How Title Deeds Make Sex Safer: Women's property rights in an era of HIV | Marriage

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One impact of HIV and AIDS in sub-Saharan Africa has been an increase in the number of poor, female-headed households. With particular reference to Kenya, this paper argues that under customary law, women's rights to own and inherit property are often limited and secondary to those of men. As a result, women who become widows are disproportionately likely to lose their homes, land, and other assets, placing themselves and their children at risk of destitution and exploitation. Modern systems of individual property rights offer women better legal protection, although such systems can discriminate against the poor, and often lack social legitimacy. Collective action to demand women's property rights has been slow to develop in Africa, despite the support of international legal frameworks such as CEDAW. Paradoxically, the author suggests that the threat that HIV and AIDS poses to national development may spur activists and governments to make greater efforts to ensure women's property rights.
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    How title deeds make sex safer: women’s property rights in an era of HIV Caroline Sweetman One impact of HIV and AIDS in sub-Saharan Africa has been an increase in the number of poor, female-headed households. With  particular reference to Kenya, this paper argues that under customary law, women’s rights to own and inherit property are often limited and secondary to those of men. As a result, women who become widows are disproportionately likely to lose their homes, land, and other assets, placing themselves and their children at risk of destitution and exploitation. Modern systems of individual property rights offer women better legal protection, although such systems can discriminate against the poor, and often lack social legitimacy. Collective action to demand women’s property rights has been slow to develop in Africa, despite the support of international legal  frameworks such as CEDAW. Paradoxically, the author suggests that the threat that HIVand AIDS poses to national development may spur activists and governments to make greater efforts to ensure women’s property rights. This background paper was written as a contribution to the development of From Poverty to Power: How Active Citizens and Effective States Can Change the World , Oxfam International 2008. It is published in order to share widely the results of commissioned research and programme experience. The views it expresses are those of the author and do not necessarily reflect those of Oxfam International or its affiliate organisations.    How title deeds make sex safer From Poverty to Power – www.fp2p.org 1   ‘My in-laws took everything - mattresses, blankets, utensils. They chased me away like a dog. I was voiceless’. Theresa Murunga, widow, Nairobi, October 20, 2002 1   ‘When a woman’s property rights are violated, the consequence is not just that she loses assets. The repercussions reverberate throughout women’s lives, often resulting in poverty, inhuman living conditions, and vulnerability to violence and disease for women and their dependents (Human Rights Watch 2003, 30) Gender-disaggregated statistics on property ownership are few and far between. At the UN Fourth Conference on Women in 1995, the official UN figure was that they own ‘less than 1%’ of the world’s property. Little or no progress has been made beyond this incredibly low figure since then. UN estimates suggest that 1.5 billion people will be living without security of tenure or property rights by 2020. Around two-thirds – or more – of these will be women and girls .2  The proportion of households headed by women – and therefore depending on women having independent property rights – is rising in many places, as a result of increasing deaths due to armed conflict and HIV. Southern Africa has the highest average proportion of female-headed households on the continent – approximately 34% of households with children are female-headed. 3  Globally, an estimated 41% of women headed households live below the poverty line. 4  Property rights, and inheritance rights in particular, are critical for women in this and other heavily HIV-affected regions, since many more women are being widowed at a relatively young age, with dependent children to care for and educate. The organisation Widows’ Rights International conducted a recent survey in Uganda and found that almost 30% were under 40. 5  Modern property rights can be defined as the legal right of an individual to acquire, own, sell and transfer property, collect and keep rents, keep one's wages, make contracts, and bring lawsuits. Women’s rights advocates have long argued that women desperately need full and equal property rights if they are to realise equality with men. The impact on women of denial of their property rights is that they are totally dependent on marriage and other relationships with men for access to the means to live. Everything depends on making those relationships work. Of course, the reality of life for many poor women is very different. Marriages break down and they are abandoned, or they are forced to continue living in a relationship with a man who sees – and treats – them as a chattel. There is no possibility of leaving with the means to make a living elsewhere, or of throwing a violent husband out of the family home. Ultimately, as the joke goes, men are able to say: ‘What’s mine is mine and what’s yours is mine too’. For the vast majority of women today in North America and Europe, the story is very different. For them, independent property rights are so obviously a battle won that they are virtually a non-issue (unless, that is, you are getting divorced and fighting your husband for an equal share of the assets). But aside from evolving divorce law, which is in any case rapidly being shaped by changing thinking about women’s contribution to marital livelihoods, surely there is little new to say. Property rights were seen as so fundamental to women’s empowerment that they were one of the first goals fought for by first-wave feminists in the nineteenth century. 6  And at an international 1  Quoted in www.hrw.org/reports/2003/kenya0303/kenya0303-03.htm#P323_65141, last accessed 21 June 2006. 2  Again, the figure most often quoted is that 70% of the world’s poor are women (UN 1995).   3  www.sahims.net/archive/Briefcases/2005/reg_briefcase_069.htm, last checked 22 June 2006 4  Marjolein Benschop, Legal Officer, Land and Tenure Section, Habitat, ‘Women’s Right to Land and Property’, briefing to the Commission on Sustainable Development – Thursday 22 April 2004. 5  Kate Young, (2006), ‘Widows Without Rights: Challenging Marginalisation and Dispossession’, Gender and Development Vol. 14 No.2 6  In the UK, for example, the Married Women’s Property Act of 1884 permitted women bringing property to their marriage to keep ownership rights over it. Previously these had passed automatically to their husbands.    level, women’s equal rights to access, own and control land, adequate housing and property are firmly recognised in law. Yet for women in many developing countries, lack of rights over any property shared with their husbands remains a reality. Latin America has the most egalitarian legal traditions and inheritance norms concerning women’s property ownership, and a powerful lobby has sought to establish and enact these rights. South Asia has significant inequality – despite extensive mobilisation for women’s rights in the region. But sub-Saharan Africa, with its combination of outsider-imposed political boundaries and systems resulting in weak or failing states, and high HIV prevalence, presents the most interesting case for analysis in this short paper. The analysis below focuses in the main on Kenya, as rich data exists on the connections between HIV and denial of women’s property rights. In sub-Saharan Africa, relatively few countries have legislation in place designed to assure women’s access to land and property. The few countries that do have legislation include Burkina Faso, Malawi, Mozambique, Niger, Rwanda, South Africa, Tanzania, Uganda and Zimbabwe. And of course, knowledge of the law, money to gain access to it, and courage to cope with the inevitable backlash from the family and wider community are required too. Most women have no choice but to bend to the will of husbands and in-laws, and forget assertions of independent rights. Just as in Europe a century ago, women discover that in the absence of control over the crucial resources we all need to live, having the dreams and aspirations to survive without a man mean absolutely nothing at all. Making a living depends on having a place to live, and – depending on what you do to survive – on having some land to farm, a room to run a business from, money to pay for materials, a computer, and someone to look after the children. Yet without legal independent rights to own property, regardless of marital status, most women living in poverty in developing countries depend on their relationships with men to deliver these things. And hence their livelihoods are precarious. If the relationship sours, or if the man gets ill and dies, how are they and their children to survive? Property rights, inheritance and HIV Currently, the issue of women’s property rights needs to come right up to the top of the agendas of development policymakers and governments. Human rights activists are researching the impact of the lack of these rights not only on women and children, but on the HIV pandemic itself, which currently presents the greatest development challenge of all facing sub-Saharan Africa. In the region, nearly 60% of HIV-positive adults are women. In the 15–24 age group, women are five to six times more likely than men to be HIV positive due to their dependence on sexual relationships for the means to live. Gender inequality is seen as the major cause of the HIV pandemic. As Anne Marie Goetz and  Joanne Sandler of UNIFEM point out, ‘while the disease is a health issue, the pandemic is a gender issue’. Efforts to fight HIV and AIDS around the world are ineffective in protecting young women in particular from infection because they fail to focus sufficiently on the need for women to have control of economic assets if they are ever to gain control over their sex lives. 