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Equal Right to Property for Women under International Human Rights Law

An Analysis of the Legal Protection in Kenya

Studien zur Rechtswissenschaft, Band 490

Hamburg , 202 Seiten

ISBN 978-3-339-13978-8 (Print) |ISBN 978-3-339-13979-5 (eBook)

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The study is inspired by the general situation of women with regard to property and particularly land in Kenya. To date, discrimination and inequality with regard to property and land in particular continue to be pervasive whereby the disparity of ownership of land between men and women stands at Seventy Five percent.

Comprising of five chapters, the study analyses the legal protection of the right to property for women by laying open the existing international and national legal framework available in Kenya. Upon establishing a State’s obligation in this regard, it unravels the reasons wherefore, discrimination against women with regard to property persists to date.

The study largely attributes the continued discrimination of women to laws, customs and practices that Kenya has failed to modify or abolish as obligated under CEDAW and the Protocol to the African Charter on Human and Peoples Right on the Rights of Women in Africa (the Maputo Protocol) to which it is a State party.

The question remains whether the Kenyan legal system is aware of the principle of interpreting national law in a manner consistent with international law. This is because despite Kenya having express provisions in the Constitution stating that the general rules of international laws and treaties and conventions ratified by Kenya shall form part of Kenyan law and being a State party to a raft of human rights treaties, the dejure and the defacto situation of women rights with regard to property in Kenya continues to be far apart.

The study proposes a change of approach through legislative and judicial arms of the State whereby the legislature should adopt new approaches such as intersectionalism and adoption of special temporary measures in the legislation and the judiciary should intentionally, consciously and consistently apply international law in the Kenyan Courts, to ensure that women reap the gains of Kenya’s international obligations provided under international human rights instruments.

The study is intended not only to broaden the existing knowledge of the situation of women in Kenya but also to inspire continued advocacy among scholars, legal practitioners, legislators, judges and magistrates towards attainment of equality in relation to the right to property for women.

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