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II. WOMEN’S RIGHTS TO LAND AND OTHER NATURAL RESOURCES


2.1. Introduction

This chapter examines women’s rights of access to and management of land and other natural resources. These are mainly determined by two areas of law: general civil law (property, family and succession law) on the one hand, and agrarian and natural resource law on the other. For instance, even where land legislation per se is gender neutral, women’s land rights may be curtailed by discriminatory norms of family law (e.g. restricting the legal capacity of married women to administer property) and of succession law (especially where land sales are rare and inheritance is the primary form of land acquisition). Within natural resource legislation, particular attention is devoted here to land law, both because rights to other natural resources (e.g. water) may depend upon land rights, and because land legislation usually affects women’s rights more directly (while other natural resource legislation rarely contains gender related provisions).

Rights to natural resources are extremely important for rural women. First, women’s livelihoods crucially depend upon them, especially in developing countries. Second, the nature and extent of these rights affect women’s bargaining power within the household (vis-à-vis husbands and male family members), as well as in the community and society at large. Thus, while land reform programmes adopting the household as the beneficiary unit and issuing land titles to the (male) household head may still provide female household members with access to land, they may undermine their bargaining power (and thus their social position).

Before starting the analysis, two preliminary observations need to be made. First, in examining natural resource rights in different countries, it must be remembered that the nature and content of these rights may vary considerably across countries (e.g. individual freehold property, use rights in state-owned land and legally recognized customary rights). The focus here is on whether these rights, whatever their nature and content, are differentiated on the basis of sex/gender. Second, even where formal legislation is gender neutral, women may be prevented from acquiring and enjoying natural resource rights by socio-cultural practices. Therefore, data e.g. on the share of land titles held by women would provide helpful insights on the rights really enjoyed by women. However, systematic collections of this kind of data are extremely rare. This difficulty may limit the effectiveness of this study in analysing the natural resource rights actually enjoyed by women.

2.2. Relevant international law

At the international level, provisions concerning women’s rights to natural resources are embodied in human rights law, in international environmental law and in soft-law instruments.

Under international human rights law, women have a right to own and administer property without discrimination (UDHR; arts. 2 and 17, CEDAW, art. 15), and to an “equal treatment in land and agrarian reform” (CEDAW, art. 14(2)(g)). Within the family, both spouses have equal rights in the “ownership, acquisition, management, administration, enjoyment and disposition of property” (CEDAW, art. 16). Women’s water rights are protected by article 14(2)(h) of the CEDAW (right to adequate living conditions, including in relation to water supply); rights to potable water are also linked to the right to adequate food recognized, without discrimination, in article 25 of the UDHR and article 11 of the ICESCR.

Soft-law instruments have been adopted by the human rights bofies of the United Nations. For instance, Resolution 15 (1998) of the Sub-Commission on the Promotion and Protection of Human Rights (entitled “Women and the Right to Land, Property and Adequate Housing”) stated that discrimination against women with respect to acquiring and securing land constitutes a violation of human rights law, and urged governments to amend and/or repeal discriminatory laws and policies and to encourage the transformation of discriminatory customs and traditions (paras. 1 and 3).

As for international environmental law, the preamble of the Convention on Biological Diversity recognises women’s “vital role” in the conservation and sustainable use of biodiversity, and affirms the “need” for their participation in policies concerning these issues (para. 13). Gender-specific provisions are also embodied in the 1994 Convention to Combat Desertification, which provides for the facilitation of women’s participation in efforts to combat desertification at all levels, and specifically for their effective participation in national action programmes and as an instrument for capacity building (arts. 5, 10 and 19). Women’s participation in national action programmes is also required by article 8 of the Regional Implementation Annex for Africa. The annexes for Asia, Latin America and the Northern Mediterranean do not specifically mention women, although articles 4 and 5 respectively refer to article 10 of the Convention (which envisages women’s participation in national action programmes).

Among Rio soft-law instruments, principle 20 of the Rio Declaration states that “women have a vital role in environmental management and development”, and that “their full participation is therefore essential to achieve sustainable development”. The Non-Legally Binding Authoritative Statement of Principles on Forests calls for women’s participation in the planning, development and implementation of national forest policies and in the management, conservation and sustainable development of forests (principles 2(d) and 5(b)). Moreover, Chapter 24 of Agenda 21 is specifically devoted to gender.

Women’s rights to natural resources have also been addressed in soft-law documents adopted by other international conferences. The Beijing Platform for Action envisages legislative and administrative reforms to ensure gender equality in access to natural resources, including inheritance and ownership rights (para. 61(b)). Similarly, the World Food Summit Plan of Action affirms the objective of ensuring gender equality and women empowerment (objective 1.3) and envisages measures to enhance women’s access to natural resources (para. 16(b)).

2.3. The Americas

2.3.1. Regional overview

The ACHR states the right of everyone to the use and enjoyment of property, without discrimination on the basis of sex (arts. 1 and 21), and the principle of equality of rights and “adequate balancing of responsibilities” of the spouses within marriage (art. 17(4)).

However, in Latin America, rural women rarely own and administer land, due both to legal and socio-cultural obstacles. As for legal obstacles, family law may recognise the husband as household head or representative (e.g. Nicaragua, article 151 of the Civil Code; Dominican Republic, article 213 of the Civil Code; Honduras, article 167 of the Civil Code), and grant him exclusive administration rights over family property (e.g. Dominican Republic, Civil Code; art. 1421, Honduras, Family Code, art. 82) and even over the personal property of the wife (Dominican Republic, Civil Code, art. 1428) (Galan, 1998).

As for agrarian law, various countries of Latin America have a long history of agrarian reform aimed at eliminating the great land concentration and the dualistic latifundio - minifundio land tenure structure. While in some cases reform programmes have redistributed substantial land areas (e.g. Cuba), in most cases lack of political commitment has limited the effectiveness of the agrarian reform. In any case, most agrarian reforms have targeted household heads and permanent agricultural workers in formal employment; in practice, both groups consist predominantly of men. Only in a few countries (Nicaragua and Cuba) have women been direct land reform beneficiaries.

The Nicaraguan Agrarian Reform Act of 1981 does not apply the household head criterion for land allocation, and specifically recognises women as direct beneficiaries of the land reform regardless of their family status. However, women gained little access to land under the redistribution programme due to cultural factors; in practice, when land was required by a household (which was usually the case), title was issued in one name only, usually the name of the husband/father (Galan, 1998). Land redistribution halted in the 1990s, and a land titling programme was adopted. Law 209 of 1995 states that men and women have equal rights to obtain land titles (art. 32), and allows joint titling for couples. Joint titling for couples (whether married or not) was made compulsory by article 49 of Law 278 (1997), whereby titles issued in the name of the household head are considered as issued to both spouses/partners. This titling programme has led to a considerable increase of women landowners.

In many countries, agrarian reform legislation has recently evolved toward greater recognition of women’s rights. For instance, in Honduras, while under the Agrarian Reform Law of 1974 beneficiaries were men over 16 and women were allocated land only if they were household heads (art. 79), Decrees 129 of 1991 and 31 of 1992 (Agricultural Sector Modernisation and Development Act) eliminate discrimination and allow joint titling upon request. In Bolivia, the National Service for Agrarian Reform Act of 1996 states that the Service is to apply, consistently with the Constitution and the CEDAW, “equity criteria” in land distribution, administration, tenure and exploitation for women, regardless of their marital status (art. 3(V)). In Paraguay, the 1992 Constitution includes among the fundamental principles of the agrarian reform women’s participation in reform plans on the basis of equality with men, and support for rural women, particularly those heads of households.

While systematic sex-disaggregated data on land reform beneficiaries is scarce, available evidence indicates that only a very small percentage of women benefited from land redistribution programmes (between 4 and 15 percent in Chile, Colombia, Costa Rica, El Salvador, Honduras, Mexico, Nicaragua, and Peru) (Katz, 1999).

On the other hand, in several Latin American countries, women have been actively involved in social movements struggling for access to land, both general agrarian movements (e.g. Movimento dos Trabalhadores Sem Terra, in Brazil) and specifically women’s movements (e.g. Federación de Mujeres Campesinas, in Cuba; Asociación de Mujeres Nicaragüenses, in Nicaragua; Federación Hondureña de Mujeres Campesinas, in Honduras; Asociación Nacional de Mujeres Campesinas e Indigenas, in Colombia).

2.3.2. Mexico

In Mexico, civil law varies from state to state. The Federal Civil Code of 1928 applies to the whole federation for matters within the federal responsibility, and to the Federal District (Mexico City) for matters within state responsibility (art. 1).

Under this Code, property law does not differentiate on sex/gender grounds (arts. 830-853). Within the family, the spouses have equal authority in the management of family affairs, including in the administration of property (art. 168). Family property is held under either community or separation of property, depending on the agreement reached by the spouses (arts. 178 and 179). Under community of property, it is the matrimonial agreement that determines the modalities for the administration (arts. 189(VII) and 194). Each spouse exclusively administers his/her separate property, without need for the authorization of the other spouse (art. 172).

In testamentary succession, the testator has nearly absolute freedom of will, and may therefore disinherit the spouse, except for a duty to provide for the maintenance of the spouse without adequate property and unable to work (provided that the spouse does not marry again and “lives honestly”; art. 1368(III)). A similar provision applies, under certain circumstances, to de facto spouses (art. 1368(V)). In case of intestate succession, the spouse inherits in the same amount envisaged for a child (arts. 1624 ss.). Agrarian law includes specific succession norms (see below).

Field studies on inheritance practices reveal that land inheritance by the male eldest son is very common in rural areas, as is inheritance by all male children (while daughters tend to inherit only when they do not receive dowry at marriage) (Quintana et al., 1998, on Sierra Norte de Puebla).

As for agrarian laws, Mexican legislation is characterized by a longstanding agrarian reform, carried out under Article 27 of the 1917 Constitution, as amended in 1992. The beneficiaries of the reform are community-based institutional arrangements, ejidos and comunidades[4]. These control some 50 percent of Mexican agricultural land (Thompson and Wilson, 1994), and encompass diverse realities, ranging from common property regimes to communities allocating parcelled plots to ejido members (see article 44 of the 1992 Agrarian Law). The reform reached its peak in the period 1934-1940 (Agrarian Code of 1934), and slowed down after the 1970s (Heath, 1992; Thompson and Wilson, 1994). The 1992 reform involved individualisation (allocating plots to individuals rather than to households), privatisation and market liberalisation measures (e.g. allowing ejido land sales and rentals and land ownership by national and foreign corporations).

Under the 1992 Agrarian Law, both men and women may be ejidatarios (art. 12). Therefore, despite the fact that the law adopts a masculine terminology (e.g. “ejidatario”), men and women have equal rights to obtain individual land parcels (art. 76), to use common lands (art. 74) and water resources (art. 52), to obtain definitive property title over ejido parcels (art. 82), to sign agrarian contracts (aparceria, medieria, etc.; art. 79), to participate in ejido institutions (e.g. the assembly; art. 22), and so on.

However, in practice only a small number of ejido members are women (16.3 percent in 283 ejidos surveyed by Katz, 1999), and women members usually obtain their status through succession from their husbands rather than through direct land allocation under the land reform (FAO, 1994). Percentages of women in ejido leadership positions are even lower; for instance, only 4.9 percent of the members of the comisariados ejidales surveyed by Katz (1999) were women. This gender-unequal distribution of land rights is partly due to the historical evolution of the Mexican land reform. The 1920 ejido law provided for the allocation of ejido rights to household heads (jefes de familia); although this expression per se was gender neutral, the husband/father was considered the household head. Moreover, article 97 of the 1927 Ley de Dotaciones y Restituciones de Tierras explicitly stated that those eligible to be ejido members were men over 18, while women could become ejidatarias only if they were household heads. Only with the 1971 Federal Law of Agrarian Reform did women gain equal rights to men for ejido membership (art. 200) (Stephen, 1996).

Decisions on the alienation of allocated plots are taken exclusively by (usually male) ejido right holders, without need for spousal consent. Family members have a right to pre-emption (“derecho del tanto”) (art. 84), although women’s limited access to credit may in practice constrain the exercise of this right (Katz, 1999).

The recent substantial male out-migration has provided new opportunities for women. In some cases, women (mainly daughters of ejidatarios) have acquired the status of ejidatario and gained access to plots due to the lack of male applicants (ejido San Francisco Tecoac, in Tlaxcala; Katz, 1999). However, in most cases, women’s lack of formal ejido title (usually remaining vested with migrating male family members) constrains their production effort, for instance by hindering their access to credit (Katz, 1999).

The ejido assembly may allocate land (preferably land of best quality and close to urban areas) to women over the age of 16, in order to allow them to run, through associations called Unidades Agrícolas Industriales de la Mujer (UAIMs), crop and livestock farming and rural industry activities, as well as to host installations for women’s services and protection (art. 71)[5]. The Agrarian Law Regulation on the Promotion of the Organisation and Development of Rural Women, adopted on 5th August 1998, governs the functioning of women’s associations (e.g. it specifies that association members may be female ejidatarias or family members of ejidatarios, art. 10); qualifies the land rights of UAIMs (e.g. these cannot perform acts implying ownership of the allocated land, art. 14); and envisages support measures to be adopted by the government and the ejido assembly to promote women’s productive activities (arts. 4 and 6). Only a limited number of ejidos have in practice allocated land to women’s groups (12 percent of the ejidos surveyed by Katz, 1999).

