Judges’ Statements

Theo Sowa

Chief Executive Officer, African Women’s Development Fund

Good afternoon. I’m Theo Sowa, one of the Stephen Lewis Foundation’s African Advisory Committee members and the head of the African Women’s Development Fund. It has been sobering, illuminating and inspiring to listen to these amazing women speak.

What would the world look like today, if grandmothers hadn’t taken the initiative when no one else would? Hadn’t stepped in to care for their families and neighbours as they were decimated by HIV and AIDS? So many communities would not have been able to survive. A generation of children would have been left so deeply traumatized and neglected that they would now pose a danger to themselves and to others. That possible future didn’t become a reality. We have the grandmothers to thank, and it is high time we did thank them. Not only those grandmothers whose testimonies we heard today, but the thousands of others they represent—in Africa, but also in other parts of the world. Without you, African children, African communities, and African nations might well have succumbed to the catastrophic impacts of HIV and AIDS. Without you, the world would have taken even longer to learn the crucial lessons that have led to us beginning to win the struggle against the pandemic across the globe. Without you, the world would not have been made so gloriously and yet so painfully aware of the power of love, of care, of anger, and of commitment. We thank you.

Through the grandmothers’ testimony today we have learned just how much they have been able to accomplish for their families and communities, drawing only on their own hearts and spirits, and the support of those grassroots NGOs who understand the important role grandmothers can play. Grandmothers are feeding whole neighbourhoods of children, and monitoring their health and well-being. Grandmothers are advocating for an end to discrimination and violence, encouraging women to claim their rights, and helping them get protection and redress. Grandmothers are helping to remove the stigma and ignorance that hold people back from treatment and testing, and giving the day-to-day support that keeps people in treatment. Grandmothers are advising on the boards of NGOs, and they are becoming part of local governance. Perhaps most significantly, grandmothers are joining together, forming mutual support groups and creating their own organizations, to help advance the work they are so committed to. In short, grandmothers are showing the most inspirational type of leadership—and they deserve support to make that leadership count fully.

Let’s talk again about possible futures. What would the world look like if more grandmothers were given opportunities and support to help them to take on leadership roles? With 100,000 more women like Mariam sitting on local land councils, would property grabbing come to an end? With the counselling, support and encouragement of 100,000 more women like Zodwa, how much more quickly might we overcome stigma and fear, and get more people into treatment? Would the advocacy of 100,000 more women like Magret bring wife inheritance to an end? We’d surely be a lot closer to reaching those goals.

Here are four steps that can and should be taken right away:

  • Grandmothers should be included on all of the bodies that make HIV and AIDS related decisions—national HIV and AIDS planning boards, but also hospital and clinic administrations, and NGO advisory bodies.
  • There should be greater representation of grandmothers in local and community level decision making processes, especially on bodies that make decisions about crucial issues affecting their lives, such as land committees.
  • The grassroots NGOs that are facilitating grandmothers’ leadership should be given targeted funding to expand their work.
  • The grandmothers’ own organizations and mutual support groups should be given greater recognition and direct funding of their own.

Yet we have heard that this leadership comes in the face of severe challenges—horrific violence against grandmothers, women and girls; insecure housing and violation of land rights; and minimal and insecure funding for initiatives that have saved so many lives.

We’ve heard from the grandmothers about the enormous importance of decent housing and rights to land, and about the extreme poverty and physical endangerment that they can face when these essential supports for a decent life are taken away. Having well-built, secure shelter, with land nearby that can be farmed for crops to eat and to sell for additional income, is what has made it possible for so many grandmothers to support themselves and their grandchildren, and to access the level of nutrition they need to live more healthily with HIV. Without these essentials, well-being, indeed survival, is jeopardized.

The pandemic has brought a crisis of mass eviction into grandmothers’ lives. The stories that Immaculate and Magret have shared with us, about their struggles against land and property grabbing, are not unique. They have been repeated in community after community, across the countries of sub-Saharan Africa and reflect a pernicious intersection of HIV and discrimination against women. The addition of age and impoverishment makes for a dangerous vulnerability, as HIV entered into social arrangements that already discriminated against women and placed them at a disadvantage in terms of their security and entitlements. The system of customary land ownership that dominates in many areas is structured according to tribe, clan and family lineage, in ways that marginalize women and in many cases exclude women from the direct acquisition of land, on the assumption that their needs will be met through their position within their families. When this connection is severed—for example, because of a husband’s death due to AIDS, or because a woman is divorced or abandoned following the disclosure of her positive status—grandmothers are left in dangerously vulnerable positions.

