Property Grabbing and Africa’s Orphaned Generation: A Legal
Analysis of the Implications of the HIV/AIDS Pandemic for
Inheritance by Orphaned Children in Uganda, Kenya, Zambia
and Malawi
By Duncan McPherson
INTRODUCTION
Humanity has never experienced an orphan-crisis as severe as the one currently
unfolding in Sub-Saharan Africa, as a result of HIV/AIDS. 1 By 2002, according recent
estimates, some 30 million people in sub-Saharan Africa were living with HIV/AIDS,
with the incidence of HIV increasing in many countries. In 2002, some two million
adults died of HIV/AIDS in the region. Left behind were their children. In eastern and
southern African states—the areas hardest hit by HIV/AIDS—it is estimated that in the
coming years between 15 to 25 percent of children will have lost one or both parents due
to the pandemic.2
The orphan crisis in sub-Saharan Africa is just beginning. According to UNICEF,
As today’s young adults die in growing numbers, they will leave growing numbers
of orphaned children; by 2010, HIV/AIDS will have robbed an estimated 20 million
children under the age of 15 of one or both parents, nearly twice the number
orphaned in this age group in 2001.3
The largest increases will be in countries with high or growing HIV prevalence rates, but
even where HIV is brought under control, the number of orphans will continue to grow or
remain on a high plateau for several years, due to the long time between HIV infection
and death. For example, HIV prevalence in Uganda peaked in the late 1980s, but the
percentage of children orphaned by the disease has recently peaked and begun to
decline.4
Africa’s households have responded to the orphan crisis with great stoicism.
UNICEF has found that in “nearly every sub-Saharan country, extended families have
assumed responsibility for more than 90 per cent of orphaned children,” despite the great
economic strain this has caused most households.5 Although extended families are caring
for AIDS orphans, these children remain highly vulnerable in African societies.
Empirical studies suggest that orphans are less likely to receive schooling; suffer from
greater malnutrition; are more frequently forced into dangerous child labour; and, in the
case of girls especially, are at greater risk of sexual abuse, than children with parents.6
1
Stephen Lewis, comment at University of Toronto Faculty of Law, 19 January 2005.
United Nations Children's Fund (UNICEF), Africa’s Orphaned Generation, (New York: UNICEF, 2003)
at 11.
3
Ibid. at 10.
4
Ibid. See Uganda case study below at page 6 for precise figures.
5
Ibid, at 15.
6
See Ibid at chapter 3; The Joint United Nations Programme on HIV/AIDS (UNAIDS), the United Nations
Children's Fund (UNICEF), & the United States Agency for International Development (USAID), Children
on the Brink 2004: A Joint Report of New Orphan Estimates and a Framework for Action (New York:
2
Given that in many African countries, due to the lack of availability of the standard
antiretroviral therapies to prevent perinatal (mother to child) transmission, perinatal
infection, with 25 to 45 percent of babies born to HIV-positive mothers becoming
infected. Thus, a significant number of children orphaned by AIDS will themselves die
from the disease.7
This paper examines a particular manifestation of the vulnerability of African
children orphaned due to AIDS: “property grabbing” as it is referred to in Africa.
Property grabbing is the dispossession of orphans and widowed parents (predominantly
mothers) by relatives and others. The underlying premise of this paper is that orphans
should not be left destitute and so should continue to have access, through inheritance or
from surviving parents, to the household property on which their livelihoods depend.
In the academic literature, AIDS orphans are defined as those under the age of 18
that have lost one or both parents to the disease. Maternal orphans have lost their mother,
paternal orphans, their father, and double orphans have lost both mother and father.8
Having one surviving parent seems like a far less vulnerable scenario than having lost
both. Unfortunately, existing research on orphans tends not to distinguish between these
different categories and so often this paper will refers to orphans generally. Where
possible, nuances in the treatment of different types of orphans, including boys vs. girls,
were captured. Sadly, all orphans are vulnerable to property grabbing. Double orphans
have no parents to defend their inheritance rights; paternal orphans do not fare much
better if the father has died, because dispossession of widows and their children is
widespread, due to patrilineal inheritance customs in much of sub-Saharan Africa.9
Although widowers are less likely to be victims of property grabbing,10 they frequently
abandon their children, rendering many maternal orphans de facto ‘double orphans’.11
The objectives of this paper are threefold. The first objective is to describe the
extent of property grabbing, in particular where the phenomenon appears to be
exacerbated by the AIDS pandemic. Four illustrative case studies (Uganda, Kenya,
Zambia and Malawi) are presented, explaining the factors underlying property grabbing
and the legal frameworks that allow such practices to take place. These countries were
selected in part by virtue of the availability of field research, but also because they
demonstrate interesting variation in terms of their relevant legislation, population
densities, and reactions to the AIDS pandemic. The second objective is to argue that a
policy imperative exists for governments and donors to mitigate the destitution of widows
and orphans created by property. Not only is this necessary to preserve equity, but to
help slow the spread of AIDS and keep the peace in states prone to violent confrontation.
UNICEF, 2004); Kalanidhi Subbarao and Diane Coury, Reaching Out to Africa’s Orphans: A Framework
for Public Action (Washington D.C.: The World Bank, 2004) at chapter 2; Human Rights Watch, Policy
Paralysis: A Call For Action on Hiv/Aids-Related Human Rights Abuses Against Women and Girls in
Africa (New York: Human Rights Watch, 2003), online: www.hrw.org .
7
UNAIDS, UNICEF and USAID, Children on the Brink, supra at 14.
8
Ibid. at 35-36.
9
Birte Scholz and Mayra Gomez, Bringing Equality Home—Promoting and Protecting the Inheritance
Rights of Women: A Survey of Law and Practice in Sub-Saharan Africa (Geneva: Centre on Housing
Rights and Evictions, 2004).
10
Ibid.
11
UNAIDS, UNICEF and USAID, Children on the Brink, supra at 11.
The third objective is to make practical suggestions for steps to mitigate the extent of
property grabbing. Emphasis is placed on overcoming the stigma that attaches to families
affected by HIV/AIDS, since this often emboldens relatives to take from widows and
children; a call for local aid programs to help orphans stay on their parent’s property,
since possession appears to be nine-tenths of the law; and proposals to assist parents with
AIDS to engage in succession planning, to reduce the risk that their children will be
victims of property grabbing.
Uganda, Kenya, Zambia and Malawi are have low-income, largely subsistence
agriculture economies. The existence of poor agricultural economies has important
implications for the discussion that follows. First, land law features prominently in the
case studies because land is the crucial asset for most households. Second,
recommendations for policy reform must recognize the extremely limited judicial and
bureaucratic capacity that such states have at their disposal, which have been further
depleted by the pandemic. While property grabbing may be discouraged through national
legislative reform and court-action, for many orphans, the only realistic defense against
property grabbing will be within the norms of acceptable behaviour that govern their
local communities. Efforts by NGOs, donors, and governments should focus on shaping
these norms, to ensure that dispossessing orphans is not acceptable, no matter how their
parent(s) died.
UGANDA
Uganda is one of the few countries in Africa in which, due to quick and decisive
government action, the incidence of new HIV infections is believed to be declining.12
Reflecting the long-term effects of an epidemic that began 25 years ago, Uganda has seen
the proportion of its children that are orphaned increase from an estimated 10 percent in
1990 to 14 percent in 2003. By 2010 the percentage of orphaned Ugandan children is
predicted to decline to 11 percent.13 The absolute number of orphans is expected to stay
constant at around 2 million between now and 201014 in a country with a population of
25 million in 2002.15 Household competition for land is a serious problem in Uganda, as
soil fertility has been dropping along with farm productivity, while poverty and food
insecurity have risen.16
It appears that formal Ugandan law offers some protection to orphans and widows
from the risk of dispossession of property. S. 31(2) of the Ugandan Constitution requires
Parliament to make “appropriate laws for the protection of the rights of widows and
widowers to inherit the property of their deceased spouses and to enjoy parental rights
over their children.” Furthermore, s. 34(4) indicates that “children are entitled to be
Klaus Deininger, Marito Garcia & K. Subbarao, “AIDS-Induced Orphanhood as a Systemic Shock:
Magnitude, Impact, and Program Interventions in Africa” (2003) 31 World Development 1201 at 1203.
13
The Joint United Nations Programme on HIV/AIDS (UNAIDS), the United Nations Children's Fund
(UNICEF), & the United States Agency for International Development (USAID), Children on the Brink
2004: A Joint Report of New Orphan Estimates and a Framework for Action, supra at 30.
14
Ibid.
15
United Nations Children's Fund (UNICEF), Africa’s Orphaned Generation, supra at 50.
16
John Pender, et. al., “Development Pathways and Land Management in Uganda”, (2004) 32 World
Development 767.
12
protected from social or economic exploitation…”17 Unfortunately, statutory legislation
appears to set the level of protection for women and children’s rights considerably below
the bar established by ss. 31 and 34 of the Constitution.
The overwhelming majority of Ugandans die intestate.18 The Succession Act of
1972 appears to uphold the rights of widows and children to inherit property with or
without a written will.19 These entitlements are limited to usufructary rights only, which
expire when the wife remarries or when the children marry or reach the age of majority. 20
Moreover, the Act allows conveying of land—the central asset for most households in
Uganda21—to be predominantly (and lawfully according to s. 237(3) of the
Constitution22) regulated under customary tenure systems.23
Systems of customary law vary from community to community, but their overall
thrust with respect to inheritance is patrilineal descent, particularly in rural areas, with
land being passed on to (especially eldest) sons but not daughters, on the belief that girl
children will marry and be provided for by their husbands.24 Moreover, deeply
entrenched patriarchal traditions and values deny widows any right to own land beyond
limited usufructary rights and if a woman separates from her husband, she loses all rights
to matrimonial land, irrespective of her contributions to its improvement.25 In practice,
customary norms regarding land often trump the high standards of protection for
women’s and children’s rights suggested by the Constitution.26
Evidence exists that outright grabbing of property from orphans and widows is a
serious problem in Uganda. In 2001, Gilborn et al. conducted a baseline survey of a large
number of AIDS-affected households, including potential guardians for orphans, in the
Luwero and Tororo districts of Uganda. They found that almost all HIV-positive parents
(91.5 percent) expressed worries about their children’s future. The risk of children’s
property being grabbed after parental death was the third most frequently mentioned
17
The Constitution of the Republic of Uganda, 1995, online: www.parliament.go.ug/Constitute.htm.
Horizons, Makerere University Department of Sociology, Plan/Uganda. Succession Planning in Uganda:
Early Outreach for AIDS-affected Children and their Families (Washington, DC: Population Council,
2004) at 23, which found that 9 in 10 adults in two study districts of Uganda had no written wills. See also,
Sophie Witter, Breaking the Silence: Memory Books and Succession Planning—The Experience of
NACWOLA and Save the Children UK in Uganda (London: Save the Children, 2004) at 27.
19
Laelia Zoe Gilborn, et. al. Making a Difference for Children Affected by AIDS: Baseline Findings from
Operations Research in Uganda (Washington, DC: Population Council, 2001) at 13.
