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1 Protecting the girl child HIV/AIDS orphan: Developing and implementing effective strategies to preserve inheritance rights 5 March 2007 : CSW By Slyvia.

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Presentation on theme: "1 Protecting the girl child HIV/AIDS orphan: Developing and implementing effective strategies to preserve inheritance rights 5 March 2007 : CSW By Slyvia."— Presentation transcript:

1 1 Protecting the girl child HIV/AIDS orphan: Developing and implementing effective strategies to preserve inheritance rights 5 March 2007 : CSW By Slyvia Chirawu Women and Law In Southern Africa National Coordinator

2 2 Situational analysis of HIV and AIDS  In 2000, 35% of women attending ante natal clinics were HIV positive  Prevalence rate in 2000 – 34%  2001 – rate – 30%  2002 – rate – 25.7 %  2005 – 20.1 %  Rates of infection dropping

3 3 Who is a child ?  CRC – ‘ for purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier’  LAMA ( Now section 15 of the general law amendment act ) – ‘ a person shall attain the age of majority on attaining 18 years’  Marriage Act – section 22 – minimum age of marriage – 18 for boys- 16 for girls – becomes a major upon marriage even if divorces before turning 18 – still remains a major  No minimum age of marriage in the Customary Marriages Act – but outlaws pledging of women and girls ( no age limit)

4 4 Cont’d  Children’s Act – ‘ child means a person under the age of sixteen years and includes an infant’  Criminal Code – ‘ young person means a boy or girl under the age of sixteen years  DVB – does not define a child- assumption is that child is anyone below 18 years for purposes of the bill

5 5 Impact on the girl child of HIV and AIDS  UNICEF – Almost one in four children in Zimbabwe orphaned by HIV - Children orphaned at young ages  UNICEF- 115 000 under 14 years infected.  Disproportionate effect on girls  Dropping out of school to take care of the sick  Dropping out of school because of lack of resources  Girls infected through harmful cultural practices e.g. – early marriage, virginity testing

6 6 What is culture in the context of Zimbabwe  UNESCO- Culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group and that it encompasses in addition to art and literature, life styles, way of living together, value systems, traditions and beliefs  A way of life  Not homogenous – different tribes have different cultures  Sub culture  Indicators- manners, dress, language, religion, rituals

7 7 Culture and the girl child  Girls groomed for marriage – socialisation process  Gender discrimination starts from early age  Seen but not heard  Cultural practices- chiramu  Culture gleaned from customary law but not all culture is customary law- some practices crystallised into customary law- opinio iuris  Customary law and local courts act defines CL as ‘ the customary law of the people of Zimbabwe or of any section or community of such people, before the 10 th of June, 1891 as modified and developed since that date

8 8 Constitution and discrimination  Constitution highest law in the land – any law not consistent is void.  Dual system of law- Section 89 – customary law and general law – subject to modification by way of statute law  Legal pluralism  Section 23 outlaws discrimination on grounds of race, tribe, place of origin, political opinions, colour, creed, gender, sex, marital status, physical disability BUT allows discrimination in matters of personal law- family laws- inheritance, marriage, divorce – Magaya vs. Magaya  Theoretically girl child should not be discriminated against on grounds of sex but this can be done on grounds of age ( differential ages of marriage for boys and girls )

9 9 Traditional inheritance rights  According to WLSA research- under customary law – children shared equally in the estate of the deceased- clothes or cattle  Rights of occupation of immovable property by children rarely disturbed after death of parent.  A guardian was appointed under customary law – sara pavana – role was to oversee the welfare of the children left behind  People’s customary law centred around negotiation, settlement, solidarity, mutual support and need to protect particularly widow and dependant children.  Collective decision made by the family  Role of heir was care for needs of the family in conjunction with the widow

10 10 Effects of colonisation  Customary law not written down but some issues were reduced to statutes.  Advent of cash economy meant that inheritance disputes were on the increase  Customary law distorted – by courts in resolution of disputes- customs reduced to immutable rules e.g. – rule that the eldest son of the deceased man is the sole heir- Vareta vs. Vareta or that a widow cannot be an heir at customary law – Murisa vs. Murisa  Court decisions created a false, rigid and distorted version of customary law- far removed from the reality of customs and practices.  Creation of general rules of customary law- distorted the rich variety of customary law  Once a rule of law is invented by the courts it becomes ossified and cannot be changed regardless of the fact that the practices may have changed  Colonial courts sought evidence from elders – expert witnesses – further distortion  Different treatment between children born in and out of marriage

11 11 Impact of distortion of customary law- Old law of inheritance  Exclusion of girls from appointment as heirs to intestate estates of their fathers  Exclusion of widows from appointment as heirs to late husband’s estate.  Regarded as passers by – marry into other families  Creation of an all powerful heir – inherit property in his personal right – could sell it  Girls prone to evictions as houses were sold

12 12 New law of inheritance  Administration of estates amendment act number 6/97  At death under customary law- major beneficiaries – surviving spouse and children.  Recognition of children born outside customary law marriage  Heir now only inherits deceased’s name and traditional items such as walking stick.

13 13 Other inheritance laws  Guardianship of minors act- appointment of guardian in a will.  Person aged 16 years and above can write a will  Deceased estates succession act- major beneficiaries – surviving spouse and children but child born out of wedlock under general law does not inherit unless provided for in a will  Minor child- adopted, born in or outside marriage can apply for maintenance from a deceased estate

14 14 Challenges for the girl child – new law of inheritance  Although children are bearers of rights – challenges in conceptualisation and implementation- unable to assert rights on their own.  Gender discrimination still rife  Poverty  Power of semi-autonomous social fields – religion, family  Good law despite challenges

15 15 Strategies for creation and preservation of inheritance rights for girl orphans  Disseminate widely the new inheritance law.  Education of the girl child- affirmative action  Simplify procedures of guardianship, application for birth certificates.  Views of children to be taken into account – Article 12 – CRC  Eradicate poverty – MDGs  Advocacy – ratification and domestication of positive international instruments – protocol to the rights of women in Africa.  Reinforce the correct traditional inheritance rights

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