COHRE Shelter from the Storm Women Housing Rights HIV/AIDS Subsaharan Africa 2009

Shelter from the Storm Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

2009 Centre on Housing Rights and Evictions (COHRE)

COHRE International Secretariat 83 Rue de Montbrillant 1202 Geneva SWITZERLAND tel.: +41.22.7341028; fax: +41.22.7338336 E-mail: cohre@cohre.org Web: www.cohre.org COHRE Africa Programme Private Mail Bag CT 402 Cantonments Accra GHANA tel.: +233.21.238821; fax: +233.21.231688 E-mail: cohreafrica@cohre.org COHRE Asia and Pacific Programme PO Box 2061 Phnom Penh 3 CAMBODIA e-mail: cohreasia@cohre.org COHRE Americas Programme Rua Demétrio Ribeiro 990/202 90010-313 Porto Alegre, RS BRAZIL tel./fax: +55.51.32121904 E-mail: cohreamericas@cohre.org COHRE – US Office 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel. /fax: +1.218.7331370

COHRE ESC Rights Litigation Programme 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel. /fax: +1.218.7331370 E-mail: litigation@cohre.org COHRE Right to Water Programme 83 Rue de Montbrillant 1202 Geneva SWITZERLAND tel.: +41.22.7341028; fax: +41.22.7338336 E-mail: water@cohre.org COHRE Global Forced Evictions Programme Private Mail Bag CT 402 Cantoments Accra GHANA tel.: +233.21.238821; fax: +233.21.231688 E-mail: evictions@cohre.org COHRE Women and Housing Rights Programme 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 E-mail: women@cohre.org

© Copyright 2009 The Centre on Housing Rights and Evictions (COHRE), Geneva, Switzerland Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa ISBN: 978-92-95004-62-7 The Centre on Housing Rights and Evictions is registered as a not-for-profit organisation in: Brazil, Cambodia, Ghana, Sri Lanka, Switzerland and the USA Prepared by: Agnes Kabajuni and Mayra Gómez All photos: COHRE

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

Shelter from the Storm Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

1 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

TABLE OF CONTENTS EXECUTIVE SUMMARY .......................................................................................................... 3 ACKNOWLEDGEMENTS ......................................................................................................... 6 1.

INTRODUCTION............................................................................................................. 7

2. WOMEN’S HOUSING RIGHTS AND THE STRUGGLE AGAINST HIV/AIDS IN GHANA, KENYA AND UGANDA...........................................................................................................14 2.1 2.2 2.3

GHANA ................................................................................................................... 14 KENYA .................................................................................................................... 16 UGANDA ................................................................................................................. 18

3. EXPOSING VIOLATIONS OF WOMEN’S HOUSING RIGHTS IN THE CONTEXT OF HIV/AIDS: TRENDS AND CHALLENGES ............................................................................22 3.1 3.2 3.3 3.4 3.5 3.6 3.7

WOMEN’S POVERTY .................................................................................................22 WOMEN’S LAND RIGHTS ..........................................................................................23 VIOLENCE AGAINST WOMEN....................................................................................24 STIGMA ...................................................................................................................25 DISCRIMINATORY CUSTOMARY LAWS AND PRACTICES ...............................................26 INADEQUATE LEGAL PROTECTIONS .........................................................................26 URBAN AND RURAL CHALLENGES ........................................................................... 28

4.

CONCLUSIONS ..............................................................................................................30

5.

RECOMMENDATIONS ...................................................................................................31

2 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

Executive Summary This COHRE report examines housing rights violations facing women within the context of the HIV/AIDS pandemic, with a focus on women’s situations in Ghana, Kenya and Uganda. Our research has aimed to bring forth the lived experiences, challenges and hopes of women and girls living with, or otherwise affected by, HIV/AIDS. In so doing, we build on the premise that the housing challenges which women and girls experience are a themselves gender-specific issues, and that gender inequality is closely linked to issues of security of tenure, ownership and control of land, and access to other essential and productive resources.

COHRE believes that in order for international and national anti-AIDS strategies to be effective, they must prioritise women’s housing and land security, and women’s equality more broadly. As UNAIDS, UNFPA and UNIFEM have noted “HIV/AIDS is no longer striking primarily men. Today, more than 20 years into the epidemic, women account for nearly half of the 40 million people living with HIV worldwide. In Sub-Saharan Africa, 57 per cent of adults with HIV are women and young women aged 15 to 24 are more than three times as likely to be infected as young men. Despite this alarming trend, women know less than men about how HIV/AIDS is transmitted and how to prevent infection, and what little they do know if often rendered useless by the discrimination and violence they face.”1 Within the context of HIV/AIDS, securing women’s housing and land rights is a critical strategy for change.

Gender discriminatory norms and traditional practices which limit or preclude women’s access to housing, land and property, both generate and sustain the dire circumstances which underlie women’s disproportionate susceptibility to HIV infection. While women’s enjoyment of their right to adequate housing is clearly threatened in situations of gender inequality, the good news is that when this right is properly protected, it can fundamentally uplift women’s status and lessen the devastating impacts of HIV/AIDS. As COHRE’s research demonstrates, when women’s housing rights are respected and protected – including when women and girls are able to ‘inherit’ and control housing, land and property – women and girls are better able to cope with the detrimental effects of the disease. Because housing security also leads to improved living conditions, for example, access to livelihoods and access to education, women and girls are often better able to mitigate the negative personal and financial impacts of HIV/AIDS. Furthermore, a secure home and all that comes with it may actually prevent HIV transmission in certain cases by reducing women’s dependency and enhancing their personal autonomy.

Fortunately, there is already a wealth of information available on the scope of HIV/AIDS in Africa, and in recent years a number of studies have also been carried out in the area of women’s housing, land and property rights in the context of HIV/AIDS. Nonetheless, some studies in this area have tended to take a broad view of women’s property rights in the context of HIV/AIDS, and therefore at times have eclipsed the specific importance of housing and land rights (as human rights) for women struggling to cope with the impacts of HIV/AIDS. Therefore, securing housing rights for women in the context against HIV/AIDS is an issue that merits further focus and urgent attention. It is an issue which we believe must be given the priority it deserves by policy-makers and advocates alike. By illuminating the lived experiences of women and the international obligations of States, this report hopes to trigger concrete policy action and legal reforms aimed at securing women’s housing rights, as an essential element in the struggle against HIV/AIDS in Sub-Saharan Africa.

The analysis, recommendations and conclusions presented in this study have been informed by a series of in-depth fact-finding missions undertaken in 2008-2009 by COHRE staff and partners in three countries: Ghana, Kenya and Uganda. In these countries, the experiences and testimonies of women were gathered through focus group discussions and one-on-one interviews with women living with, or affected by, United Nations Programme on HIV/AIDS (UNAIDS), the UN Population Fund (UNFPA) and the UN Development Fund for Women (UNIFEM), ‘Women and HIV/AIDS: Confronting the Crisis,’ (n.p.: UNAIDS, UNFPA and UNIFEM, 2004).

1

3 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

HIV/AIDS. Women living in both rural and urban communities have been included in this study, with a total of 240 women participating, and sharing their stories. At their request, and because of the stigma which continues to regrettably shroud the disease, many of these women’s names have been withheld when their personal testimonies are quoted within this report.

The first-hand testimonies provided to COHRE by women living with HIV demonstrate not only the serious challenges which they face, but also their deep resilience. Their struggle is a struggle against a myriad of gender inequalities, gender-based violence, gender discrimination and so-called ‘gender neutral’ policies that interplay to deny women ownership of productive resources and cause them ongoing housing and land insecurity. The findings of the study reaffirm that there is, sadly, a close relationship between violations of women’s housing, land and property rights, and continued high rates of HIV/AIDS in sub-Saharan Africa. In particular, COHRE’s study has revealed that: •

Most women access their housing through a relationship to males in their family; most often with their husbands, in-laws, or natal families. When these relationships break or otherwise cease to exist, women are left extremely vulnerable, often unable to find alternative housing for themselves and their children.

•

When women are infected with HIV, they run the risk of being abandoned or divorced by their spouses, and this often times renders women homeless.

•

HIV/AIDS increases the number of widowed women, which in turn increases incidents of ‘disinheritance’ and property-grabbing. Widows interviewed by COHRE identified in-laws as the main violators of their housing, land and property rights.

•

While widowed or divorced women are often pressured to return to their natal homes, women living with HIV are also likely to be rejected by their natal relatives. This is also true for single women who become infected with HIV. For example, in western Kenya, a woman does not have a place in her natal home. Male heirs, who are to inherit their father’s estates, will often actively prevent a woman from staying at her natal home. With no place to go, COHRE found that many women find no other alternative than to live in urban slums where they can access the cheapest rents.

•

When women are forced to leave their marital homes, they usually move with their children, and the responsibility of caring for children solely reverts to them. Almost 90 per cent of dispossessed women interviewed by COHRE linked their current housing problems to the burden of having to spend their insufficient resources simply to care for their children’s basic needs (and having little left over to meet their housing needs).

•

Access to justice for women whose rights to housing have been violated is not only expensive, but also inaccessible, tedious, lengthy, frustrating, many times full of corruption and discrimination. Women’s legitimate claims are not supported by adequate legal protections and safeguards which are available to them. Out of the 240 women COHRE interviewed for this study, only two had successfully used the law to regain their rightful property.

•

In both rural and urban communities, COHRE found that women’s rights to housing, land and property are violated and/or greatly affected within the context of HIV/AIDS. Most women with whom COHRE spoke ended up without housing, or inadequately housed. In particular, women in urban areas were forced to resort to inadequate and cheap accommodation, which not only compromised their health, but was also itself a source of risk for HIV infection and gender-based violence.

These and other findings are detailed in the sections which follow. Based on these findings, COHRE recommends that States in Sub-Saharan Africa take a number of steps to secure women’s housing, land 4 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

and property rights within the context of HIV/AIDS. COHRE believes that a coordinated and cohesive effort is essential, not only to improving women’s housing security, but also to reducing HIV/AIDS prevalence among women in Sub-Saharan Africa. Therefore, we also hope that these recommendations will also be valuable in informing NGOs, international organisations, and civil society actors engaged in combating HIV/AIDS. COHRE makes the following eight recommendations to Sub-Saharan African States grappling with the HIV/AIDS pandemic. These recommendations are addressed in greater detail in Section 5 of this report.

•

Ensure adequate national legal and policy frameworks which recognise and protect women’s housing and land rights, including women’s equal ownership of, access to and control over housing, land and property

•

Increase and strengthen access to justice by women living with or affected by HIV/AIDS, so that they are able to secure their housing, land and property rights in practice

•

Integrate a human rights based approach into their national HIV/AIDS national reduction strategies, with specific attention paid to ensuring women’s housing, land and property rights

•

Provide information on efforts to ensure women’s equal housing, land and property rights within the context of HIV/AIDS

•

Ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

•

Provide adequate, alternative housing to women in need who are living with HIV, and their families, so that they are able to realise their right to adequate housing

•

Design and implement education and sensitisation programmes to raise awareness of women’s rights to equality and non-discrimination within the context of HIV/AIDS, particularly vis-à-vis women’s housing, land and property rights

•

Provide economic empowerment opportunities to women living with or affected by HIV/AIDS, such as low-interest loans, credits and financing schemes, which will allow them to access adequate housing

5 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

Acknowledgements The Women and Housing Rights Programme (WHRP) of the Centre on Housing Rights and Evictions (COHRE) would like to extend its sincere appreciation to each and every woman – struggling to survive the devastating effects of HIV/AIDS pandemic – who boldly shared their story with us throughout the course of our fact-finding.

