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On the Edge of the Law: Women's Property Rights and Dispute Resolution in Kisii, Kenya

Published online by Cambridge University Press:  01 January 2024

Elin Henrysson  and
Sandra F. Joireman
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Abstract

Scholars have argued that economic efficiency requires a clear definition of the rights of ownership, contract, and transfer of land. Ambiguity in the definition or enforcement of any of these rights leads to an increase in transaction costs in the exchange and transfer of land as well as a residual uncertainty after any land contract. In Kenya, government efforts at establishing clearly defined property rights and adjudication mechanisms have been plagued by the existence of alternative processes for the adjudication of disputes. Customary dispute resolution has been praised as an inexpensive alternative to official judicial processes in a legally pluralistic environment. However, our research demonstrates that customary processes may also carry a monetary cost that puts them beyond the means of many citizens. This article compares the costs and processes of the formal and informal methods of property rights adjudication for women in the Kisii region of Kenya. The research results suggest that women have weak property rights overall, they have limited access to formal dispute resolution systems because of costs involved, and even the informal systems of conflict resolution are beyond the means of many citizens.

Type
Articles
Information
Law & Society Review , Volume 43 , Issue 1 , March 2009 , pp. 39 - 59
Copyright
© 2009 Law and Society Association.

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Footnotes

This research was supported by the National Science Foundation under Grant #0549496 of the Law and Social Sciences Program and by the Earhart Foundation. We are thankful to Sarah Baggé, Yara Mansour, Dolph Westlund, and Isaac Williams for research assistance. We would also like to thank John Yoder for his helpful comments on an early draft and three anonymous reviewers. All the flaws of the article are our own responsibility.

