Kenyan judges tackle gender discrimination in land disputes

Martha Koome and Sarah Ondeyo are just two of a growing contingent of activist judges in Kenya who have taken it upon themselves to champion the cause of women disinherited by outdated interpretations of property law.

“We need to come to an understanding that women are entitled to inherit land,” says Judge Koome, adding that “less than 5%” of property in the East African country is today owned by women.

Judge Koome is a former justice of the High Court of Nakuru, the capital of the Rift Valley, a largely agricultural province in the west of Kenya.

Like many parts of Africa, the Rift Valley has a strong tradition of customary law - rules and traditions which traditionally favour the eldest male in family disputes over inheritance and land ownership.

This discriminatory culture, developed over centuries, influences the rulings of local courts such as Land Disputes Tribunals in defiance of national statues on gender equality, meaning High Court judges routinely have to overturn cases at appeal.

“The decisions [at this lower court level] are made at the community level where they have these chauvinistic attitudes that women, especially married daughters, should not inherit land,” says Judge Koome.

“It is against this background of entrenched attitudes that women do not inherit. So we a need very, very strong lobby [and] teaching. We have to change so many things.”

It is a “violation of a woman’s right,” agrees Judge Ondeyo, who recently retired as a judge of the High Court of Kenya, adding that many tribunal members and local officials lack awareness of their responsibilities under the law.

She says: “Ignorance of the provisions of [the Land Disputes Tribunal] Act is a big challenge and has impacted negatively on the work of tribunals as all their decisions are quashed by the courts.”

In an effort to overcome the practice of following customary law, the two judges – under the auspices of the Kenya Women Judges Association (KWJA) - recently organised a workshop with Kenyan gender, law and development organisation Satima Consultants for nearly 30 chiefs, magistrates, local district officers and tribunal members in Nakuru.

The aim of the workshop, which was funded by the Commonwealth Secretariat, was to educate local officials about gender equality and national law, including the provisions of Land Disputes Tribunal Act.

By bringing together chiefs and tribunal members with provincial officers and magistrates, who are responsible for forwarding tribunal decisions to the High Courts, Judges Koome and Ondeyo were, in one fell swoop, able to educate the officials of the Rift Valley about the correct statutory provisions to be followed by all.

It was the “first time the judiciary in Kenya entered into dialogue with leaders and elders who apply customary law to resolve disputes relating to land,” says Judge Ondeyo.

“By the end, tribunal members had become aware of the provisions of this legislation and it is my belief that members of the Nakuru Land Disputes Tribunal will be able to perform their duties more efficiently.”

Judges Ondeyo and Koome, both fierce advocates for change, are hopeful that they may be able to bring their training programme to other parts of the country to communities far beyond the Rift Valley.

“I look forward to a time when the Kenya Women Judges Association will receive funding to be able to carry out colloquia similar to the one we held in Nakuru so that all Tribunal members in the whole country can be trained on their mandate and the applicable procedures under the Land Disputes Tribunals Act,” says Judge Ondeyo.

“This,” she says, “will help them live up to the purpose for which they were appointed.”

Secretariat Links:

• Rule of Law
• Country Profile: Kenya