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HIV/AIDS AND ITS IMPACT ON LAND ISSUES
IN MALAWI
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2.1 HIV/AIDS: Malawi Fact Sheet5
Malawi is one of the countries that is hard-hit by the HIV/AIDS epidemic. There has been a steady increase in HIV prevalence since the first case was reported in 1985. The most affected age group is the 15-49 year group.
Prevalence rate:
| Year |
Prevalence(15 – 49 Year Age Group) |
| 1996 |
13.8% |
| 1997 |
15% |
| 1998 |
16.2% |
| 1999 |
16.4% |
Infection rates:
Most infection occurs among the 15 - 24 years age group.
Infection rate among girls is four times higher than that among boys of the same age.
Locality:
A variation in rural, semi-urban and urban prevalence has been noted:
| Locality |
HIV Prevalence |
| Rural |
2.9% - 25% |
| Semi-Urban |
21.6% - 35.5% |
| Urban |
23.3% - 27.9% |
Of the three Malawian regions, the hardest hit is the southern region.
| Region |
Total Sampled |
NumberHIV+ |
% HIV+ |
| North |
2009 |
320 |
15.9 |
| Center |
2633 |
462 |
17.5 |
| South |
2719 |
654 |
24.1 |
| TOTAL |
7,361 |
1,436 |
19.5 |
Impacts:
- AIDS is the leading cause of death in the 15 - 49 age groups.
- It is estimated that up to 50% of professionals will die from AIDS by 2005.HIV/AIDS is resulting in high rate of absenteeism from work, medical bills, funeral costs and payment of premature death benefits.
- There is a growing number of child headed families.
- HIV/AIDS is resulting in a growing number of orphans. There were approximately 390,000 HIV/AIDS orphans out of 600,000 orphans in 1999.
2.2 Challenges to HIV/AIDS Responses
Capacity:
Lack of administrative capacity at the national level coupled with inadequate resources has made it difficult for the Government to keep up with the growing epidemic. At district level, there is need to strengthen the district structures so that the national initiatives are cascade down to the village level.
Research methodologies:
Research and data collection methodologies have become increasingly significant in their significance. These need to be improved in order for the accurate data capture which will, in turn, enable the accurate assessment of the severity and scope of the problems presented by the epidemic (e.g. large number of orphans) and for appropriate responses to be designed.6
Training:
The challenges posed by the HIV/AIDS epidemic have necessitate responses that involve large numbers of people doing what they have not done before. For instance, training is required in order for well-coordinated training programmes.
Policy environment:
There is a great need for a national HIV/AIDS Policy without which addressing of HIV/AIDS issues will remain piece-meal and un-coordinated.
Fiscal consideration:
Although the government has acknowledged the existence of the pandemic and responded by putting many appropriate structures in place there still seem to be a crucial gap, the inclusion HIV/AIDS in the National Budget. This would bring to an end the prevailing reliance on pledges and donations.
2.3 Land Issues in Malawi
2.3.1 Systems of Tenure
There are three tenure regimes recognised the 165 Land Act; customary, freehold and leasehold tenure. Customary land which accounts for 70 to 80% of the country’s total land and this is where most of the smallholder farmers are located. Also, this is where poverty is situated in Malawi, particularly in those rural areas with very small landholding in the Southern region and also in parts of the Northern region.
Although chiefs have traditionally had the responsibility of land allocation this is now no longer automatically the case. It is becoming increasingly frequent that other actors play this role. For instance, in most communities, there remains very little land that is not already allocated to a family. This means that family heads now play the allocation role as their holdings are fragmented to accommodate new families. A 1998 study found that 80% of households had inherited from parents, 16% had land allocated by the Village Head, and 1% had purchased land. The same study found that land, once allocated to a family/ lineage the land was perceived to be the property of that family in perpetuity.7
After independence in the late 1960's, focus of the government was on the development of a black estate sector. Land was transferred to this sector from areas held under customary tenure ultimately at the expense of the customary sector. By the 1990's the transfer of land from customary tenure to estate tenure had reached alarming proportions. In some districts, as much as 50% of customary land had been converted to leasehold.8 The continued transfer of customary land to other forms of tenure has posed a threat to the tenure security and the livelihoods of residents in these areas. Over the years states have generally remained under-utilised while pressure on natural resources, particularly land, has continued to increase in areas held under customary tenure.
The Land Utilisation Study by Bosworth (1998) identified the following as being some of the most pressing problems on customary land:
- Diminishing holding:
a large number of households are experiencing diminishing holding sizes as a result of reallocation to relatives and children.
- Landlessness:
3% of households in the customary sector (about 75,000 households) have no land for cultivation.
- Land conflicts:
Conflicts in the customary sector have been on the increase mainly as a result of land pressure.
