GROOTS Kenya GROOTS Kenya Grassroots Organizations Operating Together in Sisterhood HIV and Women’s Inheritance and Property Rights: Customary Law and Community Action Esther Mwaura-Muiru, GROOTS Kenya Coordinator XVI International AIDS Conference Toronto, Canada August , 2006

● Prevalence – 14% (2000), 7% (2004), ● m people died since 1984 ● 1.5m living with HIV Virus, 2/3 are women ● women aged between years are three times likely to be infected by HIV/Aids compared to men ● Approximately 2m orphaned by HIV/Aids GROOTS Kenya A Glimpse at the Impact of HIV/Aids in Kenya

HIV and Women’s Inheritance and Property Rights  Higher numbers of widows than widowers  Girls are more prone to disinheritance than boys  Although equality and equity between men and women as a fundamental human right is enshrined in the constitution, discrimination of women remains widespread  Examples: The Married Women Property Act of England (1882), The Law of Succession and The Marriage Act – Wives Children including daughters have right to inheritance  Factors fueling this are: social cultural factors, Kenya is highly patriarchal, ignorance and inconsistency of laws  At death sons rather than widows become the heirs GROOTS Kenya

Customary Law and Community Action  Customary law is widely practiced as a valid legal system  HIV/AIDS creates opportunities to question whether customary law reinforces or contradicts legislation  The gap exists between legislation/legal systems and practice GROOTS Kenya

Improve Access to Legal Systems and Increase Awareness of Existing Laws ● Widespread education through community action teams like community Watch Dog groups ● Train responsible, committed community members as paralegals who can provide affordable assistance for everyone. Communities must identify those who become paralegals ● Improve the capacity of trained paralegals to do their job – training is not just enough ● Paralegals must be linked to existing legal frameworks and acknowledged as a community’s first step to legal redress – not to be seen as competitive forces ● Create a Checks and Balances system to ensure equal treatment for all from local leaders and legal systems (e.g. by Watch Dog Groups) ● To protect the marginalized from being subject to apathy and bribery ● Include community members in forums that involve law formation and reform GROOTS Kenya

● Community to community learning by exchanging good practices is ultimately most effective ● Boldly identify gaps and effective models ideal for replication ● For Example: Equal inheritance for both girls and boys and joint ownership registration ● Depoliticize process of reviewing laws related to property and inheritance ● Have community members lead community education forums instead of outsiders as often as possible instead GROOTS Kenya Providing Legal Education to Communities

● Community documentation of customary law and reinforcement of only the positive aspects ● Develop process to review customary law just as already exists with formal law ● Formation of community “Watch Dog” groups to guard against and monitor property grabbing ● Protect the marginalized and vulnerable, particularly women and girls GROOTS Kenya Ensuring Customary Law is a Positive and Protective Force

● Balance the advocacy and reviewing of existing laws with the actual implementation ● Form a standing commission to regularly compare relevance of both formal and customary law and to identify their contradictions and areas for reinforcement ● Neither customary nor formal law should supersede the other without case by case justification GROOTS Kenya Addressing Conflicts and Gaps between Formal and Customary Laws

● Communities must realize they guide the law as opposed to receiving it ● Knowledge of the law should be perceived as a responsibility of communities and a worthy investment by governments ● Protection of vulnerable groups is first at the hands of immediate neighbors and families – collective and community responsibility ● Advocating for space for voices of grassroots women ● Government’s role is formulating the law as dictated by people’s accepted ways of interacting and engagement ● Boundaries for enforcement by government and individuals must be clearly defined GROOTS Kenya Action at Both the Community and Governmental Levels

Outlaw regulations and laws that discriminate against women Document “true” customary laws by all the communities and review and enforce only those that are positive Develop school curriculum on inheritance and property laws Widely disseminate legal cases that redressed discrimination against women Community Watch Dogs have proved effective in safeguarding property and inheritance rights of women and orphans in Kenya and are vehicles for sustainable education GROOTS Kenya Summary