rural women’s land rights: a study on the impact of …
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RURAL WOMEN’S LAND RIGHTS: A STUDY ON THE IMPACT OF GOLD
MINING ON WOMEN’S LIVELIHOODS AND FAMILY FOOD SECURITY IN
KOGELO, ALEGO, KENYA
BY
Hellen Amolo OWINO
Supervisor: Professor Julie Stewart
A Dissertation submitted in partial fulfilment of the requirements for a Masters Degree
in Women’s Law, Southern and Eastern African Regional Centre for Women’s Law,
University of Zimbabwe
2014
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Abstract
The author of this study examines the effectiveness of legislation in securing rural
women’s land rights in the wake of the uncontrolled and unsustainable use of
agricultural fields for purposes of gold mining in Kogelo, Kenya. It presents the findings
and analysis of the research to demonstrate how the degradation of agricultural land as
a result of gold mining has affected women’s use of the land to provide food for the
family. Most women in the rural areas rely on tilling the land to feed their families and
meet their basic economic needs. At independence in 1963, Kenya inherited a system of
individual registration of land from the colonial government, where the person whose
name appeared on the title document had absolute access and control over land. This
resulted in land being registered in the names of men as heads of households based on
the assumption that the land was held in trust for all members of the household.
Women’s rights to land largely depended on good relations with important male
relatives in their immediate and extended families, a practice which still subsists.
Women find themselves at an intersection of statutory law and religious, cultural or
traditional practices and beliefs which influence the choices they make, and the
decisions others make which affect their lives. Kenya’s 2010 Constitution embraces
progressive provisions which reflect human rights ideals aimed at securing women’s
right to land, and are pronounced in various pieces of legislation. The research uses the
women’s law approach to capture the lived realities of rural women, combined with
legal pluralism and the grounded and human rights approach to also obtain a male
perspective regarding women’s land rights. Through a critical analysis of data collected
the researcher shows that State institutions and NGOs roles overlap resulting in poor
implementation of laws and policies. The inter-related nature of human rights is
demonstrated by the effect of marriage on rural women’s access to land and therefore
limits how much say they can have in its use. The research concludes that social-cultural
factors often dominate women’s daily lives in the rural areas and usually override
legislation. Further, women are not homogenous, and elderly widows with grown-up
sons are in a better bargaining position regarding land use, than young or childless
widows. The study recommends the harmonization of laws so that each State institution
is aware of its defined role and creation of awareness on sustainable land use as a way of
helping women to provide food for their families.
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Table of contents
Table of contents ........................................................................................................................ 3
Declaration ................................................................................................................................. 6
Dedication .................................................................................................................................. 7
Acknowledgements .................................................................................................................... 8
List of abbreviations and acronyms ........................................................................................... 9
List of national legislation, policies and other instruments ..................................................... 10
List of international human rights instruments and documents ............................................... 11
List of regional human rights instruments and documents ...................................................... 12
List of cases.............................................................................................................................. 13
List of figures ........................................................................................................................... 14
List of tables ............................................................................................................................. 14
Executive summary .................................................................................................................. 15
CHAPTER ONE ...................................................................................................................... 18
1. INTRODUCTION AND BACKGROUND TO THE RESEARCH ........................... 18
1.1 Description of the research area .......................................................................................... 18
1.2 Identifying the problem ....................................................................................................... 20
1.3 Objective of the study .......................................................................................................... 21
1.4 What triggered the study? .................................................................................................... 22
1.5 Research assumptions and questions ................................................................................... 23
1.5.1 Research assumptions ..................................................................................................... 23
1.5.2 Research questions .......................................................................................................... 24
1.6 Conclusion ........................................................................................................................... 25
CHAPTER TWO ..................................................................................................................... 26
2.0 LINKING HUMAN RIGHTS TO KENYAN LEGISLATION .................................. 26
2.1 Introduction ......................................................................................................................... 26
2.1.1 Equality and the right to be free from discrimination ..................................................... 26
2.1.2 Right to land? .................................................................................................................. 28
2.1.3 Right to adequate food .................................................................................................... 31
2.1.4 Equal rights in marriage ................................................................................................. 32
2.1.5 Equitable and sustainable use of land ............................................................................. 33
2.1.6 Access to justice .............................................................................................................. 35
2.2 Conclusion ........................................................................................................................... 35
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CHAPTER THREE ................................................................................................................. 37
3. METHODOLOGY AND DATA COLLECTION METHODS .................................. 37
3.1 The Research Journey (Methodology)................................................................................. 37
3.1.1 Sharing experiences ........................................................................................................ 37
3.1.2 Gathering more information ........................................................................................... 38
3.1.3 Approaching government institutions and NGOs ........................................................... 40
3.1.4 Social relations and gender roles.................................................................................... 42
3.1.5 Too many cooks! Legal pluralism and semi autonomous social fields ........................... 43
3.1.6 Analyzing women’s rights to land based on international human rights standards ....... 44
3.2 Data collection tools ............................................................................................................ 45
3.2.1 Focus groups ................................................................................................................... 45
3.2.2 Individual interviews ....................................................................................................... 46
3.2.3 Observation ..................................................................................................................... 46
3.2.4 Pictorial data .................................................................................................................. 46
3.3 Assessment of methodology ................................................................................................ 47
3.3.1 Study limitations .............................................................................................................. 48
3.4 Conclusion ........................................................................................................................... 49
CHAPTER FOUR .................................................................................................................... 50
4.0 THE LIVED REALITIES: WEALTH TODAY AND A HERITAGE LOST
FOREVER?.................................................................................................................. 50
4.1 Introduction ......................................................................................................................... 50
4.2 The legislative framework protecting women’s interests in land ........................................ 50
4.2.1 Protecting women’s interests .......................................................................................... 50
4.2.2 Protecting land use ......................................................................................................... 53
4.3 Which law and whose law? ................................................................................................. 54
4.4 A hen does not crow, does it? Excluding women from decision making ............................ 58
4.5 From farm fields to gold fields-who gives out family land? ............................................... 60
4.6 Unsustainable patterns of land use: The impact of gold mining on women’s livelihoods in
Kogelo ................................................................................................................................. 62
4.7 Conclusion ........................................................................................................................... 67
CHAPTER FIVE ..................................................................................................................... 68
5.0 IS IT JUST LIP SERVICE? THE ROLE OF STATE INSTITUTIONS AND NGOS
...................................................................................................................................... 68
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5.1 Introduction ......................................................................................................................... 68
5.2 What hinders women from enforcing their rights? .............................................................. 68
5.2.1 The legal eagles............................................................................................................... 68
5.2.1.1 A hole in her pocket and technicalities ....................................................................... 70
5.3 Other State institutions and NGOs ...................................................................................... 71
5.3.1 Where does the buck start and stop? ............................................................................... 72
5.4 The effect of findings .......................................................................................................... 73
5.5 The unexpected (Emerging issues) ...................................................................................... 74
5.6 Influence of the research ...................................................................................................... 75
5.7 Conclusion ........................................................................................................................... 76
CHAPTER SIX ........................................................................................................................ 77
6.0 THEORIES COME ALIVE! ....................................................................................... 77
6.1 Introduction ......................................................................................................................... 77
6.2 The visible man - The invisible woman .............................................................................. 78
6.3 I can’t ignore the social networks ........................................................................................ 79
6.4 Eco-feminism....................................................................................................................... 80
6.5 We can reason and negotiate (African feminism) ............................................................... 81
6.6 Conclusion ........................................................................................................................... 82
CHAPTER SEVEN .......................................................................................................................... 83
7.0 CONCLUSION AND INTERVENTIONS ................................................................. 83
7.1 Conclusions ......................................................................................................................... 83
7.1.1 Ownership and usage ...................................................................................................... 83
7.1.2 Multiple dynamics ........................................................................................................... 83
7.1.3 The gaps .......................................................................................................................... 84
7.2 What can be done? ............................................................................................................... 85
7.2.1 Harmonization of laws and roles .................................................................................... 85
7.2.2 Information dissemination .............................................................................................. 86
7.3 Judicial activism .................................................................................................................. 87
Bibliography ............................................................................................................................ 88
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Declaration
I, HELLEN AMOLO OWINO, do hereby declare that this dissertation is my original work; it
is an honest and true effort of my personal research. I certify that this work has not been
presented anywhere else before for the award of certificates or any other form of assessment.
Signed……………………………………
Date………………………………………
This dissertation was submitted for examination with my approval as the University
Supervisor
Signed…………………………………….
PROFESSOR JULIE STEWART
Date……………………………………….
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Dedication
To my precious jewels: Joshua Owino (Junior) and Ricci Jakorea - for your resilience.
To my parents, Arthur Owino Reuben and Dorina Aluoch Owino: You have always desired
the best for me - this is for your countless sacrifices, prayers and optimism.
To the women of Kogelo…because land does not give birth to more land.
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Acknowledgements
To God almighty, Father of my Lord Jesus Christ…honour and praise because Thou art
strength for today and bright hope for tomorrow, thy compassions they fail not- GREAT is
Thy faithfulness!
I am sincerely grateful to the Norwegian Government for their generous financial support.
The scholarship introduced me to a whole new world of approaching and analyzing issues.
I am most indebted to my supervisor, Professor Julie Stewart, for the academic advice, the
patience, support and encouragement and for helping me to swim against the waves. My
sincere gratitude goes to Dr Rosalie Katsande for her concern, intellectual engagement and
understanding. I also wish to thank Professor Patricia Kameri-Mbote for inspiring me to
conceptualize this topic through very thought provoking questions. I am grateful for the rich
intellectual input by Prof Anne Hellum, Ingunn Ikdahl, Dr Elizabeth Rutsate and all of
SARWL’s visiting lecturers.
The staff at SEARCWL, Blessing, Rudo, Sesedzai, Prim, Tshingi and Johnson – each of you
contributed in very special ways to making my stay at SEARCWL a memorable one. Cecilie
Mariri- thank you for keeping the library open on those critical Saturdays.
To my husband, Dr Omondi-Ogada – for always being so re-assuring! Thank you for your
moral support and encouragement.
My brother Ben - so remarkably selfless - you gave up so much just to make sure everything
moved well for the boys - God bless you.
The Milimani Clan - Ken, Julie, Habenga and Ozawa, such a reliable team! Special thanks to
the larger family for your prayers.
My treasured friend, Dr Florence Vunoro Murila, thanks for the weekly phone calls, and
rallying the prayer warriors.
My special gratitude goes to John Nyerere, Leonard Ofula, Prof. Muga Kapiyo, Paul Obiero
and Alpha (Nakuru Court Librarian) for their in-put into this research. To: Peter Otala,
Charles Okwenda, and Mama Jennifer Ondu for tirelessly providing useful links -
Erokamano!!
Many thanks to Rev. Magambo and Vicar Obwongi, Thomas Osiru, Doris Waithaka, Johnson
Odhiambo, Pastor Aurelia and Central Baptist Church, Harare for their prayers and spiritual
in-put.
To Mildred Mashozhera, Patricia Mavhembu and Fadzai Nyagwande…determined that we
must walk together to the finishing line - I cherish your friendship. I greatly benefitted from
the discussions, your prayers and great humour.
To Eddah Chavula an amazing very special sister in many ways, Lebohang Leeu and
Margaret Wagana, Kennedy Mwangi and James Njogu…generous, kind and always ready to
lend a helping hand…thank you so much.
My colleagues: Judges Aaron Makau, Anne Omolo, Anthony Kaniaru, Samson Okongo-
thanks for your very useful insights and perspectives.
To the women and men of Kogelo and everyone who gave their time and enthusiastically
shared their life experiences, views and suggestions…Asante Sana!
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List of abbreviations and acronyms
ACHPR African Charter on Peoples and Human Rights
ADR Alternative Dispute Resolution
BPFA Beijing Platform for Action
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CESCR Committee on Economic, Social and Cultural Rights
EIA Environmental Impact Assessment
EMCA Environmental Management and Co-ordination Act
FIDA-K Federation of Women Lawyers in Kenya
FAO Food and Agriculture Organization of the United Nations
Ksh Kenya shilling (US$1 = Ksh1000/-)
NEMA National Environmental Management Authority
NFLS Nairobi Forward Looking Strategies
NGO Non-Governmental Organization
SEARCWL Southern and Eastern African Regional Centre for Women’s Law,
University of Zimbabwe
Women’s Protocol Protocol to the African Charter on Human and People’s Rights on the
Rights of Women In Africa
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List of national legislation, policies and other instruments
Kenya
Agriculture Act Chapter 318 Laws of Kenya, Revised Edition 2012 (1986)
Constitution of Kenya (2010) Chapter 160 Laws of Kenya
Environment Management and Co-ordination Act (1999)
Land Act (2012)
Land Control Act Chapter 302 Laws of Kenya Revised Edition 2012 (2010)
Land Registration Act (2012)
Law of Succession Act, Chapter 160 revised edition of 2008 (1984)
Marriage Act (2014)
Matrimonial Property Act (2013)
Mining Act Chapter 306 Laws of Kenya; Revised 2012 (1987)
Sessional Paper No 3 of 2009 on National Land Policy, August 2009; Nairobi, Government
Printer
The Community Land Bill (2015) Kenya Gazette Supplement, National Assembly Bills,
2015, Nairobi, Government Printer
Zimbabwe
Communal Lands Act Chapter 20:04
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List of international human rights instruments and documents
Agenda 21
Beijing Platform for Action adopted at the Fourth World Conference 1995
Convention on the Elimination of All forms of Discrimination against Women
International Covenant on Economic, Social and Cultural Rights
Rio Declaration on Environment and Development
UNEP (1972) Declaration of the UN Conference on the Human Environment (Stockholm
Declaration)
http://www.unep.org/documents.multilingual/default.asp?documentid=97&articleid=1503
accessed on 10 March 2016
Universal Declaration of Human Rights
CESCR No 16 of 2005
CEDAW Committee GR No 25 of 1994
CEDAW General Recommendation No. 21(1994) Equality in Marriage and Family Relations
CEDAW (1998) A/53/38/Rev.1 paragraph 235-6
CESCR General Comment No 16 on the Equal Right of Men and Women to the enjoyment of
all Economic, Social; and Cultural Rights
General Comment No 12 of 1999 on the right to adequate food
Human Rights Committee General Comment No 19 of 1990
Preliminary study of the Human Rights Council Advisory Committee on the advancement of
the rights of peasants and other people working in rural areas, 19 February 2011,
A/HRC/16/63, p. 7
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List of regional human rights instruments and documents
African Charter on Human and People’s Rights
African Union Declaration on Land Issues Declaration on Land Issues and Challenges in
Africa (2009)
Nairobi Forward Looking Strategies
Protocol to the African Charter on Human and People’s Rights on the Rights of Women in
Africa (2003) (the Women’s Protocol)
13
List of cases
Josephine Wanjiru and others v Gichu Watene Civil Appeal No 22 of 1980 (unreported)
Kisaigu Ranching (DA) Ltd v Kihara and 4 others (2006) KLR (E&L) Vol.1 at 323
http://kenyalaw.org/environment/content/resource_index.php?view_page=1 accessed on 8
March 2016
Re: The Estate of Lerionka ole Ntutu (2008) eKLR http://kenyalaw.org/caselaw/- accessed on
7 March 2016
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List of figures
Figure 1: Jennifer Ondu’s agricultural field which is now a gold mine. ................................. 20
Figure 2: Two different views of Jennifer Ondu’s former maize field where mining is on-
going. ....................................................................................................................... 64
Figure 3: A former maize field where multiple pits were dug and abandoned after fruitless
searches for gold. The owner complained of poisonous snakes inhabiting the pits
and his livestock falling into them. .......................................................................... 65
Figure 4: Stunted and un-sprouted crops on Joseph Oyare’s field where mining was done for
7 months then abandoned. ....................................................................................... 65
List of tables
Table 1: Showing key respondents from various institutions ................................................ 47
Table 2: Showing details of data collection methods for Kogelo sub-location respondents . 47
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Executive summary
This dissertation examines the effectiveness of legislation in securing rural women’s land
rights in the wake of the uncontrolled and unsustainable use of agricultural fields for purposes
of gold mining in Kogelo, Kenya. It presents the findings and analysis of research conducted
to demonstrate how the degradation of agricultural land as a result of gold mining has
detrimentally affected women’s use of the land to provide food for their families. Kenya is a
predominantly rural society with 70% of the population living in the rural areas. Most rural
women are not engaged in formal employment and rely on tilling the land to feed their
families and meet their basic economic needs, a role they are unlikely to ever abandon.
Kenya’s 2010 Constitution embraces progressive provisions which reflect human rights
ideals, and are reinforced through complementary pieces of legislation affecting land use and
securing women’s rights to land. The research was conducted in Rambo, Barding, Pap
Orian’g and Nyangoma villages within Kogelo sub-location in South-East Alego, where
artisanal gold mining has resulted in several families converting their farm fields into gold
mines in the hope of improving their economic status. Such decisions are often made by men
as heads of households in whose names the land is registered. Fields that once produced food
are being rapidly replaced by huge mounds of soil scooped from the belly of the earth and
creating gaping pits. Once the gold is exhausted, the field is no longer of much agricultural
use and what is left of it becomes an eyesore to an otherwise attractive part of Kenya’s
landscape.
The objective of the research is to assess whether laws in Kenya are effectively applied in
protecting women’s interests and rights to land. In the rural areas there is a tendency to risk
sanction for violating statutory provisions and choose rather to heed more familiar and
comfortable cultural and social norms. The study shows that while legislation may be a useful
tool in improving women’s land rights, it is important to understand that social-cultural
factors often override legislation.
When a maize field belonging to the researcher’s relative who regularly supplied her with
fresh maize to roast and boil, was converted into a huge open-pit gold mine, it was realized
that the uncontrolled mining activities on agricultural fields was inching its way towards her
parents’ land which was being used for subsistence farming. Who and what was encouraging
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the threat to a critical source of food production and livelihood on which most rural women,
families and indeed communities depended? The assumption that there is a gap between
legislative provisions and what customary or traditional practices dictate the daily lives of
women in the rural areas is tested by examining the human rights of land users, especially
rural women and their link to the Kenyan legal and conceptual framework. The research was
conducted using the women’s law methodology which focuses on the lived realities of the
rural women in accessing and controlling land use. Other research methodologies such as the
grounded and human rights approaches and legal pluralism as well as the role of actors and
structures were incorporated. The methods used in collecting the data were mainly
interviews, focus group discussions and pictorial data. A critical analysis of the data collected
found that that the relevant Constitutional provisions and legislation do not necessarily
eliminate the disadvantages women suffer as a result of social practices which dominate their
daily lives in the rural areas. The inter-related nature of human rights is demonstrated by the
domino effect on rural women’s rights in marriage which affect ownership of property (land)
and the value women place on their relationships which, in turn, limits how much say they
can have in its use. Strands of feminist theories such as relational feminism, eco-feminism,
existential and African feminism were helpful in explaining the dynamics that manifested
themselves and influenced women’s daily lives in Kogelo, especially in so far as the women
deferred to and sought approval from the men with whom they related in connection with
their access to and use of the land.
