A/HRC/19/53 Discrimination against Women have put to rest the persistent conflict between customary legal systems which deny women inheritance of family property on the one hand, and the guarantee of gender equality under the Kenyan Constitution on the other. In the Ntutu case (2008), for example, the Kenyan High Court heard arguments by the sons of the deceased that ―Masai customary law of succession … does not recognize the rights of the daughters to inherit the estate of their fathers.‖ 25 Here, the Court applied international human rights law, international covenants and treaties which have been ratified by Kenya, and noted the previous decision of Rono vs. Rono.26 The Court found ―the customary law which shall abrogate the right of daughters to inherit the estate of a father cannot be applicable as it shall be repugnant to justice and morality,‖ and upheld the right of the daughters to inherit equally from the assets of the estate. 27 26. Women‘s right to equality in matters of inheritance is also relevant within the context of Sharia law, the application of which particularly affects women in the Middle East and North Africa. While Sharia law generally supports women‘s rights to acquire, hold, use, administer and dispose of property, women and girls receive a lesser share than their male counterparts when it comes to matters of inheritance (generally half of what a male in the same position would be entitled to receive). Customary practices and traditional structures can also contribute to further aggravating the situation. A prime example is that women are often forced, due to social pressures, to renounce their already reduced share of the inheritance in favour of male members of the family. In order to discourage this practice, in the occupied Palestinian territory, the Deputy Supreme Judge of Palestine of the Head of the Upper Council of Sharia Jurisdictions issued a notice in 2011 in which he instructed relevant authorities to apply certain conditions before legalizing a woman‘s renunciation of her inheritance share, including that at least four months pass after a person‘s death before a renunciation of inheritance can be registered. 28 The notice also instructs the relevant authorities to verify the real value of the inheritance share, relying on an official report by three experts authorized by the municipality or local council. This new protocol is aimed at helping women to retain their inheritance shares and protecting women from losses as a result of reduced valuations of those shares. 27. In many countries, women are denied not only rights related to inheritance, but also their equal rights over marital property, effectively denying them any legal claim to housing whatsoever. The idea that rights over housing, land, property and inheritance fall exclusively within the male domain must be challenged. When looking at what works best 25 26 27 28 In Re The Estate Of Lerionka Ole Ntutu (deceased) [2008] eKLR, High Court of Kenya at Nairobi, Succession Cause 1263 of 2000, decided 19 November 2008. In that case, sons of the deceased father claimed ―according to Keiyo traditions, girls have no right to inheritance of their father‘s estate.‖ The Court of Appeal, however, awarded equal shares of inheritance to all children regardless of sex, thereby upholding the principle that it is human rights standards which must prevail. See: Rono v Rono & another, Kenyan Civil Appeal No. 66 of 2002, decided 29 April 2005. In Uganda, the Constitutional Court in the case of Law Advocacy for Women in Uganda v Attorney General (2007), struck down sections of the national Succession Act as unconstitutional because of preference given to male heirs over female heirs, as well as other provisions which discriminated on the basis of sex. See: Law Advocacy for Women in Uganda v Attorney General, Uganda Constitutional Court, Constitutional Petitions Nos. 13/05/ & 05/06 [2007] UGCC 1, decided 5 April 2007. Most recently in Swaziland, in the case of Aphane v Registrar of Deeds & Others (2010), the High Court ruled that married women have a right to register property in their own name, rather than solely in their husband‘s name. See: Aphane v Registrar of Deeds & Others, High Court of Swaziland, Civil Case No. 383/2009, decided on 23 February 2010. Notice number 57/2011 issued on 10 May 2011 by the Palestinian Supreme Judge, the upper council of Sharia jurisdictions, head of the higher council of Islamic jurisdiction. 9