20
Margaret Rugadya, Esther Obaikol & Herbert Kamusiime, Gender and the Land Reform Process In
Uganda: Assessing Gains And Losses For Women In Uganda (Kampala: Associates for Development,
2004) at 16, online: www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_east.htm.
21
Herbert Kamusiime, Esther Obaikol, & Margaret Rugadya, Integrating HIV/AIDS in the Land Reform
Process (Kampala: Associates for Development, 2004) at 2, online:
www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_east.htm
22
The Constitution of the Republic of Uganda, supra.
23
Richard S. Strickland, To Have and To Hold: Women’s Property and Inheritance Rights in the Context of
HIV-AIDS in Sub-Saharan Africa (Washington D.C.: International Centre for Research on Women, 2004)
at 66.
24
Horizons, Makerere University Department of Sociology, Plan/Uganda, supra at 25.
25
Rugadya, Obaikol & Kamusiime, supra at 2.
26
Ibid. at 9.
18
among parental concerns. The only concerns that were mentioned more frequently were
worries about children’s access to education, followed by the availability of food and
basic necessities of life.27 Almost half of adult respondents reported property grabbing
as a problem in their communities, with women and orphans particularly vulnerable.
Paternal relatives were believed by respondents to be the most likely to steal inherited
property, but fears were also expressed that other community members and maternal
relatives would also attempt to grab property.28 Among widows surveyed (n = 204), 29
percent indicated that property had been taken from them when their husbands had died.
A further 21 percent of older orphans (n = 105, ages 13-18 years) reported that they had
experienced property grabbing.29
Several other studies have identified property grabbing as a threat to the wellbeing
of orphans. Wakhweya et al. (2002) found that single orphans predominate in Uganda,
with most orphans living with a surviving (generally female) parent after the first parent
dies. 30 Of the widowed parents surveyed, 75 percent found it “very difficult” to support
their families and 22 percent of female widows reported experiences of property grabbing
or mismanagement of their property by relatives after their spouse had died.31 Anecdotal
evidence of extensive property grabbing in Arua district (in the country’s north-west
corner), particularly against widows with daughters, is cited by Witter.32
Similarly, Kamusiime et al. cite interviews with community-members in the
Iganga and Rakai districts (in the south-east and south west of Uganda, respectively),
indicating that clansmen or neighbours often expropriate property from families affected
from AIDS. The authors underscore that households affected by AIDS are particularly
vulnerable to this risk because their lands typically remain comparatively underutilized,
or even fallow, for considerable periods of time as adult family members are
progressively debilitated by the disease. But property grabbing is not unique to AIDS
affected families, threatening any household made weak by the illness or death of the
patriarch.33
KENYA
Intense conflict over land has been a central theme of modern Kenyan history.
African resistance to expropriation by the colonial government of large tracts of land for
27
Laelia Zoe Gilborn, et al., supra at 12; AIDS affected-parents surveyed expressed different concerns
regarding their children’s future in the following percentages: Access to Education, 56.9 percent; Access to
food/clothes/survival, 53.0 percent; Property grabbing/exploitation, 29.5 percent; Lack of adult guardian,
23.8 percent; Lack of physical shelter, 20.1 percent; Child’s poor health, 14.7 percent; Child unable to earn
money, 9.6 percent; Child’s emotional suffering, 9.6 percent.
28
Ibid. at 12.
29
Ibid. at 1.
30
Angela Wakhweya, et al. Situation Analysis of Orphans in Uganda: Orphans and Their Households—
Caring for the Future, Today (Kampala: Government of Uganda Ministry of Gender, Labour, and Social
Development & the Uganda AIDS Commission, 2002).
31
Ibid
32
Sophie Witter, supra at 31
33
Herbert Kamusiime, Esther Obaikol, & Margaret Rugadya, supra at 9-12.
White settlers was the driving force behind Kenya’s war of independence in the 1950s.34
Yet the landlessness and dislocation originally wrought on many African households by
White settlement has not been overcome since Kenyan independence in 1963.35 The
factors behind continuing land insecurity are complex, but include the concentration of
land in the hands of Black elites following the demise of the settler economy and rapid
post-colonial population growth (from 13.6 million in 1975 to 31.5 million in 2002).36
Today, reports of ‘land-grabbing’ are daily occurrences in Kenyan newspapers,37 and
over the last decade political violence rooted in competition for land has broken out
periodically in several of the densely populated parts of the country.38
Due to the intense competition for land, dispossession of women and children,
especially girls has been a serious problem in Kenya before the arrival of AIDS. 39 The
epidemic is exacerbating the vulnerability of land for these traditionally vulnerable
groups. The incidence of HIV infection amongst Kenyan adults from 15-49 years of age
is 15 percent, relatively high for East Africa. By 2010, 14 percent of Kenyan children are
expected to be orphaned; AIDS is expected to lie behind the orphaning of 73 percent of
these 2 million children.40 Kenya has been slow to address its AIDS crisis. Fortunately, a
new government elected in 2002 has made fighting AIDS a priority; 41 however, HIVinfection remains a source of stigma and shame at the local level in most Kenyan
communities.42 Once the male head of a household dies, neither formal Kenyan laws nor
customary law offer much protection for women and children, particularly girls, wishing
to retain rights to the property upon which they depend.
Unlike the governments of many other African nations, both colonial and postindependence Kenyan governments have made broad attempts to demarcate household
land holdings across the country and provide legally-intelligible title deeds to occupants,
with the belief that privatizing informal or communal landholdings would produce
productive, capitalistic farmers.43 In theory, this titling system could help protect the
inheritances of orphans and widows by allowing testators that so desired to provide their
chosen heirs with legal deeds to land upon succession. In practice, this has not been the
case. Title deeds are often ignored by land-grabbers because they are superseded by
34
Wambui Mwangi, Wagaki Kiai, & Eric Bosire The impact of HIV/AIDS on the land issue in Kenya
(Unpublished report prepared for the United Nations Food and Agriculture Organization, March 2002) at
13, online: www.sarpn.org.za .
35
Kenya Land Alliance, The National Land Policy in Kenya: Addressing Historical Injustices (Nairobi:
Kenya Land Alliance, 2004), online:
http://www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_east.htm#Kenya .
36
Michael Aliber, et. al., The Impact Of Hiv/Aids On Land Rights: Case Studies from Kenya (Cape Town:
Human Sciences Research Council, 2004) at 10-13, online: www.hsrcpublishers.ac.za .
37
Pauline E. Peters, “Inequality and Social Conflict Over Land in Africa” (2004) 4 Journal of Agrarian
Change 269 at 300.
38
Kenya Land Alliance, supra at 9.
39
Human Rights Watch, Double Standards: Women’s Property Rights Violations In Kenya (New York:
Human Rights Watch, 2003) at 6, online: www.hrw.org.
40
UNICEF, Africa’s Orphaned Generation, supra at 50-51.
41
UNAIDS, Accelerating Action Against AIDS in Africa, (Geneva: UNAIDS, 2003) at 26.
42
Michael Aliber, et. al., supra at 2; Human Rights Watch, Double Standard, supra at 1.
43
Michael Aliber, et. al., supra at 12-13.
customary land allocations and rules, simply out-of-date, or too expensive for households
to officially register and give legal effect.44
Kenya’s Law of Succession Act of 1981 attempted to codify succession rights and
prima facie does offer women and children a measure of protection. In the case of
intestate succession, for example, the Act specifies that female and male children should
inherit from their parents equally. Widows are entitled to an absolute interest in the
deceased spouse’s personal and household effects and usufruct rights to the rest of the
estate until death or remarriage, at which point the estate passes to the children. The law
is compromised, however, by a number of de jure exceptions. For example, the Act does
not apply to Muslims who constitute about 30 percent of the population. The Act also
exempts agricultural land, crops, and livestock, in other words, the most valuable assets
to Kenya’s predominantly rural communities, in certain “gazetted” districts from the
intestacy rules. In these districts, designated in a legal notice in the official government
gazette, customary law applies.45 Furthermore, most women and children are not aware
of their rights under the Succession Act or have no means of vindicating them in court.46
In reality, succession rights for the vast majority of Kenyans are governed by
customary norms, predominantly based on notions of patrilineal inheritance. While
variations exist from community to community, the result is that men are considered the
sole owners of household land and other assets, regardless of the contribution of their
wives; sons inherit from their fathers while daughters generally do not; if they are
fortunate, widows may maintain access to land upon the passing of their husbands, but
only to hold it in trust for their sons; and women with no children or only daughters are
not likely to inherit from their husbands.47
In parts of Kenya, indeed in many parts of Sub-Saharan Africa, the only way for a
widow to retain her household’s property is to be ‘inherited’, essentially remarried, to one
of her husband’s male relatives. Such ‘wife inheritance’ represents a clearly coercive,
albeit traditional, way of providing widowed households a modicum of economic and
social protection. The practice is falling out of use in some communities due to fears that
widows will infect their new husbands with HIV.48
Given these patriarchal succession norms, Human Rights Watch has compiled
evidence from across Kenya of widespread disinheritance and destitution for women and
their children, especially girls, upon a separation from or the death of the male head of
household.49 Human Rights Watch has also found that double orphans in Kenya are
vulnerable to property-grabbers. This occurs partly because ostensible ‘guardians’ have
44
Ibid. at 15 & 117-121.
Human Rights Watch, Double Standard, supra at 32-33. The following districts are exempted: West
Pokot, Turkana, Samburu, Isiolo, Mandera, Wajir, Garissa, Tana River, Lamu, Kajiado, and Narok—all
districts predominantly inhabited by pastoralist communities; Wambui Mwangi, Wagaki Kiai, & Eric
Bosire, supra at 22.
46
Ibid. at 35; Human Rights Watch, In The Shadow Of Death: HIV/AIDS and Children’s Rights in Kenya
(New York: Human Rights Watch, 2001) at 18-19, online: www.hrw.org.
47
Human Rights Watch, Double Standard, supra at 11.
48
Ibid. at 14; Wambui Mwangi, Wagaki Kiai, & Eric Bosire, supra at 7 & 51.
49
Human Rights Watch, Double Standard, supra.