As for succession in ejido rights, the 1992 individualisation of ejido rights (from households to individuals) eliminated the automatic inheritance by family members, with potential negative effects on female spouses and children. The 1992 Law allows ejidatarios to freely choose one heir (ejido rights cannot be subdivided) among the spouse (with or without marriage), a child, or “any other person” (art. 17). The ejidatario may therefore exclude the spouse from succession in his/her rights. Where there is no will, however, the spouse (whether with or without marriage) is the first one to inherit (art. 18).

In practice, field studies from the Sierra Norte de Puebla reveal that a son is usually chosen as heir, due to widespread socio-cultural stereotypes. For some crops (e.g. milpa, i.e. maize alone or in combination with other crops), women’s inheritance is prevented by socio-cultural practices that do not allow women to grow those crops on their own (while for instance land planted with coffee or fruit trees may be inherited by women). Women’s age is another factor taken into account (young widows tend not be designated as ejido heirs because it is feared that they find another partner and take the parcel outside the patrilineal family) (Quintana et al., 1998). In addition, in Guerrero, Oaxaca and Tlaxcala, the eldest son is usually chosen as ejido heir, while wives tend to be preferred in Quintana Roo, Coahuila and Sonora (Katz, 1999).

Forestry legislation (1992 and 1997 Laws) makes no reference to gender/sex. The Federal Law on Water Rights of 1998 is gender neutral (rules on water rights refer to “personas físicas o morales”; e.g. art. 222). However, unequal land rights entail unequal water rights for land irrigation purposes; moreover, field studies reveal that men can circumvent formal rules and procedures and obtain access to water through informal networks (e.g. bribing and/or maintaining good relationships with water officers), while women are prevented from doing the same by social reputation norms (Zwarteveen, 1997). The Operative Rules on water infrastructure projects (irrigation, sanitation and potable water supply), adopted on 14 March 2000, allocate resources to promote the participation of all groups, “particularly women” (para. B.3.a).

2.3.3. Brazil

In the last century, Brazilian civil law has had a profound evolution, with considerable improvement in women’s legal status[6]. In its original formulation, the Civil Code of 1916 adopted a hierarchical model of household: the husband was the household head, exclusively administering both family property and the separate property of the wife (art. 233); the wife was “partially incapable” (art. 6), and needed the authorization of the husband to contract obligations, sell property, and accept inheritance (art. 242). These norms were amended by Law 4121 of 1962 (“Statute of the Married Woman”), which abrogated the provisions on the “partial incapability” of the wife and reduced the number of acts requiring marital authorization. The husband was confirmed as the household head administering family property, although this function was to be performed “in collaboration with the wife”. In 1977, legislation on divorce introduced the partial community of property regime, whereby each spouse has equal rights to administer common property and administers his/her separate property. The 1988 Constitution states that the rights and duties concerning the conjugal society are equally exercised by the husband and the wife (art. 226(5)), thereby repealing all the remaining discriminatory provisions of the Civil Code.

A new Civil Code was adopted in January 2002, and will enter into force in January 2003. The Code provides for the equality of rights and duties of the spouses (arts. 1511 and 1567). The matrimonial regime is determined by prenuptial agreements, and in the absence of which the partial community of property regime applies (arts. 1639-1688).

Succession norms do not discriminate on the basis of gender. The Civil Code of 2002 lists the surviving spouse among the intestate heirs (provided that there is no separation; articles 1829-1832) and among the necessary heirs (arts. 1845, 1846 and 1789). On the other hand, there are reports that discriminatory succession practices continue to be applied in rural areas, particularly with regard to the exclusion of daughters from inheritance of land (Guivant, 2001).

Brazil has a longstanding agrarian reform programme, although land distribution remains among the most unequal in the world. The programme was set up by Law 4504 of 1964 (“Land Statute”), envisaging a process of land expropriation and distribution by a public body (IBRA, later renamed INCRA). The agrarian reform has subsequently been the object of extremely vast legislation. The Agrarian Law is now contained in Law 8629 of 1993. Laws adopted in the 1990s (e.g. Laws 88 of 1996 and 1577 of 1997) brought amendments to accelerate the reform process. In addition to the federal agrarian reform programme, some states in the Northeast have adopted state agrarian reform programmes based on the “willing-seller willing-buyer” principle.

Women’s rights under the reform programme have evolved, with considerable improvement after the 1988 Constitution. The following sections consider women’s position in the agrarian reform, particularly with regard to direct land allocation to women. Since the matrimonial regime applicable in absence of ante-prenuptial agreements is partial community of property, land registered to one of the spouses after marriage legally belongs to both spouses.

For many years, redistributed land was registered mainly with men. Article 25 of the Land Statute, listing eligible land reform beneficiaries, does not explicitly discriminate against women. However, some criteria entail an indirect bias against women. For instance, priority is granted to household heads with many children; under the 1916 Civil Code, in force until 2003, the household head is the husband/father. Moreover, the terminology adopted is masculine (e.g. “posseiros, assalariados, parceiros ou arrendatários”), although this entails no discrimination per se. In land reform implementation, criteria for beneficiary selection included household labour force size, age and farming experience; while these criteria did not directly discriminate against women, in practice they tended to favour male applicants, as female-headed households are usually smaller and women farmers are not considered as professional full-time farmers because of cultural stereotyping (Barsted, 2002).

Article 189 of the 1988 Constitution explicitly states that both men and women, regardless of their marital status, can be allocated property rights or concessions under the agrarian reform programme, either individually or jointly. Therefore, gender equality within the land reform programme is now guaranteed. Law 8629 of 1993 states that land titles are to be allocated to men and women, either individually or as joint owners (art. 19). Ordinance 33 of 2001, adopted by the Minister for Agrarian Development, institutionalizes an affirmative-action programme to facilitate rural women’s access to land.

Nonetheless, in practice land reform programmes still register land mainly with the husband. Joint registration is rare, inter alia because a substantial number of rural women lacks the documents required in order to obtain land titles (identity card, tax registration number - CPF, marriage certificate, etc.) (Guivant, 2001). The 1996 Agrarian Reform Census revealed that only 12.6 percent of land reform beneficiaries were women, although with considerable cross-state variation (Barsted, 2002). This is mainly due to socio-cultural factors concerning the gender division of roles within the family, which in rural areas are widespread and internalized by women themselves (Barsted, 2002). For instance, there is anecdotal evidence that where plot registration is required by a woman, indicating the husband as dependent, land reform officers suspect the existence of legal or other impediments to registration with the husband (Guivant, 2001).

Women have actively participated in agrarian movements struggling for access to land. The Movimento dos Trabalhadores Sem Terra (Landless Workers Movement) is the largest movement struggling for land reform in Brazil, including through land occupations. The Movement has women leaders at regional and national level; for instance, nine out of 21 members of the National Committee, the highest organ of the Movement, are women. It has also established a National Gender Collective (previously named National Council of Landless Women) to promote a gender approach in its activities. However, women’s rights tend to receive little emphasis in the demands of the Movement (Guivant, 2001).

2.4. Sub-Saharan Africa

2.4.1. Regional overview

The ACHPR guarantees without discrimination the right to property arts. 2 and 14), and mandates states to eliminate every discrimination against women and to protect women’s rights (art. 18(3)). On the other hand, differently from other international human rights instruments, the ACHPR does not explicitly state the equality of spouses during and after marriage, and places particular emphasis on the promotion and protection of African “traditional values” recognized by the community (arts. 17(3) and 18(2)). The Draft Protocol on the Rights of Women in Africa (not yet adopted) provides for the integration of a gender perspective in national legislation (art. 2(1)(c)), for equality of rights of the spouses within marriage, including in relation to property (art. 7), for the right of married women to acquire and freely administer separate property (art. 7), for equality of property-related rights upon divorce or annulment of marriage (art. 8(c), for equality in inheritance rights (art. 21), and for women’s access to land (art. 15(a)).

In much of sub-Saharan Africa, few rural women hold land. For instance, women hold 11 percent of agricultural land in Benin, 25 percent in Congo, and 25 percent in Tanzania; in Zimbabwe, women hold 3 percent of agricultural land in the smallholder sector and 10 percent in the large-scale commercial sector (FAO, 1995). Moreover, where women hold land, their plots are generally smaller than those held by men: for instance, the average size of women’s landholdings is 0.98 hectares (compared to 1.76 for men) in Benin; 0.53 hectares (compared to 0.73 for men) in Tanzania; and 1.86 hectares (compared to 2.73 for men) in Zimbabwe (FAO, 1995). This limited access to natural resources is caused by both legal and socio-cultural factors. Legal obstacles relate both to family and succession law and to natural resource law.

As for the former, some countries have improved women’s rights by adopting family and succession laws abrogating discriminatory customary norms (e.g. Ghana’s Intestate Succession Law of 1985; Tanzania’s Law of Marriage Act of 1971). In Ethiopia, the Revised Family Code of 2000 grants spouses equal rights in the management of the family (art. 50(1)); provides (with some exceptions) for community of property in relation to property acquired after marriage, creating a presumption of common property for goods registered in the name of one spouse and requiring the consent of both spouses for property transfers (arts. 58, 62, 63 and 68); and envisages joint administration of family property (art. 66). The Ethiopian Code also envisages community of property for de facto unions lasting for not less than three years (art. 102). In Malawi, the 1995 Constitution grants women equal legal capacity to enter into contracts and acquire and maintain property rights, regardless of their marital status. In other cases, however, discriminatory norms remain. For instance, in Lesotho family property is administered exclusively by the husband, and in Shuping v. Motsoahae the court upheld the alienation of a joint estate decided by the husband without consulting the wife (Ankumah, 1996).

As for natural resource legislation, for long this made no explicit reference to gender. Since the 1990s, however, some African countries have explicitly included gender equity in land legislation, e.g. by explicitly stating the principle of gender equality in land rights, abrogating discriminatory customary norms, improving the position of widows in intestate succession, presuming joint ownership of family land, outlawing land sales without consent of both spouses, strengthening divorcees’ rights to family land, and ensuring women’s representation in land management bodies.

For instance, the Eritrean Land Proclamation of 1994 explicitly states the principle of non-discrimination in land rights (arts. 4(4), 6(8) and 11(3)), and regulates women’s land rights within succession (art. 12), marriage (art. 15) and divorce (art. 16). Under the Mozambican Land Act of 1997, both men and women may have use rights in state-owned land, and succession cannot discriminate on grounds of sex (arts. 10(1) and 16(1)). Niger’s Rural Code of 1993 recognises the “equal vocation” of citizens to access natural resources without sex discrimination (art. 4).

Under the Ugandan Land Act of 1998, customary land right certificates are to be issued recording all interests in land not amounting to ownership, including customary use rights (usually enjoyed by women in their husband’s land) (sec. 6(1)(e)). Moreover, while decisions on land adjudication are to be made according to customary law, decisions denying women access to ownership, occupation or use are null and void (sec. 28). Specific provisions ensure women’s representation in the Uganda Land Commission (at least one member; section 48(4)), in Land District Boards (at least one third of the members; section 58(3)) and in parish-level Land Committees (at least one member; sec. 66(2)). While selling, leasing or giving away land requires the consent of the spouse (sec. 40), a clause introducing presumption of spousal co-ownership, initially included in the Act passed by the Parliament, was excluded by the President from the gazetted text.

The Tanzanian Land Act of 1998 includes among its fundamental principles the facilitation of “an equitable distribution of and access to land by all citizens” (sec. 3(1)(c); sec. 3(2)) explicitly affirms the equality of men’s and women’s land rights. Spousal co-ownership of family land is presumed (sec. 161). Consent of both spouses is required to mortgage the matrimonial home (sec. 112(3)), and in case of borrower default the lender must serve a notice to the borrower’s spouse before selling mortgaged land (sec. 131(3)(d)). Moreover, a “fair balance” of men and women is to be ensured in the appointment of the National Land Advisory Council (sec. 17).

As this legislation has been enacted only recently or is still in the process of being enacted, it is still premature to assess its real impact on women’s land rights. In some cases, lack of resources severely constrains the implementation of adopted legislation (e.g. Uganda’s Land Act). Other recent land legislation does not contain provisions on gender. For instance, Law 98-750 (1998) of Côte d’Ivoire, while stating that “every person” may access land, makes no reference to gender.

Differently from Latin America, land ownership in sub-Saharan Africa is generally not strongly concentrated. Important exceptions nonetheless exist, and land redistribution programmes have been adopted for instance in Zimbabwe and South Africa. Women’s rights under the South African programme are analysed below (sec. 2.4.4).

Legislation concerning natural resources other than land usually does not explicitly address gender issues, although some exceptions exist (e.g. South Africa’s water legislation).

Judicial decisions have also played an important role in determining women’s rights to natural resources. On the positive side, discriminatory norms have been invalidated on constitutional grounds. In Nigeria, following a case law modifying discriminatory customary norms[7], the Enugu Division of the Court of Appeal invalidated customary norms providing for inheritance by male family members only (Mojekwu v. Mojekwu, 1997, 7 NWLR 283) and subjecting inheritance by daughters to their undertaking to remain unmarried (Moujekwu v. Ejikeme, 2000, 5 NWLR 402; both cases are quoted in CRLP, 2001). In Tanzania, the High Court invalidated customary norms preventing women from selling land (Pastory case, see below, Box 1). In the Pastory and the Ejikeme cases, the courts explicitly referred to the CEDAW.

