Rights of widows protected by law
In Kenya, family rights of every individual are enshrined in the constitution. Article 45(2) provides that every person has a right to marry a person of the opposite sex, based on the free consent of the parties. Once a party to a marriage loses a partner, the marriage ceases to exist, and the party therefore becomes eligible for marriage once more.
According to the Kenyan laws on marriage, one cannot validly enter into another marriage with another partner while there is still an existing marriage with another person unless of course in the case of customary marriages which are potentially polygamous. It is until the first marriage is dissolved or ceases to exist that the person can contract another marriage.
In the case of widows, once their spouses die, their marriages cease to exist and therefore have capacity to contract another marriage. In some parts of the country, there are some customs that allow for the practice of wife inheritance. This customs automatically give the surviving relatives of the deceased his wife and his property. This customs can be deemed to be repugnant to justice and morality, as they seek to deny the widow her right to choose whether she wants to remarry or not, and if she chooses to remarry, her right to marry a person of her choice.
Her consent is also never obtained because these widows are forcefully inherited by their spouse's surviving relatives. Most women where this custom is practiced are not aware of their rights, and as a result their rights have constantly been taken away. Marriage should not be forced on someone; it's one's personal choice. The constitution of Kenya provides in Article 2 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 this constitution is invalid. This therefore means that this custom contravenes the right to family enshrined in the constitution. It is null and void to that extent.
In some parts of the country, especially where the practice of the custom and tradition is rife, the rights of widows have been completely ignored. Once a woman loses her husband, she becomes destitute as she does not have anyone to protect her; she is left to survive at the mercy of the community.
Widows are human beings who need to be treated with dignity and whose rights ought to be respected. When it comes to property left by the deceased person, there are other people and customs that believe that the wife does not have a right to inherit the property of the deceased husband. They believe that the property best remains in the family by it being inherited by the surviving relatives of the deceased only. By so doing they end up leaving the widows destitute and poor yet their husbands left enough property to sustain them.
These customs can however be challenged if the widow goes to court and obtain orders that provide that she gets a share of the property - that is when the husband died without writing a will. There are instances where perhaps because the husband believed in such customs, he may die having written a will, but seeks to disinherit the wife in accordance to his customs.
The widow can still move to court, and inform the court that she was a dependant of the deceased and by so being, ought to have been provided for in the will. The court can then, being satisfied on the grounds issued by the widow, make orders to the effect that the widow also gets some allocation from the estate of the deceased.
It should be noted that Article 40 of the constitution safeguards the right of every individual to acquire property. It provides that every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. One of the ways through which property can be acquired in Kenya is through inheritance, and if a person denies the other the right to inherit property, then the person can be said to be in contravention of this article.
The above mentioned rights, together with others that are often violated because certain persons think that widows identities and rights are extinguished once their spouses die, should be protected so as to safeguard and protect them. There is need to empower widows so as to ensure they lead decent livelihoods. In any event parties to a marriage are equal during and after the marriage.