Testimony of Janet Walsh, Deputy Director, Women's Rights Division, Human Rights Watch

Congressional Human Rights Caucus Briefing
April 10, 2003, 1:30 p.m.

Thank you for inviting Human Rights Watch to testify about women's property rights violations and how they fuel the HIV/AIDS epidemic in sub-Saharan Africa.

This is a particularly timely briefing given that AIDS will kill millions of women throughout sub-Saharan Africa in the coming years because their subordinate status increases their vulnerability to HIV infection. Property rights violations, which are often accompanied by sexual and physical violence, are emblematic of this subordination. This briefing is also timely because of the important AIDS legislation pending in Congress.

Women's rights to own, inherit, and control property are violated throughout sub-Saharan Africa. Although all women are vulnerable to these abuses, divorced or separated women and widows—including AIDS widows—suffer some of the most extreme violations:

• Divorced and separated women are often left with only the clothes on their backs as their husbands keep the home and other property.
  
  
• Widows are often evicted from their homes as in-laws rob them of their possessions and invade their homes and lands. These unlawful appropriations happen even more readily when the husband died of AIDS.
  
  
• In some places, widows are forced to undergo customary, sexual practices such as "wife inheritance" or ritual "cleansing" in order to keep their property. "Wife inheritance" is where a male relative of the dead husband takes over the widow as a wife, often in a polygamous family. "Cleansing" usually involves sex with a social outcast who is paid by the dead husband's family, supposedly to cleanse the woman of her dead husband's evil spirits. In both of these rituals, safer sex is seldom practiced and sex is often coerced.
  
  
• Women who fight back are routinely beaten, raped, or ostracized.

Human Rights Watch documented violations of women's property rights in a new report called "Double Standards: Women's Property Rights Violations in Kenya." We undertook this research in Kenya because it represented the horrendous abuses found in many sub-Saharan African countries, because Kenya's raging HIV/AIDS epidemic thrives on women's property rights violations, and because we believe that change is possible in Kenya.

Our research showed that women's property rights violations are rampant in Kenya. Experts say the abuses are increasing along with the dramatic rise in poverty in the last decade and as AIDS claims the lives of millions of Kenyans.

Women we interviewed said that property rights abuses exposed them to poverty, violence, homelessness, and disease. They told of begging for water; of scavenging in garbage dumps for food; of seeing their children drop out of school because they could no longer afford fees; of living in shacks in dangerous slums and sleeping on cardboard boxes; of rapes and beatings by their in-laws; of death threats and abuse if they dared to assert their property rights; and of grave health risks, such as contracting HIV/AIDS from their so-called inheritors and not being able to afford health care and shelter after losing all their assets.

Abuses of women's property rights blatantly violate human rights law. Treaties such as the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights require that countries guarantee gender equality and prohibit discrimination, including on the basis of sex. They also require that governments take steps to transform customs and traditions that are based on women's inferiority and undermine women's human rights. Nonetheless, governments throughout sub-Saharan Africa, most of which have ratified these treaties, are hiding behind custom as a defense against protecting women's property rights. While they turn a blind eye, the lives and well-being of millions of women and their dependants are at risk.

Women and HIV/AIDS in Africa

Women's property rights violations must be understood and combated in the context of Africa's AIDS epidemic. Women and girls account for 58 percent of the more than 28 million people living with HIV/AIDS in Africa. In the worst affected countries, HIV prevalence among girls and young women aged fifteen to nineteen is four to seven times higher than among boys their age. According to AIDS experts, the disproportionate impact AIDS has on African women and girls stems from the denial of their rights and the resulting economic deprivation and dependency on men.

In Kenya, 15 percent of the population between the ages of fifteen and forty-nine is infected with HIV, more than half of whom are women. One out of eight adults in rural Kenya and one out of five adults in urban areas is infected, though most do not know it. AIDS has reduced life expectancy from sixty-five to forty-six years.

Women's Property Rights Violations in the AIDS Context

The staggering number of AIDS deaths expected in Africa in the coming years will result in millions more women becoming widows at younger ages than would otherwise be the case. These women and their children (who may end up AIDS orphans) are likely to face not only social stigma against people affected by HIV/AIDS but also deprivations caused by property rights violations.

Women with AIDS, many of whom were infected by husbands or regular male partners, are condemned to an early death when the women's homes, lands, and other property are taken. They not only lose assets they could use for medical care, but also the shelter they need to endure this debilitating disease. Moreover, the failure to ensure equal property rights upon separation or divorce discourages women from leaving violent marriages. HIV risk is especially high for women in situations of domestic violence, which often involve coercive sex, diminish women's ability to negotiate safer sex and condom use, and impede women from seeking health information and treatment.