On the other hand, the Supreme Court of Zimbabwe has traditionally adopted a rigid and discriminatory interpretation of customary law, applicable in communal areas. In Jenah v. Nyemba (SC 4/86), the Supreme Court stated: “for African law and custom property acquired during a marriage becomes the husband’s property whether acquired by him or his wife” (quoted in Gopal and Salim, 1998:7). Relying on a constitutional provision exempting succession law and customary law from the principle of non-discrimination, the Court recently upheld a customary norm excluding women from intestate succession, awarding heirship to the second male child instead of the eldest female child on gender grounds (Magaya v. Magaya, 1998, SC 210/98, commented in Coldham, 1999).

Customary land tenure remains widespread in Africa even where land ownership is formally nationalised or privatised. Customary rules are extremely diverse. While land traditionally belongs to the lineage and access to it is usually determined by group membership and social status, customary tenure encompasses very different institutional arrangements, ranging from common property (usually for grazing land and forests) to household farming on plots allocated by the group authority (mainly for arable land). Where land is allocated to households, households’ rights vary from place to place: in most cases, these rights are inheritable but cannot be sold (especially to outsiders), although certain transactions are generally allowed (gifts, loans, etc.) and some systems allow land sales. In Africa, patrilineal systems prevail, whereby women’s land rights are limited mainly to avoid losing family land upon women’s marriage outside the family. Rights in arable land are usually allocated to the male household head, while women have “secondary” rights, i.e. cultivation rights obtained through the relationship with male family members (husbands and male relatives). Plots cultivated by women (mainly growing food crops) are often less fertile than those cultivated by men (mainly growing cash crops). Moreover, women’s inheritance rights are severely limited, not only in patrilineal systems (where property devolves along the male line, to the exclusion of women), but also in matrilineal systems (where although property traces through the mother’s line and women have greater rights than under patrilineal systems, land control usually rests with male family members). However, as land ownership is traditionally vested with the lineage, strictly speaking neither men nor women can “inherit” land; both have use rights, although women’s rights are weaker than men’s as the formers’ rights are mediated through and dependent upon the latter (Gluckman, 1969; Bruce, 1993; Lastarria-Cornhiel, 1997; Kevane and Gray, 1999b).

With population pressures, cultural change (e.g. the spread of Islam) and agricultural intensification and commercialisation, many customary systems have evolved towards greater individualisation. Family control over land has weakened, and the content of the rights vested in male household heads has broadened, becoming increasingly inheritable and transferable. In this context, women’s secondary rights have tended to erode, while the very rationale of women’s limited rights (retaining land under family control) has faded. This process of tenure individualisation and erosion of women’s rights has in some cases been accelerated by land registration and titling programmes (Lastarria-Cornhiel, 1997; Kevane and Gray, 1999b).

On the other hand, women enjoy important natural resource rights under customary law. For instance, women’s tree rights often include the right to collect fruit and fuelwood from trees planted in men’s fields or in men-controlled commons (e.g. Rocheleau and Edmunds, 1997, on the Luo of Kenya).

2.4.2. Kenya

Kenyan property law does not discriminate on the basis of sex/gender. Moreover, under the Contract Act, women have contractual capacity to acquire and administer property. Family law varies according to religious belonging (Marriage Act; Mohammedan Marriage, Divorce and Succession Act; Hindu Marriage and Divorce Act; African Christian Marriage and Divorce Act; customary marriages are recognized under section 37 of the Marriage Act)[8]. However, the property provisions are contained in the Married Women’s Property Acts of 1870-1884, which are English statutes now having general application (I. v. I., [1974] EA 278). Under these Acts, a married woman has the right to own property, and can sue her husband to protect her rights.

Under the Law of Succession Act of 1972 (into operation in 1981), female and male children have the same succession rights, and widows have a life interest in the intestate estate (which they lose with remarriage). However, inheritance of agricultural lands, crops and livestock continues to be governed by customary law (sec. 33), according to which wives and daughters usually do not inherit family property (Gopal and Salim, 1998; Mackenzie, 1998). In rural areas, it is widespread practice for fathers to leave land to their sons, in the expectation that daughters would be cared for by their husbands; this practice was upheld by the courts in the Njeru Kamanga case (Succession Case No. 93 of 1991, unreported, quoted in CRLP, 1997).

Land tenure in Kenya encompasses individual private property, group private property, state property, and land held in trust by the state. As for private property, land ownership by women is rare. Studies from Kajiado, Kisumu, Mombasa, and Muranga found that the majority of women do not own any land (Gopal and Salim, 1998).

A considerable amount of legislation governs trust land, which accounts for some 90 percent of the total land. In these areas, land titles are vested with county councils, which are to give effect to land rights existing under customary law (although they can also allocate land to non-residents and persons without customary title) (Constitution, Sections 115-120; Trust Land Act of 1963). Moreover, a land tenure reform to convert customary rights into freehold was adopted by the colonial authority and continued by the post-independence government (Swynnerton Plan of 1954; Registered Land Act of 1963; Land Adjudication Act of 1968). Under these norms, land has been registered systematically (i.e. not upon application by landholders) in three phases: adjudication, i.e. ascertainment of existing customary land rights; consolidation, i.e. aggregation of fragmented holdings (with landholders exchanging dispersed for contiguous plots); registration, i.e. recording of titles over consolidated plots and their conversion into freehold. As for grazing land, the Land (Group Representatives) Act of 1968 allows the registration of collective property (ranging from families to “tribes”) through the creation of “group ranches”; however, many group ranches have subsequently been divided. Implementation of the Swynnerton Plan is still underway.

These norms do not formally discriminate against women. For instance, the Registered Land Act does not exclude women from possible titleholders, and uses gender neutral words like “proprietor”. However, the land tenure reform has affected women’s land rights. The reform intervened in a context where customary law was evolving towards increasing individualisation, with an erosion of women’s customary land rights[9]. In this context, the implementation of the land registration programme, carried out in a period in which gender was not in the development agenda, accelerated the individualisation process and further curtailed women’s land rights. First, land adjudication committees were male-dominated; in Luoland, for instance, all adjudication committee members were male (Shipton, 1988). Moreover, although all land rights, including under customary law, had to be recorded during adjudication (Land Adjudication Act, sec. 23), adjudication committees lacked skills and time to do so. Registration was usually made to male household heads, thereby undermining women’s unregistered secondary rights. In Kanyamkago, for instance, only 7 percent of the plots were registered to women as joint or exclusive right-holders, and 4 percent to women as exclusive owners (Shipton, 1988). Widespread non-registration of women’s rights is also documented for the Kikuyu (Mackenzie, 1998) and the Maasai (Galaty, 1994).

Although some judgements have protected non-registered right-holders by giving effect to or creating trusts (e.g. Muguthu v. Muguthu[10]), the dominant judicial interpretation is that registration extinguishes all non-registered rights (Obiero v. Opiyo; Esiroyo v. Esiroyo[11]). The negative effect of registration for the holders of secondary rights was aggravated by the exemption of the first registration from court rectification on grounds of fraud or mistake (Registered Land Act, sec. 143(1)). Moreover, section 144(1)(b), granting a right to indemnity to persons damaged by registration mistakes or omissions which cannot be rectified, explicitly excludes mistakes and omissions in the first registration[12].

Furthermore, in some areas consolidation of fragmented landholdings under the land tenure reform curtailed the relatively independent managerial control that women exercised over the dispersed family plots they cultivated (Fleuret, 1988).

On the other hand, some women gained from registration. For instance, widows sometimes registered land in their name, instead of returning it to the dead husband’s family under customary law (Shipton, 1988). Moreover, there is evidence that women’s customary secondary rights (e.g. access to men’s fields to harvest trees and graze livestock) are still de facto recognized (Rocheleau and Edmunds, 1997). In addition, the establishment of a (gender neutral) land market enabled women to purchase land on a (formally) equal position to men, abolishing customary limits to women’s land rights. Indeed, there are reports of women who have purchased land, both as individuals and in groups, and registered it in their name (Fleuret, 1988; Mackenzie, 1993 and 1998; Rocheleau and Edmunds, 1997). However, women’s constrained access to capital (credit, employment in the formal sector, etc.) limited their ability to gain access to land through purchases (Mackenzie, 1993 and 1998).

The operation of Land Control Boards is also relevant for women’s land rights. Under the Land Control Act of 1967, land transactions require the approval of the competent Land Control Board, which decides on the basis of economic and social criteria (e.g. prevention of uneconomic subdivision and of landlessness, respectively). On the one hand, the Constitution states that the principle of non-discrimination by public authorities does not apply to the activity of Land Control Boards (sec. 82(6)(b)). As for the composition of the Boards, no women representation is specifically required, and more than one-half of the board members must be “owners or occupiers of agricultural land within the province” (Land Control Act, Schedule, art. 1); given the little share of land owned or occupied by women, this provision may constitute indirect discrimination.

On the other hand, Land Control Boards have in many cases protected women’s land rights, e.g. by hearing the views of the spouse before approving land transactions and by refusing approval for transactions that ignored unregistered land interests. This mechanism reduced the negative effects of the immunity to challenge for mistake or fraud enjoyed by first registrations under section 143(1) of the Registered Land Act. However, many transactions are in practice carried out even when Land Control Boards refuse approval (Coldham 1978a; Gopal and Salim, 1998).

Overall, women’s land rights in Kenya are limited. The extent of these rights is determined by the interplay of customary and statutory law. Customary rules are invoked by women to challenge registration benefiting exclusively men, and by men to limit the rights acquired by women under statutory succession law (Mackenzie, 1993)[13].

Water rights are linked to land tenure. Under section 27(a) of the Registered Land Act, registration vests in the titleholder not only “absolute ownership of the land”, but also “rights appurtenant thereto”, including water rights. Under the Water Act, water ownership is vested in the state, and individuals can only have usufruct rights obtainable through a permit issued by the competent ministry. However, it is usually landowners that apply for permits for irrigation purposes, and some domestic uses by riparian landowners do not require a permit. Therefore, the gender-biased land distribution entails unequal water rights (Torori et al., 1996).

Under customary law, although women usually cannot plant trees (e.g. among the Luo), they have other well-established tree rights (e.g. the right to harvest fuelwood and fruit from communal and men-owned land). These rights are highly differentiated on the basis of age (with older women usually having stronger tree rights) and, in polygamous households, of marriage order. For instance, among the Luo of Siaya District, while citrus trees are owned by men, the fruits belong to the first wife. However, women’s customary rights of access and collection in common property lands are being eroded by agricultural commercialisation processes, involving privatisation of the commons usually to benefit male household heads (Rocheleau and Edmunds, 1997).

2.4.3. Burkina Faso

Family and succession law is embodied in the Persons and Family Code of 1990. With some important exceptions, this is inspired by the Western model of family (and of women’s position therein). Thus, article 234 prohibits levirate (i.e. forced remarriage of the widow with the heir of her deceased husband). An important exception to the Western model is the permission of polygamy; this was prohibited in the original draft code, but was subsequently allowed following intense popular pressures (Cavin, 1998). The matrimonial regime is community of property in case of monogamy, and separation of property in case of polygamy (art. 309). Sex discrimination within marriage is prohibited by article 23 of the Constitution.

The surviving spouse is among the intestate heirs, entitled to a share varying according to whether or not there are descendants (arts. 742-744). In case of polygamy, the same rules apply, and the surviving wives divide the widow’s share (art. 745). Children inherit without discrimination based on sex or origin of filiation (art. 733). However, daughters often “voluntarily” renounce to their statutory inheritance rights to land and livestock in favour of their brothers, on whose support they frequently depend (Puget, 1999).

As for general property law, article 15 of the Constitution, guaranteeing the right to property, makes no distinction on the basis of sex/gender. The norms of the Civil Code concerning property (arts. 544 ss.) are gender neutral.

Burkina Faso has had several agrarian reforms in the last two decades (1984, 1991, and 1996). Under Law 14/96 of 1996, land ownership is vested with the state (arts. 2-4), but can be transferred to private persons (art. 5). Under the law, men and women have equal land rights. State-owned land is allocated to physical persons without distinction based on sex or marital status (art. 62). Article 68, concerning land alienation to private persons, does not explicitly state the principle of non-discrimination but is gender neutral. At village level, land is managed by “commissions villageoises de gestion des terroirs” elected or nominated “suivant les réalités historiques, sociales et culturelles” (art. 46); there are reports that village institutions are in practice dominated by male elites (Engberg-Pederson, 1995; Pander, 2000). The 1996 Law also contains gender neutral norms on property rights in general and on water resources.

The Forest Code of 1997 contains no gender-specific provisions. Customary “domestic use” rights in public forests (generally harvesting of fruits and fuelwood by women) are recognized (art. 55 ss.).

