Women and property: Here’s how tech can help resolve land disputes

Faith Alubbe

While women’s rights to land and property are protected under a number of laws, women are still struggling to get what is rightfully theirs 60 years after independence. (Inset) Kenya Land Alliance Faith Alubbe.

Photo credit: Kennedy Amungo | Nation Media Group

For close to two decades, Faith Alubbe, a human rights lawyer, has worked around the property sector, often championing change of laws or fighting for marginalised demographics. Faith is currently the CEO, Kenya Land Alliance (KLA), a body formed in 1999 to address various land issues. Its mandate includes strengthening communities' voices, improving land governance and ensuring equitable distribution of resources. KLA has been at the forefront in fighting for the land rights of marginalised groups, and is set to launch a digital platform through which women can report injustices related to land and access justice. Faith discusses why women are still struggling to get what is rightfully theirs 60 years after independence and why technology can bridge the gaps between the law, culture and broken justice systems.

How did you get involved in Land Rights affairs?

I got involved as a young lawyer working for Federation of Women Lawyers (FIDA) back in 2008. For a long time, women’s land rights issues were never considered when we talked about matrimonial property. Women were not considered as having contributed to property acquisition because most of them did not have the economic capacity back then. When the Matrimonial Property Act conversation began, I was propelled into property issues.

During the making of the 2010 constitution, FIDA, alongside other Civil Society Organizations, pushed for chapter 5 which covers Land and Environment matters. FIDA's interest was to ensure women's rights were well-positioned in the land and environment discourse. Considering article 27(c) talks about non-discrimination based on gender, we were of the idea that even if a woman has daughters, they are entitled to inherit property.

We also spoke about article 40 whereby any Kenyan, (including women) has a right to own property. Under article 45 we talked about equality in marriage. As long as one is married, they should have a say in property matters because contribution can be indirect or in kind even when one does not have a job or a business. Then there is article 68(c) which speaks about matrimonial property- we pushed while I was at FIDA until it was enacted in 2013. But we felt that it was not enough because there was still controversy around communally held land which was governed by traditional justice systems. We pushed to have women as part of these systems but we still had issues having them included into these systems at the community level. I didn’t know that as I worked on the property issues as a young lawyer, I was slowly getting immersed and it was becoming of interest to me.

When I moved to the Kenya Human Rights Commission, we picked up the debate on community land and we said that women have to be involved in the management of communally held land. In the Community Land Act passed in 2016, section 15 talks about women being involved in land governance. But further to that we realised that the law of succession excluded women from life interest, yet men can enjoy it. We started pushing for amendments in the law of succession acts, which got me at Kenya Land Alliance. In 2021 there was an amendment on the Succession Act and now both men and women can enjoy life interest.

Another thing that got me interested in land rights is the Mau Mau case. I was the officer when we were pursuing the Mau Mau compensation in the UK. We had 5, 528 claimants, and when we won that case, it was a big win for me. As the officer and the lawyer supporting this case, I had done a lot of research around land and colonial legacies. It took me close to seven years to get that case out and we came back with 2 billion pounds for the veterans. There is a memorial at Uhuru Park which acknowledges this. I am currently in my eighteenth year interacting with different legal issues around land rights and property.

What an interesting journey. What are the most pressing issues that still need to be addressed when it comes to land rights?

The first one is tenure issues. Our laws are colonial legacies. Take for instance the way our country is zoned. It was done through colonial reports and documents like the Devonshire White Paper of 1923, the Carter Commission Report of 1934, the Million Acre Fund and the likes. Seventy percent of Kenya is unregistered community land and the people who live on this land do not have tenure or any form of security. We also have communities under urban tenure. These are communities that were displaced and brought to cities like Nairobi to offer cheap labour in the industries, they do not have secure tenure. A good example is the Nubians and communities in Pumwani.

We also have a problem with multiplicity of laws. We have so many laws affecting one thing. These fragmented laws need to be harmonised. Distribution of land is also a challenge. The maximum and minimum acreage one can own is in the constitution, but there has never been a proper legal framework to address it.

We cannot ignore land and corruption which pave way for abuse of power, illegal funding, irregular allocations and the question of compulsory acquisition (when the government needs to acquire land for development purposes). Communities are barely involved when there is compulsory acquisition. The mechanisms and the threshold for public participation are not very clear where land is concerned.

The last issue is the integrated rights with land. Land is not just an economic tool. There is non-monetary value attached to it. It bears our identity, history, belongings, graves and shrines. When people are letting go of land these factors are not considered and that eventually leads to land-related conflicts.

Women are quite marginalised on matters land rights. What challenges are they facing?

Women have their rights covered in various clauses in the constitution, but traditionally, women have been locked out of land acquisition. Many communities still disregard the laws when it comes to giving women what is rightfully theirs. Illiteracy is also an issue among some of the women and this prevents them from claiming their rights. The more literate you are as a woman determines how well your interests will be protected. Even the ones who are literate may not be fully aware of their rights. Then we have social challenges where women still want to belong. For instance, married women may face a dilemma between fighting for their rights and accepting injustices for the sake of peace, especially when their in-laws (who may be denying them their right to own property) paid for their bride price.

