Rural Women Land Rights Charter of Demands - October 13, 2016 1

Rural WomenLand Rights Charterof Demands

October 13th 2016

Rural Women Land Rights Charter of Demands - October 13, 20162

Preamble The existing gender inequality in access to and control over land and natural resources is an obstacle to the sustainable management of natural resources and socio-economic development. Land is one of the cornerstones of economic development on which farmers, pastoralists and other communities base their livelihoods. Land is also a significant component of business assets, which play significant role in business investment strategies. Thus, securing land rights can have a profound impact on economic development. Land in rural areas is both a means of agricultural production, livestock rearing and a place for gathering natural products that play an important role in local economies such as woodcutting, wild harvesting, grazing, fishing, hunting, etc. Furthermore, land is a source of identity and cultural heritage. Women produce more than 80% of the food in Africa, yet they own only 1% of the land (SOFA, 2011). Therefore, improving women’s access to and control over land is crucial to socio-economic development of Africa.

We the rural women gathered here on the 13th of October, 2016 to reiterate our fundamental inalienable human rights.

Taking advantage of the declaration of the year 2016 as ‘Africa year of Human Rights with special focus on women rights’ to assert our right to land and natural resources;

Conscious that the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the context of National Food Security require States to fully recognise and respect the rights of all legitimate land users;

Aware that the Land Policy Initiative (LPI), now Africa Land Policy Centre (ALPC) in partnership with the Africa Union Department of Rural Economy and Agriculture (DREA) launched the 30% campaign for women’s land ownership on 8 July 2016;

And cognisant that the AU Specialized Technical Committee on Agriculture, Rural Development, Water and Environment (STC) endorsed a decision in October 2015 recommending member states to “move towards allocation of 30% of land to women to improve the rights of women to land through legislative and other mechanisms”;

Affirming the need for much more detailed framework for actualizing the 30% campaign on women’s land ownership in Kenya;

And further affirming The United Nations Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), Article 16(1) (h) states that States must ensure the same rights for both spouses in respect to the ownership, acquisition, management, administration, enjoyment and disposition of property and imposes obligation on states to undertake and incorporate the same provisions in their National law;

Drawing from Sustainable Development (SDGs) Goal 1 target 1.4 that seeks to ensures that by 2030, all men and women, in particular the poor and the vulnerable, have equal rights to economic resources, as well as access to basic services, ownership and control over land and other forms of property, inheritance, natural resources, appropriate new technology and financial services, including microfinance;

Recalling that land and property rights are one of the strategic focus area of the Beijing Platform of Action; a framework that aspire to increase the productive capacity of women through access to capital, resources, credit, land, technology, information, technical assistance and training so as to raise their income that was least implemented;

Noting that Beijing Platform of Action enable women to obtain affordable housing and access to land by, among other things, removing all obstacles to access, with special emphasis on meeting the needs of women, especially those living in poverty and female heads of household is now being emphasised by new framework including SDGs;

Aware that Article 7 of the Maputo protocol stipulates that state parties shall enact appropriate legislation to ensure that both women and men enjoy equal rights in case of separation, divorce or annulment of marriage;

Further noting the urgency in mobilizing to protect women’s right to full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources as anticipated in Beijing Platform of Action;

Rural Women Land Rights Charter of Demands - October 13, 2016 3

Aware that the African Union, in consultation with governments and civil society, developed guiding principles on large scale land based investments in Africa, which provide useful safeguards to protect communities from forceful unwarranted dispossession, as well as addressing related issues such as gender inequality in land ownership and tenure security for women which underscores the need for transparency, full disclosure in negotiation of contracts, besides requiring free, prior and informed consent of affected communities;

Drawing on our lived realities where women continue to be dispossessed of their land and arbitrary evicted to pave way for large scale land based investments in Kenya despite the existence of guiding principles on large scale land based investments;

Concerned that the pluralistic legal framework leads to overlapping of various legal domains and practices in governing land superimposed on customary law and practice that places women at a disadvantage to men;

Guided by principles of Kenya National Land Policy and recognition of security of tenure for all Kenyans (women included)

Bearing in mind that the Constitution of Kenya Article 40 provides for the protection of the right to property and stipulates that subject to Article 65 of the constitution, every person has a right either individually or in association with others to acquire and own property of any description and in any part of Kenya;

Further noting that the Constitution of Kenya, Article 40 (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property and this is supported by Article 17 (1) and 17(2) of the Universal Declaration of Human Right (UDHR);

Affirming Article 61 (1) of the Constitution of Kenya 2010 that all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals and that joint ownership and co-ownership among spouses is recognized in Kenyan laws;

Aware that Article 10(2) (b) of Constitution of Kenya sets out the national core values and principles of governance which includes human dignity, equity, social justice, equality, protection of the marginalized and freedom from discrimination.

