The Inheritance Rights of Muslim Women in Kenya: Reality or Rhetoric?

Abstract

This thesis sought to establish whether Muslim women in Kenya actually enjoy their inheritance rights as decreed in the Qur’aan and protected by the 2010 Constitution and the Law of Succession Act. The study’s findings suggest that it is probable that a significant proportion of Muslim women in Kenya do not enjoy either their explicit stipulated inheritance fractions or the implicit family maintenance from the males who receive more inheritance than them. This is because, first, the syncretic practice which interweaves ethnic customs with Islam overshadows Sharii’ah or overlooks it. Second, ignorance of Islamic Inheritance Law (IIL) among Muslim women, men and religious leaders as well as legal practitioners (both bench and bar) results in wrongful application of this law. Finally, the probate institutions are plagued with various barriers which hamper women’s eventual actual enjoyment of their rights.The study was premised on three assumptions,including that ignorance of IIL across Kenya’s ethnic and socio-legal communities contributed significantly to the disentitlement of Muslim women’s stipulated inheritance shares.The study employed both desk and field research. Through in-depth interviews and focus group discussions, the study interrogated both the application of IIL in the country and Muslim women’s inheritance experiences. This was done mainly in Lamu, Mombasa, Garissa and Kakamega counties, which areas represent the socio-economic dispersion of Sunni Muslims in the country. The research further abstracted information from relevant determined inheritance cases at the Kadhis’ courts and the High Court. The study mainly recommends acquisition or improvement of knowledge of IIL and women’s rights among Muslim men and women, children, legal practitioners (both bench and bar) and extrajudicial probate officers. It contributes to the jurisprudence on the principle of equality in the country.It is grounded on three interrelated minority rights theories which collectively reflect the uniqueness of Kenyan Muslim women. These are Multiculturalism, Global Critical Race Feminism (Intersectionality) and Modified Muslim Feminism. Key words: Sharii’ah, equality, minorities, women’s rights, justice