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Gender and Land Rights Database

Mozambique

Rights entrenched in the Constitution

The Constitution adopted in 1975, amended and supplemented in 1990 and in 2004:

  • The land is owned by the State and all and every person have access to land and other natural resources through various mechanisms in the context of legal pluralism and constitutional provisions established.
  • Article 4, Legal pluralism: The State recognizes the different legal and conflict resolution systems that coexist in the Mozambican society as far as they do not contravene the fundamental values and principles of the Constitution.
  • Article 11, Fundamental Objectives
    c) the building of a society of social justice and the achievement of material and spiritual well being and quality of life for its citizens;
    d) the promotion of balanced economic, social and regional development in the country;
    e) the defence and promotion of human rights and of the equality of citizens before the law;
    f) the strengthening of democracy, freedom, social stability and social and individual harmony;
    g) the promotion of a society of pluralism, tolerance and a culture of peace;
    i) the affirmation of the Mozambican identity, of its traditions and other social and cultural values;
  • Article 35, Principle of Universality and Equality:
    All citizens are equal before the law, and they shall enjoy the same rights and be subject to the same duties, regardless of colour, race, sex, ethnic origin, place of birth, religion, level of education, social position, the marital status of their parents, their profession or their political preference.
  • Article 36, Principle of Gender Equality: Men and women shall be equal before the law in all spheres of political, economic, social and cultural life.
  • Article 44, Duties Towards One’s Fellow Beings: All individuals shall have the duty to respect and consider their fellow beings without any form of discrimination whatsoever, and to maintain relations with them aimed at promoting, safeguarding and strengthening respect, mutual tolerance and solidarity.
  • Article 82, Right of Ownership:
    1. The State shall recognise and guarantee the right of ownership of property.
    2. Expropriation may take place only for reasons of public necessity, utility, or interest, as defined in the terms of the law, and subject to payment of fair compensation.
  • Article 84, Right to Work:
    1. Work shall be a right and a duty of every citizen.
    2. All citizens shall have the right freely to choose their profession.
    3. Forced labour shall be prohibited, except where the work is performed within the framework of penal legislation.
  • Article 103, Agriculture: 1. In the Republic of Mozambique, agriculture shall be the basis for national development. 2. The State shall guarantee and promote rural development in order to meet the growing and diverse needs of the people, and for the economic and social progress of the country.
  • Article 109, Land: 1. All ownership of land shall vest in the State. 2. Land may not be sold or otherwise disposed of, nor may it be mortgaged or subject to attachment. 3. As a universal means for the creation of wealth and of social well being, the use and enjoyment of land shall be the right of all the Mozambican people.
  • Article 110, Use and Enjoyment of Land:
    1. The State shall determine the conditions under which land may be used and enjoyed.
    2. The right to use and benefit from land shall be granted to individual or corporate persons, taking into account its social or economic purpose.
  • Article 111, Rights Acquired Through Inheritance or Occupation of Land: In granting titles for the use and enjoyment of land, the State shall recognise and protect rights acquired through inheritance or by occupation, unless there is a legal reservation or the land has been lawfully granted to another person or entity.
  • Article 119, Family:
    1. The family is the fundamental unit and the basis of society.
    2. The State shall, in accordance with the law, recognise and protect marriage as the institution that secures the pursuit of family objectives.
    3. In the context of the development of social relations based on respect for human dignity, the State shall guarantee the principle that marriage is based on free consent.
    4. The law shall establish forms in which traditional and religious marriage shall be esteemed, and determine the registration requirements and effects of such marriage.
  • Article 120, Motherhood and Fatherhood:
    1. Motherhood and fatherhood shall be afforded dignity and protection.
    2. The family shall be responsible for raising children in a harmonious manner, and shall teach the new generations moral, ethical and social values.
    3. The family and the State shall ensure the education of children, bringing them up in the values of national unity, love for the motherland, equality among men and women, respect and social solidarity.
    4. Fathers and mothers shall support children born out of wedlock and those born in wedlock.
  • Article 122, Women:
    1. The State shall promote, support and value the development of women, and shall encourage their growing role in society, in all spheres of political, economic, social and cultural life of the country.
    2. The State shall recognise and hold in high esteem the participation of women in the national liberation struggle and in the defence of sovereignty and democracy.” (10)

