Kenya: Securing Property and Inheritance Rights in the context of HIV/AIDS

Gaps, violations and barriers to women’s rights

Von Mercy Wahome

1.27 million Kenyans are infected by HIV. The worst impact of this epidemic is felt by women and girls with over 600’000 living with the virus. Many of these are widows in their 20s and 40s, young girls and grandmothers. Women who are known or suspected of being HIV positive are frequently ejected from their homes by their husband’s family resulting in loss of property.

When Ruth Muthoni lost her father she knew that she and her siblings would be well taken care of by her grandparents in Nakuru. Her mother had succumbed to HIV a year earlier, leaving them under the care of their father who would soon follow.

By then, the family was living in Naivasha, where Ruth’s father had built a big house in addition to acquiring land and other property in the town. Now that the parents were gone Ruth was confident that under her grandmother’s and uncles’ care in Nakuru, education and other needs for her siblings and herself would be taken care of with what would be accrued from regular income gained from the family property in Naivasha.

This was not to be, however. As soon as the orphans were installed in their grandmother’s home, the uncles started plotting how to disinherit the young children of their family property. Any income from it ended up in their pocket, with none going to help the children.

Having greatly suffered after several years of taking care of her siblings, Ruth finally contacted the Society of Women and AIDS in Kenya (SWAK) where she is now a beneficiary of the SWAK Paralegal Program.

SWAK’s Paralegal Program

Established in 2002, the Paralegal Program came about as an intervention measure with the realization of the many cases of human rights abuse at the hands of relatives, and especially property disinheritance, resulting from Aids deaths of spouses (mainly husbands) and parents. The program offers paralegal training for SWAK members to work with their communities and refer legal cases such as that of Ruth to the professionals. A legal network therefore exists that works with local lawyers, who offer their services for free.

In Ruth’s case, the land and estate of her parents is being followed under succession regulations so that she can have the properties registered on behalf of the children under trusteeship to be able to benefit them.

Ruth’s case however only illustrates the situation of Aids orphans and vulnerable children. The other most affected are Aids widows and women living with HIV. Currently, 934’000 people are infected with HIV nationally, with the vast majority of these being women. Women known or suspected to be HIV positive are frequently ejected from their homes by their husband or husband’s family resulting in loss of property.

There are also cultural and other dimensions. Social, cultural, economic and occasionally legal frameworks in which most Kenyans live allow men significant control over women’s lives. Land ownership, access and control is central to the sustenance of the livelihood system in Kenya. It is the key asset at the centre of the right to own and inherit property.

Social and cultural, economical and legal dimensions

Most communities do not give land ownership rights to women, as land is mostly passed from father to son. A woman’s right to land is only through marriage, but that does not confer to her security of tenure on the same land. The Law of Succession does not give a widow any land inheritance rights, although she can hold the land in trust for the children resulting from the marriage.

Widows’ right to continue living on a husband’s ancestral land is in some cultures (such as the Luo and Luhya) guaranteed by her acceptance of cultural practices like “wife inheritance” which may also spread HIV. Traditionally, indigenous land tenure systems protected the access rights of all members of the community including women and children, who are now being disinherited rather than protected. Under the outdated 1882 Married Women's Property Act, division of property is not clearly defined. However, landmark cases have established that women are entitled to half of the family property in cases of death or divorce, but only if they can prove that they contributed to the household’s welfare.

Whereas legislation may avail remedies, it does not stop abuse from happening. The invisible power of culture, beliefs and socialization is more deeply rooted than the visible power of the statutes, courts and Parliament. There is also indifference towards will writing, leaving widows and children vulnerable when it comes to inheritance of property.

Another barrier is lack of access to legal assistance due to lack of information and poor economic status of women. It is in this regard that SWAK comes to the aid of the affected through the paralegal program.

Human Rights and HIV/AIDS

SWAK is an affiliate of Society for Women and AIDS in Africa (SWAA), which other than Kenya supports human rights projects in eleven West and Central African countries: Cameroon, Chad, Nigeria, Gambia, Ghana, Benin, Mali, Mauritania and Guinea, Liberia and Sierra Leone.

SWAA’s main objective is to work towards finding out how best to get governments to adopt the model law on human rights and HIV/AIDS, which has been identified as a promising tool to reducing the pandemic’s related stigma and discrimination.

Nationally, SWAK’s mission is “to mobilise and empower women, girls and the greater community to reduce their vulnerability to HIV/AIDS through advocacy, networking and strengthening capacity within the community.” The organisation has a branch and focal persons in each province, and boasts over 8’000 members countrywide.

Advocacy

SWAK has been involved in Kenya’s constitutional reform process, where it has submitted on issues of women’s rights and HIV/Aids and contributed to the UNAIDS 2006 report on Women and Property Rights in Kenya. The organisation has also participated in the development of the Kenya National HIV/Aids Strategic Plan 2005-2010. Other efforts have included working with Human Rights Watch to highlight cases of property disinheritance in Kenya.

At the community level, nearly 400 paralegals have been trained up to date. The paralegals identify cases of human rights abuse and refer them for appropriate legal redress, as above illustrated with the case of Ruth. So far 108 cases of property disinheritance have been handled. Additionally, 25 community leaders were trained on Human Rights in 2006 and over 5,000 community members reached through community outreaches.

The concept of community mediators has also been introduced. To this end 30 women and men were trained in 2007 to mediate on the numerous cases of property disinheritance to avoid having them end up in court. 10 cases have successfully been resolved using this method.

Different levels of intervention

To complement the paralegal program, SWAK is involved in other interventions such as the Memory book program which assists parents living with HIV/Aids to acquire knowledge and skills to develop supportive strategies that enable their children cope with the effects of Aids. This program includes training on will writing. SWAK has trained many of its members and built the capacity of other organisations as trainers of trainers (ToTs). 205 ToTs have been trained on the memory book, with an additional 2,500 parents trained by SWAK and other NGOs.

Another complementary intervention is the Male initiative, which advocates for the involvement of men to enhance HIV/AIDS activities including protection of women’s right to property ownership. The initiative aims to foster greater awareness on the relationship between men’s behaviour and HIV/Aids, stimulate public debate on men and HIV/Aids prevention, care and support, and encourage men to adopt safer sex practices to reduce the risk of infection among men and women. SWAK supports over 70 organisations for greater involvement of men.

The Ambassadors of Hope (AoH) program encourages and gives skills to HIV positive people to speak out in public and put a human face to AIDS. This contributes greatly to public education on the pandemic and reduction on stigma and discrimination. SWAK has trained over 1000 people living with Aids as ambassadors of hope on public speaking. Through public forums, schools and religious meetings AoH have reached over 2 million people advocating for the rights of people living with Aids.

*Mercy Wahome is National Coordinator of the Society for Women & Aids in Kenya, SWAK. Contact: mwahome@swakenya.org. Website: www.swakenya.org/