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Discrimination in Property and Inheritance Rights and HIV/AIDS
In many parts of Africa, women’s rights to property are, by law, unequal to those of men. Their rights to own, inherit, manage, and dispose of property are under constant attack from customs, laws, and individuals, including government officials, who believe that women cannot be trusted with or do not deserve property. The devastating effects of property rights violations - including poverty, disease, violence, and homelessness harm women, their children, and Africa’s overall development. For decades, governments have ignored this problem. Governments that fail to act to rectify this insidious and—especially in the face of a raging AIDS epidemic—lethal form of discrimination will see their fights against HIV/AIDS and their development agendas stagger and fail.
Human Rights Watch’s investigations in several countries have highlighted that many African women are excluded from inheriting, evicted from their lands and homes by in-laws, stripped of their possessions, and forced to engage in risky sexual practices in order to keep their property. In some countries, these abuses seem to be more frequent and severe for HIV-affected women. When women divorce or separate from their husbands, they are often expelled from their homes with only their clothing. Married women can seldom stop their husbands from selling family property. A woman’s access to property usually hinges on her relationship to a man. When the relationship ends, the woman stands a good chance of losing her home, land, livestock, household goods, money, vehicles, and other property. These violations have the intent and effect of perpetuating women’s dependence on men and undercutting their social and economic status.
Women’s property rights violations are not only discriminatory, they may prove fatal. Recent research by Human Rights Watch highlighted ways in which the HIV/AIDS epidemic magnifies the devastation of women’s property violations. Our in-depth investigation took as an example Kenya, where approximately 15 percent of the adult population is infected with HIV. Widows who are coerced into the customary practices of “wife inheritance”—whereby a widow is taken as a wife by a relative of her late husband—or ritual “cleansing”—whereby widows are obliged to have sex (usually unprotected) one time or over a short period with a man who is a social outcast and is paid for this purpose—run a clear risk of contracting and spreading HIV. Western Kenya, where these practices are most common, has Kenya’s highest AIDS prevalence; the HIV infection rate in girls and young women there is six times higher than that of their male counterparts. AIDS deaths expected 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.
A complex mix of cultural, legal, and social factors underlies women’s property rights violations. In many countries, customary laws—largely unwritten but influential local norms that coexist with formal laws—are based on patriarchal traditions in which men inherited and largely controlled land and other property, and women were “protected” but had lesser property rights. Past practices permeate contemporary customs that deprive women of property rights and silence them when those rights are infringed. Constitutional provisions in most African countries prohibit discrimination on the basis of sex but undermine this protection by condoning discrimination under customary laws. The few statutes that could advance women’s property rights defer to religious and customary property laws that privilege men over women. Sexist attitudes are pervasive: men interviewed by Human Rights Watch in Kenya said that women were untrustworthy, incapable of handling property, and in need of male protection. The guise of male “protection” does not obscure the fact that stripping women of their property is a way of asserting control over women’s autonomy, bodies, and labor—and enriches their “protectors.”
Abuses against widows especially damaging
The experiences women in Kenya described to Human Rights Watch were horrifyingly consistent in their cruelty. Some of the widows we interviewed indicated that having no sons was a grave liability for them: women with no children or only daughters are often considered worthless and undeserving of property. “I was thrown out of my home when my husband died because I had only given birth to girls,” said Theresa M., a widow from rural Bungoma. Until her husband’s death in 1994, she lived in a hut on her husband’s homestead, where she grew potatoes and maize. Her experience included coercion by her late husband’s family to have her be “inherited” by one of his relatives:
Theresa M.’s in-laws expected her to undergo a traditional ritual involving sexual intercourse with her dead husband’s body, but she avoided this because her brothers were there with machetes to protect her. Her in-laws were angry, and they and other villagers harassed her. One night, a group of five men came to her hut shouting threats. She believes that the village elder sent them to punish her for rejecting the traditions.