Women's property and use rights in personal laws

The new Family Law 10/2004 of 25 August 2004: 

  • Article 16: recognises three types of marriage: civil, religious and traditional  
  • Article 16(2) states that marriage is monogamous (12). 
  • The reformed Family Law establishes gender equality in family law. It states that marriage should not be seen exclusively as a union whereby women serve to produce children, but rather as an equitable union between equal partners. Indeed, husbands are no longer automatically considered the head of the family and parental authority thus replaces paternal authority. 
  • Article 30 bans marriage before the age of 18 and guarantees the right of both partners to choose a spouse and enter into marriage with free and full consent. 
  • Article 99: spouses have an equal right to represent the family
  • Article 103: guarantees gender equality in property ownership: married women have the right to register property jointly with their husbands (13). 
  • It stipulates the obligation to register customary or religious marriages with civil authorities and recognizes de facto marriages, or common-law marriages (14). A marriage that is not registered is considered a de facto union without the full legal recognition of marriage. In de facto unions there is no requirement to obtain the consent of a partner -in a cohabiting relationship- before transferring property. (27)

Law 8/92 of 1992 on non-litigious divorce:

  • Article 5: in concession of a litigious divorce, the couples must give their consent on: i. the regulation of the paternal power regarding minor children; ii. the distribution of common assets; iii. the provision of foodstuff to the less privileged spouse; iv. the destination of the couple’s home (11).

Labour Law: Law 23/2007, of 1 August 2007  which repeals Law 8/98, of 20 July1998:  

  • Articles 10-12: guarantee the right to 60 days maternity leave with full pay. According to Article 3, Number 2, these provisions shall apply, mutatis mutandis, to any type of employment relationship, even to those not explicitly covered by the Labour Law. Moreover, specific provisions of the Labour Law provide for legal action in the case of proven discrimination, with the support of the Courts of Labour, constitutionally provided for and operational in all provincial capitals of the country (15).

Inheritance legal mechanisms

In Mozambique, succession is based on a patrilineal system supplemented by the Tax Code on Succession and Gifts (2007) and in some provisions in other statutes, such as the Land Law (1997) and the Family Law (2004).

The Constitution adopted in 1975, amended and supplemented in 1990 and in 2004:

  • Article 83, Right of Inheritance: The State recognises and guarantees, in accordance with the law, the right of inheritance (10).

The new Family Law of 2004:

  • In the old Family Law, spouses were fourth in line for inheritance after children, parents and brothers (16).
  • Article 109 of the new Family Law stipulates that both spouses are equally entitled to half the goods purchased together after the dissolution of marriage caused by death or other reasons (12). However, in practice this division is difficult to apply because the estate is deemed to belong to a lineage rather than to an individual.
  • In the previous Family Law (Civil Code), factual unions or common-law marriages were not covered by law and the inheritance rights of women, together with the assets purchased during the de facto union, were not guaranteed upon the husband’s death (11).

The Succession Law is in the process of being revised.

  • The key debate in the revision is the legal recognition of inheritance rights of people living in cohabiting and unmarried unions, including polygamous unions.

Land Legislation

The Land Act (No. 19/97) of 1 October 1997:

