Introduction

In Africa, access to, ownership of and control over land is a fundamental determinant for secure livelihoods, especially for the rural poor. Land provides a secure place to live, a site for economic and social security, and can serve as collateral for credit and other resources. In the last two decades, HIV/AIDS has been responsible for the weakening of rural economic safety nets and depletion of assets, chief amongst them being land. AIDS leaves many relatively young widows and orphans behind and the specific manner in which HIV/AIDS impoverishes households means that, upon finding herself a widow, a woman has few resources left with which to resist outside pressures exerted by neighbours or members of the extended family or to make choices that are in her own interest (Drimie 2002, 20). Violations of women's property rights are most frequent when it comes to inheritance and control of matrimonial property, particularly land, homes, vehicles, livestock, furniture and household items. A crucial issue in the discussion of land rights and gender in Africa is therefore the recognition of women's land rights upon the death of their husband, or children's rights upon the death of their parents.

As a study by Human Rights Watch (HRW 2003) on the Kenyan situation has pointed out, women widowed by HIV/AIDS often suffer injustices of both statutory and customary law that militate against their being able to retain marital property. Customary laws which are largely unwritten and liable to multiple interpretation coexist with formal laws and influence local norms that are based on patriarchal traditions in which men inherited and largely controlled land and other properties. These practices permeate contemporary customs that deprive women of property rights and make them powerless when these rights are infringed. While the Kenyan Constitution prohibits discrimination on the basis of sex, it undermines this protection by condoning discrimination under customary laws that privilege men over women. Women's property rights are under constant attack from individuals – including government officials – for whom it is convenient to believe that women cannot be trusted with or do not deserve property. A complex mix of cultural, legal, and social factors therefore underlie women's property rights violations (HRW 2003). According to the 2003 Kenya Demographic and Health Survey (KDHS), (CBS et al. 2004), about seven per cent of Kenyan adults between the age of 15 and 49, who were tested for the HIV-virus, were found to be infected.