Frightened, Theresa M. left her home and went to her parents, where she stayed for four years without getting land to cultivate. “I felt like a foreigner in that homestead,” she remarked. In 2001, she was having so much trouble paying her children’s school fees that she went back to her in-laws to ask permission to cultivate her late husband’s land. “My brother-in-law sent me away. He said I am no longer his relative and he doesn’t know who I am.” She now lives in Nairobi in a dilapidated one-room shack without electricity. “Even feeding my children is hard now,” she said. She did not seek help from authorities. “Whom could I tell?” she asked. “I felt that if I went to the elders, they wouldn’t attend to me because I only have daughters.”113
Before Alice A. left the homestead, her brother-in-law tried to inherit her. “I didn’t want to be inherited because he had other wives and I thought he was not in a position to inherit me,” she said. She did, however, undergo the cleansing ritual with a so-called jater.115 “The ritual involved having sex,” she said. “I didn’t want to have sex, but I had to because of custom.” Her father-in-law paid the jater KSh1,000 (U.S.$12.50).
Alice A. said that, as a woman, she could not protest her eviction from her home and land. “I said nothing because I was feeling helpless. I thought if I had a boy child, he could have resisted.” Her family discouraged her from asserting her rights. “My mother advised me against making a formal complaint to the police because that would mean going against my father-in-law.” After living with her parents for several years, Akelo moved to a shanty in the Quarry slum in Nairobi, where she sells groundnuts.116
Having sons does not always help women keep their property, at least not all of it. Rimas K., a Maasai widow with four sons and three daughters, lost all of her cattle and sheep to her brother-in-law. One month after her husband died, her brother-in-law “took twelve cattle and twenty sheep. He said, ‘I want you to go from here because I want my brother’s property.’” Rimas K. managed to stay on her land because she and her husband, who worked for her father, lived on her father’s land. She told the village elders that her brother-in-law had taken her livestock, but they did nothing. Her troubles did not stop there. In 2001, her brother-in-law abducted six of her children. She said he felt entitled to them because she married into his family even though some were fathered by a man other than her late husband. “For Maasais, this doesn’t matter,” she said. “Once you’re married, they consider any children part of the husband’s family.” Rimas K. reported the abduction and the earlier property-grabbing to the police. “The police asked if it was possible for me to go live with my brother-in-law, and I said no.” She got her children back, and the brother-in-law was fined two sheep and one cow. She did not get the other livestock.117
Lucia K., a thirty-three-year-old widow from the Kamba ethnic group, lived and farmed on land in eastern Kenya with her husband until he died in 1997. After he died, her brother-in-law told her and her children to leave, claiming that she was never married and he now owned the land. “He claimed that I wasn’t married to my husband because not all of the customary steps were completed.” Lucia K. considered herself married, as did her other in-laws, even though a few customary rituals were not done. “Even the clan knew we were married,” she said. “The first time anyone said we were not married was a week after the burial.”
Lucia K.’s brother-in-law demanded the land title deed and her late husband’s identification card. “He threatened me,” she said. “He told me, ‘I’ll burn you with fire if you don’t put the title and I.D. card on the table right now.’ He told me if I dared talk back to him he’d beat me.” Terrified, she gave him the documents. “I feared that my brother-in-law might attack me. I was afraid for the children.” Soon after that, Lucia K. moved 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. . . . This man was jealous of me because he didn’t have boys. He thought my son would claim the land.” Her brother-in-law and his wife now live in her house.
