Imagine things are looking up for you. You are running your own business transporting and selling charcoal to retailers in the area, your husband has a steady job, and together you own real estate which you rent out. Then, your husband dies – your in-laws and your husband’s kinsmen take all of the assets and are entitled to do so under law. You are left with nothing to rebuild your life and provide for your child. This is what happened to Anna in Kenya. Her story is not uncommon. Women’s rights groups in Kenya have been pushing for change and finally, with the institution of a new Constitution in August of 2010, their rights will be protected. This Constitution, the main purpose of which was to limit the powers of the executive, has risen from the ashes of ethnic violence following elections in 2007 in which over 1,100 people are believed to have been killed.
In terms of broad legal principles relating to women’s rights, Kenya’s new Constitution has two reforms. The first, is that customary law, still recognized in Kenya alongside codified law and common law, is no longer exempt from constitutional provisions prohibiting discrimination based on gender. As a result, discriminatory inheritance practices such as those that disinherited Anna will come under increased legal scrutiny. The second, is that in addition to gender being a prohibited ground for discrimination, protections were strengthened with a clause mandating equality based on gender, and a clause providing that parties to a marriage are entitled to equal rights at the time of marriage, during marriage and at the dissolution of marriage. In addition, Kenya has instituted specific provisions, so that Kenyan women can now pass citizenship to their spouses and children on equal footing with Kenyan men. The latter, a huge achievement as it empowers the other half of the population with the same right, is something many countries still continue to prohibit wives and mothers to do.