  • Article 3 recalls that land is the property of the state and cannot be sold or otherwise alienated, mortgaged or encumbered (9).
  • Article 10(1) states that national individual and corporate persons, men and women, as well as local communities may be holders of the right of land use and benefit.
  • Article 12 stipulates that the right of land use and benefit, Direito de Uso e Aproveitamento da Terra (DUAT), is acquired, with no distinction between men and women, by means of:
    a) occupancy by individuals and by local communities, in accordance with customary norms and practices which do not contradict the Constitution;
    b) occupancy by national individuals who have been using the land in good faith for at least ten years;
    c) authorization of an application submitted by an individual or corporate person in the manner established by this Law.
  • Article 13 guarantees that men and women who are members of a local community may request individual land titles. Women are therefore entitled to hold and register land either jointly with others or independently but the process for registering interests in land is reportedly slow and expensive, which can discourage them from using it (27).
  • Article 16 stipulates that the right of land use and benefit may be transferred by inheritance, without distinction of gender (16).
  • Article 23 stipulates that Presidents of Municipal Councils and Settlement Councils and, where there are no municipal structures, District Administrators are the only bodies entitled to authorize land-use and benefit rights (9).

Decree 66/98 on Land Law Regulations of 8 December 1998amended in 2003 and 2010:

  • Article 9, on the acquisition of the right of land use and benefit by occupancy by local communities, states that local communities which occupy land according to customary practices have the right to acquire the right of land use and benefit. Those areas that are subject to legal reservation are excluded from this provision (16).
  • Article 10, on the acquisition of the right to land use and benefit by occupancy in good faith by national individuals, is gender-neutral and guarantees the right of national individuals who, in good faith, have used a land area for a period of at least ten years to acquire the land use and benefit (16).
  • Article 13, on the rights of the title holders, enunciates the following rights of landholders:
    a) to defend their rights, in accordance with the law, against any encroachment by another person;
    b) to have access to their parcel of land and to public water resources through neighbouring parcels, and to create the servitudes necessary for this purpose (16).
  • Article 20 was amended in 2003 to set up procedures for the registration of inherited land use rights and secure rights to customary servitudes.
  • Article 21, on the proof of land use and benefit, stipulates these can be constituted by:
    a) a certified extract of the Register;
    b) testimonial evidence submitted by someone who is aware of the acquisition of the right by occupancy;
    c) expert evidence and other methods permitted by law (16).
  • Article 21(2), on the claim to the right of land use and benefit by two parties, is gender-neutral in the sense that the right to land use and benefit is bestowed to the party who presents earlier acquisition (16). This provision is seen as an opportunity for improvement of women´s land rights in case of a land dispute arising from the couple (9).
  • Article 27 was amended in 2010 to introduce an obligation to consult local community on legal procedures related to land administration and land use management. These communities should participate actively in the decision making through the local consulting committees.

Policies/Institutional mechanisms enforcing or preventing women’s land rights

The National Land Policy approved in 1995:

  • Reiterates the constitutional principle that although land is State property, all citizens and legal persons have access to land and resources with the various mechanisms in the context of legal pluralism and constitutionally recognized provisions. Occupied land refers to all land under communal lands (delimited or not), areas with land titles –DUAT- authorized by the state, forest concessions and areas of natural conservation as well as  all land officially granted for other uses (housing, industrial projects, tourism, mineral concessions, etc). Lands rights of good faith occupants (squatters) are also legally protected provided that the occupation has been exercised for more than 10 years; 
  • Recognizes customary rights over land, including the various inheritance systems and the role of local community leaders in preventing and resolving conflicts. 
  • The policy aims to create conditions for developing and growing local communities and for promoting investment in rural areas through the involvement of the private sector. Its primary objective is to “safeguard the diverse rights of the Mozambican people over the land and other natural resources, while promoting new investment and the sustainable and equitable use of these resources”. 
  • The policy underlined the importance of developing a legal framework for land rights that would be sufficiently flexible to accommodate different systems and scenarios, particularly in respect to rights and landholdings in the family sector. It was recognized that customary landholding mechanisms did not necessarily consist of rigid rules. Subsequent legislation was drafted to implement this policy, which secured the role of traditional authorities in preventing and resolving conflicts.
  • The policy also maintains the concept that all land belongs to the state, despite calling for strong private land rights with all the legal guarantees (9).
  • Since 1995, the Sector da Mulher, within the National Directorate for Social Action of the Ministry for Coordination of Social Action (MICAS), has been responsible for dealing with issues concerning gender inequality with the aim of promoting social action and welfare assistance for women (4).
  • In 1995, an inter-sectoral coordination mechanism, the Grupo Operativo, was created. Its objective is to promote and follow-up on policies and programmes approved by the Government in the area of women and gender. The Grupo Operativo was inactive between 1999 and 2000; then it resumed its role under the leadership of the Minister of MMCAS to implement a new action plan for training and sensitizing the different ministries. Although several ministries have undertaken the training schemes, these only lasted a few days (4).
  • In 2000, MICAS was redefined as the Ministry for Women and Coordination of Social Action (MMCAS) and a woman was appointed as its head. Consequently, the Sector da Mulher was officially recognized as a National Directorate for Women and Gender, with two departments: i. Women and Family; ii. Gender and Development (4). Unfortunately, MMCAS is understaffed and lacks sufficient resources and therefore its efficiency and coordination role is limited (4).
  • Key ministries, such as MMCAS, the Ministry of Health (MISAU), the Ministry of Education (MINED), the Ministry for Coordination of Environmental Affairs (MICOA) and the Ministry for Agriculture and Rural Development have established their own gender units to embrace gender issues more efficiently. More specifically, the Ministry of Planning and Finance has integrated gender matters in its Population Policy and has established guidelines for sector budget schemes. Nevertheless, these guidelines are advisory only and the separate ministries have discretion to allocate gender activities (4). 

