"A refusal to argue with inconvenient evidence": Women, proprietorship and Kenyan law

Dialectical Anthropology

Volumn 23, Issue 1, 1997, Pages 55-81

  Muteshi, Jacinta K ^a  

^a Department of Women's Studies and International Development ^*  (Kenya)

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EID: 0039684965     PISSN: 03044092     EISSN: 15730786     Source Type: Journal    
DOI: 10.1023/A:1006979528215     Document Type: Review

References (67)

1. These words are borrowed from G. Spivak, In Other Worlds: Essays in Cultural Politics (New York: Methuen, 1988), p. 284.
2. See R. Oboler, "The House Property-Complex and African Social Organization, Africa, vol. 64, no. 3 (1994), pp. 354-355.
3. I. Q. Orchardson, "Some Traits of the Kipsigis in Relation to their Contact with Europeans, Africa, vol. 4 (1931), p. 468.
4. See Obler, "The House Property Complex,"
5. and P. Rigby, Nomadic Societies in Transition (London: Zed Books, 1985).
6. I. Q. Richardson, The Kipsigis (Nairobi: East African Literature Burau, 1961).
7. I. Q. Richardson, The Kipsigis Ibid., p. 111.
8. A. Griffiths, "Between Paradigms: Differing Perspectives on Justice in Moleplole Botswana," in Journal of Legal Pluralism, vol. 36 (1996), pp. 206-207.
9. Obler, "The House Property Complex," p. 348.
10. In Kenya, the constitution recognizes several systems of law. Different communities in Kenya, both ethnic and religious, have their own applicable laws that govern people's lives on a daily basis. Dispute settlement under customary law can be engaged at the level of family, the clan, the village or the formal Kenyan court system. Some scholars argue that the application of customary law in Kenya is limited and often reversed. See S. Hirsch, "Kadhis Courts as Complex Sites of Resistance: The State, Islam and Gender in Postcolonial Kenya," in M. Lazarus-Black and S. Hirsch eds., Contested States (New York: Routledge, 1994), pp. 108-115. I would argue that there is little evidence of this. Indeed, the state's ambivalent attitude to gender struggles and equity laws strongly ensures that customary laws will continue to thrive in Kenya.
11. This Act of 1872 is derived from British Common Law and has been accepted law in Kenya since the end of the colonial period. Significantly, this Act eliminated all previous laws that submerged a married woman's identity in that of her husband, thus enabling him to claim a right to all his wife's property. A wife's claim (under the same common law) to a portion of her husband's property was, however, retained. The Married Women's Act represents an implementation of the "rights" tradition that exists within the liberal mandate, that is, the pursuit and possession of individual private rights to property. The Act was of crucial significance because it legally created separate property for Kenyan married couples, thereby containing male appropriation of female-created property. Kenya committed itself, at least in principle, to Western modernity (modernity as utilized in this paper is understood as a force that is Eurocentric in its foundations and embedded in those unique economic relations required for the practice of capital development.
12. The reality is that most Kenyan women continue to register valuable property in the names of husbands or male relatives. At the division of marital property upon divorce, the value of a wife's contributions to the household are often unrecognized by law. Even modern forms of property, such as wages, money, businesses, buildings, bank accounts or shares, are frequently also perceived as male property. To condemn the Married Women's Act, however, is difficult for, given the exigencies of property struggles between married women and men, the Act is sometimes successfully used by women to transcend male objections to female rights to property.
13. F. Von Benda-Beckmann, "Scapegoat and Magic Charm: Law in Development, Theory and Practice," Journal of Legal Pluralism, vol. 28 (1989), p. 138.
14. What is most striking about customary law and practices is their power to overrule statutes irrespective of state law (Judicature Act) which legislates that, when they exist, statutes take precedence over customary laws. Indeed, there is substantial evidence with regard to the Kenya Law of Succession Act (1981) which is often superseded by customary laws of patrilineal inheritance. See D. W. Cohen and E. S. Otieno-Odhiambo, Burying S. M.: The Politics of Knowledge and the Sociology of Power in Africa (Portsmouth: Heinemann, 1992);
15. J. Muteshi, "Women, Law and Engendering Resistance: A Pedagogical Project" (Ph. D. dissertation, University of Toronto [1996];
16. and B. Rwezaura, "From Native Law to Customary Law: The Changing Political Uses of Customary Law in Modern Africa," in J. Aleck and J. Rannells, eds., Customs at the Crossroads (Papua New Guinea: University of Papua New Guinea Faculty of Law, 1995), pp. 207-225.
