“An analysis of the impact of the provisions laid down in the Women’s Convention on equal rights during marriage and at its dissolution in the Kenyan recent legislation” – Submitted by Alessia Lo Conte ( LLM student of European Law at Maastricht University)

1. Introduction

Women’s inequality within the family context is not only regarded as the foundation of all other forms of discrimination and disadvantage, but also as one of the most controversial women’s rights issue to address from a legal perspective[1]. According to the traditional “ideology of the family”, the persistence of such imbalance historically deals with the reticence of states to break down the barriers surrounding the presumptive “private” domestic sphere (founded on stereotyped roles, customs and social traditions) that retains them from intervening against sex discrimination.

Nevertheless, whether “the family is the natural and fundamental group unit of society[2]”, ensuring effective women’s equality within family settings is a crucial step to overcome de facto discrimination in society at large.

International law provides a wide range of legal and soft measures intended to achieve gender equality (on a personal and economic level) in family life.

Among the others, the Universal Declaration of Human Rights[3], the International Covenant on Civil and Political Rights[4], the International Covenant on Economic, Social and Cultural Rights[5], the Convention on the Nationality of Married Women[6], the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages[7] and the Nairobi Forward-looking Strategies for the Advancement of Women[8] all stress the importance of pursuing equality within family settings by prohibiting sex discrimination. Nonetheless, with regards to marriage and family relations, a leading role is played by the Convention on the Elimination of All Form of Discrimination Against Women (hereinafter referred to as Women’s Convention)[9] which is widely considered as “the ‘specialized’ sequel to the other international human rights tools”[10] aimed at guaranteeing equal recognition, enjoyment and exercise of all human rights and fundamental freedoms of women in both public and private domains.

As a non-gender-neutral instrument, the Women’s Convention aims to achieve substantive equality by means of removing individual and social barriers in an ‘equality of outcome’ perspective[11]. More specifically, it does not only require parties to eliminate direct discrimination against women, but it also demands them to address predominant gender limitations and stereotypes with positive measures that cross the boundaries of the private family domain[12]. To this end, Article 16 of the Women’s Convention binds “States parties […] to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women” while stipulating, in its par. 1 sub c (hereinafter referred to as Article (1)(c)), “the same rights and responsibilities during marriage and at its dissolution”.

The research question of this paper is whether, according to the Women’s Convention provisions, recent family Law developments in Kenya take a step towards women’s equality during the marriage and at its dissolution.

More in detail, this research paper aims at discussing the impact of both, Women’s Convention’s provisions on equal rights, marital property and family relations “during marriage and at its dissolution” and CEDAW’s observations, on the Kenyan recent legislation. After examining the inner meaning and the context of Article 16 (addressed in paragraph II), this contribution will in fact mainly focus on relevant principles arising from the new Kenyan Constitution as well as on two major statutes adopted in the area of family law: The Matrimonial Property Act and the Marriage Act (paragraph III). This analysis intends to lead to the identification of significant developments and persistent criticalities in light of the Article 16(1)(c) and other complementary provisions of the Women’s Convention (ratified on 9 March 1984, without any reservation).

2. Scope, context and nature of Article 16 of the Women’s Convention.

To better explore the potential and legal implications of Article 16, its connection with other articles of the Convention and provisions of various relevant CEDAW[13] documents needs to be addressed[14]. Unlike other international human rights law instruments, the notion of discrimination featured in the Convention is remarkably broad and comprehensive, thus including “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”[15]. This notion, along with Article 3 and Article 5 calls upon States parties to take all “appropriate measures […] to ensure the full development and advancement of women”[16] and to actively modify social and cultural patterns of conduct, “with a view to achieving the elimination of prejudices […] which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”[17]. These interrelated provisions set not only negative prohibitions on discrimination but also, and more significantly, positive obligations to take action against traditional customs, social norms and stereotypes that perpetuate discrimination[18]. Additionally, Article 2 breaks down the mentioned barriers between public and private sphere by obligating State parties to take “appropriate measures” to eliminate discrimination also between private persons (marriage and family settings included)[19].