The Action Plan for the Reduction of Absolute Poverty 2006-2009 (PARPA II) recognizes that gender inequality is an obstacle to economic growth in the country and establishes the link between gender and poverty as a major concern in the context of reducing absolute poverty. Indeed, in this plan the gender component is deemed crucial to the success of the strategy for growth and poverty reduction. Despite the explicit recognition for the need of a formal integration of gender equity issues within national programmes, institutional mechanisms lack concrete implementation strategies: to this day, gender issues remain significantly marginalized and are often solely considered as one of the many components to be included in wide spectrum of national policies, without sufficient attention being given to the necessary generation of durable outputs and results (9). 

The Government's Five Year Programme 2005-2009 (PQG) to the area of gender states that women's situation in Mozambique is characterized by difficulties related to factors such as economic power, the rigidity of gender roles socially assigned to women, the difficult access to education, health, several features including credit, land tenure and weak participation in decision-making bodies. The PQG 2005-2009 also refers to the goal of achieving gender equality and explicitly mentions the strengthening of women's power is a decisive factor in eradicating poverty. Overall, the still deficient articulation and integration of the question of gender within the programme are yet to be overcome (9).

The Policy and National Strategy for Gender was adopted at the Fifth Session of the Council of Ministers on March 14, 2006 is governed by the principles of social fairness, equality, equity, non discrimination and gender mainstreaming, based on the belief that the gender approach should be incorporated into all levels of decision making, particularly in terms of legislation, policies, programs, strategies and action plans. 

The Strategy and Action Plan for Gender in the Agrarian Sector, adopted in September 2005 and based on the National Gender Policy and Strategy, approved in the 5th Session of the Council of Ministers on 14 May 2006. It is guided mainly by principles of equality, social justice, non-discrimination and gender integration.

The strategy evokes the four pillars of development included in the National Agrarian Development Plan PROAGRI II: access to Resources, technology, financial services, marketing and markets. Moreover, the Gender Strategy of the Agricultural Sector has defined a number of strategic actions to follow in order to ensure that the separate sub-sectors integrate the specificities of gender issues with a focus on rural women (9).

Unfortunately, the National Plan of Action is compromised by the absence of consistent allocation of resources and by the lack of appropriate gender training within the ministerial gender focal points (4).

Currently, gender is the focus of attention of several strategic instruments:

- The Five-Year Programme for 2010-2014,
- PARPA 2010-2011,
- The Gender Policy and Implementation Strategy,
The National Plan for the Advancement of Women,
- The Gender strategies of Education, Health, Public Administration, Energy and Environmental Affairs

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