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1) Customary land tenure systems in sub-Saharan Africa, including Kenya, contribute to insecure land rights for women. 2) This undermines economic development and leaves female-headed households more vulnerable to poverty. 3) The 2010 Kenyan Constitution aimed to promote gender equality in land rights, but implementation has been lacking, perpetuating problems like land grabbing that undermine women's livelihoods and food security.

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Strengthening Women’s Land Tenure Security in Kenya in the Context of the 2010 Constitution and Subsequent Reforms Elijah Scott Teaching Assistants: Eilidh Geddes and Megan Ernst Fall 2014
Introduction Customary tenure systems, forms of land ownership in which land is administered according to customs and indigenous culture rather than statutory law, account for 90 percent of land managed in sub-Saharan Africa (Lawry). These tenure systems contribute to insecure land rights for women because statutory recognition of ownership is not granted to women; thus, land grabbing, which is particularly common in areas with a relatively large number of female-headed households, undermines the rights of women, of whom orphans and widows are the most vulnerable. Moreover, unequal land tenure rights for women undermine rule of law in local communities and stymie economic and intergenerational development. Because women do not have equal access to land and productive resources, agricultural output in developing countries is losing out on a gain of output by as much as 2.5 to 4 percent, a boost that would greatly increase the GDP of the agricultural-based economies (Renvenga & Shetty 41). The effects of insecure land tenure are particularly evident in Kenya, where the 2010 Constitution and subsequent land legislation promoting the nominal equality of women have yet to be translated into effective practice at the localized level, which includes over three-quarters of Kenya’s population (Espinosa). As AIDS continues to increase the number of female-headed households and insecure and gender-biased property rights persist, more female-headed households in Kenya live below local poverty levels than do male-headed households (Strickland 15). This paper analyzes women’s land tenure security in Kenya in the context of the 2010 Constitution and subsequent reforms and seeks to generate an effective policy solution to end the continuation of unequal land rights for women. Three policy alternatives are evaluated, each targeting one of different intervention points; these alternatives include voluntary party quotas, public awareness and education campaigns, and land titling task forces This paper concludes that while addressing the lack of political participation for women and combatting land grabbing are useful tools to promote women’s land tenure security in Kenya, the most effective policy solution judging from the criteria in this analysis is the scaling of an education and public awareness campaign. Background The first constitution of Kenya was written by the colonial government of the United Kingdom in 1962 and disregarded the national self-determination of its colonial citizens (Dudziak 775). As a result, an institutionalized system of corruption, patronage, and poor governance emerged from this original constitution. Popular support for constitutional reform began in the 1980s in Kenya. After a referendum for a seemingly hollow constitution failed in 2005 with only 42 percent of the population in support, a new constitution was finally instituted in 2010 with 67 percent of voter support (Cottrell & Ghai 2007). The recent adoption of a liberal constitution has coincided with the general trend of increasing constitutionalism in the processing in modernizing African countries. In fact, since 1990, more than 40 new constitutions have been adopted throughout sub- Saharan Africa (“Comparative Constitutions Project”). Scrutiny over the importance of constitutionalism in the context of traditionally weak institutional and legal structures at the whim of authoritarian regimes in Africa has arisen, but the
trend in adopting modern constitutions has contributed to an increasing institutionalization of democratic governance structures (Peter 2007). The 2010 Constitution promulgated liberal reforms for protecting the rights of women and marginalized groups, most of which will be enumerated later in this paper. Additionally, the new constitution established mechanisms for the devolution of political and administrative power to the newly-created county governments in an effort to more equally distribute power between the central government and the counties. The devolution of power in the Kenyan government is integral to the success of any policy concerning grassroots or localized influence because the points of intervention are at the local level. Policies to implement the rights enumerated in the Constitution are more effective with a more equal balance of power in the county governments. It is important to note that while the enumeration of rights is important, the policies described in the 2010 Constitution can be considered aspirations for its citizens; thus, the success of actualizing such aspirations will be heavily dependent upon the policies that are created for effective implementation (Okech et. al.). Symptoms Despite efforts to enumerate reforms in the 2010 Constitution and translate the following legislation into realized aspirations, the symptoms of women’s insecure land tenure persist in the form of economic, health, and social consequences. Economic consequences are linked to the patriarchal customary practices and continue to disproportionately affect women. Health and social symptoms of the increased instance of land insecurity for women are interrelated and factor in aspects of food production, women’s political and community involvement, and cultural practices that facilitate the spread of HIV/AIDS Economic Property grabbing occurs when a woman loses land ownership because of the loss of her male relative to the land, whether loss of a male relation occurs through divorce or the death of her husband or father. Property grabbing continues to occur after women get divorces or after the death of a husband. Succession and inheritance rights are governed by customary norms. In a USAID study conducted in Uganda, 29 percent of widows claimed to be victims of property grabbing, and this trend will continue if the status quo prevails (Mak 156). When property grabbing occurs, the land is often stolen from orphans and widows, those people in society who have already been disadvantaged by the death of a parent of loved one from HIV/AIDS. The death of a male relation can disadvantage women by leaving them with one less human to work the land, but vulnerable widows and orphans are often subjected to losing their land, a process that further entrenches them in poverty. Not only does property grabbing have negative economic consequences, but it also undermines the rule of law and the importance of statutory law in local communities. Health/Social As property grabbing occurs to women with insecure land tenure, both productivity of output and caloric variety of victims’ diets stagnate. The Food and Agriculture Organization of the United
Nations recently claimed, “gender equality… is the single most important determinant of food security” (Espinosa “Africa”). Insecure property rights for women play a paramount role in inhibiting food security in sub-Saharan Africa. Women produce between 60-80 percent of the food grown in developing countries, but they own only two percent of the land. Because women are often more responsible spenders and are more likely to spend their income on food for their children than are men, the fact that women do not have secure property rights in regards to land undermines the nutrition and health of the future generation. There is a positive relationship between the amount of assets a woman possesses at the time of marriage and the share of expenditures devoted to food, healthcare, and education, all of which contribute to greater living conditions and food security for children (Giovarelli & Wamalwa 1). A study conducted in Uganda best illustrates the relationship between women’s land tenure security and food security. When female farmers did not have secure or independent rights, they never let the land lie fallow during optimal periods because they believed that their husband or male relation, the person who owned the land officially, would decrease their access to the land if they left it fallow. In this situation, the land was overworked and not wholly efficient; as women overwork the land in order to maintain a tenuous land access relationship, income and productivity fall, further threatening women’s access to the land and contributing the cycle of overworking land (Giovarelli & Wamalwa 2). Insecure land rights for women contribute the broader problem of the political and social marginalization of women in patriarchal villages in Kenya. In developing countries at large, property rights and access to land serve as a prerequisite to access to social institutions such as household decision-making and community-level governance. Additionally, women often have no participation in the sale of their land because the land is registered in their husbands’ names; in this way, women not only lack participation in community governance, they lack proper involvement in the management of household resources (USAID). Access to land and education of community elders, however, seems to alleviate such problems, as was shown in a Landesa pilot project in which the strengthening of women’s land tenure preceded the first ever representation of women elders on community councils in the Maasai and Kalenjin communities of Kenya (“Projects”). The former lack of representation of women in community-level governance institutions elucidate the oppressive nature of insecure land rights for women; without secure access to land, women cannot have effective political representation, and without effective political representation, women cannot enact the policies that will end their cycle of insecurity and poverty. Along with the social consequences, property grabbing from women often leads them to engage in risky sexual behaviors in order to fulfill the patriarchal demands necessary for them to maintain their usage rights over their land. After women lose their land due to property grabbing or the death of their husband, they must often resort to risky sexual practices such as wife cleansing and ritual practices in order to even use the land on which they formerly resided (Strickland 17). Wife cleansing, or widow cleansing as it is sometimes called, is a ritual practice in which a man from a widow’s village or her deceased husband’s family forces the widow to engage in sexual acts with him. This forced sex supposedly allows her deceased husband’s spirit to experience freedom in a cosmic afterlife.
This tradition also contributes to the spread of HIV/AIDS because HIV will often be passed to the wife through the former husband, and then the woman may transmit the virus to the man with whom she is forced to have sex. Moreover, in Western Kenya, the tradition of widow inheritance, a process by which a widow is required to marry a man who is kin to her deceased husband, is particularly common, and the correlation between the incidence of HIV/AIDS and the prevalence of the practice is high. In the Nyanza province known for the tradition of wife inheritance, for example, over 15 percent of the population is HIV-positive as opposed to the average adult HIV prevalence in Kenya of 6.1 percent (“Kenya”) (“Statistics”). Causes There are several factors that cause the persistence of a system of land reform that disadvantages women. Many of these factors stem from the cultural and colonial history of sub-Saharan Africa, but cultural stigmas attached to HIV/AIDS in modern times have increased the insecurity of women’s land ownership. The economic situation of both poor women and men in Kenya has facilitated land grabbing, and the low level of access to productive resources for women stymies their influence in household decision-making. Cultural Although women have the statutory right to inherit land in Kenya, customary practice typically undermines this right because women’s land rights are derived from their male relations (Mak 150). Even the process of gender-blind land registration in Kenya was undermined by patriarchal influences in that titles denied women usufructuary rights, the sharing of the ability to use and profit from land, and avoided protecting a women’s ownership in the event of their husband’s death (Cooper 9). Colonial rule ingrained practices that inherently disadvantage women into the customary norms of Kenyan communities. Prior to British colonization, most communities in Kenya operated in patrilineal land tenure systems in which land ownership and access was dependent upon clans, lineages, and families. Although there were some instances of matrilineal property ownership, sons typically inherited property, and male leaders exercised primary rights to own and utilize the land. However, in the pre-colonial system, safeguards and protections were established for women such that divorced, widowed, or separated women still had access to the land after their ties to their male spouse were relinquished. In fact, such safeguards were even subject to judicial support to where women who were denied land access could appeal. The colonial system continued the male dominance over land ownership, but the British removed the safeguards that had been instilled in the communities for centuries (Kimani). In fact, the British system in Kenya formalized the patriarchal influence on land tenure and granted men greater authority in making decisions regarding land use and access. Legal dualism, the system by which customary law and statutory law are applied in a patchwork fashion across different regions, has persisted on the account of colonial legacy such that in customary practice, despite statutory limitation against it, men are able to sell their land without consulting their spouses or families (Mak 151). The strain that the high incidence of HIV/AIDS places on the people of sub-Saharan Africa has led to the evolution of modern cultural practices that especially disadvantage women in the context of property ownership. This strain is especially acute in the property grabbing that occurs
amongst widows and orphans of AIDS-related deaths. In a study conducted in Uganda, 1 in 5 orphans claimed that they had their property seized after the death of a parent (Mak 156). Fear and mystery surrounding HIV/AIDS also leads many in-laws to evict a spouse after an AIDS- related death, and such fears undermine the proper land security of women in these scenarios. Empirically, a study in India concluded that 90 percent of widows interviewed had evicted from their marital home by in-laws for fear of the women being HIV-positive and having caused the man’s death; additionally, 79 percent of the interviewed women claimed that they were denied a share of the husband’s estate over the stigma attached to being a widow as a result of HIV/AIDS (Giovarelli, Richardson, and Davis 4). Economic Lack of access to productive resources and secure land tenure leads to a subsequent lack in market access for women both in economic markets and sociopolitical arenas. Studies have shown that women’s ownership of land can lead to improvements in women’s economic welfare and productivity, and access to land may allow women to leverage bargaining power in the markets for productive resources as well as in the markets for sociopolitical empowerment (Cooper 2). Moreover, women who are asset-poor or have unstable incomes have less bargaining power within the household, and this decreased agency extends to distribution of household resources as well as over safe sexual practices. Impoverished women are then stuck in a cycle of poverty where their lack of ownership of resources precludes their ownership over other resources and also increases their likelihood of engaging in risky sexual behaviors. In turn, risky sexual activity may lead to the contraction of HIV/AIDS and further impoverished conditions for women through social ostracization (Giovarelli, Richardson, and Davis 2). Underutilized female labor in sub-Saharan Africa has led to massive productivity losses, both for women now and for future generations. Women now represent 43 percent of the agricultural workforce, and eliminating barriers that prevent women from working in certain sectors would reduce the gender productivity gap by one-third to one-half as well as increasing output per worker by up to 25 percent in some countries. Because women often lack control of an equal amount of household resources as men, income is less likely to be spent on children’s food and education, a consequence that further entrenches families in poverty (Revenga & Shetty 41). Current Policies Current policies have sought to rectify the secondary legal status of women in terms of land ownership, political participation, and marriage. The 2010 Constitution became the rallying cry for those whose aspirations included elevating the status of women, and subsequent legislation has served to clarify or implement passages of the Constitution. It is still unclear over whether or not the aspirations of the Constitution will be translated into localized reality because not enough time has passed in order to effectively evaluate the changes, but non-governmental policies have been utilized alongside bureaucratic restructuring to expedite the process of reform for women in Kenya. Policy 1: 2010 Kenyan Constitution The 2010 Kenyan Constitution, adopted through a 2012 referendum, promoted increased land rights for women, including the rights to own and inherit land and to exert joint control of marital household resources. The constitution also prohibited discrimination based on marital status and