The study concludes that the legislative conferring of rights alone is not an assurance of their
instant enjoyment. A cluster of factors such as the overlapping roles of State institutions
results in poor monitoring and implementation of laws and policies. Further, there is a need
for the harmonization of laws so that State institutions are certain about their defined roles.
The findings send a signal to NGOs in Siaya County on the need to encourage sustainable
land use in Kogelo.
Social and cultural factors influence the extent to which women can use the law to enforce
their right to land. Modifying structural patterns within rural families in order to achieve
equality in practice however will not happen overnight. Therefore interventions which would
strengthen women’s rights to land and impact positively on the availability of food for the
whole family include the State’s harmonization of laws and a clear definition of the roles of
State institutions. In addition there is a need to create and increase public awareness of the
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benefits of sound land use and management through active dissemination of information. It is
important to encourage judicial activism by the proactive interpretation of the law using local,
regional and international human rights instruments as tools to help women overcome the
various challenges they face in realising their full rights to land.
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CHAPTER ONE
1. INTRODUCTION AND BACKGROUND TO THE RESEARCH
This chapter gives a brief background to and the objective of the research. It also identifies
the research problem plus the assumptions which informed this research and from which the
research questions were developed.
1.1 Description of the research area
‘As we approach the 2015 deadline for achieving the Millennium Development Goals, it is
time to invest more in rural women, protect their rights and improve their status. On this
international day, I call on all partners to support rural women, listen to their voices and
ideas, and ensure that policies respond to their needs and demands. Let us do everything we
can to enable them to reach their potential for the benefit of all’1 (UN Women, 2013).
This dissertation examines the effectiveness of legislation in securing rural women’s land
rights in the wake of the uncontrolled and unsustainable use of agricultural fields for purposes
of gold mining in Kogelo, Kenya.
Rural women are women residing and/or working in predominantly agricultural, coastal and
forest areas. The definition includes, inter alia, women who are engaged in regular or
seasonal activities, on or off the farm, in food preparation, in the management of the
household,2 in child care or other activities in home-based and natural resources based
industries.3
Kogelo is part South-East Alego location, Alego constituency in Siaya County and is located
about 100 km north-west of Kisumu. One can access Kogelo through Nyangoma, or the dirt
road at the Karemo turn-off along the Kisumu-Siaya road. The people of Kogelo are from the
Luo tribe referred to as Jaluo (singular) or Joluo (plural), and the local dialect is Dholuo.
Their main activities involve keeping small herds of livestock, peasant farming, petty trading
and brick making. In 2008, Kogelo which is in a rural setting and described by a section of
1 Ban Ki-Moon, United Nations Secretary General in his message on the occasion of the International Day of
the Rural Women New York, 14 October 2012. 2 The terms household and family are used interchangeably in this paper. 3 This definition is based on the submissions of 24 May 2012 by the Philippines to the Human Rights
Committee A/HR/22/72.
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Kenya’s media as a ‘sleepy village’ (Omari 2008) shot to international fame as it is the home
of Barack Obama Senior, father to the current U.S.A. President, Barack Obama!
Kenya has a long history of small scale gold mining which can be traced to 1882 when gold
was first discovered at Lologorien at the border of the then Rift Valley Province and Nyanza
Province. According to 92 year old Mzee Arthur Reuben (a retired senior civil servant), gold
mining in Kogelo has been carried out at intervals since 1928. Gold prospecting and
artisanal4 gold mining has been on-going in Alego for a long time, and several families have
converted their farm fields into open-pit gold mines in the hope of finding some relief from
their economic challenges. It however gained momentum in 1980 at Rambo, Barding and
Nyangoma villages.
Over the years I have witnessed fields that once produced food being replaced by huge
mounds of soil scooped from the belly of the earth and large gaping pits in the quest for gold.
Once the source of gold is exhausted, the field is abandoned and is not of much agricultural
use. The access to, use of and control over land by rural women is essential because they
depend on land to provide for their day-to-day needs and those of their families.
4 Artisanal mining does not have a single definition, but it is found in the informal sector, and the common
features include a strong link to rural poverty, labour intensive-typically involving rudimentary tools,
insecure and unsafe working conditions, and a series of intermediary buyers often operating illegally (World
Bank 2012: 1-3).
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1.2 Identifying the problem
Figure 1: Jennifer Ondu’s agricultural field which is now a gold mine.
The overarching research problem is that legislative provisions have failed to take into
account the practical socio-cultural factors which hinder women from realizing their rights to
land. This has resulted in undermining women’s livelihoods and their role in providing food
for the family. Livelihoods depend on strategies to make a living and involve people
engaging with others over natural resources, access to land and property (Long, 2001). In
defining who is a rural woman Banda refers to CEDAW’s Committee construction that rural
relates to both geographical location and exclusion from services and opportunities, and that
rural living increases women’s socio-economic disadvantages making them vulnerable to
poverty (Banda, 2012: 359).
Access to land determines what a woman can or cannot do with land resources to sustain their
livelihoods and support their families’ food security. As fragmentation of land increases with
sub-divisions, and the change of land use, women in rural areas gradually find it more
difficult to access resources, or be able to use what they have to sustain their livelihoods and
feed their families (Cross, 1999: 2). Mining in Kogelo is carried out on the fields ordinarily
used for cultivating crops for family consumption. Studies by the Population Reference
21
Bureau (2011) in Kenya show that almost 70 percent of people live in rural areas, and two out
of three rural farmers do not believe the land they own is sufficient for their children to stay
and live on - this translates to 67% of rural farmers.
In the rural areas access to land is nuanced by various factors such as gender roles, which
translate into power relations with the result that being male or female determines the
entitlement to land. Despite the existence of statutory provisions on women’s rights and
protecting land use, the reality on the ground is usually different as traditional practices and
beliefs are applied to allocate land and determine land use. Mbote (2006: 43) has suggested
that rather than focusing on ownership of land for its own sake, perhaps the roles that
individuals play in relation to land and its resources ought to determine the rights to land.
This would shift the control from the titular male household heads to the women who are
mainly the managers and labourers of land in the rural areas, and perhaps put a check on how
land is used in Kogelo.
1.3 Objective of the study
The objective of this study is to assess the use and application of Kenya’s laws which purport
to give women in rural areas rights to land. To achieve this, a critical assessment was
conducted of the impact the gold rush has on rural women’s right to land for their own
benefit and the survival of their families. The research will demonstrate that despite the
existence of legislation on the right to and sustainable use of land, the rural women’s security
of tenure is not guaranteed due to various social, cultural and economic factors. The rural
areas in Kenya are dominated by small farm holdings with a lot of fragmentation due to the
system of land inheritance. When mining is added to this equation then the impact it has on
people and the environment must be examined. Land rights are an unavoidable part of mining
because access to land is a pre-condition for most mining. Gold mining in Kogelo has a
significant impact on agricultural fields and the outcomes are neither sustainable nor
equitable.
There is a general perception that rural areas are places with low population density,
separated by distance from urban areas and endowed with social traditions and cultures5
(Pruitt, 2008: 4-7). Those living in rural areas are considered to be more inclined towards
5 Traditional and cultural practices include customs, beliefs, convictions and way of life - what goes on in
people’s minds or a common practice by a particular community.
22
enforcing tradition and customs rather than formal legislation. The structure of the household
tends to observe definite gender roles where the male wields power in decision making, and
controls land allocation and use, and provision of services by State agencies is not always a
priority. Legislation may only be a fraction of the solution, the other parts of the answer may
lie in securing women’s decision making and equipping both women and men with adequate
skills on sustainable use of land to satisfy the family’s food security.
1.4 What triggered the study?
In December 2014 while visiting my parents in our rural Kogelo home in Alego, I stopped as
usual at the home of the late Richard Ondu (my grandfather’s cousin) to greet his widow
Mama Jennifer. I noticed that the field where she would always get me fresh maize to roast,
had turned into a huge crater with an army of men toiling away in search of gold. Although
this was not the first time such activity had taken place in Kogelo, this time it was too close to
home and concerned me greatly.
I was alarmed, certain that the decision to convert land which was providing food into a gold
mine must have been made by her sons and surviving brother in-law. The next morning while
at my parents’ home, two women approached my mother looking for ANY job because they
could no longer cultivate their family’s agricultural fields which had become abandoned gold
mines.
Having spent part of my adult life in Kogelo after my father retired and relocated there, I
knew that most rural women rely on subsistence farming to produce food for their family’s
consumption and to sustain their livelihoods – and this was now under threat! I realized that
the uncontrolled gold prospecting and mining on agricultural fields, resulting in degradation
and unsustainable use of land was inching its way towards my parents’ land.
Later, while studying at the Southern and Eastern African Regional Centre for Women’s
Law, University of Zimbabwe (SEARCWL), a question was posed by the lecturer during the
Women, Land and Environmental resources class:
‘Which one of you would alienate property you own without consulting your
spouse? How many of you would be consulted by their spouses before
alienation of HIS property?’
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She challenged us to think about the many social and cultural factors which affect a woman
in the choices and decisions she makes. The gold fields in Kogelo came to mind, and I mulled
over the legal protection for the rural women who rely on farming to ensure the family has
food. It caused me to examine whether existing legislations effectively protect rural women’s
land rights. My assumptions were informed by the progressive 2010 constitutional provisions
and various pieces of legislation in Kenya which led me to believe that women had made
great strides in enforcing their land rights.
1.5 Research assumptions and questions
1.5.1 Research assumptions
My research was informed by the following assumptions:
1. The legislative framework in Kenya protects women’s interests over land despite the
land being registered in her spouse’s name alone.
2. There is a gap between the legislative provisions and what customary/traditional
practice dictates with the latter dominating people’s daily lives.
3. Traditional practices and social factors place authority in men to make decisions
regarding land use.
4. Women are excluded from decision making roles in traditional arenas and in families.
5. In Kogelo men are involved in gold prospecting on their own or family land – this
may lead to degradation of the land.
6. Gold may or may not be found but the land is rendered unsuitable for farming due to
the huge pits and mounds of soil generated by mining.
7. Women’s livelihoods and those of families in Kogelo depend largely on farming the
land.
8. Failure to respect women’s rights to farm and the sustainable use of land has resulted
in degradation of arable land caused by mining and prospecting thereby undermining
women’s livelihoods and threatening the family’s food security and its economic
survival.
9. Practical barriers such as the cost of litigation, technical legal procedures, traditional
practices and social norms hinder women from enforcing the statutory protection over
their right to land..
24
10. State institutions and other non-governmental agencies have not adequately engaged
with customary norms and traditional practices nor played their roles in ensuring the
sustainable use of land and helping women achieve their rights to land.
From these assumptions I developed the following research questions:
1.5.2 Research questions
1. Does the legislative framework in Kenya protect women’s interests over land despite
it being registered in her spouse’s name alone?
2. Is there a gap between legislative provisions and customary practices, with the latter
dominating people’s daily lives?
3. Do traditional practices and social factors place authority in men to make decisions
regarding land use?
4. Are women excluded from decision making roles in traditional arenas and in families?
5. Is prospecting for gold by men on their own land or family land in Alego likely to
lead to degradation of the land?
6. Might the land be rendered unsuitable for farming after it has been excavated and no
gold is found?
7. Do women’s livelihoods and those of families in Alego depend largely on farming
land?
8. Has failure to respect women’s rights to farm and sustainable use resulted in
unsustainable use and degradation of arable land for mining activities thereby
undermining women’s role in satisfying the family’s food security and economic
survival?
9. Are there practical barriers such as the cost of litigation, traditional practices and
social norms which hinder women from enforcing the statutory protection over their
right to land?
10. Have State institutions and other non -governmental agencies adequately played their
roles in ensuring sustainable use of land and helping women to achieve their rights to
land and sustainable land use?
25
1.6 Conclusion
This chapter has given a brief background to the research by setting out its objective as well
as the research assumptions and questions. This sets the ground work for examining the
effectiveness of legislation in protecting rural women’s rights to land within the broader
context of their human rights.
26
CHAPTER TWO
2.0 LINKING HUMAN RIGHTS TO KENYAN LEGISLATION
2.1 Introduction
Although the human rights conventions do not provide a right to access land, realisation of
several other rights which are essential for life, such as the right to housing and the right to
food, are closely linked to land (Ikdahl, 2007: 264-265). The rights to land (related to access,6
use and control over land) are embedded in various international human rights instruments
manifesting themselves as protection of property rights. The Universal Declaration of Human
Rights sets the principle of non-discrimination based on sex and also recognizes the rights to
property and food. The implementation of the international human rights treaties is monitored
by various organs including the Committee on the Elimination of Discrimination against
Women and the Committee on Economic, Social and Cultural Rights which frequently call
on State parties to ensure women’s rights to land and other productive resources are
protected.
Kenya has demonstrated a genuine desire to comply with international human rights
instruments by ratifying them, and discarding discriminatory legislation, and replacing them
with newly enacted ones in tandem with international human rights standards. Article 43(3)
of the Constitution of Kenya (2010) provides for women’s equal rights within marriage and
also provides under article 60(1) for equitable, efficient and sustainable use of land and
elimination of gender discrimination in laws, customs and practices related to land and
property in land. Kenya’s parliament has enacted, revised, consolidated and rationalised land
laws and family laws as well as legislation relating to environmental protection.
2.1.1 Equality and the right to be free from discrimination
Article 27(3) of the Kenya’s Constitution provides the right to equal treatment for women and
men including the right to equal opportunities in economic, and social spheres whilst article
27(6) requires the State to take legislative measures, affirmative action programmes and
policies designed to redress any disadvantage suffered by individuals or groups due to past
discrimination.
6 Access means being available for use but does not include the right to transfer, dispose of or sanction its use.
Access is dependent on others who own the land and therefore exercise discretion as to who can use it.
27
To determine whether these provisions comply with international human rights standards to
achieve the desired results for rural women, it is essential to understand the principles of
equality and non-discrimination. The major international human rights instruments which
embody these principles include article 2 of the Universal Declaration of Human Rights
(UDHR), articles 2(3) and 26 of International Covenant on Civil and Political Rights
(ICCPR), articles 2 and 3 of International Covenant on Economic, Social and Cultural Rights
(ICESCR) and article 2 Convention on the Elimination of All Forms Of Discrimination
Against Women (CEDAW). In the regional instruments these principles are found in article 2
of the African Charter on Human and People’s Rights (ACHPR), article 2 of the Protocol to
the African Charter on Human and People’s Rights on the Rights of Women in Africa (‘the
Women’s Protocol’). These principles are also elaborated upon in paragraph 8 of the CESCR
Committee’s General Comment No 16 of 2005 in which it is explained that formal equality
assumes that a law or policy treats women and men in a neutral manner, whereas substantive
equality is concerned with the effects of policies, laws and practices so as to ensure that they
alleviate rather than maintain the disadvantage experienced by a particular group.
This may require adopting temporary special measures aimed at accelerating equality
between men and women, and which are to be discontinued once the objectives of equality of
opportunity and treatment are achieved as stated in article 4(1) of CEDAW. CEDAW’s
Committee General Recommendation No 21 of 1994 elaborates that to achieve equality of
results biological as well as socially and culturally constructed differences between women
and men must be taken into account because under certain circumstances non identical
treatment of women and men may be required in order to address their differences. Ikdahl et
al. (2005: 19) emphasize the significance of equality and non-discrimination in realising
women’s right to land saying they ‘...constitute an interrelated and indivisible whole, setting
standards that have a bearing on land reform in terms of non-discriminatory principles of
distribution, and the establishment of secure tenure on an equal basis’.
Fredman (2013: 223-232) posits that due to the gendered nature of social institutions treating
women and men in the same manner is not enough, and a more substantive approach to
equality which takes into account existing power structures and the role of gender within
them is required. She contends that where equal treatment results in disadvantage for women,
it may be necessary to treat women differently so as to achieve equality of outcomes. This
28
means substantive equality is not neutral and ‘...cannot be achieved by treating all equally
badly, or by removing benefits from the advantaged class.’
2.1.2 Right to land?
The human rights conventions do not provide a right to land, but land is closely linked to the
right to own property and to the realization of rights that are essential for life such as food,
water and housing (Ikdahl, 2007: 264). Ownership is a complex concept which describes the
relationship between a person and land and denotes the right to possess, use and alienate, all
of which are only limited by the duty imposed by law (Lee, 1953: 145). Where it is
impossible to control and possess land, then it will be illogical to claim ownership because
this is where one derives the authority to choose who can access or use the land. In rural
Africa the right to a piece of land often co-exists with the notion of individual or household
rights and may relate to different types of usage (Ikdahl, 2008: 49).
In the traditional setting, collective arrangements regulated access to and control of land. The
organisation of the community revolved around parties linked to each other by kinship,
incorporating the nuclear and extended families as well as the clan. Land for most
communities in pre-colonial Kenya was communal where families and groups shared
components of property (Eriksen et al., 1996). It was communal in the sense that there were
no individual titles to lad and the community ensured that everyone had access to land, thus
reflecting a community interest in its use.
Land was held and used on a family lineage or clan basis, holding the members of a particular
clan together through a male line of inheritance (Karanja, 1999: 11). Although families and
individuals could claim rights, land remained under the authority of the larger community by
virtue of using the land. The autonomy of an individual in land matters was limited and
communities recognised the need to pass on land to future generations in a wholesome state,
where the generation holding land considered themselves trustees keeping it for future
generations rather than absolute owners retaining it solely for themselves (Mbote, 2008: 264).
Empirical work done in the Luo community shows that in Dholuo the term for land owner
(wuon lowo or wuon lo) refers to the person who has the right to allocate land to others - this
was often the male head of the larger family, such as a grandfather. It also refers to a female
or male who has a recognized right to use land over a long period derived from the
relationship with the one who has authority to allocate (Pala, 1983).
29
The colonialists viewed indigenous African communal land holding as inferior to their own
and what they considered to be a more developed form of land tenure based on individual
ownership with all its proprietary trimmings. This resulted in the registration of Africans as
individual freehold title holders guided by the Swynnerton Plan (Swynnerton, 1954: 29) and
land was registered in the name of the male household head on the assumption that the rights
were held in trust for everyone in the household (Mbote, 2013a: 22). Studies found that land
registration gave rise to inequality and insecurity. Women were among those groups whose
customary claims to land were denied recognition during registration and their vulnerability
increased as access to land became more insecure (Platteau, 2000: 57-68).
At independence the new government carried on with registration and awarding title to land
on an almost identical pattern as those of the colonialists (Okoth-Ogendo, 2000).