45
taken custody of children in order to expropriate their inheritances, not to give proper
care. In several cases, Human Rights Watch encountered relatives and guardians of children
orphaned by AIDS who wished to safeguard their property, but ran into extensive legal
difficulties. Because they could not produce birth certificates for the orphans and because of
the corruption and incompetence of administrative, judicial and traditional authorities, many
well-meaning guardians have been unable to assume trusteeship over the inheritances of
orphans too young to claim their proprietary rights themselves. This has left orphans’
legacies vulnerable to property grabbing.50
Similar results were found by Mwangi et al. in their study of AIDS and land rights
in Bondo and Nyeri, two districts in the west and centre of Kenya that are severely
affected by AIDS. The authors found that children were the most affected when it came
to the impact of HIV/AIDS on land. Most respondents were aware of incidents in which
relatives (typically men) had dispossessed orphans of their land and property under the
pretext of acting as guardians. These situations were made worse by the lack of a legal
framework to determine who is best suited to be guardian for the child in question.51
Moreover, the inability of minors to be signatories on title deeds or otherwise custodians
of property, left orphans vulnerable to property grabbing unless a relative was willing and
able to seek from local authorities recognition as a child’s trustee and to faithfully fulfill
this role; “their parents are [the children’s source of] security, and with their demise,
insecurity overshadows their entire existence.” 52
Mwangi et al. further point out that even if orphans are able to retain their
property, it will most likely be vested in the male children; daughters are left dependent
on the goodwill of their brothers and often carry the heaviest burden of providing for
what remains of their families after AIDS has killed their parents.53 Female-headed
households have been hit hard by the interaction of AIDS and property rights due to the
stigma attached to disease:
When a married man dies of AIDS or gets infected, the woman is often [falsely]
accused of having infected her husband. Widows… are often condemned as the ones
who have infected their husbands and are subsequently under massive pressure [from
relatives] to leave their marital homes.54
Unmarried female-headed households that comprise roughly half of the households in the
rural areas studied by Mwangi et al. were ordinarily apportioned land with user rights in
order to build a house and to provide for themselves; sons in such households could
inherit land from their grandfathers. However, according to the authors:
in the event that a single mother died of HIV/AIDS or related causes, and left
young orphans, the inheritance for her children was at great risk due to the single
50
Human Rights Watch, In The Shadow Of Death, supra at 17-21.
Wambui Mwangi, Wagaki Kiai, & Eric Bosire, supra at 49.
52
Ibid.
53
Ibid.
54
Ibid. at 46.
51
mother’s ‘questionable’ position in her community and the stigma associated with
HIV/AIDS.55
In depth research in three districts: Embu, Thika (both in central Kenya), and
Bondo, by Aliber et al., paints a somewhat different picture. In Embu district, for
example, some anecdotal evidence of orphans being deprived of their inheritances was
found,56 but so too was encouraging evidence that widows were generally secure in their
land tenure and daughters were able to inherit from their parents. 57 Interviews in Bondo
district suggested that tenure insecurity is rife, but is not rooted in discrimination on the
basis of gender or HIV-status: “many of the targets of land grabbing are men, and
households not affected by HIV/AIDS appear to be equally likely to be threatened with
tenure loss.”58 Aliber et al. recognize that their methodology, using semi-structured
interviews on the experiences of individual households may have made evidence of AIDS
decreasing tenure security difficult to detect, since the disease is not easily discussed in
many parts of Kenya. Nonetheless, the authors prudently warn: “that one should be wary
of ‘over-privileging’ AIDS-affected households to special protective measures, especially
given that tenure insecurity is experienced by many households irrespective of their
particular exposure to AIDS.”59
With the election of a new government in 2002, many had hoped that Kenya
would strengthen protection for all its vulnerable citizens, especially with respect to
property rights. Kenya’s current Constitution outlaws discrimination on the basis of sex,60
but exemptions largely eviscerate these provisions. Article 82(4) permits discrimination
“with respect to adoption, marriage, divorce, and burial, devolution of property on death
or other matters of personal law.” The new government under President Kibaki has
promised a new Constitution, a draft of which was released for Parliamentary debate in
2002. The draft includes a revamped Bill of Rights that would, according to Human
Rights Watch, “be an enormous improvement over the current constitution in terms of
women’s property rights.”61 Unfortunately, the adoption of a new Constitution has
become mired in political dissent, with President Kibaki seeking more power for the
Presidency than the drafting Constitutional Review Committee had intended. It is not
clear if the any constitutional reforms will ever be enacted.62 Parallel promises had been
55
Ibid. at 48.
Michael Aliber, et. al., supra at 54 .
57
Ibid. at 52-53.
58
Ibid. at 145.
59
Ibid. at x.
60
Human Rights Watch, Double Standard, supra at 32: “Article 70 of the Constitution provides that all
Kenyans are entitled to fundamental rights and freedoms, whatever their sex. Article 82(1) prohibits any
law that is “discriminatory either of itself or in its effect” and article 82(3) defines discrimination to include
discrimination on the basis of sex.”
61
Ibid. at 8.
62
Dennis Onyango “Nagging Questions” The East African Standard (Nairobi) (5 March 2005), online:
allafrica.com
56
made by the new government to reform Kenya’s customary land laws; 63 however, public
consultation on a new policy have yet to begin.64
ZAMBIA
Zambia’s colonial period began in earnest in the late 1800s when Cecil Rhodes
annexed the territory to the British Empire (not so modestly) as Northern Rhodesia. In
1964, Zambia would ultimately gain independence in a relatively peaceful manner, and
prospered for a short time due to profits from its wealthy copper mines. The copper
industry has become sclerotic as a result of declining terms-of-trade, a program of
nationalization in the 1970s that slowed capital invest and botched privatizations in the
1990s that have brought few benefits to the many Zambians that had come to rely on
mining jobs.65 Today the mainstay of the economy is agriculture, the sector that employs
some 75 percent of labour in Zambia, predominantly in small-scale production.66
Somewhat paradoxically, and worryingly for an economy that has reverted to a largely
agricultural base, Zambia nonetheless has a sizeable urban population (estimated in 2002
at 40 percent of the total population of 10.7 million).67 This comparatively high degree
of urbanization reflects Zambia’s historic role as a supplier of labour to mines and
industries at home and throughout the Southern African region.68
Historically, Zambia has relied on relatively large-scale commercial farming to
feed its urban workforce. Commercial farms (the progeny of pre-independence settler
estates) are predominantly concentrated on State Land, for which tenure takes the form of
long-term (99 year) leases from the President of Zambia. These leasehold interests are
freely tradable on land markets. Only 6 percent of Zambia is State Land, representing the
best land in terms of agronomic potential and ease of access to transportation (rail and
road) networks. The remainder of the country is deemed Customary Land, tenure of
which is regulated by local customary norms, generally under the governance of
community chiefs;69 typically, chiefs make decisions regarding allocation of spare land;
rights are usufructary, vested in male community-members and inheritable patrilineally.70
As part of the donor-driven Structural Adjustment Program undertaken by Zambia
in the 1990s, Parliament passed the Land Act 1995. The Act continues to recognize
63
Kenya Land Alliance, supra at 4.
“Land Policy Overdue” The National (Nairobi) (12 March 2005) online: allafrica.com.
65
Birte Scholz and Mayra Gomez, Bringing Equality Home—Promoting and Protecting the Inheritance
Rights of Women: A Survey of Law and Practice in Sub-Saharan Africa, supra at 143. See also, Guy Scott,
“Zambia: Structural Adjustment, Rural Livelihoods and Sustainable Development” (2002) 19
Development Southern Africa 405.
66
Thomson Kalinda, Glenn Filson & James Shute, “Resources, Household Decision Making and
Organisation of Labour in Food Production Among Small-Scale Farmers in southern Zambia” (2000) 17
Development Southern Africa 165, at 165.
67
UNICEF, Africa’s Orphaned Generation, supra at 50.
68
Guy Scott, supra at 406.
69
Martin Adams, Land Tenure Policy and Practice in Zambia: Issues Relating to the Development of the
Agricultural Sector (Oxford: Mokoro Ltd, 2003) at 3-5, online: www.odi.org.uk/Food-SecurityForum/docs/Land1.pdf .
70
Scholz and Gomez, supra 153; Kalinda, Filson & Shute, supra at 168.
64
customary tenure, but in a bid to create more privatized land holdings, allows any person
who holds land under customary tenure to convert their plot into State Land secured by
way of long-term lease.71 Traditional governance structures remain strong in rural
Zambia,72 and so in order to assuage chiefs’ concerns regarding the conversion of
customary rights into leasehold rights, the Lands Act 1995 provides that the state ‘shall
not alienate any land situated in a district or an area where land is held under customary
tenure without taking into consideration the local customary law on land tenure [and]
without consulting the chief and the local authority in the area in which the land to be
alienated is situated”.73 Notwithstanding this statutory safeguard, the Land Act 1995 has
been critiqued as opening a door for corrupt government officials—at their own behest or
as agents for others—to expropriate land from customary users.74
Despite the conversion provision, the customary land tenure system still predominates in
Zambia. This likely reflects low awareness in rural areas of the Land Act 1995, but also
the relative abundance of arable land in Zambia obviating the need (at lease for healthy,
male-headed) households to acquire leasehold title to secure their land holdings against
encroachment.75
Yet despite Zambia’s comparatively rich endowment of land (and fresh water),
the country is gripped by poverty. Since the collapse of the copper industry in the late
1970s and 1980s and moribund attempts to revive it through privatization, the people of
Zambia have been struggling to survive economically. Eighty percent of the Zambians
now live in chronic poverty. The per capita external debt amounts to US$605.76 The
annual per capita national income: US$330.77
In a terribly vicious cycle, existing poverty has abetted the rapid spread of HIV
infection in Zambia (for instance, by forcing girls into prostitution, where they are likely
to be infected), while the toll of AIDS has driven the country further into misery. 78 The
adult (15-49 years) prevalence rate of infection was estimated (in 2001) at 21.5 percent.
Zambia’s orphan population is expected to grow to over one million by 2010, with AIDS
responsible in 77 percent of cases.79
The interaction of AIDS and poverty appears to be rendering property grabbing a
ubiquitous phenomenon in Zambia. Adams writes that historically members of Zambia’s
tribes enjoyed a ‘right of avail’: they could demand some land from their chief for
subsidence purposes and the chief could not refuse—the ultimate traditional social safety71
Ibid. at 9.
Guy Scott, supra at 411.
73
Cited in Martin Adams, supra at 10.
74
Kalinda, Filson & Shute, supra at 169; Guy Scott, supra at 411.
75
Kalinda, Filson & Shute, supra at 168. Tenure insecurity is a very serious problem, however, in periurban areas where unemployed miners have set up squatter settlements; see Martin Adams, supra at 19.
76
Scholz and Gomez, supra 155.
77
UNICEF, Africa’s Orphaned Generation, supra at 50.
78
Human Rights Watch, Suffering In Silence: The Links between Human Rights Abuses and HIV
Transmission to Girls in Zambia (New York: Human Rights Watch, 2002), at 15-16, online: www.hrw.org
.
79
UNICEF, Africa’s Orphaned Generation, supra at 50-51.
72
net. The right of avail has, however, been seriously eroded due to deepening poverty and
is not available to the many urban Zambian poor that live disconnected from their
traditional communities.80 Similarly, while customary land allocation has always
disadvantaged women by denying them inheritance rights, traditional norms always
provided a modicum of care for widows and orphans. In the era of AIDS this is
changing.
Scholz and Gomez conducted in-depth interviews in Zambia on women’s
inheritance rights and found that whilst:
Customary systems used to ensure that the heir of the estate would protect
and provide for the widow until she remarried or died. Nowadays, this
responsibility is rarely, if ever, fulfilled. Rather, the majority of heirs
[presumably adult sons or brothers of the deceased husband] simply take
what they can and run. Many Zambians interviewed…blamed this on
incessant poverty, saying that people are so desperate to gain any material
goods, they will go to any extreme.81
According to Scholz and Gomez, widows rarely resist either because they are conditioned
to believe that they deserve no property or fear they will be accused of being witches if
they assert their claims.82 Orphans also appear to be vulnerable to dispossession. For
instance one group of respondents on the outskirts of Kitwe, a large city in the copperbelt, explained to Scholz and Gomez that: “there are so many orphans here, child-headed
households. There is no orphanage. When parents die, their relatives take everything.