establishes gender quotas for elected positions, reserving one-third of seats in lawmaking bodies for women (McGregor & Clark). Specifically, the new constitution mentioned women seven times and states that “all State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women…” (“The Constitution” 20). Parliament is also now required to promote the representation of women in governmental entities, and the quotas include sixteen women in the Senate and forty-seven women in the National Assembly out of a total of sixty-seven seats in the Senate and 349 seats in the National Assembly (“The Constitution” 61-63). Many fear, however, that this experiment in granting more rights to women may fall short of expectations if there is no local buy-in (“The Constitution”). Landesa, a rural development nonprofit organization, is currently trying to prevent this by holding community information sessions within clans that are traditionally opposed to the equal status of women. Thus far, Landesa has worked with the Maasai people in the Kenyan highlands, but outreach needs to be continual to achieve universal local buy-in. Landesa’s policies have been relatively successful and include drafting local constitutions for communities that mirror the rights enumerated in the new national constitution (Espinosa). However, because more than three-quarters of Kenyans live in rural areas, normative changes will have to take root in a widespread fashion to facilitate the success of the constitutionally granted rights. In this way, the efficacy of realizing women’s improved rights through the constitution has been a mixed bag (McGregor & Clark). Policy 2: National Land Policy The National Land Policy of 2009 sought to streamline the formerly patchwork set of regulations on land tenure in Kenya into a rationalized document and sought to reform existing failures that the government saw in its system of land tenure. The document recognizes the flaws inherent for women in the customary tenure system. It acknowledges that this problem persists because women are not sufficiently represented in institutions that pertain to land and are not properly registered with respect to land titling. Additionally, the National Land Policy points out the fact that while Kenya has ratified international conventions on women’s land rights, these conventions have failed to materialize as enforceable policies. This document maintains that in order to rectify the above problem, the Government of Kenya must enforce existing laws, emphasize joint spousal registration and documentation, secure inheritance rights of unmarried daughters, generate public awareness of the policy-implementation gap, and ensure proper representation of women in land-focused institutions such as the Kenya Land Commission (Kenya 51-52). In reference to unequal matrimonial property rights, the National Land Policy seeks to repeal the Married Women’s Property Act of 1882, which disproportionately left divorced women impoverished because their marital property rights were relinquished upon divorce. In contrast, the National Land Policy was codified with the intent to introduce a more balanced policy to secure matrimonial property rights for women whose economic contribution cannot be quantified. Accordingly, the new policy will seek to create equal property rights to matrimonial property for both men and women. Lastly, the policy intends to establish mechanisms that allow women to have more representation in the sale and mortgaging of their matrimonial property (Kenya 52). The National Land Policy of 2009 is an act of reform, and the effective translation of this broad amalgamation of policy into localized change will be difficult. However, the
National Land Policy of 2009 has set into motion the wheels of reform such that many of the goals of the overarching policy are currently being made into law, as evidenced by the passage of the National Land Commission Act of 2012. Policy 3: National Land Commission Act The National Land Commission Act of 2012 allowed the Government of Kenya to form a National Land Commission, which works in conjunction with the Ministry of Lands, Housing and Urban Development, and county-level land institutions, that will be the key agency in determining land-related policy. The National Land Commission has created a five-year National Strategic Plan that will focus on the implementation of the policies enumerated in the National Land Policy. The focus areas will be the devolution of land management to the county level, reform of land registration and titling, and the effective resolution of land disputes. Policy 4: The Matrimonial Property Act The Matrimonial Property Act of 2013 replaced the problematic Married Women’s Property Act of 1882, a law that protected women’s marital property interests except in the case of divorce. The Act of 2013 statutorily defines matrimonial property and separate property and states that matrimonial property shall be divided according to each spouse’s contribution to acquiring the property between spouses upon the dissolution of a marriage. The definition of a “contribution” includes both monetary and non-monetary aspects such as domestic work, childcare, and companionship as well as business management and agricultural labor. Policy 5: The Land Registration Act The Land Registration Act of 2012 endorses joint titling in order to protect the property rights of women in the case of divorce or death of one’s husband. The policy specifies that if one “spouse obtains land for the co-ownership and use of both spouses,” then legal recognition is afforded to both spouses as joint tenants (“The Land Registration Act” 45). Moreover, spouses who are not included in the title are afforded “interest rights” if that spouse provides for the upkeep and improvement of the land; these interest rights provide for the protection of the usage of the land for women if they are not formally included in the title for ownership. The extent to which these interest rights will prove important to the empowerment of women has yet to be demonstrated (“Current Legal Framework”). Nonetheless, the secondary rights, those associated with user rights but not necessarily proprietorship, of property ownership have often been tenuous, and this policy seeks to promote joint titling as well as a more formalized establishment of secondary rights for spouses (Rutten 8). However, low literacy rates may be a factor inhibiting the current implementation of this act, according to the Kenya Land Alliance (10). Policy 6: Landesa Justice Project Landesa has been working with USAID since 2010 to ensure local awareness of the reforms of the 2010 Kenyan Constitution. The project, according to Landesa, has enacted change in the rural communities by reducing rates of violence against women and increasing economic empowerment. Additionally, Landesa reports that women are being elected to councils of elders, the customary institutions that resolve land disputes at the community level. The project consisted of a curriculum for members of the community including elders, women, and children explaining the new laws regarding land rights in Kenya’s Constitution. Landesa also conducted public speaking training for women in order to allow them to more effectively promote their
status through participation in councils. Training was also afforded to elders in alternative dispute resolution that centered on transparent, gender-neutral decision-making. The results of the project have been generally positive, marked by an increase in women’s access to land, a noticeable yet somewhat uneven increase in legal awareness of members of the justice community, improved trust in the outcomes of legal decisions, and an increased recognition of women’s rights by elders and other men in the community (“Kenya Justice Project”). A USAID- Landesa combined report notes the particular success and failures of this pilot project, and plans to scale the project have been briefly discussed (Enhancing Customary Justice). The Kenya Land Alliance, a non-partisan civil society network advocating for comprehensive land reform, has also noted the importance of localized buy-in and claims that the reform laws recently passed by the Kenyan government will not affect equality if such laws are not implemented effectively at the local level (Daley, Flower, Miggiano, and Pallas 6). Key Stakeholders Community elders/chiefs Community elders are probably the most important stakeholders, upon which the success of recent Kenyan reforms relies. As mentioned before, community elders are norm entrepreneurs, the most probable agents of change and influence in a particular community. Their localized buy-in will be crucial success of the reforms at a broad-based level.. Community elders enforce dispute settlements and are the ultimate arbiters of cases involving women’s land tenure. Most elders will initially be opposed to any undermining of customary practices and will be the most challenging barriers to the reforms of the 2010 Constitution being applied universally in Kenya. Non-governmental organizations (NGOs) NGOs will be integral in raising public awareness for the protection of women’s land rights through information campaigns and advocacy. GROOTS Kenya is a female self-help NGO that focuses on enhancing the abilities of women to serve in decision-making roles in their communities. Landesa, seemingly playing a larger role in changing attitudes toward women having secure access to land at the community level, is an NGO that has launched the Justice Project in Kenya to train community elders to apply statutory law more neutrally and to implement the reforms of the 2010 Constitution (“Kenya Justice Project”). Many NGOs are already operating in sub-Saharan Africa and envision definite changes in women’s land tenure security in Kenya. For instance, GROOTS is trailblazing capacity building, a process by which communities enhance the capabilities that will facilitate their sustainable development. In doing this, GROOTS Kenya operates on the model of providing paralegal training to community court members in community tribunals. Such organizations would like to see adherence to national legal procedures at community levels (Cooper 11). Both of these groups are supportive of increasing women’s access to land rights in Kenya. In fact, both of them are part of the solution in engaging leaders at the community level in order to influence them to enact the changes of the recent constitution. Government of Kenya
The constitutional reforms created by the 2012 referendum that granted more equal rights to women are at risk of becoming toothless policies without local-level buy-in. The failure of the reforms would undermine the legitimacy of the national government of Kenya. The national government and urban legislators (especially those who support equality for women) will be engaged in the process of ensuring that the rights won at the national level for women are translated into community-level victories as well (Espinosa). The government has shown that it is eager to rationalize and modernize its land policies, but its good intentions may be lost if such gains in women’s rights are not translated to effective policy at the local rural level. The two newly formed government agencies, the Ministry of Lands and the National Land Commission, which have established quotas for female representation to ensure greater participation, can prove important and powerful in this policy arena. Because they are both nascent agencies, though, it has yet to be determined what role they will play in advocating localized buy-in by community elders Case For Intervention Insecure land rights have larger implications than individual-level poverty; not only do insecure land rights impact individuals, they also have the potential to stifle the economic growth of Kenya as a country. If women farmers were allotted the same access as men to land and productive resources, agricultural output would increase by 2.5 to 4 percent, greatly boosting the GDP of many agriculture-based economies in sub-Saharan Africa (Revenga & Shetty 41). Greater control of household resources by women, promoted incrementally through greater access to land rights, can support intergeneration development within countries. Women are more likely to spend income on food and education, resources that can greatly improve standards of living for children (Revenga & Shetty 41). Secure property rights for women enhance agricultural market access as well as access to community governance structures, allowing women to be more involved in the political and judicial decisions that greatly impact their lives (USAID). Even on an individual level, granting equal land rights to women will benefit the efficiency of entrepreneurial markets because women smallholders are more effective in investing income in improving their enterprises than are men (Garvelink). In this way, ensuring secure land rights for women is not only an important goal for pulling female-headed households out of the depths of poverty, but is also a paramount strategy in the socioeconomic development of the countries of sub-Saharan Africa. Based on the implications described above, policy alternatives are prescribed on the basis of addressing one of the three key intervention points by which Kenyan women can experience increased land tenure security: increasing community and political participation, decreasing the instances of property grabbing, and generating favorable outcomes for society. The policy alternatives described below include voluntary party quotas, public awareness and education campaigns, and land titling task forces. The first and third policy alternatives will target political participation and property grabbing, respectively, while the second policy alternative will include an integrated approach to positively affecting all three key intervention points. Policy Alternatives Policy Alternative 1: Voluntary Party Quotas
As stated before, the 2010 Kenyan Constitution mandated increased land rights for women, including the rights to own and inherit land and to exert joint control of marital household resources. Gender quotas were enumerated such that one-third of all elected officials must be women, specifically sixteen women in the Senate and forty-seven women in the National Assembly (McGregor & Clark) (“The Constitution” 61-63). In fact, the Constitution mandates that one gender cannot comprise more than two-thirds of people employed in the public sector, both in the national level and in the county level (“The Constitution”). The proportion of women in elected politics has been increasing since 1998, and the mandates of the Constitution preceded the election of a total of 86 female members of Parliament after 2013 elections, but that still only comprises about 20 percent of the members of Parliament (Republic of Kenya 7). The increased representation in Parliament for women has coincided with a rise in prominence of matters of importance to women; since the Constitution was passed, the Marriage Act of 2014 and the Matrimonial Property Act of 2013 were passed, both of which strengthened women’s property rights in marriage (Republic of Kenya 27). The increased sociopolitical agency of women in national government is paramount because it is a way in which women are able to create policy that favors them, a privilege was less attainable prior to the reforms. However, while representation of women in national government has increased steadily, county- level government hierarchies continued to be dominated by men. In fact, without a fateful charge of impropriety that led to the impeachment of one county governor, women in the role of governorship would not even have been considered; currently, there are no female governors out of 47 total county governors, although there are currently 9 female deputy governors (“Dorothy Nditi”). This near lack of representation of women at the county level clearly contrasts with the two-thirds mandate of the Constitution, and such a failure points to the larger problem of an affirmative action policy without implementation efforts or enforcement mechanisms (“Women in Parliament” 4). In accordance with the statutory affirmative actions espoused in the 2010 Constitution, Kenyan political parties should enact voluntary quotas on candidate selection in order to reach the goal of at least 33 percent of women in elected government. This policy differs from the status quo in that it actualizes the increased sociopolitical engagement of women such that women will have enhanced decision-making agency, allowing them to enact policies that better comprehend the current conditions of women in Kenya (Kaimenyi, Kinya, & Samwel 96). Policy Alternative 2: Education and Public Awareness Campaign While the 2010 Kenyan Constitution and subsequent legislation have nominally bolstered the recognition of women’s land rights in Kenya, the reforms have not been translated into effective practice in rural communities, areas in which over three-quarters of Kenya’s population reside (Espinosa). Many fear that the experiment in granting more rights to women may fall short of expectations if there is no local buy-in (“The Constitution”). Much of the disconnect may arise from the lack of public awareness at the village level, as was seen in studies conducted in similar situations in India and Tanzania. In the case in India, 7 years after the passage of a 2005 Amendment that granted women equal inheritance rights, only 22 percent of families in India were aware of the policy change (Sircar). Moreover, women were less likely than men to have knowledge of the legislation granting women equal inheritance rights over land, and only 3 percent of the women in female-headed households were aware of the 2005 policy change
