Innovating Justice for Widows in Kenya

After losing her husband to AIDS, Consolata was chased away from her home by in-laws who blamed her for her husband’s death, forcing her to live in the marketplace with her children. Four years later, she started to get sick and discovered she was HIV positive.  Given her stressful living situation, her health rapidly deteriorated.

In Kenya, as in many countries in sub-Saharan Africa, HIV has magnified problems in unequal property and inheritance regimes. Women’s inability to own and manage land, housing, and property perpetuates economic dependence on men and creates particular vulnerability upon a husband’s death, when polygamy, widow inheritance (where the widow herself is “inherited”), or high-risk work may be the only way to survive. Impoverished women also have reduced capacity to cope with HIV and AIDS.

Consolata comes from Kisumu County in western Kenya, which has the highest HIV prevalence in the country at a rate of 15 percent. This has led to high number of premature deaths and very young widows. Many of these widows are disinherited and left homeless and destitute by in-laws, making them more vulnerable to abuse, exploitation, and illness.

On paper, Kenyan laws recognize women’s rights to own and inherit property, but in practice, many women are chased away from their land, and access to justice is hard to obtain. In rural areas, courts are distant, and community ties are strong. Court cases are expensive and time-consuming, and they are culturally frowned upon for family disputes, exacerbating tensions. Even with a positive legal decision, it is difficult for a widow to come back to live with her family.

In 2009, the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) pioneered a new approach for obtaining access to justice for widows and their children. Working with customary legal structures in Homabay and Kisumu Counties, KELIN helped reconstruct community-based mediation systems so that they respect Kenyan law and human rights. KELIN held community dialogues with widows, elders, and government officials to get their buy-in for the project. They then conducted trainings for the elders and widows on the human rights provisions of Kenyan laws relating to property. Customary structures (Luo Council of Elders, Kabondo Elders, and Nyakach Elders) now mediate family disputes and help reinstate widows and children in their homes and family land.

There is a happy ending to Consolata’s story. She found out about KELIN’s project, and KELIN’s coordinator put her in touch with Elders in her community, who negotiated with Consolata’s in-laws to allow her to come back to her land. KELIN’s support went above and beyond legal negotiations. They provided Consolata and her in-laws with construction materials and the community came together to build her a new home on the reclaimed land.

Over the past three years, KELIN has taken on 148 cases involving disinheritance, of which the vast majority have been successfully resolved with women and children back on their land. On average, each case takes only three months to resolve—a much better rate than the average three years (and unpredictable outcomes) for court cases. Additionally, KELIN, in partnership with the communities, has facilitated the construction of 17 houses for the most vulnerable widows, further contributing to raising awareness of widows’ rights to inherit and strengthening the bond between widows and the community.

KELIN has developed a tool which provides step by step guidelines on how to engage cultural structures and actors or others interested in this approach.

KELIN’s work and the innovative approach deserve widespread recognition. Indeed, the United Nations Global Commission on HIV and the Law applauded KELIN’s groundbreaking work in its July 2012 report, Risks, Rights and Health, noting, “Perhaps the most promising route to change is adaptation of traditional legal systems to promote equality for women and their children and recruitment of respected community members to mediate inheritance disputes between widows and their in-laws.” 

Most recently, KELIN has been nominated for a 2012 Innovating Justice Award, an award that recognizes the most promising developments in the justice sector. Please take a moment between now and October 1, 2012, to cast your vote for KELIN on the Innovating Justice website!

4 Comments

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Excellent example of rights being taken by combination of gender equality and use of legal/paralegal advocacy. Similar problems in other countries such as Zambia. It also reflects a wider social, legal and economic problem of affordability and quality of housing as well as of financial arrangements for purchase and upgrade. Add HIV and AIDS with premature illness and death, and it demands the practical support of UN Commsn on AIDS.

Indeed, this is a great example of how practically to deal with something that is often an overlooked subject - while gender-based violence and generalist land ownership problems get quite a bit of attention this critical issue, with such a large potential impact, often falls between stools. For more information about OSF's work on legal empowerment take a look at the global legal empowerment initiative at http://www.soros.org/briefing-papers/global-legal-empowerment-initiative, and join the global network at www.namati.org.

A wonderfully encouraging example of how to work with customary legal structures to promote women's rights — especially as it illuminates the gulf between the law on the books and the law in practice without such critical dialogue.

KELIN's work is inspiring and very much needed if we are to see women's rights to land and property translated into reality. This year, the UN Human Rights Committee also expressed concern about women's land and property rights in Kenya, and called on the Government to take specific action. The Concluding Observations can be found here:

http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR.C.KEN.CO.3_AV.doc

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