Allan Maleche, LLB, is a human rights lawyer and Executive Director of KELIN in Kenya.
Christine1 is a 41-year-old widow living with HIV, who stays in Homabay County, Kenya. She is the mother of two daughters aged ten and four. After her husband’s death due to HIV-related complications, the family moved to her husband’s ancestral home from an urban area.
Her husband had worked as a carpenter and was the family's sole breadwinner. Even as Christine sought to rebuild her family’s life, her father-in-law took away the hardware goods from the carpentry business and the household items. He later sold the land on which Christine and her two children had relocated. When Christine questioned this, her father-in-law told her that the land and carpentry tools were his late son’s properties and that she had no say whatsoever. He chased her away together with her two daughters.
On her own initiative, Christine presented the matter to the area chief, who asked Christine to have the case solved at the family level. This did not bear any fruit, as the family was not willing to resolve the issues. After being introduced to Kenya Ethical & Legal Issues Network
on HIV & AIDS (KELIN), the widow was linked up with the trained Kabondo elders who brought the family together and mediated her case.
During the process of mediation the elders were able to interview each party, make their own investigations and facilitate a joint discussion between the in-laws and Christine. During those discussions, they pointed out that disinheriting widows was not an accepted customary practice among the Luo and it also went against the provisions of the Constitution of Kenya 2010. The mediation led to the allocation of land to the widow by her father-in-law and Christine and her children now stay on that land, where she has a kitchen garden and sells her produce at the local market.
Since 2009, KELIN has worked to enhance access to and control over land and other properties by widows who have been disinherited and left homeless because they are either HIV positive or their husbands died due to HIV-related complications. This project is a collaborative effort between KELIN, the Luo Council of Elders and the national and county administration team. The elders, who are trained on human rights, land law issues, and HIV conduct mediations between the widows and their deceased husbands’ families in a manner that respects and protects their basic human rights. As at January 2015, out of the 300 cases reported in Kisumu and Homabay counties, 217 have been successfully resolved leading to the widows being resettled on their matrimonial land.
The story of Christine is representative of many other women in poor resource settings who depend on farming for food security and income, and who have been widowed due to HIV or who are themselves HIV positive. For these women, a lack of property rights can worsen their vulnerability and exposure to a range of risks. These risks include: poor living conditions and lack of sufficient food; vulnerability to violence, including physical and sexual abuse at the insecure market centers; high-risk behavior like involuntary sex work when other livelihood options are blocked; inability to access and/or adhere to HIV treatment; and inadequate access to education, water and other basic needs.
Women's constitutional right to land in Kenya
Women in Kenya have a constitutionally guaranteed right to own property as is enshrined by the Constitution of Kenya
, 2010 at Article 40. Article 60(1)(f) of the Constitution calls for the elimination of gender discrimination in practices related to land and property rights. Under the Law of Succession Act
, female and male children have the same inheritance rights and widows have a life interest in the estate of the deceased husband.
However, the Act excludes agricultural lands, crops and livestock, which continue to be governed by customary law according to which wives and daughters usually do not inherit family property. This significantly limits the reach of the law and its impact on Kenyan women’s inheritance rights in practice. Article 68(c)(vi) of the 2010 Constitution protects dependents of a deceased person holding interest in land, including the interests of spouses in actual occupation of the land. This has led to a process for the review of the Succession Act to align it to the Constitution of Kenya 2010 and ensure women’s rights to inherit land are fully protected. The draft Succession Act is now with the Commission on Implementation of the Constitution
undergoing review before it is forwarded to the relevant Ministry for tabling before parliament in 2015.
Several factors that hinder the full realization of land and property rights for women include gender disparities in allocation of land within the family context, patriarchal attitudes towards women’s ownership or inheritance of land, limited knowledge of property and human rights, inaccessibility of the formal justice system and also women’s fear of being ostracized by their communities for attempting to enforce their rights. These issues persist in spite of the Constitution’s call for the elimination of gender discrimination in practices relating to land and property rights.
In Kenya women remain the most affected by HIV, having a higher prevalence than men. It is critical to secure women's interests, including those living with HIV, in land and property not only for the realization of their human rights but also for purposes of health and well-being, social inclusion, poverty reduction and economic development. Women's access and control over land is a basic necessity for a decent livelihood, especially in rural agricultural areas, and critical to ensuring women living with or widowed by HIV, like Christine, can reduce their vulnerability and support their families.
1Name changed to protect her privacy.