(“Challenges and Barriers” 10-11). More disturbingly, 50 percent of women in female-headed households were mistakenly thought that the policy change still prevented them from owning land, compared to 38 percent of married women and 15 percent of married men (“Challenges and Barriers” 13). A study by the International Fund for Agricultural Development, additionally, cited “lack of education, both in general terms as well as more specifically on land rights,” as one of the largest factors in limiting women’s access to land in Maasai communities in Tanzania. The study also illuminated the fact that despite legislation allowing women’s land ownership in 1999 in Tanzania, women’s ownership of land remains a primarily urban phenomenon. Very few villages show examples of respecting women’s right to own land, even 11 years after the legislation was passed (Carpano 9). Moreover, limited knowledge at the district-level plagued the implementation and effective monitoring at the village-level; in fact, 75 percent of the districts in question possessed only limited information on the implementation policies at the village level, and only one district had collected data on the integration of women’s land rights (Carpano 10). Although there are no data on the public awareness of the changes in women’s right to own land and have secure tenure in Kenya, the scenarios above serve as analogous situations because of the disconnect between statutory laws and customary laws that has persisted in both India and Tanzania, much as it continues to do in Kenya. The latter case study of Tanzania is particularly enlightening on the incompetence of monitoring and implementation at the district level. Because of Kenya’s recent devolution of power after the 2010 Constitution, the higher concentration of power in counties could serve as a stumbling point as it did in the Tanzanian districts. Thus, the Government of Kenya, either through its own extension of county commissioners or through programs conducted with support from NGOs like Landesa, should enact education and public awareness campaigns at the village level for all members of the community with monitoring and implementation accountability being placed at the county level. The Landesa pilot Justice Project is a good model upon which to base these programs. The results of the education program have been a marked increase in women’s access to land, improved trust in the legal decisions, and an increased recognition of women’s rights by the community (“Kenya Justice Project”). This policy differs from the status quo is that there is currently no systemic program promoting education, and it would address the problem of community elders relying on customary practices instead of integrating the new reforms. Policy Alternative 3: Land Titling Task Forces Currently, the Land Registration Act of 2012 endorses joint titling to protect the ownership and user rights of women, especially in the instances in divorce or death of one’s husband. The Act also extends user rights to spouses that are not included in the title, provided that the spouse has a joint stake in the improvement and upkeep of the land. Such an extension of user rights has yet to be fully implemented (“Current Legal Framework”). Accordingly, secondary rights such as those encapsulating that confer the ability to use the land but not necessarily own it, have often been tenuous, and the Land Registration Act seeks to promote joint titling alongside a more formalized establishment of secondary rights for spouses (Rutten 8). The Land Registration Act of 2012 also attempts to institutionalize “land registration units…at [the] county level and at such other levels to ensure reasonable access to land administration and registration services” (“The Land Registration Act” 12). However, the
actualization of these ambitious goals in land registration have yet to be assessed, but Kenya can look to other countries with nascent land registration bureaucracies to ensure that land registration effectively protects the rights of women. Formal titles to land are important because without land titles, women lack access to credit such that they are unable to reinvest in their land or start small businesses. Land titling projects conducted by the World Bank in Vietnam and Honduras, both of which focused on the joint titling process alluded to in the Land Registration Act, showed that women increasingly used titles as collateral for bank loans. These loans did not only help bolster a sense of entrepreneurship in the women; 44 percent of the women used profits from their small businesses created with the help of title-dependent loans to meet the basic needs of family members, elucidating the wide-reaching positive impacts that titling in women’s names can have (“Helping Women” 1-2). Although the benefits of these programs can be universally extolled, their successes lie in the localized focus and non-governmental participation of them. Thus, the Government of Kenya, initially with the help of NGOs such as GROOTS, should incorporate NGO-led task forces focusing on land equity issues into their county-level registration units. A pilot initiative conducted by the United Nations Food and Agricultural Organization in Tajikistan demonstrated the success of such organizational infrastructure. The task forces, called District Task Forces in the study in Tajikistan, provided legal advice and allowed women to attend classes on leadership skills and paralegal training, similar to what GROOTS currently does in Kenya (“Increasing Women’s Access” 4). This policy would be the synergistic solution to effective and equitable land registration through the combined administrative capabilities of the county-level governments and the experiential finesse of the non-governmental institutions. The policy differs from the status quo in that it actively promotes the involved role of women in the land registration process as opposed to the current marginalized status in which women are not granted joint titles or legal training. Policy Analysis The following chart provides an overview of the evaluation of the three policy alternatives presented above. Each policy alternative is assessed on four goals: minimizing the costs, increasing the political feasibility of implementation, improving the political and social legitimacy of the institutions implementing the policy, and effectively increasing women’s land tenure security. The evaluation goal of minimizing costs will take into account both monetary costs and indirect costs associated with a policy alternative. The goal of increasing the feasibility of implementation considers both political feasibility as well as localized buy-in. Improving political and social legitimacy will be evaluated in the context of ensuring the legitimacy of the Government of Kenya and other entities implementing the alternatives; legitimacy is paramount for success because if the citizens do not trust the implementing entities, rule of law is undermined, and the policies lose their statutory and customary implications. The last goal of increasing women’s land tenure security will be assessed in three impact areas: increasing community involvement, decreasing land grabbing, and generating favorable economic outcomes. Policy alternatives are rated on a scale of increasing quality from “low” to “very high.” All of the impact categories listed are weighted equally Following the brief chart, each policy alternative will be evaluated in-depth.
Policy Alternative #1: Voluntary Party Quotas In accordance with the statutory affirmative actions espoused in the 2010 Constitution, Kenyan political parties should enact voluntary quotas on candidate selection in order to reach the goal of at least 33 percent of women in elected government. Cost The monetary costs of this policy to the political parties of Kenya are small or negligible. Enacting voluntary quotas simply requires the majority vote of the leadership within the political Goals Impact Category Policy Alternatives Status Quo Policy 1: Voluntary Party Quotas Policy 2: Education and Public Awareness Campaign Policy 3: Land Titling Task Forces Goal 1: Cost Minimize the costs Indirect costs of losing productivity Secondary costs of increased government spending $760 million over 10 years $115 to $140 million over 10 years Goal 2: Feasibility Political feasibility High High Very High Very High Goal 3: Legitimacy Social legitimacy Low High Very High Very High Goal 4: Effectiveness Increases community involvement Low-Medium Very High Very High Medium Decreases land grabbing Low Low-Medium High High Generates favorable economic outcomes Low Low-Medium Medium Medium
party. However, there are potential monetary costs for the Government of Kenya in the longer term, although such costs would be the result of the difference in spending and voting that women demonstrate when participating in the political system, all of which would be secondary effects of the policy. In the United States, the enfranchisement of women was associated with a 24 percent increase in social spending in state governments. Although women in Kenya have had the right to vote and the right to stand election since 1963, increased political participation would presumably lead to either an increase in spending for the national government or the redistribution of spending (Doepke, Tertlit, & Voena 19). Women’s voting patterns have been linked to more liberal policies that are likely to increase government expenditures. A study conducted in Switzerland has shown that female politicians in Switzerland have a marked impact on the distribution of federal funding towards public health provision, equal gender rights, environmental protection, and social safety net provisions. Additionally, a study conducted in India demonstrated that female politicians were more likely to lobby for government expenditures for infrastructure and public goods such as wells and roads than were men (Doepke, Tertlit, & Voena 20-21). On a different note, there is a perceived opportunity cost that more conservative parties may face if they do, in fact, enact voluntary gender quotas. The opportunity cost may stem from a concern over whether supporting more female candidates in elections will be deleterious to election results and success, but the evidence for this opportunity cost is not available. Feasibility Of the countries that currently have gender quotas, 61 percent have voluntary party quotas, and countries often combine these voluntary party quotas with national legislation. Although Kenya’s Constitution mandates that there should not be more than two-thirds of either gender in elected offices at both the national and county levels, such ambitious proposals have yet to be achieved. South Africa is the forerunner in establishing voluntary party quotas, and many other African nations such as Rwanda, Uganda, Djibouti, and Eritrea all have some form of gender quota in their political systems. Because voluntary quotas are inherently not enforceable by law, they run the risk of being neglected by some political parties in order to gain a strategic advantage over those that have enacted the voluntary quotas. For instance, the Safina Party, a center-left Kenyan political party, has supported a voluntary quota providing that at least one-third of all elected officials be of one gender. Contrastingly, the Democratic Party, a more conservative movement within Kenyan politics, has rhetorically claimed that it follows the same policy, but the policy has yet to yield successful results. If the practice of voluntary party quotas is only implemented by the more liberal party, as has been shown to happen, there is the cost of the policy not being fully integrated as a broad-based cultural and political shift (“Kenya”). Nonetheless, because this policy is enacted by the parties themselves, there is less policy gridlock associated with government; therefore, the policy is relatively feasible. Legitimacy The application of voluntary party quotas serves to increase the legitimacy of the national government because it allows the representatives of government to be more representative of the people they serve. In this manner, gender quotas positively increase the descriptive and the
substantive representation in electoral politics. Quotas directly increase the number of females in elected roles, thereby increasing descriptive representation, and increase the likelihood that women’s interests in policy decision are taken into account, thereby increasing substantive representation (Pande & Ford 11). Additionally, the adoption of gender quotas in developing countries is associated with an increase in domestic and international legitimacy (Bush 131). Effectiveness Impact Category 1 (Community Involvement): Increased political participation for women can foster the role model effect, where elected female leaders serve as inspiration to other women aspiring to hold public office. Additionally, the experience that these female politicians gain will allow them to share information and advice with aspirants and give the hopeful female office- seekers a better chance to have a prepared campaign and mindset entering the process of seeking election (Pande & Ford 12). As for the immediate effect of increasing women’s political participations, gender quotas are associated with increased political participation for women. For example, women comprise 22 percent of legislators in countries with gender quotas but only 13 percent of legislators in countries without quotas (Pande & Ford 13). With regards to community engagement and normative changes, voluntary party quotas are related to evolving public attitudes that exhibit party commitment for gender equality. Interestingly, a study on gender quotas in India showed that female elected officials were less likely to be corrupt than male officials. This quality translated into a greater acceptance within the community (Pande & Ford 20). Impact Category 2 (Land Grabbing): Although there is no direct evidence about gender quotas leading to a decrease in the incidence of property grabbing, the greater political participation of women may have a positive impact on women’s land tenure security. While a decrease in property grabbing may be a low order effect of the immediate policy, increased political participation can facilitate women enacting policy changes that more accurately reflect their views and experiences. In national legislatures of Sweden, the Netherlands, South Africa, and Rwanda, there has been a trend of increased female participation coinciding with increased sponsorship of gender- and family-friendly legislation. In fact, this trend is deemed the “double divided” because women have a more prominent role in advocating for women’s and children’s issues than do men (Nzomo 1). Impact Category 3 (Economic Outcomes): As mentioned above, women as elected officials are more likely to petition for social safety net and infrastructure spending than are men, and the “double dividend” of female politicians spending more government expenditures on issues related to women and children is likely to occur. Once again, the economic outcome is a lower order effect of the policy, but it will presumably have a positive effect (Nzomo 1). Policy Alternative #2: Education and Public Awareness Campaign The Government of Kenya, either through its own extension of county commissioners or through programs conducted with support from NGOs like Landesa, should enact education and public awareness campaigns at the village level for all members of the community with monitoring and implementation accountability being placed at the county level. Cost
The project and subsequent study conducted by Landesa and USAID upon which this policy is based targeted 2,575 people in the Ol Pusimoru region of the Mau Forest of Kenya. The project studied the abovementioned targeted population alongside the total population of 11,526 people in the entire study. The pilot project cost $490,000, which equates to about $42.51 per person (USAID) (“Projects: Kenya). Assuming that this policy would be implemented to the rural population ages 15 and older, 57.9 percent of the rural population of 31 million would be impacted (“World Factbook”). Thus, the cost to the Government of Kenya to scale up the pilot project to affect the entirety of the targeted rural population is about $760 million. This number, however, might be higher than the actual cost because once initial resources are invested to create curricula and guidelines, these curricula and guidelines can be implemented in multiple counties and do not require initial investment every time. Feasibility A study conducted in Mexico on the feasibility of partnerships between governments and non- governmental organizations concerning reproductive health rights provision will be the basis of the feasibility assessment. This study is applicable to the land sector in Kenya because in both case studies, the government is not effectively fulfilling its duty of service provision; moreover, NGOs are utilized to fill gaps in service provision in both of the scenarios. This study stated that partnerships between NGOs and governments were feasible for service provision, especially in areas where the population is underserved by government provision of services (Gomez-Jauregui 42). The feasibility of partnership, thus, is high because NGOs currently serve as service providers, and the formalization of their partnerships will only increase the impact of their projects. Legitimacy The legitimacy of the Government of Kenya will be greatly enhanced by a formalized partnership with NGOs. While more than 35 percent of Kenyans believe than Kenyan politicians never have the best interests of the people in mind, nearly 40 percent believe that international NGOs have the best interests of the people in mind. In fact, 58 percent of Kenyans believe that NGOs have a sense of moral legitimacy. Interestingly, there is no transfer of legitimacy from the government to an NGO whenever one is provided services from an NGO; thus, people who view NGOs very highly are not more likely to view the government poorly (Brass 18-22). Partnerships with NGOs would have a positive impact on maintaining the legitimacy of the Government of Kenya. Effectiveness Impact Category 1 (Community Involvement): The pilot project was very effective in community recognition and normative changes in community governance. The community elders passed a new constitution for the village that recognized the importance of women’s rights. Additionally, women became more involved in local governance; two of the villages in the study elected 14 women to positions of elders out of 50 total. This election was the first time women had been selected as elders in Maasai and Kalenjin communities (“Projects: Kenya”). The successes of the pilot project will presumably translate into an effective policy at the level of