We were greatly humbled by the determination and strength of these women. Most living with HIV themselves, we know that these women have suffered enormous hardships. Many have lost their loved ones, many look after sick children, and all have had to counter the legal, social and economic challenges that the disease has hoisted upon them. We drew inspiration from the fact that in the face of the pandemic, women have nonetheless devised their own survival strategies, and many are working to assist others to cope with the consequences of the disease. It is to these unsung heroes, and to the millions more all across Sub-Sahara Africa, and around the globe in similar situations, that we dedicate this report.

The WHRP would also like to extend its sincere gratitude to many organisations that teamed with us in mobilising and interviewing women in the communities where they work. These organisations interrupted their routine meetings with women living with HIV/AIDS so as to allow COHRE’s research take place.

They also played a vital role in translation process when language was a sometimes barrier. These organisations included: • • • • • •

Pro-Link Organisation (Ghana) The Narth Bita Private Hospital HIV/AIDS Programme (Ghana) Women United Against HIV/AIDS in Ghana (Ghana) Christ the King Human Rights Programme (Kenya) Obunga Community Widows and Orphans Group, Kisumu (Kenya) The Global Coalition of Positive Women (Uganda)

The WHRP would also like to thank Ms. Mercy Kadenyeka, formerly working with Christ the King Human Rights Programme and now with Haki Jamii in Kenya, for her unflagging role in facilitating visits to Kibera and in linking us to partners in Kisumu. In the same way, WHRP extends special appreciation to Ms. Flavia Kyomukama who played a key role in mobilising women groups in Uganda. Her brave and frank testimony as a woman affected by HIV/AIDS, violence and property loss, inspired many women to tell their own stories.

Last but not least, we would also like to express our sincere appreciation to Mr. Baasit Aziz, an intern from Harvard University who worked with our Programme staff in the COHRE-Accra office to complete extensive desk research prior to the fact-finding. His research efforts have also enriched COHRE’s study, and provided our research with a solid foundation from which to move forward.

6 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

I was his second wife. When he died, his relatives chased me away. My own mother’s sister’s children had sold my mother’s land. They thought I was dead. I had nowhere to go. I stayed in the house my husband had rented for me for a year, and after that I could not afford to pay the rent. I was sick and had no money.

I started begging for food and other needs. I relocated to a cheap shack for one thousand Kenya shillings a month [n.b. about 10 EUR]. The room is in bad condition, but I have no choice having to care for the five children.

- Testimony given to COHRE by a woman living with HIV in Kibera Slum, Kenya [name withheld]

1.

Introduction

Gender discrimination too often precludes women from realising their housing, land and property rights on an equal basis with men. In the Sub-Sahara Africa, this inequality is often times fuelled by negative cultural practices and beliefs which reinforce women’s subordinate position within their societies.

Women are callously evicted from their homes and rendered homeless, often at the hands of their own family members and in-laws, through a cruel, often violent practice known as ‘disinheritance.’ They are evicted primarily because they are women, and as such they cannot claim, own or possess property in their own right. This reality is further perpetuated by weak and ‘gender-neutral’ institutions and policies which too often turn a blind eye towards women’s plight.

The menacing presence of HIV/AIDS on the African Continent has only exacerbated widespread discrimination against women in the area of housing, land and property rights. The statistics on the prevalence of HIV/AIDS are nothing short of alarming. Almost two thirds of all persons with HIV/AIDS, about 27.7 million people, live in Sub-Saharan Africa. About 57 per cent of those infected are female. Among HIV infected youth in Sub-Saharan Africa, 68 per cent are female. If there could be only one face to the pandemic, it would undoubtedly be that of an African woman. Sub-Saharan Africa has the highest rates of HIV infection in the world, and it also records more deaths from AIDS than any other part of the world, with about 72 per cent of global AIDS deaths occurring on the Continent.2 Across this region, women bear a disproportionate part of the AIDS burden. Not only are women more likely than men to be infected with HIV, but their daily workloads are heavier – including care of children and the sick – and gender discrimination results in women being disproportionately poor and unable to prevent or mitigate the consequences of the disease. Because the HIV/AIDS pandemic is itself fuelled by gender discrimination and inequality, the international community has come to acknowledge that improving the status of women is a critical task in the global fight against HIV/AIDS. Indisputably, access to housing and land has become one of the biggest challenges for women affected or infected by the disease. It is perhaps not surprising that the women COHRE interviewed saw access to adequate housing as key to their attainment of peace, dignity and security. And, what’s more, they identified access to housing as an essential element in the prevention and treatment of HIV/AIDS among women.

Other studies on HIV/AIDS are gradually focusing on the impact of the pandemic in human rights and development terms. Moving beyond purely clinical and public health studies, this stream of studies tends to focus on the impact of HIV/AIDS on a range of political, social, and economic factors. Of late, various national studies have also been conducted on the impact of HIV/AIDS on the housing, land and property rights of widows and orphans.3 The focus on gender is not accidental, but arises from deep concerns about the magnitude of the impact of HIV/AIDS on the lives of women and girls.

2 United Nations Programme on HIV/AIDS (UNAIDS), Report on the Global AIDS Epidemic: Executive Summary (n.p.: UNAIDS, 2006).

3 For further information, please see: International Center for Research on Women (ICRW), ‘Reducing Women’s and Girls’ Vulnerability to HIV/AIDS by Strengthening their Property and Inheritance Rights,’ Information Bulletin (n.p.: ICRW, May 2006); Kaori Izumi (ed.), ‘Reclaiming Our Lives: HIV and AIDS, Women’s Land and Property 7

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

In rural and urban areas alike, housing and land are essential resources for helping families to move out of poverty, or to otherwise meet their daily economic challenges. The vast majority of women, however, can have their housing and land rights violated with impunity, due to norms and practices which discriminate against them. Women living with, or affected by, HIV/AIDS are even more vulnerable to discrimination and hardship. The death of spouses and other family members suffering from AIDS impacts on the social and economic status of women. For women throughout Africa, living with HIV, or losing a husband to the disease, has become a common precursor to property-grabbing and further impoverishment. Indeed, it is often during the most critical time – when women are struggling to cope with the health affects of the disease on themselves and loved ones – that many women face their most formidable housing rights challenges. Amidst caring for the sick, for their children, and for the clearance of debts incurred by trying to cope with the economic impacts of the disease, women must also cope with losing that which sustains them the most – their homes and their lands.4 The absence or loss of housing and land also significantly impacts women’s health. Forced off of their lands, many women face food insecurity for the first time in their lives, and are unable to purchase nutritious foods that they would otherwise grow themselves to maintain their health in the face of HIV infection. Tragically, lack of housing and land may very well send these women to their early graves. For women forced to take up life in the slums or informal settlements of urban areas, poverty and exposure to slum life pushes some women further into risky behaviour like commercial sex, which further exposes them to gender-based violence and spreads HIV/AIDS infection. For a woman who has been stripped of her home and her land, the ensuing economic hardships may make it difficult for her to access lifesaving medical treatment, let alone justice for the housing rights violations she has endured.

As many have recognised, the HIV/AIDS pandemic “begets human rights violations such as further discrimination and violence.”5 To reverse the trend, the international community has recognised that countries must protect “women’s rights to, inter alia, legal capacity and equality within the family, in matters such as divorce, inheritance, child custody and property.”6 As the United Nations has noted, having “access to and control over housing, land and other property acquires particular urgency for HIVpositive women or widows and children orphaned by AIDS.”7 Support for women’s rights to housing and to ‘inherit’ property can, in fact, lessen the spread of HIV/AIDS. Advocates continue to shine a light on the preventative and corrective powers that women’s housing, land and property right have in the context of the pandemic.8 In this study, women interviewed by COHRE expressed a need for increased education, not only on women’s rights, but also on HIV/AIDS and issues of stigma. For example, women from Ghana told of how women living with HIV were ostracised and ignored within their communities. People sometimes Rights and Livelihoods in Southern and East Africa,’ (n.p.: HSRC Press, 2006); Marjolein Benschop and M. Siraj Sait, ‘Tools on Improving Women’s Secure Tenure,’ Land & Tenure Branch, UN HABITAT, Progress Report on Removing Discrimination in Respect of Property & Inheritance Rights, 1/2 (n.p.: UNHABITAT, August 2006); Human Rights Watch (HRW), A Dose of Reality: Women’s Rights in the Fight against HIV/AIDS (New York: HRW, 21 March 2005); Office of the United Nations High Commissioner for Human Rights (UNHCHR) & Joint United Nations Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights (2006 Consolidated Version); United Nations, ‘Women and HIV/AIDS: Advocacy, Prevention and Empowerment,’ UN Backgrounder, International Women’s Day (n.p.: 2004).

4 Kaori Izumi, ‘Report on FAO, UNIFEM and National AIDS Council Joint National Workshop on HIV/AIDS and Women’s Property Rights and Livelihoods in Zimbabwe,’ (n.p.: FAO Southern Africa Region, 2004).

5 Office of the United Nations High Commissioner for Human Rights (UNHCHR) & Joint United Nations Programme on HIV/AIDS, ‘International Guidelines on HIV/AIDS and Human Rights,’ (2006 Consolidated Version), para. 6.

6 Ibid. para. 113.

7 United Nations, ‘Women and HIV/AIDS: Advocacy, Prevention and Empowerment,’ UN Backgrounder, International Women’s Day, (n.p.: 2004), para. 3.

8 Ibid.

8 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

see those living with HIV as about to die, and therefore do not see a reason to provide for their economic wellbeing. Women, in particular, are seen as transmitters of the disease, and therefore are not supported to stay in their community once widowed. Although much awareness-raising has been done about HIV/AIDS, stigma continues to affect women and aggravates women’s housing rights violations in many ways. First and foremost, stigma creates a blanket of silence and secrecy about women’s HIV status and discourages women from disclosing their true status when they are HIV positive. Knowledge of a woman’s HIV status can also become a blackmailing tool, waved unscrupulously by those wanting to grab a woman’s property and prevent victims from taking legal action. To escape stigma, women often migrate from rural areas, or relocate from one part of the city to another. Those leaving rural areas often have to forfeit their homes and lands, that is, where relatives had not ‘disinherited’ them already.