Formalization of titles solidified the status of men as having absolute ownership to land to the
exclusion of women whose rights to land were pegged to their status as daughters or wives,
and limited at best to usufructuary rights (Fleuret, 1988).
Article 17 of UDHR and article 14 of ACHPR advocate for guarantee of the right to property
and this is reflected in article 40 of the Constitution of Kenya which guarantees every person
protection of the right to property and prohibits restriction of such enjoyment on the basis of
inequality or discrimination. This means all individuals are equal and are entitled to access,
use and control over land without any kind of discrimination. Mbote (2005: 10) states that:
‘control entails the power to distribute and redistribute access rights to
members of the society with such power being determined by the power
relations between community members.’
The land tenure system in Kenya is mainly freehold7 and leasehold8 ((National Land Policy,
2009). In the rural areas the land tenure system tends to be freehold and land rights are
mainly acquired through inheritance although there are a few purchases and exchanges of
land. The National Land Policy (2009: para 33) adopts a plural approach, in which different
systems of tenure co-exist and benefit from equal guarantees of security of tenure.
7 This confers unlimited rights of use, abuse and disposition. 8 This confers the right to use land for a defined period of time in exchange for the performance of certain
obligations.
30
Land tenure refers to the possession or holding of rights associated with each parcel of land.
It determines the exact limit of rights, the duration of one’s rights to the land and the physical
area over which the rights are to be exercised (Ikdhal, 2005: 84). It means legal or customary
conditions regulating how land rights are acquired or retained in society (FAO, 2002).
Articles 61-64 of the Constitution, categorises land into public (that which is held or used or
occupied by any State organ or which no individual or community has established ownership
through legal process), private (registered or held under freehold or leasehold) and
community land which refers to land held and managed by specific communities as grazing
areas, shrines, or spaces traditionally occupied by hunter-gatherer communities. The concept
of community land is explained in paragraph 3.3.1.2 of Kenya’s National Land Policy (2009)
which provides that families and individuals within the community are allocated rights to use
land in perpetuity subject to effective utilization. It stems from the fact that formalisation of
titles had undermined traditional land resource management, and largely ignored customary
land rights which were considered not to amount to ownership. The legal framework on
community land is yet to be realised in the pending Community Land Bill which clarifies the
attributes of community land by taking account of organized groups of users with a common
ancestry, similar culture, socio-economic interest, geographical or ecological space.9 The
Constitution of Kenya sets out the principles governing land under Article 60(1)(a) which
provides:
‘Land in Kenya shall be held, used and managed in a manner that is
equitable, efficient, productive and sustainable and in accordance with
the following principles -
(f) elimination of gender discrimination in law, customs and
practices related to land and property in land...’
Paragraph 74 of the Nairobi Forward Looking Strategy calls for the right of married women
to own, administer, sell or buy property independently.
Article 15 of the Optional Protocol to the African Charter on Human and People’s Rights on
the Rights of Women (the Women’s Protocol) pays particular regard to the rights of women
9 The Community Land Bill (2015) intends to give effect to article 63(5) of the Constitution of Kenya by
providing, inter alia, protection for community land rights and the role of county governments concerning
unregistered community land.
31
to land, while article 19 deals with sustainable use of land by urging States to protect
women’s access to and control over productive resources such as land. Apart from the human
rights instruments policy documents such as Beijing Platform For Action (BPFA) paragraphs
58(m) and 165, Rio Declaration Principle No 20, and Agenda 21 all call for securing
women’s access to land and other resources.
2.1.3 Right to adequate food
Land is vital as a source of food and income, and its loss may lead to poverty, homelessness
and hunger for many families (Ikdahl, 2007: 262). The right to adequate food forms part of
the right to adequate standard of living. Article 25 of the Universal Declaration of Human
Rights provides the legal basis for the right to food, and this is enshrined in article 11 of the
Covenant on Economic, Social and Cultural rights. This means the right of all people to be
able to feed themselves using their own means with dignity. The ESCR Committee’s General
Comment No. 12 of 1999 states that the right to food is realized when every man, woman and
child alone or in a community, has physical and economic access at all times to adequate
food. Article 15(a) the Women’s Protocol requires that State parties ‘take appropriate
measures to...provide women with access to...land, and the means of producing nutritious
food’ in the context of women’s right to food security.
Article 43(1)(c) of Kenya’s Constitution (2010) reflects the principles and obligations
contained in the International Covenant on Economic Social and Cultural Rights, by
providing:
‘Every person has the right-
(c) to be free from hunger, and to have adequate food of acceptable
quality;’
Olivier De Schutter (2012), the Special Rapporteur on the right to food, articulated States’
obligations as requiring them to refrain from taking measures that may deprive individuals of
access to productive resources they depend on to produce food for themselves and to protect
such access from encroachment by other private parties as well as seek to strengthen people’s
access to and utilization of resources and means to ensure their livelihoods, including food
security. FAO (1996) observed that food security occurs when people have physical and
32
economic access to sufficient, safe and nutritious food to meet their dietary needs and
preferences.
2.1.4 Equal rights in marriage
Generally in most African communities the skewed gender roles tend to favour men’s
supremacy in marriage as heads of the household, and embody the power to control land use
and allocation. On the other hand women are considered as being subordinate to their
husbands and their rights to land are subsidiary to men’s rights (Ikdahl, 2007: 263). Gender
inequalities within marriage have been used to deny women land rights, often the argument
touted is that the stability of a family requires an unequal position, with women assuming the
downtrodden position (Agarwal, 1994: 52-53). In polygynous households there may be
inequalities in the distribution of resources, so provisions of equal rights within marriage are
essential to a woman’s ability to own, control and access property within the relationship.
Ikdahl (2007: 262) observes that women and men often face different problems in obtaining,
maintaining and protecting their access to land, and in sub-Saharan Africa, access to land is
linked to social relations. The Human Rights Committee General Comment No.19 (1990) on
protection of the family, the right to marriage and equality of the spouses, emphasized that
‘during marriage, the spouses should have equal rights and responsibilities in the family.’
CEDAW Committee’s General Recommendation No. 21 (1994) on equality in marriage and
family relations, underscored women’s rights to own, manage, enjoy and dispose of property
as being central to financial independence, and critical to a woman’s ability to earn a
livelihood and to provide adequate food for herself and for her family.
Marital property is a vital factor in understanding women’s rights to land and other
productive resources. Marital property provides for rights within the context of marriage and
is conceptually distinct from the notion of ‘inheritance’. In the traditional set-up although
upon marriage a woman moved to live on her husband’s land, she had the right to access and
manage it on a daily basis. The practice of registering land in the name of the male head of
the household based on the presumption that he held it in trust for the other family members,
resulted in women being denied control over land use and disposal (Mbote, 2013: 6). A group
of church women in Kenya described titling as the greatest curse as it had removed even the
traditional clan constraints of selling off land, and men would sell off the land and leave them
destitute (Shivji, 1998: 88). It is probably upon realising this anomaly, that relief was offered
in the form of article 45(3) of the Constitution and section 3(2) of the Marriage Act which
33
provide for equality at the time of and during the existence of the marriage as well as at the
time of its dissolution.
The Matrimonial Property Act (section 6) defines matrimonial property as including
immovable property jointly acquired during the subsistence of the marriage; under section 7,
ownership vests in a spouse according to their contribution and section 8 addresses property
rights in a polygamous marriage. Section 11 provides consideration of customary principles
during division of property (including the principle relating to utilization of ancestral land
and protecting rights of future generations); section 12 states that there shall be no alienation
of matrimonial property without the consent of spouse. Section 14 provides there is a
rebuttable presumption that property acquired during marriage is held in trust - the paradox is
that very often in the rural areas, the man will have acquired land before marriage, usually as
inherited family land. Further this is not an automatic guarantee to claim the property as the
woman still has to prove that the land was being held in trust for her.
Section 40 of the Law of Succession Act (Chapter 160 Laws of Kenya) provides that ‘a
woman married under a system of law which permits polygamy is, where her husband has
contracted a previous or subsequent monogamous marriage to another woman,’ nevertheless
regarded as a wife. The law makes no distinction between wives in polygamous marriages
and wives in monogamous marriages. Although this seems to have taken into account the
lived reality especially for women in Kogelo where most marriages are polygynous,10 it still
creates uncertainty for women as it is common for concubines to crawl suddenly out of the
woodwork to stake a claim on an already fragmented piece of land!
2.1.5 Equitable and sustainable use of land
The issue of gender and land relations was also taken up by the AU Heads of States in the
Land Policy Initiative resulting in the Declaration on Land Issues and Challenges in Africa in
2009 which resolved to ensure that legislation on land provided for equitable access to land
and related resources and for the strengthening of security of land tenure for women.
Under chapter 24 of Agenda 21, governments expressed their commitment to integrate
environmental sustainability with gender equality and justice within and between generations.
10 Polygynous is a term referring to a man marrying multiple wives, as opposed to polygamous where each
partner can have multiple spouses.
34
This means meeting the needs of the present generation without jeopardizing the interests of
the future generation to enjoy the same (Okidi, 2008: 28). Principles 1 and 2 of the
Stockholm Declaration take note of ‘man’s’11 role in creating and moulding the environment
for physical sustenance, and calls for urgent protection and improvement of the environment
by everyone (UNEP, 1972). An aspect which stands out in unsustainable land use is the
irreversible degradation of the environment and loss of biodiversity.
Article 69(1)(a) of the Constitution of Kenya places an obligation on the State to ensure
sustainable exploitation and utilization of the environment and natural resources while sub-
article (f) requires establishing systems of environmental impact assessment, audit and
monitoring of the environment - this is echoed in sections 58, 68 and 69 of the Environmental
Management and Co-ordination Act (EMCA). This means that where there is likely to be a
significant negative impact on the environment steps must be taken to minimize or eliminate
the damage or even disapprove of the activity. The Second Schedule of the EMCA lists
projects which require mandatory environmental impact assessment prior to commencement
of activities - these include mining and major changes in land use.
Section 6 of the Mining Act makes it an offence to deal with minerals without authority from
the government. Garner (2004: 1016) defines mining as the process of extracting ore or
minerals from the ground. Many people in Kogelo dig deep pits in their fields in search of
gold without necessarily finding it. This is known as prospecting which is defined under
section 2 of the Mining Act as the search for minerals, including the mineral bearing qualities
of the land and it requires one to have a prospecting licence. Under section 7(m) of the Act
private land is excluded from prospecting and mining except with the consent of the owners
(emphasis mine).
The issue concerning the consent of owners before prospecting and mining on private land
was settled by Kenya’s Court of Appeal in Kisaigu Ranching (DA) Ltd v Kihara and 4 Others
(2006) KLR (E&L) Vol.1. The Mining Act requires rehabilitation of abandoned mining sites
under sections 35-36 which provide that once prospecting or mining is exhausted safety
measures must be taken to fill up the abandoned sites to prevent people and animals from
falling into them. Failure to comply with the provision constitutes an offence punishable with
11 The term here refers to the human race.
35
a fine of Ksh1000/- (US$1) or three months imprisonment. There is also a requirement for
removal of all debris such as gravel, sand and all other residue left on the land (Kibugi, 2008:
359-363).
2.1.6 Access to justice
Article 48 of Kenya’s Constitution places a duty on the State to ensure access to justice for all
persons, while article 60(1)(g) encourages communities to settle land disputes through
recognized local community initiatives consistent with the Constitution, because rights mean
little if they cannot be claimed and enforced. For women, access to justice means affordable
legal services that are gender-sensitive, easy to follow and physically accessible. Article 10 of
the UDHR and article 7 of the ACHPR provides that where there is a violation of
fundamental rights which are recognized and guaranteed by conventions, laws, regulations
and customs in force, everyone has a right to be heard by a competent court or tribunal.
Article 8 of the Women’s Protocol provides for equality before the law, effective access to
judicial and legal service including legal aid, and creating awareness of women’s rights.
The courts provide an avenue for addressing conflict between legal systems, for example, in
Re: The estate of Lerionka ole Ntutu (2008 eKLR), the court heard arguments by the sons of
the deceased that Masai12 customary law of succession does not recognize the rights of
daughters to inherit the estate of their fathers. In its decision the court applied, inter alia,
international human rights law, international covenants and treaties which Kenya had ratified
and upheld the right of the daughters to inherit.
This decision demonstrates that the judiciary in Kenya is alive to the application of human
rights standards to ensure that women realize their rights.
2.2 Conclusion
This chapter has examined the national legal and policy framework as well as international
and regional instruments and documents, to demonstrate the extent to which the State has
taken measures towards realising women’s rights to land with a view to securing their
livelihoods and family food security. However legislative measures alone do not guarantee
12 An ethnic community in Kenya.
36
the realisation of these rights unless there are mechanisms in place to ensure their
implementation.
37
CHAPTER THREE
3. METHODOLOGY AND DATA COLLECTION METHODS
This chapter discusses how the research was conducted and elaborates the methodological
framework used to examine the impact of gold mining on women’s livelihoods and family
food security in Kogelo. It first discusses the women’s law approach and grounded approach
as methodological perspectives. The social gender roles and how they determine women’s
rights to land is analysed using the sex and gender analysis. The chapter also discusses the
influence of traditional norms and practices and how these interface with legislative
provisions. It then explores the roles of actors and structures in the area of research.
International human rights standards are used as tools for analysing and identifying the gaps
in the application and implementation of the laws, as well as pointing out the need to
recognize the link between women’s rights to land, their livelihoods and family food security.
There is a brief discussion on data collection methods employed and finally an assessment of
the methodologies and challenges encountered during the research.
3.1 The Research Journey (Methodology)
3.1.1 Sharing experiences
The gold mining activities I had witnessed in Kogelo had a strong male presence in the pits
and at the mining site. I associated women closely with the land due to their traditional roles
as care givers who tilled the land to make sure food was available for their family. To
understand women’s lived experiences about the impact of mining in their lives, I needed to
hear them describe their personal experiences regarding access, control and ownership of
land. I was very conscious of the perceived gap between myself and the local community
because of my status as a High Court judge, so I needed to find a way of being as least
intimidating as possible. I chose to walk or ride boda boda motor cycles (the common local
mode of transport) because I realized that turning up among them on foot or on a boda boda
was a sign that I wanted to approach them on their own social level. I used the women’s law
approach which required me to hear women in Kogeo describe their daily experiences and
perceptions (those whose fields were being mined, had been mined and abandoned, and those
whose farm fields were intact as well as those who worked at the mines).
38
For instance, Ayie Kodi*13 a widow who had been inherited by a fellow villager, said
although she owns the land left by her late husband, when the gold miners came she left
everything to be handled by her new husband, saying:
‘…once you have a man, he must be allowed to say how the land is to be used
and by whom - this is out of respect for his position as the head of the family. I
would be present more as a listener.’
Listening to Jennifer Ondu (whose field was an active open pit gold mine) helped in
understanding the reality of how traditional/customary practices influence and dominate rural
people’s daily lives, thus giving men authority to make decisions over land use. She
explained that in polygynous households, a wife whose field contains gold should share the
mineral with her co-wives, and they, in turn, should give up portions of their fields for her to
till, but the final word rests with their husband as to who will benefit from the gold field.
This is the women’s law approach which takes women’s lived realities as the starting point as
stated by Dahl (1987):
‘The methodology of women’s law is cross-disciplinary and pluralistic: and
calls for a rather free use of available material wherever it can be found. It is
done for the perspective of one looking from below. The women’s perspective
implies the wish to see both laws’ reality from the women’s point of view.’
This approach enabled me to test and see whether my assumptions regarding women’s roles
in decision making on land use had any relationship with their livelihoods and their roles in
providing food for their families. I also interviewed men and collected empirical data on the
ground to establish their views on giving women positions as land owners and decision
makers (Bentzon et al., 1998: 156).
3.1.2 Gathering more information
Before going to the field, my assumption was that only men gave out the farm fields for
mining and because rural women relied on farming their fields to feed their family and for
their livelihoods, they would not give up farm fields for mining. I also laboured under an
assumption that women are excluded from decision making roles within the family arena
since men are the registered holders of the land and the de jure heads of households.
13 A pseudonym.
39
However through listening to interviewees and visiting different sites, I learnt that women
(especially widows) were giving out their farm fields. My initial reaction was both panic and
disappointment because I had been certain that no woman would allow her field to be
degraded by mining; and now my assumption had been shaken.
I however regained my composure and recalled my supervisor’s advice that when an
assumption is challenged there is a need to find out why things are different from what had
been anticipated. To establish why some women were giving out farm fields, visits were
made to the affected homes where women pointed to household purchases and rehabilitation
of their houses using proceeds from mining. Discussions with men confirmed that some of
their fields for gold mining had been given out by women.
There was also a need to find out whether women’s livelihoods and those of families
depended on farming, certain that the women who went to the mines were driven by lack of
land to till. Interviewing different groups of women had revealed that some women did not
depend on farming, but were involved in small scale trade such as selling household goods
and clothing at the mining site, and even selling foodstuffs to the miners. Since the approach
is not rigid I was able to review and adjust my assumptions after verifying with the villagers
and from my own observations that indeed some families’ economic status had greatly
improved.
This is the dung beetle approach which enables a researcher to gather data, analyse it, and
determine where else to get data to verify (Bentzon et al., 1998: 18). It led me to develop an
open mind and learn to be on the look-out for emerging issues and as new data emerged it
became imperative for me to seek other sources to verify what was being disclosed. As a
result of these interactions and visits to the homes, triangulation of data was easy. I adjusted
my assumptions to reflect what was on the ground and explore further what factors were at
work in bringing about this change.
Capturing the various voices also helped me to realize how different women, depending on
their age and marital status, had a fairly good amount of influence and negotiation on land
use. For instance, Jennifer Ondu a widow who is in her mid sixties said:
40
‘Kaka chi liel an e wuon dala...gipenja ka dayie mondo gi chak tich mar
pedha. Nene anyiso gi ni girit mondo akuon’g awuo gi yawotwa kod yuora ma
odong.’
(Translation: ‘As a widow I am the owner of the home...They asked me
whether they could begin the work of mining gold. I told them to give me time
to consult with our sons and my remaining brother-in-law.’)
This was in contrast to Tin Toneno,*14 a young widow, who said it was the first wife who
steered matters, often with the involvement of her sons and brothers-in-law. The younger
wives were regarded as inconvenient intrusions who could easily leave the home (especially
if she has very young children). She said, once the senior wife had agreed to the field being
mined she could not raise her voice without antagonizing everyone in the family because they
were all just seeing the wealth that would come their way if the field were mined.
Unfortunately the field yielded very little and although the pits were not large, there were
many of them and they were deep.
The grounded approach was also used to determine from the respondents the practical
intervention that would improve women’s livelihoods and food sustenance apart from tilling
the land. Both women and men shared their perceptions and lived experiences explaining that
legislation alone cannot address the situation as there are various social and economic factors
which govern their daily interactions. This helped in understanding their preferences for
particular strategic interventions based on the fact that women are relational while men are
territorial (Bentzon et al., 1998: 188).