Thus, legislation does not formally discriminate against women. In rural areas, however, it is customary law that is in practice mostly applied. Here follows a brief description of the customary rules of the Mossi, the majority ethnic group of Burkina Faso. Under Mossi customary law, land ownership belongs to the ancestors. Land is allocated by the chief (“chef de terre”), who is the intermediary between the ancestors and the alive. Only men can be chiefs. Women do not have direct land rights, but access land through husbands and male relatives. Every man has a duty to marry and allocate his wife a piece of land for her own agricultural activities. Women control the crops they grow (although these must be used to meet the household subsistence needs) and a share of the crops grown through their labour in their husbands’ fields. A widow may return to her family of origin, and be allocated land there; marry a younger brother of the deceased husband (levirate); or remain as widow with the in-law family. In the latter two cases, the widow maintains access to her husband’s family land. The degree of women’s freedom in levirate choices varies, ranging from quasi-compulsory remarriage in some groups to a considerable freedom to choose in others; in urban areas, women increasingly refuse remarriage. Levirate is formally prohibited by statutory law (Persons and Family Code, art. 234). Divorced women are to marry again, so as to gain access to the new husband’s land, and can be temporarily allocated plots by their family of origin. Moreover, women may borrow land from persons outside the family, although they have no secure tenure and their use rights are limited (e.g. they cannot plant trees). Women (wives or daughters) usually do not inherit land, although in some regions they enjoy greater inheritance rights. Even Muslim women, who under Shari’a law are generally entitled to half the share of men, tend to waive their rights in favour of their brothers. Population pressures and increasing land scarcity are further weakening women’s land rights: for instance, there are reports of husbands not allocating plots to their wives because they do not own enough land (Cavin, 1998; Kevane and Gray, 1999a; Pander, 2000).

Field studies suggest that some public irrigation projects entailed reallocations of land and water rights that disadvantaged women. In Comoé Province, for instance, while men control land on the uplands and grow groundnuts and cotton, women have land rights in the bas-fonds (lowlands) and cultivate rice. While land chiefs are men, land-cum-water authorities in the bas-fonds are often women. In this context, a water infrastructure project (“Opération Riz”, 1979-1993) was undertaken under Law 29 of 1963, empowering the government to expropriate existing resource rights and reallocate lifelong tenancy rights over the improved resource. In the first phases of the implementation, the project relied on male chiefs and on a male-biased interpretation of customary law. After the construction of the infrastructure, improved bas-fond plots (and relating water rights) were allocated to (male) household heads, ignoring women’s pre-existing rights. In subsequent phases of the project, this gender bias was removed: women participated in the decision-making process and obtained land-cum-water rights (van Koppen, 1998; see also Kevane and Gray, 1999a; Pander, 2000)[14].

2.4.4. South Africa

The property-related provisions of South African family law were amended in the 1980s and 1990s to improve women’s position. For centuries, Roman-Dutch common law granted the husband a “marital power”, whereby he exclusively administered family property and, unless otherwise specified in the antenuptial contract, the separate property of the wife. Marital power was progressively restricted by statutory norms (e.g. the Matrimonial Affairs Act of 1953). Under the Matrimonial Property Act of 1984, the spouses can choose the matrimonial regime they prefer (community of property; separation of property; partial community; or “accrual” system, whereby properties remain separated during marriage, but the spouses share “accruals” upon termination of marriage); in the absence of explicit choice, community of property applies. Under this regime, the spouses equally own and administer common property; marital power is abolished. The General Law Fourth Amendment Act of 1993 repealed the last surviving norms on marital power[15].

Women married under customary law have long been discriminated against. Under section 11(3) of the Black Administration Act of 1927, customary wives were considered minors subject to the guardianship of their husbands. This norm was repealed by the Recognition of Customary Marriages Act of 1998, which grants customary wives “full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate” (sec. 6). Customary marriages entered into after the commencement of the Act create a community of property regime, unless the spouses agree differently (while existing marriages remain governed by customary rules) (sec. 7).

Statutory succession law (Maintenance of Surviving Spouse Act of 1990 and Intestate Succession Act of 1987) recognises women’s inheritance rights. However, customary law and regulations made on the basis of customary law under section 23 of the Black Administration Act severely restrict women’s succession rights by providing for inheritance by the eldest son (principle of primogeniture). A constitutionality challenge to these rules was rejected in Mthembu v. Letsela and Another[16]. This decision was affected by the facts of the case: the daughter of the deceased had been excluded from inheritance because she was considered illegitimate (rather than because of her sex), and the deceased had died before the Interim Constitution came into effect. Therefore, while the judge of first instance explicitly rejected the constitutionality challenge, the Court of Appeal did not examine the issue of gender discrimination because it deemed it “academic” for the purposes of the case. On the other hand, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 prohibits norms and practices unfairly discriminating against women in the inheritance of family property, as well as, more generally, any “traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men” (secs. 6 and 8(c) and (d)).

South African land law is characterized by the Roman-Dutch common law tradition, by the legacy of apartheid and by the post-apartheid land reform efforts. Sections 6 and 8(e) of the Promotion of Equality and Prevention of Discrimination Act of 2000 prohibit “any policy or conduct that unfairly limits access of women to land rights”. Section 25 of the 1996 Constitution commits the government to a land reform to “enable citizens to gain access to land on an equitable basis”. The government has launched a comprehensive land reform programme based on:

Land restitution, providing for restoration of land confiscated after the Natives’ Land Act of 1913 and subsequent legislation, which restricted Africans’ access to land to 13 percent of the territory, or for provision of alternative land or payment of compensation;

Land redistribution, based on the “willing-buyer willing-seller” principle and on state-funded grants;

Land tenure reform, to increase farmers’ tenure security, both for farm workers and labour tenants in white-owned farms and for farmers in the former homelands.

Gender equity is one of the fundamental principles of South Africa’s land reform (White Paper on Land Policy of 1997 and Land Reform Gender Policy of 1997). To realise this principle, the White Paper envisages several instruments, including the removal of legal restrictions on women’s access to land, gender-sensitive participatory methodologies, provision of financial assistance for women, registration of redistributed land in the name of women and priority for women applicants for grants (paras. 4.11, 4.22, etc.). Criticism of the gender approach of the White Paper includes the fact that women are treated as a distinct, homogeneous disadvantaged group, rather than as a highly differentiated group cross-cutting different classes, and the lack of gender-specific targets to assess progress in land reform implementation (Hargreaves and Meer, 2000; Jacobs, 1998a; RSA/CGE, 1998).

As for the restitution component of the reform, the Restitution of Land Rights Act of 1994 is non-discriminatory (e.g. under section 2(1)(a), a right holder may be a “he” or a “she”). However, restitution is unlikely to substantially benefit women, as it was men who owned and were dispossessed of most land, and who thus have claims under the Act (RSA/CGE, 1998). A provision directly benefiting women is section 3 of the Restitution of Land Rights Act, which allows land claims by persons who registered land to nominees because they were prevented from registering it in their own name by racially discriminatory laws. In particular, section 11(3)(b) of the Black Administration Act prevented black women married under customary law from holding property. In Hadebe v. Hadebe and Another (LCC 138/99, 14 June 2000), a black woman had purchased land but registered it to her son as a nominee because of section 11(3)(b) of the Black Administration Act (and of similar provisions of the Natal Code of Bantu Law). After the enactment of the Restitution of Land Rights Act, she brought a claim before the Land Claims Court to transfer the property into her name. The Court argued that the racially discriminatory statutory provisions were inconsistent with the principle of equality stated in the Constitution, and ordered the property transfer in favour of the woman.

Land claims under the Land Restitution Act may also be filed by communities. These tend to be viewed as homogeneous entities, ignoring differentiated interests along gender lines, and to be dominated by men (Daniels, 2001). In this regard, the Land Claims Court may impose conditions to ensure that all the dispossessed members of the community, thus including women, have access to the land or the compensation on a non-discriminatory basis (Restitution of Land Rights Act, sec. 35(3)). Moreover, the Land Claims Court may “adjust the nature of the rights previously held by the claimant” (sec. 35(4)); presumably, constitutional principles, including gender equality, are to be taken into account in these adjustments. However, there are some reports of exclusion of women married outside the community (RSA/CGE, 1998).

Under the redistribution component, both women and men can purchase land through a “Settlement and Land Acquisition Grant” of R16 000. Because of their limited access to capital (credit and formal employment), women may face difficulties in purchasing land in the market-assisted land redistribution programme. Communal Property Associations, established under the Communal Property Associations Act of 1996, can provide a useful legal tool for group purchase by women. While anecdotal evidence suggests that women are less informed about the land reform programme than men (Baden et al., 1999), available data shows a substantial participation of women in the redistribution programme. The database of the Department of Land Affairs reports that 47 percent of the beneficiaries of the projects completed or underway under the redistribution programme are women (quoted in Walker, 2000); however, the data does not allow to distinguish between women individual beneficiaries and joint beneficiaries (couples), nor to understand who would in practice control the land regardless of the formal beneficiary (Walker, 2000).

The land tenure reform aims at increasing tenure security inter alia by prohibiting eviction of persons occupying land with the consent of the landowner (Extension of Security of Tenure Act of 1997, ESTA) and of holders of “permissions to occupy” issued by the state under apartheid legislation applicable to the homelands (Interim Protection of Informal Land Rights Act of 1996, applicable pending more far-reaching legislation). The terminology adopted in this legislation is gender neutral (e.g. “occupier” under ESTA) or non-discriminatory (right holders are referred to as “he or she” e.g. ESTA, sec. 6(1), and the Interim Protection of Informal Rights Act, sec. 2(1)). Under ESTA, criteria for the allocation of subsidies for land acquisition and development include the application by occupiers who are spouses of occupiers aged over 60 (sec. 4(2)(e)). The occupation rights of labour tenants’ family members are protected by the Land Reform (Labour Tenants) Act 1996. In addition, the preamble of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (1998) states that special recognition should be given to the rights and needs of various groups, including female-headed households. Finally, the Communal Property Associations Act of 1996 creates new forms of collective landholding, enabling communities to own and manage property through associations endowed with legal personality, and requiring such associations to comply with several principles, including non-discrimination on the basis of sex and gender (sec. 9).

Notwithstanding this non-discriminatory tenure reform legislation, socio-cultural practices often prevent rural women from holding land titles (RSA/CGE, 1998). In the former homelands, customary land tenure is applied. Under these rules, women are rarely allocated plots by chiefs, and usually gain access to land only though their fathers and husbands. Land cultivated by women is often the poorest and most inaccessible one. Widows have no right to remain in their deceased husband’s land (Bob, 1996; Levin et al., 1996; RSA/CGE, 1998; Baden et al., 1999). However, there is considerable variation, depending on the region and the political alignment of the chiefs: for instance, in Northwest Province, some ANC-aligned chiefs have allocated land to married women (though not to single women with children) (Jacobs, 1998a); on the other hand, much more conservative practices are reported from KwaZulu-Natal (Baden et al., 1999).

In addition, Pilot Land Reform programmes explicitly require women’s participation in project planning. Field studies from Western Cape, North West Province and Mpumalanga suggest however that women’s participation is in practice limited, both in the number of members in management committees and in the extent to which female elected members have their voice heard in meetings. Some exceptions nonetheless exist: in Mpumalanga, four out of 15 members of the Management Committee, including the chairperson, are women (Jacobs, 1998a).

The National Environmental Management Act of 1998 (NEMA), which is South Africa’s framework environmental law, includes ensuring equitable access to environmental resources, as well as taking special measures to ensure access by categories of persons disadvantaged by unfair discrimination, among the National Environmental Management Principles (sec. 2(1)). The Act also makes provision for the establishment of the National Environmental Advisory Forum; in appointing its members, the minister must take into account the desirability of appointing certain categories of persons, including women (sec. 4).

With regard to water, the report of the South African Commission for Gender Equality (1998) found de facto sex/gender discrimination, and stated: “rights to water are intrinsically linked to land rights. Therefore control, access and quality of water inequitably reside with those enjoying riparian rights and land ownership. This means that rural women, who historically do not own land and whose traditional duty is to ensure that the household is supplied with water, bear the burden of having to travel long distances carrying heavy loads of water”. The water regime has significantly changed under the National Water Act of 1998, which has placed all fresh water resources under the trusteeship of the state (sec. 3). While seeking to protect water resources, the Act simultaneously seeks to redress the inequitable access to, and control over, fresh water resources. Indeed, its purposes include promoting “equitable access to water”, redressing the results of past gender discrimination, and ensuring “appropriate” gender representation in the competent institutions (sec. 2). The need “to redress the results of past ... gender discrimination” must be taken into account in the issuance of licences (sec. 27(1)(b)), in the allocation of financial assistance (sec. 61(3)(c)), and in the performance of the functions of the catchment management agencies (sec. 79(4)(a)). The members of the governing board of catchment management agencies are appointed by the responsible minister, who may also appoint additional members to achieve “sufficient” gender representation (sec. 81(10)(b)).

As for forests, although the Forest Act of 1998 does not specifically mention gender, some of its provisions are relevant. The guiding principles enshrined in section 3 include the promotion of “fair distribution of their economic, social, health and environmental benefits”, and the advancement of “persons or categories of persons disadvantaged by unfair discrimination”. Moreover, community forest agreements between the state and local communities must not discriminate unfairly (sec. 31). In addition, the National Forests Advisory Council, providing advice to the competent minister, includes representation of civil society, particularly “categories of persons disadvantaged by unfair discrimination” (sec. 34).