Women’s Human Rights and HIV/AIDS The human rights dimensions of HIV/AIDS are well known. The UN General Assembly has noted that ‘‘the full realisation of human rights and fundamental freedoms for all is an essential element in a global response to the HIV/AIDS pandemic.” International human rights law seeks to promote the dignity of the human person, with all the rights and freedoms contained in international human rights standards applying irrespective of sex/gender, health status, socioeconomic status, or other status. It has been observed that neglect of human rights in all aspects increases the infection and death rates, and speeds up spread and progression of the pandemic.

Despite the harsh realities, international human rights standards can provide a solid foundation for the realisation of women’s housing rights within the context of HIV/AIDS. For example, under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),9 the foremost international treaty on gender equality, State Parties agree to take a series of measures to combat discrimination against women.10 These measures include (as stipulated in Article 2 of CEDAW): (a)

(b) (c) (d) (e) (f) (g)

To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; and, To repeal all national penal provisions which constitute discrimination against women.

Under Article 5, CEDAW requires that State Parties “… modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force 3 September 1981.

10 Ghana, Kenya and Uganda are States Parties to CEDAW. 9 9

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

stereotyped roles for men and women ….” Furthermore, and specifically with regard to issues of martial property rights, Article 16 of CEDAW provides that: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: … (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property … [emphasis added].

The United Nations Committee on the Elimination of Discrimination Against Women, the body that monitors State Party compliance with CEDAW, has also issued its General Recommendation No. 21 on ‘Equality in Marriage and Family Relations,’ wherein the Committee stipulates: There are many countries where the law and practice concerning inheritance and property result in serious discrimination against women. As a result of this uneven treatment, women may receive a smaller share of the husband’s or father’s property at his death than would widowers and sons. In some instances, women are granted limited and controlled rights and receive income only from the deceased’s property. Often inheritance rights for widows do not reflect the principles of equal ownership of property acquired during marriage. Such provisions contravene the Convention and should be abolished.11 The International Covenant on Economic, Social and Cultural Rights12 (ICESCR) explicitly enshrines the right to adequate housing for all. General Comment No. 4 on the right to adequate housing, as adopted by the UN Committee on Economic, Social and Cultural Rights is the most comprehensive and authoritative legal interpretation of the human right to adequate housing to date, as it is meant to give definition to the rights and obligations articulated in Article 11(1) of the ICESCR relevant to housing.

Through this General Comment, the Committee puts forth the view that the right to adequate housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or with views defining shelter exclusively as a commodity.13 Rather, it notes that the right to adequate housing should be seen holistically, encompassing the right to live somewhere in security, peace and dignity.14 The CESCR also notes that the concept of “adequacy” is particularly significant in relation to the right to housing since it serves to: … underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute ‘adequate housing’ for the purposes of the Covenant [on Economic, Social and Cultural Rights].15

UN Committee on the Elimination of All Forms of Discrimination against Women, (1994), ‘Equality of Rights between Men and Women,’ General Recommendation 22, adopted by the Committee at its thirteenth session (1994).

12 Ghana, Kenya and Uganda are States Parties to the ICESCR. International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 2 January 1976.

13 United Nations Committee on Economic, Social and Cultural Rights, ‘General Comment 4: The Right to Adequate Housing (Art.11 (1)),’ (13 December 1991).

14 According to the Committee: “This is appropriate for at least two reasons. In the first place, the right to housing is integrally linked to other human rights and to the fundamental principles upon which the Covenant [on Economic, Social and Cultural Rights] is premised. Thus ‘the inherent dignity of the human person’ from which the rights in the Covenant are said to derive requires that the term ‘housing’ be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all persons irrespective of income or access to economic resources. Secondly, the reference in Article 11(1) must be read as referring not just to housing but to adequate housing. As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: ‘Adequate shelter means ... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities - all at a reasonable cost.’” See Ibid.

15 Ibid.

10 11

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

In this regard, the Committee identified seven key criteria which comprise the right to adequate housing; namely, legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location and cultural adequacy.

Ensuring Protection from Forced Eviction for Women Affected by HIV/AIDS The right to not be forcibly evicted from one’s home is a fundamental human right, which has been addressed by the UN Committee on Economic, Social and Cultural Rights in its General Comment No. 7 on Forced Eviction. Additionally, in a strongly worded resolution on the practice of forced eviction, the former United Nations Commission on Human Rights affirmed “that the practice of forced eviction constitutes a gross violation of human rights, in particular the right to adequate housing.”

While forced eviction has been universally recognised to encompass “the permanent or temporary removal of individuals, families and/or communities against their will from their homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection,” it has been forced eviction at the mass scale which has most often garnered the attention of the international community. The forced eviction of individual women from their homes and lands – one woman at a time, relentless, and often invisible – receives far too little attention. Indeed, the arbitrary deprivation of women’s housing, land and property, while it often happens to individual women, amounts to much more than an isolated problem. Rather, it is a problem of endemic proportions. Therefore, the arbitrary deprivation of women’s housing, land and property – when it is a result of gender-based violence, ‘disinheritance,’ or the application of gender-biased norms, policies and practices which negatively affect women – must be considered to be within the scope of a State’s obligations to provide protection to all from forced eviction.

Turning the tide on this silent wave of forced evictions is possible. There are simple steps which can and must be urgently undertaken. For example, as this report demonstrates, there is insufficient information reaching women in regard to their housing, land and property rights.

Information in this area is absolutely critical for women. In every country COHRE visited, women lack adequate information on their rights, how courts work, which case can be taken to court, and how they can approach the courts for legal redress. In areas where chiefs or local council leaders are used to arbitrate property disputes, these leaders are not themselves equipped with information on women’s housing, land and property rights, but largely use their knowledge of customary norms and practises which are often biased against women.

The International Covenant on Civil and Political Rights16 (ICCPR) and the ICESCR also explicitly recognise the right to equality between women and men and the right to non-discrimination. These rights to equality and non-discrimination have direct implications with regard to women’s housing, land and property rights within the context of HIV/AIDS. As the United Nations Human Rights Committee has recognised: States parties [to the ICCPR] must also ensure equality in regard to the dissolution of marriage, which excludes the possibility of repudiation. The grounds for divorce and annulment should be the same for men and women, as well as decisions with regard to property distribution, alimony and the custody of children … Women should

Ghana, Kenya and Uganda are States Parties to the ICCPR. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23 March 1976.

11 16

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

also have equal inheritance rights to those of men when the dissolution of marriage is caused by the death of one of the spouses [emphasis added].17 The former United Nations Commission on Human Rights (made up of members representing governments from all over the world, including those of many African States) also adopted a series of crucial annual resolutions affirming women’s housing, land and property rights.18 In its resolution adopted in 2005, the Commission tackled key issues facing women’s housing security and reaffirmed that women’s housing rights were integral to the full realisation of women’s human rights.19 The Commission also expressed its conviction that a lack of adequate housing can make women more vulnerable to various forms of violence, including domestic violence, and in particular that the lack of housing alternatives may limit many women’s ability to leave violent situations.20 The Commission also linked the growing prevalence of HIV/AIDS in women with laws that inhibit the full enjoyment of women’s rights to land, joint ownership, and ‘inheritance.’ Furthermore, the Commission reiterated that there was a need for positive change and attention to women’s empowerment and protection of women’s housing and land rights to make women less vulnerable to HIV/AIDS.21 Regional instruments within Africa can also be invoked to protect women’s housing, land and property rights. In 2005, the landmark Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa came into force.22 Article 3(2) specifies that “States Parties ought to commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies,” with the intention of realising “the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.”23 In addition, several provisions within the Protocol relate specifically to women’s equal housing, land and property rights. In regards to a woman’s rights while she is married, the Protocol provides that women are entitled to obtain their personal property and to control it without restraint.24 Should there be dissolution of the marriage, both spouses “shall have the right to an equitable sharing of the joint property deriving from the marriage.” 25 Moreover, women are entitled to “fully enjoy their right to sustainable development. In this connection, the States parties shall take all appropriate measures to: promote women’s access to and control over productive resources such as land and guarantee their right to property.”26 Article 16 of the Protocol specifically protects the rights of women to adequate housing, and states that women are entitled to “equal access to housing and to acceptable living conditions in a healthy environment.” 27 States can uphold women’s equal right to housing by conferring on all women,

17 UN Human Rights Committee, ‘Equality of Rights between Men and Women,’ General Comment 28, adopted by the Committee at its sixty-eighth session, on 29 March 2000.

18 UN Commission on Human Rights, ‘Resolution 2005/25: Women’s Equal Ownership, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing,’ UN Doc. E/CN.4/2005/RES/25 (15 April 2005). See also: Commission Resolutions 2000/13; Resolution 2001/34; Resolution 2002/49; 2003/22; Resolution 2004/21; Resolution 2005/25.

19 Ibid.

20 Ibid.

21 Ibid.

22 Ghana, Kenya and Uganda have yet to ratify the Protocol. African Union, ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,’ adopted by the 2nd Ordinary Session of the Assembly of the Union (Maputo, 11 July 2003), entered into force 25 November 2005.

23 Ibid. Art. 3(2).

24 Ibid. Art. 6(j).

25 Ibid. Art. 7(d).

26 Ibid. Art. 19(c).

27 Ibid. Art. 16.

12

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

regardless of whether they are married, widowed or single, access to adequate housing in their own right.28 Article 21 of the Protocol also contains – for the first time ever in a human rights treaty – specific reference to a ‘right to inheritance’ for women. Article 21 guarantees that: 1. A widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it; 2. Women and men shall have the right to inherit, in equitable shares, their parents’ properties.

Still, despite these and numerous other international and regional human rights instruments emphasising gender equality and end to discriminatory practices, many African States have not reformed or enacted national laws, or implemented existing ones, to reflect their international human rights commitments. To the contrary, some observers have noted that a new wave of laws to criminalise the intentional transmission of HIV/AIDS proposed by some governments in Africa, for example in Uganda, may actually increase violence against women and further violations of their housing, land and property rights.29 The gap between these international standards (and the corresponding commitment of States), and the reality on the ground, is striking. But, it is also a gap that can be closed. Ensuring women’s equality and housing security in the face of HIV/AIDS is possible through sustained leadership, and political will.

Before moving on, an important word on terminology and language: while the terms ‘inheritance,’ ‘inheritance rights’ and ‘disinheritance’ are often used in this report – as well as in the broader literature on women’s housing, land and property rights in Africa – we use this terminology with the understanding that this is something of a misnomer, and with the following proviso. The concept of a woman ‘inheriting’ property from her deceased spouse does not itself challenge the idea of property rights being vested primarily with the husband, and may well reinforce it. Similarly, the idea of ‘disinheritance’ does not account for the fact that when a woman is ‘disinherited,’ she is typically being stripped not of her inheritance, per se – but rather of her property. We find, therefore, that the notion of marital property, and of a woman’s equal right to martial property, more to the point. In particular, a ‘full community of property’ framework, the default property regime in many countries, recognises that most property acquired during the marriage is owned jointly by both spouses, and therefore also belongs to the woman.

In other words, her equal rights to marital property are recognised while her husband is alive, as well as in the event divorce or death. Women’s full equality demands nothing less.