In exercise of the Constitution of Kenya Article 60 (1) that provides key principles that guide land use and management in Kenya notably:

a) equitable access to land;

b) security of land rights;

c) sustainable and productive management of land resources;

d) transparent and cost effective administration of land;

e) elimination of gender discrimination in law, customs and practices related to land and property in land;

Reiterating that the Constitution of Kenya Article 27 (3) states that men and women have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres; and sub article (4) states that the government shall not discriminate directly or indirectly against any person on any grounds including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour age, disability, religion, conscience, culture, dress, language or birth.

Concerned that Constitution of Kenya Article 68(c) (iii) providing for parliament to enact legislation to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage and Article 68(c)(vi) providing for parliament shall enact legislation to protect the dependents of deceased persons holding interests in any land are likely to be violated if the Land Amendment Bill is enacted as currently is;

Noting with concern that contrary to our constitutional values, gender-neutral laws are constantly operating in gendered social, economic and cultural contexts that often prioritise ownership and land rights to men or

Rural Women Land Rights Charter of Demands - October 13, 20164

to kinship groups controlled by men, therefore limiting women’s access and control over land;

Concerned that the just enacted Land Amendment Act will erode or even eliminate women’s land rights as provided in the Matrimonial Property Act of 2013 that vests matrimonial property in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses with reference to the contribution;

Further acknowledging that under the community land Article 63(4) of COK asserts that community land not to be disposed except after specifying the rights of each member of the community either individually or collectively further anchoring women land rights in communal setting;

Hereby solidly agree to define a path to realization of our land rights and THEREFORE COMMIT OURSELVES AND OTHER SIGNATORIES TO THIS CHARTER as follows:

2 Our Demands/Asks

2.1 Promoting women’s effective participation on land governance units form local level

2.1.1 Ministry of Lands should mount fully financed awareness and sensitization programs on policies and laws that govern the land sector with specific bias to women land, property and natural resource rights

2.1.2 As a priority the Ministry of Lands and National Land Commission should embark in simplification of land laws including translating them into vernacular/Swahili languages. Special facilities should be provided for women living with disability to enable them understand the laws and policies and take lead in pursuing their land rights.

2.1.3 The Government should promote Human Rights education that clarifies the role of various state institutions in land governance the administration., especially at local level.

2.1.4 That the state eliminates all access to justice barriers that limit women participation in land administration and governance.

2.1.5 Further, Government should take deliberate efforts to promote women’s participation in community land governance, including playing active roles in relevant committees as provided under the Community Land Law.

2.2 We demand Policy and Legal Reforms that are relevant to realization of women land rights

2.2.1 Government to address recent legislative reforms on land governance that negate the land and property rights of women as anchored in the Matrimonial Property Act 2013 and the Maputo Protocol including a review of the just assented Land Amendment Act 2015

2.2.2 The Government should endeavour to do public land mapping as mechanism to curb the different conflicting interests and ensure FPIC safeguards apply to ‘public purpose’ land deals and public-private partnerships.

2.2.3 Ensure transparency throughout the consultation and investment process by requiring investors requiring land publicly disclose all relevant information throughout all stages, including Human Rights Impact Assessments and Environmental Social Impact Assessments.

Rural Women Land Rights Charter of Demands - October 13, 2016 5

2.3 We demand for the engendering of Land Administration and Governance

2.3.1 As a matter of priority the Government should simplify land titling process, decentralise and make information available in local languages

2.3.2 The government should further decentralize land titling and registration processes to the lowest administrative unit, preferably at ward level supported by country wide publicity. Legal safegurads should be put in place to secure women’s land and property rights.

2.3.3 The government should define and clarify the role of the chiefs in the management of land disputes with an aim of halting extortions of women seeking justice on land matters at the grassroots level

2.3.4 The government should implement the constitutional principle of having not more than 2/3 representation of either gender in land administration and governance units, including safeguards for representation of rural women

2.3.5 The state should support reform processes aimed at diversifying traditional decision-making structures to include women in councils of elders and community policing initiatives in line with the Constitution of Kenya 2010

2.4 We demand for the strengthening of women access and ownership of land and common property resources

2.4.1 As a matter of priority, the government should ensure, to the largest extent possible, that all the new land titles on matrimonial property being issued are joint titles, bearing names of both spouses