17. See P. Okeyo, "Daughters of the Lakes and Rivers: Colonization and the Land Rights of Luo Women," on M. Etienne and E. Leacock eds., Women and Colonization: Anthropological Perspectives (New York: Praeger, 1980), pp. 186-213,
18. and S. Wanjala, Land Law and Disputes in Kenya (Nairobi: Oxford University Press, 1990), p. 14.
19. See Muteshi, "Women, Law and Engendering Resistance."
20. See Oboler, "The House Property Complex."
21. Muteshi, "Women, Law and Engendering Resistance."
22. See E. Cotran, "M'Mukindia, s/o M'Ikibuthu v. Mparo d/o of Kimuru" (Court of Review), case no. 25 of 1964," in Eugene Cotran ed., Case Book on Kenya Customary Law (Nairobi: Professional Books and Nairobi University Press, 1987).
23. An example is the term "hearthold," what Paula Okeyo called "ot," which speaks to this phenomenon of African women's space. See Okeyo, "Daughters of the Lakes and Rivers"; or what Rigby called "matricentral units" of a wife and her children, also a system of property holding and inheritance with rights and responsibilities (see P. Rigby, Nomadic Societies).
24. Obler, "The House Property Complex," p. 353.
25. This perception is particularly strong and is frequently voiced by almost all classes of Kenyan women in relation to rural-based land ownership and livestock ownership (fieldwork, 1992). Interestingly, contemporary Kenyan women have responded, often successfully, to such customary law restrictions by restoring their womanist communal organizations or networks that they have redeveloped and transformed into a mode for integrating themselves into community development and for capital accumulation. In this way, they seem able to safely purchase land or livestock.
26. Kamena, Kitui Kenya, fieldwork, May 1992.
27. See note 55.
28. S. Hirsch and M. Lazarus-Black, "Introduction/Performance and Paradox: Exploring Law's Role in Hegemony and Resistance," in M. Lazarus Black and S. Hirsch eds., Contested States (New York: Routledge, 1994), p.5.
29. The idea of a married couple's pervasive interests is much more typical of "modern," rather than traditional, familial discourses. It is with the inventions of "customary law" and the adoption of Western style marital practices that married women have come to be vulnerable to male interests with their own interests erased or minimized. Writing in the nearby Tanzanian context, Jeanne Henn in "Women in the Rural Economy: Past, Present, and the Future," M. J. Hay and S. Stichter eds., African Women: South of the Sahara(London and New York: Longman, 1984), p. 6, has said: The power of "custom" can thwart a woman's attempt to gain economic independence. In the late 1970s, a man convinced the management committee of a village communal farm to turn over his estranged wife's annual earnings to him even though he himself had been living in and working in another village with his second wife. On the other hand, a quarter of the Kenyan urban women in Florence Butegwa's study
30. ("Creating Awareness among Kenyan Women of their Legal Rights," Canadian Women Studies, vol. 7, no. 1/2 [1986], p. 71) said that they would give up their salaries to their husbands if they insisted.
31. See M. Chanock, Law, Custom and Social Order: The Colonial Experience in Malawai and Zambia (Cambridge and London: Cambridge University Press, 1985);
32. T. Ranger, "The Invention of Tradition in Colonial Africa," in Eric Hobswan and Terence Ranger eds., The Invention of Tradition (Cambridge: Cambridge University Press, 1983), pp. 211-262.
33. S. F. Moore, Law as Process: An Anthropological Approach (London: Kegan Paul, 1978),
34. like M. Chanock's Law, Custom and Social Order, uncovers how the "customary" law of the Chagga of Tanzania was "a product of historical interaction."
35. See Ranger, "The Invention of Tradition," p. 62.
36. Ranger, "The Invention of Tradition," p. Ibid., p. 254.
37. Conti, cited in African Women., p. 14.
38. Ranger, "The Invention of Tradition," p. 211.
39. See Chanock, Law, Custom and Social Order, and Ranger, "The Invention of Tradition," p. 258.
40. Caroline Ifeka-Moller, cited in Ranger, "The Invention of Tradition."
41. Ranger, "The Invention of Tradition."
42. See Chanock, Law, Custom and Social Order,
43. and Ranger, "The Invention of Tradition."
44. B. Rwezaura, cited in A. Armstrong et al., "Uncovering Reality: Excavating Women's Rights in African Family Law. Women and Law in Southern Africa Research Project," in International Journal of Law and Family, vol. 7 (1993), p. 325.
45. Hirsch and Lazarus-Black, "Introduction/Performance and Paradox," p. 16.
46. Cotran, "M'Mukindia s/o M"Ikibuthu v Mparo d/o of Kimuru," p. 109.
47. Moore, Law as Process.