They are left with nothing.”83 Statistics suggest the phenomenon is not unique to Kitwe:
AIDS is thought to be responsible for a doubling, between 1991 and 1999, of the number
of street children in the Zambian capital, Lusaka.84 Scholz and Gomez heard other
evidence of children being coercively taken from widows, so that relatives could benefit
from property to which the children are entitled under the Intestate Succession Act
(discussed below).85
In 2003, the U.S. NGO Family Health International conducted interviews and focus
groups across Zambia to assess the impacts of HIV/AIDS on orphaned children and their
guardians. The key conclusions reached included that: many extended families were
stretched to their limits trying to respond to the orphans created by the pandemic;86
orphaned children saw lost opportunities for education as the key impact of losing a
80
Martin Adams, supra at 19.
Scholz and Gomez, supra 155.
82
Ibid. at 153-154.
83
Ibid. at 155. Children may be effectively dispossessed even before their parents die, forced on the streets
because their families cannot afford to keep them; see Ibid. at viii
84
Human Rights Watch, Policy Paralysis: A Call For Action on Hiv/Aids-Related Human Rights Abuses
Against Women and Girls in Africa, supra, at 19.
85
Scholz and Gomez, supra 153
86
Family Health International, Voices from the Communities: the Impact of HIV/AIDS on Orphaned
Children and their Guardians (Washington, D.C.: Family Health International, 2003) at 3, online:
www.fhi.org/en/index.htm .
81
parent or parents;87 and child heads of households got virtually no support from
relatives.88 With respect to property grabbing, the study reported that prior traditions
ensuring some protection for widows and their children have broken down. With the
HIV epidemic and increasing poverty, families are more resistant to taking on the
responsibility of care and protection for widows and children, but continue to want their
property:
Hence, it seems that a habit of property grabbing is beginning to occur with
greater frequency. Most of the participants in the study referred to relatives
taking the belongings of their deceased family members. Widows and child
heads of household, in particular, were able to link the property grabbing with
a result in decreased income levels.
Widows and child heads of household face particular problems when relatives
take houses from them. The few resources that could be used for education,
food and health care, is diverted to providing shelter. In addition to physical
hardships, these widows and children must deal emotionally with an acute
sense of abandonment and…rejection by their families. Child and adult
heads of households who were left houses, expressed gratitude for having one
less problem to consume their survival efforts.89
The report further notes that very little succession planning occurs amongst HIVaffected families in Zambia (in part due to continued taboos around the disease and willmaking), leaving children vulnerable to exploitation; many children interviewed spoke of
having houses and other material goods taken away from them after their parents died.90
A study in Zambia by Human Rights Watch also found widespread evidence of
widows and children being left destitute by relatives seizing their household possessions,
comparable to findings by Scholz and Gomez, as well as the Family Health International
report.91 While poverty appears to be at the root of property grabbing, Zambia’s laws and
court system create an extremely permissive environment for such abuse.
As Human Rights Watch points out, Zambia’s Marriage Act sets out
nondiscriminatory rules for property division and inheritance between husband and wife;
the difficulty is that the vast majority of Zambians (both urban and rural) are not married
under the Act, but under customary laws which typically provide no protection for female
rights to property and inheritance.92
While very few Zambians actually write wills,93 those that do are subject to the
Wills and Administration of Testate Estates Act of 1989. Part 1, s.3 of the Act allows a
87
Ibid. at 6.
Ibid. at 11.
89
Ibid. at 7.
90
Ibid. at 18.
91
Human Rights Watch, Suffering In Silence, supra at 60.
92
Ibid. at 55.
93
Family Health International, supra at 11.
88
court to intervene if a will makes no “reasonable provisions” for the maintenance of a
dependant—defined as the “wife, husband, child or parent” of the deceased. The law is
quite inclusive, defining wives to cover the multiple spouses that make up polygamous
unions (a common phenomenon in Zambia) and children to include those born out of
wedlock. Part VII, s.65(1) and (2) make it an offence for any unauthorized person to
deprive another of property they are entitled to under the Act, on pain of fine or
imprisonment, providing useful statutory grounds for combating property grabbing in the
courts. The Act is undermined, however, by a major exemption: it does not apply to land
held under customary law.94
Prima facie, the Intestate Succession Act of 1989 provides significant protection to
the dependents’—including multiple wives and children born out of wedlock—of
deceased who have not written wills. The Act requires that the intestate’s estate be
divided as follows: twenty percent to the surviving spouse(s);95 fifty percent to the
deceased’s children in such “proportions as are commensurate with a child’s age or
educational needs or both;”96 twenty percent to the parents of the deceased (divided
equally between mother and father, if both are alive);97 and ten percent to any other of the
deceased’s dependents, in equal shares.98 Other important protections include s. 9 of the
Act which provides that any house in an estate shall devolve to the deceased’s spouse and
their children; when there is more than one widow or child, all are to hold the house as
tenants in common. Under ss. 32-35, when minors are the sole beneficiaries of an estate,
they require a court appointed guardian to ensure that their interests are protected.
Guardians may not benefit from this position, and if they deprive minors of property
inherited under the Act are liable to fine or imprisonment.99
That the Intestate Succession Act has failed to deter a surge of property grabbing
reflects weaknesses in the law itself, but also its incongruence with Zambian customary
beliefs and the law’s lax application by the courts. The Act features two gapping
loopholes, applying neither to land held under customary tenure nor ‘family property’,
defined loosely as movable and immovable property that belongs collectively to the
family.100 Yet according to Zambia’s leading NGO on gendered legal issues—Women
and Law Southern Africa:
The [Intestate Succession Act] is weakened first and foremost by the lack of
conviction among women themselves that they have a legal right to their
94
Scholz and Gomez, supra at 150.
Part II, Sect. 5(a) of the Intestate Succession Act cited in Ibid, at 147: “If there is more than one widow,
the 20 percent is shared among them, in proportion to the duration of their respective marriages to the
deceased. When dividing the property among multiple widows, a number of other factors may be taken into
account, including each widow’s contribution to the estate.”
96
Part II, Sect. 5(b) of the Intestate Succession Act cited in Ibid.
97
Part II, Sect. 5(c) of the Intestate Succession Act cited in Ibid and Human Rights Watch, Suffering In
Silence, supra at 57.
98
Part II, Sect. 5(d) of the Intestate Succession Act cited in Scholz and Gomez, supra at 147; other
dependents are defined as “A person maintained by the deceased, living with the deceased and/or a minor
whose education was being provided for by the deceased”.
99
Cited in Ibid.
100
S. 2(2) (a) & (c) cited in Ibid.
95
deceased husband’s property, and secondly, by their fear of reprisals should
they invoke the law. Furthermore, even the lawyers and the law enforcement
agencies such as the police and Local Courts may have failed to give the new
law the respect it deserves and encourage its use.101
Scholz and Gomez, reached similar conclusions, finding that many Zambians perceived
the law as based on western cultural norms and a betrayal of African traditions. Perhaps
not surprisingly, men were particularly opposed to the Act, often citing fears that “if their
wives knew they could inherit such a large share, particularly the 70 percent they stood to
gain if their children were still minors, they would ‘get smart and kill us!’”102
Interestingly, many women—especially those whose sons had married—also did not
believe that widows should be allowed to inherit property under the Act; as these women
grow older, they rely increasingly on their sons to provide for their care and well-being.
“These mothers argue that they are the ones who raised their sons, put them through
school, and invested in them. Therefore, in the event of a son’s death, his estate should
repay and provide for his mother, not his widow.”103
Those women or other vulnerable members of Zambian society that seek to
vindicate their rights under the Intestate Succession Act are unlikely to receive much
comfort from the courts. The Act provides at s. 43 that the higher the value of the estate
at stake, the higher the level of court that has jurisdiction over its devolution.104 For the
vast majority of Zambians, this means that disputes regarding the Act must be taken to
the Local Courts, bodies that normally adjudicate differences under customary law.
These courts have been found consistently ignorant or dismissive of the Act and civil law
more generally. They are widely known to distribute inheritances without reference to
the percentages mandated by the Intestate Succession Act, or to undermine its spirit by
issuing extraordinarily low fines for property grabbing.105 The Local Courts prevent
lawyers from participating in proceedings. Often they appoint a male relative of the
deceased spouse to act as an administrator, even though they have no jurisdiction to do
so.106 Most widows interviewed by the Scholz and Gomez expressed:
Dissatisfaction at how Local Court justices had handled their cases. These
justices are exclusively male and often show bias towards the deceased
husband’s male relatives. Not only poor women, but women of all classes
encounter such discrimination. In addition, the Government of Zambia has
been criticized for its neglect of the Local Courts, which are understaffed,
under-funded and under-regulated. Many of these courts are short of or
101
Women and Law in Southern Africa Research Project, Inheritance in Zambia: Law and Practice, cited
in Human Rights Watch, Suffering In Silence, supra at 58.
102
Scholz and Gomez, supra at 149.
103
Ibid. at 148.
104
Ibid. at 148.
105
Human Rights Watch, Suffering In Silence, supra at 58.
106
Scholz and Gomez, supra at 150.
entirely lack proper materials, including copies of important laws. Their
officials admit that they have little to no formal legal training….107
Scholz and Gomez add that while decisions from the Local Courts can be appealed to the
High Court, “many women are very reluctant to take this course of action, as it takes too
much time and costs too much money.”108
Arguably such discriminatory treatment by the Local Courts cannot be squared
with Zambia’s current Constitution of 1996, whose Article 23(3) guarantees the equal
application of laws to all, irrespective—inter alia—of gender. Worryingly, however,
Article 23(4) of the Constitution excludes the application of this anti-discrimination
clause to all laws with respect to “adoption, marriage, divorce, burial, devolution of
property on death or other matters of personal law” and whenever “customary law” is
applicable (i.e. most land tenure situations).109
Since August 2003, the Constitution has been under review, with gender
discrimination on the agenda of the Constitutional Review Commission.110 Sadly, the
process appears not to be advancing, with President Levy Mwanawasa (elected in 2001)
now advocating a go slow approach to reform.111 The government had also released a
Draft Land Policy in 2002, proposing to reform the Land Act of 1995, inter alia by
guaranteeing that 30% of land in the country be demarcated and allocated to women.112
Adams warns, sadly presciently, that such a measure is “not practicable and in any case
would be impossible to monitor.”113 To date, the Draft Policy has experienced fierce
resistance from traditional leaders and consultations on its possible implementation
continue.114
MALAWI
Malawi is a small, lush and green, land locked nation in the southern great lakes
region of Africa of 11 million people. The country has been hard hit by HIV/AIDS.
