Orphans' Land Rights in Post-war Rwanda: the Problem of Guardianship

The genocide in 1994, combined with the impacts of HIV/AIDS, has created thousands of orphans in Rwanda. These orphans – many the heads of households – urgently need land use rights. A weakened system of guardianship and increasing pressures on land often prevent this.

There are 34 million orphans in Africa, 11 million of who are ‘AIDS orphans’. Many orphans are poorly cared for and subject to abuse and exploitation. Traditional support systems for orphans in Africa, whereby family members were expected to take care of and defend the rights of orphans, have weakened over the years. African governments have been unable to respond with adequate formal legal and social systems.

The situation is particularly acute in Rwanda, where the genocide of 1994 and a deepening AIDS crisis have created up to 300,000 orphans. Even before the Rwandan genocide, land pressures and poverty meant that many families were competing for land. The genocide, with over 600,000 Tutsi and Hutu deaths and an estimated 4 million refugees, led to a larger-scale land crisis. The crisis in guardianship and land rights has only worsened with the increase in AIDS orphans.

Research from Carnegie Mellon University, USA, looks at the current status of orphans in Rwanda with regard to land rights. Key findings include:

• Many orphans in Africa are heads of their households, yet their land rights are often neglected.
• Guardians do not always respect or recognise orphans’ land rights. Following the war in Rwanda there have been many cases of guardians taking advantage of orphans.
• The existing customary and national laws and policies provide little support for orphans, despite the Rwandan Civil Law on Property in 2000.
• Orphans experience many practical barriers: these include a lack of information; time (for example with orphans returning after the war to find their land taken over); status; few financial resources to administrative and legal forums to defend their land rights.

These factors have led to considerable frustration for orphans who, as head of households, are struggling to survive. The research recommends that the Rwandan government recognise the changing nature of guardianship by:

• developing a legal framework that  includes the concept of ‘active legal capacity’, especially for minors, so orphans are granted legal rights based on their maturity and need to be independent, rather than age
• formulating and enforcing land laws specifically catering to orphans’ rights, as separate from adult rights
• better regulating and supporting traditional guardianship for orphans
• implementing new forms of care giving that also provide orphans with access to information and legal and administrative aid
• evaluating orphan intervention programmes, such as those involving community volunteers to work on orphans’ fields (this has been used in other African nations)
• broadening the definition of ‘family’ in post-war Rwanda, for example through ‘children’s villages’
• designing national land development programmes with the full participation of orphans.