Islamic intestate succession in Kenya: impact on the women’s rights

Abstract

This study investigates the conflict between Kenya’s Islamic intestate succession law and its constitutional commitment to equality and non-discrimination. It examines how the application of Islamic intestate succession rules under Article 24 (4) of the Constitution of Kenya clash with the democratic and human rights ideals embedded in the Kenyan Constitution. Set against a backdrop of historical legal reforms and political pressures, the research seeks to establish that the current application of Islamic law in intestate succession matters perpetuates gender and religious discrimination against women. The research will also showcase how Islamic intestate succession law undermines the broader constitutional mandate for fairness. Drawing on a theoretical framework rooted in the feminist legal theory, the study employs a doctrinal research methodology to analyse statutory instruments, judicial decisions, and draw lessons (most notably) from Singapore’s innovative approach to balancing religious and civil legal norms. Ultimately, the research aims to demonstrate that targeted legal and institutional reforms, such as the adopting alternative inheritance mechanisms and more precise judicial guidelines, are essential to harmonize Islamic intestate succession practices with Kenya’s constitutional principles, thereby fostering a more equitable system for all heirs.

Keywords: Islamic intestate succession law, Kenya, gender equality, women, feminist legal theory, constitutional law, Singapore, human rights.