Further clarifications on the implications of the provisions laid down in Article 16 are drawn from General Recommendation no. 21 on equality in marriage and family relations[20], which not only elaborates upon relevant aspects of the Article, but also underlines its relationship with Articles 9 (on the abolition of sex discrimination in nationality laws) and Article 15 (on the recognition of legal autonomy to women in civil matters). Particular importance is given to the economic status of women in marriage and at its dissolution. To this end, in addressing Article 16(1)(h), the Committee touches upon property issues by calling upon State parties to insure an “equal property share at the marriage […] in view of the woman’s practical ability to divorce her husband”, to live in dignity as an independent person and therefore to support herself and her family members[21]. It also underlines the fact that many countries rely on the “application of common law principles, religious or customary law” to build their family legislation and practices rather than complying with the principles laid down in the Women’s Convention[22], clearly leading to a restriction on women’s rights “to equal status and responsibility within the marriage”[23].

In 2013, a General Recommendation on article 16 of the Convention (n. 29)[24] has been adopted by the Committee with a particular focus on “economic consequences of marriage, family relations and their dissolution”. Its major aim is to “serve as a guide for States parties in achieving a de jure and de facto egalitarian regime under which the economic benefits and costs of family relations and the economic consequences of their dissolution are borne equally by men and women.”[25]. It recommends State parties to go beyond formal equality and achieve substantive equality, not only by adopting gender-neutral laws, but also by concretely examining “the application and effects of laws and policies” and thus ensuring “that they provide for equality, in fact, accounting for women’s disadvantage or exclusion”[26]. In doing so, it addresses persistent issues related to marital property (par. 36-38), economic aspects of family formation (par. 16-31) and financial consequences upon family dissolution (par. 39-53) which, for the purpose of this paper, still appear problematic in the Kenyan renewed family law context.

3. Background to the development of Family Law in Kenya

Kenya has historically experienced the coexistence of multiple-system regimes and, with regards to marriage and family law, this multiplicity of laws and practices has extensively contributed to exacerbate women’s marginalization[27]. In the last few years, a strong need for structural family law reforms arose not only to reflect social changes and socio-economic transformation of the Kenyan society, but also to comply with obligations under international law (such as the obligation arising from the unreserved ratification of the Women’s Convention). In this respect, the CEDAW Committee in 2007 called upon “the State party to harmonize civil, religious and customary law with Article 16 of the Convention and to complete its law reform in the area of marriage and family relations in order to bring its legislative framework into compliance with articles 15 and 16 of the Convention, within a specific time frame”[28].

3.1 The Constitution and family values

By declaring that “general rules of international law shall form part of the Law of Kenya”[29], the new 2010 Constitution explicitly incorporates international law within its national legal system and, in line with the Committee’s recommendation[30], it also includes “any treaty or convention ratified by Kenya[31]”. Furthermore, under Section 21 (par. 4) the State is obligated to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.

On these grounds, the Kenyan Constitution and its Bill of Rights (which is not limited to fundamental freedoms and civil and political rights but also embraces social, economic and cultural rights) attempt to be human rights compliant[32]. They call upon an extensive review of existing legislation in order to enforce their provisions and to remove existing discriminatory rules within the family law area. To this end, Section 2 (par. 4) consistently asserts that “any law, including customary law, that is inconsistent with [the] Constitution is void to the extent of the inconsistency, and any act or omission in contravention of [the] Constitution is invalid”. Furthermore, a renewed, comprehensive definition of discrimination is provided: Section 27 clearly states that “every person is equal before the law and has the right to equal protection and equal benefit of the law” and that “equality includes the full and equal enjoyment of all rights and fundamental freedoms”. Subsequently, it is laid down that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres” and neither the public institutions nor private persons are allowed to discriminate (directly or indirectly) against any person “on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth”[33].

In contrast to the 1963 Constitution, no exclusions from the non-discrimination principle are tolerated with respect to family law matters[34]. However, a controversial clause still persists and, as per Section 24 (par. 4), the equality provisions “shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance”. Such limitation, which applies to persons professing the Muslim religion, allows for continued acceptance of discriminatory laws and practices which, although unacceptable under Articles 2 and 16 of the Women’s Convention, remain constitutionally tolerated[35]. Respecting this, the CEDAW Committee expressly keeps on calling upon Kenyan lawmakers to “harmonize religious and customary law with article 16 of the Convention” and, therefore, to consider keeping Kadhis’ courts’ jurisdiction under the specific equality provision consecrated in the 2010 Constitution[36].

