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Malawi

Customary norms, religious beliefs and social practices that influence gender-differentiated land rights

 

Customary norms, religious beliefs and social practices that influence gender-differentiated land rights

In almost all the main ethnic groups, both patrilineal, predominant in the Northern region, and matrilineal, mostly in the parts of Central and Southern regions, customary law provides men with a superior status than that of women and, accordingly, gives them greater power in political and family leadership and land holding (12).

Women who reside in the husband’s home are often excluded from certain roles and expected to be more hardworking, submissive and less powerful than the ‘owners of the village.’ A similar treatment is also applied to men who reside in their wives villages. A man and a woman residing in the husband’s village are sometimes threatened with temporary or permanent expulsion to their villages if they are considered to be non-conforming nagging or ‘behaving as if the village is theirs’ (12).

Women’s access to land is often through the family head who is almost always a man. In patrilineal societies, access to land is through a woman’s husband or sons. In matrilineal societies, the family head is the maternal uncle, while husbands still exercise power over the use of land and its products. In both societies, the husband is regarded as the key controller in the use of any land allocated to his family (12).

Within patrilineal marriage, the woman has only secondary rights to cultivate the land, which she loses upon divorce since she must return to her own village. Upon death of the husband, the woman can use the land that her husband owned as long as she is unmarried. As children grow old, the woman shares her land with them but she may be chased away from the land (2).

Matrilineal marriage includes two types of marriage: chitengwa or virilocal and the chikamwini or uxorilocal. In chitengwa societies, in case of death of the husband, the wife is chased away from the village of marriage losing her land rights. Similarly, if a wife dies in chikamwini, the husband is chased away from the village of marriage losing his land rights (2).

Property rights are feminised or masculinised, hence, customary law and cultural norms allow a married woman to administer the property that is regarded as feminine. Cooking utensils, for example, are for women while the other property such as land and cars are usually for men (12).

Marriage confers status, responsibility and respect. Unmarried, divorced and childless women are generally treated with less dignity than their married counterparts (12).

The practice of dowry is still part of the marriage rites and is often used an excuse for wife battering (12).

Traditional authorities and customary institutions

 

Traditional Authorities act as custodians of the cultural and traditional values of the community. They have the control of customary land ensuring that authority over land is passed in succession from one generation to another. They also perform a semi-judicial function settling customary disputes over land. Finally, they lead development initiatives and act as chairpersons of Area Development Committees (ADCs). In fact they exercise a lot of influence over their constituents mobilizing the people to participate in the developmental activities (20).

Due to the fact that little new land is available for distribution, family heads have largely taken over chief’s traditional role in land allocation, as family holdings are being fragmented to accommodate new families (20).

Inheritance/succession de facto practices

 


In both matrilineal and patrilineal community systems, male preference is the rule, although a widow’s share will be different depending on whether she belongs to a matrilineal or patrilineal system (21).

In general under matrilineal system, land passes through women to the nearest matrilineal male, usually a nephew of the deceased person and chieftaincy is handed down through the female line (21). This is reported to be the major cause of conflict over property between cousins (20). In matrilineal uxorilocal chikamwini marriages, women inherit custodial ownership of land (21).

In patrilineal communities land is inherited through the male lineage and property passes directly to sons. Women have secondary rights as they can have access to it through their husbands and sons. Upon death of the husband, the woman can use the land that her husband owned as long as she is unmarried. When children grow old, the woman shares her land with them but she may be chased away from the land (2).

According to Chokolo or wife inheritance traditional practice, a deceased man’s relative inherits the widow as his wife (12).

Discrepancies/gaps between statutory and customary laws

 

Article 24 of the Constitution recognizes that women have the same rights as men to enter into contracts and to acquire and maintain rights in property independently; however, under customary norms, women mainly access land through male relatives (15).

The Wills and Inheritance Act provides for the inheritance share of a woman under customary law; however, it distinguishes between women who are married patrilocally, from those who are married matrilocally. A patrilocal widow is entitled to three fifth intestate estate of the deceased husband to share with other dependants, while a matrilocal widow is entitled to half of the share with other dependants (12).

Although the 1998 amendment of the Wills and Inheritance Act made dispossession of widows and children a criminal offence, in practice, property grabbing is still widely practiced also because the requisite public prosecutors had not yet been appointed as of 2004 (12).

The Constitution allows child marriages, although it discourages it. This is in contrast with section 19 of the Marriage Act, which prescribed twenty-one as the minimum age for marriage (12).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography