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ADVANCING WIDOW’S RIGHTS TO LAND AND NATURAL RESOURCES THROUGH AFFIRMATIVE ACTION

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A group of people smiling standing next to a woman holding a goat by its leash

Widows have a right to own property

Over the last decade, Kenya has taken some steps to promote fairness and secure women’s rights within the institution of marriage. The promulgation of the progressive 2010 Constitution and the enactment of the Matrimonial Property Act of 2013 (‘MPA’) have been significant steps in the right direction. The act abolished the unconstitutional marital powers of the husband and placed husbands and wives on equal footing. Men and women who are married in civil marriages in community of property must now consult each other on all important financial transactions, as equal partners. 

Before the Act was passed, the common law concept of “marital power” gave the husband the right to control the joint estate. Even though half of everything belonged to the wife, the husband had the authority to administer the estate on behalf of the couple.

Section 5 gives equal power to spouses married in community of property: to dispose of the assets of the joint estate; to contract debts for which the joint estate is liable; to administer the joint estate.

Section 6 states that “a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse”. 

Provides women married in a community of property equal access to bank loans and ownership of property without the consent of their partner.  

Makes the age of consent for entry into civil marriage 18 years for both sexes, and provides that men and women are equal before the law.

Provides that immovable property, such as a communal house, must be registered in both spouses’ names. The sale of such property has to be approved by both parties. Likewise, the act provides for equal guardianship over minor children of the marriage.

When a marriage in community of property ends, any liabilities are settled out of the joint estate. If the marriage ended in divorce, the remainder of the estate is normally divided equally between the spouses. 

If the marriage ended due to the death of one spouse, the surviving spouse keeps his or her own half-share and the deceased spouse’s half-share is distributed in terms of the law of succession or intestacy.

 

In marriages out of community of property, the assets and debts of the husband and wife remain separate. Ownership of property remains with the person who acquired it. If the marriage ends, each spouse retains his or her own separate belongings.

The Act also makes it clear that both husbands and wives in marriages out of community of property bear responsibility for making contributions to household necessities in proportion to their resources. Both spouses are jointly and severally liable to third parties for all debts incurred by either of them for necessities for the joint household. A spouse who has contributed more than his or her fair share for such necessities has a right of recourse against the other spouse.

Couples who have entered into antenuptial agreements sometimes use a variation of community of property known as the “accrual system”.

In this system, the property owned by the husband and the wife before the marriage remains their separate property, and property acquired during the marriage is administered as separate property. When the marriage comes to an end, husband and wife share equally all of the property and assets that were added to the household during the marriage. There is no sharing of losses, only of profits.

CASE STUDY – KNOWLEDGE OF SUSTAINABLE AGRICULTURE BEING USED TO EMPOWER WIDOWS IN KITUI COUNTY, KENYA

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Woman dressed in green overall and boots bent picking plants on a farm

Sustainable agriculture is empowering widows in Kitui County, Kenya

Widows are a vulnerable demographic lacking in economic means, social capital and means to protect their individual rights. In recognition of their unique status as societal pariahs, community-based organizations in Kitui County came together and brainstormed ideas for creating sustainable livelihoods for widows living amongst them. Earlier on, it was evident that sustainable agriculture would be transformative and practical. It was a consensus that through a communal collaborative effort, widows could grow crops and raise livestock to guarantee them a source of food and income. 

Sustainable agricultural practices were intended to protect the environment, expand the natural resource base, and maintain and improve soil fertility in areas where it was practised. Based on a multi-pronged goal, sustainable agriculture was chosen as it increased profitability, and income, and promoted environmental stewardship.

Kitui region is located in the Arid and Semi-arid region of Kenya that receives little rainfall which is often sporadic. 

Among the activities undertaken were:

  • Rotating crops and embracing diversity.
  • Planting cover crops and perennials.
  • Reducing or eliminating tillage. 
  • Applying integrated pest management (IPM). 
  • Integrating livestock and crops. 
  • Adopting agroforestry practices. 
  • Managing whole systems and landscapes.

It should be understood that these widows were women previously displaced from their matrimonial homes, and they lacked the technical skill of utilizing scanty ecological resources to practice agriculture.

The introduction of this activity was therefore revolutionary in a sense. Previously destitute mothers could now look forward to harvesting their crops and selling them at local markets. The proceeds from this would then be used to pay for their children’s school fees, rent living quarters and purchase dignified clothes. The resultant social effect was the emergence of a class of empowered widows, who no longer looked at society with a bowl in hand, begging for sustenance. 