In upholding its commitment under the Women’s Convention, the new Constitution establishes that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”[37], therefore taking a big step forward towards women’s equality in family relationships. In addition, with respect to family property issues, Sec. 68 (par. 1 (c)(iii)) calls upon the Parliament to “regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage”. Nevertheless, in order to reflect religious diversities and traditions within the country, the Constitution continues to recognize multiple family law regimes, namely “marriages concluded under any tradition, or system of religious, personal or family law; and any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent” with the Constitution itself[38]. As previously noted, this recognition, although limited by Sec. 2 (par. 4) and Sec. 45 (par. 4) provisos, creates the grounds for continuous differential treatments and potential discriminations.

3.2 The adoption of the Marriage and Matrimonial Property Act. Persistent criticisms and reflections

Following the promulgation of the Constitution, a systematic process of legislative modernization aiming at curbing discrimination against women, including the reform of family law, has begun. To give full effect to the constitutional provisions on marriage and family, a new Matrimonial Property Act[39] was adopted in December 2013, forthwith followed by a new Marriage Act[40] in May 2014[41]. In light of the non-discrimination principle laid down in the Constitution, both bills aim at harmonizing and consolidating all existing legislation on marriage by promoting social equality between men and women[42]. To this end, according to the new Marriage Act (which uses the very same wording of the 2010 Constitution), “parties to a marriage have equal rights and obligations at the time of marriage, during the marriage, and at the dissolution of marriage”[43]. Additionally, “despite any other law, a married woman has the same rights as a married man to acquire, administer, hold, control, use and dispose of property, whether movable or immovable; to enter into a contract, and to sue and be sued in her own name.”[44].

The Marriage Act recognizes five matrimonial regimes: Christian, civil, customary (celebrated in accordance with the customary rites relating to any of the communities in Kenya), Hindu, or Islamic[45] and, to the extent that they are registered, they all have the same legal status. Christian, civil, and Hindu marriages are inherently monogamous, while customary and Islamic marriages are presumed to be polygamous[46]. The Act allows for the legal registration of marriages performed under customary law, and ultimately establishes legal circumstances under which a divorce can be granted. However, the grounds for dissolution of marriage vary from one regime to the other and, while some grounds (such as cruelty, desertion, adultery, exceptional depravity and irretrievable breakdown) are common to all regimes of marriages, Islamic “divorce” is entirely governed by Islamic law[47]. This means that, while theoretically the law sees the spouses in equal terms, in reality, and depending on the regime applicable, the parties may not be de facto in equal terms during the marriage and at its dissolution[48]. Again, as long as deference to customary and religious law persists in family law provisions, the equality declared in the Constitution is not yet universal.

As anticipated, the Matrimonial Property Act aims to provide equality of rights and responsibilities in relation to the matrimonial property. In this regard, Section 7 clearly states that “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved”. In other words, the spouse’s “contribution” to the acquisition of matrimonial property counts in the determination of the quota that each party receive in case of divorce or dissolution of their marriage. In this context, the word ‘contribution’ is defined as the “monetary and non-monetary contribution [including] domestic work and management of the matrimonial home; child care; companionship; management of the family business or property; and farm work”[49]. This pivotal provision, which reverses the rationale of the Echaria judgement[50] by following the CEDAW Commission observations[51], puts an end to the foregoing contestations on the non-tangible wife’s contribution to the matrimonial property. However, Section 7 completely omits to identify the criteria for the evaluation of the weight of the spouses’ contributions, thus disregarding the CEDAW Committee observations on the “equal value” criterion[52]. Moreover, the Matrimonial Property Act still exempts Islam law from its provisions, by providing that “a person who professed the Islamic faith may be governed by Islamic law in all matters relating to matrimonial property”[53]. Likewise, Section 11, with regard to the division of matrimonial property among the parties, allows for specific consideration of customary laws of the spouses concerning divorce and property distribution[54].

4. Concluding observations

This brief overview of major family law developments in Kenya, mainly focusing on the position of women within the marriage and at its dissolution, clearly shows a renewed, positive approach to gender issues. More specifically, with respect to the Women Convention’s scope and provisions, several improvements have been made in the last decade. Inter alia, the explicit ‘constitutionalization’ of the equality principle in Section 27, read in conjunction with the ‘coherence clause’ of Section 2(4), are a welcome development. Additionally, the rationalisation of the various family law regimes through the new Marriage Act eventually brings the pre-existing unregulated marriages under the law’s coverage. Moreover, the recent Matrimonial Property Act, by defining the concept of ‘matrimonial property’, gives express recognition to the non-monetary contribution of the spouse (usually the woman) who devotes herself to the household.

