Genital Mutilation, and Collective Action, 1920-1990”, Journal of Women in Culture and Society, pp.615-642.
UNDP (United Nations Development Programme) (1999), Human Development Report 1999, UNDP, New York, NY.
Weintraub, H. (1997), “Status of Women, Maternal Child Health and Family Planning in Kenya”, International Journal of Public Administration, Routledge, London, pp. 1751-67.
World Bank (1989), Kenya: the Role of Women in Economic Development, Country Study, World Bank, Washington.