county governments, and such policies will seek to increase the participation of women in county governments as well as in the propagation of social norms that are sensitive to the rights of women. Impact Category 2 (Land Grabbing): The pilot project resulted in chiefs and elders requiring spousal consent for all land transactions. Moreover, 34 women in the program were trained in forest management and alternative dispute resolution, and these women taught over 268 others the ways in which they can actualize their property ownership and management (“Projects: Kenya”). The training increased the percentage of women knowledgeable about their land rights to 71 percent of women in the targeted community, as compared to 57 percent in a neighboring control community (USAID). Although the decrease in the incidence of property grabbing will be a second order effect of the policy, the education and training programs nonetheless increase women’s awareness of the rights to ownership and governance. The implementation flaws of former policies involve the lack of knowledge of policies with those monitoring the policy as well as the beneficiaries of it. This policy will increase the awareness of both local land officials as well as the women whom the Constitution sought to protect (“Men and Women”). Impact Category 3 (Economic Outcomes): Similar to the decreases in the incidence of land grabbing, the economic impacts of the policy are third order effects. Women with land rights are more likely to have access to credit markets and to exert greater control over agricultural income. As for society, children’s lives are greatly improved by increased land ownership for women. A woman’s ownership of land reduces the odds by half of her child being severely underweight and coincides with increases in educational attainment of children (“Women’s Secure” 2). Policy Alternative #3: Land Titling Task Forces The Government of Kenya, initially with the help of NGOs such as GROOTS, should incorporate NGO-led task forces focusing on land titling issues into their county-level registration units. Cost The start-up costs will be relatively high, but the overall costs will decrease as time passes because the task forces will eventually be integrated into the land registration units. World Bank- funded regional projects within countries focusing in land registration and titling have ranged from $20 million to $80 million, so it is likely that this country-wide initiative would be less costly than the abovementioned $760 million education program (“Helping Women”). Although government expenditures are already focused on the joint titling of land as enumerated by the Land Registration Act, the inclusion of gender-sensitive task forces will only formalize and institutionalize the work of NGOs. For a comparable example of costs, a World Bank project in Ethiopia formalizing joint land titling cost $20 million, and the scaling of this project on a national level would cost around $140 million (Deininger 3). Similarly, the original project in Tajikistan on which this policy is based cost the government $115.6 million over the course of 10 years (“Republic of Tajikistan” 36). Feasibility
The success of the policy in Tajikistan, especially given decidedly apathetic attitudes toward women’s participation in land titling before the program, is an example for the Government of Kenya. The prevalence of outside assistance, most notably with help from the World Bank, in implementing gender-sensitive land registration policies, especially in nearby Ethiopia, will invoke high political costs for the politicians that are not receptive of new trends in land registration. Similar discussions over NGOs complementing the state capacity to provide services apply to this policy as well as policy concerning educational programs conducted by NGOs. Legitimacy The Tajikistan District Task Forces were so successful in their NGO-led pilot projects that they have been expanded and institutionalized by district-level governments. These programs implemented in Kenya, conducted initially by NGOs until the state has the capacity to run them, are a means for increasing state legitimacy by increasing the transparency and legitimacy of the government that has been lacking in its service provision (“Increasing Women’s Access” 4). The gender-sensitive training will also show that the Government of Kenya is devoted to the welfare of its entire people and not just that of males. Effectiveness Impact Category 1 (Community Involvement): The community impacts are lower order effects of this policy, but gender-sensitive land registration has been associated with better household dynamics. Access to secure property rights through joint titling also increases women’s participation in not only the process of land registration, but also in the process of negotiation and decision-making within marriages. Women who are more likely to appear as owners on property documents and are more likely to participate in household decision-making (Doepke, Tertlit, & Voena 19). Thus, this policy will improve the status of women within their communities as an indirect outcome of more secure land rights. Impact Category 2 (Land Grabbing): The primary goal of this policy is to increase the ownership of property for women and to decrease the incidences of property grabbing. Accordingly, in Tajikistan, the District Task Forces increased the proportion of land titled to women by 12 percent, and women exercised significantly stronger ownership over their land (“Increasing Women’s Access” 4). More specifically, in a study conducted in Peru, after NGOs lobbied a government land titling program to conduct gender-sensitivity training for officials and to codify the clarification of women’s rights to the people with whom they were working, joint ownership rates of land skyrocketed from 13 percent to 43 percent over the course of four years (“Political Economy” 346). Impact Category 3 (Economic Outcomes): Economic outcomes are a second order effect of the policy because women’s access to credit increases as their ownership over land becomes more secure. Because women’s bargaining power in marriage increases as a result of heightened land tenure security, intra-household allocation becomes more equitable, which has positive impacts for health and education outcomes for children (Doepke, Tertlit, & Voena 18). In Ethiopia, studies have shown that land certification programs that increase the land ownership of women have a positive impact on the productivity of agricultural for both men and women, and this
increased productivity can reap economic benefits for Kenyan communities with heightened land tenure security for women (Bezabih, Holden, & Mannberg 20). Policy Recommendation and Potential Challenges The policy proposing the scaling up of education and public awareness campaigns in conjunction with present NGOs and county commissioners will be the most all-encompassing and effective mechanism for strengthening the land tenure security of women. Because both this policy and the policy concerning NGO-led task forces are operated in coordination with NGOs, there are similar considerations for feasibility and legitimacy in the sense that 58 percent of Kenyans maintain that NGOs have a sense of moral legitimacy, a percentage much higher than their according approval of the central government (Brass 18-22). Both policies have the potential for overarching legitimacy and feasibility because NGOs are often necessary and extolled for filling gaps in service provision. In terms of effectiveness, not only does the education policy positively increase the community involvement of women, it also has been shown to decrease the incidence of property grabbing and indirectly improve economic outcomes for women. For example, the selected policy was shown in the Landesa pilot project to have led to the requirement of spousal consent in all decisions concerning land transactions, and this increased participation in the decision-making processes for women may strengthen women’s user rights (“Projects: Kenya”). As a whole, while the policies bolstering political participation and land registration focus on increasing community involvement and decreasing property grabbing, respectively, the policy of education and public awareness has the greatest amount of impact in all measures of effectiveness, while still maintaining the same high marks for legitimacy and feasibility as the other policies. The largest challenge to the implementation of this policy will be the monetary costs associated with it. Although the estimate of $760 million may be a high estimate because it does not take into account reaching economies of scale or eliminating the cost associated with developing a project plan (because the pilot project already created a model), this cost still proves to be about six times as costly as the implementation of NGO-led task forces and infinitely more costly than voluntary party quotas. In order to mitigate this challenge, the costs and policy could be implemented over the course of 10 years, much like how the land titling District Task Forces were implemented in Tajikistan; this approach would not only ease the burden of initial monetary costs, but it would also allow more time for the policy to become institutionalized and develop best practices for education and public awareness. After the 10-year period, the policy could be reevaluated in order to continue it with help from NGOs, institutionalize it into a solely government endeavor, or discontinue it. Moreover, there will be institutional and political challenges to the implementation of the policy concerning education and public awareness campaigns. With Kenya’s experiment in the devolution of power from the central government to the county governments still in progress, there will be significant political considerations for the implementation of the policy. The balance between county-level implementation and national-level support may undermine the policy, as is evidenced by recent claims by county governments that the national government has underfunded county governments in a concerted effort to reverse the devolution (“Governors”).
Similarly, there has been contention at the county level concerning the presence of county commissioners, executive officials that are tasked with carrying out national policies at the county level. Many in the county governments believe that these appointed officials are simply a mechanism for the national government to counter the process of devolution. Although the county commissioners are viewed as counterproductive by county officials, they may be the point of success for implementing education and public awareness campaigns. Tasked specifically with “coordinating national government functions [with the] delivery of services,” the county commissioners can serve as the link between the national government, county governments, and NGOs in implementation and could provide monitoring and accountability mechanisms in order to ensure the success of the education and public awareness campaigns (“Role of the County Commissioners”). If implemented over the course of 10 years, the $760 million per year will be outweighed by the political and socioeconomic benefits of the education and public awareness campaign. The strengthened land rights of women will increase women’s access to credit and lead to indirect benefits for children and society at large such as increased educational attainment of children and a lower likelihood of underweight babies. As mentioned before, the increased access to productive resources and land created by the policy may produce a 2.5 to 4 percent boost in agricultural productivity, a significant boost for Kenya where agriculture accounts directly and indirectly for 51 percent of the GDP (Feed the Future). If this policy were effective, the boost in GDP for Kenya would be around $1 billion with a low estimate and around $1.6 billion with a high estimate, more than doubling the cost of the policy (“World Factbook”). Policy Implementation The policy would include a targeted training curriculum centered on legal literacy and land management with an emphasis on the rights of women and children, community building with targeted stakeholders, peer training groups for stakeholders to internalize and share their education to others credibly, and publicity campaigns for education and legal awareness. In order to undertake this multifaceted approach, localized buy-in is paramount because the policy’s success rests on the acceptance by members of villages. Additionally, the recruitment of NGOs to provide training and employees is necessary to generate enough human capital to enact the policy. The primary actors for implementation would be the Government of Kenya and the NGOs working with it. Accountability and implementation measures would primarily be placed upon the county governments with the larger mandate given by the national government. The plan would be modeled after Landesa’s pilot project, and thus, Landesa and willing NGOs in Kenya would be integral to the initial success of the policy. Similarly, the stakeholders would include all of the above actors, as well as members of the villages to which the education and public awareness is targeted. In this way, the success of policy depends on the efficacy of education and public awareness programs. The Landesa pilot project has shown that targeted policies, group training, and education can lead to favorable outcomes for strengthening women’s land tenure. Conclusion
Customary patriarchal practices undermine land tenure security for women in Kenya. Customary traditions are associated with higher rates of poverty for female-headed households than for male-headed households as well as higher incidence of property grabbing for women, often widows or orphans that have lost their ownership to land because of a lack of a male relation. The 2010 Kenyan Constitution and subsequent legislation such as the Matrimonial Property Act and the Land Registration Act have sought to increase women’s rights through prohibiting discrimination and extending property rights to women, but the efficacy of these reforms has been undermined by a lack of localized buy-in. The policy alternatives evaluated target different ways of increasing women’s land tenure security. The first policy includes voluntary party quotas and seeks to tackle the lack of political empowerment for women, while the second and third policies focus on education and public awareness campaigns and county-level land registration task forces to promote awareness of women’s legal rights and combat property grabbing, respectively. The policy of education and public awareness campaign improves land tenure security by having the county-level governments work alongside NGOs to increase women’s knowledge of their rights. Whereas the policies of voluntary party quotas and land registration task forces target one specific aspect each of effectively improving women’s land tenure security, the policy of education and public awareness more holistically increases women’s political and community participation, decreases property grabbing, and betters women’s economic outcomes. Although the costs of the policy are much higher than the other alternatives, the gradual implementation of the policy over the course of 10 years will alleviate the high initial costs, and the improvements on women’s land tenure security will presumably result in economic gains that will be double the cost.
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"Kenya." Quota Project. Global Database of Quotas for Women, 18 June 2013. Web. 2 Oct. 2014. "Kenya: Protecting Widows from Dangerous Customs." IRIN Africa. UN Office of the Coordination of Humanitarian Affairs, 19 June 2007. Web. 11 Sept. 2014. "Kenya." The World Factbook. The Central Intelligence Agency, 20 June 2014. Web. 2 Oct. 2014. "Kenya's National Land Policy and Land Reform." Focus on Land in Africa. Landesa, n.d. Web. 9 Sept. 2014. Kimani, Mary. "Women Struggle to Secure Land Rights." Africa Renewal Online. United Nations, 2012. Web. 1 Sept. 2014. "The Land Registration Act, 2012." Laws of Kenya. National Council for Law Reporting, 2012. Web. 09 Sept. 2014. Mak, Kanika. "Engendering Property Rights: Women's Insecure Land Tenure and Its Implications for Development Policy in Kenya and Uganda." Princeton University Journal of Public and International Affairs (2005): 145-66. Web. 14 Aug. 2014. "Men and Women in Agriculture: Closing the Gap." Food and Agriculture Organization of the United Nations. N.p., n.d. Web. 10 Oct. 2014. McGregor, Sarah, and Simon Clark. "Women of Kenya Denied Law’s Land Entitlement by Husbands." Bloomberg. N.p., 26 Oct. 2012. Web. 3 Sept. 2014. Nzomo, Maria. "Impact of Quotas: Accountability of Female Quota MPs in Kenya." Centre for Multiparty Democracy. N.p., n.d. Web. 2 Oct. 2014. Okech, David, Matthew Ottenweller, Jennifer Elkins, Elliot Caldwell, and Megan Segoshi. "Constitutionalism and Social Development in Kenya." Social Development Issues 36.1 (2014): n. pag. EBSCO Information Services. Jan. 2014. Web. 30 Oct. 2014. Pande, Rohini, and Deanna Ford. "Gender Quotas and Female Leadership: A Review." World Development Report on Gender. Harvard University Kennedy School of Government, 7 Apr. 2011. Web. 3 Oct. 2014. Peter, Chris. "The Magic Wand in Making Constitutions Endure in Africa: Anything (Lessons) to Learn from East Africa?" African and Asian Studies 6.4 (2007): 511-35. ResearchGate. 2007. Web. 30 Oct. 2014. "The Political Economy of Gender Reform." World Development Report 2012. The World Bank, 2012. Web. 9 Oct. 2014. "Projects: Kenya." USAID Land Tenure and Property Rights Portal. United States Agency for International Development, 2014. Web. 11 Sept. 2014.