3.1.3 Approaching government institutions and NGOs
In Kenya land is an exceptionally emotive issue and can be used to gain political mileage. To
avoid ruffling any feathers, I first approached those in political leadership in Alego in my
official capacity as a senior government officer to explain the purpose of my research. These
were the Governor of Siaya County, the County Women Representative, the member of Siaya
County Assembly representing South East Alego, the chief of Kogelo location and the village
headmen in Ojalo village and Ongoro village. This was also a chance to establish their level
of engagement with residents of Kogelo in addressing unsustainable land use resulting from
gold mining. It was also an opportunity to make them aware of my research process and put
at rest all suspicions of my possibly having a political agenda.
14 A pseudonym - she was married at the age of 18 as a third wife and is now 25 years old.
41
Using the grounded theory approach required moving from one source to the other, gathering
information, analyzing and seeking verification. Data obtained during interviews with miners
and land owners revealed that government presence increases when there is a tragedy at the
mines caused by their walls caving in burying the miners. This led to using the actors and
structures approach to examine whether the key informants15 were adequately playing their
roles in ensuring the sustainable use of land and helping women to achieve their land rights.
Franco Oyuga, Chairman of Karemo Gold Mining Company, said he witnessed the presence
of government when the mine caved in and buried alive some miners. This coincided with
some disquiet being felt from a section of the villagers concerning the presence of a foreign
mining company known as Acacia. The Governor of Siaya County came to the area
accompanied by various political leaders from Alego as well as key officials from
government institutions. To find out whether the mining activities in Kogelo were authorized,
I approached some institutions simply as a student because my official status would possibly
have resulted in getting filtered information tailored to protect the image of certain
institutions. To determine whether mining activities were being regulated in Kogelo,
interviews were conducted with the Nyanza Regional Geologist, Mr. Fredrick Wafula. The
County Director of the National Environmental Management Authority (NEMA) was also
interviewed to find out whether environmental impact assessments (EIAs) were being
conducted before mining begins on any field. Officials from the Ministry of Lands and
Ministry of Agriculture were also interviewed to establish whether the residents of Kogelo
had been sensitized about sustainable and equitable land use. The interviews also included
officials from NGOs to establish whether they had any specific programmes or projects
targeting women of Kogelo in relation to land use or agricultural skills.
Another concern was whether there were practical barriers hindering women from enforcing
the statutory protection of their right to land. Apart from interviewing the women of Kogelo,
I adjusted who I was and resumed my professional status when engaging with practising
advocates, judges from the High Court and the Environment and Land Court, and officials
from FIDA-K on the subject. This made it easy to peruse court records at Siaya Court so as to
find out the nature of land cases filed by rural women.
15 Individuals in government institutions and NGOs who interact with women and are also knowledgeable
about land use and tenure issues at the rural level.
42
3.1.4 Social relations and gender roles
To understand the reasons for the exclusion of women in decision making regarding land use,
sex and gender analysis was applied. This involved interviewing women and men both jointly
and separately to see whether the gender assignment of roles was evident in their responses
regarding who should own land and make decisions on which field should be given out for
mining.
The significance of social relations is addressed by (Dahl, 1987: 12):
‘As long as we live in a society where men and women have different paths in
life, different living conditions, with different needs and opportunities, legal
rules will necessarily affect men and women differently. And silence
strengthens inequality and injustice, regardless of the legislators’ intentions.’
Sex is based on the physical distinction between women and men, whereas gender is a social
and cultural construct. Sex focuses on the biologically ascribed characteristics of men and
women. Gender entails men and women’s active roles in society, what men and women
should do, and how they ought to behave (Bentzon et al., 1998: 82-83). This gender
assignment of roles was evident in the responses regarding who should own land and decide
on which field should be given out for mining. This sex and gender analysis helped to
demonstrate how the biological sex differences and the gender roles assigned to women
influence their rights to land and its use. It showed which sex is most involved in farming or
mining activities, whether the same sex owns land, and how gender roles inhibit or promote
decisions regarding land use.
The observations by these scholars were confirmed in the responses from Wilkister Aduwa*16
who said it was improper to allow women to voice their concerns over land because this
dilutes the man’s authority. She said a woman comes into a man’s home to help improve
relations by having a gentle spirit, performing her domestic chores, bearing children and
farming the land, remarking:
‘Dhako nyalo muoch ni en be koro oruto ei dala ka sibuor? Mano neko.’
16 A pseudonym.
43
(Translation: ‘Can a woman start growling in the home like a lion? That is
madness.’)
Lawrence Obonyo, a student at Mt Kenya University said consultation should only be with
sons:
‘…because land issues are serious matters, and women are known for using
their emotions rather than their heads…’
3.1.5 Too many cooks! Legal pluralism and semi autonomous social fields
There is a variety of legislation in Kenya which endeavours to protect women’s interest in
land but these exist alongside customary norms and practices which informally regulate and
dominate people’s conduct and social relations, particularly those involving how women and
men are treated in relation to land. A lot of rural land use and holding is characterized by
informal local traditional practices. This is an example of legal pluralism which is understood
as the co-existence of two or more legal orders such as statutory laws on family which co-
exist with customary family norms (Griffiths, 1986: 1-56). One of my assumptions was that
due to legal pluralism, a gap exists between legislative provisions and customary/traditional
practices which dominate people’s daily lives. Legal pluralism recognizes that legislation is
not the only force regulating people’s daily lives; in fact, traditional or cultural practices as
well as religious norms tend to play a dominant role in family relations and social interaction.
Article 2(4) of Kenya’s Constitution acknowledges the existence of customary law in so far
as it is not inconsistent with the Constitution, while article 11(1) recognizes culture as the
foundation of the Nation and article 32 guarantees freedom of conscience, religion and belief.
Examining the impact of legal pluralism was helpful in identifying the gaps existing between
legislative provisions which purport to protect women’s rights to land and the
traditional/cultural practices which hinder women from realizing those rights. It also revealed
the difficulty in implementing what are considered to be very progressive national legislation
in the rural setting.
Stewart (1997: 72) explains this approach as follows:
‘There are many diverse elements that have to be brought together to provide a
holistic picture of women’s problems and needs in relation to the law.
44
However within the African context one of the most important tools that
researchers need is a thorough understanding of legal pluralism.’
The Land Registration Act and Matrimonial Property Act were identified as legislation which
invokes the principle of beneficial interest and spousal consent to protect women’s interest in
land, even when the land is only registered in her husband’s name and whether it was
practical to apply these provisions. I was able to appreciate the significance of family and
community networks and the power of Luo traditional practice and beliefs where the man is
the titular head of the family and why some statutory provisions may not be observed in land
dealings.
It was apparent that women in the Luo community are generally regarded as being migratory
in nature but bearing sons enhances a woman’s security in land. There are also the semi-
autonomous social fields like the clan elders and mothers-in-law who, in a bid to protect the
interest of their sons, invoke traditional beliefs and taboos to ensure land remains within the
male lineage. There is also the influence of religious teachings regarding the ideal wife and
concept of submission. I was able to examine and interrogate the variety of plural norms to
understand their intersection with legislation and appreciate how all these affect the daily
lives of rural women and the choices they have to make.
3.1.6 Analyzing women’s rights to land based on international human rights standards
Does the legislative framework in Kenya adequately protect women’s land interests? An
examination of the legislation and policies was necessary to find out whether they protected
women’s interest in land or advanced the existing gender hierarchies. This was also useful in
confirming whether Kenya upholds the international human rights standards and principle of
non-discrimination, and whether the laws give substantive equality to women regarding their
right to land in the face of the competing allure of gold mining which was dominated by men.
Article 14(1) of CEDAW provides:
‘State parties shall take into account the particular problems faced by rural
women and the significant roles they play in economic survival of their
families…and shall take all appropriate measures to ensure the application of
the present Convention to women in the rural areas.’
45
This means that government as the primary duty bearer must take definite steps towards
ensuring that rural women’s interest in land is protected not just through legislation and
policies but also through actual implementation. The principles of universality and
inalienability, indivisibility, interdependence and interrelatedness, equality and non-
discrimination, participation and inclusion as well as accountability and the rule of law have
been used as the checklist for strict human rights observance (Rutsate, 2012: 21). The
realization of one right often depends, wholly or partly, upon the realization of other human
rights. For instance, women’s rights related to access to, control and use of land, is
intertwined with the right to non-discrimination, the right to own property and the right to
food.
Bearing in mind that Kenya is a party to the major international and regional human rights
instruments, I identified the women in Kogelo as being rights-holders and ascertained their
level of awareness about their entitlements and the claims they could make. Interviews were
conducted with women and men to establish whether the wholesale application of human
rights principles could secure women’s right to land and protect their livelihoods and family
food security. I also explored the role of State institutions as duty-bearers and the obligations
they had.
3.2 Data collection tools
I did not have a specific set or order of questions for the key informants, but would give an
outline of what was to be covered and then conduct detailed probing from their responses.
Some of the key informants especially from government institutions insisted on structured
questions put in writing. Notably the key respondents from State institutions and NGOs were
mainly men who gave their official versions. The male domination in decision-making
positions is a pointer to the lukewarm approach in advancing women’s interests in land. The
other respondents were largely rural women, and I ended up interviewing more women than
men in deference to the women’s law approach. The qualitative research method used
involved the following.
3.2.1 Focus groups
These were selected and pre-organized by age group, socio-economic background and sex to
generate debate and discussions. I used small focused group samples and chose the case study
46
approach to obtain empirical data in a contemporary real life context. I gave them an
opportunity to introduce themselves and indicate whether they were willing to be identified
or to use pseudonyms. It was an opportunity for sharing and comparing views on various
topical issues while at the same time facilitating collection of valuable data for the research.
The different groups were gathered at one convenient place, either in the home of one of the
respondents, the village headman, and my father’s home or at the mining field.
3.2.2 Individual interviews
These helped me to get comprehensive in-depth information. In most instances I did not use
structured questions, but guided the interview towards the areas of concern while at the same
time leaving room for them to share their views, challenges and recommendations.
3.2.3 Observation
This allows for personal assessment and scrutiny of the area or object of study without
getting involved in the events (Bentzon et al., 1998: 195). This was used to assess the
physical changes in the fields and homes within Kogelo and to verify which sex was
predominantly involved in mining and which in tilling the land.
3.2.4 Pictorial data
After watching the documentary on Zimbabwe’s Marange Diamond Mines during a class at
SEARCWL, I was inspired to use pictorial data to capture on camera the reality of the serious
land degradation and let the pictures speak about the activities in Kogelo, and the real threats
to women’s livelihoods and family food security.
In total I had a research sample of 101 persons. Below are tables showing the spread of the
respondents.
47
Table 1: Showing key respondents from various institutions
Institution
Number of
institutions
Male
Female
Government
Ministries
3 6 -
Government
Agencies
1 1 -
NGOs 5 5 3
Political Leaders 5 3 2
Bar and Bench 2 4 4
Academia 1 1 -
Village Elders 2 2 -
Total 19 22 9
Table 2: Showing details of data collection methods for Kogelo sub-location
respondents
Method
Number
Female Male
Total No of
respondents
Individual
Interviews
13 9 4 13
Focus Group
Discussions
6 40 17 57
Grand Total 19 49 21 70
3.3 Assessment of methodology
The data collection methods were very effective as I had designed my questions for particular
target groups, using the assumptions and research questions as a guide. I did not experience
any problems with the villagers as I avoided using intrusive questionnaires, instead allowing
them to talk. Language was not a problem as I speak fluent Dholuo and English, and this
coupled with my status as a judge and the fact that Kogelo is my natal home, opened doors
for me with the different respondents.
It was the rainy season so meetings were scheduled to take place in the earlier part of the day
as the rains often began in the late afternoon. A strict sequel of which respondents to
interview was difficult to observe because the year was drawing to a close and many people
in offices travel to their homes for festivities; a lot depended on when an individual officer
would be available. The advantage was that triangulation of data was easy because data
48
collected on the prevailing situation on the ground could be verified with the existing official
position at different times and vice versa.
3.3.1 Study limitations
My initial link person in Kenya became in-communicado just a few days before my return to
the country. A friend based in Nairobi tried to help in getting audience with officials from
Ardhi House17 in Nairobi to grant interviews and provide links with their counterparts in
Siaya but each visit would disclose that the particular officer needed was away on some
official assignment. The use of a network of relations from Kogelo assisted in locating one
official from Ardhi House in Siaya who provided me with links to several key respondents. It
was however totally impossible to get records to confirm how many women in Kogelo had
title deeds, how they acquired them, and how many women had registered cautions on land.
This was probably due to suspicions as to how such information would be used.
Two officials from separate NGOs in Siaya indicated their discomfort with interviews on a
Friday as they wished to travel outside Siaya for Christmas festivities. This limited the time
with them and concerns could not exhaustively be explored. There was also a level of
reluctance to be interviewed by some colleagues working in the Environment and Land Court
who perhaps laboured under the mistaken apprehension that the research was a disguised
attempt to evaluate their grasp of their work.
It was difficult to start a conversation with officials from some government institutions but I
adopted the ‘one shot technique’ (Bentzon et al,.1998:199) by briefly sharing a discussion
with them about the mining of diamonds in Marange, Zimbabwe. This melted the ice
resulting in a one hour discussion during which I obtained very good data from them.
Obtaining records from the Environment and Land Court in Kisumu was not fruitful because
the Registrar had only recently been transferred to the station and was yet to find her
bearings. However these limitations did not invalidate the data collected as there were other
sources from which comparative information could be obtained.
17 Ardhi is a Kiswahili word meaning Land. Land Offices in Kenya are located in offices known as Ardhi
House.
49
3.4 Conclusion
This section has set out the methods used in data collection as envisaged at the research
design stage. These methods determined how data was collected and analysed, their goal
being to answer the questions raised by the research.
50
CHAPTER FOUR
4.0 THE LIVED REALITIES: WEALTH TODAY AND A HERITAGE
LOST FOREVER?
4.1 Introduction
This chapter discusses the research findings in relation to legal norms and the semi-
autonomous social fields and rural women’s interactions with them. It examines the lived
realities regarding the significance of relationships between the sexes, the place of human
rights principles under conditions of legal pluralism and how these intersect with power
dynamics in the rural areas.
4.2 The legislative framework protecting women’s interests in land
Kenya has shown its commitment to protecting women’s land rights through constitutional
provisions and the National Land Policy (2009) whose guiding principles include equitable
access to land and sustainable land use balancing intra- and inter-generational equity and
gender equity.
4.2.1 Protecting women’s interests
The law was initially gender neutral and did not appreciate the place of women; however, the
Constitution (2010) recognises women’s place in land ownership in respect of special
protection for spouses and dependants under article 68(c)(iii) and (vi). The drawback lies in
the implementation of these provisions. For example, Odenda Lumumba (a land rights
activist and co-ordinator of Kenya Land Alliance) astutely observes that while the provision
for joint tenancy18 for spouses under section 91(8) in the Land Registration Act is good, it
does not guarantee an equal share for each spouse as, in practice, issues regarding how much
each spouse contributes are bound to arise.
Mary Awino Kidiala a peasant farmer at Ongoro village said joint registration may not be a
solution because if the marriage breaks down it is not uncommon for the woman’s in-laws to
18 Defined by section 2 of the Land Act (2012) as a form of concurrent ownership with each person possessing
the land simultaneously and having an undivided interest in it; upon the death of an owner it is transferred to
the surviving owner.
51
order her to leave the home. The community can also create such a hostile environment that
she will be forced to leave even if she is not physically removed or directly ordered to do so.
Sections 6 and 9 of the Land Control Act addresses transactions affecting agricultural land by
requiring that consent must be obtained from the Land Control Board which may decline to
give consent if such decision would result in, inter alia, reducing the productivity of the land.
Further section 17 authorises the Board to require the attendance of the applicant and any
person interested or likely to be affected by the transaction. Patricia Apoli, Chair of Siaya
County Land Control Board, stated that usually when men divide or transfer land they only
think of their sons, not their wife. To counter this tendency, she is now very strict in her
approach and says:
‘If a man wants to sell land, his wife must be present, and where the children
are old enough then both sons and daughters must attend to indicate their
position.’
This is fortified by section 28 which recognizes spousal rights over matrimonial property,
including land registered in the name of one spouse alone, as overriding interests.
Furthermore, section 93(2) of the Land Registration Act provides that if land is held in the
name of one spouse or spouses, but the other spouse or spouses contribute by their labour or
other means to the productivity, upkeep and improvement of the land, that spouse shall be
deemed by virtue of that labour to have acquired an interest in the nature of ownership of that
land with the spouse in whose name the certificate of ownership has been registered and the
rights gained by such contribution are recognized as if they were registered. Section 93(3)
requires that before property is disposed of in any transaction, the lender or purchaser must
establish that there has been spousal consent.
Spousal consent does not give a right to ownership but it gives women some amount of
control over the family land to at least veto sales and other dispositions which may lessen the
risk of losing access to land (Ikdahl 2008:54). In CEDAW’s General Comment No 21 of
1994 there was concern that in many countries’ property regulations there was no provision
requiring that women be consulted before the disposal of property in which they had an
interest. Kenya has fulfilled that concern by embracing such protection for women in its land
and marriage laws.
52
Fredman (2015: 223) argues that it is necessary to move away from a concept of equality
which expects women to conform to male oriented social structures, and focus on substantive
equality which takes into account existing power structures and the role of gender within
them. I agree that where equal treatment leads to women being disadvantaged then it may be
necessary to treat them differently in order to achieve equalities of outcome. However this
should not mean that women are to be handled like frail hapless and brainless objects. For
rural women it means recognizing the roles they play in sustaining their families through their
labour on the land.
It should be noted that spousal consent may not be a fool-proof protection for women
especially in Kogelo where most marriages are polygynous and husbands can easily
capitalize on rivalry between their wives to select the spouse who will support them and the
way they choose to deal with family land. Justice Aaron Makau of Siaya High Court stated:
‘In a polygamous set up which of the wives will take a united stand especially
where there is conflicting interest, and women try to out-do each other.’
There was also the issue of power relations as demonstrated by the village headman Charles
Okwenda who said in a polygynous family if one wife’s field has gold deposits, the family
must decide where she will get food, because the co-wives are entitled to a share of the gold.
The man as the owner of the land makes the decision on the quantity to be shared. The
formalisation of titles has unwittingly entrenched local norms which allow for gender
discrimination because in the rural areas women’s rights to land is heavily dictated by
customary law and practice which often excludes women from ownership and decision
making on land use.