Finally, in relation to marine living resources, the Marine Living Resources Act of 1998, while not specifically mentioning gender, requires the minister to have regard to new entrants, particularly those from historically disadvantaged groups (which would include women), in the allocation of fishing rights.

Box 1. The Pastory case in Tanzania

A landmark case on women’s land rights is the Tanzanian case Ephrahimv. Pastory and Another (High Court of Tanzania at Mwanza (PC), Civil Appeal No. 70 of 1989, reported in 1990 LRC (Const) 757 and in Peter, 1997: 387-398). In this case, a discriminatory customary land tenure rule was invalidated because of inconsistency with the Constitution and with international human rights law. Customary law is formally part of the Tanzanian legal system: in Maagwi Kimitov. Gibeno Werema (Court of Appeal of Tanzania, Civil Appeal No. 20 of 1984), the court stated: “the customary laws of this country have the same status in our courts as any other law, subject to the Constitution and to any statutory law that may provide to the contrary”.

The facts of the Pastory case are as follows. A Haya woman who had inherited land from her father under testamentary succession sold it outside the clan. A male clan member brought an action to declare the sale void, as women could not sell land under Haya customary law (as codified in the Declaration of Customary Law of 1963, Laws of Inheritance, sec. 20).

The High Court invalidated the discriminatory norm on the basis of the principle of non-discrimination on the basis of sex, affirmed in article 13(4) of the Bill of Rights (introduced by the Fifth Constitutional Amendment Act of 1984 and by the Constitution (Consequential, Transitional and Temporary Provisions) Act of 1984) and in international human rights treaties ratified by Tanzania (CEDAW, ICCPR, and ACHPR). The Court stated that Haya women could sell land on the same conditions as Haya men, and held the disputed land sale valid.

Interestingly, a similar case brought before the adoption of the Bill of Rights (Lutabanav. Kashaga, 1981 TLR 122) had been decided differently. In that case, the Court of Appeal held that women only had a life interest in inherited land, and therefore could not sell or bequeath it.

2.5. Northern Africa and the Middle East

2.5.1. Regional overview

Some countries are not parties to the CEDAW (e.g. United Arab Emirates), while others have ratified it with reservations for the application of Shari’a law, either as general reservations or with regard to specific articles, particularly article 16 on family relations (Egypt, Kuwait, Libya, Morocco and Saudi Arabia). The Arab Charter on Human Rights recognises the right of every citizen to own private property without discrimination between men and women (arts. 25 and 2), but it is not in force.

At national level, family and succession laws usually follow Shari’a norms. The status of women under Shari’a law varies considerably according to the country and the prevailing school of jurisprudence. For instance, women enjoy greater rights under the Hanafi school (traditionally based in Kufa, Iraq) than under the Maliki school (traditionally based in Medina). However, generally speaking, Shari’a norms are usually interpreted so as to vest family direction in the husband/father (e.g. verse 34 of Sura an-Nisaa of the Quran). Women’s inheritance share is usually half that of men in a similar succession position. For instance, daughters usually get half of what sons get. If there is more than one widow, they must divide the widow’s share among them. Restrictions on women’s inheritance are usually justified on the ground that male family members have an obligation to provide support to female members, while the latter have no obligation to support others. However, women are often left without adequate enforcement guarantees (Hussain, 1999; Gopal and Salim, 1998). In areas where inheritance is the main form of land acquisition, discrimination in inheritance rights severely affects women’s access to land. Moreover, there are reports of rural women renouncing even to their limited inheritance rights in favour of male relatives (Baden, 1992).

Some countries have enacted codes or laws that, while incorporating Shari’a norms, improve the position of women (e.g. Tunisia). In Turkey, where the legal system is explicitly secular, the Civil Code of 2001 has significantly improved the position of married women compared to the previous 1926 Civil Code. Under the new Code, the husband is no longer the household head (art. 186), and men and women have equal status within marriage (art. 188). The Code has also introduced the regime of community of property with equal shares for the spouses, but only with regard to property acquired after 1 January 2003.

Very little data is available on the amount of land owned by women. However, reports indicate that land ownership by women is rare throughout the region, although great intra-regional variation exists. Women own 28.6 percent of the land in Jordan, 4.9 percent in the United Arab Emirates, and 0.4 percent in Oman. Even where land is owned by women, women’s plots are often smaller than men’s, and remain under the control of male family members (FAO, 1995b).

2.5.2. Tunisia

Within this context, Tunisia has a particularly advanced legislation. The Personal Status Code 1956 (as amended in 1981 and 1993) codifies Shari’a law on the one hand and improves women’s position on the other[17]. While the husband is the household head (art. 23(4)), both spouses are to “co-operate” in the management of family affairs (art. 23(3)). The matrimonial property regime has long been separation of property; Law 98-91 (1998) allows spouses to opt for the community of property regime, entailing that common goods may be transferred only with the consent of both spouses; lacking this option in the matrimonial contract, separation of property applies. The husband has no control over the separate property of the wife (Code, art. 24). Conjugal obligations are to be fulfilled according to customs (art. 23(2)), which may reflect stereotyped gender intra-household division of roles.

Succession law is based on Shari’a law (particularly the Malekite tradition), which severely limits women’s inheritance rights. Widows and daughters are among the necessary heirs (“héritiers réservataires”; art. 91). Generally speaking, women inherit half of the share inherited by equally related men. For example, a widow gets a quarter of the estate if there are no children, and an eighth if there are children, while a widower gets a half or a quarter of the estate, respectively (arts. 93-95). In case of only child, the son is “universal heir” (art. 114), while the daughter is entitled to half the estate (art. 93). Moreover, some family members have inheritance rights only if they are male (e.g. uncle and cousins, art. 90).

The negative effects of the discriminatory succession norms on women’s land rights are particularly acute, as inheritance is the primary means of acquiring land rights in Tunisia; for instance, a village-level study in the Sidi Bou-Zid region found that inheritance accounted for over 70 percent of land acquisitions in most covered villages, and in some cases even for 100 percent (e.g. in Mliket). The study also reveals that customary rules excluding women from inheritance are followed in rural areas. Therefore, where women marry outside the clan, they do not claim their statutory inheritance rights over land, as this would be perceived as inappropriate and as an offence to their male family members (Ferchiou, 1985).

Property law (“Code des Droits Réels”) and contract law (“Code des Obligations et des Contrats”, particularly article 3) are gender neutral: men and women can equally acquire and own property.

The major features of Tunisian agrarian legislation include: the abolition of the traditional habous land tenure regime (Decrees 31 May 1956 and 18 July 1957, as amended, lastly by Law 2000-24 of 2000); the regulation of private property of agricultural lands and the transfer to the state of vacant lands (Law 64-5 of 1964); the regulation of common-property lands (Law 64-28 of 1964, as amended); the registration of rural land titles (Decree-Law 64-3 of 1964, as amended), and the protection of land occupation by farmers exploiting or developing the land (“mise en valeur”) (Law 74-53 of 1974, as amended, lastly by Law 2000-10 of 2000); and the realisation of an agrarian reform in irrigated lands (e.g. Law 58-63 of 1958, as amended, for the Medjerma Valley). This legislation is gender neutral, and applies equally to men and women farmers. However, in practice few rural women own land, both because of legal obstacles contained in other areas of law, particularly succession law, and because of cultural factors.

2.6. Asia

2.6.1. Regional overview

The Asian continent includes extremely different environmental, political, social, cultural and economic realities. Natural resource legislation is also extremely diverse, encompassing state ownership (Viet Nam[18]), ownership by peasant collectives (post-1978 China), comprehensive agrarian reform programmes involving transition to market economy (Central Asia), private ownership (e.g. Philippines), and systems influenced by Islamic law (e.g. Pakistan, Bangladesh). In South and Southeast Asia, owner cultivation and tenancy (particularly sharecropping) are dominant, although plantations are also present. This diversity is reflected in a great intra-regional variation in women’s rights to natural resources.

In socialist countries, legislation granting farmers land use rights on state - or collective - owned land usually does not discriminate against women; however, entrenched customary norms and patriarchal culture constrain women’s access to land (e.g. on Viet Nam, Hood, 2000).

In some Central Asian states (e.g. Kyrgyz Republic and Uzbekistan), the holder of land rights is the household, and land titles are issued in the name of the household head (usually the eldest man). Therefore, women have access to land only through their husbands and/or male relatives (Giovarelli and Duncan, 1999).

In some predominantly Muslim countries (Pakistan and Bangladesh), Shari’a norms limiting women’s inheritance rights (usually to half of men’s share) are incorporated into statutory law (e.g. for Pakistan, the West Punjab Muslim Personal Law (Shariat) Application Act 1948).

As for water resources, in some countries legislation concerning management of irrigation infrastructure by water user associations explicitly refers to gender. For example, the Nepalese Irrigation Regulation of 2000 requires that executive committees of water user associations include at least two women (out of nine members) (art. 3(1)), although field studies reveal that women’s participation in water users associations is in fact very low (Zwarteveen, 1995)[19].

In most countries, the enforcement of statutory legislation is scarce, especially in rural areas, and customary and religious law are mostly applied. Customary law systems are extremely diverse in Asia. In some cases, they are patrilineal and prevent women from gaining direct land rights (e.g. the customary law systems of the Punjab). In other cases, women can own, inherit, acquire and dispose of property in their own right (e.g. in matrilineal and bilateral systems in Thailand and the Philippines).

2.6.2. India

In India, personal law varies according to religious belonging[20]. While reforms have been brought about, particularly to improve the position of women, statutory law mainly reflects religious norms. Hindus are governed by the Hindu Marriage Act of 1955 and the Hindu Succession Act of 1956. Muslims are governed by the Muslim Personal Law (Shariat) Application Act of 1937 and the Muslim Women’s (Protection of Rights on Divorce) Act of 1986. Christians and Parsis are governed by the relevant family laws (the Christian Marriage Act and the Parsi Marriage and Divorce Act, respectively) and by the Indian Succession Act of 1925 (as amended in 1991). All Indians contracting or registering marriage under the Special Marriage Act of 1954 are governed by this Act and by the Indian Succession Act[21]. Article 44 of the Indian Constitution (included among the Directive Principles of State Policy) states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”, thereby ending the regime of differentiated personal laws. In Sarla Mudgal and Others v. Union of India and Others, a Supreme Court judge directed the government to adopt a uniform civil code in order to comply with the Constitution and the CEDAW[22]. However, no such action has been taken yet. Given the importance of religious norms in India’s personal laws, it is worth briefly reviewing some key norms affecting women’s rights.

Traditional Hindu law (codified in legal treatises - the shastras - between 200 BC and 300 AD) was divided in two main legal doctrines, Dayabhaga (mainly applied in Bengal and Assam) and Mitakshara (applied in the rest of the country). Under the Mitakshara system, property was divided in two categories: joint family (“coparcenary”) property, belonging to the extended family, and separate property. Only male family members were coparceners in joint family property, while women (wives and unmarried daughters) had a right to maintenance. Separate property entailed full ownership rights, and was held by men (in the absence of male descendants, women could only inherit usufruct rights). The Dayabhaga system did not envisage joint family property. Property belonged to men individually, and, in the absence of male descendants, women could inherit lifelong use rights. Under both systems, women could own property (“stridhan”, acquired e.g. through purchases), although it is controversial whether land could be held by women as stridhan. Women had wider control powers under Dayabhaga (including the right to sell and gift) than under Mitakshara. In practice, the shastras were not followed literally, and local customary law was applied instead. While in some areas customary and shastric norms converged, in others they differed and women enjoyed greater rights, especially in matrilineal communities (e.g. among the Garos, land traced through the female line, and while the husband administered the land, he could not alienate it without spousal consent) (Agarwal, 1994).

In the 20th century, Hindu law was codified into statutory law. In this process, women’s position has been considerably improved[23]. The Hindu Succession Act of 1956 applies to Hindus, Sikhs, Jains and Buddhists of all Indian states except for Jammu and Kashmir (secs. 1(2) and 2(1); here the Jammu and Kashmir Hindu Succession Act of 1956 applies), and covers both the Mitakshara and the Dayabhaga systems. The Act grants in principle equal inheritance rights to men and women. In case of intestate succession, the widow and children (both sons and daughters) have equal rights in the first line of succession (class I heirs, secs. 9 and 10). As for coparcenary property, relevant Mitakshara rules (see above) apply, unless there are class I female heirs (in which case the inheritance norms of the Act apply; sec. 6). In any case, women’s inheritance transfers full property rights (not just usufruct rights).

Some gender inequalities remain. First, Mitakshara coparcenary rules limiting women’s rights are recognized, although with the important exception concerning female class I heirs (sec. 6). Second, in case of testamentary succession, the Act grants testators absolute freedom of will (i.e. no necessary inheritance share is reserved for family members); this provision is in practice often used to disinherit widows and daughters (Agarwal, 1994). Third, the Act explicitly covers land ownership, but exempts ceiling and anti-fragmentation legislation and land tenancy rights (sec. 4(2)); both before and after the Act, states adopted inheritance norms specifically concerning succession in tenancy rights, several of which discriminate against women (e.g. the Punjab Tenancy Act of 1887 and the Himachal Pradesh Tenancy and Land Reform Act 1972; Agarwal, 1994). In Madhu Kishwar & Ors. v. State of Bihar (1996 5 SCC125), the constitutionality of sections 7, 8 and 76 of the Chotanagpur Tenancy Act 1908 of Bihar, limiting succession in tenancy relationships to the male line, was challenged before the Supreme Court. The Court held that these provisions violated women’s right to livelihood recognized in article 21 of the Constitution. While not striking down the provisions, the Court declared that female heirs of the tenant have a remedy under the Constitution to continue holding the land so long as they are dependent on it, and called the state of Bihar to amend the law. Dissenting Ramaswamy J. argued that the provisions were invalid, relying inter alia on the CEDAW.

On the other hand, some states have adopted legislation complementary to the Hindu Succession Act, further improving the position of women. For instance, the Kerala Joint Hindu Family System (Abolition) Act of 1976 abolished coparcenary property, subdividing the estates, while in Andhra Pradesh and Tamil Nadu unmarried daughters have been given coparcenary rights equal to sons (Agarwal, 1994).

The personal law of persons belonging to religious minorities differs. The Muslim Personal Law (Shariat) Application Act of 1937 states that family and succession disputes between Muslims are to be decided according to Shari’a law, superseding local customary succession norms (sec. 2). Thus, differently from the codification of Hindu law (which codifies religious law and at the same time improves the position of women), the 1937 Act merely refers to Shari’a law by legislative renvoi. Inheritance of agricultural land is explicitly excluded from the scope of the Act (sec. 2), so that statutory and customary land law apply; however, some states have extended the Act to agricultural land (e.g. Tamil Nadu and Andhra Pradesh in 1949 and Kerala in 1963). Generally speaking, under Shari’a law women’s inheritance share is half of what a man in the same succession position inherits (e.g. the share of a daughter is half that of a son, and the share of the widow is half that of a widower). The impact of the recognition of Shari’a law on women’s position varies across regions. While Islamic law restricts women’s inheritance (with negative effects on women’s rights in matrilineal communities, e.g. the Mappilas in Kerala), it does entitles women to direct inheritance rights (albeit limited), improving their position in patrilineal communities where women had no inheritance rights at all. However, this positive effect is neutralised in those states where agricultural land is still governed by customary succession norms (Northwest India), where gender inequalities persist (Agarwal, 1994).

Christians, Jews and Parsis, as well as Indians contracting or registering civil marriage under the Special Marriage Act of 1954, are governed by the Indian Succession Act of 1925, as amended by the Indian Succession (Amendment) Act of 1991. No gender discrimination is contained in the Act. However, there are no restrictions on testators’ freedom of will, which allows to disinherit widows and daughters.

In practice, women are often prevented from exercising the inheritance rights recognized by statutory law, and customary law remains widely applied in rural areas. In many cases, women “voluntarily” renounce to their statutory rights in favour of male family members (brothers, etc.), pressured by socio-cultural factors and by their economic and other dependence on their kin. Indeed, factors like early marriage, marriage exogamy (often involving marriages between spouses from very distant areas) and patrilocal residence (i.e. the wife’s moving into her husband’s family house) make women vulnerable to ill-treatment by their husband, and thus dependent on their family’s (especially brothers’) support. Socio-cultural factors include the idea that it would be “shameful” for women to claim their rights, and the practice of female seclusion (“purdah”) (Agarwal, 1994).

As for natural resource legislation, the Indian Constitution grants states exclusive responsibility on land, water (except for inter-state rivers) and fisheries (except for activities outside the territorial waters) (Article 246 and Seventh Schedule, List II, entries 17-21); therefore, natural resource legislation varies widely from state to state. Land reform programmes were adopted by most states to redistribute land (through forfeiture of land exceeding specified ceilings and land distribution to landless workers or smallholders), to abolish land intermediaries, to consolidate fragmented landholdings, and to regulate tenancy (from regulation of the contractual terms to tenancy rights registration). The degree of implementation of the reform varies widely according to the state and to the type of reform. Some features of the land reform programmes are gender-biased.

Land ceiling legislation may contain discriminatory norms on the calculation of family land, on surplus forfeiture and on allocation of forfeited land. As for calculation, legislation usually fixes a land ceiling for each household of up to five members, allows additional land for larger households, and considers adult children as separate units. However, in many states (e.g. Bihar and Andhra Pradesh) only adult sons (not daughters) can be counted as separate units. Kerala is an exception, in that it allows both unmarried adult sons and daughters to be considered as separate units (Agarwal, 1994). In 1972, the Conference of Chief Ministers on Land Reforms issued federal guidelines (National Guidelines on Ceiling on Agricultural Holding, published in Behuria, 1997) to adopt a uniform definition of family for the purpose of land ceiling legislation; in the definition adopted by the guidelines (guideline II), gender inequalities were removed. However, land ceiling legislation continues to vary across states. Discriminatory norms on family land calculation are exempted from constitutionality challenges under article 31B and the Ninth Schedule of the Constitution. For instance, in Ambika Prasad Mishra v. the State of Uttar Pradesh and Others (1980 3 SCC 719), the Supreme Court rejected on this ground a challenge of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act of 1960 on sex-discrimination grounds (for instance, adult daughters were excluded from the definition of family and no additional land over the ceiling was allowed on their account; sec. 5(3) of the Act).

As for surplus forfeiture, land holdings of both spouses are summed together for the purposes of land ceilings, and in case of surplus officers have considerable discretion in deciding the area to be forfeited; in practice, this is usually done in consultation with the husband, and often leads to forfeiture of the wife’s land (Agarwal, 1994). In Kunjalata Purohit v. Tahsildar, Sambalpur and Others (AIR 1986 Orissa 115), a wife appealed against the decision of a land revenue officer to include her separate property within family land and forfeit it after having consulted the husband alone (under the Orissa Land Reforms Act of 1960); the court accepted her argument that prior notice of the proceeding should have been given to her as the “person interested”, and quashed the order of the revenue officer.

As for allocation of forfeited land, although the wording of legislation is usually gender neutral, land redistribution programmes mainly targeted (male) household heads as recipients[24]. Efforts have been recently made to redress this gender imbalance. The Sixth Five Year Plan (1980-1985) envisaged efforts to give joint titles to spouses, although this policy was not confirmed in the Seventh Five Year Plan (1985-1990). The Eight Plan (1992-1997) called states to allocate 40 percent of forfeited land to women individually, and to allocate remaining land to both spouses (joint titles). The Ninth Plan (1997-2002) devotes an entire section to women’s land rights, and directs to distribute land titles mainly to women, both individually and collectively (through women’s groups) (Agarwal, 2001).

Gender biases exist also in land tenancy reforms. For instance, in the “Operation Barga” in West Bengal (tenancy registration programme implemented in the late 1970s under the West Bengal Land Reforms Act of 1955, as amended in 1971 and 1977), land was mainly registered to men. Although single women households were in theory entitled to have land registered in their names, very few did so. A study from a village in Midnapur district found that only eight out of 18 single women received land, that no joint titles were issued to couples, and that in nine out of ten female-headed households land was registered with the sons (quoted by Agarwal, 2001).

Gendered land distribution has implications for rights over other natural resources. For instance, water rights are usually linked to landholding (whether as owner or not). Common property resources (grazing land, forests, etc.) were traditionally managed by panchayat (i.e. village-level) institutions and accessed by all community members (including women, who have the primary responsibility for water, fuelwood, fodder and fruit collection). Traditionally, panchayat bodies were usually limited to upper-caste men. The Constitution has democratized these institutions, providing for direct election and reserving one-third of the seats to women (arts. 243C and 243D). Moreover, new institutions for sustainable natural resource management have been established. The National Forest Policy of 1988 and the Circular No. 6-21/89-P.P. (1990) of the Ministry of Environment and Forests govern joint forest management, whereby forests are managed on the basis of agreements between the state forest department, the village community and a “voluntary agency/NGO” acting as catalyst (1990 Circular, sec. 3 (i)); the competent village institution may be the panchayat, a village cooperative, or a “village forest committee” (1990 Circular, sec. 3 (iv)). There are reports that cultural factors (e.g. female seclusion, low consideration of women’s ideas, etc.) often hinder a meaningful participation of women in panchayats and other participatory institutions such as village forest committees (Agarwal, 1994 and Ogra, 2000). For instance, a study on joint forest management in Karnataka, Gujrat and Himachal Pradesh found that women committee members often did not attend meetings, and even when they did, they did not speak or merely acted as spokespersons of their husbands (Ogra, 2000).

2.6.3. The Philippines

Philippine property law (embodied in the Civil Code) as well as family and succession law (Family Code) are gender neutral, and men and women have equal property rights[25]. Assets acquired during cohabitation without marriage are jointly owned, and can be encumbered or disposed of by one partner only with the consent of the partner (Family Code, art. 147). Within marriage, the property regime is determined by the marriage settlement; in absence the community of property regime is applied, with both spouses jointly administering family property (Family Code, arts. 75 and 96). However, “in case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision” (art. 96). The wife retains exclusive management rights with regard to her exclusive property, without need for her husband’s consent (art. 111). Married women may make wills without the consent of their husband, and thereby dispose of their separate property and share of community property (Civil Code, arts. 802 and 803). In case of legal separation[26], the terms of the dissolution of community property are determined by guilt, not by gender (Family Code, art. 63(2)). Succession law is gender neutral, and widows are necessary heirs of the deceased spouse (Civil Code, art. 900).

However, family relations within the Muslim community are governed by the Code of Muslim Personal Laws[27]. Under this Code, wives need the consent of their husband to acquire property during marriage and to use land, and inherit half of the share inherited by men in a similar succession position. Moreover, in practice, Muslim women have even lesser rights, as the management of family land is under men’s control and women have little or no independent land ownership (Judd and Dulnuan, 2001).

The Philippines has a long history of agrarian reform programmes. The Comprehensive Agrarian Reform Law (CARL) of 1988 is the most recent one. The law provides for a comprehensive land redistribution programme; however, funding constraints have hindered its implementation, and the impact of the land reform has been limited (Deininger et al., 2001). Under the CARL, women rural labourers have equal rights to own land and to participate in advisory and decision-making bodies (sec. 40(5)). Women’s right to “equal treatment in agrarian reform and land resettlement programmes” is confirmed by section 5(2) of the Women in Development and Nation Building Act of 1992.

However, women have long been indirectly disadvantaged in the land reform programme. While permanent farm workers (who are mostly men) rank second in the priority order for beneficiaries, immediately after agricultural lessees and share tenants, seasonal farm workers (mostly women) rank third (CARL, sec. 22). For instance, in 1993, the land of the Menzi Agricultural Corporation was distributed under the CARL to the permanent farm workers of the plantation, who had created a cooperative; all the beneficiaries were men, with the exception only of the plantation nurse; women seasonal workers were excluded (Rimban, 1999).

Women’s position has been improved by administrative guidelines adopted by the Department of Agrarian Reform to implement the gender equality provisions of the CARL, namely Memorandum Circular 18 of 1996 and Administrative Order 1 of 2001. Under these guidelines, no sex discrimination can be made in beneficiary selection, and land titles are to be issued in the name of both spouses (whether legally married or not) “when both spouses are jointly working and cultivating common tillage”. Moreover, the consent of both spouses is required for land sales, mortgages and “all other transactions involving waiver of rights” (documents summarized in Judd and Dulnuan, 2001, and in Rimban, 1999).

The Indigenous Peoples Rights Act of 1997 recognises indigenous peoples’ ancestral rights over land (e.g. by providing for the application of customary land tenure in the ancestral domain; section 2(b)). At the same time, it guarantees gender equality and the human rights of indigenous women (secs. 2(d), 21 and 26), balancing the recognition of indigenous peoples’ autonomy with the protection of universal human rights (including women’s rights).

Forests are owned by the state (Article XII(2) of the Constitution), and are governed by the Revised Forestry Code, as amended. The Department of Environment and Natural Resources, in charge with forest management, adopted Administrative Order 96-29 (1996), providing that contracts concluded with persons occupying forest lands must be signed by both spouses, and Administrative Order 98-55 (1998), subsequently amended, integrating gender into natural resource policies, programmes and activities (Judd and Dulnuan, 2001). Water legislation is gender neutral.

As for fisheries, a gender division of labour usually exists, whereby men are involved in deep waters from boats, while women are mainly involved in shallow water fishing and fish marketing (FAO, 1996). The Fisheries Code of 1998 includes support for women fishers among its policy directions (sec. 2(e)) and among the functions of the Bureau of Fisheries and Aquatic Resources (sec. 65(m)). Representatives of women fishers are included in management councils like the Municipal/City Fisheries and Aquatic Resources Management Councils (sec. 75(g)) and the Integrated Fisheries and Aquatic Resources Management Councils (sec. 78(9)).

The Philippines adopted an advanced legislation concerning genetic resources (Executive Order 247 of 1995), subjecting bio prospecting to specified procedures. The Order is gender neutral (e.g. the bio prospector is a “person, entity or corporation”, sec. 3). Bio prospecting within ancestral domains requires the prior informed consent of indigenous communities, granted in accordance with customary law (Executive Order 247 of 1995, sec. 2(a); Indigenous Peoples Rights Act, sec. 35); while under some customary legal systems women may be discriminated against, gender equality and women’s rights in indigenous communities are guaranteed by the Indigenous Peoples Rights Act (secs. 2(d), 21 and 26).