Widows who succumb or are forced into the customary practices of "wife inheritance" or ritual "cleansing" run a clear risk of contracting and spreading HIV. The region where the wife inheritance and cleansing practices are most common has Kenya's highest AIDS prevalence: fully 22 percent of the population between ages fifteen and forty-nine in Nyanza province is infected, and 35 percent of ante-natal women in one district within that province are infected. Girls and young women in Nyanza province are infected at six times the rate of their male counterparts. A man who works as a "cleanser" or "professional wife inheritor" in that province told me that he has "cleansed" about 75 women in the last two years and has never used a condom or been tested for HIV, though he knows how HIV is transmitted.

Kenyan Women's Accounts

The heinous nature of women's property rights violations is most clearly depicted in the words of women who have suffered these abuses. Through scores of interviews in Kenya, Human Rights Watch learned of the brutal hardships women face when their property rights are violated, and how AIDS exacerbates those hardships.

• Jiwa, a fifty-five-year-old widow from western Kenya, said that after her husband died, her brother-in-law brought a "cleanser" to her home to have sex with her. She objected, saying: "I don't know this man's HIV status, and if I die my children will suffer." Her brother-in-law and four cousins pushed the cleanser into Jiwa's hut and he raped her. She screamed but the cleanser covered her mouth and the in-laws stood guard outside. The brother-in-law paid the cleanser with a cow, chickens, and clothing. Jiwa was then forced out of her home and into a shoddy, makeshift hut. Her brother-in-law took over her land and furniture. She reported this to the village elder, who did nothing. Jiwa now has a persistent cough and has lost much weight. She fears she contracted HIV from the cleanser but has not been tested and cannot afford medical treatment.
  
  
• Adhiambo, a thirty-year-old widow from Nairobi, said that when her husband died of AIDS in 1998 he left her HIV-positive with five children. She quickly went from being relatively affluent to destitute after her husband's family took her property. Her in-laws grabbed household items from her Nairobi home and took over a rural home, land, and livestock even though Adhiambo helped pay to construct the house. Her father-in-law called a family meeting, told her to choose an in-law as an inheritor, and ordered her to be cleansed by having sex with a fisherman. Adhiambo refused, and fled when her in-laws threatened her. She now struggles to meet her children's basic needs, and her slum landlord has threatened to evict her.
  
  
• Imelda, a twenty-five-year-old widow with AIDS, lost her home, land, and other property in Kenya when her husband died in 2002. She told her in-laws that she had AIDS and wanted to stay in the house. They snatched her property anyway and wanted her to be "inherited." She recalled: "I told my in-laws I'm sick . . . but they took everything. I had to start over. . . . They took sofa sets, household materials, cows, a goat, and land. I said, 'Why are you taking these things when you know my condition?' They said, 'You'll go look for another husband.' My in-laws do not believe in AIDS. They said that witchcraft killed my husband."
  
  
• Mary, a fifty-four-year-old woman with eight children, said that when she and her violent husband separated, he kept all of the property, including vehicles, the land she cultivated, household goods, furniture, and bicycles. She received nothing. Her husband forced her out of their home, and she went to her parents. Mary stayed in her mother's hut, but was forced out when her mother died. She now lives in a slum, has HIV, and cannot afford medical treatment.
  
  
• Lucia, a thirty-three-year-old widow, lived and farmed on land in eastern Kenya with her husband until he died in 1997. After he died, Lucia's brother-in-law told her and her children to leave and threatened to beat her and burn down the house with her in it if she refused. Lucia fled to Nairobi, taking only clothing for herself and her children and leaving behind livestock and other property. "My brother-in-law took everything," she said. "He did all this to evict me." Lucia's brother-in-law and his wife now live in Lucia's rural home. She lives in a slum with her children and those of her sister-who died of AIDS-in a metal shack with no running water or electricity.

Causes of Women's Property Rights Violations

A complex mix of factors underlies women's property rights violations in Kenya, many of which are common to other sub-Saharan African countries:

• Discriminatory Laws. Kenya's current constitution permits discrimination in personal and customary laws, which are central to property rights. The Law of Succession Act, which was supposed to establish a uniform and equal inheritance system, contains some discriminatory provisions and is largely unenforced. Case law establishes that family property may be evenly divided upon separation or divorce, but in practice, women rarely get property. Customary laws-which are extremely influential in Kenya-give men greater property rights than women.
  
  
• Discriminatory Practices. Sexist customary practices obstruct women's equal rights to property and prevent women from seeking redress for violations of these rights. While it is said that these practices stem from pre-colonial traditions involving patrilineal inheritance that may have "protected" women at the time, family and social structures have changed to such a degree that these practices now harm women and society as a whole.
  