Malawi is the poorest of the nations considered in this paper, with a gross per capita
annual income (in 2002) of just 160 US$.115 According to Stephen Lewis, Malawi’s
medical and governance capacities are shockingly inadequate to respond to its AIDS
pandemic, which is spreading largely unabated.116 The adult (15 to 49 years) prevalence
107
Ibid.
Ibid.
109
Cited in Ibid. at 144-45.
110
Ibid.
111
Amos Malupenga, “I Am a Victim of Bad Legacy – Levy” The Post (Lusaka) (March 11, 2005), online:
www.allafrica.com
112
Martin Adams, supra at 23; a copy of the Draft Land Policy is included in Ibid. at 41.
113
Ibid. at 23.
114
See Brighton Phiri & Larry Moonze, “Levy Seeks Conviction of Plunderers” The Post (Lusaka)
(October 20, 2003), online: allafrica.com; Nomusa Maunga, “Kabeta Expresses Concern Over Game Title
Deeds Allocation” The Post (Lusaka) (February 15, 2005), online: allafrica.com.
115
UNICEF, Africa’s Orphaned Generation, supra at 50.
116
Stephen Lewis, comment at University of Toronto Faculty of Law, 19 January 2005.
108
rate of HIV infection in Malawi stood at fifteen percent in 2002. Approximately eighteen
percent of Malawian children—some one million young people—are estimated to be
orphaned, the majority as a result of AIDS.117 Evidence suggests that the combination of
AIDS and existing poverty is leading to the dispossession of orphans or their surviving
parent on a regular basis in Malawi.
Malawi’s economy is predominantly based on subsidence agriculture and land
scarcity is a very serious problem. According to research conducted in 1998, some
75,000 rural households that needed land for cultivation had none; average household
land holdings are generally shrinking as fixed plots are divided between successive
generations; and disputes over land have generally been on the rise. 118 Three land tenure
regimes are in operation under the Land Act: customary, freehold, and leasehold.
Customary land accounts for 70 to 80 percent of the total land and is utilized by most of
the country’s smallholder farmers, as well as a disproportionate concentration of those
living in poverty. Statutory law governing inheritance (the Wills and Inheritance Act)
does not extend to customary land, which has traditionally been allocated by chiefs
according to customary law.119 Increasingly, however, chiefs are being left out of
allocation decisions. Mbaya explains that in “most communities, there remains very little
land that is not already allocated to a family.” Once land is allocated by chiefs to a
family, the normal perception is that the plot will stay in the hands of that lineage in
perpetuity. “This means that family heads now play the allocation role as their holdings
are fragmented to accommodate new family members.”120 Research suggests, therefore,
that decisions around allocation of property, including in relationship to inheritance, are
not being based on customary laws (which have been eroded by the marginalization of
chiefs) but by the perceptions of heads of households regarding what is right.121
Freehold land is privately-held and fully alienable. It is noteworthy that Malawi’s
legislation pertaining to the acquisition of freehold land (the Land Law) does not
discriminate between the sexes, a comparatively enlightened approach for Southern
Africa where many countries bar women from ever owning private land.122 Despite this
de jure equality, de facto very few women in Malawi have the opportunity to own
freehold land. After all, 85 percent of Malawian women work in subsistence
agriculture,123 the limited remuneration from which must generally preclude private land
purchases.
Leasehold tenure reflects attempts by Malawi’s post-independence government,
beginning in the late 1960's, to develop a Black commercial agriculture estate sector.
Households holding land under customary tenure can apply to have the land transferred
UNICEF, Africa’s Orphaned Generation, supra at 51.
Sue Mbaya, HIV/AIDS and its Impact on Land Issues in Malawi (Paper presented at the FAO/SAPRN
Workshop on AIDS and Land at June 24-25, 2002, Pretoria, South Africa) at 7, online:
www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_south.htm.
119
Stickland, supra at 21.
120
Mbaya, supra at 6.
121
Strickland, supra at 22.
122
Mbaya, supra at 8
123
Ibid.
117
118
to leasehold; leasehold interests can in-turn be rented or sold. According to Mbaya, the
accelerated transfer of customary land to leasehold (up to 50 percent of customary land in
some districts) has threatened the livelihoods of householders that remain dependant on
customary access to land; moreover, agricultural estates consolidated out of leasehold
land have tended to be underutilized, while ecological pressures on remaining customary
land have steadily risen.124
To the extent that customary norms still inform succession in Malawi, it is notable
that the country features both matrilineal and patrilineal systems of inheritance, the latter
being employed predominantly in the south and centre of the country, the latter in the
north. Patrilineal systems function similar to those considered in Uganda, Kenya and
Zambia, with windows and their children denied rights to matrimonial land and home
upon the death of the male head of household and dependant on the goodwill of his
relatives for continued access.125
The matrilineal system suggests a potentially more beneficial system for women
and their children, since inheritance passes through the female line. The reality is more
complicated. On the positive side, with regards to customary land it appears that in
practice women in matrilineal communities are able to keep their lands for themselves
and their children if their husbands die—their access to property does not depend on the
husband. Nonetheless, while usufruct rights are held by, and through women, (with
husband’s accessing land through their wives), women’s tenure is at the discretion of
their maternal uncles.126 Moreover, according to Mbaya conflicts often arise, especially
in cases of intestacy, with regards to leasehold tenures—which are freely alienable and so
(unlike customary land) valuable liquid capital. “Under the matrilineal system of
marriage, a man's rightful heirs are his sister's children. Hence, it is often the case that on
the death of the leaseholder, his sister's children claim the farm as their property at the
expense of their cousins, the children of the deceased.” Mbaya adds that in response to
the frequency of such conflicts, a Presidential Commission has recommended a reformed
system allowing for direct inheritance of all categories of property by a deceased’s
surviving spouse or children.127
Instead, as the pandemic takes its toll, there is much anecdotal evidence that
surviving spouses and children of households afflicted by AIDS are increasingly not
receiving any kind of inheritance. Mbaya points out that households afflicted, or
perceived to be afflicted, by AIDS are often severely stigmatized in Malawi, and so
generally less able to protect their property from grabbing-relatives and others. In
particular, widows under patrilineal systems, and to a lesser extend widowers under
matrilineal systems, appear vulnerable to eviction by relatives; orphans are vulnerable to
being denied access to property on which they depend, irrespective of the system.128
124
Ibid. at 7.
Ibid. at 3 & 10.
126
Ibid. at 7-8; Strickland, supra at 21.
127
Mbaya, supra at 7.
128
Ibid. at 10-11.
125
Media reports suggest that such disinheritance is widespread in Malawi. 129 The
New York Times recently quoted Seodi White, head of the Malawi chapter of the
respected NGO Women and Law in Southern Africa: “It is the saddest, saddest story.
People are cashing in on AIDS. Women are left with nothing but the disease. Every time
you hear it you get shocked, but in fact it is normal. That's the horror of it.”130
Counselors at Malawi’s AIDS Information and Counselling Centre (MAICC), an NGO
offering HIV testing and support in central Malawi, report that most of the women
visiting the centre “have trouble with inheritance”.131
It ought not to be so, according to Malawi’s law and policy. S. 24(2)(c) of the
Malawian Constitution provides that “Any law that discriminates against women on the
basis of gender or marital status shall be invalid and legislation shall be passed to
eliminate customs and practices that discriminate against women, particularly practices
such as -…(c) deprivation of property, including property obtained by inheritance.”132
Malawi’ s National Land Policy of 2002 states at s. E(2) that “The Government strongly
supports gender sensitive access to land and calls for changes in inheritance laws to allow
the remaining spouse, children and especially orphans to inherit the property of their
parents even when the deceased parent or parents die without a will.”133 Finally,
Malawi’s Wills and Inheritance Act provides that where a husband dies intestate (the case
some 90 percent of the time134) widows and children must be given a share of the
property of the estate, to the exclusion of heirs at customary law.135
That the Wills and Inheritance Act does not prevent widespread disinheritance of
widows and orphans, partly reflects the exclusion of land held under customary tenure
from its ambit. The Act’s allocation criteria are also problematic: in patrilineal
communities widows must, at law, allow their husbands’ relatives half the estate.136
According to Malawi’s National Statistics Office (NSO), about 55 percent of smallholder
farmers in the country have less than one hectare of cultivable land, which does not meet
their basic needs.137 The loss of half of this amount can, one imagines, be devastating.
See for example, Joel Chipungu, “Property Grabbing Rages On In Malawi” Panafrican News Agency
(PANA Lusaka, Zambia) (January 6, 2000), online: allafrica.com; “Property Grabbing Escalates in Wake of
HIV/Aids Deaths” UN Integrated Regional Information Networks (Malawi) (November 29, 2002), online:
allafrica.com; “Government to End Property Grabbing” Malawi Insider (Blantyre) (July 31, 2002); Hobbs
Gama, “Women Activists Take Property Grabbers Head On” African Church Information Service,
(September 16, 2002), online: allafrica.com; Sharon Lafraniere, “AIDS and Custom Leave African
Families Nothing” New York Times (February 18, 2005), online: nytimes.com.
130
Sharon Lafraniere, supra.
131
“Property Grabbing Escalates in Wake of HIV/Aids Deaths” UN Integrated Regional Information
Networks (Malawi), supra.
132
The Constitution of Malawi, 1996, online: http://chambo.sdnp.org.mw/ruleoflaw/lawcom/reports.html
133
Government Of The Republic Of Malawi, Malawi National Land Policy, Ministry of Lands, Physical
Planning & Surveys, January 17, 2002, online: www.malawi.gov.mw/lands/landpol.htm .
134
Sharon Lafraniere, supra.
135
Joel Chipungu, supra.
136
Ibid.
137
“Land Reform Proposal Prohibits Foreign Ownership”, UN Integrated Regional Information Networks
(Malawi)
(December 5, 2001), online: allafrica.com.
129
More fundamentally, however, Malawi’s vulnerable widows and orphans are
largely unable to vindicate their rights under the Act. Few know their rights; those that
do are coerced by relatives from pursuing them, or cannot afford the legal costs of a fight
in court (Malawi has 500 lawyers for a population of 11 million).138 The court process is
made even less accessible by bureaucratic requirements that the poor find hard to meet,
such as producing a death certificate, in a context where many deceased are buried before
such paperwork can be secured. Finally, reports suggest that magistrates' courts, where
inheritance claims are processed, are often corrupt and easily bought off by property
grabbing relatives.139
COMBATTING PROPERTY GRABBING: POLICY IMPERATIVES
Four interrelated rationales suggest a need for policies to combat property
grabbing against orphans and widows, as part of a comprehensive program to deal with
the HIV/AIDS epidemic and its social consequences. The first reflects basic norms of
equality; the second recognizes that dispossession fuels the spread of HIV/AIDS; the
third concerns the emotional wellbeing of orphaned children; and the fourth considers the
risk that the large-scale, inequitable redistribution of wealth being affected by property
grabbing will sow added turmoil for African states in the years to come.
Long before a parent or parents die from HIV/AIDS, the economic situation of
families afflicted by the disease begins to deteriorate: scarce household resources are
diverted to medical treatments and adults are unable to work as they begin to succumb.
