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Desk
study on children's property & inheritance rights &
their livelihoods in the context of HIV & AIDS in Southern &
East Africa
Dr Laurel L. Rose, Food and Agriculture Organization (FAO)
September, 2006
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Abstract
This desk study focuses on legal and institutional aspects of children's
property and inheritance rights in Southern and East Africa. The
first section discusses violations of children's property
and inheritance rights and discusses how the spread of HIV/AIDS
has contributed to the violations. The second section assesses several
norms of customary law that aim to protect children's property
and inheritance rights as well as the current practices of customary
law that—in the context of the HIV/AIDS pandemic—serve
to complicate and limit children's ability to maintain their
rights. The third section reviews and assesses a selection of international
laws and national laws from the countries in the region that influence
children's property and inheritance rights, emphasizing succession
and land laws. Several gaps in national legislation and policy that
need to be addressed are identified. The fourth section reviews
several National Plans of Action (NPAs) for orphans and vulnerable
children1, identifying a number of
topics which should be addressed in all NPAs in order that they
are more comprehensive in their coverage of children's property
and inheritance rights. The fifth section discusses the effectiveness
of government structures in addressing children's property
and inheritance rights, emphasizing the institution of the public
trustee. The sixth section outlines and evaluates a number of stakeholder
initiatives that address children's property and inheritance
rights. The seventh section presents eight case studies of children
whose property and inheritance rights were violated. Each case study
includes a summary and an accompanying analysis of legal and policy
issues. The eighth section presents recommendations regarding both
preventive and corrective methods to protect children's property
and inheritance rights as well as recommendations regarding future
research and development priorities. The ninth section offers a
few concluding remarks.
The
Problem: Children's Property and Inheritance Rights Violations
According
to a report by UNAIDS, there are about 108 million orphans in the
world, of whom 13.4 million (12.4 per cent) are AIDS orphans. UNAIDS
speculates that by 2010, there will be 107 million orphans in the
world (almost no change from 2001), of whom a proportionately higher
twenty-five million will be AIDS orphans. This report also states
that in Africa alone, there are about thirty-four million orphans,
of whom about eleven million are AIDS orphans (nearly 80 per cent
of the world total). In some parts of Africa, one out of every three
children is an orphan (Understand the Crisis 2001; see also UNAIDS
Global Report 2006 and Unbelievable Stats 2002).
The spread of HIV/AIDS throughout Africa, having decimated the adult
population, has transformed the continent's orphan problem
from a short-term, sporadic phenomenon caused by war, famine, or
disease into a long-term, chronic problem that will likely persist
decades into the future. Moreover, the orphan problem has been exacerbated
by the fact that extended family support systems in Africa, which
once acted as social safety nets, absorbing and assuming care for
orphans according to customary practice, have become weaker in recent
years as a consequence of larger social, economic, and political
developments that have occurred as countries became more urbanized
and industrialized and more focused on nuclear families and individual
economic advancement (Rose 2005: 912-3; Seeley et al 1993). The
result of these interrelated developments is that many potential
guardians of orphans not only reject guardianship roles, but they
even compete for scarce land and property with the same orphans
for whom they customarily might have assumed caregiving roles. Ultimately,
the spread of HIV/AIDS, in a situation that lacks the old safeguards
which once served to protect vulnerable family members and that
also does not have modern support systems which are adequate to
fill the caregiving gap, has compelled many orphans to fend for
themselves (Christiansen nd; Hunter 2000: 681, 683; Rose 2005:912-3).
A number of recent studies of orphans in Southern
and East Africa (e.g., Drimie 2002b; Izumi 2006c, 2006d: Nyambedha
2001; and Rose 2005), where HIV/AIDS has had a devastating impact,
indicate that many orphans are not only compelled to support themselves,
but they often have to defend their property and inheritance rights
against usurpations by relatives, neighbors, and strangers. And
despite the fact that violations of orphans' property and
inheritance rights constitute an important economic as well as human
rights issue, researchers have thus far not adequately addressed
these violations. Indeed, most researchers have focused on orphans'
living condition or on the strategies to support them (e.g., Hunter
and Williamson 1997), mentioning orphans' property and inheritance
rights anecdotally, without accompanying data and analysis (e.g.,
Subbarao and Coury 2004: 19, 28, 29, 61).
In view of how little attention children's
property and inheritance rights have received, as well as how little
is known about violations of these rights, it is no wonder that
the governments of Southern and East Africa have not already fully
protected such rights within legislation. Nonetheless, just as lawmakers
have recently debated how to secure women's property and inheritance
rights within legislation (see Q &A nd: 1-2; Rose 2004), they
should debate what children's property and inheritance rights
should be and how these rights should be protected within legislation.
Importantly, they should specify how children's property and
inheritance rights should be monitored and how violations of these
rights should be sanctioned.
It is herein argued that children's property and inheritance
rights are violated when people deny them the possibility to benefit—either
in the present or in the future—from the property of their
parents or from the property that they have acquired through their
own labors. Those people who deny children their property and inheritance
rights commonly argue that customary law supports their own rights
to inherit and/or use the property of the children's parents.
They maintain that the rules of customary inheritance stipulate
that the property of deceased adults should be distributed within
the extended family, or they maintain that the rules of customary
inheritance require that adult guardians of children decide how
inherited property should be distributed or earned property should
be used.
In any case, it is not always easy to ascertain
when children's property and inheritance rights have been
violated because the members of extended families usually have rights
to the property of their deceased relatives, as stipulated by the
laws of the different countries within the region, and because the
guardians of orphans have the right to determine how the property
that the orphans inherited from their parents should be used to
provide for their needs, including for clothing, food, housing,
and education. The problem, as this desk study will reveal through
an analysis of various laws from select countries within the region
as well as through illustrative case studies, is that many members
of extended families confiscate the property of deceased relatives
to which they are not entitled by either customary or statutory
law and that many guardians/estate executors use for their own benefit
the property of deceased relatives which should be used for the
benefit of the orphaned children. The consequence of these property
confiscations and abuses, which are essentially "violations"
of orphans' human rights, is that thousands of orphans become
destitute and vulnerable to mistreatment, including forced labor
and prostitution.
Although the laws of several countries in Southern
and East Africa contain provisions that aim to protect children's
property and inheritance rights, the reality is that many children
are not able to protest violations of their rights due to inadequacies
of the laws (mostly the laws fail to specify fully children's
rights or the means to enforce their rights), to unresponsive authorities,
and to ineffective courts. In general, children are not in a good
position to use either customary law or statutory law to their advantage
because of barriers which they commonly encounter: information (they
are not fully aware of their rights), time (they are unable to pursue
their property claims before their deceased parents' property
is permanently alienated), status (they are of lower status and
power than their competitors—often their own guardians), youth
(they are not permitted by law to pursue their property claims on
their own), and cost (they are unable to meet the logistical and
legal costs of pursuing their property claims) (refer to Rose 2005:
929-30 on Rwanda).
In a recent publication about orphans and land-grabbing in Rwanda
(Rose 2005: 931), the author proposed that lawmakers should expand
the concept of "guardianship" and that they should empower
courts to grant "active legal capacity" to minors on
the basis of their mental maturity, their expressed need to be independent,
and their immediate interest in asserting land rights. In addition,
the author argued that lawmakers should reconsider the requirement
that orphans must obtain "consent" in order to be legally
emancipated from their guardians and that they should consider new
methods for extending "protection" to orphans, such
as by assigning advocates to orphans.
In this desk study, which is focused on the wider
problem of property-grabbing in the wider context of Southern and
East Africa, the author argues that the legislation and policy of
the countries in the region should guarantee orphaned children,
who have lost one or both parents and who are under the age of majority
as determined by the laws of their country, the following property
and inheritance rights: the right to own, acquire (through purchase,
gift, or inheritance), and dispose of tangible and intangible property,
including land, housing, money, livestock, and crops. The author
also argues that any national property and inheritance laws 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 its guaranteed rights to information, to
the protection of the law, to legal inheritance rights, and to effective
remedy.
In essence,
the argument is made 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.
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1. In a recent
publication, the author provided the following explanation of terms:
"In the African studies literature, writers commonly refer
to 'vulnerable children' and 'orphans'.
Vulnerable children are usually considered to be any children who
lack family support, are poor, are in prison, or experience frequent
changes in residence due to homelessness or refugee status. 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).
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