As a sustainable agricultural practice, the resulting effect was;

  • Increase in productivity, employment and value addition in food systems.
  • Protection and enhancement of natural resources.
  • Improved livelihoods that fostered inclusive economic growth.
  • Enhanced resilience of widows, whose socioeconomic ecosystem could withstand different economic shocks.
  • Adapt governance to new challenges especially as widows acquired social capital and economic power, they were able to hire legal aid to advocate for and speak for their rights.

The example of how widows were rescued from the throes of poverty and propelled to a life of hope and dignity is what the goat foundation aspires to and continues doing across the country. Scores of women have received a pair of goats from this foundation and the socioeconomic outcome has been similar. At the Goat Foundation, we felt encouraged to observe how different aspects of the Sustainable Development Goals were being attained by the simple act of communal cooperation, training and inculcation of relevant skills. It is for this reason that our foundation not only offers a pair of goats to widows, but we also provide crucial financial literacy training that ensures these women can start to grow their financial base through making informed decisions. 

 

HOW CBOs ARE ENGAGED IN THE STRUGGLE AGAINST THE ‘CLEANSING RITUAL’ IN WESTERN KENYA

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A woman seated on a chair with ash smeared on her face. She is carrying a small child crying and beside her is a short girl standing

Widows are subjected to cleansing rituals in some parts of Kenya

When a husband passes away in western Kenya, it represents not only the loss of a spouse but also the passing of a provider for the family and a change in the woman’s standing within the community. In the traditional culture, the widow must undergo purification following the spouse’s passing.

The ritual requires widows to have sex with strangers who are sometimes HIV-positive and do not use protection. The sexual cleansing is done as part of the transition process for the widow to become eligible to remarry and is also conducted to cleanse the widow of evil spirits resulting from the death of her husband.

After the cleansing has taken place, the widow is expected to be inherited by a man, traditionally an in-law. In recent days, in-laws are now less willing to inherit a widow due to the economic burden, which has led to men who are not relatives asking for payment to perform the rituals.

Entrenched tradition, poverty, and hunger are some of the main challenges that these community organizations face in the quest to stop women from agreeing to participate in the cleansing. Poverty makes the widow agree to participate in the ritual so the man can take care of her and the children.

The CBOs that are non-profits are now supporting women’s groups that have come together to reverse the traditional practice. The groups meet once a week to offer solace, and advice to each other while preaching against the ritual to other women in the community.

As much as these women are doing something great to meet and try to stop the rituals, it’s not easy for them in the community. Many have faced death threats and some have been attacked for speaking against the practice.

The CBO has also formed men’s Barazas to try and speak to them and discourage the practice. The tradition, though, is so entrenched in the community that it’s very difficult to try and talk them out of it. The Kenyan government has also tried to enact an act that protects women against domestic violence and promotes gender equality but the act still goes on.

One of the interventions that the community-based organizations are carrying out to assist the widows in having a business of their own that can support their families is equipping these women with the skills necessary to enable them to make a living. Through their women’s organizations, the CBOs provide charity grants to help them launch businesses that say no to poverty and hunger.

The Goat Foundation is committed, in line with the sustainable development goals, to helping widows support their families through economic empowerment. We give the widow’s family a pair of goats as part of our contribution. Our intention is to give the recipients two goats—one male and one female—in the hopes that they will breed and produce additional goats.

TURNING THE TIDE IN THE STRUGGLE FOR WIDOWS’ RIGHTS

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Widows bear the brunt of societal stereotypes.

TURNING THE TIDE IN THE STRUGGLE FOR WIDOWS’ RIGHTS

 

African traditional culture was a system that guided the lives of our ancestors in their conduct and relations. In most cases, these traditions that observed cultural norms were the pillar that ensured unity and harmony among communities. With the advent of colonial occupation, the adoption of Christianity, and Western education, most of these cultures were abandoned and forgotten.

However, in the late 20th Century, some of these cultural practices started creeping back. Communities across Africa that were disillusioned by the white man’s ‘civilization’ began retracing their steps to the old traditions that governed them. The sinister aspect that however emerged was the selective adoption and subjective interpretation of these ancient customs. Driven by hard economic times, male-dominated societies moved to consolidate economic production by grabbing land and property in the name of observing cultural norms.