There are a lot of issues in succession (matrimonial and inheritance for girls). Some women still believe that the law does not allow them to inherit property. Many cultures prohibit girls from inheriting their parents' property, yet originally, most traditions covered women in inheritance through traditional justice systems. Common land was left for women, but along the way a number of factors led men to divide land up to the last bit. These factors include greed, population growth and the fact that women could not fight for their rights.

On matrimonial properties, the law is very clear that spouses are supposed to inherit what their partners leave behind, but marriages are dynamic in Kenya. Some women get coupled up and live with their partners for decades, get children and acquire property together without registering their union, and to them that is marriage. In summary, matrimonial property rights and inheritance are the two biggest issues when it comes to women land rights because are they are directly affected by attitudes and traditions.

Tell us about the app Kenya Land Alliance is using to help women access land-related justice.

The app is called Haki Ardhi. It is a women’s land rights reporting tool. Women can either use the app or send an SMS to the toll free SMS platform on 23583. We collaborated with two partners, Topfer Muller Gassner (TMG) and Rainforest Foundation UK (RFUK) to develop the app.

The reason for developing the app was first based on the fact that land-based legal issues are very sensitive. Through the app, a woman, in the privacy of their home, can text her problem, those involved, and how far she has gone in getting help, the offices she has visited and the help she has received.

The issues reported are diverted to various referral systems and partners like Law Society of Kenya and Alternative Dispute Resolution entities. Haki Ardhi aims to serve several objectives. This tool will help us quantify and gather data to establish the kind of challenges women are dealing with. With such data, we can advocate for more budgetary allocations from counties to deal with women’s land rights issues.

The app will also help us identify the right measures for different problems. Many women believe that all (land) issues should be solved through formal legal justice systems yet there are different kinds of solutions. Some challenges require new policies to be introduced and others can be resolved through mediation. For instance, in Taita Taveta County, some of the women came from Tanzania and were married in Kenya. They are left out of matrimonial property because they are still treated as outsiders despite achieving the threshold for citizenship.

Through the app, women are also learning about legal compliance and some of the digital spaces where their rights are spoken about or addressed. When we ask simple questions like “Do you have an ID or an E-Citizen account?”, it’s a prompt for them to learn more. The official launch is in June, but we started piloting last year November. The piloting was done in Kakamega, Nairobi, Nakuru and Taita Taveta.

Are there interesting patterns you’ve noticed so far, from the data?

For each of the counties, women are facing issues related to historical and population challenges within the county. For instance, in Kakamega, the population is growing and land is becoming scarce, so women are the obvious victims as people begin to divide what’s available. In Taita Taveta, most of the land is communally owned and women are left out because land is registered under family names. In Nakuru, historical land injustices tied to colonial legacies are quite prevalent. In Nairobi, land tenure seems to be the most prominent challenge.

Other than that, it is clear that most women are reporting issues that can be easily resolved. For instance, a succession letter can be given by the area chief but women are unable to get such. We are noticing issues to do with abuse of office. There is also lack of awareness, cultural attitudes and lengthy legal processes whereby cases have dragged on for so long that women almost lose hope.

How is the general reception from the women?

They have been very open to the platform. Their only concern is their privacy and data protection. They want confidentiality such that their information does not leak, especially to their adversaries. We remind them that confidentiality is part of the platform and they are identified by a number, not their name.

What other digital tools can women explore to access justices?

It’s important for women to be aware of government’s digital processes because everything is moving toward digitisation. Platforms like Ardhi Sasa and E-citizen are supposed to help us access government services faster and privately without human interaction. Entities and people who support communities need to work on increasing digital literacy. This will reduce and eventually eradicate abuse of office and improve access to justice.

We’ve had a lot of progress as the laws change and literacy levels are also improving, statistically, are more women beginning to own property?

Kenya Land Alliance did an audit at the Land Registry at Ardhi House of the 3.2 million titles that the former president, Uhuru Kenyatta, issued between 2013 and 2017. The data analysis revealed that 1 percent of those 3.2 million titles had female names, 6 percent had a female and a male name and the rest had male names. The practice right now as I see it, most women are demanding for their names to be in titles. In addition, banks are demanding that spouses to be made aware if one takes a loan to buy land, that way, women can account for their indirect contribution to land acquisition. We also have spousal consent forms that buyers want to see during land transactions such that a husband cannot dispose of matrimonial property without the knowledge of his wife. We also have another interesting trend whereby women are buying property through chamas. Pooling resources to buy property as a group has pushed the percentage of women owning land up. But we still need data from multiple sectors to quantify the growth.

Any final words to women reading this?

I normally tell women not to abdicate their role of monitoring and evaluation because there are NGOs, the Media or policy makers. Women need to be at the forefront in their fight for justice and do so in unison. If you see women in the next village struggling with matters similar to yours, work together to raise your voices. If you see an injustice, call it out as an injustice. Having a fragmented discourse works against us.