Judge Anne Omolo*19 pointed out the practical difficulties where for instance three wives
live on or till land which has one title and one wife gives consent to the portion she is tilling
to be adversely treated and the other two object. Judge Samson Okongo* stated that although
the Land Registration Act and the Land Act have provisions which take care of married
women, they are expressed in very vague terms leading to conflicts and divergent views
resulting in different interpretations. He referred to the issue of joint ownership versus
19 * Judges in the Environment and Land Courts in Kenya.
53
contribution under the Matrimonial Property Act and said there is a need to harmonise the
legislation.
Most men (including young bachelors) resented the provision on spousal consent which they
equated to asking for permission from their wives. 23 year old Augustine Warinda (a mason)
who was in a group of young men in Kogelo said such a law will make women big headed,
and wondered what was so outstanding about the roles women play in marriage since child
care and domestic chores come with the package. Educational exposure does not necessarily
influence attitudes as 21 year old Lawrence Obonyo, who was in a group of young university
students said:
‘The man only informs the wife, not consulting or seeking her permission. If
at all consultation is to be done, it is with the sons…’
Although widows are entitled to equal inheritance rights, section 35 of the Law of Succession
Act limits this widow’s to a life interest in her husband’s immovable property which is
terminated by her subsequent marriage. It would appear that the Law of Succession Act has
not necessarily changed the position of women because past practice has been that women
rarely inherit land or other property in their rural homes. Commenting on this, Mucai-
Katambo et al. (1995: 97) refer to the case of Josephine Wanjiru and others v Gichu Watene
Civil Appeal No 22 of 1980 (unreported)*20 to demonstrate the unpreparedness of rural
communities towards the revolutionary aspects of the Law of Succession Act with regard to
the rights of married women.
4.2.2 Protecting land use
Mr. Leonard Ofula21 observed that the implementation of laws ensuring that degradation of
the agricultural land is minimized and rehabilitation rests on the shoulders of institutions,
some of which are under the national government. However, co-ordination and practical
implementation of these laws coupled with inadequate resources has largely crippled the
process and reduced enforcement and uptake of these laws. For instance, the EMCA does not
consider gender considerations when it comes to environmental management but rather
20 The issue of wives, married daughters and unmarried daughters’ rights to a share of their father’s property
was addressed. 21 The County Director of Environment (NEMA-Siaya).
54
adopts an all-inclusive approach that places equal responsibility towards sustainable land use
on both women and men.
Although section 148 of the EMCA requires harmonisation of all sectoral laws, the current
Mining Act does not provide for environmental considerations prior to the commencement of
prospecting or mining. Environmental restoration plans are critical for mining operations,
especially once the prospecting or mining ceases. However the draft Mining Bill22 has sought
to address this loophole. The Nyanza Regional Geologist Mr Wafula said it was very difficult
to regulate artisanal mining anywhere in Kenya because many who engage in it do so
illegally. The research confirmed that most of the operations were unlicensed. Lawi Were and
Joseph Oyare whose fields had been mined and abandoned expressed surprise that a licence
was required for prospecting and mining.
4.3 Which law and whose law?
My point of departure is CEDAW”s article 2(f) which requires States ‘to take all appropriate
measures including legislation, to modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women,’ and article 5 which calls for
modification of social and cultural patterns with a view to eventually eliminating customs and
practices, prejudices or stereotyped roles based on the idea of inferiority or superiority of one
sex.
Musembi (2002: 1260) and Hellum (1999) have argued that engaging culture can help to
achieve social transformation and that if one ignores what goes on at the local level, then real
and lasting change may not be realized. Some of the problems in Kenya were that formal land
registration could not blend in with the local practices and as time went on the land registers
became increasingly at variance with possession and use. The reason for this was that despite
registration of titles most of the land was accessed through inheritance, unregistered sales and
informal leases (Barrows and Roth, 1989) and this trend has persisted to date.
Dr Christine Ombaka (Siaya County Women’s Representative) pointed out that in the rural
areas land use is the most critical as traditionally most women do not even own land, which is
considered to belong to husbands, sons and uncles. Women only enjoy a derivative right by
22 The draft Mining Bill proposes to overhaul the mining sector in Kenya.
55
virtue of their marriage, it is not their property and the rural man is not about to just wake up
and say:
‘Since there is a law and a constitution that guarantees women right to land, I
am giving you this parcel to use and to own.’
She said female legislators had pushed for laws protecting women’s property rights, but the
problem is implementation as there is no one to supervise implementation and the impact of
legislation is diluted by culture which overrides it. She noted that when people object to what
the law says they will simply ignore it and heed culture which they are more familiar and
comfortable with as they have grown up with it. They will continue to break the law even
though they may know they run the risk of suffering the sanctions of the law for doing so.
Dr Ruth Aura23 noted that the problem with all the laws which purport to protect a woman’s
right to land is that one has to be a wife in order to claim that right to matrimonial property or
family land. She pointed out that the Marriage Act requires registration of all marriages
including the customary ones for them to be legally recognised. During a group discussion at
Ongoro village many women indicated they were in customary marriages but none had
registered their marriage nor did they see the value of a ‘mere piece of paper’ since their
status as wives had already received social affirmation within their respective families and
clans. For instance Linet Auma stated:
‘Ere saa ma an go dhi ndiko ni an chi ngato? Ase dak kode higni wan kod
wahia mano ok oromo? Ere ngat ma okia ni an chi owadu?’
(Translation: ‘What time do I have to go and register that I am someone’s
wife? I have lived with him for years and the children we’ve had, isn’t
enough? Who doesn’t know I am his wife?’)
Professor Muga Kapiyo24 pointed out that according to customary practices there is a concept
which recognises that a woman is the ‘owner’ of land for productivity purposes only (‘Ma
puoth Nyalego’, meaning, ‘This is Nyalego’s garden’) but it does not permit her to do
anything she wants. Women can only carry out conventional activities on their own but major
decisions are for men make. He explained that rural communities have the concept of
ancestral land which observes continuity and blood connection, making it very difficult for
23 Chair of FIDA-Kenya and also a practising advocate and lecturer at Egerton University. 24 The Associate Dean at School of Environmental Studies, Maseno University, Kenya.
56
the custodians of culture to allow women to own land while their husband is still alive. This
is different from land bought outside, which can be co-owned and which women can control.
EFG25 an advocate practising in Nakuru stated that most rural women’s vulnerability stems
from lack of economic power as well as lack of educational exposure both of which would
give them some bargaining power. They are dependent on the existence of their marriages
and goodwill of their male children in order to enjoy use of land. Charles Okwenda, a village
headman said:
‘Chik Luo ok oyie ni dhako obed mana ka keko e ot, nono to oganda biro paro
ni dhano odhine ir jo piny. Inyal wach bu jalo yomyom kendo okwodo wi
chuo.’
(Translation: ‘Luo culture does not allow a woman to be the one clucking all
over the house. If that happens then the perception will be that the woman is
using juju to control him. Others will say that the man is a weakling and an
embarrassment to men.’)
The influence of religion in shaping the choices of women manifested itself in the case of
Mama Mary Odhiambo who related how a simple act of planting a tree within the homestead
created a domestic crisis and she retreated because:
‘As a Christian, the Bible teaches wives to be submissive to their husbands,
because this brings blessings on your family and so I retreated…’
Nyamu (1999: 26) questions the idea of pointing to a clear divide between formal law and
custom, saying the two intersect in overt ways which results in undermining women’s control
over resources. I agree with Nyamu that scholars tend to blame western institutions for
eroding the protection African women purportedly enjoyed and romanticize customary law
land tenure as offering protection to women yet what is important now is to examine how in
today’s society social norms justified by custom interact with legislation and policies to
undermine the status of women with regard to land use.
Attempts to access the Siaya land register to confirm the gender patterns in registration was
not fruitful, but the response from both women and men in Kogelo indicated that practically
25 Name withheld on request.
57
all land is registered in the man’s name, and even if it is not, custom makes him the de facto
owner of the land, therefore he is the one with the final say on how the land is to be used.
Local populations all over Africa are being affected by the pressure on land resources with a
shift from relative abundance of land to relative land scarcity especially with the absolute rise
in population (Whitehead and Tsikata, 2003: 68). When one mentions the rural woman’s
beneficial right to land, sons feel insecure. The land has already been fragmented having been
parcelled out or shared between them as sons, so introducing their mother, let alone a sister,
into the equation only further complicates matters.
Women’s land rights in Kenya reflects the contradictions and conflicts between freehold and
customary tenure, and despite the formalization of titles, the de facto situation is that
traditional practices continue to define the rules of access to land and to regulate behaviour in
dealings concerning land. Cultural rules and practices dictate inheritance and access to land
irrespective of the nature of tenure and most rural women adhere to traditional practice when
dealing with land.
All the men and women were united in saying that women cannot be allowed to enter the
mine pits because mining is a physically demanding and risky activity. In addition it is
believed that women’s physiology may sometimes prevent the gold-bearing rocks from
yielding their gold in the mining process. These are the words of Mama Nerea:
‘…it is believed that the presence of women (especially those on their menses)
inside the mines will reduce the amount of gold available.’
The role of customary and religious norms was noted by the CEDAW Committee’s (1998)
response to Tanzania’s State Report 235, to the effect that customary and religious laws are
practised and accepted more widely in rural areas, often preventing women from inheriting
and owning land and property. The research found that there is a gap between legislative
provisions and what traditional practices dictate, with the latter dominating people’s lives.
The people are more aware of and inclined to respect these semi-autonomous social fields
and the sanctions they carry rather than any legal sanction. For the rural woman, her survival
goes beyond material considerations; it is about social relations and acceptance. Legislation
may not bar women from staking a claim on land in their marital home but socially it is
58
unacceptable. Under both customary and freehold tenure a widow is regarded as a caretaker
of the land until her sons grow up and inherit the land in keeping with Luo custom.
4.4 A hen does not crow, does it? Excluding women from decision making26
‘…Men and women dress differently, occupy themselves differently, have different activities
in the market, in the family…use leisure time differently, and have different social ties and
different sexualities. The differences in themselves are not, however the problem. The
problem is how they are mutually ranked, and that in society’s evaluations of sexes, women’s
qualities, characteristics, values and activities are systematically subordinated to men’s’
(Jaggar, 1983:85).
The absence of women’s voices in land use is discussed by Musembi (2002: 126) who
reveals that participation of women in the local institution decision making process is limited
and such institutions are mostly run by men, and the criteria for their (men’s) inclusion is not
knowledge but perceptions of power and authority stemming from traditional beliefs and
practices.
In its concluding remarks to the Kenyan 7th periodic report on the implementation of the
Convention, CEDAW recommended that necessary steps be taken to pay special attention to
the needs of rural women, in particular, heads of households by ensuring their participation in
decision making processes and to have access to, inter alia, fertile land.27
Charles Okwenda, the village headman from Kogelo, explained that in a polygynous family if
gold deposits are found in one wife’s field, the family must decide where she will get food,
because the co-wives must also get a share of the gold. The man makes the decision on how
the gold is shared and the woman must support this because the field she is tilling belongs to
the husband of all the wives and she is only its manager. If one wife objects then she faces
social exclusion and ridicule by the community.
26 This sub-title is inspired by an expression in dholuo that a hen does not crow even if cockerels are not in the
homestead, meaning that women must never take over the ‘natural’ decision making role bestowed upon
men. It coincides with Sylvia Tamale’s (1999) ‘When Hens begin to crow: Gender and Parliamentary
Politics in Uganda’ Fountain Publishers, Kampala-Uganda, which reviews the complexities involved in
Uganda’s efforts to promote advancement of women through affirmative action at parliamentary level. 27 CEDAW/C/KEN/Q/7.
59
In the case of ancestral land it is men who have authority over it and it is very rare for them to
consult their wives as they have no say in land matters. Peter Otala28 explained that most men
with whom he interacts consider that women are part of their property and the notion that
they can suddenly be transformed into important authoritative sources worthy of making
decisions over land matters is offensive to most of them who will largely ignore such
requirements, and give women the ultimatum that:
‘If you do not like my way of doing things, then you are free to leave as there
are so many women eager to have a husband.’
Ayie Kodi a widow who had been inherited by another villager described herself as the
owner of the farm fields which had belonged to her late husband. Although the gold miners
approached her she let her new husband handle their concerns, saying:
‘…once you have a man around you, he is the voice on how the land is to be
used and by who - this is out of respect and in recognition of his position as
the head of the family - that is our practice as Joluo.’
She also explained that women are equated to minors because usually when they marry the
man is much older than the woman, resulting in her being treated like a child incapable of
making decisions. Mbote (2008, 390) has argued that environmental management shapes
decisions and actions on how resources are developed and to whom they are provided, and
the exclusion of women in decision making on environmental matters and property
ownership and control systems has implications for women’s performance of their duties.
The CEDAW Committee General Recommendation No 21 of 1994 on Equality in Marriage
and Family relations discussed article 16 contending that there was a problem in assigning to
the man alone the role of the provider and representative of the household. The Committee
pointed out that the notion that men should have a larger share due to their responsibility to
support women and children is based on unrealistic assumptions. It held that the regulation
which accorded the status of head of household and primary decision maker to husbands
contravened the Convention (Hellum and Aasen, 2013:272).
28 Village headman of Ongoro Village.
60
The lived reality in the rural areas might find such a proposal totally unrealistic because the
Luo being a patrilineal community, means that the woman moves from her parents’ home to
live with the man in his rural home. She is the outsider who must be under the authority of
the owner of the home and his role as the overall authority cannot be wished away or
replaced even if he does not put food on the table. Most land in rural Nyanza is inherited
from forefathers and the woman feels inhibited to voice her claims when confronted with the
reality.
It became apparent that there are certain social beliefs and concepts which define the way
women and men interact in the rural areas which have to be handled with circumspection
rather than legislation. A husband or elder brother occupies a position of authority within the
family and this may translate into power to allocate and control use of land. Most of the
women interviewed were married under Luo customary law or had been in cohabitation for
some time, either way the marriages were unregistered. They also seemed to respect
traditional practices and beliefs which give deference to men in decision making, and they
fear the Luo curse of chira29 which can befall them if they dare to defy tradition. It became
evident that sometimes those who cling closest to gender biased culture are women. What
characterizes the relationship between men and women is not so much one of competition but
rather a matter of sheer social coercion.
4.5 From farm fields to gold fields-who gives out family land?
Who hatched the idea of giving men autonomy over land? Maurice Okeno30 said ownership
of land had a physical aspect to it because men were seen as better custodians who could go
to war to protect the land and women. That perception still prevails since women are
considered vulnerable and not able to withstand violence and aggression so the land can
easily be taken away from them by stronger people.
Considering the patriarchal nature of the Luo community the research assumption was that
men in Kogelo were the ones involved in gold prospecting on their own or on family land. In
its General Comment No. 28 (2000) on equality of rights between men and women, the
Human Rights Committee stated that ‘the capacity of women to own property...may not be
29 Chira is a bad omen which befalls one for failing to observe certain types of social conduct or doing
something which is considered a taboo. It can manifest itself as an inexplicable illness or physical disability. 30 Siaya County Crops Officer.
61
restricted on the basis of marital status or any other discriminatory ground.’ This entails
States parties ensuring that the ‘matrimonial regime contains equal rights and obligations for
both spouses with regard to...the ownership...’ whether the property is held jointly or in sole
ownership of either spouse.
The biggest challenge is with inherited land which forms the bulk of land owned in the rural
areas. It is very difficult for the woman to control because as Mary Kidiala stated, she goes to
the man’s home without anything and many do not see the logic in claiming what belongs to
another ‘family’!
Mzee Arthur Reuben said in land matters consultation is usually between the owner of the
land, male members of the extended family and his clansmen. However he had declined
attempts to carry out mining on his field saying the life-time damage to the land was not
worth the fleeting financial bliss derived from mining. He expressed concern over how the
degraded land would affect future generations. A similar reaction came from the village
headman Peter Otala who said he preferred to use his field for cultivation rather than
exposing it to eternal degradation for short term gains. It was apparent that the category of
men opposed to mining on agricultural fields either had an above average level of educational
or social exposure beyond their own community. They also had other resources to
supplement their daily needs.
Where the land is held by a widow, the community practice is that she must hold
consultations with a family before making a decision. Jennifer Ondu, Ayie Kodi and Min
Nyiri*31 were all widows over 60 years of age who had been approached by miners as the de
facto ‘heads’ of their families, and they eventually allowed fields which were under
cultivation to be mined after they had consulted other male relations. Min Nyiri explained
that her decision was influenced by what she saw as prosperity oozing from fields of people
who had turned them over to mining, and she hoped it would help to meet her family’s needs.
The research found that in decision making women are not a homogeneous group and that the
marital status and age of a woman may give her bargaining power in decision making, an
observation which has also been noted by Stewart and Tsanga (2007: 214-215). It was
31 *A pseudonym.
62
apparent that some women give up family fields believing mining had benefits which would
enable them to feed their families and sustain livelihoods. It became clear that it was not only
men who were surrendering their farm fields for mining - women especially widows were
also involved. A widow tends to see herself not as owner of the land but rather as its
custodian for the children of future generations.
4.6 Unsustainable patterns of land use: The impact of gold mining on women’s
livelihoods in Kogelo
Rural women carry out multiple responsibilities ranging from cultivating food crops,
managing livestock, growing vegetables in home gardens, gathering fuel and controlling
small animals. The Human Rights Committee32 observed that the problem with rural
women’s work on land is that agricultural work is not placed in the framework of
acknowledged work. It is little wonder that for the average farmer this pales in the face of the
hope of instant financial benefit offered by mining where, according to Franco Oyuga of
Karemo Gold Mining Company, one gram of gold sells at Ksh2800/- (US$28). Such
prospects only serve to increase the temptation to give up agricultural fields to mining.
The link between sustainable use of land and respecting women’s right to land is reflected in
the observation that securing women’s right to land results in improvement of natural
resource management and environmental sustainability, including reduction of land
degradation. In these ways, secure land rights for women have the potential to transform the
lives of women, their families, and their communities (Gomez and Tran, 2012:10).
Chome (2014: 16) points out that:
‘…having ownership gives one the power to choose who can access or use
…the land, what it can be used for as the final decision lies with them.’
Whereas ownership of land helps to protect women’s interest in land and should secure their
livelihoods and family food security, the power relations especially in the rural set-up are
such that formal ownership does not necessarily guarantee actual control or even access.
Women’s lack of ownership means they cannot control land use and this is manifested in the
way in which land is being degraded in Kogelo.
32 A/HRC/22/72 at paragraph 55.
63
The National Land Policy (2009) calls for equitable access to land and associated resources
and the elimination of gender discrimination in all regulations, customs and practices related
to land and property on land. This means that although equal land size or acreage for
everyone may not be achieved, everyone including women should at least have access to
land. The Fourth World Conference on Women called on governments to take measures to,
inter alia, undertake legislative and administrative reforms to give women equal access to
economic resources, including the right to inheritance and ownership of land and other
property (BPFA, 1995).