When a parent dies from AIDS, funeral costs put a further strain on surviving members of
the family. In short, even if property grabbing did not occur, orphans will often be left in
a precarious economic situation.140
There does not appear to be any quantitative analysis calculating the further
damage caused when orphans or surviving parents are victims of property grabbing, but
the qualitative research cited in the case studies above generally suggests that
dispossession of inheritance can push households from a modicum of economic security
to desperation. In Zambia, research showed that widows and child headed households
that were allowed to inherit homes, were (not surprisingly) better able to meet expenses
for food and schooling, as compared to those forced to pay for new shelter. 141 In Kenya,
Human Rights Watch has documented the destitution of many households due to property
grabbing. Monica Wamuyo’s story is prototypical: “
A forty-year-old widow from the Kikuyu ethnic group, [she] said her in-laws
evicted her when her husband died in 1996. She and her husband had lived in
a spacious house in Nyeri on land where she grew vegetables. Soon after
138
Sharon Lafraniere, supra.
“Property Grabbing Escalates in Wake of HIV/Aids Deaths” UN Integrated Regional Information
Networks
140
UNAIDS, 2004 Report on the Global AIDS Epidemic (Geneva: UNAIDS, 2004) at 65, online:
www.unaids.org
141
Family Health International, Voices from the Communities: the Impact of HIV/AIDS on Orphaned
Children and their Guardians, supra at 7.
139
Wamuyo’s husband died, her in-laws pressured her to leave. “My father-inlaw would kick my door at night and tell me I should leave because it was his
land. He said if I wanted land, I should go to my mother and ask for land.”
When Wamuyo protested, her father-in-law demanded that she be his second
wife. “I told him I had never heard of such a thing in our tradition,” she said.
“I went to the elders because I wanted to continue living there.... The elders
said I had to move out.” Wamuyo moved to Nairobi’s Kangemi slum, where
she earns money washing clothes. She said she was crushed by losing her
land and now struggles to make ends meet: “Sometimes I’m unable to buy
food for my children. They haven’t been in school since 1997....I told my
daughters to look for housework.142
In Malawi, the New York Times recently reported on the sadly illustrative story of
Chikumbutso Zuze, an eleven year-old orphan whose father died of AIDS, precipitating
the seizure of virtually all his household’s property by the father’s nephew.
Chikumbutso’s mother resisted the dispossession, but was herself weakened by AIDS and
soon died. The loss of the family’s house and truck are bitter legacies for Chikumbutso,
who:
now lives off the charity of his maternal aunt and uncle, who say they
struggle daily to feed their own six school-age children. To raise money for
food, the boy carries buckets of water, hauls sand from the river and solicits
other chores from the neighbor.
''I don't have a permanent place to stay,'' he wrote in a notebook provided to
him by Unicef, which endeavors to track and aid orphans like Chikumbutso.
''I am shifted from one place to another, sometimes on a weekly basis.
Assistance which I need: food, clothes, blankets, school uniform.''
He is at least marginally better off than his 14-year-old sister, Labbecca. A
few weeks ago she turned up on the doorstep of his aunt, Befiya Phaelemwe,
begging to be taken in.
But the aunt said the pittance her husband earned patching clothes was not
enough to feed her own children and Chikumbutso. She gestured toward a
metal bucket half-filled with corn on the floor—the sum total, she said, of the
family's provisions.
''I told her the house was small and I could not take one more child,'' she said.
''She was full of sorrow.''
In tears, Labbecca trudged off, saying maybe a boyfriend would provide her
with a place to sleep. Ms. Phaelemwe said she had not seen her since and had
no idea where she was.
142
Human Rights Watch, Double Standards: Women’s Property Rights Violations In Kenya, supra at 17.
Said Chikumbutso: ''I am very worried.''143
What these life stories illustrate is that fundamental norms of equality are violated by
property grabbing against orphans and widows. No one should be deprived of the
inheritance on which their livelihood depends so that a relative or another can get ahead.
Protecting individual widows and orphans from such abuse is cause enough to respond to
property grabbing, but wider economic considerations also call for action. As the World
Bank points out in a comprehensive study of land law reform, effective access to land
rights by women in Africa tends to: boost agricultural productivity (since women are
better able to fulfill their full potential as agriculturists); and to ensure that household
incomes are spent productively, on for example children’s schooling (since women are
less likely than men to waste income on personal consumption). Moreover, in
communities where property grabbing is condoned, costly, distracting, often violent
battles frequently break out between widows and relatives over inheritance, creating a
systematic impediment to women’s full participation in the economy.144
Beyond basic equity concerns, preventing the spread of HIV/AIDS adds a further
rationale for confronting property grabbers. As UNAIDS explains:
Poverty, underdevelopment and the inability to choose one’s own destiny fuel
this epidemic. Poverty may reduce an individual’s ability to avoid becoming
infected. For example, lack of income may lead people to engage in high-risk,
income-generating activities such as sex work. Sex workers may engage in
sex without condoms for the sake of higher fees. Poverty is also associated
with lower education, which may, in turn, be associated with lower awareness
of measures to prevent HIV infection. Also, the poorer the individual, the less
likely that individual will be to have access to treatment, care, preventative
interventions. Action against AIDS must be part and parcel of poverty
reduction and development strategies.145
To the extent that preventing property grabbing can help keep women and children out of
desperate poverty, such measure should help control the epidemic and its effects.
Stopping property grabbing may also assist the psychological wellbeing of
orphaned children. It bears recalling that millions of orphans are growing up in Africa
with extraordinary emotional burdens caused by: grief over loss of parents, fear of the
future, worries about immediate economic circumstances and discrimination and
isolation. The psychological toll these burdens will take is difficult to quantify, but
intuitively the more children are deprived of stability, love and nurturing, the greater the
emotional difficulties they will face as adults.146 Indeed, research suggests that
143
Sharon Lafraniere, supra.
Klaus Deininger, Land Policies For Growth and Poverty Reduction (Washington DC: World Bank and
Oxford University Co-Publication, 2003) at 58-59.
145
UNAIDS, Accelerating Action Against AIDS in Africa, supra at 40.
146
Ibid. at 24.
144
minimizing “concurrent stressors” (worries over access to school, economic security) is
vital to helping African children that have lost parents to AIDS through the bereavement
process.147 So too is the protection of continuing emotional bonds between the child and
the deceased,148 which for some children entails continued attachment to family
property.149 Ensuring orphans inherit from their parents should therefore help their
psychological wellbeing, by providing them a measure of economic security and an outlet
for continued emotional connection to the deceased parent(s).
The final rationale for preventing property grabbing is to pre-empt the great risk
of systemic conflict that such abuse could seed. Many orphans will reach adulthood and
may seek to avenge the destitution relatives wrought on them or their mothers or may try
to take back property, creating a further source of violence and instability in African
states.150 In other cases, orphans (especially males) will themselves internalize the notion
that taking from others, irrespective of the consequences, is acceptable, thus perpetuating
oppression of the weak by the strong (such as property grabbing) to the long-term
detriment of human rights in Africa.151
COMBATTING PROPERTY GRABBING: RECOMMENDATIONS FOR ACTION
Two fundamental aspects of property grabbing make it a particularly thorny
phenomenon to resolve. First, it is rooted in poverty: because opportunities for economic
advancement have become increasingly slim in those parts of Africa hard hit by AIDS
(partly due to the disease, partly due to external factors like prolonged drought and
declining terms-of-trade for exports) relatives appear more emboldened to outright take
from each other than has traditionally been the case. Property grabbing appears merely a
symptom of a much deeper conundrum confronting Africa: chronic poverty. Second,
whilst the normative stance of this paper is that property grabbing is wrong, the
phenomenon is grounded in entrenched patriarchal traditions. In affected countries,
therefore, many (including women) see the dispossession of widows and orphans as a fact
of life, not a problem to be overcome. Widows and orphans are expected to cope—the
former by returning to their parents—the latter by accepting whatever guardianship is
arranged for them, no matter how oppressive—not to complain.
With these caveats in place, the following are a series of recommendations for
mitigating property grabbing or its ill effects. The first set of recommendations do not
specifically target property grabbing, but rather seek to change the macro conditions that
allow such abuse to thrive. The second set focus directly on the problem, suggesting
measures specifically to deter property grabbers.
Alicia Skinner Cook, Janet Julia Fritz & Rose Mwonya, “Understanding the Psychological and
Emotional Needs of AIDS Orphans in Africa” in The Children of Africa Confront AIDS: from Vulnerability
to Possibility, ed. Arvind Singhal and W. Stephen Howard, (Athens: Ohio University Press, 2003) at 91-92.
148
Ibid. at 98
149
Family Health International, Voices from the Communities: the Impact of HIV/AIDS on Orphaned
Children and their Guardians, supra at 52.
150
Wambui Mwangi, Wagaki Kiai, & Eric Bosire, supra at 45-46.
151
Amy S. Patterson, “AIDS, Orphans, and the Future of Democracy in Africa” in The Children of Africa
Confront AIDS: from Vulnerability to Possibility, ed. Arvind Singhal and W. Stephen Howard, (Athens:
Ohio University Press, 2003) at 19.
147
Macro Recommendations
Reduce Poverty: to remind that there are no quick fixes to poverty in Africa is
platitudinous, but sadly it seems, unavoidable. To the extent that property grabbing
cannot be easily stopped where poverty abounds, a first step would be for western nations
to stop talking about comprehensive debt-forgiveness and to start providing it. As
UNAIDS underscores, under the current paradigm:
Crippling debt burdens are undermining the ability of many African
governments to [even] tackle the pandemic. Malawi, for example, spends the
same amount servicing its debt as it does on health. Zambia pays about
US$125 million a year on its debt—more than two-thirds the amount it
spends on health, education and welfare combined.152
Its time this stopped, so that Africans can start building for tomorrow, not perpetually
paying for the follies of strong men past.
Combat the stigma attached to AIDS: As noted in the Kenya and Malawi case studies
above, widows and orphans are often stigmatized if their misfortune is perceived to have
been caused by AIDS. The disease is so shameful in the eyes of many that those made
vulnerable by AIDS do not deserve community or extended family support.
Overcoming the stigma associated with AIDS in Africa is crucial to fighting the
pandemic, since prevention (i.e. safe sex) is greatly hampered if people fear being open
about their HIV-status. Moreover, discrimination unnecessarily marginalizes HIVpositive people (a sizeable portion of the population in several African states) depriving
society and the economy of their full potential.153 A further benefit of lifting the veil of
shame that surrounds AIDS infection in Africa is that it will enhance the status of those
widowed or orphaned by the disease, and so could help boost their ability to resist
property grabbers.
Combating stigma requires leaders and influential organizations to take action.
