Africa's street children stand as a vivid example
of the destitution caused by the HIV/AIDS pandemic
in urban areas. Having lost their parents and
relatives to the disease, these children are
denied fixed abodes by the statute book. Better
protection of children's rights to secure tenure
could prevent the pandemic causing more poverty.
Street children are only a fraction of the millions
- over 12 million in the Sub-Saharan region
in late 1999, according to UNICEF - who have
become HIV/AIDS orphans. Recent figures suggest
that Zambia's 11 million population includes
as many as 572,000 AIDS orphans.
AIDS orphans
and widows are victims of the economic consequences
of AIDS, with insecure tenure featuring prominently
among those. AIDS either causes or exacerbates
poverty as ailing bread-earners give up work,
triggering a rapid shift from affluence to poverty.
In Zambia, one study showed that of those households
which lost the main bread-winner to AIDS, two
out of three saw their incomes drop by as much
as 80 per cent.
AIDS-related economic duress makes a family's
tenure more insecure in a variety of ways.
Where the land or housing they occupy are their
only tangible assets, AIDS-hit families often
rely on distress sales to survive.
In an urban environment, AIDS-hit families
are likely to be displaced from their home or
shelter to housing that is less likely to have
piped water and other facilities. Widows and
orphans are also more vulnerable to land grabbing.
Inadequate legal frameworks can only compound
the economic impact of AIDS. Eviction of the
widow and children of AIDS victims is quite
commonplace, as traditional inheritance rules
deny widows any right of occupation.
Even where adequate protection is entrenched
in law, as in Zambia, its scope may be inadequate,
or it is not widely
advertised, or relatives simply choose to ignore
it.
To make things worse, the overlapping and intricate
legal frameworks governing inheritance interests
provide a wealth of opportunities for property
ownership disputes, which the poor can hardly
afford.
AIDS-related land or housing dispossession
puts family and community networks under strain,
causing more poverty. `There are no orphans
in Africa', the saying would go, with uncles
and aunts acting as safety nets. But today's
urban environments tend to weaken family networks.
In an urban
environment, AIDS-hit families are likely
to be displaced from their home or shelter
to housing that is less likely to have
piped water and other facilities.
Widows and orphans are also more vulnerable
to land grabbing.
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AIDS-related tragedies can help strengthen
them, though, and other relatives are proving
increasingly willing to provide care. In Zambia
grandparents `foster' more than one in three
orphans. In the poorer suburbs of the capital,
Lusaka, as many as 85 per cent of families are
looking after orphans.
But family and local community networks are
not fail-safe. Child-headed households are not
uncommon nowadays, as the death of a grandparent
can prompt the eldest son or daughter to take
over responsibility. They may do so partly in
an effort to retain occupation of land on which
the parent had formal or informal tenure.
Some children slip through every net, though.
AIDS orphans feature strongly among street children
- those with no fixed abode or tenure to speak
of.
The tragic predicament of AIDS widows and orphans
rightly calls for various forms of vital assistance.
These tend to dwarf legal issues such as inheritance
rights and secure tenure. Moreover, many households
leave hardly any property, let alone land, for
a child to inherit.
But one should not overlook the empowering
and protective nature of inheritance and tenure
rights. As AIDS orphans frequently lose both
parents in short order, their interests, including
tenure rights, cannot be simply coupled with
those of widows.
Disinheritance is also becoming an issue, as
Human Rights Watch found in Kenya in
2001. Several AIDS orphans there told the American
rights group their relatives were more concerned
with their property than taking care of them.
More generally, children no longer have the
close relatives who could help them claim tenure
rights. As for their uncertain dependency on
distant relatives, it will likely deter a child
from pursuing individual rights.
The main problem with children is ignorance
of their rights, a lack of access to courts
of law, and money to pay lawyers.
Solutions will depend on a given country's
particular social, cultural and legal context.
Strengthening children's inheritance rights
could bring some of them the protection they
need. But for the vast majority, the appointment
of non-governmental organizations as guardians
and stronger public trustee offices would be
of significant help. Further forms of advocacy
are also required.
At the end of the day, what holds for women
also holds for children: secure tenure can enable
children to look after themselves and empower
them within their extended families.
Hilary Lim is Principal Lecturer in Law at the
University of East London, UK.
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