Mr. Ofula stated that gold mining in Kogelo is basically artisanal and although a large section
of the Kogelo population has not yet taken to mining, there is increased uptake and changes
which result in depletion of the land. This is likely to be accelerated because rehabilitation of
mining sites is not a priority for the residents or the various institutions. Gold mining only
helps for a short period of time and once it is exhausted the residents go back to tilling the
land and looking for alternative sources of livelihood.
The effect of mining on livelihoods is significant because food quantity and quality is
reduced due to the poor soils. Mama Dorina a peasant farmer explained that once the top soil
is removed and mixed with the white soil from underground it is too acidic and rocky and not
friendly to crops. Mr Ofula confirmed that mining activities tend to interfere with the
geological balance and also greatly affects the top soil that supports agriculture.
Min Nyiri said that with the dawn of gold mining women who are mostly involved in small
scale food production do not tend their farms appropriately. The food production through
cultivation ends up being jeopardized because they divert attention to gold mining and no one
is left to tend the family farms.
64
Figure 2: Two different views of Jennifer Ondu’s former maize field where mining is
on-going.
Although section 35 of the Mining Act requires rehabilitation of the land upon exhaustion of
mining, all the field owners indicated that one only gets to realize that mining is coming to an
end from the dwindling number of people at the site, until they eventually stop coming. The
deep mine pits are left open and the soil is not returned. This was evident in the fields
belonging to Ayie Kodi and Joseph Oyare where many abandoned unclosed pits were left
scattered all over the field. In Ayie Kodi’s field no gold was ever found and she said:
‘The gold seekers came and dug deep searching for gold in different pits on
the land, they did not find anything then left without retuning the soil and now
there are portions which I cannot cultivate.’
65
Figure 3: A former maize
field where multiple pits
were dug and abandoned
after fruitless searches for
gold. The owner complained
of poisonous snakes
inhabiting the pits and his
livestock falling into them.
Joseph Oyare whose field was abandoned after 7 months of mining explained that soil from
the pits is scattered all over the land and his attempts to grow crops on the portions have
yielded poor results. His wife Min Otinjo confirmed that the fields which were excavated for
gold have poor crop yields and lamented that she is no longer able to farm extra crops from
the field which she could always do before mining came and which she relied on to help her
through hard times.
Figure 4: Stunted and un-
sprouted crops on Joseph
Oyare’s field where mining was
done for 7 months then
abandoned.
66
The observation by (Whitehead and Tsikata, 2003: 68) that rural African women play a
substantial role in primary agricultural production and the complex of local norms, customary
practices and legislation which affect their access to and interests in land is significant not
only to them but also to their dependants and male relatives cannot be overstated in Kogelo.
The main objective of the Agriculture Act is to promote and maintain stable agriculture and
provide for the conservation of soil and its fertility. Sections 48 and 184 empower the
Minister to make rules for the preservation of soil and appropriate utilization of agricultural
land requiring land owners.33 Jackson Abuli however clarified that in practice there are no
restrictions on how a private individual uses their land. He explained that there is
representation by agricultural personnel on the Land Control Board to advise on issues of
fragmentation and change of use. He stated that implementation is the problem and posed the
question:
‘How can an agricultural officer go to arrest a farmer? He’ll have to get the
police to help.’
Mining has forced women to look for alternative sources of livelihood to sustain their
families. With the reduction of agricultural land and the resultant changes in land use, the
population which mostly comprises women have resorted to either partaking in the mining
activities or other small scale income generating activities.
Jennifer Ondu said proceeds from mining had enabled her to renovate her houses, construct
others to rent out and sink a borehole within her compound. Mama Teresa Obambo said she
had used proceeds from mining to buy a motorcycle or boda boda34 which she uses for her
private and business use. She stated that she has also expanded her sugarcane plantation and
buys groceries for resale.
Several women said mining had provided an alternative source of livelihood, either through
use of proceeds obtained from mining or by selling assorted wares at the mining sites. This
has enabled them to feed their families, pay for their children’s school fees and generally
improve their lifestyles. Chief James Obalo Ojwang of South East Alego location observed
33 A/HRC/22/72 at paragraph 55. 34 A motor cycle taxi commonly used in Kenya as a mode of transport.
67
that mining is now attracting women and luring them away from tilling the land because of
the quick money it generates.
However it is not all a bed of roses. Widowed Tin Toneno said that although everyone in the
family was mesmerized by the lure of wealth that they thought would come their way from
mining, their field yielded very little and although the pits were not large, there were many of
them and they were deep. She said that even though they tried cultivating the field after
putting the soil back into some of the pits their crops did poorly. She remarked:
‘Anyalo dok korwa gi wahiyagi adier? Ok arang orak aduon’g kamoro?’
(Translation: ‘Can I really go back to my natal home with these children? Isn’t
it better to look for casual jobs to do?’)
4.7 Conclusion
The key to determining rights to land lies in the diverse roles played by various actors in land
and environmental management. If women are to be given recognition as workers on land
and de facto managers of the environment, they will be holders of land rights (Mbote, 2006:
47). Given the rural social set-up it is not logical and does not make sense to advocate that
women should be given exclusive ownership and control of land in their matrimonial homes
in order to be on an equal footing with men. At the risk of sounding like a heretic to the
feminist movement it remains true that when it comes to determining women’s land tenure
rights sufficient attention must be given to the fears and concerns expressed by the men
during this research as to women’s usage of land as well as their ability as trustees to secure
the land for future generations.
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CHAPTER FIVE
5.0 IS IT JUST LIP SERVICE? THE ROLE OF STATE
INSTITUTIONS AND NGOS
5.1 Introduction
This chapter outlines and discusses the findings made with regard to the role of State
institutions and NGOs in Kogelo and the challenges these agencies face in fulfilling their
obligations. It also explains the effect of the findings on some of the research assumptions
which were challenged, the emerging issues and the influence of the research. ‘When we ask
ourselves whether a social or legal practice works, we must ask ourselves “Works for whom?
Who benefits and who loses from existing [social] and legal structures?”’ (Singer, 1990:
1841).
5.2 What hinders women from enforcing their rights?
5.2.1 The legal eagles
Article 48 of the Constitution of Kenya guarantees access to justice for all persons and where
required, fees to access the right should be reasonable and act to facilitate and not impede the
exercise of the right. In exercising judicial authority, article 159 requires courts and tribunals
to act expeditiously and without undue regard to procedural technicalities, while article 60
encourages communities to settle land disputes through recognized local community
initiatives. These reflect the human rights standards found in article 10 of the UDHR, article
8 of the Women’s Protocol and article 7 of the ACHPR.
The problem with pursuing litigation for rural women is multifaceted. It may be due to (a)
poverty, (b) women may not know their rights, (c) women do not have the money to follow
through with litigation (although FIDA has been assisting indigent women to represent them,
even in court matters) and (d) social repercussions from the community.
Penina Minalego*35 said:
‘Women are unpredictable, many eventually go back to live with the very man
she sued in court and that does not augur well.’
35 * A pseudonym.
69
Cultural practices and beliefs may make women reluctant to pursue their interest in land, and
they may not take an active or aggressive role when there is a dispute. Women are often told:
‘This land belongs to our family, if you feel there are certain land rights that
you want to exercise then you had better go back to your family.’
Wilkister Aduwa explained that it is difficult for women to take matters to court due to social
implications including stigmatization and it is sometimes believed that such action may even
attract curses against their children:
‘Wuon nyithindi? Ichal ngatma ogolo duge te oko kendo oganda di kwedi
malich. Nyalo luwo wahiya gi chira?’
(Translation: ‘The father of your children? It is like publicly stripping him
naked. A curse might befall the children.’)
Advocate JNM*36 noted that the exception to the rule may only be in cases of judicial
separation. Apart from this taking one’s spouse to court is against the norm. In any event the
practice is to try to settle issues within the family or through the clan leaders using alternative
dispute resolution (ADR).
Mama Mary Odhiambo expressed reservations at the suggestion that sensitization could
encourage women to challenge their spouses on their rights to land saying men’s response
will be:
‘Ok idhi ir jok ma opuonji go. Ma en lop wuonu?’
(Translation: ‘Why don’t you go to those people who taught you? Is this your
father’s land?’)
The court may grant an order in favour of a woman but she may not be able to enforce it
because physically the land is located in her husband’s home area where she is likely to
encounter a hostile reception from her in-laws and sometimes the entire village and the whole
process may even turn violent. Women are social beings, they may want the victory in court,
but also want to protect their social relations. As a result of such social implications most of
the women in Kogelo preferred using traditional methods of dispute resolution rather than
going to court and risk jeopardizing their valuable social relations.
36 Requested non-disclosure of identity.
70
What emerges is that there are different power dynamics which come in all forms and control
rural women even where the legal system awards her protection; the power dynamics are
stronger than the law. There is an intersection of pluralism and hidden power within the
family which affect rural women’s ability to realize their rights (Hellum and Katsande, 2015).
5.2.1.1 A hole in her pocket and technicalities
Elizabeth Omwenyo an advocate practising in Nakuru said court fees can be prohibitive as
they are pegged to the value of the land. XYZ* an official at Nakuru court explained that
court filing fees are also pegged to the number of prayers in the pleadings or the value of the
land. Omwenyo noted that informal dispute resolution is also not very easy because land is a
very emotive issue and those who are involved in resolving the dispute are clan elders from
the man’s home area because logically the woman cannot bring elders from her clan who
know nothing about the land issues in his locality.
Judge Anne Omolo observed that generally the rural woman does not know how to prepare
pleadings to comprehensively communicate exactly what her problems or claims are.
Furthermore, even if a court does not pay undue regard to procedural technicalities,37 the
content of law is very technical and most litigation owes its success to well drafted pleadings.
This means she will have to look for a lawyer to prepare pleadings for her at a fee. Siaya has
only just set up a High Court and the women complained that land matters still go to
Kisumu’s Environment and Land Court. They said sometimes they lack the money to get
transport to go to court and since lawyers do no advertise their services on bill-boards, it
becomes difficult to try to locate one.
Ruth Aura (FIDA-K) conceded that many rural women are not aware of FIDA’s existence,
and there is also the problem of funding. Quite apart from the awkward location of its offices
which are in the outskirt of town, the Kisumu branch of FIDA-Kenya serves a vast area
comprising the entire western region of Kenya which includes Kericho, Eldoret, Kitale,
Western Kenya and Nyanza region. The Kisumu office only has one advocate who must
attend to clients and also go to court, so conducting outreach programmes is not easy.
Although there are legal assistants and FIDA collaborates with practising advocates to
37 Article 159(2)(d) of the Constitution of Kenya.
71
provide pro bono (free) services these efforts are not adequate to serve the rural women who
are in desperate need of their services.
Judge Samson Okong’o said when he practised as an advocate in Mombasa, most of the
briefs referred to lawyers by FIDA were ‘fanciful’ rights involving cruelty, maintenance, but
not land. The only matter he handled as a judge in Kisii was when FIDA assisted a woman
who was being forcefully evicted for being a squatter. He suggested that maybe it is because
land cases are complicated and can really drag on for years that many give pro bono services
a wide berth.
5.3 Other State institutions and NGOs
The Rift Valley Regional Geologist Evans Masachi acknowledged that State institutions and
NGOs are the key stakeholders in the policy formulation process and they play a major role
in helping women realize their rights to land especially regarding its sustainable use.
However, co-ordination and implementation of these laws coupled with inadequate resources
has crippled the process and diluted the enforcement and uptake of these laws. Some State
institutions such as the Ministry of Mining have not devolved and cover such a wide area that
effective service delivery is compromised.
The Nyanza Regional Geologist (Mr. Fredrick Wafula) acknowledged that there were illegal
mining related activities but the Ministry can only advise when the proper procedure has been
followed as it is difficult to give advice on illegal activities. He pointed out that officials from
the Ministry had visited Kogelo’s Barding/ Ojalo area and stated that attempts to sensitize
residents on the need for a licence before embarking on mining is usually met with the
response:
‘Do you want us to start stealing?’
He said that it was NEMA’s responsibility to ensure that activities on the land were
sustainable, adding that ‘redemption’ lies in the Mining Bill which is awaiting Presidential
ascension. It addresses specific interests including those of small scale miners.
Sections 108 to 116 of the EMCA empowers NEMA to issue environmental restoration or
conservation orders against any person responsible for environmental degradation, which
72
means that such a person must stop the harmful activity and restore the environment to its
previous status or pay the cost of such restoration. Sections 137 to 146 of the Act create
environmental offences and the penalties and their enforcement include conducting
inspections and monitoring. The Siaya NEMA County Director alone is responsible for all of
Siaya County (which comprises Alego, Bondo, Ugenya, Gem and Asembo) requiring him to
visit numerous locations mainly attending to a variety of environmental concerns. This leaves
him with very little time to carry out environmental impact assessments of intended mining
sites within Kogelo. The weakness is that while it is left to the person intending to carry out
an activity to make a request for an EIA, the fact is that most of those involved in mining are
unaware of such a requirement.
The village elder Peter Otala was categorical that the National Environmental Management
Authority (NEMA) personnel only come to the gold fields if a tragedy occurs or where the
residents complain about a lot of noise pollution. The Ministry of Agriculture personnel only
come to barazas38 to enlighten people when perhaps there has been some intervening event,
for example livestock have destroyed someone’s crops. They only attend formal barazas, but
do not conduct fieldwork in the Kogelo area. Christine Aoko Gor who crushes and pans the
mined stones at the site as well as Jecinter Awino (a small scale trader-cum-farmer) said
personnel from government institutions had not frequented Kogelo to tell them about land use
or improved farming skills. Jecinter observed that most NGOs were interested in health
matters, water supply and energy saving issues.
5.3.1 Where does the buck start and stop?
There is a lack of co-ordination of activities between the various government institutions.
Although the Ministry of Agriculture’s role includes sending its field officers to teach
farmers skills on sustainable land use, Jackson Abuli conceded that the Ministry does not
routinely engage with NEMA unless it is a highly commercialized mega farming project,
otherwise anything in the villages involving small scale farmers rarely receives their
attention. This is reflected in the absence of agricultural personnel in Kogelo where farm
lands are slowly diminishing due to increasing gold mining operations.
38 Public meetings usually called by chiefs.
73
Nearly all the people interviewed had never applied for or visited the Ministry of Mining to
obtain a licence for any gold related activity. Lawi Were whose field was dotted with
abandoned pits confirmed he never sought a licence from the Ministry of Mining nor did he
ask NEMA to conduct an EIA as he was not aware of such requirements. He was perplexed
that he should seek intervention by government before dealing with his land saying many
would interpret that as interference by the State. However Franco Oyuga who is the
Chairman of Karemo Gold Mining Company said they had been issued with a licence for
prospecting and that authorized them to extract the ore. Mama Jennifer Ondu displayed a
copy of the licence as a demonstration that the activity on her field was sanctioned by the
government.
It was apparent that the residents were not aware of the requirement that before digging up
their fields for gold they should first obtain a licence for prospecting. There was no
distinction in their view between prospecting and mining which means that it may be
necessary for the Ministry of Mining officials to explain to Kogelo residents the effect of the
different licences.
There are several NGOs in Siaya town, yet their presence in Kogelo especially as concerns
mining and how it is affecting women and land use is lacking. It seems NGOs engage with
locals based on what is of interest to them, and what they perceive as being attractive to
donor funding. Timothy Odhiambo of Ace Africa (Siaya) explained that they target women
and train them on farming skills such as poultry-keeping, having a green house where they
can practice organic farming and kitchen gardening. However he confirmed that they had not
interacted with gold mining activities in Kogelo although he was aware that they were taking
place. Judge Okongo remarked:
‘…acts of terrorism and domestic violence are seen by NGOs as human rights
issues as opposed to women’s land rights affected by rudimentary mining in
some obscure rural village.’
5.4 The effect of findings
I found that contrary to the assumption that women are excluded from decision making roles
in traditional arenas/and in families, in decision making women are not a homogeneous
group. The marital status and age of a woman may give her a bargaining position in decision
74
making. The explanation given for excluding most women in decision making was that they
are equated to minors because usually at marriage the man is much older than the woman,
resulting in her being treated like a child incapable of making decisions. The research
assumption was adjusted to reflect that most women are excluded from decision making roles
in traditional arenas/and in families.
Furthermore, responses and observations in the field revealed that some men were opposed to
mining on agricultural fields while some women give up family fields for mining benefits as
it enables them to feed their families and sustain livelihoods. The assumptions were adjusted
to reflect that in Kogelo some men and some women are involved in gold prospecting and
mining on their family lands and that this may lead to degradation of the land.
The assumption that women’s livelihoods and those of families in Kogelo depend largely on
farming the land was also challenged as it emerged that not all rural women depend entirely
on farming the land for their livelihoods. Some women were either taking part in mining or
small scale trading at the mining site and boda boda transport. The assumption was adjusted
to indicate that most women’s livelihoods and those of the families in Alego depend largely
on farming the land.
5.5 The unexpected (Emerging issues)
Due to the relationship rural women have with land it was a surprise to learn that it is not
only men who give up family farm fields for mining; women (especially widows) also do so.
In an odd turn of events, despite the obvious degradation caused to the land it is not easy to
wean the rural folk off mining as it has opened up an alternative source of income providing
them a means of livelihood, albeit temporarily. It is also credited with reducing insecurity as
it offers some financial relief - mining bears good monetary rewards and women can use the
money to buy other land and improve their livelihoods.
Part of women’s ‘vow of silence’ to unsustainable land use stems from their fear of increased
violence, social alienation and religious sanction if they attempt to enforce their land rights. It
was apparent that some social sanctions and beliefs are more effective than legal ones. It
suddenly emerged that putting women’s land rights on the table disturbs long held beliefs and
practice. This clearly means that including and invoking women’s land rights cannot be
75
implemented overnight. Requiring spousal consent in a polygynous set-up where the rural
peasant farmer has only one field poses a challenge and will only create disharmony in
families.
Although there is an implied contract requiring payment of mining fees to the land owner,
nothing is mentioned about replacing the mined soil and land owners only get to know that
mining has come to an end when the number of miners begins to dwindle. There is now a
growing realization by both women and men that mining is degrading the land and
threatening their family survival and there is a need to restore the land.
It is difficult to determine whether the gold in Kogelo is sustainable given the crude mining
methods employed and the rate at which fields are abandoned. Acacia Gold Mining Company
(a foreign company) came to Kogelo for gold prospecting and briefed residents on safe
mining methods but has not returned. The residents tend to ascribe political motives to
anyone who visits and starts asking them questions about local activities and they do not give
out information easily as they expect handouts and favours.
5.6 Influence of the research
My status as a High Court judge, the fact that I come from Kogelo and am well known,
coupled with the arrival of my supervisor from Zimbabwe gave Kogelo residents the feeling
that the degradation of land and its effects on women’s livelihoods and family food security
was very important.
