43682 Questions? Contact j4p@worldbank.org July 2007 Volume 1, Issue 2 Promoting Women's Rights by Indigenous Means: An Innovative Project in Kenya by Tanja Chopra, Kenya* What is J4P? Introduction Justice for the Poor (J4P) Western institutions and systems of different systems to adapt. is a global research and development program justice have developed as a result Interventions may adjust the aimed at informing, of socio-political processes, official system to local realities, designing and supporting historical events and philosophical but another possible focus is on pro-poor approaches to debates that have taken place over the transformation of cultural justice reform. It is an many centuries. Such systems values of individual communities. approach to justice reform therefore resonate with European Processes of transformation allow which: societies, but when imported in change to be set in motion from · Sees justice from the post-colonial contexts they tend to within a society itself. This can perspective of the become only partially embedded in mean that `positive' values are poor/marginalized urban centers. Meanwhile, in rural emphasized and re-instated settings the delivery of justice where lost, or `negative' values · Is grounded in social usually continues to be based on are transformed into positive and cultural contexts local histories and values, which ones. The effect is that state · Recognizes the can differ substantially from institutions can gain legitimacy in importance of demand community to community. the eyes of local communities, in building equitable and official rights are promoted. justice systems Reform programs in all sectors * The author would like to thank Catherine · Understands justice as often ignore the value systems, Mumma for her helpful comments on an earlier a cross-sectoral issue social structures and realities of the version of this briefing note, and Caroline Sage local communities they address, and Pamela Dale for their assistance in crafting therefore delivering mixed results. and editing the note. Further innovative programs are required to foster meaningful connections between local social structures and value systems and official justice institutions. The key to success will be the ability of Debate and Approaches in Kenya Some developing countries have designs, NGOs and governmental proven to be a fertile ground for institutions have started to involve debates over cultural differences local structures in their activities.*** and the modern state system. In However, detailed strategies of Kenya, there is a general how to do this are still rare. understanding of the wide-spread application of local justice * Robinson Ocharo, Beneah M. Mutotso, Report mechanisms in place of formal on Community Justice Systems Study in Kenya: systems.* Also, a `reception clause' Case Studies of Communities in Wajir, Isiolo, Laikipia, Meru North, Turkana Districts and in the Judicature Act of 1967 Nairobi (Mukuru and Kibera Slums). Final accepts customary law as long as Report, The Kenya Section International it is not `repugnant'. While a Commission of Jurists, 2003. minority of legal and development ** Isabella Masinde, Mohamud Adan, Ruto Pkalya, `Indigenous Democracy. Traditional practitioners argue for the strict Conflict Resolution Mechanisms, Pokot, Turkana, implementation of formal Samburu and Marakwet, ITDG-EA, January structures, pointing to the lack of 2004; Katama Mkangi, `Indigenous Social Mechanisms of Conflict Resolution in Kenya. A "There is a growing human rights standards and the Contextualized Paradigm for Examining Conflict gender imbalance claimed to be in Africa,' 1997, accessed at awareness that inherent in informal systems, there http://payson.tulane.edu/conflict/Cs%20St/case _studies.htm innovative solutions is a growing awareness that some *** See for example the National draft Policy on innovative solutions which work Peacebuilding and Conflict Management by the which work with local with local systems have to be Office of the President, in which `traditional' conflict resolution methods are among the main systems have to be found.** Based on these principles of the framework. (Office of the understandings, assessed needs at President, `National Policy on Peacebuilding and found." the grassroots, and the failures of Conflict Management,' First Draft, July 2006). some internationally-imported Barriers to Women's Tackling Discriminatory Inheritance Practices Inheritance Access One innovative project in Kenya deaths. In many cases, these `Traditional' values prescribe has experimented with practical women are either chased away that land has to stay within solutions. In 2004, the Kenya from their house and land, or they the patri-lineage. Women marrying into their National Human Rights are forced to marry their husband's lineage can Commission (KNHRC), Kenya's husband's brother to be able to therefore work on his land, national human rights institute, stay on their property. The official but cannot obtain ownership. and the Policy Project-Kenya law provides for equal rights Women often do not have (`Futures Group International') set between men and women in the understanding or the out to find innovative solutions for relation to inheritance, and women means to address official law. This is especially the women who were facing are eligible to inherit the land and case in rural or poor areas. disinheritance.