Nevertheless, a more in-depth analysis of the above mentioned legislation shows a prudent approach of the Kenyan lawmakers in handling the complex relationship between women’s rights and cultural identity. In fact, the renewed legal system allows for the coexistence of different regimes in marriage and family matters and, by means of a widespread system of religious-based limitation clauses, keeps on perpetrating differential treatments and discriminatory practices in the name of preserving cultural identity.

***

Bibliography

Fareda Banda, ‘Changing the Constitution and Challenging Attitudes: Recent Developments in Kenyan Family Law’, Bill Atkin (ed.), International Survey of Family Law: 2014 Edition, Jordan Publishing, Bristol, p. 255 – 272.

Sandra Fredman, ‘Beyond the dichotomy of formal and substantive equality: towards a new definition of equal rights’, Ineke Boerefijn (ed.), Temporary special measures, Intersentia, Antwerp, 2003, pp. 111 – 118.

Ruth Halperin-Kaddari, Marsha A. Freeman, ‘Economic Consequences of Marriage and Its Dissolution: Applying a Universal Equality Norm in a Fragmented Universe’, Theoretical Inquiries in Law, 13, 1, 2012, pp. 324 – 360.

Ekaterina Yahyaoui Krivenko, Women, Islam and International Law, Martinus Nijhoff Publishers, Leiden, 2009.

Pauline Kruiniger, ‘Art. 16 of the Women’s Convention and the Status of Muslim Women at Divorce’, Ingrid Westendorp (ed.), The Women’s Convention Turned 30. Achievements, Setbacks, and Prospects, Intersentia, Cambridge, 2012, pp. 363 – 390.

Lucyline Nkatha Murung, ‘Consolidating Family Law in Kenya’, European Journal of Law Reform, 17, 2, 2015, p. 317 – 328.

Maurice Oduor, Ruth Aura Odhiambo, ‘Gender Equality in the New Constitutional Dispensation of Kenya’, Uncorrected draft-final version to appear as Chapter nine in the book Constitutional Law of Kenya, 2010. http://www.ssrn.com/abstract=1726378 (Consulted on 18 February 2017).

Table of National Legislation (in chronological order)

Constitution of the Republic of Kenya, Revised Edition 2010, 27 August 2010.

Matrimonial Property Act, The Republic of Kenya, Kenya Gazette Supplement No. 183 (Acts No. 49), 31 December 2013.

Marriage Act, The Republic of Kenya, Kenya Gazette Supplement No. 62 (Acts No. 4), 6 May 2014.

Table of International Instruments (in chronological order)

UN doc. A/RES/3/217 A, Universal Declaration of Human Rights, 10 December 1948.

General Assembly resolution 1040 (XI), Convention on the Nationality of Married Women, 29 January 1957.

General Assembly resolution 1763 A (XVII), Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962.

General Assembly resolution 2200A (XXI), International Covenant on Civil and Political Rights, 16 December 1966.

General Assembly resolution 2200A (XXI), International Covenant on Economic, Social and Cultural Rights, 16 December 1966.

UN doc. A/34/180, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979.

UN doc. A/CONF.116/28/Rev, Nairobi Forward-looking Strategies, 26 July 1985.

UN doc. A/49/38, General Recommendation no. 21, Thirteenth session 1994.

UN doc. CEDAW/C/KEN/CO/6, Concluding comments of the Committee on the Elimination of Discrimination against Women: Kenya, 10 August 2007.

UN doc. CEDAW/C/GC/29, General recommendation on article 16 of the Convention on the Elimination of All Forms of Discrimination against Women. Economic consequences of marriage, family relations and their dissolution, 26 February 2013.

UN doc. CEDAW/C/KEN/8, Consideration of reports submitted by States parties under article 18 of the Convention, 1 June 2016.

References 

[1] See Ruth Halperin-Kaddari, Marsha A. Freeman, ‘Economic Consequences of Marriage and Its Dissolution: Applying a Universal Equality Norm in a Fragmented Universe’, Theoretical Inquiries in Law, 13, 1, 2012, p. 324.

[2] UN doc. A/RES/3/217 A, Universal Declaration of Human Rights, 10 December 1948, Art. 16(3).

