NAIROBI, KENYA -- Despair. Shattered hopes. Crushed dreams.
Susan Atieno, a 52-year-old widow and a mother of six, says her life came to a standstill after her husband, a salesman in Nairobi, was murdered during the post-election violence that followed the disputed 2007 presidential election.
After the burial of her husband, Atieno found no peace in her marital home. Traditions took center-stage and her brothers-in-law demanded their share of their brother’s wealth. Her eldest brother-in-law took charge of almost everything, including the three-bedroom, iron-roofed, mud-walled house that stood on three-acres of land Atieno and her late husband, Samuel Nyabwari, had called home.
Atieno says the situation worsened when she refused orders from her husband’s eldest brother that she, too, was part of the inheritance and now belonged to him. With nowhere else to go, Atieno and her children left the home they had known and moved into the Korogocho slums of Nairobi’s Eastland area, where they still live today, struggling to survive.
Atieno’s three children, now adults, Josephine, 25, Roselyne, 23, and Victor, 21, have completed high school. But now they are now struggling to get into, and pay for, college in order to find work in Nairobi’s challenging job market. Atieno, who earns a living by plaiting and braiding hair, can barely provide for basic needs, let alone for the education of her children.
“If only I could have even a quarter-acre piece of land that I call mine, I would not suffer this much,” she says. On an average day, she makes about 400 shillings (about $5), barely enough to feed her family.
The Murder that Changed Everything
It was a Tuesday night in January 2008 when her husband, who hailed from Kisii, a political rival tribe of her own Luo tribe, was murdered during the height of the post-election violence. In what has become known as the ‘eliminate the enemy’ operation led by a gang of youths mainly from the Luo and Kalenjin tribes, Nyabwari was murdered on claims that a section of his Kisii tribe had collaborated with the Kikuyu tribe and voted for President Mwai Kibaki, thus stealing the victory from Raila Odinga, a rival candidate.
With both presidential candidates — Kibaki, from Kikuyu tribe, and Odinga, from Luo tribe — claiming victory in the disputed election, violence escalated when President Kibaki was hurriedly sworn in. Two months’ of violence followed, leaving more than 1,300 people dead and over a half a million homeless. Most of these internally displaced persons are still living in camps, even though more than two years have passed.
The violence only ended in February 2008 after a peace deal, chaired by former UN Secretary Kofi Annan, was brokered. The peace accord led to the signing of a power sharing deal between President Kibaki and Prime Minister Odinga, a move that unified the country. Although the peace deal has reunited the country and many Kenyans have vowed to forgive and forget the past, the emotional pain lingers in the hearts of those who, like Atieno, lost loved ones. The decision to charge those suspected of perpetrating post-election violence now lies in the hands of the International Criminal Court with Chief Prosecutor Louise Morennho-Ocampo, who has vowed to provide justice to the Kenyan people. However, Atieno doubts she will ever see justice.
“This is what marked the beginning of the end of my life,” she says. Atieno not only had to grapple with losing her husband, but also with the challenges of being a woman in Kenya’s patriarchal society, which treats women like property and does not allow them to take an inheritance. Atieno could not return to her parent’s home because, according to tradition, a woman’s home is at her husband’s place. Although she can visit her parents, she can never call their house home once she has married.
Constitutional Review
Atieno is one of millions of African women who suffer from the cultural and customary laws that bar them from owning land or property, especially after divorce or the death of their spouse. Land ownership is seen solely as a male venture, even when it comes to the marital home, which a wife might have contributed to acquiring.
Though widely seen as one of the most modern and democratic nations in Eastern Africa, Kenya’s constitution does not support a woman’s right to own property. The current constitution, which borrows largely from the remnants of British colonial rule, define a wife as ‘feme covert’ and emphasize a woman’s subordination to her husband. In this context, a women is regarded as property to be inherited by other male relatives of her husband’s family following the death of her husband.
“My woes began when I refused to be inherited,” recounts Atieno, adding that her husband’s relatives ex-communicated her from that community and took over all her family wealth because she became “too big-headed.”
Politics Deals a Blow to Women's Property Rights
While work is being done to make changes to Kenya’s constitution, experts are skeptical of whether or not the current changes will benefit women like Atieno. The Revised Harmonized Draft Constitution, which was handed over to parliament for debate by the committee of experts in early March, does not improve women’s situation in regards to land ownership. After the committee of experts compiled and incorporated the views of the public into the draft in January, the revised document was presented to the Parliamentary Select Committee on Constitution so that contentious issues could be discussed and vetted before being presented to parliament.
But women's rights activists were disappointed to learn that the contentious land policy and legislation clause, which would intervene for women in situations like Atieno, was removed by the PSC. The body argued that such laws could be covered in the parliamentary acts and did not need to be entrenched in the constitution. They agreed on the formation of a National Land Policy, which will include laws relating to these issues.
“This is like throwing women back to the 19th century,” says Professor Kavesta Adagala, from the University of Nairobi, who was a member of the Constitutional Review Commission.
She added that the PSC’s decision to delete a clause that could lead to the state recognizing and protecting matrimonial property, including the family home and protection of the dependants of the deceased persons, means the constitution will not be serving the marginalized bottom billion of the population. Instead it will benefit only the individuals in the ruling class.
Adagala says there was a similar referendum in 2005 on what was commonly known as the Bomas Draft. Politicians used the clause on women inheriting property, including land, as a campaign tool to manipulate the masses to vote against the draft. It was argued that these measures were against African culture. Adagala says she also has concerns about whether the National Land Policy will ever be created since it has been in the pipeline for a long time, but its has yet to materialize.
“Our politicians are simply buying time and come the next election year, 2012, we will still not have a constitution and the issue will be used as a campaign tool,” she adds.
The Bottom Billion
“Times have changed and it is high time that we integrate cultural issues and modernity,” Atieno says while fixing a customer’s hair. She has become outspoken in her beliefs that women should be allowed to receive a share of land and property from their parents so that if things go wrong at their husband’s place, such as her case, she will have something to fall back on.
According to Federation of Women Lawyers (FIDA), about 80 percent of family-related cases in courts revolve around property ownership. FIDA Deputy Executive Director Grace Maingi lauded the overall constitution, noting that although it is not been stated in black and white, the constitution does have benefits for women. However, she quickly added that women stand a better chance to benefit on land rights if a National Land Policy is created.
**Article Update: In Kenya's new Constitution, Article 60 outlaws gender discrimination in accessing property. Advocates say cultural barriers will continue to prevent equality with regard to property rights, but the new constitution was a step in the right direction.