In rural areas, customary law is applied. This varies considerably across regions. Muslim groups, concentrated in the South of the country, are patrilineal, and inheritance follows the male line. However, many ethnic groups from the North and the centre of the country have bilateral inheritance systems, whereby inheritance follows both the male and the female line. These systems do not discriminate against women. Both men and women can hold land. Both spouses have exclusive management rights over their individual property (e.g. among the Ilocano). Where the husband administers family property, he must require the consent of the wife for land transfers (e.g. among the Pangasinense). Succession norms adopt either the primogeniture system (whereby land is inherited by the eldest male or female child; e.g. among the Ifugao) or the equal sharing system (whereby all male and female heirs inherit equally; e.g. among the Pangasinense). The surviving spouse, male or female, may not inherit, but holds land as a trustee for the children (e.g. the Kalinga) (Judd and Dulnuan, 2001).

Box 2. The Dhungana case in Nepal

In the case Mira Dhunganav. Law, Justice and Parliamentary Affairs Ministry [4 S.Ct. Bull. 1], the petitioner challenged section 16 of Nepal’s National Civil Code. This provision severely limited daughters’ inheritance rights, by entitling them to a inheritance share only after they reached unmarried the age of 35, and by providing for land restitution to the family if they subsequently married. The Supreme Court, while recognising that the norm discriminated against women, did not invalidate it, but directed the government to amend it in the light of the equality provision enshrined in the Constitution (art. 11).

Following intense lobbying activities by women’s organizations, in 1996 the government introduced a Civil Code Amendment Bill inter alia recognising daughters’ equal right to inherit parental property. However, the Bill confirms the norm whereby women lose the land they inherit if they subsequently marry. Debates over the Bills were stalled for years. In March 2002, the Bill was finally approved by the Parliament.

2.7. The Pacific region

2.7.1. Regional overview

Land and fishing rights in the Pacific islands are determined by a mixture of statutory and customary law, as statutory law usually recognises customary rights. These have evolved as a result of state formation and of the spread of Christianity, commerce, monetarization, and education. Statutory law often incorporates a simplified and standardised version of an originally complex and extremely diverse customary law. In this context, women’s position varies considerably across countries. Matrilineal systems (with land rights traced through the female line but exercised mainly by men) prevail in most of Micronesia (Nauru, Palau, etc.) and in parts of Melanesia (parts of Vanuatu and the Solomon Islands). Patrilineal systems prevail in most other Pacific countries (IPS, 1986).

Women have particularly well established land rights in the Cook Islands. Here, colonial authorities established a Land Court to apply and formalise “native custom”. The court has adopted a “progressive” interpretation of customary law, e.g. granting women inheritance rights equal to men (James, 1986).

On the other extreme, women’s land rights are particularly restricted in Tonga, where the Constitution does not explicitly prohibit sex discrimination, where the 1882 Land Act (as amended in 1978 and 1984) recognises customary land tenure (whereby only men have direct land rights, while women acquire land rights through husbands and male family members) and grants a right to plots only to male Tongans over 16, and where the Constitution provides for inheritance by the eldest male child (only if there are no male children does the eldest female child inherit; section 111). The case law includes both cases restricting women’s land rights (e.g. on widow’s impossibility to lease inherited allotments, Tu’inukuafe v. Tu’inukuafe, Land Court, Case 6/66), and cases where courts have protected widows from eviction by male members of the deceased husband’s family (e.g. Fa’okula v. Kalamintoni, 1974; Tu’iha’ateiho case; all cases quoted in Moengangongo, 1986).

In the Solomon Islands, the Customs Recognition Act of 2000 provides for the recognition and enforcement of customary law with regard to land, fisheries and water, except where this would be inconsistent with the Constitution or with statutory law, would result in an “injustice”, or would not be in the “public interest” (secs. 6 and 8).

2.7.2. Fiji

The Constitution of Fiji exempts family and succession law from the application of the non-discrimination principle (sec. 38(7)). Under the Married Women’s Property Act of 1892 (Cap 37), married women may acquire, hold and dispose of property (sec. 3). Fijian family law is undergoing a process of legal reform. In 1999, the Fiji Law Reform Commission completed a review of family law. In the same year, the Cabinet approved the Commission’s report and directed the Attorney General to draft new legislation. At the moment of writing, the legal reform process was still underway.

Widows and widowers have equal rights to intestate succession; sons and daughters, and brothers and sisters also have equal succession rights (Succession, Probate and Administration Act, sec. 6). In case of testamentary succession, the surviving spouse and the children are not necessary heirs, and may thus be disinherited. However, unmarried daughters and disabled daughters incapable of maintaining themselves may obtain a court order to make “reasonable provision for the maintenance” if the testator has not done so; daughters lose their right to maintenance upon marriage or cessation of disability (Inheritance (Family Provision) Act, sec. 3).

As for natural resource legislation, the Constitution limits the principle of gender equality to allow laws providing for the application of Fijian, Rotuman and Banaban customary land and fishing rights (sec. 38(8) (i)). Moreover, land legislation, including the Native Lands Act and the Native Land Trust Act, enjoys a particular constitutional protection, requiring bills amending protected Acts to be adopted through a special procedure (Constitution, sec. 185).

Fijian land tenure legislation reflects inter-ethnic tensions between native Fijians and Indo-Fijians for the control of agricultural land. About 83 percent of the land is communally owned by native Fijians (“native lands”). The colonial Native Lands Act of 1905, still in force, states that native lands are held by native Fijians according to “native custom” (sec. 3) and creates the Native Lands and Fisheries Commission to administer customary rights. The Act is gender neutral. Women, as well as men, are registered at birth with the Commission as members of land owning clans. However, while customary land tenure was complex and extremely diverse, the Commission adopted a simplified version of the customary law followed in Taivelu province, and extended it to the whole country. Under this system, land is owned by clans (mataqali) headed by male chiefs; only men have direct land rights, while women cultivate the plots of their husbands and/or male family members. Matrilineal systems granting women greater rights, followed in some areas (Macuata Province), were suppressed with this standardisation of customary law (Bolabola, 1986).

All leases, licences, and timber concessions on native lands are managed by a Native Land Trust Board, established by the Native Land Trust Act of 1940 to manage native lands on behalf of Fijians. The Board collects proceeds (rents, royalties, etc.) and distributes them to the chiefs; these are mainly men, although there are also some female chiefs (1 percent of the total) benefiting from Board financial transfers, especially in formerly matrilineal areas like Macuata (Bolabola, 1986). No sex/gender discrimination is made with regard to access to leases and licences (sec. 8). However, leases on native lands are in practice mainly held by men (Bolabola, 1986).

Crown lands (some 7 percent of the land) are administered by the Department of Lands, Mines and Surveys (Crown Lands Act). Very few women have obtained leases on Crown land. Moreover, very few women hold freehold titles (Bolabola, 1986).

Fisheries have a particular importance in the Fijian economy. The Fisheries Act establishes a licence system, and only licence holders can fish in Fijian waters (sec. 5). Section 13 recognises customary fishing rights, administered by a Native Fisheries Commission (secs. 14 ss.). The Act is gender neutral, although, as for the terminology, reference is usually made to the “fisherman”. However, there is in practice a widespread gender division of labour, whereby men fish in deep water from boats and canoes and women harvest the reefs, shores and swamps and clean and market fish caught by them and by men. Non-governmental organizations such as Women in Fisheries Network (WIFN) carry out activities for the empowerment of women fishers (training, support, etc.) (GoF, 1999).

Women’s participation in natural resource management remains very low. At policy level, post-Beijing policy instruments envisage assistance for women in traditional fisheries communities, consideration for women’s traditional resource use needs within environmental impact assessment, etc. (GoF, 1999).

2.8. Europe

2.8.1. Regional overview

Article 14 of the ECHR prohibits sex discrimination in the enjoyment of the rights and freedoms recognized in the Convention. The right of “every person” to “the peaceful enjoyment of his [sic] possessions” is protected under article 1 of Protocol I to the Convention.

In most European countries, norms on property rights are enshrined in civil codes, as well as in special legislation. These usually do not refer to gender (e.g. French Civil Code, art. 544).

Family law has evolved throughout Europe, passing from women’s subordinated position to equality of rights and duties of the spouses. The French Code Napoleon (1804), which provided the model for the civil codes of many European countries, is an interesting example. In its original 1804 text, it adopted a patriarchal model of family[28]. Subsequent legislation (1938, 1942, 1965, 1970, 1975, etc.) granted equal rights and duties to both spouses[29].

In Central and Eastern Europe, property, family and succession law usually does not discriminate against women (e.g. Romania, Articles 16, 41(2) and 42 of the Constitution and the Family Code, arts. 1, 2, 25, 26 and 30; Croatia, the Law on Property and Other Rights of 1996, art. 1, and Inheritance Law of 1955, as amended in 1978). As for agrarian relations, a comprehensive process of liberalisation took place in the 1990s after the demise of communism, and land reform programmes have been adopted in several countries. Land reforms include land restitution to those dispossessed during the Soviet era, state land allocation and/or privatisation (e.g. Latvia[30]), combinations of both (e.g. Czech Republic[31]; Estonia[32]), and distribution of shares of state or collective farms among state employees and collective members (e.g. Russia, Ukraine). This land legislation usually does not discriminate against women, who can benefit from land reform programmes, receive shares of restructured state and collective farms, and purchase and lease land. However, while data on the percentage of women actually acquiring land rights are rare, there are reports that men are the main beneficiaries of land reform programmes and hold most of the land (FAO, 1996).

2.8.2. Italy

General property and contract law (contained in the Civil Code and in special legislation) is gender neutral: women can acquire, own and administer property on the same conditions as men (although the terminology is either gender neutral or masculine; e.g. “proprietario”, art. 832).

Women’s position within the family has deeply evolved since the Civil Code of 1942 was first adopted. In its original text, the Civil Code vested the direction of family affairs in the husband. Marriage property relations were governed by the separation of property regime; the wife administered her separate property, unless she delegated the husband to do so (art. 212), and the husband exclusively administered dowry (arts. 182 and 184).

The 1948 Constitution states the principle of gender equality within marriage, although “within the limits determined by law to guarantee the unity of the family” (art. 29(2)). Many provisions of the Civil Code were inconsistent with this principle. In more than one occasion, the Constitutional Court intervened on the issue of gender equality in matrimonial relations. For instance, in an obiter dictum of Judgment 187 (1974), the Court called for the legislator to reform the family property rules embodied in the Civil Code; the Court argued that under the regime of separation of property the contribution of women’s domestic work to the household economy was not adequately protected, as it was difficult to evaluate in monetary terms.

In 1975, a reform of the Civil Code (Law 151) was adopted to bring family law in line with the constitutional principles. Under the amended Civil Code, marriage establishes a community of property, unless the spouses agree differently (art. 159). The spouses have equal rights in the management of family affairs. Family property is administered by either spouse in the case of ordinary acts and by both spouses for extra-ordinary acts (e.g. sale) (art. 180). In case of disagreement, distance or other impediment of one spouse, the judge can authorise the other spouse to perform the act (arts. 181 and 182). Upon division of family property, each spouse receives an equal share (art. 194). The norms on property administration and on equality of shares cannot be derogated by matrimonial agreements (art. 210). Where the spouses opt for the regime of separation of property, each spouse exclusively owns and administers his/her separate property (arts. 215 and 217).

Where no will exists, the widow/er is among the intestate heirs (arts. 565 and 581 ss.). No discrimination on the basis of gender is made among the children and between brothers and sisters (arts. 566 and 570). In case of testamentary succession, the widow/er and the children (both sons and daughters) are necessary heirs (i.e. they cannot be disinherited) (art. 536 ss.); for instance, the surviving spouse is entitled to half the property of the deceased spouse in the absence of children, and to a smaller share if there are children (arts. 540 and 542).

As for agrarian law, Article 44 of the Constitution envisages legislation to regulate and fix size limits for private land ownership, to transform the latifondo, and to provide assistance to small and medium holders. On the basis of this norm, a vast agrarian legislation has been enacted.

A land redistribution programme was undertaken in the 1950s to redistribute latifondo land (mainly in the South) through land expropriation and allocation to farmers by public bodies (“Enti di riforma”) (Law 230 of 1950, so-called “Legge Sila”; Law 851 of 1950, so-called “Legge Stralcio”; a separate regional law was passed in 1950 for land redistribution in Sicily). In addition, two decrees were adopted in 1948 (No. 114 and 121) to stimulate land transfers through fiscal and financial incentives. Overall, the reform has resulted in a substantial change in the land ownership structure (Shearer and Barbero, 1996). Under the land redistribution programme, eligible beneficiaries were rural workers who were either landless or owners of land insufficient for the labour force of their household (Legge Sila, art. 16). Land allocation was made through sale contracts between the Ente di riforma and the beneficiary, who was to pay a price over a 30-year period. In the great majority of cases, these contracts were signed by male household heads. In case of death of the beneficiary before the payment of the whole price, specific succession rules applied: the contract was inherited by the descendants; the spouse inherited only if there were no descendants (Legge Sila, art. 19).