"Realizing Women's Rights to Land and Other Productive Resources." United Nations Office of the High Commissioner for Human Rights. United Nations, 2013. Web. 11 Sept. 2014. Republic of Kenya. The Presidency. Ministry of Devolution and Planning. Review of the Implementation of the Beijing Platform for Action. United Nations Women, 2014. Web. 24 Sept. 2014. "Republic of Tajikistan." Country Gender Assessment. Asian Development Bank, May 2006. Web. 11 Oct. 2014. Revenga, Ana, and Sudhir Shetty. "Empowering Women Is Smart Economics." Finance & Development 49.1 (2012): 40-43. International Monetary Fund. Mar. 2012. Web. 24 Aug. 2014. "Role of the County Commissioners Under the Devolved Government." East African Center for Law and Justice. N.p., 19 June 2013. Web. 30 Oct. 2014. Rutten, Marcel. "Kenya Food Security and Land Governance Fact Sheet." IS Academy on Land Governance for Equitable and Sustainable Development. Royal Tropical Institute, n.d. Web. 08 Sept. 2014. Siemienska, Renata. "Gender Party Quotas in Poland." Quota Project. Institute of Democracy and Electoral Assistance, 23 Oct. 2004. Web. 2 Oct. 2014. Sircar, Ashok. "Emerging Voices: Ashok Sircar on Women's Right to Inherit Land in India." Development Channel. Council on Foreign Relations, 10 June 2013. Web. 17 Sept. 2014. "Statistics: Kenya." UNICEF. N.p., 27 Dec. 2013. Web. 9 Sept. 2014. Strickland, Richard S. "To Have and To Hold: Women's Property and Inheritance Rights in the Context of HIV/AIDS." (2004): 1-84. ICRW. Web. 14 Aug. 2014. Tenure, Property Rights, and Natural Resource Management: Land Tenure and Property Rights Reform in the Developing World: Who Is Vulnerable? By Elizabeth Katz. USAID, Apr. 2010. Web. 23 Aug. 2014. United States of America. United States Agency for International Development. Land Tenure, Property Rights, and Natural Resource Management: Land Tenure and Property Rights Reform in the Developing World: Who Is Vulnerable? By Elizabeth Katz. USAID, Apr. 2010. Web. 23 Aug. 2014. "Women in Parliament 2013." Inter-Parliamentary Union. N.p., 2014. Web. 24 Sept. 2014. "Women's Secure Rights to Land." Landesa. N.p., Oct. 2012. Web. 4 Oct. 2014.

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Scott_Rough Draft with Edits Final Draft

  • 1.
    Strengthening Women’s LandTenure Security in Kenya in the Context of the 2010 Constitution and Subsequent Reforms Elijah Scott Teaching Assistants: Eilidh Geddes and Megan Ernst Fall 2014
  • 2.
    Introduction Customary tenure systems,forms of land ownership in which land is administered according to customs and indigenous culture rather than statutory law, account for 90 percent of land managed in sub-Saharan Africa (Lawry). These tenure systems contribute to insecure land rights for women because statutory recognition of ownership is not granted to women; thus, land grabbing, which is particularly common in areas with a relatively large number of female-headed households, undermines the rights of women, of whom orphans and widows are the most vulnerable. Moreover, unequal land tenure rights for women undermine rule of law in local communities and stymie economic and intergenerational development. Because women do not have equal access to land and productive resources, agricultural output in developing countries is losing out on a gain of output by as much as 2.5 to 4 percent, a boost that would greatly increase the GDP of the agricultural-based economies (Renvenga & Shetty 41). The effects of insecure land tenure are particularly evident in Kenya, where the 2010 Constitution and subsequent land legislation promoting the nominal equality of women have yet to be translated into effective practice at the localized level, which includes over three-quarters of Kenya’s population (Espinosa). As AIDS continues to increase the number of female-headed households and insecure and gender-biased property rights persist, more female-headed households in Kenya live below local poverty levels than do male-headed households (Strickland 15). This paper analyzes women’s land tenure security in Kenya in the context of the 2010 Constitution and subsequent reforms and seeks to generate an effective policy solution to end the continuation of unequal land rights for women. Three policy alternatives are evaluated, each targeting one of different intervention points; these alternatives include voluntary party quotas, public awareness and education campaigns, and land titling task forces This paper concludes that while addressing the lack of political participation for women and combatting land grabbing are useful tools to promote women’s land tenure security in Kenya, the most effective policy solution judging from the criteria in this analysis is the scaling of an education and public awareness campaign. Background The first constitution of Kenya was written by the colonial government of the United Kingdom in 1962 and disregarded the national self-determination of its colonial citizens (Dudziak 775). As a result, an institutionalized system of corruption, patronage, and poor governance emerged from this original constitution. Popular support for constitutional reform began in the 1980s in Kenya. After a referendum for a seemingly hollow constitution failed in 2005 with only 42 percent of the population in support, a new constitution was finally instituted in 2010 with 67 percent of voter support (Cottrell & Ghai 2007). The recent adoption of a liberal constitution has coincided with the general trend of increasing constitutionalism in the processing in modernizing African countries. In fact, since 1990, more than 40 new constitutions have been adopted throughout sub- Saharan Africa (“Comparative Constitutions Project”). Scrutiny over the importance of constitutionalism in the context of traditionally weak institutional and legal structures at the whim of authoritarian regimes in Africa has arisen, but the
  • 3.
    trend in adoptingmodern constitutions has contributed to an increasing institutionalization of democratic governance structures (Peter 2007). The 2010 Constitution promulgated liberal reforms for protecting the rights of women and marginalized groups, most of which will be enumerated later in this paper. Additionally, the new constitution established mechanisms for the devolution of political and administrative power to the newly-created county governments in an effort to more equally distribute power between the central government and the counties. The devolution of power in the Kenyan government is integral to the success of any policy concerning grassroots or localized influence because the points of intervention are at the local level. Policies to implement the rights enumerated in the Constitution are more effective with a more equal balance of power in the county governments. It is important to note that while the enumeration of rights is important, the policies described in the 2010 Constitution can be considered aspirations for its citizens; thus, the success of actualizing such aspirations will be heavily dependent upon the policies that are created for effective implementation (Okech et. al.). Symptoms Despite efforts to enumerate reforms in the 2010 Constitution and translate the following legislation into realized aspirations, the symptoms of women’s insecure land tenure persist in the form of economic, health, and social consequences. Economic consequences are linked to the patriarchal customary practices and continue to disproportionately affect women. Health and social symptoms of the increased instance of land insecurity for women are interrelated and factor in aspects of food production, women’s political and community involvement, and cultural practices that facilitate the spread of HIV/AIDS Economic Property grabbing occurs when a woman loses land ownership because of the loss of her male relative to the land, whether loss of a male relation occurs through divorce or the death of her husband or father. Property grabbing continues to occur after women get divorces or after the death of a husband. Succession and inheritance rights are governed by customary norms. In a USAID study conducted in Uganda, 29 percent of widows claimed to be victims of property grabbing, and this trend will continue if the status quo prevails (Mak 156). When property grabbing occurs, the land is often stolen from orphans and widows, those people in society who have already been disadvantaged by the death of a parent of loved one from HIV/AIDS. The death of a male relation can disadvantage women by leaving them with one less human to work the land, but vulnerable widows and orphans are often subjected to losing their land, a process that further entrenches them in poverty. Not only does property grabbing have negative economic consequences, but it also undermines the rule of law and the importance of statutory law in local communities. Health/Social As property grabbing occurs to women with insecure land tenure, both productivity of output and caloric variety of victims’ diets stagnate. The Food and Agriculture Organization of the United
  • 4.
    Nations recently claimed,“gender equality… is the single most important determinant of food security” (Espinosa “Africa”). Insecure property rights for women play a paramount role in inhibiting food security in sub-Saharan Africa. Women produce between 60-80 percent of the food grown in developing countries, but they own only two percent of the land. Because women are often more responsible spenders and are more likely to spend their income on food for their children than are men, the fact that women do not have secure property rights in regards to land undermines the nutrition and health of the future generation. There is a positive relationship between the amount of assets a woman possesses at the time of marriage and the share of expenditures devoted to food, healthcare, and education, all of which contribute to greater living conditions and food security for children (Giovarelli & Wamalwa 1). A study conducted in Uganda best illustrates the relationship between women’s land tenure security and food security. When female farmers did not have secure or independent rights, they never let the land lie fallow during optimal periods because they believed that their husband or male relation, the person who owned the land officially, would decrease their access to the land if they left it fallow. In this situation, the land was overworked and not wholly efficient; as women overwork the land in order to maintain a tenuous land access relationship, income and productivity fall, further threatening women’s access to the land and contributing the cycle of overworking land (Giovarelli & Wamalwa 2). Insecure land rights for women contribute the broader problem of the political and social marginalization of women in patriarchal villages in Kenya. In developing countries at large, property rights and access to land serve as a prerequisite to access to social institutions such as household decision-making and community-level governance. Additionally, women often have no participation in the sale of their land because the land is registered in their husbands’ names; in this way, women not only lack participation in community governance, they lack proper involvement in the management of household resources (USAID). Access to land and education of community elders, however, seems to alleviate such problems, as was shown in a Landesa pilot project in which the strengthening of women’s land tenure preceded the first ever representation of women elders on community councils in the Maasai and Kalenjin communities of Kenya (“Projects”). The former lack of representation of women in community-level governance institutions elucidate the oppressive nature of insecure land rights for women; without secure access to land, women cannot have effective political representation, and without effective political representation, women cannot enact the policies that will end their cycle of insecurity and poverty. Along with the social consequences, property grabbing from women often leads them to engage in risky sexual behaviors in order to fulfill the patriarchal demands necessary for them to maintain their usage rights over their land. After women lose their land due to property grabbing or the death of their husband, they must often resort to risky sexual practices such as wife cleansing and ritual practices in order to even use the land on which they formerly resided (Strickland 17). Wife cleansing, or widow cleansing as it is sometimes called, is a ritual practice in which a man from a widow’s village or her deceased husband’s family forces the widow to engage in sexual acts with him. This forced sex supposedly allows her deceased husband’s spirit to experience freedom in a cosmic afterlife.
  • 5.
    This tradition alsocontributes to the spread of HIV/AIDS because HIV will often be passed to the wife through the former husband, and then the woman may transmit the virus to the man with whom she is forced to have sex. Moreover, in Western Kenya, the tradition of widow inheritance, a process by which a widow is required to marry a man who is kin to her deceased husband, is particularly common, and the correlation between the incidence of HIV/AIDS and the prevalence of the practice is high. In the Nyanza province known for the tradition of wife inheritance, for example, over 15 percent of the population is HIV-positive as opposed to the average adult HIV prevalence in Kenya of 6.1 percent (“Kenya”) (“Statistics”). Causes There are several factors that cause the persistence of a system of land reform that disadvantages women. Many of these factors stem from the cultural and colonial history of sub-Saharan Africa, but cultural stigmas attached to HIV/AIDS in modern times have increased the insecurity of women’s land ownership. The economic situation of both poor women and men in Kenya has facilitated land grabbing, and the low level of access to productive resources for women stymies their influence in household decision-making. Cultural Although women have the statutory right to inherit land in Kenya, customary practice typically undermines this right because women’s land rights are derived from their male relations (Mak 150). Even the process of gender-blind land registration in Kenya was undermined by patriarchal influences in that titles denied women usufructuary rights, the sharing of the ability to use and profit from land, and avoided protecting a women’s ownership in the event of their husband’s death (Cooper 9). Colonial rule ingrained practices that inherently disadvantage women into the customary norms of Kenyan communities. Prior to British colonization, most communities in Kenya operated in patrilineal land tenure systems in which land ownership and access was dependent upon clans, lineages, and families. Although there were some instances of matrilineal property ownership, sons typically inherited property, and male leaders exercised primary rights to own and utilize the land. However, in the pre-colonial system, safeguards and protections were established for women such that divorced, widowed, or separated women still had access to the land after their ties to their male spouse were relinquished. In fact, such safeguards were even subject to judicial support to where women who were denied land access could appeal. The colonial system continued the male dominance over land ownership, but the British removed the safeguards that had been instilled in the communities for centuries (Kimani). In fact, the British system in Kenya formalized the patriarchal influence on land tenure and granted men greater authority in making decisions regarding land use and access. Legal dualism, the system by which customary law and statutory law are applied in a patchwork fashion across different regions, has persisted on the account of colonial legacy such that in customary practice, despite statutory limitation against it, men are able to sell their land without consulting their spouses or families (Mak 151). The strain that the high incidence of HIV/AIDS places on the people of sub-Saharan Africa has led to the evolution of modern cultural practices that especially disadvantage women in the context of property ownership. This strain is especially acute in the property grabbing that occurs
  • 6.
