Kenya’s laws of succession and the bill of rights of the Kenya constitution (2010): a study in legal reform.
The Law of Succession Act Cap 160 came into force in 1981 and was meant to create a single legal succession regime applying uniformly to all Kenyans; and to comply with international obligations including those enshrined in the Convention on Elimination of Discrimination against Women (CEDAW) adopted by the General Assembly of the United Nations in 1979. Even in its present revised form, the Law of Succession Act (2015 revised), the Act has provisions that apply specifically to Muslims and to the customary laws of the people located in specific areas in the country. As a result the Act discriminates against women on the basis of gender and is inconsistent with the constitutional rights enshrined in the Bill of Rights of the Kenya Constitution (2010). This study seeks to assess the compatibility of the Law of Succession Act (2015 revised) provisions with the new constitutional dispensation in Kenya whereby the right not to be discriminated against on the basis of gender is guaranteed in accordance with article 27(4) of the Kenya Constitution and also international human rights standards and practice. The study shows that there are numerous factors such as the Kenya marriage laws and practices, judicial enforcement mechanism and political circumstances that affect how succession claims are practised and enforced. A comparative analysis with South Africa is alluded to because it shows how statute law and customary law used to apply to the whites and black people respectively and how they managed to change these laws and eventually created a uniform legal succession regime.Part of the study focused on Narok County; several interviews there confirmed that the practise of customary succession laws is prevalent in rural Kenya and that women undergo duress and discrimination whenever they try to defend their legal and constitutional rights and to find legal assistance on the same.The study recommends, among other solutions, that the Law of Succession Commission should enact a new succession law with uniform application excluding discriminatory provisions and also ensure an accessible, cost-effective and reliable enforcement mechanism throughout the country