* Given the high property of their husbands. The social stigma of taking family members to court number of HIV cases in Nyanza, However, many factors have would make the woman's Western Kenya, increasing prevented the application of the life afterwards difficult, numbers of widows are being left law, as indicated in the regardless of the outcome of the case. behind after their husbands' accompanying text box. KNHRC decided to approach the their children to inherit without problem by challenging the power having to marry their brother-in- of local values that have resulted laws. However, the property in negative practices. The project would remain within the lineage focused on the leaders and elders of the husband. This approach of the local Luo communities, in respected the traditional order to win their support in the principles and allowed a promotion of the official `traditional' value (Luo culture "We had a look at the inheritance laws. The project protects women) to be preserved, facilitated a debate among Luo while at the same time adjusting culture and saw what was elders about the communities' the practice to international values in regard to women. Luo human rights and gender equality negative and what was perception is that their culture standards. protects women. Facilitators positive. We want them to therefore challenged the elders The project report claims that who held the belief that `Luo KNHRC's approach was successful see what is not good, but culture protects women', by in a number of cases, and had a confronting them with cases in higher success rate than enhance the positive which women had been relegated approaches using the features. We are not a to extreme poverty through academic/workshop style of denial of their right to inherit. imparting human rights welfare state yet, and many They were also confronted with knowledge, or that promoted the the affects of cultural practices on use of the formal justice system cultural aspects are the spread of HIV. for redress. Unlike cases where women received legal support, important for people to It was clear that, due to social the cases addressed by this changes and a growing project ended in reconciliation survive. Other aspects need recognition of human rights and between the parties in conflict. to be re-negotiated. We gender equality, the Luo culture Further, cases that were dealt on the protection of women's with by the official law, even need to break the negative right to inherit now required a where they brought about a different implementation than in victory for the widow, did not cultural values." the past. Instead of widows being necessarily result in the inherited by their spouse's reinstatement of rights. - Catherine Mumma, KNHRC, brother, with the support of the Nairobi 2006 elders in a number of cases it * The project was funded by USAID. was agreed to install the widows legally as trustees of the communal land. That allowed the women to remain on their land and property and protect it for Taking an Innovative Idea Forward While the KNHRC project has to identify pragmatic ways to only been conducted on a small allow access to justice for the scale in Kenya, it can serve as a poor and marginalized. Learning model for many types of from KNHRC's project and interventions, beyond creation of similarly innovative interventions, access to justice. Many J4P research will focus on socio- approaches for the introduction cultural values, in order to of human rights or gender develop spaces for local debates awareness standards have over values and in order to proven unsuccessful at the local determine the appropriate agents level. What is needed is the for change at the local level. communication of these "Promoting change standards in local terms and through local leaders (among from inside brings others). The idea to transform features in society that contradict western rights legitimacy to new standards, or to reinstall eroded values for protection of the processes or vulnerable, through initiating or allowing a debate within society, institutions, thus is an innovative way to let society determine its own changes. Promoting change from increasing the inside brings legitimacy to new processes or institutions, thus likelihood they will increasing the likelihood that they will be applied and be applied." acknowledged by the local community. The work with cultural values also provides an innovative approach, countering the argument that informal Further Information structures must always work Visit our website: against human rights standards www.worldbank.org/justiceforthepoor and gender equality. Questions? The World Bank's Justice for the E-mail: j4p@worldbank.org Poor program seeks to gain a deeper understanding of local level justice processes, in order Justice for the Poor Briefing Notes provide up-to-date information on current topics, findings, and concerns of J4P's multi-country research. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank.