More Just Inheritance Laws for Our Sisters and Mothers: Provisions of the Law of Succession Act Deemed Unconstitutional

In October 2021, the Senate Committee on Justice, Legal Affairs, and Human Rights released a report on the Law of Succession (Amendment) Bill tabled in the House earlier that year. The appendices of the report included KELIN and FIDA’s submissions on the Bill. Their submissions were quite extensive, and the Senate Committee seemed to draw much inspiration from the two non-profits. Among the changes proposed by the organizations were:

• Conforming the definition of “spouse” in the Law of Succession Act to that in the Marriage Act. This would mean that, even for purposes of succession, men in monogamous marriages would have no legal capacity to marry other women under customary law, and their wives in their monogamous marriages would need not fear being automatically disinherited of matrimonial property. This is especially important given that, as of 2019, there are six times more widows than widowers in Kenya.^[1] Even biologically, men just have a lower life expectancy.^[2]
• Extending the interest of widows in the estate of their former spouses beyond a life interest that ends on remarriage. This would put widows on the same footing with widowers.
• Conforming the Law of Succession Act (LSA) to the Community Lands Act and the Matrimonial Property Act. This would clarify the position of the law on the inheritance of community-owned land and matrimonial property.

Though the Bill eventually became law, it did so with major alterations. In fact, only the first of these proposed changes was passed; the rest were discarded. It is against this backdrop that Ripples International brought a constitutional petition before the High Court at Meru: Ripples International vs Attorney General and another; FIDA (Interested Party) [2022] eKLR.

Ripples International, a child rights organization keen on access to justice for women and children, sought to have Sections 32, 33, 35(1)(b), 36(1)(b), and 39(1)(a) and (b) of the LSA pronounced unconstitutional by the High Court at Meru. It is these provisions of the LSA that are largely responsible for the problems that KELIN and FIDA strove in vain to resolve. The child rights advocacy group aimed to have the Judiciary compel the Legislature to draft new amendments effecting what KELIN and FIDA had proposed a year before.

In the case in question, there was no specific person who Ripples International claimed had had their rights infringed. In most private disputes, this would bring the doctrine of mootness into play: where there is no real dispute in question, the court often declines to pronounce itself on the law. After all, the court is meant to be an adjudicator of rights, not a legislator. Yet the court is not obliged to set aside such matters. Rather, it does so at its discretion. With this in mind, Edward Muriithi, J., rose to the occasion. In his view, the doctrine of mootness has much less weight in public interest litigation, presumably because there are almost always specific rights in question in such litigation, even without the presence in the courtroom of an actual person claiming that his or her rights were infringed.

Having established the jurisdiction of the High Court in the matter, the learned judge went on to declare Sections 35(1)(b), 36(1)(b), and 39(1)(a) and (b) of the LSA unconstitutional. The first two of these provisions restrict a widow’s life interest in the property of her deceased spouse to the time of her remarrying, unlike that of the widower who remarries; the third gives priority to the father ahead of the mother over the property of a child who dies intestate, unmarried, and childless. In the judge’s welcome opinion, these provisions contravene the right of women to freedom from discrimination under Article 27 of the Constitution of Kenya.

However, he declined to deem Sections 32 and 33 unconstitutional. These provisions provide for land in certain regions of the country to be subject to customary inheritance laws. The petitioner had urged that these clauses of the law be struck out to reduce the impact of customary laws that they described as “patriarchal”. Justice Muriithi rightly declined to grant this prayer without evidence that the mentioned customary laws are, indeed, discriminatory.

In a concession to the Legislature, he also declined to issue orders compelling the legislators to draft better legislation on the matter.

At the risk of being repetitive, the decision is welcome for many reasons. Not least of these reasons are the rising cost of living, the real and perceived dependence of many people on higher educational opportunities for income earning,^[3] the high proportion of people, and particularly women, who have attained only primary level education at best,^[4] and the national increase in single-mother households, about a fifth of which are headed by widows.^[5] In short, essential goods cost more, women are less likely to get the education needed to earn the income to afford them, and women are more likely to end up living in households dependent primarily on one income: theirs. The High Court’s decision is a step in the right direction.

Even so, there is cause for caution. In the absence of policies reinforcing the cohesion of families, it is possible to construe the High Court’s judgement as one more step towards unbridled female independence. This is especially true given that some of the main advocates for the changes that this judgement portends lend vociferous support for so-called reproductive freedom, a cause that denigrates women. In the words of one wise woman, “The only way that a prohibition on elective abortion can be thought to denigrate women is if one holds a priori that woman’s distinctive reproductive function is itself denigrating of women,”^[6] a view that is held when the goods of the market are valued over the families that are called to produce and nurture responsible members of the society.

The High Court’s judgement does warrant celebration, not because it goes a step further towards enabling women to be free from men, but because it supports the households from which all men and women come, even when these households fall apart.

 

By Adrian Nyiha, LLB Hons, Strathmore University and a legal assistant at Nyiha, Mukoma & Co. Advocates.

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