The notion of customary institutions has been highly contested ever since certain customs were codified as written law during the colonial period. The paper explores general aspects of customary land law and institutions that adjudicate land-related conflicts but focuses specifically on conflicts related to women's land rights.
Today in Africa, external and internal forces variously advocate retaining the status quo, overhauling the whole system, or amending some aspects of land tenure in light of rapidly changing realities. These changing realities range from the interest in creating a market for land to the push towards democracy, and from land insecurity to social effects of the HIV/AIDS pandemic. The bottom line is that each of these realities is eroding women's precarious land rights. However, opportunities for advocating women's interests are being seized wherever possible.
Referring to case studies of land tenure reforms, the paper argues that women as a group - with few exceptions - have massively lost out in most of these reforms. Without a committed gender focus, and accompanying transformations in family law and the workings of land agencies to provide agricultural services and allocate the requisite resources, once again women are likely to be net losers of whatever reform might be undertaken.
One new voice in the ongoing debate on customary law is that of women's organizations and the paper concludes that, in the long run, the strength of this new force might be the deciding factor in maintaining or overhauling institutions that systematically exclude more than half the rural population of Africa.
In Africa, debates on customary institutions date back to the colonial period but since the late 1980s a variety of social forces - within the African continent and beyond - seem to have renewed their concerns with these institutions. Although the debate and the degree of conflict it provoked was just as intense during the colonial period as today, the records of that era concentrate on the positions of chiefs, elders and colonialists. Today, contestants in the right to define, preserve, adapt or change customary institutions are drawn from a far broader base. Among the new forces to be reckoned with in many parts of Africa are the organized and vocal women's groups.
Customary institutions is a phrase that refers to rules and practices governing many cultural, social and political aspects of life. In this analysis I limit my focus to those customary institutions that regulate gender relations, and specifically to the current debate on customary land tenure and how it affects gender relations in rural Africa. Given the diversity of the African continent, and of customary land tenure itself, what follows is just a snapshot of how the debates concerning women's land rights are unfolding.
Ever since the first attempt to record customary land law during the colonial period, a tension has persisted between the desire to codify this law in a simple and readily identifiable set of rules and the ever-evolving practice of this law, which is based on hotly contested traditions. Locally derived meanings attached to land and resources are perhaps best understood in terms of a set of rights, and no generalized land codification is likely to reflect the complexity and fluidity of this understanding. What is clear is that customary land laws are not always readily identifiable or consensually determined. What becomes law reflects the relative economic and political power of competing interest groups and individuals.
There is now an avalanche of literature on the pivotal role in agriculture played by African women, in growing food for subsistence and crops for export. A persistent finding of these studies is that the contribution of women is undervalued by government institutions and by male household members, to the extent that agricultural services are commonly denied to women.
In most African countries, women have few and precarious land rights, if they have them at all. Where land rights specific to women do exist, even this limited entitlement is being eroded by a convergence of external and internal events. Unrelenting economic crises, wars and the HIV/AIDS pandemic, confusingly intertwined with population growth and land scarcity, form the context for attempts to create a market-based economy that will stimulate a market in land. The democratization process has itself contributed to intensified conflicts over land but has also broadened the space for public participation in policy debates. Each of these processes has had a profound impact on gender relations. This brief review highlights only some of the changes regarding land rights.
In the context of establishing a global economy, the vast numbers of World Bank studies on African agriculture tend to diagnose that the major constraints on increased productivity arise from the defects of customary tenure. The remedy they prescribe generally involves a move towards individual tenure systems based on statutory law. The 1989 World Bank report (World Bank 1989: 104) articulates this position particularly clearly in the section entitled, Redefining Land Rights, where the justification for overhauling customary land tenure reads as follows:
Farmers must be given incentives to change their ways. One important incentive is the right to cultivate land permanently and to bequeath or sell it. Secure land rights also help rural credit markets to develop, because land is good collateral... Traditional land tenure systems need to be codified. Titles could also be provided for groups for collective ownership... Nationally legislated land rights are likely to conflict with prevailing customary rights. Judicial mechanisms for dealing with disputes between owners claiming traditional versus modern land rights are urgently required.