Although Lucia K. informed the local chief of these threats, he did nothing. She did not report this to the police, who were far away. In early 2003, she wished she could live on her land but feared going back. She lived with her children and those of her sister (who died of AIDS) in Nairobi’s Mukuru slum in a metal shack with no running water or electricity.118
Muslim widows from rural areas also complain that their property rights under Islamic law are infringed as custom supplants their religion.119119 Amina J., a Muslim woman from the Kikuyu ethnic group, said that when her husband died, her in-laws grabbed her property. The property included a pension fund, canoes, fishnets, a house on the island of Rusinga, cows, and household items. She explained:
Prior to his death, Amina J. and her husband lived in a large house with water, electricity, trash pickup, and schools nearby. After her in-laws took her property, she could no longer afford to live there. She now lives in a structure made of iron sheets and mud walls. There is no running water, electricity, or sanitation. She can barely pay for basic needs, and one child dropped out of school. “If I had gotten my husband’s property, it would have been easier to pay school fees,” she said.121
Widow inheritance, featured in several of the stories above, is not unique to Kenya. An old tradition, it has been used for generations in a number of African countries for men to take responsibility for their dead brother’s children and household. However, widow inheritance may also expose women to HIV infection, particularly when accompanied by violence, as Human Rights Watch’s recent investigation in Uganda showed. Jamila N. recounted her ordeal after her husband died: “His brother tried to inherit me. I was living with my husband’s family. He tried to rape me. I fought with him and screamed and people came.”122 Zebia I.,123 a thirty-six-year-old woman living with AIDS whose husband died of AIDS, explained what occurred after her husband’s death:
Women succumb to widow inheritance primarily as a result of economic vulnerability, including the fact that they are often left without property or any viable means of supporting their children. The practice can often result in the widow having sexual intercourse with an array of male in-laws. One AIDS counselor told Human Rights Watch,
Unresponsive local authorities and ineffective courts
Since many African women do not have the means or information to take a case to court to claim property, they may turn to local authorities, both governmental and traditional, to resolve disputes. Although informal dispute resolution can help limit the financial and social costs of claiming property rights, local officials are more apt to apply customary law than statutory law, which can disadvantage women. Women in Kenya told Human Rights Watch that local authorities were occasionally helpful but more often unresponsive or ineffective. “We have poor local leadership,” one NGO representative remarked. “They’re not responsive to the community.”127 Moreover, police and central government officials acknowledged that women do not have equal property rights in Kenya, but officials do not consider this a pressing issue.
Many local officials are loath to get involved in women’s property cases, which they justify as a desire “not to interfere with culture.”128 Lydiah W., a thirty-seven-year-old widow, told an elder that her brothers-in-law took her land in Meru, Kenya when her husband died. The elder “kept quiet and said he would answer later,” but nothing happened.129 Ellen A., whose husband beat her, went to her local chief to ask if she could live in the matrimonial home and have her husband move out. The chief told her to go back to her husband.130 Monica W., a widow whose in-laws forced her out of her home, told village elders that she wanted to remain in her home. “The elders said I had to move out,” she said.131
Women in much of Africa encounter many obstacles in making use of formal judicial mechanisms to try to rectify property-related injustices. Again taking Kenya as a case in point, Human Rights Watch’s investigations indicate that governmental authorities often ignore women’s property claims and sometimes make the problems worse. Courts overlook and misinterpret family property and succession laws. Women often have little awareness of their rights and seldom have means to enforce them. Women who try to fight back are often beaten, raped, or ostracized. In response to all of this, the government of President Daniel Arap Moi did almost nothing: bills that could improve women’s property rights languished in parliament and government ministries have no programs to promote equal property rights. At every level, government officials shrugged off this injustice, saying they did not want to interfere with culture.
Lawyers and individual women complain that Kenya’s courts are biased against women, slow, corrupt, and often staffed with ill-trained or incompetent judges and magistrates. These perceptions discourage women from using courts to assert property claims. “There are biases on the bench,” observed a lawyer at one women’s NGO. “Access to justice is lacking, but actually biases against women in the court are worse than anything else.”135 Some say judges embody the attitude that women are inferior to men. “Judges are men who were brought up to believe less in the rights of women,” said one property rights lawyer. “Judges say, ‘Why should women get property?’”136 Even a government official who handles succession matters admits: “Men judges do not apply the law. Our men are men whether they are judges or not. [Men judges] may believe a wife should not inherit.”137
Sometimes, courts simply do not enforce laws that could protect women’s property rights. “Most law is in writing, not in practice. The courts are far behind . . . . I don’t think the courts enforce the law per se,” said one government official.138 This can happen if they think they have no jurisdiction or choose not to exercise the jurisdiction they have, as exemplified by the remarks of a magistrate who, when asked if a court could order a man to leave the family home upon divorce, said: “A woman can’t come to court if she wants her husband to leave rather than her. . . . We don’t interfere with the community setup.”139 There is also a risk that judges’ personal beliefs could interfere with application of the law. One Court of Appeal justice said that the Law of Succession Act should not apply to any rural land. He so firmly believes that customs sufficiently protect women that he denied women suffer property rights violations. He said:
The new government of President Mwai Kibaki has promised to take another look at property and inheritance laws and judicial practice in the country. In many countries, even such a promise appears to be a distant dream.