The law relating to land and property ownership in sub- Saharan African countries is complex and evolving. Most countries inherited a mix of customary and colonial law at the time of their independence, and have since enacted a succession of legal reforms. So it is by no means true that all of the women who are being dispossessed of their homes and land have no legal claims to make. Indeed, Kenya’s constitution has enshrined women’s rights at the highest level of authority in the country’s legal system, requiring that gender discrimination be eliminated in all laws, customs and practices related to property and land, and requiring that new laws be enacted to recognize and protect matrimonial property, especially the matrimonial home, upon the termination of marriage. And Malawi’s new Deceased Estates Act protects widows’ and children’s share in the estate, making property grabbing a punishable offense.

The challenge that grandmothers are confronting is not simply that they have no legal rights—often it is that these rights are not being recognized and enforced in their communities. In one study conducted by the Centre on Housing Rights and Evictions, which surveyed 240 women infected or affected by HIV in Ghana, Kenya and Uganda, only two had managed to successfully regain their property by legal means. Many grandmothers are not able to afford the high cost of bringing a legal claim. They also face justice systems that favour people with money, while enduring harassment from their in-laws and struggling with the day-to-day burden of the disease and care for their grandchildren. Many are overwhelmed by this many-sided assault, and just give up. But not all. As we have heard today from the grandmothers’ testimony, support from grassroots NGOs, women’s lawyers’ associations, legal aid, responsive police officers and local officials, and gender-sensitive land tribunals—especially those that include grandmothers as decision makers—can make a tremendous difference.

The grandmothers have a right to expect much more. They should not be left on their own to navigate complex, discriminatory and dysfunctional legal systems, all the while trying to hold the onslaught of their relatives’ aggression at bay, and searching desperately for their grandchildren’s next meal.

Women’s human rights to land and housing are well recognized in international law, if less so in practice. UN intergovernmental resolutions on human rights and HIV/AIDS have repeatedly called for greater protection for women’s property, land and housing rights, and have highlighted the special vulnerability of women to violation of these rights in the context of the HIV pandemic.

The consensus is even stronger and clearer at the regional level, as reflected in the African Charter’s protocol on women’s human rights, which not only reinforces the international guarantees relating to housing and property, but sets out a specific right to inheritance for women. Article 21 of the Protocol states that women shall share equally in their husband’s property, that widows have a right to continue to live in the matrimonial home, and that women have an equal right with men to inherit property.

The poverty and desperate need the grandmothers have been describing to you today is not some tragic misfortune that has befallen them. We need to be very aware that this situation is not accidental. Grandmothers are losing their homes and their land because they are women. It has been commonplace for policy makers to speak of gender-based discrimination driving the pandemic, and of HIV and AIDS having a woman’s face. But the lived reality that stands behind those phrases is of older women and their families made destitute, with no recourse. The intersection of HIV and discrimination against women has not just made it easier for the disease to permeate communities, it is fanning the fires of discrimination in a most alarming way.

Here are some steps that can and should be taken right away:

  • National constitutions should guarantee women’s rights to housing and land, and their equal rights in the context of inheritance and the dissolution of marriage. Constitutions should also recognize that these rights apply both to state-run legal systems and to customary and traditional systems.
  • National laws and policies should be adopted that protect women’s land and property rights, and leaders of customary or religious legal systems must undertake reforms to ensure their property and inheritance practices do not discriminate against older women.
  • The protection of women’s land and housing rights must be integrated into national HIV and AIDS plans, including measures to ensure that marital property is divided without discrimination upon separation, divorce or death, and to ensure the restoration of all land and property that has been illegally taken.
  • Courts, policing and legal aid must be made more accessible and responsive to older women’s claims of violations of their rights.

Finally, no serious discussion about protecting the human rights of African grandmothers can be had without addressing the question of funding. The grandmothers who shared their testimony today, our expert witnesses, and my fellow Tribunal judges have all laid out a compelling case for urgent action. The exploitation, marginalization and abuse of these women, who are giving so much to their communities, has to be recognized and remedied. But change takes money.