Prior to currently prevailing orthodoxies, there have been a number of scattered attempts to abolish customary tenure, starting during the period of colonialism and stretching to the present. Of these, the most well known policy of replacement was initiated in 1956 the then colonial regime. Premised on English Land Law, the Land Act of 1962 was only amended in 1991, when the passage of the Land Dispute Tribunal Act marked a return to some important aspects of customary law. The amended Act established Council of Elders to handle land disputes, applying customary law to even those lands governed by the 1962 Act. Similar but half-hearted attempts at initiating the process of replacement of customary land tenure have been made in Tanzania, Lesotho and more recently in Namibia. However, to date, most policies of replacement have not been successful, or consistently implemented.
An alternative approach to tenure reform is that known as the policy of adaptation, as proposed in a study carried out by two highly regarded experts on African land tenure. Rejecting the policy of replacement in favour of their own 'adaptation paradigm', Bruce and Migot-Adholla (1994: 261 - 2) call on African governments:
To redirect attention to more incremental approaches to changes in indigenous tenure systems... We should be moving away from a 'replacement paradigm' in which indigenous tenure is to be replaced by tenure provided by the state, and towards an "adaptation paradigm". An adaptation paradigm requires a supportive legal and administrative environment for the evolutionary change in indigenous law. Such a supportive environment implies a clear recognition of the legal applicability and enforceability of indigenous land tenure rules.
The policy of replacement often had unforeseen side-effects such as dispossessing women of their customary rights to land, and it is far from clear how the adaptation paradigm would address this issue of land for women or what form of dispute settlement mechanism it would propose establishing. As we will see from the following cases, the dispute settlement mechanism is one of the key institutions in denying or recognizing the entitlement of women and other deprived groups. The new tenure reforms are either silent on the matter of women's rights to land (Namibia is a case in point), or reluctant to take specific action and allocate the requisite resources to implement gender progressive land policies (which describes the situation in South Africa). Tanzania's new National Land Policy (NLP) exemplifies a typical ambivalence concerning women's rights in newly emerging tenure reforms. The NLP states that:
In order to enhance and guarantee women's access to land and security, women will be entitled to acquire land in their own right not only through purchase but also through allocation. However, inheritance of clan family land will continue to be governed by custom and tradition.
Ownership of land between husband and wife shall not be the subject of legislation. (Government of Tanzania 1995: NLP Policy Statement 4.2.6)
Not only did the new land legislation maintain discriminatory inheritance practices, but also the conservative provision regarding matrimonial property negates the gains made by women since the passing of the Marriage Act of 1971. In addition to provisions in old and new tenure reform that continue to discriminate against women, a second, related, gender bias emanates from institutions set up to adjudicate land disputes.
In Tanzania, the dispute settlement mechanism is known as Mbaraza Ya Wazee Ya Ardhi. It is structured so that councils of village elders have primary jurisdiction in all land matters, including settling disputes over individualization of tenure. They determine their own procedures, subject to the obligation to follow the principles of natural justice; they are not bound by any civil or criminal procedure codes or the law of evidence; and they do not hear appeals put forward by lawyers.
Although advocates of gender justice including women MPs were unable to secure women-friendly provisions in the NLP, what they have done is turn their attention towards how the law is implemented and look closely at how the dispute settlement mechanism works. At the time of drafting, the new legislation had required those mandated with the management of land to have "special regard for the needs of women when considering allocation or disposition of land; that any dispute settlement bodies allocated at village level must include women in their composition; and that land adjudication in connection with individual customary rights of occupancy must pay particular attention to the interests of women." Although advocates of gender justice have been criticized for not formulating a holistic and "independent policy position regarding women's relations to land", (Manji 1998: 663) they are currently pressing for the implementation of the foregoing provisions contained in the NLP draft bill.