    amongst widows andorphans of AIDS-related deaths. In a study conducted in Uganda, 1 in 5 orphans claimed that they had their property seized after the death of a parent (Mak 156). Fear and mystery surrounding HIV/AIDS also leads many in-laws to evict a spouse after an AIDS- related death, and such fears undermine the proper land security of women in these scenarios. Empirically, a study in India concluded that 90 percent of widows interviewed had evicted from their marital home by in-laws for fear of the women being HIV-positive and having caused the man’s death; additionally, 79 percent of the interviewed women claimed that they were denied a share of the husband’s estate over the stigma attached to being a widow as a result of HIV/AIDS (Giovarelli, Richardson, and Davis 4). Economic Lack of access to productive resources and secure land tenure leads to a subsequent lack in market access for women both in economic markets and sociopolitical arenas. Studies have shown that women’s ownership of land can lead to improvements in women’s economic welfare and productivity, and access to land may allow women to leverage bargaining power in the markets for productive resources as well as in the markets for sociopolitical empowerment (Cooper 2). Moreover, women who are asset-poor or have unstable incomes have less bargaining power within the household, and this decreased agency extends to distribution of household resources as well as over safe sexual practices. Impoverished women are then stuck in a cycle of poverty where their lack of ownership of resources precludes their ownership over other resources and also increases their likelihood of engaging in risky sexual behaviors. In turn, risky sexual activity may lead to the contraction of HIV/AIDS and further impoverished conditions for women through social ostracization (Giovarelli, Richardson, and Davis 2). Underutilized female labor in sub-Saharan Africa has led to massive productivity losses, both for women now and for future generations. Women now represent 43 percent of the agricultural workforce, and eliminating barriers that prevent women from working in certain sectors would reduce the gender productivity gap by one-third to one-half as well as increasing output per worker by up to 25 percent in some countries. Because women often lack control of an equal amount of household resources as men, income is less likely to be spent on children’s food and education, a consequence that further entrenches families in poverty (Revenga & Shetty 41). Current Policies Current policies have sought to rectify the secondary legal status of women in terms of land ownership, political participation, and marriage. The 2010 Constitution became the rallying cry for those whose aspirations included elevating the status of women, and subsequent legislation has served to clarify or implement passages of the Constitution. It is still unclear over whether or not the aspirations of the Constitution will be translated into localized reality because not enough time has passed in order to effectively evaluate the changes, but non-governmental policies have been utilized alongside bureaucratic restructuring to expedite the process of reform for women in Kenya. Policy 1: 2010 Kenyan Constitution The 2010 Kenyan Constitution, adopted through a 2012 referendum, promoted increased land rights for women, including the rights to own and inherit land and to exert joint control of marital household resources. The constitution also prohibited discrimination based on marital status and
  • 7.
    establishes gender quotasfor elected positions, reserving one-third of seats in lawmaking bodies for women (McGregor & Clark). Specifically, the new constitution mentioned women seven times and states that “all State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women…” (“The Constitution” 20). Parliament is also now required to promote the representation of women in governmental entities, and the quotas include sixteen women in the Senate and forty-seven women in the National Assembly out of a total of sixty-seven seats in the Senate and 349 seats in the National Assembly (“The Constitution” 61-63). Many fear, however, that this experiment in granting more rights to women may fall short of expectations if there is no local buy-in (“The Constitution”). Landesa, a rural development nonprofit organization, is currently trying to prevent this by holding community information sessions within clans that are traditionally opposed to the equal status of women. Thus far, Landesa has worked with the Maasai people in the Kenyan highlands, but outreach needs to be continual to achieve universal local buy-in. Landesa’s policies have been relatively successful and include drafting local constitutions for communities that mirror the rights enumerated in the new national constitution (Espinosa). However, because more than three-quarters of Kenyans live in rural areas, normative changes will have to take root in a widespread fashion to facilitate the success of the constitutionally granted rights. In this way, the efficacy of realizing women’s improved rights through the constitution has been a mixed bag (McGregor & Clark). Policy 2: National Land Policy The National Land Policy of 2009 sought to streamline the formerly patchwork set of regulations on land tenure in Kenya into a rationalized document and sought to reform existing failures that the government saw in its system of land tenure. The document recognizes the flaws inherent for women in the customary tenure system. It acknowledges that this problem persists because women are not sufficiently represented in institutions that pertain to land and are not properly registered with respect to land titling. Additionally, the National Land Policy points out the fact that while Kenya has ratified international conventions on women’s land rights, these conventions have failed to materialize as enforceable policies. This document maintains that in order to rectify the above problem, the Government of Kenya must enforce existing laws, emphasize joint spousal registration and documentation, secure inheritance rights of unmarried daughters, generate public awareness of the policy-implementation gap, and ensure proper representation of women in land-focused institutions such as the Kenya Land Commission (Kenya 51-52). In reference to unequal matrimonial property rights, the National Land Policy seeks to repeal the Married Women’s Property Act of 1882, which disproportionately left divorced women impoverished because their marital property rights were relinquished upon divorce. In contrast, the National Land Policy was codified with the intent to introduce a more balanced policy to secure matrimonial property rights for women whose economic contribution cannot be quantified. Accordingly, the new policy will seek to create equal property rights to matrimonial property for both men and women. Lastly, the policy intends to establish mechanisms that allow women to have more representation in the sale and mortgaging of their matrimonial property (Kenya 52). The National Land Policy of 2009 is an act of reform, and the effective translation of this broad amalgamation of policy into localized change will be difficult. However, the
  • 8.
    National Land Policyof 2009 has set into motion the wheels of reform such that many of the goals of the overarching policy are currently being made into law, as evidenced by the passage of the National Land Commission Act of 2012. Policy 3: National Land Commission Act The National Land Commission Act of 2012 allowed the Government of Kenya to form a National Land Commission, which works in conjunction with the Ministry of Lands, Housing and Urban Development, and county-level land institutions, that will be the key agency in determining land-related policy. The National Land Commission has created a five-year National Strategic Plan that will focus on the implementation of the policies enumerated in the National Land Policy. The focus areas will be the devolution of land management to the county level, reform of land registration and titling, and the effective resolution of land disputes. Policy 4: The Matrimonial Property Act The Matrimonial Property Act of 2013 replaced the problematic Married Women’s Property Act of 1882, a law that protected women’s marital property interests except in the case of divorce. The Act of 2013 statutorily defines matrimonial property and separate property and states that matrimonial property shall be divided according to each spouse’s contribution to acquiring the property between spouses upon the dissolution of a marriage. The definition of a “contribution” includes both monetary and non-monetary aspects such as domestic work, childcare, and companionship as well as business management and agricultural labor. Policy 5: The Land Registration Act The Land Registration Act of 2012 endorses joint titling in order to protect the property rights of women in the case of divorce or death of one’s husband. The policy specifies that if one “spouse obtains land for the co-ownership and use of both spouses,” then legal recognition is afforded to both spouses as joint tenants (“The Land Registration Act” 45). Moreover, spouses who are not included in the title are afforded “interest rights” if that spouse provides for the upkeep and improvement of the land; these interest rights provide for the protection of the usage of the land for women if they are not formally included in the title for ownership. The extent to which these interest rights will prove important to the empowerment of women has yet to be demonstrated (“Current Legal Framework”). Nonetheless, the secondary rights, those associated with user rights but not necessarily proprietorship, of property ownership have often been tenuous, and this policy seeks to promote joint titling as well as a more formalized establishment of secondary rights for spouses (Rutten 8). However, low literacy rates may be a factor inhibiting the current implementation of this act, according to the Kenya Land Alliance (10). Policy 6: Landesa Justice Project Landesa has been working with USAID since 2010 to ensure local awareness of the reforms of the 2010 Kenyan Constitution. The project, according to Landesa, has enacted change in the rural communities by reducing rates of violence against women and increasing economic empowerment. Additionally, Landesa reports that women are being elected to councils of elders, the customary institutions that resolve land disputes at the community level. The project consisted of a curriculum for members of the community including elders, women, and children explaining the new laws regarding land rights in Kenya’s Constitution. Landesa also conducted public speaking training for women in order to allow them to more effectively promote their
  • 9.
    status through participationin councils. Training was also afforded to elders in alternative dispute resolution that centered on transparent, gender-neutral decision-making. The results of the project have been generally positive, marked by an increase in women’s access to land, a noticeable yet somewhat uneven increase in legal awareness of members of the justice community, improved trust in the outcomes of legal decisions, and an increased recognition of women’s rights by elders and other men in the community (“Kenya Justice Project”). A USAID- Landesa combined report notes the particular success and failures of this pilot project, and plans to scale the project have been briefly discussed (Enhancing Customary Justice). The Kenya Land Alliance, a non-partisan civil society network advocating for comprehensive land reform, has also noted the importance of localized buy-in and claims that the reform laws recently passed by the Kenyan government will not affect equality if such laws are not implemented effectively at the local level (Daley, Flower, Miggiano, and Pallas 6). Key Stakeholders Community elders/chiefs Community elders are probably the most important stakeholders, upon which the success of recent Kenyan reforms relies. As mentioned before, community elders are norm entrepreneurs, the most probable agents of change and influence in a particular community. Their localized buy-in will be crucial success of the reforms at a broad-based level.. Community elders enforce dispute settlements and are the ultimate arbiters of cases involving women’s land tenure. Most elders will initially be opposed to any undermining of customary practices and will be the most challenging barriers to the reforms of the 2010 Constitution being applied universally in Kenya. Non-governmental organizations (NGOs) NGOs will be integral in raising public awareness for the protection of women’s land rights through information campaigns and advocacy. GROOTS Kenya is a female self-help NGO that focuses on enhancing the abilities of women to serve in decision-making roles in their communities. Landesa, seemingly playing a larger role in changing attitudes toward women having secure access to land at the community level, is an NGO that has launched the Justice Project in Kenya to train community elders to apply statutory law more neutrally and to implement the reforms of the 2010 Constitution (“Kenya Justice Project”). Many NGOs are already operating in sub-Saharan Africa and envision definite changes in women’s land tenure security in Kenya. For instance, GROOTS is trailblazing capacity building, a process by which communities enhance the capabilities that will facilitate their sustainable development. In doing this, GROOTS Kenya operates on the model of providing paralegal training to community court members in community tribunals. Such organizations would like to see adherence to national legal procedures at community levels (Cooper 11). Both of these groups are supportive of increasing women’s access to land rights in Kenya. In fact, both of them are part of the solution in engaging leaders at the community level in order to influence them to enact the changes of the recent constitution. Government of Kenya
  • 10.
    The constitutional reformscreated by the 2012 referendum that granted more equal rights to women are at risk of becoming toothless policies without local-level buy-in. The failure of the reforms would undermine the legitimacy of the national government of Kenya. The national government and urban legislators (especially those who support equality for women) will be engaged in the process of ensuring that the rights won at the national level for women are translated into community-level victories as well (Espinosa). The government has shown that it is eager to rationalize and modernize its land policies, but its good intentions may be lost if such gains in women’s rights are not translated to effective policy at the local rural level. The two newly formed government agencies, the Ministry of Lands and the National Land Commission, which have established quotas for female representation to ensure greater participation, can prove important and powerful in this policy arena. Because they are both nascent agencies, though, it has yet to be determined what role they will play in advocating localized buy-in by community elders Case For Intervention Insecure land rights have larger implications than individual-level poverty; not only do insecure land rights impact individuals, they also have the potential to stifle the economic growth of Kenya as a country. If women farmers were allotted the same access as men to land and productive resources, agricultural output would increase by 2.5 to 4 percent, greatly boosting the GDP of many agriculture-based economies in sub-Saharan Africa (Revenga & Shetty 41). Greater control of household resources by women, promoted incrementally through greater access to land rights, can support intergeneration development within countries. Women are more likely to spend income on food and education, resources that can greatly improve standards of living for children (Revenga & Shetty 41). Secure property rights for women enhance agricultural market access as well as access to community governance structures, allowing women to be more involved in the political and judicial decisions that greatly impact their lives (USAID). Even on an individual level, granting equal land rights to women will benefit the efficiency of entrepreneurial markets because women smallholders are more effective in investing income in improving their enterprises than are men (Garvelink). In this way, ensuring secure land rights for women is not only an important goal for pulling female-headed households out of the depths of poverty, but is also a paramount strategy in the socioeconomic development of the countries of sub-Saharan Africa. Based on the implications described above, policy alternatives are prescribed on the basis of addressing one of the three key intervention points by which Kenyan women can experience increased land tenure security: increasing community and political participation, decreasing the instances of property grabbing, and generating favorable outcomes for society. The policy alternatives described below include voluntary party quotas, public awareness and education campaigns, and land titling task forces. The first and third policy alternatives will target political participation and property grabbing, respectively, while the second policy alternative will include an integrated approach to positively affecting all three key intervention points. Policy Alternatives Policy Alternative 1: Voluntary Party Quotas
  • 11.
