RIGHTS-KENYA: Customary Laws Leave Widows Homeless and Destitute

By IPS Correspondents Reprint | | Print |

Katy Salmon

NAIROBI, Mar 4 2003 (IPS) - Women in Kenya are often left homeless and destitute because their property rights are abused, Human Rights Watch (HRW) said in a new report released Tuesday.

When 36-year-old Rose Otaye’s husband died of AIDS in 1998, her in laws told her that she must take part in customary sexual practices in order to inherit her husband’s property.

First, she would be ”cleansed” by having sexual intercourse with a fisherman. She would then be inherited, or remarried, to one of her husband’s brothers.

When Otaye, who is also HIV positive, refused she and her five children were evicted from their home and left destitute.

”My brother in laws were angry and threatening. I have been too afraid to go back. I had to start over,” she says.

Once relatively affluent, Otaye is now so poor she has had to turn to charity to pay school fees for her five children.

”Life has been tough because I cant provide my children with their basic needs. I struggle every day to make ends meet. I have to beg for the people to pay school fees for my kids,” she says.

”I feel so much emotional seeing my kids go without a glass of milk or go hungry without food.

”Yet if I had my property, at least my children could have had a good standard of living because I could start from where I was,” says Otaye.

Such experiences are common in Kenya, where widows are often evicted from their homes by their in-laws, who take over their land and property.

The Human Rights Watch report called ‘Double Standards, Women’s Property Rights Violations in Kenya’, documents more than 100 such stories. Many of the women live in poverty, their children forced to drop out of school, living in fear of violent threats from hostile relatives.

”The family courts have cases upon cases pending of widows who have been dispossessed by their in laws,” says Judy Thiongori, a lawyer with the Centre for Rehabilitation of Abused Women.

Many local cultures do not guarantee a wife’s right to inherit her husband’s property upon his death.

Traditionally, women were expected to remain economically dependent on men – widows should be inherited by a male in-law, wives had to remain with abusive husbands or return to their fathers’ homesteads.

Although Kenya’s constitution prohibits discrimination on the basis of sex, there are specific instances where discrimination is permitted and customary law is supreme. Section 82 of the constitution says equal rights do not apply with regard to matters of adoption, marriage, divorce, burial and devolution of property upon death.

Customary laws are mostly unwritten and prone to subjective interpretation though they are formally recognised in law.

”While custom is important and effective for many purposes, to the extent that customs violate women’s rights, there is an obligation under human rights law to transform those customs that violate women’s rights,” says Janet Walsh, the report’s author.

Even some statutory laws are prejudiced against women.

For example, the Law of Succession Act rules that if a woman remarries, her rights to inheritance are terminated. However, the same does not apply for men.

Human Rights Watch are calling on the Kenyan government to stop such abuses. Kenya’s new government has promised to enact a new constitution this year, the draft of which includes provisions on women’s equal property rights.

Walsh says it must also do more to implement existing legislation. ”Laws that should protect women’s property rights, like the Law of Succession Act, must be fully implemented. Violations of those laws must be investigated and punished,” she says.

Laws that permit discrimination against women should also be amended or repealed.

Another major problem is that the majority of cases do not even reach the courts. There are very many women who would like to go to court but cannot afford the legal fees. Otaye would have had a reasonable chance of reclaiming her property had she gone to court. But she did not even consider it an option.

”It was impossible. I didn’t have enough fund to purchase those things,” she says. To apply for letters of administration in Kenyan courts costs at least 6,000 Kenya shillings in a country where the majority of the population live off less than 75 shillings (less than one U.S. dollar) a day.

The Kenyan government does not yet have a legal aid programme that would provide women with legal aid services in civil matters, like succession disputes. ”There is a grave need for legal representation for women in this country,” says Walsh.

”There are organisations that represent women in legal matters but they can barely scratch the surface,” she says.

HRW also recommends the Kenyan government launches awareness campaigns to educate the public, judges and traditional leaders about women’s property rights to encourage more women to seek redress through the courts.

Even if she went to court, Otaye is cynical whether she would have won believing her in-laws would have been able to bribe the judges.

”I could not win. I don’t have the funds; they have the funds. They can go and dodge everything,” she says.

Women own less than 10 percent of land in Kenya for various social, cultural and legal reasons.