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Children's
Property and Inheritance Rights, HIV and Aids, and Social Protection
in Southern and Eastern Africa
Dr Laurel L. Rose, Food and Agriculture Organization
(FAO)
November 30, 2007
http://www.oxfam.org.uk/resources/learning/landrights/south.html
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Introduction
Previous study of the legal aspects of children's property and inheritance
rights In a previous desk study of children's property and inheritance
rights in southern and eastern Africa (Rose 2006), the author focused
on the legal aspects of children's rights. The argument was made
that children's property and inheritance rights have received little
attention, despite the fact that many orphans are not only compelled
to support themselves, but they also have to defend their property
and inheritance rights against potential or actual usurpations by
relatives, neighbours and strangers. Importantly, the relatives
who usurp their property and inheritance rights are often the same
people within their extended families who, in accordance with tradition,
should be protecting their rights, i.e. their guardians and caregivers.
The author covered
the following topics:
- the nature
of children's property and inheritance rights
- the vulnerabilities
of these rights (e.g. due to weak legislation, discriminatory
customary practices, tenure insecurity, poverty, and inadequate
documentation about births and deaths)
- the violations
of these rights
- the protections
afforded these rights in laws and policies
- the difficulties
faced by children in protesting perceived violations of their
property rights
Regarding the
fourth topic, it should be recognized that a country's laws and
policies may not fully protect children's property and inheritance
rights, or otherwise provide children with the means to enforce
their rights. Regarding the fifth topic, it should be recognized
that children may not be in a good position to defend their property
rights due to the barriers of information, time, status, youth and
cost that they commonly encounter. On the subject of children's
property and inheritance rights, the author defined such rights
as the right to own, acquire (through purchase, gift, or inheritance),
and dispose of tangible and intangible property, including land,
housing, money, livestock, and crops.
More specifically, the author suggested that orphaned children should
be guaranteed the following rights: to legal protection of their
property and inheritance rights; to participate in and be informed
about all decisions and dispositions regarding their parents' property;
and to receive legal aid and the assistance of an advocate in order
that they might claim their property and inheritance rights or otherwise
protest violations of these rights.
Finally, the author argued that any local or national laws (customary
or statutory) and policies which insufficiently address children's
property and inheritance rights or otherwise impose undue hardships
upon children in their efforts to maintain these rights, violate
international human rights law - with guaranteed rights to information,
to the protection of the law, to legal inheritance, and to effective
remedy - and should therefore be amended or repealed. In an effort
to promote children's property and inheritance rights while also
suggesting ways to rectify violations of these rights, the author
outlined the gaps in various national laws (mostly succession and
land laws) and policies (mostly National Plans of Action). Thereafter,
the author made numerous recommendations regarding actions that
Stakeholders
should take to protect children's property and inheritance rights
(e.g. design and implement legal and policy interventions, promote
succession and estate-planning, develop new approaches to caregiving
and guardianship, and develop a child-centered framework and advocate
for children) as well as regarding research and development priorities
that stakeholders should undertake to better understand and to promote
children's property and inheritance rights (e.g. educate/train people
and provide support to local authorities/Non-Governmental Organizations
- NGOs).
The author argued that the devastating effects of the HIV/AIDS pandemic
have transformed African communities to the extent that customary
legal norms may no longer be adequate to address all aspects of
the so-called "orphan problem", but also argued that existing
statutory laws are not adequate to address all problems of orphans,
including those related to property and inheritance. Therefore,
although some members of African communities may be dissatisfied
with customary norms, they may also reject a particular statutory
law because they are unfamiliar with its provisions, are uncertain
about how to apply it to their situation, believe that it would
not support a finding to their advantage, or fear that it would
subvert justice in their case.
Current study of the social protection aspect of children's property
and inheritance rights In this current desk study, the focus is
on the social protection aspect of children's property and inheritance
rights, i.e. the responsibility of every society to ensure children's
property and inheritance rights in order that they can achieve their
livelihoods. Many children, particularly orphaned and vulnerable
children (i.e. OVCs),1 do not have
sustainable livelihoods: they lack material resources such as food,
shelter, and bedding; they lack access to health and educational
services, psychosocial support, and income generating activities;
and they lack the capabilities, assets, and activities that would
ensure their living (see Mchomvu and Ijumba 2006). Essentially,
the livelihoods of OVCs are not sustainable because they are unable
to use and access resources within the wider community to meet their
immediate needs and are unable to cope with and recover from ongoing
stresses and shocks. Some OVCs, particularly those living in the
shadow of HIV/AIDS, are even less likely to have a sustainable livelihood.
They are compelled to provide for themselves with little or no parental
assistance and without adequate guardianship - often as household
heads - and they must do so while burdened with the stigma and discrimination
associated with HIV/AIDS.
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Notes
1. Vulnerable children are usually considered to be any children
who lack family support, are poor, are disabled, are in prison,
or who experience frequent changes in residence due to homelessness
or refugee status. In the context of the HIV/AIDS pandemic, children
are also made vulnerable by having a chronically ill parent or by
living in a household where at least one adult has died in the last
year. Orphans, who are a special category of vulnerable children,
are considered to be any children who lack one or both parents.
The literature refers to "single" orphans who have lost
one parent as opposed to "double" orphans who have lost
both parents. It also refers to "paternal" orphans who
have lost their father as opposed to "maternal" orphans
who have lost their mother. Moreover, the literature refers to several
types of orphans according to the following factors: cause of orphaning,
such as "war" orphans and "AIDS" orphans; support
systems, such as "foster-care" orphans; and place of residence,
such as "street" orphans" (Rose 2005: 912). In view
of the stark realities faced by many children in southern and eastern
Africa, this author argues that all children should be guaranteed
basic rights that aim to secure their well-being, protect their
interests, and ensure their ability to earn a current and future
livelihood (see also Devereux and Sabates-Wheeler, 2004; Drimie,
2006; Rensburg et al, 2005).
The most important
of these basic rights concerns property and inheritance. At the
same time, in view of the current inadequacies of customary norms
and the occasional resistance to statutory laws in the countries
of the region (e.g. as documented in the case of Grace in Kenya;
Rose, 2006: 31-2), this author also argues that the solution to
orphans' property and inheritance problems must be in seeking a
middle-ground between customary law and statutory law, whereby the
standards that protect children's rights should be maintained, and
the standards that inhibit or violate children's rights should be
reformed or eliminated. Several ideas about how this middle-ground
might be achieved through gradual processes of consultation and
innovative problem-solving within communities will be discussed
in this report.
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