The sheer breadth of the challenge facing African women in this period of wideranging tenure reform can be discerned from how this complex process is unfolding in Uganda. Since Musevini came to power in 1986, Ugandan women have made considerable gains on a number of fronts, in what one author observed as "an implicit quid pro quo between women and the government of Musevini". (Tripp 2000:9)
First among these gains made by Ugandan women is the 1995 Constitution, which grants women legal equality and protection in political, economic, social and cultural spheres. Significantly, through the concerted efforts of the Women's Caucus in the Constituent Assembly, it also contains a clause prohibiting "laws, culture, customs or traditions that violate the dignity, welfare or interest of women." In parallel moves, women have been placed in key cabinet positions, including the vice presidency, and have secured 30 percent of the seats in local government.
Furthermore the new Constitution supersedes customary law. In other words, customs that undermine the guarantee of equality should in principle be considered unconstitutional. But as there have been no statutory reforms, the constitutional provisions have had little effect on the courts. (Khadiagala 2001: 4) The controversy sparked by the 1998 Land Act1 exemplifies the inadequacy of such constitutional provisions alone, illustrating why clauses designed to ensure equality in the spate of new constitutions promulgated throughout Africa during the 1990s have not been effective.
In Uganda, women play a key role in food production, involved in the cultivation of cash crops and the value-added processing of food while continuing to ensure that the subsistence needs of their families are met. Until the new Constitution came into effect, women were treated as minors under the law, without adult legal status or rights, and in most Ugandan communities women do not own land. Although, conveniently enough, women are permitted to till the land to produce crops, they have no right to plant perennial crops or use the land as collateral unless they secure male permission. Women's labour has become even more significant under Uganda's current agricultural policy to expand non-agricultural exports.
Pointing to the social and economic significance of their agricultural labour to the household economy, women argue that "property rights should flow not from a person's status but from the fulfilment of social responsibility". (Khadiagala 2001: 61) Under the customary practice known as the house-property complex, property rights were traditionally organized around female-headed households. Men retained plots for personal use but distributed the bulk of their holdings to their wives. Sons inherited the property of their mothers rather than from a general pool controlled by the father.
Women enjoyed well-defined and inalienable rights to this property attached to their houses, and had recourse in law when men violated those rights. Based on this principle, most customary courts affirmed that once property had been gifted or assigned to a wife, it could not be taken away, and husbands who tried to sell land or transfer it to a new wife were rebuked. Moreover, the customary law of succession allowed widows to inherit ownership rights in matrimonial homes and land, and to share in the distribution of the deceased man's personal property. (Khadiagala 2001: 61)
Women's rights in these respects began to be eroded by various forms of land transfer including the emergence of a market in land, and by increased land scarcity occasioned by widely-practiced polygamy. By the late 1960s, newly-constituted magistrates' courts were forcing women to subdivide their plot of land and share it with co-wives. Such rulings culminated in the reinterpretation of customary law, placing women' property rights under the authority of men in their guise as heads of household.
Statutory laws on marriage, divorce or succession have not been of much help to Ugandan women. For example, the High Court ruled in 1977 that women can own property regardless of their marital status; but, to date, few women have had the means to purchase land. For its part, the Marriage Act of 1964 only recognized monogamous marriages. But the courts ignore these provisions in the majority of cases, as magistrates tend to refer to customary law in matters pertaining to women.
In the recent past, women's land rights seem to have been further eroded as a result of the HIV/AIDS pandemic. The Succession Act of 1964 automatically issued widows whose husbands died intestate with letters of administration, allowing widows in this position to inherit the matrimonial home along with 15 percent of the property. If there were several wives, they had to share the 15 percent among them. With the spread of AIDS, when families suspected this cause of death they would apply for the letter of administration, in order to prevent widows from gaining control of the property for fear they would sell it to pay for their own medical care. The Succession Act was amended in 1972, ending the automatic issue of letters of administration.