    As stated before,the 2010 Kenyan Constitution mandated increased land rights for women, including the rights to own and inherit land and to exert joint control of marital household resources. Gender quotas were enumerated such that one-third of all elected officials must be women, specifically sixteen women in the Senate and forty-seven women in the National Assembly (McGregor & Clark) (“The Constitution” 61-63). In fact, the Constitution mandates that one gender cannot comprise more than two-thirds of people employed in the public sector, both in the national level and in the county level (“The Constitution”). The proportion of women in elected politics has been increasing since 1998, and the mandates of the Constitution preceded the election of a total of 86 female members of Parliament after 2013 elections, but that still only comprises about 20 percent of the members of Parliament (Republic of Kenya 7). The increased representation in Parliament for women has coincided with a rise in prominence of matters of importance to women; since the Constitution was passed, the Marriage Act of 2014 and the Matrimonial Property Act of 2013 were passed, both of which strengthened women’s property rights in marriage (Republic of Kenya 27). The increased sociopolitical agency of women in national government is paramount because it is a way in which women are able to create policy that favors them, a privilege was less attainable prior to the reforms. However, while representation of women in national government has increased steadily, county- level government hierarchies continued to be dominated by men. In fact, without a fateful charge of impropriety that led to the impeachment of one county governor, women in the role of governorship would not even have been considered; currently, there are no female governors out of 47 total county governors, although there are currently 9 female deputy governors (“Dorothy Nditi”). This near lack of representation of women at the county level clearly contrasts with the two-thirds mandate of the Constitution, and such a failure points to the larger problem of an affirmative action policy without implementation efforts or enforcement mechanisms (“Women in Parliament” 4). In accordance with the statutory affirmative actions espoused in the 2010 Constitution, Kenyan political parties should enact voluntary quotas on candidate selection in order to reach the goal of at least 33 percent of women in elected government. This policy differs from the status quo in that it actualizes the increased sociopolitical engagement of women such that women will have enhanced decision-making agency, allowing them to enact policies that better comprehend the current conditions of women in Kenya (Kaimenyi, Kinya, & Samwel 96). Policy Alternative 2: Education and Public Awareness Campaign While the 2010 Kenyan Constitution and subsequent legislation have nominally bolstered the recognition of women’s land rights in Kenya, the reforms have not been translated into effective practice in rural communities, areas in which over three-quarters of Kenya’s population reside (Espinosa). Many fear that the experiment in granting more rights to women may fall short of expectations if there is no local buy-in (“The Constitution”). Much of the disconnect may arise from the lack of public awareness at the village level, as was seen in studies conducted in similar situations in India and Tanzania. In the case in India, 7 years after the passage of a 2005 Amendment that granted women equal inheritance rights, only 22 percent of families in India were aware of the policy change (Sircar). Moreover, women were less likely than men to have knowledge of the legislation granting women equal inheritance rights over land, and only 3 percent of the women in female-headed households were aware of the 2005 policy change
  • 12.
    (“Challenges and Barriers”10-11). More disturbingly, 50 percent of women in female-headed households were mistakenly thought that the policy change still prevented them from owning land, compared to 38 percent of married women and 15 percent of married men (“Challenges and Barriers” 13). A study by the International Fund for Agricultural Development, additionally, cited “lack of education, both in general terms as well as more specifically on land rights,” as one of the largest factors in limiting women’s access to land in Maasai communities in Tanzania. The study also illuminated the fact that despite legislation allowing women’s land ownership in 1999 in Tanzania, women’s ownership of land remains a primarily urban phenomenon. Very few villages show examples of respecting women’s right to own land, even 11 years after the legislation was passed (Carpano 9). Moreover, limited knowledge at the district-level plagued the implementation and effective monitoring at the village-level; in fact, 75 percent of the districts in question possessed only limited information on the implementation policies at the village level, and only one district had collected data on the integration of women’s land rights (Carpano 10). Although there are no data on the public awareness of the changes in women’s right to own land and have secure tenure in Kenya, the scenarios above serve as analogous situations because of the disconnect between statutory laws and customary laws that has persisted in both India and Tanzania, much as it continues to do in Kenya. The latter case study of Tanzania is particularly enlightening on the incompetence of monitoring and implementation at the district level. Because of Kenya’s recent devolution of power after the 2010 Constitution, the higher concentration of power in counties could serve as a stumbling point as it did in the Tanzanian districts. Thus, the Government of Kenya, either through its own extension of county commissioners or through programs conducted with support from NGOs like Landesa, should enact education and public awareness campaigns at the village level for all members of the community with monitoring and implementation accountability being placed at the county level. The Landesa pilot Justice Project is a good model upon which to base these programs. The results of the education program have been a marked increase in women’s access to land, improved trust in the legal decisions, and an increased recognition of women’s rights by the community (“Kenya Justice Project”). This policy differs from the status quo is that there is currently no systemic program promoting education, and it would address the problem of community elders relying on customary practices instead of integrating the new reforms. Policy Alternative 3: Land Titling Task Forces Currently, the Land Registration Act of 2012 endorses joint titling to protect the ownership and user rights of women, especially in the instances in divorce or death of one’s husband. The Act also extends user rights to spouses that are not included in the title, provided that the spouse has a joint stake in the improvement and upkeep of the land. Such an extension of user rights has yet to be fully implemented (“Current Legal Framework”). Accordingly, secondary rights such as those encapsulating that confer the ability to use the land but not necessarily own it, have often been tenuous, and the Land Registration Act seeks to promote joint titling alongside a more formalized establishment of secondary rights for spouses (Rutten 8). The Land Registration Act of 2012 also attempts to institutionalize “land registration units…at [the] county level and at such other levels to ensure reasonable access to land administration and registration services” (“The Land Registration Act” 12). However, the
  • 13.
    actualization of theseambitious goals in land registration have yet to be assessed, but Kenya can look to other countries with nascent land registration bureaucracies to ensure that land registration effectively protects the rights of women. Formal titles to land are important because without land titles, women lack access to credit such that they are unable to reinvest in their land or start small businesses. Land titling projects conducted by the World Bank in Vietnam and Honduras, both of which focused on the joint titling process alluded to in the Land Registration Act, showed that women increasingly used titles as collateral for bank loans. These loans did not only help bolster a sense of entrepreneurship in the women; 44 percent of the women used profits from their small businesses created with the help of title-dependent loans to meet the basic needs of family members, elucidating the wide-reaching positive impacts that titling in women’s names can have (“Helping Women” 1-2). Although the benefits of these programs can be universally extolled, their successes lie in the localized focus and non-governmental participation of them. Thus, the Government of Kenya, initially with the help of NGOs such as GROOTS, should incorporate NGO-led task forces focusing on land equity issues into their county-level registration units. A pilot initiative conducted by the United Nations Food and Agricultural Organization in Tajikistan demonstrated the success of such organizational infrastructure. The task forces, called District Task Forces in the study in Tajikistan, provided legal advice and allowed women to attend classes on leadership skills and paralegal training, similar to what GROOTS currently does in Kenya (“Increasing Women’s Access” 4). This policy would be the synergistic solution to effective and equitable land registration through the combined administrative capabilities of the county-level governments and the experiential finesse of the non-governmental institutions. The policy differs from the status quo in that it actively promotes the involved role of women in the land registration process as opposed to the current marginalized status in which women are not granted joint titles or legal training. Policy Analysis The following chart provides an overview of the evaluation of the three policy alternatives presented above. Each policy alternative is assessed on four goals: minimizing the costs, increasing the political feasibility of implementation, improving the political and social legitimacy of the institutions implementing the policy, and effectively increasing women’s land tenure security. The evaluation goal of minimizing costs will take into account both monetary costs and indirect costs associated with a policy alternative. The goal of increasing the feasibility of implementation considers both political feasibility as well as localized buy-in. Improving political and social legitimacy will be evaluated in the context of ensuring the legitimacy of the Government of Kenya and other entities implementing the alternatives; legitimacy is paramount for success because if the citizens do not trust the implementing entities, rule of law is undermined, and the policies lose their statutory and customary implications. The last goal of increasing women’s land tenure security will be assessed in three impact areas: increasing community involvement, decreasing land grabbing, and generating favorable economic outcomes. Policy alternatives are rated on a scale of increasing quality from “low” to “very high.” All of the impact categories listed are weighted equally Following the brief chart, each policy alternative will be evaluated in-depth.
  • 14.
    Policy Alternative #1:Voluntary Party Quotas In accordance with the statutory affirmative actions espoused in the 2010 Constitution, Kenyan political parties should enact voluntary quotas on candidate selection in order to reach the goal of at least 33 percent of women in elected government. Cost The monetary costs of this policy to the political parties of Kenya are small or negligible. Enacting voluntary quotas simply requires the majority vote of the leadership within the political Goals Impact Category Policy Alternatives Status Quo Policy 1: Voluntary Party Quotas Policy 2: Education and Public Awareness Campaign Policy 3: Land Titling Task Forces Goal 1: Cost Minimize the costs Indirect costs of losing productivity Secondary costs of increased government spending $760 million over 10 years $115 to $140 million over 10 years Goal 2: Feasibility Political feasibility High High Very High Very High Goal 3: Legitimacy Social legitimacy Low High Very High Very High Goal 4: Effectiveness Increases community involvement Low-Medium Very High Very High Medium Decreases land grabbing Low Low-Medium High High Generates favorable economic outcomes Low Low-Medium Medium Medium
  • 15.
    party. However, thereare potential monetary costs for the Government of Kenya in the longer term, although such costs would be the result of the difference in spending and voting that women demonstrate when participating in the political system, all of which would be secondary effects of the policy. In the United States, the enfranchisement of women was associated with a 24 percent increase in social spending in state governments. Although women in Kenya have had the right to vote and the right to stand election since 1963, increased political participation would presumably lead to either an increase in spending for the national government or the redistribution of spending (Doepke, Tertlit, & Voena 19). Women’s voting patterns have been linked to more liberal policies that are likely to increase government expenditures. A study conducted in Switzerland has shown that female politicians in Switzerland have a marked impact on the distribution of federal funding towards public health provision, equal gender rights, environmental protection, and social safety net provisions. Additionally, a study conducted in India demonstrated that female politicians were more likely to lobby for government expenditures for infrastructure and public goods such as wells and roads than were men (Doepke, Tertlit, & Voena 20-21). On a different note, there is a perceived opportunity cost that more conservative parties may face if they do, in fact, enact voluntary gender quotas. The opportunity cost may stem from a concern over whether supporting more female candidates in elections will be deleterious to election results and success, but the evidence for this opportunity cost is not available. Feasibility Of the countries that currently have gender quotas, 61 percent have voluntary party quotas, and countries often combine these voluntary party quotas with national legislation. Although Kenya’s Constitution mandates that there should not be more than two-thirds of either gender in elected offices at both the national and county levels, such ambitious proposals have yet to be achieved. South Africa is the forerunner in establishing voluntary party quotas, and many other African nations such as Rwanda, Uganda, Djibouti, and Eritrea all have some form of gender quota in their political systems. Because voluntary quotas are inherently not enforceable by law, they run the risk of being neglected by some political parties in order to gain a strategic advantage over those that have enacted the voluntary quotas. For instance, the Safina Party, a center-left Kenyan political party, has supported a voluntary quota providing that at least one-third of all elected officials be of one gender. Contrastingly, the Democratic Party, a more conservative movement within Kenyan politics, has rhetorically claimed that it follows the same policy, but the policy has yet to yield successful results. If the practice of voluntary party quotas is only implemented by the more liberal party, as has been shown to happen, there is the cost of the policy not being fully integrated as a broad-based cultural and political shift (“Kenya”). Nonetheless, because this policy is enacted by the parties themselves, there is less policy gridlock associated with government; therefore, the policy is relatively feasible. Legitimacy The application of voluntary party quotas serves to increase the legitimacy of the national government because it allows the representatives of government to be more representative of the people they serve. In this manner, gender quotas positively increase the descriptive and the
  • 16.
    substantive representation inelectoral politics. Quotas directly increase the number of females in elected roles, thereby increasing descriptive representation, and increase the likelihood that women’s interests in policy decision are taken into account, thereby increasing substantive representation (Pande & Ford 11). Additionally, the adoption of gender quotas in developing countries is associated with an increase in domestic and international legitimacy (Bush 131). Effectiveness Impact Category 1 (Community Involvement): Increased political participation for women can foster the role model effect, where elected female leaders serve as inspiration to other women aspiring to hold public office. Additionally, the experience that these female politicians gain will allow them to share information and advice with aspirants and give the hopeful female office- seekers a better chance to have a prepared campaign and mindset entering the process of seeking election (Pande & Ford 12). As for the immediate effect of increasing women’s political participations, gender quotas are associated with increased political participation for women. For example, women comprise 22 percent of legislators in countries with gender quotas but only 13 percent of legislators in countries without quotas (Pande & Ford 13). With regards to community engagement and normative changes, voluntary party quotas are related to evolving public attitudes that exhibit party commitment for gender equality. Interestingly, a study on gender quotas in India showed that female elected officials were less likely to be corrupt than male officials. This quality translated into a greater acceptance within the community (Pande & Ford 20). Impact Category 2 (Land Grabbing): Although there is no direct evidence about gender quotas leading to a decrease in the incidence of property grabbing, the greater political participation of women may have a positive impact on women’s land tenure security. While a decrease in property grabbing may be a low order effect of the immediate policy, increased political participation can facilitate women enacting policy changes that more accurately reflect their views and experiences. In national legislatures of Sweden, the Netherlands, South Africa, and Rwanda, there has been a trend of increased female participation coinciding with increased sponsorship of gender- and family-friendly legislation. In fact, this trend is deemed the “double divided” because women have a more prominent role in advocating for women’s and children’s issues than do men (Nzomo 1). Impact Category 3 (Economic Outcomes): As mentioned above, women as elected officials are more likely to petition for social safety net and infrastructure spending than are men, and the “double dividend” of female politicians spending more government expenditures on issues related to women and children is likely to occur. Once again, the economic outcome is a lower order effect of the policy, but it will presumably have a positive effect (Nzomo 1). Policy Alternative #2: Education and Public Awareness Campaign The Government of Kenya, either through its own extension of county commissioners or through programs conducted with support from NGOs like Landesa, should enact education and public awareness campaigns at the village level for all members of the community with monitoring and implementation accountability being placed at the county level. Cost
  • 17.