48. In modernity, the situation is in fact exacerbated because "modernization," development aid and state policies have continued to reiterate the recognition of men as heads of farms and households, thereby reinforcing the margmalization of women in agricultural economies and their differential access and ownership of farming resources.
49. Cotran, "M'Mukindia s/o M"Ikibuthu v Mparo d/o of Kimuru," p. 110 (emphasis added).
50. ibid.
51. This is the case, not only under customary laws but for "modern" property laws as well.
52. It has been empirically shown that Kenyan women's involvement as managers and custodians of resources continues to be inadequately reflected in legislation, policies and programs. See S. A. Khasiani, ed., Groundwork: African Women as Environmental Managers (Nairobi: Acts Press, 1992). Given these omissions, the recipients of techonological, educational and monetary intervention in Kenya's agricultural economy have therefore, rarely or adequately been women.
53. SAP biases against the small farm producer have led to their increasingly limited access to technological and financial inputs and credits.
54. See note 26.
55. An appeal was filed concerning customary law, and this time the District Magistrate's Court provided instances when divorced and "barren" Meru women had been granted livestock in the past by the Meru courts. The District Magistrate thus allowed Mparo ownership of the cattle. But the higher Court of Review would later dispute this judgment, calling it a "breach" in custom (see Cotran, "M'Mukindia s/o M'Tkibuthu v Mparo d/o of Kimuru," p. 111.
56. think such breaches are in fact very common, for some judges are willing to retain an understanding of indigenous legal practices as "unwritten, irregular, and highly negotiable (see Rwezaura in Armstrong et al., "Uncovering Reality"). For, although the recording of Kenyan customary case law began very formally in 1960, under Jurist Eugene Cotran, these recordings, known as restatements of the law, have only been considered as guides if Kenyan courts choose to use them, since customary laws have not been enacted as statutes in present-day Kenya. There remains, however, an inadequate reporting of case law.
57. Married Women's Act; see note 10.
58. Issues of ownership and inheritance with regard to livestock, land and certain agricultural production tends to be situated outside the purview of existing Kenyan equity laws. Yet, these capital accumulations are a consequence of the money economy. There is a further contradiction: customary laws are not to be applied to modern forms of property, for example, property needing registration (see G. Muigai, "Women and Property Rights in Kenya,' in Mary A. Mbeo and Ooki O. Ombaka eds., Women and the Law in Kenya [Nairobi: Public Law Institute, 1989], pp. 113. 122). The consequences have allowed for potentially discriminatory, unequal effects and confusion. It is really very unacceptable that the very basis for survival (agriculture) for most African communities has not been seen fit to be guided by policies that speak to the oppressive and changing social circumstances and economic relationships among Kenyan men and women.
59. I have in mind here the Married Women's Act of 1872, under which women could, for example, make claims to property such as urban real estate, There is also the Kenya Law of Succession Act (1981) which, for the first time, granted daughters, like sons, equal entitlements and inheritance rights to their father's estate. However, this Succession Act placed limitations on the disposition of agricultural property, which would end up producing engendered effects. See also note 49.
60. Cotran, , "M'Mukindia s/o M"Tkibuthu v Mparo d/o of Kimuru," p. 111, emphasis added.
61. Ibid., p. 112
62. Ibid., p. 115.
63. This is a contradiction because African women have always participated in the creation of family wealth. There is no consistent opposition to Kenyan women's actual participation in the marketplace, for this activity is imperative for the welfare of so many African families. It is the fruits of the labor of Kenyan women and the wealth that their labor has generated that are controversial, creating conflicts and disputes.
64. The articulation of capitalism with male-centered discourse and the resultant detrimental effects upon women are, of course, not well known in the "women and development" scholarship.
65. H. Papanek, "The Ideal Woman and the Ideal Society: Control and Autonomy in the Construction of Identity," in V. M. Moghadam ed., Reassertions and Feminisms in International Perspectives (Boulder, CO: Westview Press, 1994), p. 47.
66. Some Kenyan examples include Oxford Legal Literacy Partners, The Women's Rights Awareness Project of the Women's Bureau, in conjunction with the Public Law Institute, Kituo Cha Sheria, FIDA Kenya, and Women's Resource Center of Kangemi.
67. Griffiths, "Between Paradigms," pp. 203-204.