[3] Ibidem.

[4] General Assembly resolution 2200A (XXI), International Covenant on Civil and Political Rights, 16 December 1966. Entry into force on 23 March 1976.

[5] General Assembly resolution 2200A (XXI), International Covenant on Economic, Social and Cultural Rights, 16 December 1966. Entry into force on 3 January 1976.

[6] General Assembly resolution 1040 (XI), Convention on the Nationality of Married Women, 29 January 1957. Entry into force on 11 August 1958.

[7] General Assembly resolution 1763 A (XVII), Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962. Entry into force on 9 December 1964.

[8] UN doc. A/CONF.116/28/Rev, Nairobi Forward-looking Strategies, 26 July 1985.

[9] UN doc. A/34/180, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979.

[10] Verbatim, Pauline Kruiniger, ‘Art. 16 of the Women’s Convention and the Status of Muslim Women at Divorce’, Ingrid Westendorp (ed.), The Women’s Convention Turned 30. Achievements, Setbacks, and Prospects, Intersentia, Cambridge, 2012, p. 366.

[11] Ibidem.

[12] In several cases, the Committee on the Elimination of Discrimination against Women (hereinafter CEDAW) expresses its concern “about the persistence of patriarchal attitudes and deep-rooted concerning women’s roles and responsibilities that discriminate against them and perpetuate their subordination within the family and society. It notes that such discriminatory attitudes and stereotypes constitute serious obstacles to women’s enjoyment of their human rights”. Verbatim UN doc. CEDAW/C/BOT/CO/3, Concluding Observations, Botswana, 26 March 2010, par. 23. In the same regard, see also, inter alia, UN doc. CEDAW/C/NGA/CO/6, Concluding Observations, Nigeria, 18 July 2008 and UN doc. CEDAW/C/TUR/CO/6, Concluding Observations, Turkey, 30 July 2010.

[13] In this paper, ‘CEDAW’ only refers to the ‘CEDAW Committee’ (the terms ‘CEDAW’ and ‘the Women’s Convention’ are not used interchangeably).

[14] Pauline Kruiniger, supra note 10, pp. 366 – 371.

[15] Art. 1, Convention on the Elimination of All Forms of Discrimination against Women, supra note 9. It has been noted that this definition does not limit discrimination to rights and freedoms enumerated in the Women’s Convention itself, it relates to any human right or fundamental freedom. As a consequence, in cases which not fall under one of the articles of the Convention, it should be possible to grant protection on the exclusive basis of the Article 1. See Ekaterina Yahyaoui Krivenko, Women, Islam and International Law, Martinus Nijhoff Publishers, Leiden, 2009, p. 26.

[16] Idem, Art. 3.

[17] Idem, Art. 5.

[18] See Sandra Fredman, ‘Beyond the dichotomy of formal and substantive equality: towards a new definition of equal rights’, Ineke Boerefijn (ed.), Temporary special measures, Intersentia, Antwerp, 2003, p. 116 who, with regards to this innovative “full” concept of equality, introduced the concept of ‘equality as transformation’.

[19] Art. 2, Convention on the Elimination of All Forms of Discrimination against Women, supra note 9.

[20] UN doc. A/49/38, General Recommendation no. 21, Thirteenth session 1994. Available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#11 (Consulted on 16 February 2017).

[21] See Pauline Kruiniger, supra note 10, p. 370 quoting General Recommendation no. 21, supra note 20, par. 28.

[22] General Recommendation no. 21, supra note 20, par. 17.

[23] Ibidem.

[24] UN doc. CEDAW/C/GC/29, General recommendation on article 16 of the Convention on the Elimination of All Forms of Discrimination against Women. Economic consequences of marriage, family relations and their dissolution, 26 February 2013. Available at: www2.ohchr.org/english/bodies/cedaw/docs/comments/CEDAW-C-52-WP-1_en.pdf (Last visit on 16 February 2017).

[25] Verbatim General recommendation on article 16 of the Convention on the Elimination of All Forms of Discrimination against Women, supra note 24, par. 9

[26] Idem, par. 8.

[27] See Lucyline Nkatha Murung, ‘Consolidating Family Law in Kenya’, European Journal of Law Reform, 17, 2, 2015, p. 318.

[28] UN doc. CEDAW/C/KEN/CO/6, Concluding comments of the Committee on the Elimination of Discrimination against Women: Kenya, 10 August 2007, par. 44.