Ibid.

Michaela Clayton of the Namibia-based AIDS and Rights Alliance for Southern Africa, as quoted in: International Community of Women Living with HIV/AIDS, ‘Stop HIV Criminal Laws: Leading AIDS Groups Say,’ (n.p.: 8 December 2008).

28 29

13 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

My husband as I talk now is admitted in this same hospital. … I cannot even conceive the idea of discussing the property with him now. Since our status was known to our children, [they] have shunned us and moved away. I am afraid they might come to chase me out the house once he is gone.

-

Testimony given to COHRE by a woman from Narth Bita, Private Hospital in Tema, Ghana [name withheld]

2.

Women’s Housing Rights and the Struggle Against HIV/AIDS in Ghana, Kenya and Uganda A 2008 UNAIDS report indicates a reductions in global infection rates and deaths from AIDS, as well as a cumulative reduction in the number of people living with HIV/AIDS in Sub-Saharan Africa.30 Yet, the AIDS statistics for Sub-Saharan Africa remain staggering when one looks at the percentage of adults living with HIV/AIDS, which is still seven or eight times higher than the global average. Compared to North or West Africa, Eastern and Southern Africa have been particularly badly hit. In these regions, women account for 55 to 60 per cent of all adults (ages 15-49) living with the disease.31 To be sure, these statistics, coupled with the already heavy disease burden in Africa, present huge challenges for the region.

These challenges are further exacerbated by conditions of poverty, which are rife throughout Africa.

Africa’s share of world trade is about 1 per cent, although it has about 70 per cent of the world’s mineral resources.32 Structural adjustment policies (SAP) from international financial institutions in the 1980s and early 1990s reduced the industrial base in many Africa countries, causing serious economic dislocation and increasing rates of poverty.33 Each of the three counties visited by COHRE during the course of this study – Ghana, Kenya and Uganda – has a unique profile with respect to the scale and scope of HIV/AIDS, and each offers a unique political, legal and social context. A brief summary of each case country, including some of the main challenges and trends relevant to women’s housing, land and property rights, is provided below.

2.1 Ghana Ghana is one of the countries with lowest HIV/AIDS infection rates in West Africa, with about 260 000 persons living with the disease, about 150 000 of whom are women.34 Although this figure shows a decline in the disease compared to 2001 statistics, women in Ghana – like elsewhere in Africa – continue to be disproportionately affected.

Despite the undeniable prevalence of the disease in Ghana, there is comparatively less awareness in Ghana on HIV/AIDS, and denial about the pervasiveness of the virus is common.35 Although there are efforts at sensitisation about the disease, the scale of these programmes come nowhere close to the attention the pandemic receives in Southern and Eastern Africa. Women living with HIV/AIDS in Ghana suffer sharply the stigma surrounding the pandemic, which in turn affects their housing situation.

Women interviewed by COHRE in Ghana routinely reported hiding their HIV status, facing forced eviction by landlords, and ‘disinheritance’ at the hands of in-laws.

30 United Nations Programme on HIV/AIDS (UNAIDS), ‘Report on the Global AIDS Epidemic,’ (n.p.: UNAIDS, 2008).

31 Strickland, S. Richard ‘To Have and To Hold: Women’s Property and Inheritance Rights in the Context of HIV/AIDS in Sub-Sahara Africa,’ A Working Paper of International Centre for Research on Women (n.p.: ICRW, 2004).

32 Akhilesh Chandra Prabhakar, ‘Poverty of Africa in the Richly Endowed Basin,’ (n.p.: 2009).

33 Ibid, page 13.

34 UNAIDS/WHO Working Group on Global HIV/AIDS and STI Surveillance, ‘Epidemiological Fact Sheet on HIV and AIDS- Ghana,’ (n.p.: UNAIDS/WHO, 2008).

35 Association of Universities and Colleges of Canada, ‘Universities Partnerships in Cooperation and Development: Fighting HIV/AIDS through Ghanaian Schools’ (n.p.: AUCC, 2006).

14

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

Stigma in Ghana is especially acute. Some HIV-positive women in Ghana interviewed by COHRE noted that they could not live and mix freely with community and family members. Some of these women opted to move to a new place where their status is not known, hoping for at least a little peace. As a result, they also lost their social networks, often having nowhere to turn for support. Many women are isolated due to stigma, and this isolation affects their ability to continue with their livelihoods especially when they are in small business, for example food vending or related ventures. Even where women have not been directly forced from their homes, discrimination due to stigma may in the end force them to flee their marital properties in any case. Where harassment is on the part of family members, the home becomes a living hell for many women living with HIV. As one woman from Narth Bita Private Hospital in Tema Municipal Assembly, Ghana, poignantly told COHRE: I am not allowed to touch anything in the house, they bundled my limited belongings into a corner in a room where I was instructed never to leave or mix with others in the house… it is sad when even your own people stigmatise you. … I have no hope. They are waiting for me to die.

It is better if I died.

Another woman attending an HIV-support group in Madina, a suburb near Accra, said plainly: “I am dying of stigma, I have not told anyone about my status, and this silence in killing me. I only feel better the few hours I come here.”

While there is a lack of research on the impact of HIV/AIDS on the housing, land and property rights of women living with HIV/AIDS in Ghana, COHRE’s own interviews with women from Hohoe, Kadgebi, Tema and Accra metropolitan show substantial evidence that violations of the housing, land and property rights of women living with, or affected by, HIV/AIDS, are commonplace.

Ghana’s economy, like many in Africa, is based largely on agriculture. About 70 per cent of Ghanaians depend on agriculture and small scale farming to survive. A large part of land in Ghana is under customary law and private ownership. Women in Ghana rarely own their own land, despite the fact that they are usually the ones farming the land. Customary practices and the dual legal system that blends customary law with the remnants of English law, create great difficulties for women in accessing justice and securing their rights. In marriage and matters of ‘inheritance,’ there are different systems for marriage registration and property distribution. Presently, there is no obligation for customary marriages to be registered. An unregistered marriage in particular makes it difficult for women to establishing property ownership after the death of a spouse, or following divorce.

In addition, although by the provisions of Ghana’s Intestate Succession Law (1985), female and male children of the deceased are entitled to the same shares in the estate, there are still existing and functional customary laws that discriminate against women and girls, and women in reality are still prevented from ‘inheriting’ marital property. Under Islamic Sharia law, also practised in Ghana, male and female children also do not receive equal shares of the estate from their deceased parents. Things are also further complicated because the freedom of intestacy in Ghana theoretically enables testators wanting to escape the parameters of the Intestate Succession Law to specify in their wills that customary law, or Islamic Sharia law, should apply to distribution of their estate upon their death. A recent Supreme Court case illustrates how women are disadvantaged when it comes to succession in customary law. In Saakyi Mami v Dede Paulina (2006), the Ghana Supreme Court refused to abolish the krobo custom of fia, under which a woman who contracts a lawful marriage is disqualified from inheriting any portion of her father’s property, because she is regarded as belonging to her husband’s family.36

Under this custom, a woman does qualify to inherit her father’s estate if she has children before getting legally married. Such children born outside marriage are regarded as ‘fatherless,’ and as belonging to the woman’s natal family. See: Saakyi Mami Vs Dede Paulina and Anor [2005-2006] Supreme Court of Ghana Law Report [SCGLR 1116].

36

15 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

When women lose their right to stay in their homes after the death of their husbands or following divorce, their first comfort is often their natal home. The reality of stigma for women living with HIV, however, soon evaporates whatever hope they may have had of returning to live with their natal families.

While some women do have natal families that will allow them to come back, the more common trend is that women are shunned by their own blood relatives. One woman from Osu, a suburb in Accra metropolitan told COHRE that after her house was grabbed by her father-in-law and given to her brother-in-law, she was forced to go back to her mother’s small and congested house. Just from rumours circulating about her status, her own mother refused to let her sleep in the house or use the family bathing space or use any of the utensils in the house on the belief that she might infect them with the virus. The woman and her six children are now forced to sleep outside the house, exposed to the elements.

Another woman from Narth Bita private Hospital in Tema Municipal Assembly, Ghana, relayed a similar story. Her husband separated with her when she fell ill, and her family accepted her back only on the condition that she stays in a separate room. They bundled her belongings in a polythene bag, and pushed it into a corner. She told COHRE: “they are waiting when I should die, it is sad when even your own people stigmatise you…. I have no hope.” In earlier days, this woman had amassed considerable property as a small business owner. Today, her husband retains all of the property after having chased her away.

She receives no help or financial assistance whatsoever.

2.2

Kenya

In 2001, the population of Kenya was about 31.3 million with approximately half of all Kenyans between 15-49 years of age. Kenya’s HIV/AIDS infection rate declined from 2 400 000, in 2003 to 2 000 000, in 2008.37 Women alarmingly continue to experience higher infection rate at 8.7 per cent, as compared to 5.6 per cent men. About 10.8 per cent of urban women are infected, as compared to 6.2 per cent urban men. Similarly 8.2 per cent of rural women are infected, as compared to 5.5 % men.38 The economy of Kenya is largely agriculture-based with most of its citizens, about 80 per cent, depending directly on agriculture for daily subsistence. Kenya has a mixed system of land ownership, with the State holding land in trust for the population and designated tracts of land under customary tenure. Land in trust for the people or under customary tenure constitutes about 75 per cent of Kenya’s land. The other 25 per cent of the land is mostly privately-owned, rural land. It has been observed that in recent years there have been significant changes in “…land use, household labour, and financial standing that reflect the loss of financial assets, higher costs of living with HIV/AIDS, increased burdens of care-giving and orphan fostering, and a general disintegration of family ties.”39 As in other African countries, women in Kenya suffer disproportionately when HIV strikes. The financial burdens caused by the disease force families to sell off their property in order to meet the costs of treatment. As in Ghana, the system of ‘inheritance’ also disadvantages women. With males as the focus and main beneficiaries of the matrilineal systems of inheritance, women often do not have property they can call their own, to manage and dispose of as they wish. To make matters worse, harassment and accusations by family and community members that a widow caused the death of her husband, or infected him with HIV, puts added pressure on her to leave the matrimonial home. Marginalisation and ostracisation of widows constrains their ability to use land access credits and other financial resources for their own benefit.40

UNAIDS, ‘Report on the Global AIDS Epidemic,’ (n.p.: UNAIDS/WHO, July 2008).

National AIDS and STI Control Programme, ‘AIDS Indicator Survey 2007: Preliminary Report,’ (Nairobi, Kenya: Ministry of Health, 2008) 39 Drimie, Scott, ‘The Impact of HIV/AIDS on Land: Case Studies from Kenya, Lesotho and South Africa,’ Synthesis Report prepared for the FAO Southern African Regional Office, (Pretoria, South Africa: Human Sciences Research Council, 2002).

40 Ibid, page 24.

16 37 38

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

In Kenya, as in Ghana, the dual legal system which blends customary law with the legacy of British colonial law, poses great difficulties for women. Under customary law, the institution of ‘bride-price,’ or dowry, is sometimes seen as a way for men to legitimately ‘purchase’ their bride. This means, among other things, that during the marriage whatever a woman acquires belongs to her husband, and not to herself.