  
• Biased Attitudes. Biased attitudes also contribute to property rights abuses. Men we interviewed did not hesitate to reveal their sexist attitudes, saying things such as women would "automatically commit adultery" if they owned property. A chief said: "A woman and the cows are a man's property." A farmer told us: "We don't trust women. Women could go and sell the land."
  
  
• Unresponsive Authorities. Local authorities-both governmental and traditional-are often unresponsive. When women try to report property violations to authorities, they are often asked for bribes, ignored, or told to go back to abusive husbands. At the national level, there are no programs specifically designed to address women's property rights violations.
  
  
• Ineffective Courts. Lawyers and individual women complain that Kenya's courts are biased, slow, corrupt, and staffed with ill-trained or inept judges and magistrates. Several judges we interviewed outright admitted that they do not apply laws on inheritance and division of family property.
  
  
• Other Obstacles to Claiming Property Rights. Women face many other obstacles to claiming their property rights, including low levels of awareness of their rights, the time and expense of pursuing claims, violence, and the social stigma of being considered greedy or traitors to culture if they assert their rights.

Effects on Development

As the United States and other governments and international organizations increase their efforts to fight the HIV/AIDS epidemic and promote development in Africa, it is important to consider how these issues are linked. Sub-Saharan Africa's economic growth rate has fallen 4 percent because of AIDS and labor productivity has been cut by 50 percent in the hardest-hit countries. According to the World Bank and the United Nations Development Programme, gender inequality and unequal property rights hinder development by contributing to low agricultural production, food shortages, underemployment, and rural poverty. In Kenya, women constitute 80 percent of the agricultural labor force and provide 60 percent of farm income, yet own only 5 percent of the land. This disparity threatens not only women, but contributes to Kenya's persistent food crisis. Recent reports indicate that 500,000 Kenyans are currently facing food shortages and are at risk of starvation.

Potential for Progress in Kenya

The situation is grim, but in Kenya several developments may signal potential for progress on women's equal property rights. A new government took office in January 2003 after twenty-four years under President Daniel arap Moi, who was no friend to women's human rights. The new government has pledged to promote gender equality and has created a Ministry of Gender. A new draft constitution-with strong protections of women's property rights-is to be debated in the coming months. Donor agencies are increasing assistance to Kenya, funding crucial reforms.

Human Rights Watch is working with Kenyan organizations to urge the government to enact legal reforms, implement programs to prevent and redress property rights abuses, and punish those who violate women's rights. We are also advocating that the World Bank and other donors use aid to eliminate women's property rights violations throughout sub-Saharan Africa. In particular, we are urging that HIV/AIDS initiatives incorporate the elimination of women's property rights violations and that AIDS outreach programs offer practical guidance on inheritance and division of family property. This is a pivotal time in Kenya, and we hope that the government and its international partners will act now to stop women's property rights abuses as a key component of their AIDS strategies.

Recommendations to the U.S. Government

The United States can play a critical role in eliminating women's property rights violations in sub-Saharan Africa and ultimately save women's lives. Human Rights Watch makes the following recommendations to the U.S. Congress:

• Ensure that U.S.-funded programs throughout sub-Saharan Africa have as a core goal the promotion of women's equality in law and in practice as a fundamental human right;
  
  
• Ensure that the HIV/AIDS legislation pending in Congress supports systematic efforts to increase women's economic, social, and political empowerment, including by promoting equal property rights. The legislation should support a variety of prevention approaches for women and girls to protect themselves from HIV/AIDS, recognizing that vulnerability to violence, entrenched customs, and social subordination make strictly abstinence-oriented programs untenable for women and girls;
  
  
• Ensure that the special coordinator for international HIV/AIDS assistance, proposed by the legislation, adopts strategies to reduce women's and girl's vulnerability to HIV/AIDS and promotes expanded treatment, care, and prevention programs for women and girls;
  
  
• Support programs that improve access to justice and legal representation in Africa, including for divorce and inheritance cases;
  
  
• Urge Kenya and other governments to enact legal reforms to guarantee equal property rights, outlaw discrimination on the basis of gender and HIV/AIDS status, and end harmful customary practices that put women's lives at risk;
  
  
• Increase support for awareness campaigns aimed at educating individuals, traditional leaders, and government officials about women's equal rights to own, inherit, and control property and the risks of "wife inheritance" and "cleansing" practices;
  
  
• Establish training programs for law enforcement and judicial personnel, as well as educators and health care providers, on the link between women's property rights violations and HIV/AIDS; and
  
  
• Take targeted actions to focus policy attention on mitigating the disproportionate impact on women in AIDS-affected countries, including Kenya.

Thank you.

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