- Land management practice:
The breakdown in the systems of managing natural resources has led to the degradation of natural resources
2.3.2 Inheritance of Customary Land
The inheritance of customary land in Malawi is not catered for under statutory law. This means that customary law applies with respect to the inheritance of customary land.9 Malawi has two customary systems of inheritance, the matrilineal and the patrilineal systems. Under a matrilineal system, chieftaincy is handed down through the female line. Under this system, women's rights to customary land tend to be primary. However, this is not always the case. Under matriliny the inheritance of customary land does not appear to be very problematic, the same cannot be said of leasehold estates, especially where the leaseholder dies intestate. 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. The Presidential Commission in Malawi identified the rule that a man's rightful heirs are his sister's children and not his own as a major cause of conflict over property (including leases), between cousins. The Commission also noted public preference for a rule that would permit direct inheritance to all categories of property by surviving spouses and children.10
2.3.3 Customary Land Administration
Traditional Authorities play a key role in the development of their respective areas as they exercise a lot of influence over their constituents mobilizing the people to participate in various developmental activities. Aside from taking the lead in the development effort of their area as chairpersons of Area Development Committees (ADCs), TAs also act as custodians of cultural and traditional values and are task upon to perform quasi-judicial functions.
Land is often under control of traditional leaders ensuring authority over land is passed in succession from one generation to another. Disputes over land, classified as customary are mainly settled by the traditional leaders.
2.3.4 Gender and Land in Malawi
The statistics concerning women, land and agriculture in Malawi are similar to those in neighbouring countries in the region. About 52 % of Malawi's population are women, of whom 93 % live in rural areas. Of these approximately 85% are primarily involved in subsistence agriculture. In addition, studies have shown that close to 30% of rural households in Malawi are headed by women who are divorced, separated, widowed, unmarried, married to polygamous husbands or married to husbands who are migrant workers.
In the case of Malawi gender land relations are made more complex by the fact that some societies are matrilineal. This matriliny regime influences rural life in Malawi and is part of a matrilineal belt that runs through Zambia, Malawi, Tanzania and Mozambique. In the Southern and Central Region, main ethnic groups are the Chewa, Yao, Nyanja and Ngoni, which are mostly matrilineal, the only exception being the groups in Chikwawa and Nsanje districts. In matrilineal societies inheritance of property is through the female line. By contrast in the Northern Region, the main ethnic groups are the Ngoni, Tonga, Ngonde and Tumbuka, which are predominantly patrilineal. After paying the bride prize the man takes his wife to his village.
In Malawi, legislation pertaining to acquisition of freehold land does not discriminate between the sexes.11 In fact, Malawi is one of only a few countries in Southern Africa which do not qualify their equality clauses. Women and men have de-jure access and control to land. However due to the biases of those responsible for the administration of land, the de-facto position is that women do not enjoy equal access, control and ownership of land.12 The WLSA study on Women and Land In Southern Africa concluded that in Malawi rights to traditional land for women in matrilineal systems are primary in theory. While user rights are held by, and through women, with the husband accessing the land through his wife, the woman’s tenure is at the discretion of her maternal uncle. Of particular significance to women in this situation is the fact that, the apparent primary rights to the land that she enjoys neither translate into the power to control the use of the land nor its products. In practice husbands still claim that right for themselves. The observation that matriliny operates in a patriarchal environment men are still the main decision makers has been made by other authors.13
The Land Act is silent on gender in that it does not provide guidelines on how men or women may inherit land in case of death of a spouse or close relative. The main legal instrument which provides guidelines on how property, including land, of a deceased may be disposed of is The Wills and Inheritance Act. This is particularly applicable to private land. However, women still face difficulties relating to the application of the law. Firstly, most people in Malawi are not familiar with wills In cases where the property of a deceased has no specific administrator appointed, the Administrator General has statutory prerogatives to take over administration of the estate. Allegations of the collusion of officials and relatives of the deceased husbands against bereaved women have been made.14
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| Footnotes: |
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- Sentinel Surveillance Report 2001: National AIDS Control Commission – Malawi
UNDP Development Report 2000 & Population Census 1998.
The HIV/AIDS Epidemic in Malawi - UNAIDS August 2001.
The HIV/AIDS Epidemic in Malawi. The Situation and Response - UNAIDS, August 2001.
- (UNAIDS Joint United Nations Programme on HIV/AIDS "AIDS epidemic update December 2000" and report on the Global HIV/AIDS epidemic, June 2000, UNICEF Children Orphaned by AIDS frontline responses for Eastern and Southern Africa, December 1999)
- Bosworth, 1998
- Quan, 1998
- Mbaya, 2001
- Saidi, 1998
- However, women are disadvantaged by a general lack of information on how to buy and register land, claim ownership, or contest land rights (WLSA, 2000).
- WLSA, 2000
- e.g. FAO, 1993
- Kabuye, 1997
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