In addition, unregistered customary marriages, and relationships akin to marriage but not formally recognised as such (such as cohabitation) create uncertainties about the devolution of estates, especially if the family of the deceased husband decides to contest or deny the existence of the relationship. Often, it is widows who lose out, even in those customary systems which in theory allow for some form of ‘maintenance’ for widows.

In Kenya, women suffer discrimination in housing, land and property partly because of the tenacious customary practices which are deeply entrenched and which continue to effectively outweigh statutory protections. Human Rights Watch, in a previous report on women’s human rights right in Kenya, noted many violations of women’s rights, including property-grabbing, wife ‘inheritance’ and ritual cleansing.

Ritual cleansing might take the form of coerced sex with the widow to exorcise her of the evil spirits responsible for the death of her husband.41 Women are compelled to endure these practices, and risk losing their rights to any property if they refuse. Coerced sex also exposes them further to the risk of HIV infection. These egregious violations take place in the context of undefined land tenure rights, high rates of female illiteracy rates, ignorance of women’s land rights and marriage laws, lack of resources available to women to claim their rights, gender discrimination, and limited participation of women in decision-making.

Kenya also has considerable ethnic diversity within it boarders, and different communities handle issues of women’s housing, land and property rights in their own ways. For example, among Kenya’s Akamba community, women who cannot conceive marry, which involves the payment of bride price for another woman. The second woman lives with the wife, and produces children, although not necessarily with the wife’s husband. The children, however, are considered to belong to the husband’s family. If either woman were to become infected with HIV, they would be sent away and would not be able receive any property. Among the Luo in western Kenya, women do not inherit from their parents. Even where they have remained single, or have been ‘disinherited’ of their marital homes, they are not welcomed in their natal home. With nowhere else to go, many of these women often end up in sprawling slums of Kisumu and Nairobi. In Kenya, COHRE interviewed many women in this situation living with HIV. Some lived cramped together with their grandchildren in the tiny one-room shacks of Nairobi’s Kibera slum.

Unfortunately, the current Constitution of Kenya provides a massive loophole which in practice allows discrimination against women in the area of housing, land and property to continue unabated. While the Constitution officially prohibits laws that discriminate on the basis of sex, Article 82(4) exempts certain laws from that prohibition. Specifically, exemptions are made “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law” and with respect to “the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons.”42 These exemptions squarely hit women and serve to deny them enjoyment of their basic rights.

On the positive side, there have been numerous interventions by Kenyan non-governmental organisations advocating for review of Kenya’s laws on land ownership, access and control. Still, Kenya has struggled generally on aspects of Constitutionalism. There is dire need to reform gender-related legislation, but the process is not immediately forthcoming as the Kenyan Government has been slow at amending the national Constitution to bring it into alignment with its international human rights obligations. The Land Policy Bill, for instance, which civil society organisations have been trying to

Human Rights Watch ‘Double Standards: Women’s Property Rights Violations in Kenya,’ (New York: Human Rights Watch, 2003).

42 The Constitution of the Republic of Kenya, as last amended in 2000.

41

17 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

popularise and lobby for its passing, includes clauses protecting women’s rights to ownership, access and control of land. It further includes protections of land for people living with HIV/AIDS, and emphasises the particular needs of women.

2.3

Uganda

Although Uganda is hailed for remarkably reversing the trend of HIV/AIDS infection in merely two decades, statistics as of 2008 show that some 940 000 people are living with the disease, with highest concentrations in Uganda’s urban areas..43 These statistics show a slight increase when compared to statistics from the previous years. According to the Uganda HIV/AIDS Status Report, adults living in urban areas are almost twice as likely to be infected with HIV compared to their rural counterparts. The report further asserts that women have a higher prevalence of HIV infection across all age categories.

About 12.8 per cent of urban women in Uganda are infected with HIV; twice the rate of their male counterparts. 44 Country-wide, the infection rate among women in Uganda is similarly higher, 7.5 per cent, as compared to 5.0 per cent for men.45 It is worth noting that the Government of Uganda, during the early 1990s, recognised that reduction in HIV/AIDs necessitated not only prevention strategies, but also an active response to the consequences of the epidemic.46 Still, many of the programmes aimed reducing the impact of HIV/AIDS did not directly tackle violations of women’s housing, land and property rights. In Uganda, the discrepancy in HIV/AIDS infection rates men and women is very high, especially within the age bracket of 15 to 25.

For example, among those aged 15-19 years, women constitute 2.7 per cent of all HIV cases, and are about nine times more likely to be infected with HIV than their male counterparts, who themselves constitute 0.3 per cent of cases.47 Part of this is attributable to the practice of early marriage, with young women and girls married to often to older and presumably sexually experienced men. This practice results in young women and girls being put in a position where they are unable to exercise their autonomy on matters related to their own sexual activity (i.e. being unable to ‘negotiate’ sex with their husbands).

HIV/AIDS also increase the number of young widows who are themselves also likely to suffer housing, land and property rights violations.

Like many countries in Sub-Saharan Africa, Uganda is characterised by diverse customary laws and practices based on patriarchal norms. Inequality between women and men is experienced at varying degrees in different communities. From interviews with women of different ethnic background, COHRE gathered that a myriad of women’s housing, land and property rights violations, including those suffered by women living with HIV, continue unabated across communities. As in other African contexts, HIV positive women suffer harassment and violent property-grabbing at the hands of in-laws. While women’s recollections of property-grabbing were always gut-wrenching, they were also sometimes bone-chilling tales of abuse and violence.

UNAIDS/WHO Working Group on Global HIV/AIDS and STI Surveillance, ‘Epidemiological Fact Sheet on HIV and AIDS – Uganda,’ (n.p.: UNAIDS, 2008) 44 Uganda AIDS Commission, ‘The Uganda HIV/AIDS Status Report July 2004-December 2005,’ (Kampala, Uganda: UAC, 2006) 45 Uganda AIDS Commission (UAC), ‘UNGASS Country Progress Report 2006 – 2007,’ (Kampala, Uganda: UAC, 2008).

46 The Republic of Uganda, ‘National HIV/AIDS Strategic Framework, (Kampala, Uganda: 1998).

47 Uganda AIDS Commission (UAC), ‘The Uganda Status Report (2004 – 2005),’ (Kampala, Uganda: UAC, 2005).

18 43

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

One Woman’s Story of Property-Grabbing and Violence I had a problem when my husband died. My older son gave my home to my four step-children, and made an agreement without my consent or signature. My husband had left me ten pieces of land scattered in different areas. My son has sold them, and I am now remaining with only four.

He is threatening to sell them. He has planted bananas in the piece where I have constructed a temporary house and [where I now] stay. He has ordered me to return to my natal home. Since he has threatened to kill me and assaults me wherever he meets me, I sleep outside and only the children sleep [at] home.

I took the matter to court, and have even sold my clothes to raise funds to pay local councils to intervene. I have sold everything there is, and now I have no money to push the case forward and the local councils are not helping much. Although my husband left all the pieces of land and houses in my possession, and I have all the agreements to show it, it has not stopped my son from grabbing my property. What has made the situation worse is that the uncles to my son have sided with him to force me of the land. At first, they tried to force me to be inherited [n.b. referring to the practice of widow inheritance] by one of them. When I refused, they influenced my son to kill me or send me out of the lands. The reason my son gave away my house to his step-sisters was to send me away. I indeed left the house and built myself another mud house much more small and temporary compared to the one I left. Even here he is harassing me, beating me up including cutting the house doors to the extent that I now rarely sleep in it.

- Testimony given to COHRE by Federesi Tindimubona (a widow from Kabale, Southern Uganda)

One Ugandan study of HIV-positive widows revealed that 90 per cent of women interviewed had property disputes with their in-laws, and 88 per cent of those in rural areas were unable to meet their household needs.48 One woman from Wakiso, Uganda, told COHRE: I tested and persuaded my [husband] to test. He afterwards died. He had a house in the city suburb, although while he was sick no one came to help me. [My in-laws] came and grabbed the house and the roofing materials that were meant for the construction of another house. They harassed me. My husband had willed only two rooms to my child and the main house he had shared amongst his other children (not mine). This made it easier for the in-laws to evict me from the main house. I started living in one of the rooms left to my child, and rented out the other. The income from that small room cannot keep me and my child. Now as you see me I have started falling ill and I am finding treatment very expensive. I have to beg for food and assistance from neighbours. My in-laws still harass me to leave that room, maybe to ensure that I too die so that they can take all.

Despite the dire realities, there is reason to hope. One hope is the Ugandan Constitution, which has several positive attributes for women. First, like the Kenyan Constitution it specifically prohibits discrimination against women. Second, and unlike Kenya, it also clearly outlaws any customs, beliefs and traditions that contravene the Constitution, which is stated as supreme law of the land. Third, the Constitution also promotes affirmative action to address the effects of past inequalities. However, the practice of implementation has been difficult. For example, Uganda’s Law on Divorce was challenged in

UN Programme on HIV/AIDS (UNAIDS) & The Global Coalition on Women and AIDS (GCWA), ‘Media Backgrounder: AIDS and Female Property/Inheritance Rights,’ (Geneva, Switzerland: UNAIDS/GCWA, 2004).

48

19 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

the Ugandan Constitutional Court in 2004 on the basis of gender discrimination.49 Petitioners proved in the case that Sections 4(1) & (2), 5, 21-24 and 26 of the Divorce Act were discriminatory on grounds of gender since they allowed different grounds of divorce for men and women. They proved that such gender discrimination violated articles 21(1) & (2), 31(1), 33(1), & (6) of the Ugandan Constitution, which guarantee gender equality. The Court decided therefore, that the grounds for divorce as set out under the Divorce Act, should equally apply to both sexes. Importantly for women’s housing rights, the Court decided that the settlement related with the divorce should also equally apply to both sexes. Despite the ruling, however, to date nothing has been done to amend the Law. Upon divorce, it is left to discretion of the judge. In reality women still get unfair divorce settlements and many more 'divorces’50 take place outside the law. Similarly, Uganda’s Succession Law has also been challenged, again on the grounds of gender discrimination.51 The Law allowed a widow only 15 per cent of the estate of her husband upon his death, with the rest to be divided between children and other dependents. Where the words ‘legal heir’ were defined, a male heir is preferred to a female one. The Act was also written as if women did not, in fact, have the capacity to own property. Section 27 of the Act provided that, when a man died, his property would be distributed to his heir(s), but no such arrangement is made for inheriting the property of a deceased woman. Under sections 15 and 16, a woman could take her husband’s domicile, but a man could not take his wife’s domicile. Therefore, the Petitioner argued that the above sections of the Act were unconstitutional, as they discriminated against women, and won. The Court rendered the provisions null and void. Yet, despite these successes, customary practices which disadvantage women continue to influence how property is distributed in Uganda, and women continue to be routinely excluded from property ownership.52 The activism of Ugandan women to claim their rights has deep roots. During the 1998 Land Act debates, Ugandan women’s rights activists and Parliamentarians struggled to have a clause on co-ownership of land included. This clause, however, was never realised as it was technically omitted at the final stage of legislation (becoming known as the ‘lost clause’). Thus the law on land distribution, management and accessibility in Uganda today inadequately provides for women’s access, control and ownership of land.

