Abstract
The purpose of this study is to examine rigorously the relationship between HIV/AIDS
and land rights in Kenya. This means, first, developing our understanding of the various
mechanisms that may link the AIDS-affectedness of a household to a change in that
household’s land tenure status, and in particular, how these relate to the legal, economic
and cultural context; second, attempting to gauge the frequency with which these
phenomena occur, in particular relative to the experience of land tenure change
generally; and third, identifying practical measures that could be introduced to reduce the
extent to which HIV/AIDS diminishes tenure security.
The study involves in-depth investigation of the link between HIV/AIDS and land tenure
in three rural sites. Although this falls short of a nationally representative sample, it has
allowed for some cross-regional and cross-cultural comparisons. Moreover, the intention
of the study was to develop and test a research methodology that could be refined and
then replicated elsewhere in the future. The research involved a combination of
participatory research techniques, household surveys, and in-depth person-to-person
interviews, and attempted to distinguish the role of HIV/AIDS in aggravating tenure
insecurity from other possible influences. The three sites that were ultimately identified
were located in Embu, Thika, and Bondo Districts, in Eastern, Central, and Nyanza
Provinces respectively. Pastoral and urban areas were specifically excluded as their
inclusion would have vastly expanded the ambit of the study. The fieldwork was
conducted in September and October 2002.
The over-arching finding of this study confirms the conclusions from earlier studies, that
the AIDS epidemic can undermine the tenure security of some community members, but
underlines that threats to tenure security do not necessarily result in actual or sustained
loss of land tenure status. There was little or no evidence of distress sales of land as a
direct consequence of HIV/AIDS and far fewer examples of dispossession of widows’ and
orphans’ land rights in our study sites than the general literature and anecdotal accounts
had led us to anticipate. This is not to diminish the severity of the social and economic
costs of HIV/AIDS, but to caution against focusing only on HIV/AIDS as a threat to tenure
security or to assume a mono-causal link between the onset of HIV/AIDS and land loss
and dispossession. There are many other pressures on land rights – including poverty and
unequal gender relations between men and women – which impact on both AIDSaffected
and non-affected households. Within AIDS-affected households, there are a
number of mediating factors which influence the shift from heightened tenure insecurity
to loss of land rights and/or access by households or by individual household members.
This study highlights the interaction of four of these factors:
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The nature of the HIV/AIDS pandemic at the local level, including its prevalence and, importantly, duration, as well as the levels of stigma and denial in operation.
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The nature of the land tenure system, including the availability of resources with which vulnerable members of society may defend their rights.
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Demographic pressures on land.
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Social factors relating to gender relations, the status of women, and social networks.
Thus the study brings out elements of resilience and adaptability in people’s responses to
the pandemic.
Overwhelmingly, those who are vulnerable to the loss of or threat to tenure status, are
widows and their children. The presence of a male child can attenuate this possibility, but
does not always do so. Young widows are more vulnerable than older widows. There was unconfirmed anecdotal evidence relating to unspecified neighbouring communities or
households, but no clear examples were observed in any of the sites of AIDS-orphans
being dispossessed of land, nor were any child-headed households directly encountered.
Rather, minding orphans represents a significant burden for guardians, which access to
the orphans’ land may or may not be helpful in attenuating.
Although the present study does confirm that HIV/AIDS can aggravate the vulnerability of
certain groups to tenure loss, in particular widows, the finding is that the link between
HIV/AIDS to land tenure loss is neither omnipresent nor the norm. The question then
must be asked why this study appears to contradict the perception at large, in part based
on the findings from other studies, to the effect that tenure loss due to HIV/AIDS is
rampant. The main reason is that, by virtue of also studying non-affected households and
by probing the circumstances in which tenure changes have occurred, the present study
offers a more balanced view than studies that seek out only AIDS-affected households
and/or assume a necessarily causal link between AIDS and tenure changes. Another
methodological consideration is that this study sought to give precedence to personal
accounts of tenure change due to HIV/AIDS, rather than querying people for anecdotal
information at large, for example, as to the incidence of land grabbing. On a more
negative note, however, the methodology employed had one serious shortcoming in that
it did not trace people who had left the study sites in order to ascertain the exact
circumstances of that departure.
Generally speaking, it is difficult to demonstrate that the evidence of absence is not rather
an absence of evidence. On the premise, however, that our findings are robust, it
suggests that, on the one hand, there is indeed reason to be concerned about the impact
of HIV/AIDS on the land rights and land access of vulnerable groups, particularly in light
of the fact that in the near future the death toll from HIV/AIDS can be expected to
continue climbing in many parts of the country. On the other hand, the other implication
is 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.
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