2.4.2 The state should develop a clearly defined process of acquisition and documentation of the settlement schemes, including affirmative action that ensures over 60% of the direct beneficiaries from schemes are women

2.4.3 In the spirit of implementation of Community Land Act 2016, the government should facilitate processes that open group ranches to membership of women, including their participation in leadership of these group ranches

2.4.4 Government should suspend and review large-scale land concessions, special economic zones and major irrigation schemes supported under Public Private Partnerships and further policies, initiatives, projects and policy advice that incentivize large-scale land acquisitions

2.5 We demand for the regulation of large scale land acquisition/ grabs that affect women

2.5.1 Government should ensure the right to free, prior and informed consent of all affected communities. In addition the state should ensure free, prior, and informed consent (FPIC) for all land use changes, with consultations involving fair and equitable participation of all groups within local communities, especially women, children, minorities, the elderly and disabled

2.5.2 Governments should ensure that business enterprises adhere to human rights principles by doing due diligence and conducting and publishing periodic independent gender-disaggregated human rights impact assessments reports before and across the project life, and respect FPIC for all affected local communities.

2.5.3 Any environmental impact assessment (EIA) or human rights assessment carried out should be done with the participation of women and the local community, and should be made accessible to women in affected areas in

Rural Women Land Rights Charter of Demands - October 13, 20166

both its original language and in a version that is easy for women to understand

2.5.4 National and county plans should prioritize resettlement in case of compulsory acquisition before payment of compensation. The compensation process should be accompanied with pre-education and split into lump sum and instalment payments spread over time. Such compensation should be paid direct to a family account with both spouses as signatories.

2.5.5 The government should include the exclusive liability principle in investment agreements to hold the awarded corporates fully responsible for any pollution or damage arising from their investments/operations

2.5.6 Governments should strengthen and ensure access to independent, transparent, affordable and accountable domestic human rights-based grievance mechanisms by women and communities.

2.5.7 Given the massive investments and their implications on the water resources in the counties, the county governments should develop a robust and well-funded framework to support realization of the right to water

2.6 We demand access to justice (formal and informal) for women land rights

2.6.1 Governments should strengthen frameworks that promote the accessibility of justice including creating partnerships with women, court users committee, and the judiciary to promote effective service delivery

2.6.2 The Environment and Land Court should be decentralized to increase its accessibility to rural women while providing free and fair arbitration on land issues

2.6.3 The National Land Commission should fast track development of comprehensive guidelines that not only provide for mandatory inclusion of women in Alternative Dispute Resolution (ADR) structures but detail the capacity development processes for women to pursue their rights effectively in these processes

2.6.4 In the service delivery charter of the judiciary, efforts should be made to shorten the period within which land matters affecting rural women should be concluded including a guide on basic process and necessary preparations women have to make for effective defence of their rights

2.6.5 In situations where informal justice is employed, there is an urgent need for proper documentation of processes, decisions and actions implemented and the extent to which they promote realization of women land rights

2.6.6 Councils of elders should be trained to resolve land disputes informally using Alternative Dispute Resolution (ADR) mechanisms as per article 159 (3) of the constitution of Kenya 2010

2.6.7 The government should prosecute and impose penalties on retrogressive out of court settlements on land disputes that are contrary to constitutional provisions.

2.7 We demand for Social inclusion for women with disability and HIV/AIDS on land

2.7.1 We demand for a comprehensive mapping of disability and other groups requiring social inclusion and their land issues should be developed by the relevant national government agencies

2.7.2 Programmes that are friendly to people living with disability, HIV and other

Rural Women Land Rights Charter of Demands - October 13, 2016 7

groups that require special support, including having title deeds in braille format to ensure accessibility of services should be developed by the relevant national government agencies

2.8 We demand increased public investment in livelihood security that does not endanger Women’s Land rights

2.8.1 Public financing for agriculture and our livelihood initiatives must work for us. Public financing for this sector remains the only sure way of alleviating women’s poverty. In line with the Maputo and Malabo Declarations, a national allocation and expenditure of at least 10% of the national budget should go towards supporting such initiatives

2.8.2 The state should regulate the use of land as collateral for women accessing loans to ensure 1) lack of control over land does not limit women’s access to financing 2 ) Inability to meet loan obligations does not result to loss of land.

