Current Events | Upholding CEDAW: The Fight for Gender Equality in Kenyan Marriage Law

Over the last decade, Kenya has implemented new legislation to ensure legal equality between men and women in marriage. However, there is still a lack of equality between spouses, particularly in reference to matrimonial property and custody. This stands in conflict with Kenya’s obligations as a ratifying party to the 1981 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which requires that member states ensure that men and women be treated equally during, after, and outside of marriage. In order to comply with the standards of international human rights law laid out in CEDAW, Kenya must revise its 2013 Matrimonial Act and the 2014 Marriage Act and amend the 2016 Legal Aid Act to guarantee women legal equality. 

The Matrimonial and Marriage Acts of 2013-14 played a central role in defining marriage rights in the Kenyan legal system, but continue to marginalize women on religious and socioeconomic grounds. The 2013 Matrimonial Act defined matrimonial property and granted all married spouses, including women, equal ownership rights. [1] The 2014 Marriage Act afforded spouses equal rights at the time of, during, after, and outside of marriage. [2] Notably, while both acts promised equality in marriage and property rights, they do not include women in Muslim marriages, as is the case for the rest of Kenyan marriage legislation. [3] This is a direct result of Kenya’s pluralistic legal system, which allows for religious law to be upheld separately. As a result, marriage proceedings within the Kenyan Muslim community are generally settled in Islamic courts, which operate under the oversight of khadis, male judicial officials who are not bound by legal protections for women under the Marriage Acts. [4] This leaves the marriage rights of over two million Kenyan women explicitly unprotected on account of their religion. [5] 

Morever, for non-Muslim Kenyan women who ostensibly have the support of both marriage acts, legal remedies are still out of reach due to inadequate access to funds. Legal fees present an insurmountable obstacle to many Kenyan women seeking to instigate divorce proceedings, for a husband’s traditional role as the primary wage-earner within a family unit keeps most women from attaining financial independence while married. Kenyan women are statistically less likely than their male counterparts to have access to bank accounts, and, if employed, are often left out of higher-paying managerial positions, making it near-impossible for them to cover legal fees without assistance. [6] While Kenya’s 2016 Legal Aid Act intended to create a legal aid fund that would lessen this financial burden on women, the Act failed in implementation due to underfunding. [7] Additionally, customary marriage law, another facet of the pluralistic Kenyan legal system, places an added financial burden on women by requiring them to repay their dowries before they can finalize their divorce or request any property acquired during marriage. [8] These dowries, often even greater in value than the legal fees, further prevent women from seeking legal recourse through divoce proceedings. [9] 

The burdens Kenyan religious and customary legal provisions place on women directly violate Kenya’s obligations to upholding gender equality under international law. Anticipating legal conflicts pitting gender equality against orthodox religious and cultural practices, CEDAW mandated that states take the necessary legal action to abolish laws which perpetuate discrimination against women. [10] This reflects the Convention’s aim to ensure legal gender equality, with CEDAW Article 16 directly calling for the eradication of discrimination against women during, after, and outside marriage. More specifically, CEDAW requires that states recognize non-monetary contributions made by spouses in marriage and take into account the value of indirect contributions when regulating divoce proceedings, an attempt to combat the discrimination women often suffer for not being the primary wage-earners within a family in contexts such as Kenya’s. [11] Because Kenya is party to CEDAW via accession, which has the same legal effect as ratification, Kenya is mandated to take said legal action to comply. [12] Thus, Kenya’s current legal infrastructure, by excluding Muslim women from marriage equality protections and placing an undue financial burden on women from any religion, is in violation of CEDAW by denying women’s property and land rights and ability to seek legal recourse.

Kenya’s failure to ensure adequate legal protections and recourse for women in marriages also violates its commitment to the 2003 Maputo Protocol. Also known as the Protocol to the African Charter on Human and People’s Rights on the Rights of Women, the Maputo Protocol holds that states should ensure that men and women have an equal share of matrimonial property after divorce. Kenya has signed and ratified the Maputo Protocol, and is therefore legally bound to comply with it. [13] Though international law is often considered ‘soft’—in that there are few official mechanisms for enforcement—CEDAW and the Maputo Protocol are still legally binding documents that Kenya has agreed to uphold, and must enact through domestic legal reform. 

A revision of its 2013 Matrimonial Act is a crucial step Kenya can take in order to comply with the international legal protections of CEDAW and the Maputo Protocol. On surface, the Act appears to be compliant with CEDAW, for it states that “domestic work and management of the matrimonial home” should be considered a legitimate “contribution” in divorce proceedings, alongside other monetary contributions. [14] However, the Act is ambiguous in defining what constitutes a non-monetary contribution and how to assign its value. Thus, if and when women present their cases in court, they are frequently met with the demand of providing proof of a non-monetary contribution and making the case for why it should be weighed at a certain value. [15] Indeed, given the implicit trust within a marital relationship, most women did not actively track non-monetary contributions while married, rendering them without sufficient evidence in these divorce cases, and subsequently, without adequate compensation. Further, the 2013 Act excludes “community and ancestral land” from this definition of matrimonial property, once more falling back on customary law to govern ownership of this property. [16] This leaves divorced women without any claim to generational ownership, placing them at a further disadvantage in court. On the occasion that the courts do grant women access to the lands they acquired in marriage, many women prefer not to claim them due to cultural norms and concerns for personal safety. [17] While, at first, the 2013 Matrimonial Act seemed to be a step taken in alignment with CEDAW, it is clear that the vagueness of its provisions and reality of its applications warrants a revision of the act. 