Land in Uganda, like elsewhere, is largely owned through communal, customary, lease holds and private land ownership systems, all of which disadvantage women.53 Yet, many organisations continue to press for recognition of women’s rights, offering litigation and arbitration services to women facing violations.

The Government also created judicial spaces for women at the Magistrate Grade One Court, known as Family and Children’s Courts. These are expected to redress violations of women’s rights, including their housing, land and property rights. The Uganda Human Rights Commission is also mandated to offer public hearing and arbitrations services.

Despite these important steps, from interviews with women living with HIV in Uganda, COHRE learned that very few women are able to actually benefit from the existing legal structures, and even when they are, they often do not provide adequate protection. To begin, these services are often only available in Uganda, Constitutional Court, Uganda ‘Association of Women Lawyers and 5 Others vs. The Attorney General’ (Const. Petit. No. 2 of 2002 3/10/2004) 50 Divorce in many African countries is used loosely to refer to separation between married or co-habiting men and women, whether or not legally processed.

51 Uganda, Constitutional Court, ‘Law Advocacy for Women in Uganda v The Attorney General ‘, (Constitutional Petitions Nos. 13/05/ & 05/06 UGCC 1 (2007)) 52 Currently, Uganda is also considering adoption of a bill to criminalise intentional transmission of HIV/AIDS, with punitive measures to those found guilty. Some of the women interviewed by COHRE thought that the law could benefit women if issues of women’s rights could be included. However, some expressed concern that the law might actually disadvantage women, as women might be unfairly targeted for the intentional transmission of HIV/AIDS. As COHRE’s research also showed, accusations aimed at wives of deliberately infecting and killing husbands become popular excuses for property-grabbing and ‘disinheritance.’

53 Many people, for instance in the central region, live on what is called Mailo land, or private land owned by landlords. Residents there face constant evictions, despite the fact that the 1998 Land Act and subsequent amendments regulate the actions of landlords and protect the housing rights of residents. COHRE interviewed many widows living with HIV around Mpigi, Wakiso and within Kampala, who expressed fear of imminent evictions by landlords.

20 49

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

urban areas, inaccessible to the majority women living in rural areas. Even those women with whom COHRE met in Kampala or in the suburban areas noted many flaws with such institutions. At the end of the day, women were rarely able to effectively access legal redress for the housing rights violations they had suffered.

21 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

I was chased by my husband’s family, but my husband had left a separate plot of land. After consulting with local council leaders, I sold it and bought another away from his relatives and put [it] in the names of my children. This did not stop my husband’s family [from making] things difficult for me. They took my four year old child away from me, and opened a case against me. I was forced to sell the new land I had bought, because my husband’s relatives influenced the person who sold it to me to demand his land back and return the money. Then, they forced me to return the money to [the] buyer of the original land I had sold, claiming it was a family land. I gave up the struggle after all. …

I now live on a small income and in a rented room. Although I am struggling to pay rent, especially when I am sick and cannot work, I cannot turn to my natal home. My parents are dead, my uncle sold our land and my biggest worry now is that in case I fell seriously ill and can no longer afford rent. I don’t know where to go.

- Testimony given to COHRE by a woman living with HIV in Uganda [name withheld]

3.

Exposing Violations of Women’s Housing Rights in the Context of HIV/AIDS: Trends and Challenges HIV/AIDS is a devastating pandemic, and no region of the world has been hit harder by the disease than has Sub-Saharan Africa. In order to understand the full ramifications of the disease on women, it is important to take a holistic view. While HIV/AIDS has not itself caused gender discrimination and inequality, it has exacerbated its affects, and it has in recent years accelerated housing rights violations suffered by women. The particularly negative effects of HIV/AIDS on women, therefore, cannot be solved without paying attention to rectifying women’s unequal status – once and for all.

Like their sisters in all other parts of the world, women in Sub-Saharan Africa have not enjoyed full equality with men in their societies. Gender discrimination is so widespread that it continues to be norm, yet it does not go unchallenged. Indeed, in order to resolve the HIV/AIDS crisis, governments must solve the many human rights crises which underpin it, and which allows the disease to flourish. Perhaps the leading human rights crisis among these is gender inequality and discrimination; one facet of which is women’s inability to own, control, and access housing, land and property in their own right, and on their own terms. In this section, we examine the various dimensions of this complex problem, and reveal some of the important trends emerging from COHRE’s research.

3.1

Women’s Poverty

The challenge of HIV/AIDS in the world today is unprecedented, and is threatening to reverse efforts to combat poverty in Sub-Sahara Africa. In simple terms ‘poverty’ has been defined as “an economic condition of lacking both money and basic necessities needed to successfully live: such as food, water, education, healthcare, and shelter.”54 For women, the relationship between HIV/AIDS and poverty is clear: HIV/AIDS itself increases the likelihood of poverty, and in turn, living in poverty makes women more vulnerable to HIV infection. Women in Ghana, Kenya and Uganda all reported that the high costs of caring for HIV-infected family members cause women, many of whom live in precarious economic circumstances to begin with, to plunge deeper and deeper into poverty. Depleted or non-existent incomes sometimes force women into engage in risky sexual behaviours, including commercial sex, for economic survival. AIDS deaths, coupled with gender discriminatory practices, result in incidents of ‘disinheritance,’ and property-grabbing which serve to strip women of their housing and land, and other productive assets. To understand the gender, HIV/AIDS, poverty paradox, it is critical to examine the spectrum of social, economic and political factors at play.

COHRE’s research revealed that within the context of HIV/AIDS, there is a close link between women’s poverty and their role as mothers and caregivers. Women who are divorced by their husband are left to care for the children, while husbands retain the marital property and ignore their paternal responsibilities.

Widows, when they are stripped of their marital property, also usually end up moving from their homes

54

World Bank Group, ‘Poverty in Mexico Facts Sheet,’ (n.p.: World Bank, 2008).

22 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

along with their children. Even where there are provisions regarding child maintenance, these are rarely enforced. When children are themselves infected with HIV, the trauma and financial burdens to women also increase. A majority of women interviewed by COHRE viewed the responsibility of having to care for the children single-handedly as one of their biggest challenges. As one Kenyan woman interviewed by COHRE movingly noted “women have to choose between eating or feeding their children.” Women expressed that if they had retained their housing and land, their situation would be much more manageable.

Faced with these hardships, some women living with HIV could not afford to seek medical attention, particularly in situations where public health delivery systems demands cost-sharing. They are also constrained in accessing anti-retroviral drugs where these are not freely provided. Even where these drugs are freely provided, poverty prevents women from accessing HIV/AIDS support services including provision of anti-retroviral drugs, where they need to pay transportation cost in order to access these services. Moreover, poverty prevents women from seeking medical attention to fight against opportunistic diseases such as tuberculosis and pneumonia. Almost universally, women expressed challenges resulting from basic lack of income and basic means of survival.

In addition to securing women’s housing, land and property rights, and in order to off-set these formidable challenges, women across Ghana, Kenya and Uganda noted that governments must take a holist approach to addressing women’s poverty in the context of HIV/AIDS. Women noted that their governments should increase and support women’s economic opportunities and provide for their economic security. Increased income levels among women affected or infected with HIV/AIDS is one practical way of helping women to cope and access medical treatment, proper nutrition, affordable housing, improved living conditions and reduced susceptibility to infection. Governments should examine existing and new economic empowerment strategies for women, and ensure special consideration is given to women living with HIV. In addition to this, women also called on their governments to provide for children’s schooling, offsetting the costs of books, uniforms and related fees for families in need. This too will reduce women’s economic burden considerably. Likewise, women noted that it is critical for governments to ensure their access to cheap or completely free anti-retroviral drugs. Improving health status is vital for women, since it increases their chances to be productive, raise their incomes and reduces social stigma and discrimination. Affected women also suggested that access to anti-retroviral drugs in cases of extreme vulnerability ought to be attached to government supported nutritional programs for those living with HIV.

3.2

Women’s Land Rights

In Africa, to be without land is, in most cases, to be poor. With the largest population of most SubSahara African countries largely agrarian, land is a very central asset. Security of tenure is salient, as people’s livelihood depends on land and it is considered a measure of their wealth and security. The system of public and private ownership of land puts constraint on equitable access to land, particularly by those without economic, social and political power. Many of those living without security of tenure, including women, are under constant threat of forced evictions.

The situation of women and land in the context of HIV /AIDS is best understood by examining the social relations upon which land rights are anchored.55 Many countries in Africa at their time of their independence inherited a system of land ownership consisting of a blend of customary law and colonial law. The latter system sought to promote of private ownership of property. The easy transferability of land, which still characterises the land market in many parts of Africa, as well as its consequent commoditisation, has meant that people without resources are cut off from acquiring land. The system of customary ownership is marked by tribal, clan, family, lineage and individual ownership of land that most often excludes women. Women are absent from decisions concerning land redistribution and do not own

55 Kamusiime, Herbart, Obaikol Esther and Rugadya, Margaret, ‘Integrating HIV/AIDS into Land Reform Processes,’ (2004).

23 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

or ‘inherit’ land. Studies in Africa on land reforms have found that: “the process of acquiring and defending rights in land is inherently a political process based on power relations among members of the social group.”56 The patriarchal customary system in most cases excludes women in direct acquisition of land, with the assumption that they are cared for under the traditional system. Still, the reality is that women are not cared for under these systems, let alone is their equality recognised. Women’s inability to own and control land also in turn necessarily affects their housing security. In countries with large rural populations and skewed land ownership regimes, land scarcity compounds women’s disadvantage.

HIV/AIDS exploits this disadvantage, increasing incidents of land-grabbing and property-grabbing. In Ghana, for instance, when a husband builds a house on customary family land, he enjoys a life interest.

Upon his death, his wife and children cannot claim that house; rather, they are at the mercy of the husband’s family. In western Kenya, homes are built on communal land belonging to the husband’s family, with all the houses in the same compound. It becomes difficult for a woman to claim ownership of her marital home. In the event of her husband’s death, a woman is again at the mercy of her in-laws and seeking legal redress to retain the home is challenging. Even should she succeed to stay in her house, her in-laws may shun her, and sometimes worse.

Sadly, widows weakened by HIV/AIDS infection find it difficult to maintain their land, particularly when they cannot continue farming, and this often seals their fate. Untended land is likely to attract grabbers and encroachers knowing that the widow may not have the means and the strength to protect it. In-laws intentionally start land wrangles with the belief that in the midst of protracted process of arbitration or litigation, the ailing widow might die. Another serious challenge to widows weakened by HIV/AIDS is the inability to ensure their own food security. Proper nutrition is a very important element in mitigating health effects of HIV/AIDS and responding positively to treatment. For example, women from the Volta Region of Ghana told COHRE that their health status tremendously reduced their capacity to engage in meaningful agricultural work, and that meant that many have to rely precariously on assistance from family members.

3.3

Violence against Women

There is a noticeable correlation between HIV/AIDS and violence against women. First, violence against women can lead to HIV/AIDS infection in cases of forced and coerced sex; and, second, HIV/AIDS infection can, in situations where women are blamed for the disease, aggravate violence against women.

On the first point, in many communities in Sub-Saharan Africa, it is often believed that a husband should enjoy complete sexual access to his wife, at any time of his choosing, and that a woman should never deny sex to her husband. As a result, some men no matter how promiscuous they have been outside their marriage, feel they have a right to have sex with their wives at any time, even if through violence. Women experiencing domestic violence are about twice as likely to become infected by HIV as those who are not.57 Abusive men with HIV rape their wives, exposing the women to infection. Until recently, many countries with a legacy of British colonial rule did not recognise marital rape as a crime, as it was considered that consent to marriage meant consent to sex at all times. Women within or outside marriage report being abused for requesting for condom use, suggesting voluntary testing or even accessing HIV/AIDS treatment.58

56 Bassett and Crummey, Land in African Agrarian Systems, (Madison, USA: University of Wisconsin Press, 1993), 274-297.

57 UNIFEM, ‘Facts and Figures on HIV/AIDS: Global and Regional Statistics,’ (n.p.: UNIFEM, July 2004).

58 UNAIDS, ‘Reducing HIV Stigma and Discrimination: A Critical Part of National AIDS Programmes: A Resource for National Stakeholders in the HIV Response,’ Joint United Nations Programme on HIV/AIDS (n.p.: UNAIDS, 2007).

24

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

In this study, COHRE also found that violence against women is aggravated in the event of HIV/AIDS. Violence by husbands increases, especially when the woman begins to fall sick first and she is accused of bringing the disease. Women interviewed revealed that testing HIV positive subjected them to domestic violence and neglect. Sometimes men would opt to live in denial, accusing their wives of infidelity all the while declaring themselves not to be infected. Some women interviewed by COHRE in Ghana said that their spouses abused them upon disclosing their status, observing, however, that this was not because they were accused of infecting their spouses, but rather because they exposed their spouses to ridicule. In a society where secrecy surrounds HIV/AIDS infection, husbands expected their wives not to test.

However, women will often test after a series of unexplainable illness, or during antenatal treatment.

Some of these women ran away from their abusive husbands, leaving behind their marital homes, but most had little option other than to stay.

Women also face violence at the hand of their own sons and in-laws. Women interviewed by COHRE in Southern Uganda identified several incidents where women were actually alleged to have been killed by their in-laws or by their own children over land and housing disputes. In Kenya, one woman from the Mathare Slum of Nairobi told COHRE: We stayed in the village with my husband a teacher. He fell sick and died. His gratuity benefits brought conflict between me and his relatives. They did not chase me though, but they harassed and abused me to the extent that I had to flee. My sister encouraged me to test and I started treatment. I regained my health and I returned to the village and collected all my children and brought them to the city. With my sister’s help I now engage in small business. Had I stayed where my husband was buried, I would be dead. My children attend free school where I only pay small.

3.4

Stigma

Stigma is a serious problem. It creates a blanket of silence wherein women fear having their HIV status exposed, allowing covetous relatives to grab their property with impunity. The stigma attached to HIV/AIDS, and the fact that women are presumed to be the cause of disease, further undermine women’s status and their ability to claim their rights. Women interviewed by COHRE across Ghana, Kenya and Uganda reiterated similar concerns. Out of fear of losing homes, women infected with HIV hid their status. Particularly in Ghana where stigma is rife, this means that women hide their treatment, and secretly join support groups. Women have to travel to distant places just to avoid their community getting to know their status. They live with the agony of not sharing their status with loved ones.

Widowed women who test positive for HIV, even after their husbands have died of AIDS-related illness, often still do not disclose their status. Even then, in-laws on mere suspicion will sometimes use threats of disclosure and will spread rumours about a woman’s HIV status in order to prevent her from protesting when her property is grabbed or unfairly distributed to other members of the family. Many women interviewed by COHRE, particularly in Ghana, chose to settle for the little given to them rather than be exposed.

Women who do disclose their HIV positive status to their spouse, or whose spouses came to know of it, are often faced with divorce. Women expressed concern that they could not raise the issue of sharing property in cases of divorce, as husbands accused them of bringing the disease into the family. Divorced women face several challenges. The pre-divorce period is likely to be full of violence, blame and trauma.

Following divorce, women are stripped of the property they own with their husbands, and are left to fend for themselves without a home or land to call their own. Once divorced or abandoned, it is women who are disgraced and have to move away. Children are left in the care of their mothers, who themselves have to struggle with multifaceted problems. As with widows, many divorced women have no other option than to take up life in the slums. One woman living in the slums of Nairobi, Kenya told COHRE:

25 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

The fact that you are sent away, you lose rights to [property] and when you fall sick people take advantage to grab other movable properties ... .In my case, all my personal effects were retained by my husband and I had to start from scratch.

In general, COHRE’s research indicates that stigma is much more biting in rural areas, where information about HIV is more difficult to access and myths about the disease are prevalent. In urban areas, women can sometimes avoid stigma though anonymity, or accessing more supportive communities. Stigma also makes voluntary testing difficult for women, thus effectively denying them access to early life-saving treatment and care. Women interviewed by COHRE testified that had they known their status early, they could have better ensured protection of their health and of their property.

3.5

Discriminatory Customary Laws and Practices

While many African States still tolerate customary laws and practices that preclude women’s equal rights to housing and land, most if not all of these countries have ratified key international human rights instruments which enshrine the fundamental right of equality between women and men. In much of Sub-Saharan Africa, customary law generally awards property to male members of the family, who usually assume sole control over property. In some instances, male members of the family also replace the deceased as ‘heads-of-households’ with responsibility over the deceased’s wife and his dependent children. Even in matrilineal communities, women are not entitled to ‘inherit’ what is considered to be their husband’s property. Rather, they are only entitled to ‘maintenance’ subject to being in the good graces of in-laws.

Girls also do not inherit from their parents’ estate on an equitable basis with their brothers. In Western Kenya, for example, women COHRE interviewed confirmed what women in slums of Nairobi had also pointed out: as a girl child, one has no claim on inheritance from their natal family. Other women interviewed pointed out that even when girls are considered for inheritance, they are often given one piece of land or a small house to be shared amongst them. As they get married, they lose their ownership rights. Women who have been dispossessed of their marital home cannot, therefore, return to natal homes.

The situation across Sub-Saharan Africa is that customary law most often does not allow the allocation of land to women, with rights to vested only in males; namely, their husbands, brothers, fathers, sons and uncles. Without independent rights to adequate housing and land, women remain precariously dependent on males and susceptible to lives of insecurity, abuse and exploitation. Clearly, a balance should be struck between achieving human rights for women and maintaining the positive aspects of customary law.

3.6

Inadequate Legal Protections

As we have noted, while international human rights law protects the equal rights of women to housing, land and property, the reality for women is nonetheless influenced by a complex web of national laws, traditions, social attitudes, and perceptions that are distinct from place to place. Customs and traditions can greatly differ, even within one nation, and they continue to exert much influence, even outweighing the power of statutory laws. Where women have limited knowledge about the legal system and the potential protections it offers, access to justice is near to impossible.

A good example of how the justice system fails women in the case of the Ugandan woman mentioned earlier whose own son threatened to kill her. In her case, the local council sided with her son, and appealing her case to the courts has only drained her of the meagre financial resources she once had. This woman sold most of her belongings to meet her legal fees, but still she cannot afford to keep up with the case. By the time COHRE met with her, she could not even afford the transportation costs anymore.

Women whose property has been grabbed rarely are able to reclaim it, even in cases where the law technically allows for their equal rights to marital property. Most women interviewed by COHRE attributed this to inadequate legal standards, poor implementation and enforcement, corruption, and the 26 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

high cost of engaging in a legal proceeding. Women universally said that making a legal claim is frustrating, slow and traumatic to the extent that even those who have manages to file cases often abandoned them. Because of harassment, stigma, financial strain, inaccessibility, and the enormous stress of coping with the day-to-day consequences of HIV/AIDS, many women see no other alternative than to simply give up trying to reclaim what is rightfully theirs.

Regardless of the legal system, the unfair reality is that justice systems tend to favour those with money.

In-laws are sometimes able to ensure an outcome favourable to them with bribes paid to corrupt official, and lack of income forces women to abandon the costly legal processes. Even without bribes, in-laws and relatives capitalises on slow court proceedings, hoping that the widow would die before her case is settled. One Ugandan woman told COHRE: My husband died and left behind a piece of land … . In 1999, [my in-laws] started fighting me because they wanted to take the land. They told me that it belonged to the whole clan! I was not legally married to [my husband]. … I told them it was not possible to leave my children since they were still too young to manage the property. They argued that it was impossible for me to stay, since my husband had not paid the bride price and they called me a prostitute! My first step was to get a letter from the local council, to acknowledge that I was a resident of the village and to confirm that I was married to the deceased. This was difficult because the chairman was siding with my late husband’s relatives and he refused to sign the letter. I still took it to the administrator general without his signature, after I had managed to get nine signatures from other leaders, and it was accepted. Since my husband had not left a will, the administrator general had to come in to settle the matter. They had to talk to us as a group. I ended up getting a letter confirming me as a bonifide proprietor, minus powers of selling or mortgaging the property. I have abided by law. …

I have lived positive for over fifteen years, but lost my husband when I was too young. I said I would not marry when my children were still young, since they needed me…. After agreeing with my children and seeing that they have grown, I decided to remarry. I introduced my dear and new husband to my parents, and we are now organising our wedding this year. What is strange, though, is that my [former] father-in-law now wants to start the war all over again on the basis that I am getting married. Yet, it is me who still feeds him with his two children, plus my own children. I am not worried. I am ready to fight back because I believe I have a genuine reason ….

My advice to others is that having HIV/AIDS is not a crime, but one has to learn to live with it and manage it. When problems related to property face you, do not despair, please use the officers related to handling such problems. Local leaders do not often play their part, but pretend to become relatives of the deceased!59 Cultural norms can also make it very difficult for women to take legal actions which challenge community elders and in-laws. Women do not see themselves as owners of the properties they accumulated with their spouses, even where their contribution is obvious. Women revealed that they did not know they had a right to marital property, especially lands and houses in the rural areas (however, women believed that they could place a claim on the property they acquired themselves). Even where women are more knowledgeable of their rights, men often do not disclose their properties and legal ownership documents to their wives. Thus, widowed women find it difficult to obtain or retain documents of ownership, while in-laws snatch them easily.

Lack of proper documentation is also a problem to women faced with a burden of proving claim on marital or personal property. In western Kenya, for example, COHRE found that women are asked to provide national identification cards as proof of marriage, and therefore of a legal claim to property.

Single or unmarried women’s national identification cards bear the names of their fathers.60 Upon

59 60

Testimony given to COHRE by Sebunya Marble, a woman living with HIV in Uganda The World Bank, ‘The Kenyan Strategic Country Gender Assessment,’ (n.p.: World Bank, 2003).

27 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

marriage, they are expected to transfer these cards from the names of their fathers into those of their husbands. It is common for husbands to refuse women to transfer cards into their names, or give them permission to obtain them. In such circumstances, women fail to prove ownership claims and thus find it more difficult to prove their claims to marital property.

Where women retained their documents, or had ownership proof or transferable rights (like wills) of the property they shared with their husband, they stood a better chance of reclaiming their properties. A woman from Ghana told COHRE that, after the death of her husband, his in-laws came after her property. Luckily, her husband had used her name and those of her children as the next of kin in his national security scheme. She used this fact to claim her house and land after his death. In Uganda, COHRE found that women whose husbands left property in their names similarly fared better.

However, these stories are the exception rather than the rule. Nonetheless, their small victory is a testimony that if in possession of proper documentation, either proving individual, joint ownership or transferable rights, women can more easily put a stop to property-grabbing.

3.7

Urban and Rural Challenges

Poor women in Africa’s urban slums already face housing challenges, and HIV/AIDS aggravates their problems. Women interviewed by COHRE pointed at unaffordable rent and discrimination in the slums, make coping with the disease very difficult. Women living with HIV also reported discrimination at the hands of unscrupulous landlords who sometimes refuse to rent them even a paltry shack in the slums.

For example, women in slums of Ghana expressed fears of being denied tenant rights because of stigma, and failed to adhere to treatment for fear of exposing their status.

The situation is, if anything, even more dismal for women in the rural areas. Whereas urban women may find opportunities – like accessing small credits and savings to support petty business, or accessing health treatment and other services – women in the rural areas are more likely to be faced with abject poverty.

Rural women are not only likely to lose their housing, land and property following the death of a spouse – they also have limited means to cope with the devastating consequences of the disease. Women in the rural areas depend on land for livelihood. When they themselves sick and weak, rural women cannot engage in agricultural activities which are key to their economic and food security. HIV/AIDS weakens their energy to farm, and land left to fallow in some communities is easily redistributed to those who can utilise it. Many rural communities also still have limited access to information on HIV/AIDS and women’s rights. Therefore, women affected by the disease commonly face harsh treatment. They are shunned, accused of spreading HIV, viewed as about to die, and have their property stripped from them.

From the women COHRE interviewed who had lost their land and housing, life becomes indeed very difficult and poverty more biting. This in turn increases resentment and stigma, as women infected by HIV are seen as a burden to their families.

Many rural women are forced to migrate into towns hoping to change their situation, and women who have lost their homes in the rural areas add to the number of those living in slums and informal settlements. Studies have found out that in Kenya alone, women head 70 per cent of all squatter households and over 25 per cent of women slum dwellers migrated from their rural homes because of land dispossession.61 Yet, once there, women find difficult to scrape together rent payments, even for the most meagre of accommodations.

Once in the urban areas, payment of rent and care for children places a heavy burden on women living with HIV. Women affected by the disease sometimes are not able to access HIV/AIDS support services do to financial constraints. Poor housing conditions also pose a health risk, creating conditions for opportunistic disease. Access to HIV/AIDS information might be limited. Above all, lack of security in slums exposes women to rape and sexual exploitation. Limited income options for women also means

61 Marjolein Benschop, UN-HABITAT Commission on Sustainable Development, ‘Women’s Rights to Land and Property,’ (n.p.: UN-Habitat, 2004).

28

Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

that women sometimes resort to exchanging sex for money, exposing them to violence and fuelling the continued spread of the disease.

29 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

My relatives demolished my house, stigmatised me, and told me they did not want more graves on their land.

-Testimony given to COHRE by a woman from Kanu plains, Western Kenya [name withheld]

4.

Conclusions

It is no wonder women interviewed by COHRE emphasised the importance of housing as a source for peace and security in their lives. As this report has shown, there is a very close relationship between HIV/AIDS and the housing, land and property rights violations experienced by women in Africa. The fact that housing, land and property rights are important for women’s welfare and equality cannot be overemphasised. Indeed, the enjoyment of women’s housing and land rights a prerequisite for overcoming the pandemic, and bringing to an end the havoc that the HIV/AIDS pandemic wages in the lives of millions.

To be sure, the continued high prevalence of HIV/AIDS among women in sub-Sahara Africa should be a cause for alarm. HIV/AIDS is fuelled in part by conditions of poverty, yet it also plunges societies deeper into it. Women, undisputedly the mass force behind the small-scale agricultural production upon which all of Africa depends, are thrown off of their lands with impunity. To be sure, Africa cannot afford to watch HIV/AIDS decimate women’s access to productive assets, at least not without affecting its progress in many other areas.

HIV/AIDS is also fuelled by prevailing gender inequalities, and it in turn aggravates those inequalities.

The disease has dramatically increased the number of widows and orphans throughout Africa, and has accelerated rates of property-grabbing and ‘disinheritance.’ Struggling to meet the economic burdens of caring and treating HIV/AIDS, many women face further impoverishment. As this report has shown, women who lack control over essential resources such and housing and land find it near impossible to mitigate the ravages from the HIV/AIDS pandemic. Women across Ghana, Kenya and Uganda tell the tales of the stigma, harassment, violence and discrimination that women affected by HIV/AIDS have to suffer. The striking uniformity with which such injustices take place demonstrates a problem of continental magnitude.

The good news is that, housing and land rights for women can – truly – provide shelter from the storm.

Where women’s housing, land and property rights are promoted, protected and fulfilled, women are better positioned to mitigate the effects of the HIV/AIDS pandemic. Securing housing, land and property rights of women must form part of any meaningful strategy on HIV/AIDS reduction. Anything short of that is likely to have limited impact in reversing high prevalence and devastating impact of HIV/AIDS among women in sub-Sahara Africa.

30 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

I was married and had two children. My husband took up a second wife although he continued to help me my children. When I felt abandoned for a long time, I left the house and went to live with my relatives. He later died and his relatives would not allow me bury him. They grabbed the house, the land and all the property including the gratuity benefits. They did not care about my children. … My father has made an agreement with me that after I have died he will leave the house I have built on the land for my children. My biggest challenge is lack of income to support myself and my child.

- Testimony given to COHRE by a woman living in the suburbs of Kampala, Uganda [name withheld]

5.

Recommendations

Having examined the close link between the housing rights of women and HIV/AIDS in sub-Saharan Africa, COHRE observes that States must respect, protect and fulfill women’s rights to housing, land and property, if they are to stand a chance at reversing the ravaging effects of the pandemic, and the spread of the virus itself.

To this end, COHRE makes the following recommendations to African States, as they strive to eradicate the scourge of HIV/AIDS on the African Continent.

Recommendation One States should ensure adequate national legal and policy frameworks which recognise and protect women’s housing and land rights, including women’s equal ownership of, access to and control over housing, land and property. Governments should review legislation in a comprehensive and participatory manner so as to ensure that national legal frameworks are fully consistent with their international human rights obligations to respect, protect and fulfil women’s housing rights.

Recommendation Two States should increase and strengthen access to justice by women living with or affected by HIV/AIDS, including the creation of special courts, police units and legal aid for women’s housing, land and property rights related violations. Such legal avenues and assistance should be made fully accessible to women, including economically accessible. Justice systems must ensure that women are able to have their marital property restored to them in cases of ‘disinheritance’ or property-grabbing.

Recommendation Three States should integrate a human rights based approach into their national HIV/AIDS national reduction strategies, with a specific focus on ensuring women’s housing, land and property rights, and gender equality.

Recommendation Four States should include in their periodic State-Party reports to the United Nations (UN) Human Rights Treaty Monitoring Bodies specific information on their efforts to ensure women’s equal housing, land and property rights within the context of HIV/AIDS, in particular to the UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), the UN Human Rights Committee, and the UN Committee on Economic, Social and Cultural Rights.

Recommendation Five Those States who have not yet done so, including Ghana, Kenya and Uganda, should ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

31 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

Recommendation Six States should provide adequate, alternative housing to women in need who are living with HIV, and their families, through the development and implementation of social housing schemes targeted to meet the needs of this population.

Recommendation Seven States should design and implement extensive education and sensitisation programmes to raise awareness of women’s rights to equality and non-discrimination within the context of HIV/AIDS, particularly vis-à-vis women’s housing, land and property rights. Such education and sensitisation programmes should be targeted towards community members and leaders, including affected women themselves; lawyers and legal professionals; public media; and Government agencies.

Recommendation Eight States should provide economic empowerment opportunities to women living with or affected by HIV/AIDS. Increased income levels among such women is one practical way of enabling women cope with social and economic challenges associated with the disease, including housing, HIV treatment, nutrition and living conditions. Special efforts should be made to allow women to access livelihoods, credits, loans, and other schemes that will permit them to raise their standard of living and access adequate housing.

32 Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

HIV and AIDS continue to ravage the African Continent, with devastating impacts to its victims, their families, the communities around them, and their Governments. For women, this reality has worsened the challenges already caused by entrenched gender inequality. Governments across sub-Saharan Africa must act urgently to mitigate the impacts HIV/AIDS, and must ensure that women infected or affected by HIV/AIDS are able to own, control and access housing, land and property. This report examines the housing, land and property rights of women in the context of HIV/AIDS, and sets forth key policy recommendations.

The Centre on Housing Rights and Evictions (COHRE) is an international human rights organisation that promotes practical and legal and other solutions to endemic problems of homelessness, forced evictions and other economic social cultural rights throughout the world. To this end, COHRE promotes the creative use and application of international human rights law. The Women and Housing Rights Programme at COHRE was established in 1998 to ensure that women’s specific needs and concerns with respect to the right to adequate housing are understood, addressed and championed. It is the only international human rights programme solely focused on ensuring the right to adequate housing specifically for women.

In Africa, COHRE’s Women and Housing Rights Programme recognises and seeks to address the distinct challenges faced by African women in realising their housing rights. The Women and Housing Rights Programme therefore works with partners in Africa to address gender inequalities in access to housing and land through research, advocacy and capacity-building.

COHRE International Secretariat 83 Rue de Montbrillant 1202 Geneva Switzerland Tel. +41.22.734.1028 Fax: +41.22.733.8336 E-mail: cohre@cohre.org Web: www.cohre.org Women and Housing Rights Programme 8.N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA Tel/Fax: +1.218.7331370 E-mail: women@cohre.org Web: www.cohre.org/women COHRE Africa Regional Office 17th Crescent Street Asylum Down PMB, CT 402 Cantonments Accra, Ghana Tel: +233. 21.238821 Fax: +233. 21. 232.349 E-mail agnes@cohre.org

33

wwwwwwww Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa

Housing Rights for Everyone, Everywhere