How alternative dispute resolution is securing land rights for widows in Luo Nyanza
Jessica Oluoch
By Evelyn Makena
Early this year, Rhodah Nafula Wekesa happily clutched on a single white sheet of paper, – a title deed- that signified a hard-won victory for the 45-year-old and her three children. The death of her husband in 2004 marked the beginning of a land dispute between her and the in-laws. She won that battle in 2009 and secured a two-acre piece of land that was the subject of the dispute.
But Rhoda did not stop once she got the land back, she initiated processes to register the land under her name making it hard for anyone to take it from her in future. The resident of Ahero, Nyando Sub-County, Kisumu is not alone.
Widows in Homabay and Kisumu Counties are now resorting to Alternative Dispute Resolution through the Luo Council of Elders to resolve land disputes and secure their land rights. From battling with family members keen on denying them land that is rightfully theirs to community members who misinterpret culture to disinherit vulnerable widows, these women have found recourse to secure their land rights.
Barely weeks after her husband died, Rhodah`s in-laws informed her that she needed to identify a man within the family to inherit her- in line with a Luo customary practice that entails a brother or a relative of a deceased husband taking over as the new head of the deceased’s home. At the time of his death Rhodah was three months pregnant with their last-born child and taking care of her older two children all aged below three years. “Am a Luhya married to a Luo and so the idea of being inherited did not make sense,” she says.
Her house was demolished when she did not comply and she was sent away with her children and went to live in a rented house in Ahero town centre. “My in-laws said that I would bring a bad omen to the family,” says Rhodah. According to Luo tradition, couples including widows are expected to engage in sexual activities preceding specific agricultural activities such as cultivating, planting, or harvesting, building homes, weddings, funerals, or other significant social events. Her refusal was considered an offence that would bring bad luck to the family.
In 2009 she was among some of the first widows to have their land rights cases resolved through the help of the Luo Council of elders. Rhodah learnt about that option from an official from KELIN, a nongovernmental organization that helps secure land rights for rural women who had visited a widow`s group that she belonged to.
In the days that ensued she and her in-laws appeared before the elders, and it was resolved that the land belonged to Rhodah. KELIN resettled her in the land in 2010 and helped her construct a house. “The elders’ intervention was a true blessing. They resolved the case and left the family in peace,” she says.
Joseph Apollo Bwana, chief elder, Luo Council of Elders says that land disputes between widows and their inlaws are common and mostly happens due to disregard for culture. In Luo culture when a man dies, the wife assumes full rights to ownership of the land and property, notes Joseph. Yet some families have denied widows the right to land, culture notwithstanding.
Joseph also points out that some customary practices have been misinterpreted denying widows their land rights. The culture of wife inheritance was aimed to secure the family of the deceased man. However, he says that today people have sexualized the cultural practice watering down its significance. “The inheritor is supposed to oversee the smooth running of a home not necessarily have sexual relations with the woman. They also have no right to a widow`s property,” says Joseph.
Joseph is among 6 elders trained by KELIN on alternative dispute resolution. “We have trained them on laws that govern land ownership, documentation of cases and rights of women to property,” says Jessica Oluoch , a lawyer, KELIN. Through this initiative by KELIN and Luo Council of elders close to 900 cases on land rights for women have been resolved in Homabay and Kisumu counties.
Many women faced with land rights cases often shy away from going to courts due to exorbitant legal fees. Those that succeed in going to court are ostracized and disowned by their community. ADR is helping bridge this gap and giving many women access to justice. Use of ADR is part of the efforts to clear backlog of cases in courts and offer representation to those that cannot afford legal fees. Article 159 of the Kenyan Constitution 2010 mandates the Judiciary to promote alternative dispute resolution in the administration of justice.
Land ownership and access is crucial for women as it is a factor of production in agricultural activities helping women earn a live hood and support their families. Women who lose land risk losing their homes and sinking into poverty. In rural areas like Nyanza, widows are evicted from their homes and land and many have limited access to justice.
The constitution provides for equal rights to property for parties in a marriage at the time of the marriage, during the marriage and upon dissolution of the marriage. Kenya has also enacted laws that aim to secure women`s right to own property including the Marriages Act that calls for registration of all marriages, granting women a legal basis to claim property ownership. The Land Act provides allows both partners in marriage to consent to the sale or lease of their land and home while the Matrimonial Property Act protects a woman`s property acquired during marriage. The Law of Succession Act grants equal inheritance rights to both female and male children. Yet gaps in these laws have caused many women to miss out on land rights.
ADR has also reduced the amount of time it takes to settle a case. Joseph says that it takes less that 5 days to hear and decided a land case and give a ruling. Often these cases are brought to elders as a last resort after efforts to solve them at home and clan level have failed.
Today, Rhodah has become a widow champion on land rights and spends her days educating widows on ADR and referring them to the elders. “I urge women to speak up and get help,” she says. She also volunteers as a secretary, taking minutes during the land dispute proceedings.
To minimize land disputes, Joseph notes that it is important for men to consider joint registration of property. He also emphasizes on the need for women to establish good rapport with in laws as acceptance in the family helps in amicable solving of such cases in case a husband dies.
Despite the many benefits of resolving cases through elders, it can only do little for individuals who feel dissatisfied with the ruling. “These people either go to court or at worst the dispute festers causing more harm to those affected,” says Joseph.