International human rights law on women’s property rights
A number of particular treaties and rights are implicated when women’s property rights are violated.141 CEDAW obliges states to “refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation” and to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”142 It also requires that states “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”143 The fact that men in most African countries have greater rights than women when it comes to owning, accessing, and inheriting property under both statutory and customary laws violates the principle of nondiscrimination.
Human rights law also requires that governments address the legal and social subordination women face in their families and marriages. Under CEDAW, states must:
Interpreting these provisions, the CEDAW Committee noted that violations of women’s marriage and family rights are not only discriminatory, but stifle women’s development.145
Women also have a human right to equal legal capacity. CEDAW calls on governments to accord women a legal capacity identical to that of men and the same opportunities to exercise that capacity. It provides that governments must “give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.”146 Similarly, the International Covenant on Civil and Political Rights (ICCPR) provides that everyone has a right to be recognized everywhere as a person before the law.147 Unlike men, women in most of Africa face significant obstacles to realizing their right to administer property, an aspect of the right to equal legal capacity. Moreover, the Human Rights Committee says that this right means that “women may not be treated as objects to be given together with the property of the deceased husband to his family.”148 Practices such as wife inheritance violate this human right.
The “right to property” is guaranteed under the African Charter on Human and Peoples’ Rights (African Charter), which also requires that all rights be implemented in a nondiscriminatory way.149 The Universal Declaration of Human Rights, which is widely regarded as customary international law, provides, “Everyone has the right to own property alone as well as in association with others.”150 At a minimum, this right means that men and women must have equal property rights.
International law also guarantees housing rights, which include equal rights to security of tenure and access to housing and land. The ICESCR recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate . . . . housing.”152 CEDAW also requires states to ensure rural women’s right to enjoy adequate living conditions, particularly in relation to housing.153 The ICCPR prohibits arbitrary or unlawful interference with one’s home154 and guarantees the right to choose one’s residence.155 Other international treaties, such as those relating to children, race, and refugees, also include housing as a human right.156 States must progressively realize the right to adequate housing and immediately end discrimination that creates a barrier to the enjoyment of this right.157 Women’s insecure tenure in their homes and on their land, as well as the dismal housing conditions they typically experience after their property is grabbed, are evidence of housing rights violations. The government’s failure to remedy discrimination against women with respect to property leads to and exacerbates housing rights violations.
109 Human Rights Watch interview with Margaret Atieno, Siaya, November 2, 2002.
110 Human Rights Watch interview with Imelda O., Kisumu, Kenya, November 4, 2002.
111 Human Rights Watch interview, Ngong, Kenya, October 25, 2002.
112 Human Rights Watch interview with Theresa M., Nairobi, October 20, 2002.
114 Human Rights Watch interview with Alice A., Nairobi, October 21, 2002.
115 “Jater” is the name in Dholuo, a western Kenyan language, for a man who is generally a social outcast and is paid to have sex one time or over a short period with a newly widowed woman.
117 Human Rights Watch interview with Rimas K., Ngong, Kenya, October 24, 2002.
118 Human Rights Watch interview with Lucia K., Nairobi, October 20, 2002.
119 The Koran’s basic intestacy rules provide that a son generally inherits double the share of a daughter. When a husband dies leaving a wife and children, the widow receives one-eighth of the net estate. If there are no children, the widow gets one-fourth of the estate. Wives in polygynous unions share the one-eighth (if there are children) or one-fourth (if there are no children).
