Widows Rights In Kenya
Widows in Kenya face many challenges including discrimination, disinheritance, violence, stigma and poverty. Many of them are forcefully evicted from their matrimonial homes, denied custody of their children and accused of having caused the death of their husband. For others, depending on their tribal customs, they may even be forced to undergo such rituals like wife inheritance. According to a study (World Widows Report, 2015), there are an estimated 8 million widows in Kenya, many of whom lack legal protection and access to justice, especially in rural areas where customary laws and practices prevail.
The Kenyan Constitution protects the rights of widows. Article 27 in Chapter 4, which is the Bill of Rights, says that every person is equal before the law and everyone is equally protected by the laws of the land. The Constitution prohibits discrimination of any kind, including because of a person’s sex or marital status. According to Article 45(3) of the Kenyan Constitution, parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage. This provision ensures that both men and women have equal rights and protections within a marital relationship.
Apart from the Constitution, there are other laws in Kenya that have provisions that are meant to protect the rights of widows in the country.
The Marriage Act (2014) insists that all marriages be registered. Registering a marriage gives the relationship a legal “leg” to stand on. Any laws meant to protect the rights of spouses only apply if the marriage is registered in the first place. A widow who was in a legally registered marriage will have her status as a spouse to the deceased protected by law. This will give her access to rights like inheriting the matrimonial home and other properties.
The Matrimonial Property Act (2013) defines what Matrimonial property is, and provides provisions that protects the widow’s right to ownership of the property in the case of her husband’s demise. Essentially, the Matrimonial Property Act provides that husband and wife have equal rights when it comes to acquiring, using, administering and disposing of matrimonial property. This particular law should be used to safeguard the rights of the widow when it comes to securing property acquired during the marriage, especially the matrimonial home.
The Law of Succession Act deals with inheritance. It deals with how a deceased person’s estate is distributed. In the case of a widow, this law defines what kind of right she would have to her husband’s estate. This law is especially important if the husband did not leave behind a valid will. It provides that a widow is entitled to (i) the personal and household effects of the deceased and (ii) a life interest in the remaining portion of the deceased estate which has not been explicitly distributed to other beneficiaries. It basically means that the widow has a legal right to use and benefit from a specific (as determined by various circumstances) share of the assets and properties her husband has left behind. This is to allow her to enjoy the benefits derived from those assets in order to maintain the standard of living she has been accustomed to.
Despite the existence of these legal frameworks, widows in the country still face deep challenges. The laws aren’t always enforced, particularly in the rural areas where there is less awareness and retrogressive traditional practices are still strictly followed. Some of the existing laws have problematic clauses and may need to be improved. Just recently, the High Court struck down parts of the Law of Succession that it deemed to be unconstitutional because there was a difference in how it treated women in comparison to their male counterparts in the marriage. The contentious provision basically said that a woman’s life interest in her deceased spouse ended when she remarried, but a similar restriction was not in place in the case of a widower.
A lot more needs to be done to help and protect widows. The authorities need to ensure that proper laws are enacted. It is then important that legal information is made easily accessible especially to the marginalized groups living in the rural areas of the country. People need to be educated on what these vulnerable women go through and why they need to be protected. Widows are a part of society and should not be excluded and forgotten in the fight to end inequalities and injustices.