The 1972 amendment charged the Administrator General Office, a department in the Ministry of Justice, with implementing inheritance law, providing it with "extensive discretionary powers over granting of letters of administration". In 1997, Khadiagala interviewed staff lawyers charged with carrying out the Amended Succession Act who admitted to "favouring families over widows because 'most of the cases are HIV and so the issue of naming the widow, as administrator, makes no sense'." (2001: 62)
Hoping to prevent this kind of arbitrary dispassion, and to translate the rights enshrined in the Constitution into lived reality, Ugandan women began advocating the specification of joint marital property rights in the period running up to the promulgation of the 1998 Land Act. Tabled by women MPs, and backed by a vocal coalition of NGOs known as the Uganda Land Alliance, Parliament passed a Land Act that included Spousal Co-ownership of Land. But President Musevini "pulled the amendment before the final version was printed". (Bakyawa 2001, quoted in Khadiagala)
Justifying his actions in a newspaper interview, the President was quoted as saying, "When I learnt that the Bill was empowering newly-married women to snare the properties of husbands, I smelt a disaster and advised for slow and careful analysis of the property sharing issue". (Tripp quoting New Vision: 2000) Women activists, including female MPs, challenged this unilateral decision by the executive and called on women to threaten to withhold their vote unless the co-ownership clause was brought back on board. (Tripp 2000: 12)
The Alliance has kept up its advocacy, despite being accused of fronting for Western interests because of its sources of funding. Gains made by the Alliance so far include guarantees that decisions regarding land held under customary tenure - either individually or communally - shall be taken "in accordance with the custom, traditions and practices of the community concerned unless they deny women ownership, occupation or use of land." The continuing debate has also served as a consciousness-raising tool among rural women and the public at large, and has influenced the advocacy campaigns of women in other African countries.
A third example of the difficulties in translating women's land rights into practice comes from post-apartheid South Africa. Here, the central thrust of land policy is the land reform programme, as set out in the 1997 White Paper on South African Land Policy. The three prime aspects of the programme are land restitution, land redistribution and tenure reform. A secondary feature of the programme involves establishing the judicial institutions necessary to implement the reform. The section of the White Paper that addresses women's land rights is much more explicit regarding women's rights than the previous two cases discussed. It specifies:
(1) The removal of all legal restrictions on participation by women in land reform. These include reform of marriage, inheritance and customary law where they constitute an obstacle to women receiving rights to land.
(2) Specific mechanisms to provide security of tenure to women, including the possibility of registering assets gained through land reform in the name of the household or its individual members. (Government of South Africa 1997: 33)
While these are highly laudable provisions, conferring tangible and theoretical benefits on women who had suffered multiple forms of exclusion under previous depositions, their implementation has been constrained in a number of ways. One is that guidelines - to identify beneficiaries and ensure gender equity - do not exist. And a more intractable problem is the persistence of customary practices such as those that prevent women from owning land, those that prevent widows from inheriting land and those that prevent women from speaking in public.
In short, social values that women have internalised - making it impossible for a woman's views to be stated and held with as much gravitas as a man's - are still major obstacles in South Africa. But so too are plainer issues of discrimination. For instance, the Communal Property Association, mandated to administer communal land on behalf of its members, has no women members. Women have not been empowered enough to engage in the negotiations required to establish land restitution. As a result, women are perceived as a kind of appendage to male heads of household. Additionally, the limited budget of the Department of Land Affairs and the fragmentation of responsibility for rural development across a large number of Ministries impede the implementation of gender-equitable land reform in South Africa. (Walker 2000)
These various examples indicate that, in order to be supportive of women's struggles for equality, new land legislation has to include explicit and "mandatory mechanisms of inclusion". (Deere and Leon 2001) For the foreseeable future, the only measures likely to be adopted in (some) African countries are joint titling of land and (as in Ethiopia) the right of women to own land independent of their marital status. Even these limited measures, to have real meaning, require reforms in inheritance and marriage laws to be legislated for and implemented.
Awide array of gender-equitable legislation was passed, in numerous African countries, during the 1990s. However, most of it has remained trapped on paper, either because it is controversial or - more seriously - the costs of implementing it have not been included in public expenditure forecasts. The benefit that women will get from such reforms also depends on the gender awareness of those in charge of administering land, and of those in charge of making agricultural policies and services (such as technical assistance, credit and cooperative societies) more gender-equitable. The key to ushering in sustainable transformations and making gender relations in Africa more equitable is action that strengthens women's bargaining position within the household and ensures women's fall back position in case of family breakdown.
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