In a similar vein, reform is also necessary for the 2014 Marriage Act, which continues to be inconsistent with international law. The exclusion of Muslim marriages in both of Kenya’s Matriomonial Acts leaves Muslim women unprotected and forced to rely on Kadhi courts, which discriminate heavily against women and do not ensure equal distribution of property. [18] As a result of Muslim women being unprotected by Kenya’s legal systems, many Muslim Kenyan women never pursue their cases in court. Despite the subsequent lack of precedent, Kenya needs to reform its laws, including the 2014 Marriage Act, to comply with CEDAW through equitable distribution of matrimonial property and increased accessibility to legal remedies for women. 

Finally, the 2016 Legal Aid Act must be revised to support the many Kenyan women currently left without the funds or legal aid to seek justice in divorce proceedings. This is crucial to uphold Article 16 of CEDAW, which explicitly grants “men and women” “the same rights” “at [the] dissolution” of a marriage, making it necessary to address the financial barriers women face in divorce proceedings due to costly legal fees and dowry repayments. The Parliament of Kenya should revise these 2013 and 2014 Acts to align with Article 16 of CEDAW, as well as the Maputo Protocol, to comply with international law [19]. In amending the 2013 and 2014 Acts, Kenya should grant both spouses an equal share of matrimonial property upon divorce, as well as make explicit the monetary equivalent of non-monetary contributions within a marriage, thus granting women legal equality in every stage of marriage.

Legally, these violations of CEDAW and the Maputo Protocol in Kenya should also be presented to the Committee on the Elimination of Discrimination Against Women, which monitors the implementation of CEDAW. The Committee has already, in recent years, expressed its concerns about how the pluralistic Kenyan legal system—by deferring to religious and customary law—has denied justice to women in marriages. [20] This available mechanism raises the stakes for Kenya by emphasizing its obligation under international law to revise its marriage acts. Thus, in order to comply with international standards of law, Kenya must substantially revise its legal infrastructure for marriage, amending the 2013 Matrimonial Act to define the valuation of non-monetary property, the 2014 Marriage Act to ensure equitable distribution of marital property, and the 2016 Legal Aid Act to maintain oversight over the allocation of legal aid so that women have adequate access to legal recourse. Without these protections and legal aid, Kenyan women will continue to be denied equal rights in marriage and divorce, barring Kenya from attaining legal gender equality.

Edited by Mrinalini Sisodia Wadhwa

Sources:

[1] Ojima Abalaka, Once You Get Out, You Lose Everything, June 25, 2020, accessed October 28, 2021, https://www.hrw.org/report/2020/06/25/once-you-get-out-you-lose-everything/women-and-matrimonial-property-rights-kenya. 

[2] Ibid.

[3] Ibid.

[4] Muna Ndulo, "African Customary Law, Customs, and Women's Rights," Indiana Journal of Global Legal Studies 18, no. 1 (Winter 2011): 87-88, accessed October 28, 2021, https://www.jstor.org/stable/10.2979/indjglolegstu.18.1.87; Abalaka, Once You Get Out.

[5] Central Intelligence Agency, "Kenya: People and Society," CIA World Factbook, last modified October 25, 2021, accessed October 28, 2021, https://www.cia.gov/the-world-factbook/countries/kenya/#people-and-society.  

[6] UN Women: The United Nations Entity for Gender Equality and the Empowerment of Women, "Country Fact Sheet: Kenya," Women Count Data Hub, last modified 2020, accessed November 1, 2021, https://data.unwomen.org/country/kenya.  

[7] Central Intelligence Agency, "Kenya: People," CIA World Factbook.

[8] United Nations Treaty Collection, "Convention on the Elimination of All Forms of Discrimination against Women," United Nations Treaty Collection, last modified December 18, 1979, accessed October 28, 2021, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4. 

[9] Ibid. 

[10] Abalaka, Once You Get Out.

[11] Ibid.

[12] Ibid.

[13] African Union, "Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa," African Union, last modified July 11, 2003, accessed October 28, 2021, https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf. 

[14] National Council for Law Reporting, "The Matrimonial Property Act [No. 49 of 2013]," Laws of Kenya, last modified 2013, accessed November 1, 2021, http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2049%20of%202013. 

[15] Abalaka, Once You Get Out.

[16] National Council for Law Reporting, "The Matrimonial," Laws of Kenya.

17] UN Committee on the Elimination of Discrimination Against Women, List of issues and questions in relation to the eighth periodic report of Kenya, research report no. CEDAW/C/KEN/Q/8, 1-2, accessed November 1, 2021, https://www.refworld.org/docid/596f24614.html. 

[18] Abalaka, Once You Get Out.

[19] Ibid.

[20] Ibid.