[29] Section 2(5), Constitution of the Republic of Kenya, 2010.

[30] Concluding comments of the Committee on the Elimination of Discrimination against Women, supra note 28, par. 12.

[31] Idem, Section 2(6).

[32] See Fareda Banda, ‘Changing the Constitution and Challenging Attitudes: Recent Developments in Kenyan Family Law’, Bill Atkin (ed.), International Survey of Family Law: 2014 Edition, Jordan Publishing, Bristol, p. 256.

[33] Section 27(1-5), Constitution of the Republic of Kenya, 2010.

[34] Section 82(4)(b) of the 1963 Constitution allowed exceptions to the non-discrimination principle “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”. In this regard, the CEDAW Committee has positively “welcome[d] the fact that the new Constitution requires the repeal of many discriminatory provisions which existed in the former Constitution and the application of the Constitution’s guarantee of non-discrimination with respect to all laws, including those in the areas of marriage, divorce, adoption, burial and succession”. Verbatim UN doc. CEDAW/C/KEN/CO/7, Concluding observations of the Committee on the Elimination of Discrimination against Women, 5 April 2011.

[35] See Ruth Halperin-Kaddari, Marsha A. Freeman, ‘Economic Consequences of Marriage and Its Dissolution’, supra note 1, p. 337. In its Concluding observations of the Committee on the Elimination of Discrimination against Women (2011), supra note 34, the CEDAW Committee notes that “other legislation that discriminates against women and is incompatible with the Convention, remains in force.” Indeed, “While noting that Khadis’ courts are established under section 170 of the new Constitution as a separate subsidiary court for the hearing of Muslim family law matters, including inheritance, the Committee is concerned that the provision for the Khadis’ courts has exemptions from the constitutional equality provisions, and that the provision is not in line with the Convention, in particular contravening articles 2 and 16 of the Convention”.

[36] Concluding observations of the Committee on the Elimination of Discrimination against Women (2011), supra note 34, par. 12.

[37] Section 45(3), Constitution of the Republic of Kenya, 2010.

[38] Idem, Section 45 (4).

[39] Matrimonial Property Act, The Republic of Kenya, Kenya Gazette Supplement No. 183 (Acts No. 49), 31 December 2013. Available at http://www.kenyalaw.org/kl/fileadmin/-pdfdownloads/Acts/MatrimonialPropertyAct2013.pdf (Consulted on 18 February 2017)

[40] Marriage Act, The Republic of Kenya, Kenya Gazette Supplement No. 62 (Acts No. 4), 6 May 2014. Available at http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/TheMarriage-_Act2014.pdf (Consulted on 18 February 2017).

[41] Lucyline Nkatha Murung, ‘Consolidating Family Law in Kenya’, supra note 27, p. 322.

[42] See UN doc. CEDAW/C/KEN/8, Consideration of reports submitted by States parties under article 18 of the Convention, 1 June 2016, par. 19.

[43] Section 3(2), Marriage Act, supra note 40.

[44] Section 4(c), Matrimonial Property Act, supra note 39.

[45] Section 6(1), Marriage Act, supra note 40.

[46] Idem, Sec. 6(2-3).

[47] Lucyline Nkatha Murung, ‘Consolidating Family Law in Kenya’, supra note 27, p. 325.

[48] Maurice Oduor, Ruth Aura Odhiambo, ‘Gender Equality in the New Constitutional Dispensation of Kenya’, 16 December 2010 Oduor, Uncorrected draft-final version to appear as Chapter nine in the book Constitutional Law of Kenya. (December 16, 2010). Available at SSRN: http://www.ssrn.com/abstract=1726378 (Consulted on 18 February 2017).

[49] Sec. 2, Matrimonial Property Act, supra note 39.

[50] In the Echaria vs. Echaria case, the Court of Appeal, by examining spouses’ patrimonial rights acquired before, during and after the dissolution of the marriage, held that when it comes to division of matrimonial property only financial contribution is considered. See Echaria vs. Echaria (2007), Eklr KECA 1. T.

[51] Concluding observations of the Committee on the Elimination of Discrimination against Women (2011), supra note 34, par. 45.

[52] Idem, par. 46(b).

[53] Sec. 3, Matrimonial Property Act, supra note 39.

[54] Idem, Sec. 11.

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