There are positive signs: the Anglicans in Uganda, for example, have made a broad effort
to ensure that those living with AIDS are welcome at church.154 Nelson Mandela’s recent
public disclosure that his son has died of AIDS is an iconographic message to Africans
that it is okay to speak openly of the disease.155
Rule of Law Reform: The case studies above suggest that inaccessibility, bias and
corruption in courts render it very difficult for orphans and widows to vindicate rights to
property that they have at law. Further evidence suggests that other branches of the legal
system are also failing; in Kenya, for example, widows generally see no point going to
152
UNAIDS, Accelerating Action Against AIDS in Africa, supra at 41.
Ibid. at 42.
154
Ibid, at 43.
155
Stephanie Nolen, “Breaking a taboo, Mandela says AIDS killed son” Globe and Mail (Toronto) (7
January 2005), online: www.globeandmail.com
153
the police—unless their children are physically threatened—to stop abuses by property
grabbers, because of police indifference to their plight and corruption.156
Prima facie this suggests that the broad movement to reform legal institutions in
developing countries may indirectly assist to prevent property grabbing by improving the
equity and effectiveness of judicial and police bodies. Since the late 1990s there has been
a trend towards donor encouraged rule of law reform, premised on the idea that effective
legal institutions are necessary for promoting human rights, but also investment and
growth.157 As Daniels and Trebilcock underscore, however, legal institutions such as
judiciaries typically operate the ways they do because of deeply embedded vested
interests, and it is naïve to believe that change can be easily bought by donor funds.158
Indeed, World Bank indicators (seeking to quantify, inter alia the independence of
judiciaries) suggest that the quality of the rule of law deteriorated between 1996 and 2002
in each of the countries studied above.159
Moreover, as Daniels and Trebilcock explain, state courts in many African
jurisdictions are vestiges of oppressive colonial regimes, and have yet to gain credibility
and respect: “under-staffed and under-resourced state courts in many African states are
seldom in a position to compete with highly resilient, locally legitimate and resourceindependent community courts and modes of dispute resolution.”160 This suggests (a
point expanded on below) that property grabbing may best be stopped by seeking to
influence traditional authorities, not formal courts. At the same time, however, where
traditional authorities are weak, courts may legitimately step in to resolve community
disputes. In Zambia, for example, courts in rural areas were found to largely impose
customary rules regarding property grabbing, to the detriment of widows. In contrast, in
urban areas customary rules have eroded and local courts have taken the lead as
institutions for solving community disputes, “applying concepts of logic and fairness in
the process”, thus allowing widows to better protect their rights.161 This suggests that
efforts at judicial reform should be targeted carefully at courts that are amenable to
change and have a meaningful role to play in conflict resolution for the vulnerable.
Help Orphans get to School: According to UNAIDS, “staying in school offers
orphaned children the best chance of escaping extreme poverty and its associated
risks.”162 Parents and orphans would appear to share this wisdom since in the case
studies above this emerged as one of their top concerns for the future.163 This confirms
that assisting orphans with their school fees is an absolutely vital step. 164 This is may
Human Rights Watch, Double Standards: Women’s Property Rights Violations In Kenya, supra at 3637.
157
Ronald J. Daniels and Michael Trebilcock, The Political Economy of Rule of Law Reform in Developing
Countries, January 13, 2005 Unpublished manuscript: Law and Development Bridge Week: Course
Materials, February 2005, University of Toronto, Faculty of Law, at 1-5.
158
Ibid. at 13.
159
Ibid. at 68.
160
Ibid. at 28.
161
Scholz and Gomez, supra at 151.
162
UNAIDS, 2004 Report on the Global AIDS Epidemic, supra, at 63.
163
Laelia Zoe Gilborn, et. al., supra at 12; Family Health International, supra at 7.
164
UNAIDS, 2004 Report on the Global AIDS Epidemic, supra, at 52.
156
achieved through targeted subsidies to assist orphans to pay fees, as is currently
occurring, for example, in Swaziland with the help from the Global Fund to Fight AIDS,
Malaria and Tuberculosis.165 However, in a context where many households find it
difficult to afford schooling for their children, subsidies risk encouraging deep-seeded
resentment against children affected by AIDS.166 Ideally, therefore, all children should
receive quality universal education, with donor support filling-in where countries cannot
afford such delivery themselves. Even without property grabbing, school fees are
difficult for AIDS-affected households to meet. When property is taken, it becomes
impossible for most. In short, if property grabbing cannot be stopped, at least its illeffects can be mitigated through access to schooling.
Micro Recommendations
Agencies Providing Support to Orphans Should Take Practical Steps to Discourage
Property Grabbing: In Kwa-Zulu Natal, South Africa, a hospice providing care to
child-headed households ensures that one of the older children in a family always
remains at the family home, to help keep property grabbers at bay.167 In Kenya, a local
NGO requires guardians to register as trustees for orphans property, with “titles lodged
with the local administration for safekeeping until the children grow up”, as a precondition to giving guardian families aid and support for the orphans.168 These are
pragmatic steps that can be taken by NGOs and others to deter property grabbing. They
should be replicated whenever practicable.
Encourage Succession Planning: Several NGOs, notably in Uganda, have begun
programs assisting HIV-positive parents in Africa plan for their eventual passing.
Programs tend to emphasize the preparation of Memory Books, a document of the
family’s history to be kept by children as a memento of their parents, as well as the
writing of wills. Counseling parents in succession planning is not easy; as noted in all the
case studies, will-writing is extremely rare in eastern and southern Africa because it is
widely considered an alien practice that invites death. Allocation decisions regarding
property are traditionally made by clan leaders or influential relatives (sometimes long)
after the deceased’s funeral.169
Succession planning projects to date have had limited success in overcoming
these cultural barriers to written wills, but have produced some positive results. They
have successfully encouraged parents to plan guardianship for their children before they
die, thus reducing the risk that exploitative relatives will take children for their
UNICEF, Children Under Threat: The State of the World’s Children 2005 (New York: UNICEF, 2004)
at 79.
166
See for example, “Swaziland: Tempers Flare As Govt Pays Orphans' School Fees” UN Integrated
Regional Information Networks (27 January 2005), online: www.allafrica.com .
167
Emma Guest, Children of Aids: Africa’s Orphan Crisis (London: Pluto Press, 2003) at 77.
168
Wambui Mwangi, Wagaki Kiai, & Eric Bosire, supra at 43.
169
See Horizons, Makerere University Department of Sociology, Plan/Uganda, supra; Sophie Witter,
supra; Family Health International, Voices from the Communities: the Impact of HIV/AIDS on Orphaned
Children and their Guardians, supra at 74.
165
property.170 Moreover, some evidence exists that written wills or instructions on
inheritance included in Memory Books, have helped sway relatives or local authorities to
allocate the deceased’s property to orphans or surviving spouse(s).171
Learning from these projects, and including elements of them in wider assistance
for HIV-positive families, appears worth pursuing.
Statutory Reform versus Swaying Local Leaders: In each of the countries studied
above, it emerged that statutory laws that prima facie offered a measure of protection to
orphans’ and widows’ property upon succession, were largely undermined by exemptions
for property held under customary tenure. It is tempting, therefore, to recommend a
comprehensive overhaul of laws to ensure direct inheritance of all categories of property
by a deceased’s surviving spouse or children.
The challenge is that any such move is likely to raise the ire of traditional or local
leaders who will fear, inter alia, that customary norms are under threat, along with (more
prosaically) the influence they garner from being arbiters of property rights in their
communities.172 As the case studies above indicate, these local leaders are forces to be
reckoned with. Given that African legislators tend to be sympathetic to the patriarchal
values that infuse their societies, and customary leaders are a powerful lobby, it has
proven very difficult to pass statutory reforms to protect the property of widows and
(especially girl) children. In 1998, for example, women’s groups in Uganda engaged in
intense lobbying to have a clause requiring spousal co-ownership of land included in
proposed land legislation. These activists succeeded in eliciting a promise from the
government to include the clause, only to see it removed in last-minute parliamentary
debate.173 Moreover, passing progressive laws that alienate local and traditional leaders
is relatively futile given that these actors—not expensive, dysfunctional formal legal
institutions—offer the only viable avenue for relief and protection available to the bulk of
vulnerable households threatened by property grabbers.
Chastened by failed attempts to impose formal property law on customary and
local leaders, development organizations from the World Bank to Oxfam have concluded
that the best way to encourage property rights reform in sub-Saharan Africa, including
tenure security for women, is to ‘build on’ customary property systems, not to try and
overrule them with statutory regimes.174 In contrast, Whitehead and Tsikata underscore
that African feminist lawyers generally remain skeptical of the ability for customary or
habitual local norms rooted in patriarchy to offer meaningful change, without serious
pressure from a progressive statutory regime.175
170
Ibid. at 18; See Horizons, Makerere University Department of Sociology, Plan/Uganda, supra at 1 & 17;
Sophie Witter, supra at 10 & 18.
171
Ibid. 19 & 23.
172
Klaus Deininger, supra at 59; Ann Whitehead and Dzodzi Tsikata, “Policy Discourses on Women’s
Land Rights in Sub-Saharan African: The Implications of the Re-turn to the Customary” (2003) 3 Journal
of Agrarian Change 67 at 89, 101, & 104.
173
Ann Whitehead and Dzodzi Tsikata, supra at 102; Klaus Deininger, supra at 60.
174
Klaus Deininger, supra at 62; Ann Whitehead and Dzodzi Tsikata, supra.
175
Ann Whitehead and Dzodzi Tsikata, supra, at 90-104.
In light of this tension, the best reform strategy for confronting property grabbing
is likely to encourage legislators to pass laws that maintain a role for customary and local
leaders in tenure systems, but that also insist on minimum protections for surviving
children and spouses to all types of property. If nothing else this will send a message to
local leaders that dispossession of women and children is not condoned by the state.
Simultaneously, efforts should be made by political leaders, NGOs and donors to
try and sway opinion across the local leadership class towards protecting orphans and
widows. The unwritten, inherently malleable nature of customary norms does have a
virtue:176 if local leaders can be convinced of the evils of property grabbing, they can
very quickly apply a new approach to their decision making. In their study of Kenya,
Aliber et al found that whether a widow had access to a sympathetic local headman made
an enormous difference in her ability to defeat property grabbers.177 Local leaders can be
sensitized to the needs of women and children and educated regarding the links between
destitution and the spread of HIV that threatens their communities. At the same time,
Africa’s churches may have a powerful role to play enlightening leaders, since the
religious message of helping the vulnerable coincides well with broader equity arguments
against property grabbing. According to James 1:27, “Pure and undefiled religion before
God the Father is this: to care for orphans and widows in their misfortune and to keep
oneself unstained by the world.”178
Educate Orphans and Widows on their Rights at Law: Statutory reform should be
accompanied by renewed efforts to inform widows and orphans (assuming they are old
enough to comprehend) of their rights to inheritance. Many NGOs are engaged in such
activities across sub-Saharan African,179 but judging by the extent of continued ignorance
as to these rights, it appears there is a need for scaled-up efforts. In cases where
customary norms are relatively benign, it may also be helpful to assist orphans and
widows understand the protections they enjoy under local traditions (such as rights of
avail), since their first line of defense against property grabbers will likely be communitybased conflict-resolution mechanisms.