Kogelo residents saw hope in my interest regarding the restoration of the land and a few days
before the end of the research, Franco Oyuga of Karemo Mining Company reported that
officials from the Ministry of Mines had visited them and urged them to ensure the
rehabilitation of the land once mining comes to an end.
He linked this response to the research process at the mines and the Regional office in
Kisumu. An immediate follow-up with the Ministry of Mining was not possible as the offices
are situated almost 146km from the town where I live.
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5.7 Conclusion
Using the law to achieve women’s rights can be controversial and challenging. Rural women
may opt not to use the law to avoid confrontation and also due to the costs and inconvenience
that litigation entails. Most government institutions and NGOs are unable to effectively
perform their roles on the extent to which they can intervene due to financial constraints and
perceived lack of common interests.
77
CHAPTER SIX
6.0 THEORIES COME ALIVE!
6.1 Introduction
In retrospect theories have practical linkages which came alive as I reflected on the feminist
theories and perspectives learnt during classes at SEARCWL. Theory plays a central role in
helping to scrutinize, decipher and name everyday practices (Nnaemeka, 2003: 358). The
word feminism originated in French politics as a description of different groups that sought to
improve the position of women (Dahl, 1987: 17). In a society where every aspect of life
appears to favour men, feminists sought to understand the basis of women’s oppression.
Their intention to influence the world led to the development of theories evaluating not only
the condition of women but also possible courses of action to help them; this was the dawn of
feminism and feminist theories (Owino, 2015: 1).
Feminism means believing that women should take charge of, inter alia, land and its wealth
(Aidoo, 1992: 383). There are various categories of feminism, but for purposes of this
research, the strands which helped in locating myself and identifying with the situation of
women in Kogelo are the existentialist feminism as propounded by Simone de Beauvoir,
Robin West’s relational feminism, eco-feminism which finds expression in the works of
Carolyn Merchant and Bina Agarwal, and African feminism (also known as nego feminism)
as discussed by Nnaemeka and Ogundipe, among other scholars.
In many instances the choices and decisions I make in my private life are determined by the
effect they will have on my relationship with my spouse, children, parents, my siblings and
even the church. Despite having some modicum of education and exposure to Christian
teachings as well as interaction with western culture I still find myself negotiating around my
Luo culture and religion. When I wanted to come for further studies in Zimbabwe, I weighed
up how my children would be affected by my absence, and whether leaving my husband to be
a ‘single’ parent was fair and who would look out for my aging parents! Relationships and
negotiating through social structures is a daily occurrence in the life of most women.
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6.2 The visible man - The invisible woman
Existentialist feminist theory argues that women are oppressed because man has declared
himself ‘the self’ and women ‘the second sex’ or ‘the other.’ Consequently women have
internalized this and accepted their position as inconsequential because men are the essence
of society (Beauvoir, 1952). The explanation is that it is the man who defines her and sets the
standard for her. Everything a woman does is in relation to what men have achieved or are
entitled to and almost every social activity she undertakes she seeks approval from the man. It
is the woman’s duty to sacrifice herself for the man, and her roles are perceived as being
limited to being a wife and a mother thus ending up being an object for caring, giving and
self-sacrifice.
The women in Kogelo were reluctant to challenge the men’s activities on the land because
they over-rated the benefits of mining as compared to their daily work of tilling the field.
Beauvoir proposes that the way to overcome otherness is for women to go to work no matter
how menial it is as paid work opens possibilities for women. This perception falls right into
the men’s attitude of undervaluing the work women do in the home, including working in the
fields. Rural women do not need to seek paid work because they work every day of their
lives, cooking, collecting firewood, fetching water, only that they do not get paid. Indeed it is
this attitude that makes men believe that women desire the material and psychological
privileges that society has accorded them.
As civilisation developed men discovered that the best way to control woman is to construct
myths about her; that is why she is seen as the harbinger of ill omen who should not enter the
mine pits during her menses. The woman has been urged to forget or deny herself, to give up
what she wants to be so that the man can become what he wants to be. Women have
internalized this as a true reflection of what it means to be a woman. She now accepts her
passive subordinate role which is passed on from generation to generation afraid to assert any
claims to ancestral land. As soon as women try to assert themselves or attempt to make
decisions about land use then the idea of ‘the other’ arises. The legislation and policies which
pronounce protection of women’s interests in land fail to realize that in rural Africa, women
remain ‘the other’, while men are the ultimate reference point for decision making and are
always given preference in land use. The woman will only be considered in land matters if
that consideration ultimately benefits the man as well.
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6.3 I can’t ignore the social networks
Many women consent to transactions, changes or situations, not to satisfy their own needs or
pleasure, but to minimize the inconvenience and satiate the comfort of others. Women’s fear
of the acquisitive, domineering, and violence-prone male is manifested by women in
reconstituting themselves in a way that controls the danger and suppresses the fear (West,
1987: 81-139). For instance Min Otinjo was categorical in her attitude that for the sake of
social harmony and to protect her marriage, a wise woman will defer to her husband once he
has taken up a certain position on land matters. She feels it would be disrespectful for her to
voice a contrary view in the face of the inescapable question ‘where do you intend to go and
live after that?’
Women are natural care-givers and nurturers; they would rather sacrifice their entitlement for
the sake of their children’s benefit and tend to put the family interest above other parochial
interests. They see their fate intertwined with those of their families, husband, children, and
even parents. Thus, their concern is not just about mere individual survival but they see it
within a much wider perspective, that of the entire family. They are usually on the periphery
of inheritance circles and appear resigned to this position (Amutabi and Lutta-Mukhebi:
2001).
This attitude resonated through the words of Jemima Aloo when she said:
‘I would prefer…the land be registered in his name. That is the only way to
achieve harmony. Thereafter my sons should take over…How do I start to
scramble over land with my own children?’
The vision of relational feminism is a society where all human beings can find fulfilment,
where the need to value community, relationship and traditional feminine qualities (Becker,
2007: 144) will not be undervalued or used to deny women their right to land, which is their
main source of livelihood and also an assured source for family food security. Whereas many
may perceive the rural African woman as docile and subjugated by polygyny, sometimes
women also speak in words and in silence - when they fail to protest about the conversion of
the fields into gold mines, they are in effect saying:
‘I prefer harmony with my in-laws. I have to hold my tongue for the sake of
the children’s future.’
80
Since Kogelo is a patrilineal society where men’s needs tend to dominate the agenda,
relational theory reveals that there is a need to adopt a woman-centred focus in order to
embrace and take care of women’s interests.
6.4 Eco-feminism
The term eco-feminism was first coined by Francoise d’Eaubonne in 1974 to represent
women’s potential for bringing about an ecological revolution. Eco-feminists explore gender
oppression and environmental degradation mainly caused by men and hold that women have
a responsibility to stop this male dominion over both (Merchant, 1972).
Agarwal (1997: 55-95) in examining the relationship between women and nature, points out
that oppression of women and environmental degradation occur simultaneously and are
mainly caused by male dominance. She argues that men are more related to culture which is
considered more superior than the environment, whilst women are related to the environment,
consequently both women and the environment have been subjugated by men and share a
common inferior position. This was demonstrated in Kogelo where the prevailing cultural
norms and practices place men in positions of authority and decision making, while the
woman’s relevance, like the land, emanates from deferring to the man’s decisions in relation
to how and when to be used, and in satisfying the needs of her husband and the family.
Stone (1972: 8) applies the analogy of the quest for the rights of trees to the quest for
women’s rights and explains that the resistance that such quests elicits from the entities which
have the power to bestow such rights and states:
‘…until the rightless thing receives its rights, we cannot see it as anything but
a thing for the use of us. It is hard to see it and value it for itself until we can
bring ourselves to give it rights.’
During the research the responses particularly from the men, who by virtue of culture and
tradition already have undisputed rights to land and to make decisions over land, were
unwilling to concede similar rights to women. Oduor Achilla a miner at Kogelo remarked:
81
‘Ere kaka dhako ma odhi e dala moro ni okende chak muoch ni en be en gi
duol e lop anyuola-mano en achaye!’
(Translation: ‘How does a woman who gets married into another family
suddenly light up with a claim on family or ancestral land? That is being
spiteful!’)
The link between women and nature is seen in Kogelo where the land is overwhelmed and
degraded by the dominance of gold-seeking men in much the same way as women are
subordinated and overwhelmed by the dominant male presence in their community.
6.5 We can reason and negotiate (African feminism)
Whitehead and Tsikata (2003: 92) point out that at one end of the spectrum is the view that
statutory laws discriminate against women, while other scholars like Butegwa (1991: 45-58),
argue that legal pluralism tends to affirm traditional practices even when they are
discriminatory and Karanja (1991) contends that the imposition of western notions of
ownership in land relations in Africa has led to a lot of confusion about the character of land
tenure to the disadvantage of women. Knowles (1991: 1-14) sees male resistance as a key
issue and says law reform must go beyond land rights and address broader gender inequalities
in society.
The social kinship structures and the day-to-day negotiations through gender, sex, male and
female experiences reveals that patriarchy gains some of its force and effectiveness from
women’s fidelity to custom. This was reflected in the response from several women in
Kogelo who said spousal consultation over land matters should not openly question a man’s
traditional status as the ultimate authority. Upon hearing an explanation of what spousal
consent meant, several men said that for social cohesion it was important to consult their
spouse and make them aware of one’s intentions over land use. African feminism is about
dialogue, because the gender system between African men and women is not a battle where
the woman fights to win over some of men’s powers, there is no need to fuel gender conflict
because the man is not the woman’s primary enemy;39 food insecurity in the family and an
uncertain source of livelihood are the primary enemy. Therefore conversations can begin
between African men and women regarding unsustainable land use caused by mining and
how it is affecting the survival of the family.
39 Zola Sofala: 62, Nigeria’s first female playwright cited in Weems 2004:48.
82
What is critical is how the problem of female subjugation is to be solved with specific
reference to the male who in the final analysis needs himself to be connected and redeemed
(Hudson-Weems, 2004: 62). Feminists can reason and negotiate with men so that ‘rather than
seeing State law and customary law as distinct and opposing systems,…[the can] explore how
women’s access to land and tenure security is affected by the interaction of the two systems.’
Nnaemeka (2003: 377) refers to this brand of feminism as nego-feminism because it is the
feminism of negotiation and not a contest of egos. The ultimate issue is how women,
regardless of the form of tenure, may be protected against discrimination that is often a
consequence of gender and context insensitive land laws policies and practices.
Ogundipe-Leslie (1994: 137) observes that the area of culture is one where critical
transformation must take place and encourages us to identify what aspects of our culture must
survive and through whom they must survive in order to keep alive the strong emotional
ethnic bond of family.
6.6 Conclusion
This section has demonstrated that the pursuit of gender equality is complex, riddled with
cultural diversity and large doses of male autonomy. However within culture and custom
rigid rules there is still room for dialogue and negotiation. It is apparent that the solution does
not lie in substituting cultural and traditional practices with high sounding programmes
offered in national legislation or glamorous human rights regimes but in negotiating for roles
and entitlements of women and families within the community (Nhalapo, 1995).
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CHAPTER SEVEN
7.0 CONCLUSION AND INTERVENTIONS
7.1 Conclusions
This study focused on rural women in Kogelo in so far as it assessed the effectiveness of laws
in Kenya which purport to give women rights to land. There are various pieces of legislation
intended to protect and secure women’s land rights but a cluster of factors make
implementation difficult. It is important to consider men’s interests when advocating for
change because as Stewart and Tsanga (2007: 423) note, people are willing to introduce
change especially where their self-interest is concerned, even if it means going against
accepted norms.
7.1.1 Ownership and usage
There is legislation in place regulating the use of land in a sustainable manner. However land
ownership and use is largely controlled by customary systems thus ensuring that men
determine the extent to which women can deal with land. An analysis of the large body of
laws governing land use and the protection of women’s rights to land, as well as an
examination of the role of State institutions and NGOs in Kogelo demonstrates that the laws
function mainly as externalities to be evaded rather than complied with. The institutions
operate largely independent of each other resulting in poor monitoring of land and
environmental activities in Kogelo. The fact that land in Kogelo is dotted with abandoned and
unlicenced operational gold mine pits demonstrates that either the laws are ineffective in
ensuring sustainable land use or the provisions are routinely ignored, or the residents are
unaware of the legislation.
7.1.2 Multiple dynamics
Various pieces of legislation have been enacted or amended so as to recognise and deal with
women’s property interests within their marriage. However there is reluctance by rural men
to accept women as decision makers as most land is inherited ancestral land. Modifying
structural patterns within rural families so as to gain equality in practice cannot be achieved
overnight. The men are not totally opposed to spousal consent in land matters but object to
the impression it creates that they are asking for permission from their wives. They welcome
84
the idea of constructive consultation and at least informing their spouses about their dealings
with land (although they prefer to retain the final say).
Some women do not wish to rock the social boat where men are the ultimate authority in
decision making and ownership of land owing to an odd cluster of inhibitions which include
the fear of incurring spiritual curses and suffering social stigmatization. The realization of
rights to land begins with the natal family. Women’s land rights cannot be suddenly bestowed
upon them only by marriage if within their ancestral homes they have no such rights, unless
the message being conveyed is that marriage gives the rural woman an elevated status. Due to
socio-economic factors and legal technicalities most rural women prefer pursuing traditional
dispute resolution methods rather than going to court as that may jeopardize their marriage.
The insistence on securing spousal consent before dealing with the land is not fool-proof and
fails to take into account the lived reality in rural areas of who a wife actually is, especially in
the rural setting which is laced with polygamy and cohabitation. Rural men still feel
threatened. Their ultimate interest is the land itself, and joint ownership is considered
irrational because in their eyes the woman is always moving on her way out and into another
relationship. Spousal consent is therefore viewed as diminishing the man’s voice of authority
and power.
7.1.3 The gaps
There is a need for increased legal information and knowledge regarding land use and
women’s land rights. The use of barazas to sensitize women about their rights may not reach
many of them due to the multiple chores women have to perform. The men who attend
barazas may filter information which they consider unfavourable to their interests. Myths and
beliefs hinder women from participating fully in mining, making them rely on the goodwill of
the men.
Some State institutions such as the Ministry of Mining have not devolved and cover a wide
area and this compromises their effectiveness. The concept of the right to private property
restrains most government institutions and NGOs from intervening on land use. There is
selective outreach as most NGOs carry out sensitization based on what is of interest to them
or what they perceive as being attractive to donor funding. Most of the government
institutions and NGOs work independently of each other and there is an overlap of roles in
85
enforcement of laws relating to land use. This has resulted in failure to monitor the mining
activities in Kogelo which they consider as small scale activities. They only come together
and visit the mining sites when there is a tragedy at the mines.
Activities which have a negative impact on women’s rights to land impact on food security
and leaves society worse off. Whichever way mining is done, even with the latest technology,
gold is not infinite and agricultural land is paying a very heavy price. With the depletion of
land it was clear that given the space, women can come up with alternative ways to sustain
their livelihoods, e.g., tree nurseries, green houses, bee-keeping, etc.
7.2 What can be done?
Since land is an essential resource for improving living conditions and economic
empowerment, the lack of land rights for women undermines efforts to promote gender
equity and equality within a patriarchal society. For successful land reform to take place, the
minimum of initiatives which need to be implemented must include establishing: security of
tenure for men and women to enable them to make productive and sustainable use of land;
equitable access to land for subsistence farming and a sustainable balance between intra- and
inter-generational equity (Mbote, 2013: 6). The interventions suggested in this study stem
from what the men and women in Kogelo said because as Nnaemeka (2003: 373) points out:
‘Often elitist interventionists are not aimed at saving the “victims” but rather
transforming them in the image of the interventionist.’
7.2.1 Harmonization of laws and roles
To effectively implement the legislative provisions State institutions and NGOs need to link
up in order to harmonize the processes related to regulating land use. The EMCA and the
Mining Act may need to be amended to require miners and land owners to set out a land
recovery plan as a pre-condition to gold mining and prospecting. I can do no better than to
support Kibugi (2008: 365) who recommends that the draft Mining Bill should provide for
environmental management plans, without which prospecting or mining, on whatever scale,
must not commence. Effective enforcement mechanisms include combined routine field visits
by personnel from the Ministry of Mining and NEMA.
86
7.2.2 Information dissemination
Land reform requires that women and men be made aware of the contents of various pieces of
legislation that relate to the protection of women’s rights to land and sustainable use of land.
This can be done through the dissemination of a simplified version of the contents of the
legislation to sensitize the community, especially women, on the co-relation between their
land rights, their livelihoods and family food security. Apart from the use of chiefs’ barazas,
church groups, local women’s groups and local radio stations are effective channels of
dissemination.
The youth can be used to stimulate interest in sustainable land use and they can work with
women to start tree and vegetable nurseries as well as bee keeping for honey activities which
would provide a means of livelihood and also not degrade the land. NGOs such as ACE
Africa and World Vision are urged to visit Kogelo and focus on how to improve and
rehabilitate the land in order to secure a good yield of crops.
Promotion of minimal level of awareness among women regarding their right to land will
enable them to contribute towards decision making regarding land issues. Women can be
made aware of the content of the law through a simplified summary of provisions which can
be sent to their phones as short text messages. Positive change requires involving men in
dissemination of information campaigns to demonstrate that they are not being side-lined nor
involved in a scheme to dilute their positions as decision makers within families. Local norms
are constantly changing with practice and adapting to new situations and fortunately some
men are receptive to giving space to women‘s voices. Women need to know how to deal with
the various hidden powers and FIDA-K can educate women on the relevant laws and also
empower them on self representation and legal aid services through the use of radio F.M.
stations such as Radio Ramogi and Radio Nam Lolwe which are very popular in Kogelo.
Interrogating customary law so as to discern and encourage its positive living aspects and
negotiate the de-construction, modification and re-conceptualization of cultural practices
which bar women from controlling land in their matrimonial set-ups would resonate with
article 2(f) and 5 of CEDAW. This may require amending the Land Registration Act to
specify control rights for the spouse who is actually using the land by expanding and giving
more meaning and body to the existing and somewhat hollow phrase ‘beneficial interest’.
87
This will enhance women’s security of tenure and result in women investing in land and
advocating for its sustainable use.
7.3 Judicial activism
An overall issue is how women, regardless of the form of land tenure, may be protected
against discrimination that is often a consequence of gender and context insensitive land laws
policies and practices.
