Critique of the Constitutionality of the Law of Succession Act and Inheritance Rights of Women in Kenya
Abstract
The Constitution of Kenya, 2010 has brought in a paradigm shift in the treatment of every person
in Kenya. Through its equality provision, the Constitution, 2010 abhors discrimination against
either gender by providing an equal platform to the issues of property ownership and inheritance.
In fact, Article 27(3) reinforces this point by providing that women and men have the right to
equal treatment, including the right to equal opportunities in political, economic, cultural and
social spheres. Property inheritance, which was the subject of this study was hitherto controlled
and managed to the benefit of the male gender through archaic legislations. The Law of
Succession Act, the Islamic Sharia Law and the Customary Laws were couched in patrimonial
terms thus making it difficult for the female gender to inherit property in Kenya. This thesis thus
proceeds on the basis that the role of courts under the new constitutional dispensation is crucial
in giving effect to the equality clause under the constitution, 2010. Courts through interpretative
role can either declare a given act or provision of the law unconstitutional or read in a right into
the discriminatory laws through its new mandate of developing the law to conform to the dictates
of Constitutionalism. Accordingly and in conclusion, the thesis urges the society as a whole
through its stratified segments to be vigilant and vibrant in ensuring that constitutional means
such as litigation are encouraged to ensure that past discrimination against women in property
ownership and inheritance are totally eliminated.
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
- School of Law [291]
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