7  Women who have independent assets have greater bargaining power within marriage and families, and, if they are widowed, they are more likely to be able to survive outside the sex trade. 8  Millions of wives 7  Sixteen years ago economist Amartya Sen modelled the link between women’s perceived contribution to household income and their relatively better breakdown position in conflicts - (1990), ‘Gender and Co-Operative Conflicts’, in I. Tinker (ed), Persistent Inequalities , Oxford University Press: Oxford 8  International Center for Research on Women research argues that women need 1) property rights and economic security, 2) protection against violence, and 3) female controlled prevention methods such as microbicides – ICRW Press Release 30 March 2006. How title deeds make sex safer From Poverty to Power – www.fp2p.org 2    contract the virus from their husbands. Livelihoods fail as men become ill and women add the job of caring for the sick and dying to their existing back-breaking workloads. After husbands die, wives and children commonly lose the houses they lived in, the land they farmed, and any other assets they used and earned in business. This dependency on men makes wives acutely vulnerable. In countries like Kenya, where the HIV and AIDS pandemic is hitting hardest, property rights are in the headlines due to the thousands of women who face destitution due to lack of the right to inherit property on their husbands’ deaths. Denial of women’s right to inherit marital homes and property is crippling the chances of women and children surviving economically after the death of husbands and fathers. Currently many more women are being widowed, at a younger age, than before AIDS hit, and the individuals and households responsible for trying to grab their property are themselves often very hard-hit. In the absence of enforceable laws protecting the rights of widows, their property is vulnerable to grabbing by husbands’ relatives. The stripping of widows’ assets is justified and socially condoned by asserting widows’ stigmatised social status. In Kenya, desperately hoping to hold onto their property by submitting to rape and forced marriage, widows ‘choose’ to conform to traditional ‘cleansing’ rituals: having sex with a jater (an outcast from the community who is given this role and paid for it), or even having sex with their husbands’ dead body. This is the price they pay for continuing support from their in-laws. Many women are subsequently ‘inherited’ by their brother-in-law, who takes them as a wife with a specific inferior status. In Kenya, the srcinal practice of wife inheritance (known as ter in the Dholuo language spoken in western Kenya) was a communal way of providing widows with economic and social protection. Since widows were not entitled to inherit property in their own right, being inherited was a way to access land. An inheritor was supposed to support the widow and her children. 9  But there is no guarantee these days, as traditions break down, that brothers-in-law will not after all throw them out and dispose of their assets as they see fit. Similar stories come from other parts of Africa and South Asia. As Kate Young of Widows’ Rights International says: ‘Widows often lose control of land and other assets to which they have rights, and are subjected to all forms of sexual harassment. In India, the word for widow and for whore are closely related in Hindi’. 10  The lesson from this story is clear. People who are forced to depend on their good relationships with others for their most basic rights to shelter and the means to make a living are vulnerable to appalling abuse and exploitation. Once crisis strikes – whether this is in the form of economic crisis following the HIV and AIDS pandemic, conflict as in Rwanda or Burundi in the 1990s, battles   over eroding natural resources, or the undermining of traditional views of rights and obligations which happens once people’s attitudes and beliefs change in response to international media – people have to decide on where their first loyalties lie. Social obligations to people beyond one’s immediate loved ones feel less important, and if they have property which will ensure one’s own survival, it is tempting to grab it. At that point, the pretence that some people (men) who have a primary interest in property will benignly look after the interests of those with a secondary interest (women) breaks down. The impact on development Obviously, the impact of widows lacking inheritance rights has knock-on effects on the next generation and ultimately on national development. Development needs women’s equal property 9  www.hrw.org/reports/2003/kenya0303/kenya0303-02.htm#P264_48906, last accessed 21 June 2006. 10  Young (2006), op. cit. How title deeds make sex safer From Poverty to Power – www.fp2p.org 3
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