2.9 We demand the protection of land rights activists advancing women land rights

2.9.1 The government should join our efforts in ending illegal and militia type harassment and threats to women in pursuit of individual and collective land rights in various parts of the country

2.9.2 Parliament should enact laws to protect women pursuing legitimate land rights and the human rights defenders supporting them in this course

2.10 We demand accountability in the delivery of the demands as captured in this charter

2.10.1 From today we shall hold the government to account on basis of the aspirations of this charter

2.10.2 At county level, we shall form highly effective mobilizations that will serve to track the implementation or violation of this charter at the grassroots level

2.10.3 We the rural women and our organizations will produce shadow status reports on implementation of this charter

2.10.4 Unreservedly, we the rural women demand annual reports on the progress of implementation of this charter and annual dialogue sessions on progress made in realization of the aspiration of this charter

Rural Women Land Rights Charter of Demands - October 13, 20168

3 We herein sign on behalf of our Networks

NAME COUNTY ID NUMBER MOBILE NUMBER

SIGNATURE

Mackrina Mwamburi Taita taveta 11312040 0725 027 323

Mary Shimwenyi Kakamega 0936523 0725 640 416

Christabel Wandera Kisumu 28285467 0718 434 129

Lucy Njoki Laikipia 12780743 0727 407 083

Jeniffer Kasana Laikipia 3214703 0719 259 379

Dorcas M. Gibban Taita Taveta 5347881 0728 048 424

Elizabeth J. Ngimor West Pokot 0303823 0718 789 159

Martha Akinyi Migori 11124573 0728 689 292

Jeniffer K. Mutinda Kitui 10879910 0720 429 266

Subira Kitambara Mombasa 24753373 0717 651 557

Faith Ochieng Homa Bay 20480744 0710 387 193

Milka Chepkaka Baringo 13063898 0712 701 967

Mercy Gichengi Meru 22961177 0723 577 403

Mary M. Musyoka Kitui 3768692 0723 552 369

Zainab Salim Kilifi 0686740 0721 370 057

Dorcas M. Gibran Taita Taveta 5347881 0728 048 424

Miriam Basca Tana River 13018222 0725 397 706

Anne Ombaye Homa Bay 3978095 0726 862 685

Naomi Njunguna Muranga 10167119 0726 897 059

Irene N. Munyua Kiambu 2302087 0721 517 689

Jeniffer Kibon Baringo 70787712 0729 933 684

Sidi Meza Lamu 20642368 0724 082 106

Teresia Kimani Kiambu 11337404 0725 500 560

Rukia Wambua Kiambu 074447 0726 128 984

Rebecca A. Oduor Siaya 0110283 0722 123 609

Elizabeth C. Kibet Nakuru 3637405 0721 640 315

Susan M. Kioko Kilifi 9815250 0720 833 819

Cecilia W. Ng`ang`a Lamu 4920228 0711 444 927

Rachael Ojala Kakamega 11821554 0720 361 864

Trevenia Mwamburi Kilifi 13709222 0729 398 157

Joyce Dama Mombasa 225975918 0728 780 598

Leyla Samir Mombasa 24307919 0715 461 913

Esther Takule Kajiado 9831642 0710 472 899

Alice Taipapusha Kajiado 21569042 0722 405 110

Anna Wadamai Siaya 5133513 0722 405 110

Rodah Wekesa Kisumu 11019468 0716 584 978

Rural Women Land Rights Charter of Demands - October 13, 2016 9

NAME COUNTY ID NUMBER MOBILE NUMBER

SIGNATURE

Rose Arhiaibo Nairobi 25225810 0726 579 960

Mary M. Musyoki Kitui 3768692 0723 552 369

Susan W. Karima Muranga 22486579 0726 871 550

Wairimu Kanyiri Nakuru 7917180 0724 775 708

Anne Gachambi Njuki Kiambu 13841356 0712 143 592

Mary V. Saleka Taita Taveta 5408834 0717 618 760

Marilyn Martha Muthui Kitui 14563053 0715 146 160

Joyce Dama Kambi Kilifi 9205683 0727 299 748

Lucy Nkatha 0725 874 761

4 Logos of Convening Organizations

Rural Women Land Rights Charter of Demands - October 13, 201610

AppendicesAppendix 1 Background to the Charter In Africa extreme poverty is disproportionately concentrated in rural areas, where nearly 80% of rural households rely on land to produce food to feed their families and sustain their livelihoods. The Food and Agriculture Organization estimates that 70% of the female population live in rural areas, where they carry out 60 to 80 percent of the agricultural work.

The Taskforce on the Review of Laws Relating to Women, indicated that Kenyan women contribute over 80 percent of the agricultural labour force; 64 percent to subsistence farming, and produce approximately 60 percent of farm-derived income. Despite women’s enormous contribution in the agriculture sector and national GDPs, women’s access to and control over land in Africa and in Kenya remains unclear with statistics of ownership varying between 1 – 7 %.