References

References

Acemoglu, Daron, et al. (2004) “Institutions as the Fundamental Cause of Long-Run Growth.” National Bureau of Economic Research Working Paper Series No. 10481, Cambridge, MA, May.CrossRefGoogle Scholar
Benjaminsen, Tor A., & Lund, Christian (2002) “Formalisation and Informalisation of Land and Water Rights in Africa: An Introduction,” 14 European J. of Development Research 1.CrossRefGoogle Scholar
Berry, Sara (1992) No Condition Is Permanent. Madison, WI: Univ. of Wisconsin Press.Google Scholar
Central Bureau of Statistics (2001) “1999 Population and Housing Census,” Central Bureau of Statistics and Ministry of Finance and Planning, http://www.cbs.go.ke/.Google Scholar
Chanock, Martin (1991) “Paradigms, Policies and Property: A Review of the Customary Law of Land Tenure,” in Mann, K. & Roberts, R., eds., Law in Colonial Africa. Portsmouth, NH: Heinemann Educational Books.Google Scholar
Chanock, Martin (1998) Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia, 2d ed. Portsmouth, NH: Heinemann.Google Scholar
Chimhowu, Admos, & Woodhouse, Phil (2006) “Customary vs Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa,” 6 J. of Agrarian Change 346–71.CrossRefGoogle Scholar
Connolly, Brynna (2005) “Non-State Justice Systems and the State: Proposals for a Recognition Typology,” 38 Connecticut Law Rev 239.Google Scholar
De Soto, Hernando (2000) The Mystery of Capital. New York: Basic Books.Google Scholar
De Sousa Santos, Boaventura (2006) “The Heterogeneous State and Legal Pluralism in Mozambique,” 40 Law & Society Rev. 39–75.CrossRefGoogle Scholar
Fitzpatrick, Daniel (2006) “Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access,” 115 Yale Law J. 996–1048.CrossRefGoogle Scholar
Fukuyama, Francis (2004) State-Building: Governance and World Order in the 21st Century. Ithaca, NY: Cornell Univ. Press.Google Scholar
Ghai, Y. P., & McAuslan, J. P. W. B. (1970) Public Law and Political Change in Kenya. New York: Oxford Univ. Press.Google Scholar
Global Health Reporting (2006) “Regional/Global HIV/AIDS Statistics 2006,” 10 April, http://www.GlobalHealthReporting.org.Google Scholar
Gluckman, Max (1955) The Judicial Process among the Barotse of Northern Rhodesia. Manchester, United Kingdom: Manchester Univ. Press.Google Scholar
Gluckman, Max (1965) The Ideas in Barotse Jurisprudence. New Haven, CT: Yale Univ. Press.Google Scholar
Gordon, April (1995) “Gender, Ethnicity and Class in Kenya: ‘Burying Otieno’ Revisited,” 20 Signs 883–912.CrossRefGoogle Scholar
Guyatt, Helen L., et al. (2002) “Too Poor to Pay: Charging for Insecticide-Treated Bednets in Highland Kenya,” 7 Tropical Medicine & International Health 846–50.CrossRefGoogle ScholarPubMed
Griffiths, Anne (1998) “Reconfiguring Law: An Ethnographic Perspective from Botswana,” 23 Law & Social Inquiry 587–620.CrossRefGoogle Scholar
Hakannson, N. Thomas (1994) “The Detachability of Women: Gender and Kinship in the Processes of Socio-Economic Change Among the Gusii of Kenya,” 21 American Ethnologist 515–38.Google Scholar
Ikdahl, Ingunn, et al. (2005) “Human Rights, Formalization and Women's Land Rights in Southern and Eastern Africa,” in Studies in Women's Law. Oslo: Institute of Women's Law, University of Oslo.Google Scholar
Joireman, Sandra F. (2007) “Enforcing New Property Rights in Sub-Saharan Africa: The Ugandan Constitution and the 1998 Land Act,” 39 Comparative Politics 463–80.Google Scholar
Joireman, Sandra F. (2008) “The Mystery of Capital Formation in Sub-Saharan Africa: Women, Property Rights and Customary Law,” 36 World Development 1233–46.CrossRefGoogle Scholar
Kane, Minneh, et al. (2005) “Reassessing Customary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor,” World Bank 2005, http://siteresources.worldbank.org/INTRANETSOCIALDEVELOPMENT/Resources/Kane.rev.pdf (accessed 29 March 2007).Google Scholar
Kasanga, Kasim (2002) “Land Tenure, Resource Access and Decentralization in Ghana,” in Toulmin, C. et al., eds., The Dynamics of Resource Tenure in West Africa. Portsmouth, NH: Heinemann.Google Scholar
Lastarria-Cornhiel, Susana (1997) “Impact of Privatization on Gender and Property Rights in Africa,” 25 World Development 1317–33.CrossRefGoogle Scholar
Libecap, Gary (2003) “Contracting for Property Rights,” in Anderson, T., & McChesney, F., eds., Property Rights: Cooperation, Conflict and Law. Princeton, NJ: Princeton Univ. Press.Google Scholar
Manji, Ambreena (1999) “Imagining Women's ‘Legal World’: Towards a Feminist Theory of Legal Pluralism in Africa,” 8 Social & Legal Studies 435–55.CrossRefGoogle Scholar
Meinzen-Dick, Ruth S., & Pradhan, Rajendra (2002) Legal Pluralism and Dynamic Property Rights. Washington, DC: International Food Policy Research Institute.Google Scholar
Nadel, S. F. (1947) The Nuba. London: Oxford Univ. Press.Google Scholar
Norton, Seth W. (2000) “The Cost of Diversity: Endogenous Property Rights and Growth,” 11 Constitutional Political Economy 319–37.CrossRefGoogle Scholar
Nyambara, Pius S. (2001) “Immigrants, ‘Traditional’ Leaders and the Rhodesian State: the Power of ‘Communal’ Land Tenure and the Politics of Land Acquisition in Gokwe, Zimbabwe, 1963–1979,” 27 J. of Southern African Studies 771–91.CrossRefGoogle Scholar
Nyambu-Musembi, Celestine (2003) Review of Experience in Engaging with “Non-State” Justice Systems in East Africa. Sussex, United Kingdom: Institute of Development Studies, Sussex University.Google Scholar
Okuro, Samwel Ong'wen (2002) “The Land Question in Kenya: The Place of Land Tribunals in the Land Reform Process in Kombewa Division.” Paper presented at The Codesria Tenth General Assembly, Kampala-Uganda, 8–12 Dec., http://www.codesria.org/Archives/ga10/papers_ga10_12/6plenary_Okuro.htm.Google Scholar
Penal Reform International (2000) Access to Justice in Sub-Saharan Africa: The Role of Traditional and Informal Justice Systems. London: Astron Printers.Google Scholar
Peters, Pauline E. (2004) “Inequality and Social Conflict Over Land in Africa,” 4 J. of Agrarian Change 269–314.CrossRefGoogle Scholar
Ranger, Terence (1983) “The Invention of Tradition in Colonial Africa,” in Ranger, T. & Hobsbawm, E., eds., The Invention of Tradition. New York: Cambridge Univ. Press.Google Scholar
Ribot, Jesse C. (1999) “Decentralisation, Participation and Accountability in Sahelian Forestry: Legal Instruments of Political-Administrative Control,” 69 Africa 23.CrossRefGoogle ScholarPubMed
Rose, Laurel L. (2002) “Women's Strategies for Customary Land Access in Swaziland and Malawi: A Comparative Study,” 49 Africa Today 123–49.CrossRefGoogle Scholar
Strickland, Richard S. (2004) To Have and to Hold: Women's Property and Inheritance Rights in the Context of HIV/AIDS in Sub-Saharan Africa,” Information brief, International Center for Research on Women, June, http://www.icrw.org/docs/2004_info_haveandhold.pdf.Google Scholar
Toulmin, Camila, et al. (2002) The Dynamics of Resource Tenure in West Africa. Portsmouth, NH: Heinemann.Google Scholar
United Nations Development Programme (2006) “Kenya National Human Development Report 2006,” New York, UNDP, http://www.ke.undp.org/06nhdrreport.pdf.Google Scholar
Verma, Ritu (2001) Gender, Land and Livelihoods in East Africa: Through Farmer's Eyes. Ottawa: International Development Research Centre.Google Scholar
Waithaka, Michael, et al. (2000) “A Participatory Rapid Appraisal of Farming Systems in Western Kenya,” Report of a PRA of Dairy and Crop Activities in Western Kenya, Smallholder Dairy Project, September, http://www.smallholderdairy.org/publications/Collaborative%20R&D%20reports/Wa1/Pages%20from%20Waithaka%20et%20al-2000-PRA%20Western%20Kenya%20cov-9.pdf.Google Scholar
Wanyeki, L. Muthoni (2003) “Introduction,” in Wanyeki, L. M., ed., Women and Land in Africa: Culture, Religion and Realizing Women's Land Rights. New York: Zed Books Ltd.Google Scholar
Weimer, David L. (1997) The Political Economy of Property Rights. New York: Cambridge Univ. Press.Google Scholar
Whitehead, Ann, & Tsikata, Dzodzi (2003) “Policy Discourses on Women's Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary,” 3 J. of Agrarian Change 67–112.CrossRefGoogle Scholar

Statutes Cited

The Chief's Act, The Government Printer, Nairobi (1988).Google Scholar
The Land Disputes Tribunal Act, Kenya Gazette Supplement, The Government Printer, Nairobi (1990).Google Scholar
The Law of Succession Act, The Government Printer, Nairobi (1981).Google Scholar