120 Human Rights Watch interview with Amina J., Kisumu, Kenya, November 1, 2002.
122 Human Rights Watch interview with Jacqueline N., Naguru, Uganda, January 15, 2003.
123 Real name used at her specific request.
124 Human Rights Watch interview with Zebia I., Tororo, Uganda, December 17, 2002.
125 Human Rights Watch interview with Erasmus Ochwo, counselor, The AIDS Service Organisation (TASO), Tororo, Uganda, December 17, 2002.
126 Human Rights Watch interview, Nairobi, October 15, 2002.
127 Human Rights Watch interview with Elijah Agevi, regional director, Intermediate Technology Development Group, Nairobi, October 20, 2002.
128 Human Rights Watch interview with Wilson Tulito Molill, senior chief, Ngong, Kenya, October 25, 2002.
129 Human Rights Watch interview with Lydiah W., Nairobi, October 20, 2002.
130 Human Rights Watch interview with Ellen A., Nairobi, October 28, 2002.
131 Human Rights Watch interview with Monica W., Nairobi, October 28, 2002.
132 Human Rights Watch interview with Eunice Awino, paralegal, Education Centre for Women in Democracy, Siaya, Kenya, November 2, 2002.
133 Human Rights Watch interview with P.O. Etyang, officer in charge, Police Division, Siaya, Kenya, November 4, 2002.
134 Human Rights Watch interview with Gacoka N., Central Province, Kenya, November 9, 2002.
135 Human Rights Watch interview with Judy Thongori, then deputy head of litigation, FIDA-Kenya, Nairobi, October 16, 2002.
136 Human Rights Watch interview with Martha Koome, Martha Koome & Co. Advocates, Nairobi, November 6, 2002.
137 Human Rights Watch interview with Mary Njoki Njuya, principal state counsel, Office of the Attorney General, Nairobi, November 11, 2002.
139 Human Rights Watch interview with Francis Makori Omanta, senior resident magistrate, Siaya, Kenya, November 4, 2002.
140 Human Rights Watch interview with Justice Richard Otieno Kwach, Court of Appeal, Nairobi, November 7, 2002.
141 For an extensive overview of the international human rights instruments relating to women’s equal rights to land, housing, and property, see Benschop, Rights and Reality.
142 CEDAW, art. 2.
144 Ibid., art. 16. The International Covenant on Civil and Political Rights in article 23(4) also provides that governments must guarantee the equal rights of spouses as to marriage, during marriage, and at its dissolution.
145 See CEDAW Committee, General Recommendation 21, Equality in marriage and family relations (Thirteenth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 90 (1994), para. 28.
146 CEDAW, art. 15.
147 International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.ICCPR, art. 16.
148 Human Rights Committee, General Comment 28, Equality of rights between men and women (art. 3), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000), para. 19. The Human Rights Committee is the U.N. body charged with monitoring implementation of the ICCPR.
149 African Charter, art. 14.
150 UDHR, art. 17.
151 Human Rights Committee, General Comment 28, para. 26.
152 ICESCR, art. 11(1). The CESCR interpreted this right in its General Comment 4, which set forth the following factors for analyzing adequacy of housing: (a) legal security of tenure; (b) availability of services, materials, facilities, and infrastructure; (c) affordability; (d) habitability; (e) accessibility; (f) location; and (g) cultural adequacy. CESCR, General Comment 4, The right to adequate housing (art. 11(1) of the Covenant)(Sixth session, 1991), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994), p. 53.
153 CEDAW, art. 14(2)(h).
154 ICCPR, art. 17.
155 ICCPR, art. 12.
156 Convention on the Rights of the Child, U.N. Doc. A/44/25, entered into force on September 2,1990 and ratified by Kenya on July 30, 1990, art. 27(3); International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force on January 4, 1969 and acceded to by Kenya on September 13, 2001, art. 5(e)(iii); Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954 and acceded to by Kenya on May 16, 1966, art. 21.
157 ICESCR, art. 2(1).