Moreover, legislation has been adopted to protect tenants. Particularly important are Laws 756 of 1964 and 203 of 1982. This legislation is gender neutral. Both men and women can sign fix rental contracts[33]. The heirs of a tenant (both male and female) who contributed to the cultivation of the rented plot have the right to continue the rental contract after the death of the tenant (Law 203 of 1982, art. 49(4)).

No discrimination is made in legislation concerning the administrative procedure for the allocation of non- or under-cultivated land (Law 440 of 1978 and regional legislation, e.g. Molise, Regional Law 11 of 1980, Abruzzo, Regional Law 73 of 1982, art. 6).

As for water resources, Law 36 of 1994 nationalised superficial and underground waters; water rights are now granted in the form of concessions; no distinction is made on the basis of sex/gender.

Forests are within the legislative competence of the regions; regional forest laws are gender neutral (e.g. Liguria, Regional Law 4 of 1999; Toscana, Regional Law 39 of 2000; Molise, Regional Law 6 of 2000).

2.9. Conclusion

This chapter has highlighted some of the key issues concerning women’s rights to land and other natural resources. First, women’s rights may be curtailed by de jure direct discrimination. This is particularly the case of family law (which may restrict the legal capacity of married women to administer property, including land; e.g. South Africa before the family law reforms) and of succession law (which may restrict women’s inheritance rights; e.g. Tunisia and some personal laws of India and the Philippines). Discriminatory succession norms have a particularly negative effect on women’s land rights where inheritance is the primary form of land acquisition (as in the rural areas of many developing countries). De jure direct discrimination also exists in agrarian reform legislation entitling only men over a certain age to obtain land, while women qualify only if they are household heads.

Second, women’s rights may be limited by indirect discrimination. For instance, the criteria for land distribution under agrarian reform programmes, while not referring to gender explicitly, often refer to male-dominated categories like permanent agricultural workers (while women are concentrated in the seasonal and temporary agricultural labour force) and smallholders (while women rarely own land) (e.g. Philippines, Brazil). Moreover, under land redistribution and titling programmes, land titles are often issued in the name of the household head, who is usually (de jure or de facto) the husband/father (e.g. Kenya).

Third, women’s natural resource rights may be determined by the interaction between norms of different nature coexisting in a context of legal pluralism (e.g. customary and statutory law). Gender struggles for access to and control of natural resources may be fought by men and women relying on both statutory and customary norms. In this context, customary norms may be invoked by women to claim rights not recognized under statutory law (e.g. in the case of the Kenyan registration programme), and by men to limit women’s inheritance rights under statutory law. Similarly, statutory law may be relied upon by men to limit women’s unregistered land rights (e.g. Kenya), and by women to challenge the constitutionality of discriminatory customary norms (e.g. the Pastory case in Tanzania).

Fourth, even where there is no formal discrimination, women’s rights may be restricted in practice. For instance, even where land legislation is gender neutral, most land may be in practice held by men (e.g. Fiji). Moreover, rural women may lack the documents required by laws and regulations to benefit from agrarian reform programmes (as documented for Brazil). In some cases, formally gender neutral norms may allow discrimination in practice; for example, norms granting absolute freedom of will may be used to disinherit widows and daughters (as documented e.g. for India under the Hindu Succession Act). In other cases, socio-cultural factors, such as perceptions on women’s role in the family and in society and/or female seclusion practices, constrain the meaningful participation of rural women in natural resource management institutions (e.g. in Indian panchayats and village forest committees and in Mexican ejidos). Moreover, socio-economic factors (particularly women’s dependence on their male family members) may pressurise women to renounce to their statutory land rights in favour of male relatives (as documented for Burkina Faso and India).

In most cases, steps have been taken to improve women’s natural resource rights. Discriminatory family laws restricting the legal capacity of married women have been repealed (e.g. Brazil and South Africa). The principle of non-discrimination has been explicitly stated in agrarian reform programmes (e.g. Mexico and Brazil). Moreover, affirmative action to facilitate women’s access to land has been adopted in some countries (Brazil). Joint titling for couples (whether married or not) has also been adopted (the Philippines and, recently, Brazil), and women-specific forms of collective land holding or use have been established (e.g. UAIMs in Mexico). Furthermore, gender related provisions have been adopted with regard to natural resource management institutions, in terms of both composition and activities (e.g. under the South African National Water Act of 1998). The effectiveness of some of these measures deserves to be studied more closely. For instance, it is not evident that merely reserving to women seats within natural resource management institutions results in greater participation of women in decision-making, as some field studies found that women did not attend meetings even if they were entitled to, or did so but were largely ignored or merely acted as spokespersons of their husbands (e.g. on India, Ogra, 2000).

Table 4. Women’s rights to land and other natural resources


Property law

Family law

Succession law

Land law

Water law

Forestry law

Brazil

GN

ND; GN

ND

ND; SM; F



Burkina Faso

GN

GN

ND; J/D;

ND; GN

GN

GN

Fiji



GN; F

GN; F



India

GN


GN; J/D

GN; J/D; SM; F


GN; F

Italy

GN

ND; GN

GN

GN

GN

GN

Kenya

GN

GN

GN; F

GN; F

GN; F


Mexico

GN

ND; GN

GN; F

ND; SM; F

GN; SM; F

GN

Philippines

GN

GN; J/D

GN; J/D

ND

GN

GN; SM

South Africa

GN

GN

ND; GN

GN; ND; F

GN; SM; F

ND; GN

Tunisia

GN

GN; J/D

J/D

GN



GN Gender-neutral / non-discriminatory

ND Non-discrimination / equal-rights principle explicitly stated

SM Special measures to advance women

J/D De jure direct discrimination

J/I De jure indirect discrimination

F De facto discrimination reported in the literature reviewed

Where two or more acronyms are included, they refer to different aspects of relevant legislation and/or to a gap between law and practice.


[4] While ejidos were allocated land through the expropriation and redistribution programme, comunidades mainly acquired land through “confirmation” of existing land use and “restitution” of lands unlawfully appropriated by individuals (FAO, 1996b).
[5] This allocation was originally envisaged by the 1971 Federal Law of Agrarian Reform as a mandatory allocation by each ejido to the UAIM.
[6] This paragraph has substantially benefited from the excellent work of Barsted (2002) and of Guivant (2001).
[7] Rasaki Yinusa v. Adesubokun (1972, SC 27/70), allowing Muslims to freely dispose of their estate by will notwithstanding customary law restrictions; Abibatu Folarin v. Flora Cole (1986, 2 NWLR 369), recognising the right of a daughter to succeed to her father as household head in the absence of male children (cases quoted in Ejidike, 1999).
[8] Under section 82 of the Kenyan Constitution, family law is exempted from the principle of non-discrimination.
[9] For instance, in the Murang’a District, Kikuyu land tenure (ng’undu) traditionally vested land in the mbari (sub-clan), which allocated plots to household heads; women had usufruct rights and were excluded from inheritance. In the early 1900s, an individualisation process took place, with the mbari progressively losing control over land. As land sales became allowed, wealthier men purchased land as individuals. Moreover, while different interpretations of “custom” were invoked by men and women competing for land, men’s elders were considered the interprets of “tradition” by the colonial authority. This process resulted in an erosion of women’s secondary land rights (Mackenzie, 1998).
[10] HCCC No. 377/1968. This redress mechanism is allowed by the fact that section 126 of the Registered Land Act states that “particulars of any trust” existing at the moment of registration are not to be entered in the register.
[11] [1972] EA 227 and [1973] EA 388, respectively. Most of these cases concern the effect of registration to the household head on children’s secondary land rights (and some cases involve disputes between widows and sons). However, the principles affirmed in them are also relevant for other holders of secondary rights, namely women.
[12] The rationale of these norms was essentially political, as they aimed at damaging Mau-Mau rebels, who were largely absent when registration started, and at rewarding loyalists (Coldham, 1978b).
[13] An interesting example of women’s use of customary law to protect their access to natural resources is the institution of the “female husband”, whereby a widow without descendants marries a younger woman, and her wife and the children of the wife become her heirs. This institution was often used by wealthy widows to protect their access to their deceased husbands’ land vis-à-vis their husbands’ family members, both by giving the younger wife part of the land as bride wealth and by providing the “female husband” with heirs. Today, this practice is no longer very common, although some cases exist (Mackenzie, 1993 and 1998). In March 2002, a Kikuyu woman (Ms Grace Wanjiru Ngundu) brought a suit against the male relatives of her late female husband, who had tried to evict her from the land owned by the deceased female husband; Ms Ngundu’s case, brought before courts, is to be based on customary law (BBC web site, 11 March 2002). Similar practices are reported from other parts of Africa (e.g. see Kevane and Gray, 1999b, and, on Nigeria, Ejidike, 1999); in Nigeria, a woman-to-women marriage was declared null because contrary to natural justice, equity and good conscience in Meribe v. Egwu (1976 1 All NLR 266, quoted in Ejidike, 1999).
[14] A similar process of erosion of women’s rights in the context of irrigation projects is documented for the Gambia in Dey (1981) and Kevane and Gray (1999b).
[15] The Matrimonial Property Act of 1984 only applied to marriages celebrated after 1984; the 1993 Amendment Act extended it to all marriages (sec. 29).
[16] Le Roux J, 1997 (2) SA 936 (T); Provincial Division, 1998 (2) SA 675 (T); Supreme Court of Appeal, Case No. 71/98, 30 May 2000.
[17] For instance, it abolishes polygamy (art. 18) and grants both spouses the right to request divorce, subject to judicial review (art. 31); in several Islamic countries, termination of marriage is carried out by the husband alone through unilateral repudiation).
[18] Although partial privatisation reforms have been adopted with Directive 100 of 1981, Resolution 10 of 1988 and the Land Law of 1993, which introduced production contract systems (with farmers leasing land) and the transfer of land use rights to farmers.
[19] Membership of water users associations is generally limited to one member per household, usually the male household head (regardless of men’s and women’s water use). In the Chhattis Mauja Irrigation System (Nepal), no woman is member of the water users association (even though in some villages there is a high number of de facto female-headed households). The lack of women representation is due to entrenched socio-cultural practices reserving decision-making to men and, in some cases, to a lack of interest on the part of women (Zwarteveen, 1995).
[20] This paragraph draws extensively on the excellent study by Agarwal (1994).
[21] Thus, contracting or registering marriage under the Special Marriage Act of 1954 allows Indians to opt out of their personal law (see Hindu Succession Act, e.g. sec. 5 (i)). This is not possible in other countries, e.g. Pakistan and Bangladesh.
[22] 1995 3 SCC 635. The case concerned a Hindu man, married under Hindu rite, who converted to Islam and contracted a second marriage. As bigamy is a criminal offence under the Hindu Marriage Act, the first wife challenged the validity of the second marriage. The man invoked the personal liberty and religious freedom provisions of the Constitution. The court ruled in favour of the first wife, declaring that the conversion had no effects on the first marriage, which remained governed by the Hindu Marriage Act; the second marriage was therefore null and void, and the convert could be prosecuted. In his separate judgement, Kuldeep Singh J. directed the government to adopt a uniform civil code.
[23] The Hindu Women’s direction. Thus, widows (previously excluded from inheritance by the presence of male descendants) became intestate heirs of separate property, in shares equal to those of the sons. However, land ownership was explicitly excluded from the scope of the Act. Note that section 4(1) of the Hindu Succession Act of 1956 explicitly repeals previous texts, rules, practices and interpretations of Hindu law.
[24] For a review of legislation, see Behuria (1997).
[25] In analysing women’s and Dulnuan (2001) provided very useful guidance.
[26] Divorce is not allowed under Philippine law, except for the Muslim community.
[27] Summarized in Judd and Dulnuan (2001).
[28] For instance, the wife had a duty of obedience toward the husband (art. 213); in community of property, the husband exclusively administered family property (art. 1421); the wife could not sell, mortgage, acquire property without husband’s consent, even in separation of property (art. 217).
[29] In the new text, article 213 vests the direction of family affairs with both spouses; articles 1421 and 1428 vest the administration of common and separate property with each spouse.
[30] For instance, Law 21-11-1990 grants the right to file a petition for the allocation of permanent use rights in state land to “citizens and adult residents” of Latvia, without making any distinction on the basis of sex/gender (art. 7).
[31] For instance, Law 21 May 1991, on the restitution of land dispossessed between 1948 and 1990, explicitly states that the beneficiary may be a “he” or a “she” (art. 4(1)). The actual gender impact of this norm depends on the gender land distribution before the dispossessions. Where the expropriated landowner is dead, restitution benefits the testamentary heir, and in absence of will the children and the spouse (art. 4(2)).
[32] The Land Reform Act 1997 does not differentiate on the basis of sex/gender for the participation in the land restitution or compensation programme (art. 5) and in the land privatisation programme (art. 21).
[33] Sharecropping contracts (“mezzadria”, “colonia parziaria”, “soccida”) are largely prohibited and automatically converted into fixed rentals. In the mezzadria contract (now no longer allowed), the household head (in practice, usually the husband/father) was the legal representative of the household, and obligations contracted by the representative were guaranteed by the whole household property (but not by separate property of the spouse) (2150 of the Civil Code); this norm was implicitly abrogated by article 48 of Law 203 of 1982, which states that agrarian contracts refer to the whole cultivating family, and only if the lessor specifically requires so does the lessee family have to appoint a representative.

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