Payment of dowry to the bride’s family has largely contributed to women being denied their right to equal share of matrimonial property during divorce. According to the Federation of Female Lawyers in Kenya (FIDA-Kenya),and Human Rights Watch (HRW) ,biased practices still persist.
The two rights groups want the government to amend matrimonial laws to abolish dowry as a requirement for marriage.
The Marriage Act, 2014 provides that dowry must be paid to the bride’s family to prove that marriage between the couples exists.
“Parliament and Judiciary should urgently revise and amend the Marriage Act to clarify that though dowry can be used to establish that a marriage existed, it is not a requirement of marriage and forced repayment of dowry during divorce is prohibited,” the lobby groups propose in their latest report.
The 70-page report about women and matrimonial property rights in Kenya released in June is titled “Once You Get Out, You Lose Everything”.It documents the challenges that widowed or divorced women go through in claiming their share of wealth.
Women perceived as men’s properties
The lobby groups note that ambiguous laws and discriminatory norms perceived women as men’s “properties” unless they repay the dowry during separation. This has also hindered their bid to have a share of matrimonial wealth.
They carried out interviews in Mumias , Vihiga , Malindi, Kilifi , Mtwapa and Nairobi City County targeting tens of widowed, divorced and women filing for separation.
Also interviewed were judges, magistrates and lawyers tackling matrimonial cases and local leaders.The rights groups also reviewed and analysed data from 56 divorce and matrimonial property division case files with a final judgement between 2014 and 2019 from courts in Kakamega and Kilifi counties.
This is because the Kenya Bureau of Statistics ranked them among the top five areas with the highest rates of divorce and separation in 2008. The FIDA-Kenya and HRW report reveals that many women lack information regarding their right to claim matrimonial property.
Some lack money to pursue justice in court and they fear that they will be condemned by the patriarchal society.
The Kenya Land Alliance, a lobby group advocating for secure and equitable access to land, in its 2018 report revealed that women are marginalized in land ownership. Its noted that women were holding a paltry 1.62 percent of all land title deeds issued between 2013 and 2017.
Petition to government
In 2015, FIDA-Kenya petitioned the High Court in Nairobi to have equal sharing of matrimonial property between spouses during divorce. It had argued that provisions of the Matrimonial Property Act, 2013 contravene the 2010 Constitution’s guarantee of equality during marriage and divorce.
However, the High Court dismissed the petition on grounds that it would create leeway for “a party to get into marriage and walk out of it in the event of divorce with more than they deserve”. Several women FIDA-Kenya and HRW interviewed were in despair after separation. They could not afford to repay dowry so they had no way to claim their matrimonial properties.
Zacharia Menza,a village elder from Malindi is documented saying, “If there is conflict and the woman leaves and she wants to set herself free, then her family has to return the dowry to the man. According to Mijikenda culture a woman has no right to property”.
Failure to return the dowry binds the woman to her ex-husband even after moving on with her life since it is assumed that the marriage is still valid. Akili Nyrro,an Assistant chief from Malindi, for instance, told the lobby groups that repaying the dowry is like issuing a divorce decree in customary law.
Retrogressive Mijikenda culture
Atanas Magero, a retired teacher from Malindi also interviewed stated, “In the Mijikenda culture if you [wife] want to leave, you must pay me [husband] to set you free. You are mine. If you buy a shop [even after separation] it is mine. You are mine.”
The rights groups have therefore urged Parliament and the Judiciary to ensure the women’s fundamental right to freely exit a marriage is not curtailed by dowry. FIDA-Kenya and HRW report also blamed the courts for failing to implement the laws protecting women against unfair treatment.
“The current situation in Kenya falls short of regional and international human rights standards, as well as the United Nations Sustainable Development Goals that call for equal rights to land and property between men and women,” the report reads.
The lobbies recommend to Parliament and the Judiciary to ensure women’s rights are protected within customary, traditional, and religious laws in Kenya. They also demand traditional mechanisms to adapt and protect equality of both women and men.
The role of Muslim women
The Kadhis courts are exclusively presided over by men. They are viewed as an impediment for Muslim women pursuing justice like getting a portion of the matrimonial property after divorce.The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) committee in 2017 established that the preservation of multiple legal systems in Kenya contributes to discrimination against women.
CEDAW pointed out that the exemption of Kadhi courts from the constitutional equality provisions and barring Muslim women from serving in Kadhi courts has led to discrimination. “The Parliament of Kenya and the Judiciary of Kenya should appoint Muslim women as kadhis and alternative dispute resolution mediators in the Kadhi court system,” FIDA-Kenya and HRW recommend.
In 2017, the CEDAW committee recommended to government to ensure equality between men and women in Muslim marriages and during divorce. This was to be realized through repealing or amending discriminatory provisions in Islamic and customary laws, codifying Muslim family law in line with CEDAW and having Muslim women as kadhis and mediators in Kadhi courts.
Article 16 of the CEDAW provides for the elimination of discrimination against women at the inception of marriage, during marriage and at its dissolution by divorce or death.The sharing of matrimonial property during the termination of an Islamic marriage is exclusively governed by different principles under the Islamic law that has different precedents and ways of interpretation.
The Kadhis and other judicial officers in Muslim courts are documented stating that decisions regarding property sharing are influenced by the Islamic School they follow, their ethnic and cultural traditions and personal factors.
“This means there is no clear rule book on how matrimonial property should be divided in Muslim marriages and the outcome is based on negotiations between the spouses and the kadhi. In addition, women cannot serve as kadhis,” reads the report.
Four Muslim women who were interviewed disclosed that they had lost all their matrimonial property, while their maintenance and child custody cases were ongoing. Women in Islamic marriages are allowed to own their dowry outright. They are also granted some rights to maintenance based on the type of divorce and are guaranteed a share of inheritance.
However, the two lobby groups note that in reality this is not always the case and that these rights do not rise to the level of equality of spouses in marriage when they are implemented.
FIDA-Kenya and HRW want Parliament and the Judiciary to enhance reinforced linkages between the justice system and the police to support the protection of women’s rights to matrimonial property.
Regarding a circular on mandatory registration of marriages, the lobbies have asked the Attorney General’s office to assess its implementation and make public the results.
What journalists should do:
1. Go through the entire report to understand issues raised concerning women rights.
2. Look at the report’s recommendations (is crucial to come up with a newsworthy angle) vis-à-vis the problems women face on matrimonial property sharing highlighted.
3. Familiarise yourself with the existing laws on matrimonial property and the report’s proposals seeking to amend the laws.
4. Check the regional or international laws on the protection of women quoted in the report while stating what the laws say and pointing out shortfalls in national laws.
5. Find out if any reputable organization gave similar recommendations to the government or its institutions and whether the implementation was done or ignored.
6. Point out how women are discriminated or denied their right to an equal share of matrimonial property.
7. Talk to women around your area and share their opinion on the issues raised in the report.