UNAIDS issued some revealing statistics last year, about the money that is being spent on HIV/AIDS related initiatives that target women.1 The first shock: only 85 of the 127 countries who prepared progress reports indicated that any money was being spent on programmes that specifically target women. The second, even greater, shock is the utterly trivial scale of the funding. The total global figure for women-specific spending in 2012 was US $288 million. UNAIDS broke this figure down into four further categories – 1) ending new infections in children and keeping their mothers alive, 2)programmes for sex workers and their clients; 3) programmes to reduce gender-based violence, and 4) “other” programmes for women. US $203 million of the total $288 million is being spent on the first category—but as UNAIDS observes, these programmes don’t necessarily include continuing HIV treatment for women, or address their primary prevention needs. To be quite honest, the vast majority of the funding under this category goes to the benefit of children, and not to their mothers. Only US $20 million was reported worldwide last year for HIV related anti-violence interventions and other programming directly targeting women’s concerns.

What is also very telling about the UNAIDS report are the statistics that don’t appear. For example, the statistics on funds allocated to treatment and prevention programmes are not disaggregated by gender. And none of the statistics that are being collected—even the information on programming that targets women —tracks the percentage of HIV and AIDS money that reaches grandmothers. The total resources being allocated to women are shockingly low, and within that small pool, the bulk of the funding is going to issues involving younger women, such as vertical (mother-tochild) transmission.

The current HIV and AIDS funding picture is also quite troubling because of the very limited support that has been allocated to the care and support work of local, grassroots NGOs.

When we hear about funding for AIDS in Africa, the focus has always been on the provision of drugs. Of course this is desperately important, since just over 50% of those who need the anti-retroviral drugs for AIDS are receiving them, and only 25-29% of the children who need pediatric ARVs have access to them. But drugs don’t deliver themselves, and drugs alone won’t heal the damage done by the pandemic. Much more support is needed for the community-based organizations that have become the backbone of the healthcare response to AIDS on the ground.

Donors must overcome their reluctance to fund smaller, grassroots, community-based organizations (CBOs). As we have heard from the testimonies of the grandmothers and the experts today, community-based organizations have become the lifeblood of communities affected and infected by the HIV and AIDS pandemic. When the traditional networks of relationships, that had sustained people for so many generations, were breaking down, it was the CBOs that found new ways of supporting and caring for members of the community. And they set in place new relationships and frameworks—such as the grandmothers’ mutual support groups—that brought people together again to work for the common good.

This is only natural. The CBOs are integral parts of their communities. It is the community-based groups —not the big international organizations—that are talking with the grandmothers every day, visiting and treating the grandmothers every day, counselling and encouraging them, and working hand in hand with them to find solutions to their problems. It’s also the CBOs who are helping grandmothers to find their own voices, to organize themselves, and to become powerful advocates for changes, such as pension reform, that will make a lasting difference for their lives.

When the pandemic first struck, state-supported healthcare systems were completely overwhelmed. Community-based and home-based care initiatives emerged to meet the urgent needs, and at present they are the source of the majority of HIV-related care services. But meaningful financial support did not follow. And in particular, financial support most certainly did not flow to the grandmothers who are on the frontlines of delivering so much of the care needed by their communities.

Feminists have long campaigned to get recognition and compensation for the unpaid care work that women do all over the world. The situation of the African grandmothers in the context of the HIV and AIDS pandemic is possibly the most extreme example we have today of this discriminatory economic exploitation. While the major donors do now seem poised to improve their support for community-based healthcare— because of the discovery that treatment is prevention —we need to be alert to the very real danger that women’s “invisible” care work will continue to remain invisible in their new funding plans. Mary Ellen has noted some of the specific measures needed to end the economic exploitation of grandmothers in their role as primary caregivers, and these should be made concrete requirements for any donor-funded community care programme.

At present, donors aren’t funding initiatives designed to reach older women, and they aren’t even tracking what portion of their resources ends up being spent to the benefit of older women. The inclusion of grandmothers as a designated target group in the donors’ policy documents and multi-year plans would certainly be very welcome, but given their track record this alone would be unlikely to translate into very much money on the ground.

The ultimate goal would be state-funded pensions for the grandmothers. But the fact that not all sub-Saharan African countries may be able to establish these systems right now can’t be treated simply as “their” failure— and it can’t then be taken as an excuse on the part of everyone else for abdicating on the response to the gross violations of grandmothers’ rights, and the extreme poverty to which they are being subjected. In the face of such pressing need, the donors must step in to help develop shorter term income security solutions.