Pursue High Profile Litigation: A final recommendation is for strategic litigation to be
pursued by activists to challenge statutory laws that encourage property grabbing. A
particularly ripe vein for litigation appears to be the inconsistencies within the
constitutions of the countries studied, which formally prohibit discrimination against
women and children, but allow this to persist by recognizing customary legal norms that
are anathema to the basic property entitlements of widows and orphans. Ideally, court
action could address this dissonance by requiring governments to extend minimum
protections to women and children under customary rules, commensurate with the values
of non-discrimination enshrined in the constitutions.
176
Human Rights Watch, In The Shadow Of Death, supra at 11.
Michael Aliber, et. al., supra at 155.
178
The Holy Bible: New Revised Standard Version (Oxford: OUP 1995).
179
See for example, Human Rights Watch, In The Shadow Of Death, supra at 15; Strickland, supra at 4649.
177
Constitutional arguments to this effect can be bolstered by citing the numerous
international human rights instruments on point. For example, the African Charter on
Human and Peoples’ Rights (which Kenya, Zambia, and Malawi have ratified) provides
at Article 18 that “the State shall ensure the elimination of every discrimination against
women and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions.”180 In turn, the Universal
Declaration of Human Rights (UDHR),181 widely recognized as customary international
law, provides at Article 2 that: “Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or
other status.” These include: rights to equality before the law and to equal protection;182
the right to own property;183 and the right to an adequate standard of living, including the
right to adequate housing.184
The International Covenant on Civil and Political Rights (ICCPR) (ratified by all
four countries studied herein), which elaborates and codifies the rights articulated in the
UDHR, explicitly recognizes at Article 3 the right to equality between women and men
and the right to non-discrimination.185 This has been interpreted by the United Nations
Human Rights Committee to require that: “Women should also have equal inheritance
rights to those of men when the dissolution of marriage is caused by the death of one of
the spouses.”186 The ICCPR further requires at Article 24 that “Every child shall have,
without any discrimination as to race, colour, sex, language, religion, national or social
origin, property or birth, the right to such measures of protection as are required by his
status as a minor, on the part of his family, society and the State.”187
Finally, the African Charter on the Rights and Welfare of the Child (ratified by
Kenya, Malawi, and Uganda, but only signed by Zambia) includes Article 21 requiring
States Parties to “take all appropriate measures to eliminate harmful social and cultural
practices affecting the welfare, dignity, normal growth and development of the
child…”188 The Charter further provides at Article 25 that “any child who is
permanently or temporarily deprived of his family environment for any reason shall be
entitled to special protection and assistance.”189 More broadly, at Article 4 the Charter
requires that “In all actions concerning the child undertaken by any person or authority
the best interests of the child shall be the primary consideration.”190 It is difficult to see
African Charter on Human and Peoples’ Rights, online: www.africa-union.org
Universal Declaration of Human Rights (UDHR), adopted and proclaimed by UN General Assembly
Resolution 217A (III) of 10 December 1948.
182
Ibid. Art. 7.
183
Ibid. Art. 17.
184
Ibid. Art. 25.
185
International Covenant on Civil and Political Rights, online: www.unhchr.ch/html/menu3/b/a_ccpr.htm
186
United Nations Human Rights Committee, General Comment No. 28, online: www.unhchr.ch.
187
International Covenant on Civil and Political, online: www.unhchr.ch/html/menu3/b/a_ccpr.htm
188
African Charter on the Rights and Welfare of the Child, online: www.africa-union.org
189
Ibid. Article 25.
190
Ibid. Article 4.
180
181
how a legal environment that regularly permits the dispossession of widowed mothers
and orphans meets the international obligations detailed above.
CONCLUSION
The best interests of sub-Saharan Africa’s inordinate number of orphans are
betrayed when they, or their widowed parent, are callously deprived of vital household
property. The pluralistic legal systems in Uganda, Kenya, Zambia and Malawi have
always tolerated customary norms that limit or simply deny inheritance rights of widows
and their children to the benefit of relatives. Orphans will always be vulnerable to
exploitation, including appropriation of their legacies by those with the temerity to take
from innocent children. The HIV/AIDS pandemic appears, however, to have gravely
accentuated the frequency and depth of such property grabbing. While there are no easy
solutions to prevent property grabbing, its proliferation is a serious social consequence of
the HIV/AIDS pandemic for Africa’s generation of orphans. Combating property
grabbing should, therefore, be integrated into holistic plans for confronting and ultimately
defeating HIV/AIDS.
BIBLIOGRAPHY
LEGISLATION
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INTERNATIONAL INSTRUMENTS
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International Covenant on Civil and Political Rights, online:
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HIV Transmission to Girls in Zambia (New York: Human Rights Watch, 2002)
online: www.hrw.org
Kamusiime, Herbert, Esther Obaikol, & Margaret Rugadya. Integrating HIV/AIDS in the
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Kenya Land Alliance. The National Land Policy in Kenya: Addressing Historical
Injustices
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m#Kenya
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FAO/SAPRN Workshop on AIDS and Land at June 24-25, 2002, Pretoria, South
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issue in Kenya (Unpublished report prepared for the United Nations Food and
Agriculture Organization, March 2002) at 13, online: www.sarpn.org.za
Rugadya, Margaret, Esther Obaikol & Herbert Kamusiime. Gender and the Land Reform
Process In Uganda: Assessing Gains And Losses For Women In Uganda
(Kampala:
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2004)
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Scholz, Birte and Mayra Gomez. Bringing Equality Home—Promoting and Protecting
the Inheritance Rights of Women: A Survey of Law and Practice in Sub-Saharan
Africa (Geneva: Centre on Housing Rights and Evictions, 2004).
Strickland, Richard. To Have and To Hold: Women’s Property and Inheritance Rights in
the Context of HIV-AIDS in Sub-Saharan Africa (Washington D.C.: International
Centre for Research on Women, 2004)
Subbarao, Kalanidhi & Diane Coury. Reaching Out to Africa’s Orphans: A Framework
for Public Action (Washington D.C.: The World Bank, 2004)
The Holy Bible: New Revised Standard Version (Oxford: OUP 1995).
UNAIDS. 2004 Report on the Global AIDS Epidemic (Geneva: UNAIDS, 2004) at 65,
online: www.unaids.org
UNAIDS. Accelerating Action Against AIDS in Africa, (Geneva: UNAIDS, 2003)
UNICEF. Children Under Threat: The State of the World’s Children 2005 (New York:
UNICEF, 2004)
United Nations Children's Fund (UNICEF). Africa’s Orphaned Generation, (New York:
UNICEF, 2003)
United Nations Programme on HIV/AIDS (UNAIDS), the United Nations Children's
Fund (UNICEF), & the United States Agency for International Development
(USAID). Children on the Brink 2004: A Joint Report of New Orphan Estimates
and a Framework for Action (New York: UNICEF, 2004)
Wakhweya, Angela, et. al. Situation Analysis of Orphans in Uganda: Orphans and Their
Households—Caring for the Future, Today (Kampala: Government of Uganda
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Commission, 2002).
Witter, Sophie. Breaking the Silence: Memory Books and Succession Planning—The
Experience of NACWOLA and Save the Children UK in Uganda (London: Save
the Children, 2004)
SECONDARY MATERIAL: ARTICLES
Daniels, Ronald J.& Michael Trebilcock. The Political Economy of Rule of Law Reform
in Developing Countries, January 13, 2005 Unpublished manuscript: Law and
Development Bridge Week: Course Materials, February 2005, University of
Toronto, Faculty of Law
Deininger, Klaus, Marito Garcia & K. Subbarao. “AIDS-Induced Orphanhood as a
Systemic Shock: Magnitude, Impact, and Program Interventions in Africa” (2003)
31 World Development 1201
Kalinda, Thomson, Glenn Filson & James Shute. “Resources, Household Decision
Making and Organisation of Labour in Food Production Among Small-Scale
Farmers in southern Zambia” (2000) 17 Development Southern Africa 165
Patterson, Amy S. “AIDS, Orphans, and the Future of Democracy in Africa” in The
Children of Africa Confront AIDS: from Vulnerability to Possibility, ed. Arvind
Singhal and W. Stephen Howard, (Athens: Ohio University Press, 2003)
Pender, John, et. al. “Development Pathways and Land Management in Uganda”, (2004)
32 World Development 767
Peters, Pauline E. “Inequality and Social Conflict Over Land in Africa” (2004) 4 Journal
of Agrarian Change 269
Scott, Guy. “Zambia: Structural Adjustment, Rural Livelihoods and Sustainable
Development” (2002) 19 Development Southern Africa 405
Skinner Cook, Alicia, Janet Julia Fritz & Rose Mwonya. “Understanding the
Psychological and Emotional Needs of AIDS Orphans in Africa” in The Children
of Africa Confront AIDS: from Vulnerability to Possibility, ed. Arvind Singhal
and W. Stephen Howard, (Athens: Ohio University Press, 2003)
Whitehead, Ann & Dzodzi Tsikata, “Policy Discourses on Women’s Land Rights in SubSaharan African: The Implications of the Re-turn to the Customary” (2003) 3
Journal of Agrarian Change 67
NEWSPAPERS, NEWSWIRES AND OTHER NEWS SOURCES
—“Government to End Property Grabbing” Malawi Insider (Blantyre) (July 31, 2002),
online: allafrica.com
—“Land Policy Overdue” The National (Nairobi) (12 March 2005) online: allafrica.com
—“Land Reform Proposal Prohibits Foreign Ownership”, UN Integrated Regional
Information Networks (Malawi) (December 5, 2001), online: allafrica.com
—“Property Grabbing Escalates in Wake of HIV/Aids Deaths” UN Integrated Regional
Information Networks (Malawi) (November 29, 2002), online: allafrica.com
—“Swaziland: Tempers Flare As Govt Pays Orphans' School Fees” UN Integrated
Regional Information Networks (Swaziland) (27 January 2005), online:
www.allafrica.com
Chipungu, Joel. “Property Grabbing Rages On In Malawi” Panafrican News Agency
(PANA Lusaka, Zambia) (January 6, 2000), online: allafrica.com
Gama, Hobbs. “Women Activists Take Property Grabbers Head On” African Church
Information Service, (September 16, 2002), online: allafrica.com
Lafraniere, Sharon. “AIDS and Custom Leave African Families Nothing” New York
Times (18 February 2005), online: nytimes.com.
Malupenga, Amos. “I Am a Victim of Bad Legacy – Levy” The Post (Lusaka) (March
11, 2005), online: www.allafrica.com
Maunga, Nomusa. “Kabeta Expresses Concern Over Game Title Deeds Allocation” The
Post (Lusaka) (February 15, 2005), online: allafrica.com
Nolen, Stephanie. “Breaking a taboo, Mandela says AIDS killed son” Globe and Mail
(Toronto) (7 January 2005), online: www.globeandmail.com
Onyango, Dennis. “Nagging Questions” The East African Standard (Nairobi) (5 March
2005), online: allafrica.com
Phiri, Brighton & Larry Moonze. “Levy Seeks Conviction of Plunderers” The Post
(Lusaka) (October 20, 2003), online: allafrica.com