Women, hitherto protected by ancient customs, were exploited, discriminated against, and abandoned by the practitioners of these new bastardized norms.

Culture no longer existed to protect and safeguard societies. Selfish looters selectively adopted and interpreted sections of these ancient customs with a partisan agenda of economic exploitation, domination, and control over women.

One group that was most affected by this neo-traditionalism was the widows. Safeguards that proscribed respect, honor, and protection of widows were abandoned. Any woman whose husband died now faced a revised system of customs that were engineered to sexually exploit them, deprive them of any means of livelihood, grab their property and basically bleed them dry. The idea behind these thugs was to scare the widow away from her husband’s property and send her back to her family.

In cases where a provision was made for widows to remain in their matrimonial home, she was to consent to unspeakable acts of sexual assaults, humiliation, battery, enslavement, necrophilia, and, necromancer.

Looked at objectively, an outsider shudders with dread at the ordeal endured by these women. It was nothing short of diabolical. Activists, international organizations, and national governments could no longer ignore this depravity. Slowly by slowly changes have been taking place and the fiendish fascination with widows’ sexuality abandoned.

Yet among numerous communities, and in societies where the outside world has yet to venture, widows live in terror and male dominance over female livelihoods has mutated into an evil presence that seeks whomever it can devour.

As sad and horrifying as it may sound, these practices dominate societies across Africa. As with all secret societies, communities are afraid to speak against them for fear of retribution. Widows differ silently and a few dare speak on their behalf.

Of late, however, NGOs, religious organizations, local authorities, and activists have made significant inroads into these forgotten corners of the world. Organizations such as The Goat Foundation have realized that the only way they can rescue these widows from the clutches of their male oppressors is through economic empowerment.

Through aggressively targeting vulnerable communities, widows are now being offered incentives to set up businesses and diversify their farming practices. Laws have been changed to guarantee legal ownership of matrimonial property though the implementation has faced difficulty due to entrenched belief in male superiority.

It is a slow and painstaking process in providing education, health services, and economic means to windows. It is hoped that eventually, advocacy and civic education will win over the hearts and minds of rural communities, who in turn will begin to grant widows the dignity of being left alone, or even provided for.

As a keen participant in this effort toward widow emancipation, The Goat Foundation looks forward to the day when men and women will be regarded as equal, in the eyes of every member belonging to these African communities.

A widow looks onto the horizon

Is Africa ready to abandon some of its widow passage rights to uphold the dignity of widows? 

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A widow looks onto the horizon

Drum rolls, upbeat music, and people dancing over lit fires. A description of a typical funeral set up among many communities across Africa. Here, death is ‘celebrated’ as a right of passage. People feast, mourn and send off their loved ones to the ‘spirit world’ safely. The loss of a loved one marks the beginning of doom, especially for widows. During this ceremony, they are comforted by their fellow women and surrounded by much love. But as soon as the funeral ends, a new life that may be marked by extreme hardship begins for these widows.

Cleansing rights like drinking the water that was used to bathe their husband’s corpse begin. Others are required to cut off their hair, go to the stream to bathe, and sleep beside their husband’s dead bodies. Among widowed households in Kenya, Tanzania, Malawi, and Uganda- widows are forced to participate in sexual cleansing. This means widows must have unprotected sex with their husband’s brother or other relatives, or with a professional village, cleanser to ‘remove the impurities that have been ascribed to her.

According to MS Magazine, widows in the South Eastern part of Nigeria go through a period of isolated confinement. This ranges from 8 days to 4 months after their husband dies. ‘In this period, the widow is not allowed to leave her room and her hair is completely shaved. She is expected to sit on the floor and wail at the top of her lungs every morning and is not allowed to take a bath or change her clothes till the body of the deceased is buried.’

The prejudices against widows are embedded in the African culture. While there are some positive customs, the negative ones overweight the good in the intention of the positive customs. It is important to note that these cultures contribute to the spread of diseases such as HIV/AIDS among the widow communities and the belief that widows should be treated inhumanely through generations.

While many may argue that widows can choose to not participate in such customs, these rites and practices intersect with the economic freedom of widows. They control their ability to be accepted and own property rightfully from their husbands. Failure to participate in these activities calls for banishment and dispossession of their property.

The only way widows across rural Africa can unlearn these practices is through economic empowerment. If they are rightfully given opportunities for wealth creation, they can leave these practices behind and stand on their own financially.