In a rapid survey done by rural women in 8 counties in Kenya, it was apparent that 8 out of 10 women are dependent on natural resources for their livelihoods, besides their involvement in agriculture.

Land has numerous benefits including serving as collateral and providing the basis for agricultural production. Access and control over land therefore affords women enhanced bargaining/decision-making power as well as conferring them old age security and a fall-back mechanism in case of divorce or partner’s demise.

Although we the Kenyan rural women have achieved some gains, they remain largely on paper. The lack of or limited access and control of land by women has been caused by not only the insensitive culture that entrenches patriarchy, but also through administrative and judicial practices that have effectively served to deny women the benefits arising out of accessing, owning, and controlling land and natural resources.

We continue to be affected by mining agreements whose signing is exclusively between the government and mining companies without our knowledge, participation and consent. Consequently, in most cases we lack comprehensive understanding of the nature of the agreements and implications of the planned actions on their socio-economic rights – including the right to land, food, water, shelter and self-determination.

Evictions to allow for mining activities and other investments plans are carried out without alternative resettlement plans while compensation plans do not take into account women’s needs. Lack of guidelines on large scale land acquisition leaves women at the mercy of investors.

Men continue to take prominence in land-inheritance custom matters, often times to the complete exclusion of their wives, mothers, and daughters. Woman-headed households are frequently excluded from communal lands sharing.

From consultative dialogues with other rural women from 22 counties, here are our most prominent cross cutting issues were:

• Our capacity to pursue our land rights

• Culture and patriarchy

• Administration related challenges

• Threats to women human rights defenders

• Land grabbing

• Legal and policy gaps in community land governance.

Rural Women Land Rights Charter of Demands - October 13, 2016 11

Appendix 2 Objective of the CharterThe objectives of this charter are:

1. To provide a comprehensive framework (tool) for us the grassroots women to demand recognition, protection and respect of our land rights at grass root, county, national and international level

2. To provide a reference document that highlights the struggles that we face in pursuit of our rights to access, use and own land and serve as a basis for influencing policy and practice

3. To provide basis for the mobilization and empowerment of women to enable them to engage relevant institutions to secure their access and ownership of land and natural resources

4. To provide a platform for the engagement of women in the policy making process and inclusion in the various committees, tribunals and other avenues that determine property rights issues.

5. Mobilize political will and commitment to implement pro-women policies towards women’s land and natural resources agenda

6. To serve as the basis for strengthening monitoring process so as to highlight challenges, lessons learnt, and the progress in the implementation of the charter.

Appendix 3 Methodology for the development of the charterThis charter has been developed through highly participatory and inclusive processes, which included:

i. Extensive literature review on women land rights agenda

ii. Extensive awareness creation on land laws and policies to women were conducted in Isiolo ,Kilifi, Taita Taveta, Kajiado,Baringo,Mombasa and Siaya

iii. 1st National Rural Women convening on land and natural resources agenda that involved women drawn from 44 women drawn from 22 counties who identified the need to develop a comprehensive charter of demands. These Counties are lamu, Kilifi, Tana River, Mombasa, Taita Taveta, Kitui, Meru, Embu, Kajiado, Nairobi, Nakuru, Laikipia, Baringo, Kiambu, Muranga, Kakamega, Siaya, Homabay, West Pokot, Homabay, Kisumu, Makueni and Migori

iv. Rural women involved in the first convening undertook extensive consultations involving 43,868 rural women and identified priorities that is reflected in this charter

v. Social action oriented research approach to the development of the charter where views of women were sought in 8 counties (10 random samples, 3 focus group discussions for women, 2 focus group discussions for men and 5 key informants in each county. And data analysed from the responses to discern trends relevant to women land rights agenda

vi. 2nd National convening for rural women was undertaken with 50 women from 24 counties finalizing this charter

vii. Judicious borrowing on both issues and demands from localized/ county level charter of demands developed by women during mini-Kilimanjaro events

viii. Proclamation of the charter by us the rural women.

Rural Women Land Rights Charter of Demands - October 13, 201612

All Africa Conference of Churches Building, Waiyaki WayIbium House, Second Floor

P.O Box 42814-00100, NairobiLandline: +254 (020) 4440440/4/9

Safaricom Lines: +254 722518220, +254 722207749Airtel Lines: +254 733333352, +254 733330053

Email: info.kenya@actionaid.orgActionAid Kenya @ActionAid_Kenya ActionAid Kenya

www.actionaid.org/kenya

In partnership with: