Case Study: Kenya National Commission on Human Rights16

Conventional wisdom views cultural practices as a key obstacle to the realization of human rights. But recent work of the Kenya National Commission on Human Rights (KNCHR) demonstrates that in fact many traditional cultures had systems that ensured the protection and care of the most vulnerable members of society such as widows and orphans. These structures and systems have over the years been ignored or manipulated in ways that perpetuate human rights violations.

The KNCHR believed there to be a need to revive and encourage cultural structures and practices that can be used to protect the vulnerable in society, especially women and children. There is need to breathe life into known but little used alternative methods and traditional cultural safety nets, which have since time immemorial been used to redress disputes and prevent human rights violations.

Using cultural frameworks to address human rights and development is imperative: in spite of the protection offered by national laws and formal institutions, many vulnerable members of society are unable to seek redress from the mainstream legal justice system in their claim for their rights. The formal legal system has by and large worked to the detriment of the vulnerable in society in regard to the protection and enforcement of their human rights. In the case of land for example, which is so critical to securing livelihoods, women’s share of land ownership is a meagre 5%.

Why deal with traditional structures?

Cultural institutions form the first line of governance structure in the lives of many rural communities in Kenya. The majority of families in the country conduct their transactions on issues such as ownership and inheritance of property in accordance with customs. To effectively intervene in matters relating to human rights, one must therefore address issues relating to customs and traditions.

Human rights defenders need to dialogue with elders; they need to identify and work with cultural structures that are supportive of human rights and development. Since cultural institutions are a real and present structure in Kenyan society it is important to acknowledge this and to work with them in addition to formal structures.

This is not to downplay the role of formal structures. Rather, there is a need to recognise that, whereas the legal and formal structures are important, they are not accessible to the majority. Therefore, insisting on only working with them amounts to the marginalisation of those unable to access them. We believe that only a multidimensional approach in addressing human rights and development will help to achieve the realisation of ESC rights for the most vulnerable.

The Project Experience in Luo Nyanza

The KNCHR in partnership with Health Policy Initiative (Futures Group) and the Luo Council of Elders (Luo is one among several Kenyan communities) has been involved in “groundbreaking” work under its women’s property and inheritance rights project that challenges the status quo regarding culture and human rights.

The project aims to apply cultural norms to strengthen the protection of the property inheritance rights of widows and orphans in the context of the HIV/AIDS pandemic.

Those knowledgeable in the culture and traditions of the Luo are aware that the current practices of disinheriting widows and orphans of their land and property are not part of the Luo culture. Traditionally, land belonged to the wife and the children; men had no right to impose their will on land use.

This is a case where traditional culture provides protection to vulnerable groups and is therefore an ally for development. It also promotes debate about negative practices within cultural institutions that may be harmful to human rights and development.

Achievements:

• A documentation centre was set up in the town of Kisumu for all of the Luo in the province of Nyanza
• A documentation officer and community liaison officer were hired
• A documentation tool for identifying cases for relocation was developed and documentation began in November 2006
• By mid-March 2007, a total of 76 cases had been documented and 21 others were referred to other local organizations for legal assistance. The tool identified different needs of the widows including materials for putting up houses; transport to go back home and carry household materials; court fees to pursue documents of administration of estates, marriage certificates, title deeds, and taking orphans to school, among others
• Guidelines on the relocation fund were developed and ready by mid-March 2007. The guidelines included the following elements: the project background, a description of the fund and who could benefit from it, the types of assistance that the fund could support, and the levels and nature of support, to name a few
• The development of a booklet on Luo culture and the rights of women to own and inherit
• Property was distributed