    The project andsubsequent study conducted by Landesa and USAID upon which this policy is based targeted 2,575 people in the Ol Pusimoru region of the Mau Forest of Kenya. The project studied the abovementioned targeted population alongside the total population of 11,526 people in the entire study. The pilot project cost $490,000, which equates to about $42.51 per person (USAID) (“Projects: Kenya). Assuming that this policy would be implemented to the rural population ages 15 and older, 57.9 percent of the rural population of 31 million would be impacted (“World Factbook”). Thus, the cost to the Government of Kenya to scale up the pilot project to affect the entirety of the targeted rural population is about $760 million. This number, however, might be higher than the actual cost because once initial resources are invested to create curricula and guidelines, these curricula and guidelines can be implemented in multiple counties and do not require initial investment every time. Feasibility A study conducted in Mexico on the feasibility of partnerships between governments and non- governmental organizations concerning reproductive health rights provision will be the basis of the feasibility assessment. This study is applicable to the land sector in Kenya because in both case studies, the government is not effectively fulfilling its duty of service provision; moreover, NGOs are utilized to fill gaps in service provision in both of the scenarios. This study stated that partnerships between NGOs and governments were feasible for service provision, especially in areas where the population is underserved by government provision of services (Gomez-Jauregui 42). The feasibility of partnership, thus, is high because NGOs currently serve as service providers, and the formalization of their partnerships will only increase the impact of their projects. Legitimacy The legitimacy of the Government of Kenya will be greatly enhanced by a formalized partnership with NGOs. While more than 35 percent of Kenyans believe than Kenyan politicians never have the best interests of the people in mind, nearly 40 percent believe that international NGOs have the best interests of the people in mind. In fact, 58 percent of Kenyans believe that NGOs have a sense of moral legitimacy. Interestingly, there is no transfer of legitimacy from the government to an NGO whenever one is provided services from an NGO; thus, people who view NGOs very highly are not more likely to view the government poorly (Brass 18-22). Partnerships with NGOs would have a positive impact on maintaining the legitimacy of the Government of Kenya. Effectiveness Impact Category 1 (Community Involvement): The pilot project was very effective in community recognition and normative changes in community governance. The community elders passed a new constitution for the village that recognized the importance of women’s rights. Additionally, women became more involved in local governance; two of the villages in the study elected 14 women to positions of elders out of 50 total. This election was the first time women had been selected as elders in Maasai and Kalenjin communities (“Projects: Kenya”). The successes of the pilot project will presumably translate into an effective policy at the level of
  • 18.
    county governments, andsuch policies will seek to increase the participation of women in county governments as well as in the propagation of social norms that are sensitive to the rights of women. Impact Category 2 (Land Grabbing): The pilot project resulted in chiefs and elders requiring spousal consent for all land transactions. Moreover, 34 women in the program were trained in forest management and alternative dispute resolution, and these women taught over 268 others the ways in which they can actualize their property ownership and management (“Projects: Kenya”). The training increased the percentage of women knowledgeable about their land rights to 71 percent of women in the targeted community, as compared to 57 percent in a neighboring control community (USAID). Although the decrease in the incidence of property grabbing will be a second order effect of the policy, the education and training programs nonetheless increase women’s awareness of the rights to ownership and governance. The implementation flaws of former policies involve the lack of knowledge of policies with those monitoring the policy as well as the beneficiaries of it. This policy will increase the awareness of both local land officials as well as the women whom the Constitution sought to protect (“Men and Women”). Impact Category 3 (Economic Outcomes): Similar to the decreases in the incidence of land grabbing, the economic impacts of the policy are third order effects. Women with land rights are more likely to have access to credit markets and to exert greater control over agricultural income. As for society, children’s lives are greatly improved by increased land ownership for women. A woman’s ownership of land reduces the odds by half of her child being severely underweight and coincides with increases in educational attainment of children (“Women’s Secure” 2). Policy Alternative #3: Land Titling Task Forces The Government of Kenya, initially with the help of NGOs such as GROOTS, should incorporate NGO-led task forces focusing on land titling issues into their county-level registration units. Cost The start-up costs will be relatively high, but the overall costs will decrease as time passes because the task forces will eventually be integrated into the land registration units. World Bank- funded regional projects within countries focusing in land registration and titling have ranged from $20 million to $80 million, so it is likely that this country-wide initiative would be less costly than the abovementioned $760 million education program (“Helping Women”). Although government expenditures are already focused on the joint titling of land as enumerated by the Land Registration Act, the inclusion of gender-sensitive task forces will only formalize and institutionalize the work of NGOs. For a comparable example of costs, a World Bank project in Ethiopia formalizing joint land titling cost $20 million, and the scaling of this project on a national level would cost around $140 million (Deininger 3). Similarly, the original project in Tajikistan on which this policy is based cost the government $115.6 million over the course of 10 years (“Republic of Tajikistan” 36). Feasibility
  • 19.
    The success ofthe policy in Tajikistan, especially given decidedly apathetic attitudes toward women’s participation in land titling before the program, is an example for the Government of Kenya. The prevalence of outside assistance, most notably with help from the World Bank, in implementing gender-sensitive land registration policies, especially in nearby Ethiopia, will invoke high political costs for the politicians that are not receptive of new trends in land registration. Similar discussions over NGOs complementing the state capacity to provide services apply to this policy as well as policy concerning educational programs conducted by NGOs. Legitimacy The Tajikistan District Task Forces were so successful in their NGO-led pilot projects that they have been expanded and institutionalized by district-level governments. These programs implemented in Kenya, conducted initially by NGOs until the state has the capacity to run them, are a means for increasing state legitimacy by increasing the transparency and legitimacy of the government that has been lacking in its service provision (“Increasing Women’s Access” 4). The gender-sensitive training will also show that the Government of Kenya is devoted to the welfare of its entire people and not just that of males. Effectiveness Impact Category 1 (Community Involvement): The community impacts are lower order effects of this policy, but gender-sensitive land registration has been associated with better household dynamics. Access to secure property rights through joint titling also increases women’s participation in not only the process of land registration, but also in the process of negotiation and decision-making within marriages. Women who are more likely to appear as owners on property documents and are more likely to participate in household decision-making (Doepke, Tertlit, & Voena 19). Thus, this policy will improve the status of women within their communities as an indirect outcome of more secure land rights. Impact Category 2 (Land Grabbing): The primary goal of this policy is to increase the ownership of property for women and to decrease the incidences of property grabbing. Accordingly, in Tajikistan, the District Task Forces increased the proportion of land titled to women by 12 percent, and women exercised significantly stronger ownership over their land (“Increasing Women’s Access” 4). More specifically, in a study conducted in Peru, after NGOs lobbied a government land titling program to conduct gender-sensitivity training for officials and to codify the clarification of women’s rights to the people with whom they were working, joint ownership rates of land skyrocketed from 13 percent to 43 percent over the course of four years (“Political Economy” 346). Impact Category 3 (Economic Outcomes): Economic outcomes are a second order effect of the policy because women’s access to credit increases as their ownership over land becomes more secure. Because women’s bargaining power in marriage increases as a result of heightened land tenure security, intra-household allocation becomes more equitable, which has positive impacts for health and education outcomes for children (Doepke, Tertlit, & Voena 18). In Ethiopia, studies have shown that land certification programs that increase the land ownership of women have a positive impact on the productivity of agricultural for both men and women, and this
  • 20.
    increased productivity canreap economic benefits for Kenyan communities with heightened land tenure security for women (Bezabih, Holden, & Mannberg 20). Policy Recommendation and Potential Challenges The policy proposing the scaling up of education and public awareness campaigns in conjunction with present NGOs and county commissioners will be the most all-encompassing and effective mechanism for strengthening the land tenure security of women. Because both this policy and the policy concerning NGO-led task forces are operated in coordination with NGOs, there are similar considerations for feasibility and legitimacy in the sense that 58 percent of Kenyans maintain that NGOs have a sense of moral legitimacy, a percentage much higher than their according approval of the central government (Brass 18-22). Both policies have the potential for overarching legitimacy and feasibility because NGOs are often necessary and extolled for filling gaps in service provision. In terms of effectiveness, not only does the education policy positively increase the community involvement of women, it also has been shown to decrease the incidence of property grabbing and indirectly improve economic outcomes for women. For example, the selected policy was shown in the Landesa pilot project to have led to the requirement of spousal consent in all decisions concerning land transactions, and this increased participation in the decision-making processes for women may strengthen women’s user rights (“Projects: Kenya”). As a whole, while the policies bolstering political participation and land registration focus on increasing community involvement and decreasing property grabbing, respectively, the policy of education and public awareness has the greatest amount of impact in all measures of effectiveness, while still maintaining the same high marks for legitimacy and feasibility as the other policies. The largest challenge to the implementation of this policy will be the monetary costs associated with it. Although the estimate of $760 million may be a high estimate because it does not take into account reaching economies of scale or eliminating the cost associated with developing a project plan (because the pilot project already created a model), this cost still proves to be about six times as costly as the implementation of NGO-led task forces and infinitely more costly than voluntary party quotas. In order to mitigate this challenge, the costs and policy could be implemented over the course of 10 years, much like how the land titling District Task Forces were implemented in Tajikistan; this approach would not only ease the burden of initial monetary costs, but it would also allow more time for the policy to become institutionalized and develop best practices for education and public awareness. After the 10-year period, the policy could be reevaluated in order to continue it with help from NGOs, institutionalize it into a solely government endeavor, or discontinue it. Moreover, there will be institutional and political challenges to the implementation of the policy concerning education and public awareness campaigns. With Kenya’s experiment in the devolution of power from the central government to the county governments still in progress, there will be significant political considerations for the implementation of the policy. The balance between county-level implementation and national-level support may undermine the policy, as is evidenced by recent claims by county governments that the national government has underfunded county governments in a concerted effort to reverse the devolution (“Governors”).
  • 21.
    Similarly, there hasbeen contention at the county level concerning the presence of county commissioners, executive officials that are tasked with carrying out national policies at the county level. Many in the county governments believe that these appointed officials are simply a mechanism for the national government to counter the process of devolution. Although the county commissioners are viewed as counterproductive by county officials, they may be the point of success for implementing education and public awareness campaigns. Tasked specifically with “coordinating national government functions [with the] delivery of services,” the county commissioners can serve as the link between the national government, county governments, and NGOs in implementation and could provide monitoring and accountability mechanisms in order to ensure the success of the education and public awareness campaigns (“Role of the County Commissioners”). If implemented over the course of 10 years, the $760 million per year will be outweighed by the political and socioeconomic benefits of the education and public awareness campaign. The strengthened land rights of women will increase women’s access to credit and lead to indirect benefits for children and society at large such as increased educational attainment of children and a lower likelihood of underweight babies. As mentioned before, the increased access to productive resources and land created by the policy may produce a 2.5 to 4 percent boost in agricultural productivity, a significant boost for Kenya where agriculture accounts directly and indirectly for 51 percent of the GDP (Feed the Future). If this policy were effective, the boost in GDP for Kenya would be around $1 billion with a low estimate and around $1.6 billion with a high estimate, more than doubling the cost of the policy (“World Factbook”). Policy Implementation The policy would include a targeted training curriculum centered on legal literacy and land management with an emphasis on the rights of women and children, community building with targeted stakeholders, peer training groups for stakeholders to internalize and share their education to others credibly, and publicity campaigns for education and legal awareness. In order to undertake this multifaceted approach, localized buy-in is paramount because the policy’s success rests on the acceptance by members of villages. Additionally, the recruitment of NGOs to provide training and employees is necessary to generate enough human capital to enact the policy. The primary actors for implementation would be the Government of Kenya and the NGOs working with it. Accountability and implementation measures would primarily be placed upon the county governments with the larger mandate given by the national government. The plan would be modeled after Landesa’s pilot project, and thus, Landesa and willing NGOs in Kenya would be integral to the initial success of the policy. Similarly, the stakeholders would include all of the above actors, as well as members of the villages to which the education and public awareness is targeted. In this way, the success of policy depends on the efficacy of education and public awareness programs. The Landesa pilot project has shown that targeted policies, group training, and education can lead to favorable outcomes for strengthening women’s land tenure. Conclusion
  • 22.
    Customary patriarchal practicesundermine land tenure security for women in Kenya. Customary traditions are associated with higher rates of poverty for female-headed households than for male-headed households as well as higher incidence of property grabbing for women, often widows or orphans that have lost their ownership to land because of a lack of a male relation. The 2010 Kenyan Constitution and subsequent legislation such as the Matrimonial Property Act and the Land Registration Act have sought to increase women’s rights through prohibiting discrimination and extending property rights to women, but the efficacy of these reforms has been undermined by a lack of localized buy-in. The policy alternatives evaluated target different ways of increasing women’s land tenure security. The first policy includes voluntary party quotas and seeks to tackle the lack of political empowerment for women, while the second and third policies focus on education and public awareness campaigns and county-level land registration task forces to promote awareness of women’s legal rights and combat property grabbing, respectively. The policy of education and public awareness campaign improves land tenure security by having the county-level governments work alongside NGOs to increase women’s knowledge of their rights. Whereas the policies of voluntary party quotas and land registration task forces target one specific aspect each of effectively improving women’s land tenure security, the policy of education and public awareness more holistically increases women’s political and community participation, decreases property grabbing, and betters women’s economic outcomes. Although the costs of the policy are much higher than the other alternatives, the gradual implementation of the policy over the course of 10 years will alleviate the high initial costs, and the improvements on women’s land tenure security will presumably result in economic gains that will be double the cost.
  • 23.
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