Ogundipe-Leslie (1994: 137) has observed that the area of culture is one where critical
transformation must take place. The various strands of feminist theories referred to in this
study offer a useful tool to the judiciary in Kenya which can be applied by the courts to
ensure that rural women’s land rights are respected. It is so easy to think that since there are
legal provisions, all that is needed is to file a matter in court and obtain appropriate orders. It
is important to realize that for the rural woman, family and children are an integral part of her
life and community and they provide the connectedness she requires to be whole. Reflecting
on my interactions with the women and men of Kogelo has made me realise that judicial
officers are often very conscious of international human rights standards, what the female
litigant’s rights are, but fail to consider the pluses and minuses of the social arena which
results in court orders only giving women pyrrhic victories. A judicial officer may be advised
to consciously interrogate and venture beyond the ideal of what human rights contemplate on
paper, and explore the implications of what the enforcement of their orders are likely to bring
about. The lived realities of the rural women must inform the nature of orders a court will
give so that their orders are effective and valuable tools which help to transform and improve
the lives of rural women as well as their communities. Decisions by the courts would then
examine and analyse the practical use of human rights instruments when interpreting the law
in the light of legal pluralistic setting in Kenya.
88
Bibliography
Amutabi, M and Lutta-Mukhebi, M. ‘Gender and Mining in Kenya: The Case of Mukibira
mines in Vihiga District’ (Jenda: A Journal of Culture and African Women Studies, Vol.1
(2001).https://scholar.google.com/scholar?hl=en&q=The+history+of+gold+mining+in+Keny
a&btnG=&as_sdt=1%2C5) accessed on 26th Feb 2016
Agarwal, B. (1997) ‘Environmental Management, Equity and Eco-feminism: debating India’s
experience’, Journal of Peasant Studies 25(4).
Agarwal, B. (1994) A Field of One’s Own: Gender and Land Rights in South Asia;
Cambridge, Cambridge University Press.
Aidoo, A.A. (1992) ‘Speaking as a Woman, The African Woman Today’, In Sutherland-
Addy, E. and Diaw, A. (eds.) (2005) Women Writing Africa: West Africa and The Sahel,
Johannesburg: Wits University Press
Banda, F. (2012) “Comment to CEDAW Article 14” In Chinkin et al (eds.)The Convention
on the Elimination of All Forms of Discrimination Against Women: A Commentary. Oxford
University Press.
Barrows, R and Roth, M (1989) Land Tenure and Investment in African Agriculture: Theory
and Evidence, Land Centre Paper 136, Madison, WI: University of Wisconsin Press as cited
in Tsikata D and Whitehead A. (2003) ‘Policy Discourses on Women’s Land Rights in Sub-
Saharan Africa: The Implications of the Re-turn to the Customary’ In Journal of Agrarian
Change, Vol. 3 Nos. 1 and 2, January and April 2003.
Beauvoir, S. de (1953) The Second Sex, London, Jonathan Cape Ltd: Vintage.
Becker, M. (2007) ‘Towards A Substantive Feminism’ In Becker et al (2007) Excerpts from
Feminist Jurisprudence: Taking Women Seriously - Cases and Materials.
89
Bentzon, A.W. et al,. (1998) Pursuing Grounded Theory in Law: South-North Experiences in
Developing Women’s Law, Oslo, Tano-Aschehoug, Harare Mond Books.
Bond-Stewart, A. et al (1996). Inside Our Mining World: The Untold Story of Children and
Women in Zimbabwe’s Mining Communities. Harare: Africa Community Publishing and
Development.
Butegwa F (1991) ‘Women’s Legal Right of Access to Agricultural Resources in Africa: A
preliminary inquiry’. Third World Legal Studies-Special edition- 45-58 as cited in
Whitehead, A. and Tsikata, D (2003) ‘Policy Discourses on Women’s Land Rights in Sub-
Saharan Africa: The Implications of The Re-turn To The Customary’ In Journal of Agrarian
Change, Vol. 3 Nos. 1 and 2, January and April 2003.
Cross, C. (1999) ‘Women and Land in the Rural Crisis’; Agenda, 15:42 –
http://dx.doi.org/10.1080/10130950.1999.9675778 accessed on 16th March 2016.
Chome, T.C. 2014: ‘Realising Women’s Access to Land: A Critical Analysis of the Malawi
Customary Land Bill’ (Unpublished) Dissertation submitted in partial fulfilment of the
requirements for the Masters Degree in Women’s Law at Women’s Law, Southern And
Eastern African Regional Centre For Women’s Law, University Of Zimbabwe.
Dahl, T.S. (1987) Women’s Law An Introduction to Feminist Jurisprudence, Oslo,
Norwegian University Press.
Eriksen, G.K. et al (1996) ‘Land Tenure and Wildlife Management’ In Juma, C and Ojwang,
J.B. (eds.), (1996) In Land We Trust-Environment: Environment, Private Property and
Constitutional Change, Nairobi, Initiative Publishers.
FAO (1996) Rome Declaration on Food Security, World Food Summit 13-17 Nov 1996,
Rome http://www.fao.org/docrep/003/w3613e/w3613e00.HTM accessed on 9th March 2016.
FAO (2002) Land Tenure and Rural Development; FAO Economic and Social Department
http://www.fao.org/docrep/005/y4307e/y4307e05.htm assessed on 15th February 2016.
90
Fleuret, A. (1988) ‘Some consequences of Tenure and Agrarian Reform in Taita, Kenya’ In
Downs, R.E and Reyna, (1988) S.P. (eds.) Land And Society in Contemporary Africa as cited
in Karanja P.W.(1991) “Women’s Land Ownership Rights in Kenya” Vol. 1991 Third World
Legal Studies.
Fredman, S. (2013) ‘Engendering Socio-Economic Rights: Actual Added Value of CEDAW’
in Aasen, H. S. and Hellum, A. (eds.) (2013) Women’s Human Rights; CEDAW in
International, Regional and National Law; Cambridge University Press.
Garner, B.A. (2004) Black’s Law Dictionary Eighth Edition, St Paul Mn, West Group.
Gomez, M. and Tran, D.H. (2012), ‘Women’s Land and Property Rights and the Post-2015
Agenda’- Paper presented at: Addressing Inequalities-The Heart of the Post 2015
Development Agenda and the Future We Want for All Official–Global Thematic
Consultation on Addressing Inequalities.
Griffiths, J (1986) ‘What is legal pluralism’, Journal of Legal Pluralism and Unofficial Law
24 (1986) as cited inn Hellum, A and Aasen, H.S. (eds.) 2013,Women’s Human Rights,
CEDAW in International, Regional and National Law, Studies on Human Rights
Conventions, Cambridge University Press.
Hellum (1999) Women’s Human Rights and Legal Pluralism in Africa: Mixed Norms and
Identities in Infertility Management in Zimbabwe, Harare, Mond Books, Oslo, Tano
Aschehoug.
Hellum, A and Aasen, H.S. (eds.) 2013,Women’s Human Rights, CEDAW in International,
Regional and National Law, Studies on Human Rights Conventions, Cambridge University
Press.
Hellum, A. and Katsande, R.K. (2015) ‘Gender, Human Rights and Legal Pluralities in
Southern Africa: A Matter of Context and Power’ In Brems, E and Corradi, G. Human Rights
and Legal pluralism, Hart Publishing (CORE) (forthcoming).
91
Hudson-Weems, C. (2004) Africana Womanist Literary Theory; Trenton, NJ, Africa World
Press, Asmara; Eritrea).
Ikdahl, I. et al (2005) Human Rights, Formalization and Women’s Land Rights in Southern
and Eastern Africa Studies in Women’s Law No 57, Institute of Women’s Law, University of
Oslo.
Ikdahl, I (2007) Engendering The Human Rights to Protection of Property Rights: Women’s
Local Land Use in Tanzania, In Hellum, A. et al (eds.) (2007) Human Rights, Plural
Legalities and Gendered Realities: Paths Are Made By Walking, Southern and Eastern
African Regional Centre for Women’s Law; Harare, Weaver Press.
Ikdahl (2008) ‘Go Home and Clear The Conflict’ in Englert, B. and Daley, E. (eds.) (2008)
Women’s Land Rights and Privatization in Eastern Africa, Kampala, Fountain Publishers.
Jaggar, A. (1983) ‘Feminist Politics and Human Nature’. Sussex: The Harvester Press as
cited In Dahl, T. S. (1987) Women’s Law: An Introduction to Feminist Jurisprudence, Oslo,
Norwegian University Press.
Karanja, P.W. (1991) ‘Women’s Land Ownership Rights In Kenya’, Vol. 1991 Third World
Legal Studies accessed at:
www.heinonline.org/HOL/Page?handle=hein.journals/twls1991&div=11&start_page=109&c
ollection=journals&set_cursor as_ accessed on 23rd Feb 2016.
Kibugi, R. (2008) ‘Mineral Resources and Mining Industry in Kenya’ In Okidi, C.O. et al
(eds.) (2008) Environmental Governance in Kenya: Implementing the Framework Law.
Nairobi, East African Educational Publishers.
Knowles, J.B. (1991) ‘Women’s Access to Land in Africa Realizing The Rights of Women in
Development Process: Women’s Legal Entitlement To Agricultural Development and
Financial Assistance’ Vol.1991 Third World Legal Studies Vol. 1991
https://heinonline.org/HOL/Page?handle=hein.journals/twls1991&div=6&start_page=1&coll
ection=journals&set_as_cursor=0&men_tab=srchresults accessed on 8th March 2016.
92
Lee, R.W. (1953) ‘An Introduction to Roman Dutch Law’ 5th edition as cited in Lewis, C
(1985) ‘The Modern Concept of Ownership of Land’ Vol. 1985 Acta Juridica.
Long, N. (2001) Development Sociology: Actor Perspectives, London, Routledge.
Mackenzie, F. (1990) ‘Gender and Land Rights in Muranga District, Kenya.’ Journal of
Peasant Studies, 17 (4) 6 06-43 as cited in Whitehead, A. and Tsikata, D (2003) ‘Policy
Discourses on Women’s Land Rights in Sub-Saharan Africa: The Implications of the Re-turn
to the Customary’ In Journal of Agrarian Change, Vol. 3 Nos. 1 and 2, January and April
2003.
Mbote, P.K. (2005) The Land has its Owners! Gender Issue in Land Tenure Under
Customary Law in Kenya; Working Paper available online at ierlrc.org accessed on 15th Oct
2015.
Mbote P.K. (2006) ‘Women, Land Rights and the Environment: The Kenyan Experience’; In
Development (2006) 49(3), 43-48 accessed at www.ielrc.org/content/a0605.pdf on 4th March
2016 .
Mbote, P.K. (2008) ‘Law, Gender and Environmental Resources: Women’s Access to
Environmental Justice in East Africa’ In Ebbesson, J. and Okowa, P. (eds.) (2009)
Environmental Law and Justice In Context; London, Cambridge University Press.
Mbote, P. K. (2008a) ‘Land Tenure and Sustainable Environmental Management In Kenya’
In Okidi et al (eds.) (2008) Environmental Governance in Kenya, Implementing The
Framework Law, Nairobi, East African Educational Publishers.
Mbote, P. K. (2013) ‘I Want it and I Want it now: Women and Land in Africa’; In
Perspectives Vol.2 (2013) http://www.ielrc.org/content/a1309.pdf accessed on 7th March
2016.
Mbote, P.K. (2013 a) ‘Fallacies of Equality and Inequality: Multiple Exclusions in Law and
Discourse’, Inaugural Lecture, Nairobi, Department of Law, School of Law, University of
93
Nairobi available on-line at www.uonbi.ac.ke/sites/default/files/Mbote.pdf. Accessed on 28th
March 2016.
Mucai-Katambo et al (1995) Law and The Status Of Women In Kenya, In Kabeberi-
Macharia, J. (ed.) (1995) Women, Laws Customs and Practices in East Africa: Laying the
Foundation, Nairobi, WLEA 1995.
Musembi, C. N. (2002) ‘Are Local Norms and Practices Fences or Pathways? The Example
of Women’s Property Rights’ pg 126 In An-Naim, A. A (ed.) Cultural Transformation and
Human Rights in Africa; London, Zed Press.
Nhalapo, T. (1995) ‘Cultural Diversity, Human Rights and the Family in Contemporary
Africa, Lessons from the South African Constitutional Debate’, 9 International J. Law and
Family Vol. 9 Accessed at:
https://books.google.co.zw/books?id=hCUVRBcGYC8C&pg=PA237&lpg=PA237&dq=Tha
ndabantu+Nhlapo:+Cultural+Diversity,+Human+Rights+and+the+Family
Nnaemeka, O. (2003) ‘Nego-Feminism: Theorizing, Practicing and Pruning Africa’s Way’,
Signs: Journal of Women in Culture and Society Vol. 29, No 21.
Nyamu, C.I. (1999) ‘Achieving Gender Equality in Plural Legal Context: Custom and
Women’s Access to and Control of Land in Kenya’, Third World Legal Studies, Vol. 1998-
1999
https://heinonline.org/HOL/Page?handle=hein.journals/twls1998&div=7&start_page=21&col
lection=journals&set_as_cursor=0&men_tab=srchresults accessed on 23rd February 2016.
Ogundipe-Leslie, M. (1994) Moving the Mountains, Making the Links, from Re-creating
Ourselves: African Women and Critical Transformations; Trenton, NJ, Africa World Press
Inc.
Okidi: C.O. (2008) ‘Concept, Function and Structure of Environmental Law’ In Okidi, C.O et
al (2008) Environmental Governance in Kenya: Implementing the Framework Law; Nairobi,
East African Educational Publishers.
94
Okoth-Ogendo, H.W.O. (2000) ‘Legislative Approaches to Customary Tenure and Tenure
Reform in East Africa’; In Toulmin, C and Quan, J (eds.) (2000) Evolving Land Rights,
Policy and Tenure in Africa. IIED Drylands Programme.
Omari, E. (2008) ‘How Obama Magic Has Changed Life in Sleepy Kogelo’, Daily Nation
June 8th, 2008 available http://www.nation.co.ke/counties/Counties/How-Obama-magic-
changed-life-in-Kogelo-/-/1183322/1177246/-/erp14q/-/index.html on 17th February 2016.
Pala, A. O. (1983) ‘Women’s access to Land and their Role in Agriculture and decision
making on the farm: - Experiences of the Joluo of Kenya’-Journal of Eastern African
Research and Development, 13 cited in Musembi, C. N. (2008) ‘Breathing Life into Dead
theories about Property Rights in Rural Africa: Lessons from Kenya’ In Englert,B. and
Daley, D (eds.).(2008)Women’s Land Rights and Privatization in Eastern Africa, Kampala,
Fountain Publishers.
Pala, A. O. (1988) ‘Daughters of the Lakes and Rivers: Colonization and the Land Rights of
Luo Women’, In Etienne, M and Leacock, E(eds.) (1980) Women and Colonization cited in
Karanja (1991) Women’s Land Ownership Rights in Kenya . Third World Legal Studies
accessed at
www.heinonline.org/HOL/Page?handle=hein.journals/twls1991&div=11&start_page=109&c
ollection=journals&set_cursor as_ accessed on 23rd Feb 2016.
Platteau, J. P. (2000) Does Africa Need Land Reform? In Toulmin, C. and Quan, J. (2000)
Evolving Land Rights, Policy and Tenure in Africa; London: IIED with DFID and NRI.
Population Reference Bureau (2011) Kenya Population Data Sheet (2011)
http://www.prb.org/pdf11/kenya-population-data-sheet-2011.pdf accessed on 19th February
2016.
Pruitt, L.R. (2008) ‘Gender, Geography and Rural Justice’, 23 Berkley Journal of Gender,
Law and Justice; Vol. 3 (2008).
Rutsate, E. (2012) ‘All That Glitters Is Not Gold: A Critical Analysis of The Impact of legal
Gold Mining on Women’s Right to a Healthy and Sustainable Environment: A Focus on
95
Women in Ngorima Communal Lands of Chimanimani District, Manicaland Province,
Zimbabwe’, (unpublished) A Dissertation submitted in partial fulfilment of the requirements
for a Masters Degree In Women’s Law, Southern And Eastern African Regional Centre For
Women’s Law, University Of Zimbabwe.
Schutter, O. de (2012) From Charity to Entitlement: Implementing the right to Food in
Southern and Eastern Africa, Briefing Note 05; June 2012,
http://www.ohchr.org/Documents/Issues/Food/SRRTF%20BN%2005_SouthernEasternAfrica
_en.pdf accessed on 9th March 2015.
Shivji, I.G. (1998) Not Yet Democracy: Reforming Land Tenure In Tanzania, IIED,
Hakiardhi and Faculty of Law, University of Dar es Salaam cited in Ikdahl, I. (2007)
‘Engendering the Human Rights Protection of Property Rights: Women’s Local Land Use In
Tanzania’ In Hellum, A. et al (eds.) (2007) Human Rights, Plural Legalities and Gendered
Realities: Paths Are Made By Walking; Harare, Southern and Eastern Regional Centre for
Women’s Law, Weaver Press.
Singer, J. (1990) ‘Property and Coercion in Federal Indian Law, the Conflict between critical
and Complacent Pragmatism’, Southern California Law Review Vol. 63, Issue 6 (Sept 1996).
Stewart, J.E (1997)’ Experiences from Women’s Law at the University of Zimbabwe’; In
Mehdi, R and Shaheed, F. (1997) Women’s Law in Legal Education and Practice in Pakistan:
Copenhagen, New Social Science Monographs.
Stewart, J. and Tsanga, A. (2007) ‘The Widows’ and Female Child’s Portion: The Twisted
Path To Partial Equality For Widows and Daughters Under Customary Law in Zimbabwe’ In
Hellum, A. et al (eds.) (2007) Human Rights, Plural Legalities and Gendered Realities: Paths
Are Made By Walking.
Stone, C. (1972) “Should trees have standing? Towards legal rights for natural objects”; In
Southern California Law Review 45 (1972) 450-501.
96
Swynnerton, R.J.M. (1955) Kenya Colony and Protectorate, Department of Agriculture
(Kenya Colony and Protectorate), A plan to intensify the development of African Agriculture
in Kenya. Nairobi, Government Printer.
UN Earth Summit, (1992) - http://www.fao.org/nr/land/sustainable-land-management/en/
accessed on 9th March 2016.
UN Women (2013 ) Secretary-General's message on the International Day of Rural Women
http://www.unwomen.org/en/news/stories/2013/10/sg-statement-for-rural-women-day
accessed on 29th Feb 2016.
West, R. (1987) The Difference in Women’s Hedonic Lives: A Phenomenological Critique of
Feminist Legal Theory 3 Wis. Women’s L.J. 81-139.
Whitehead A. and Tsikata, D. (2003) ‘Policy Discourses on Women’s Land Rights in Sub-
Saharan Africa: The Implications of the Re-turn to the Customary’ In Journal of Agrarian
Change, Vol. 3 Nos. 1 and 2, January and April 2003.
World Bank (2012) Gender Dimensions of Artisanal and Small Scale Mining; A Rapid
Assessment Toolkit available online at
http//siteresources.worldbank.org/INTEXTINDWOM/Resources/Gender_and_ASM_Toolkit.
pdf accessed on 30th March 2016.