База данных по гендерной проблематике и правам на землю


Общепринятые нормы, религиозные убеждения и общественная практика, оказывающие воздействие на гендерно-дифференцированные земельные пра

Land rights based on customary law may be allocated differently, according to gender, social values, social and marital status. In some cases, customary norms may be used to dispossess women of their rights, although in other cases they may be used to defend women’s land claims; this leaves room for uncertainty in the interpretation and application of the law (5). 

Specific traditions and customary norms vary from one region to another (11). Despite this variety, a common feature is the preponderance of patriarchal gender relations which restrict women’s access to land-use rights, benefits, labour and natural resources in community and private life. Indeed, even in matriarchal societies, women only have rights through their male relatives, such as their brothers or maternal uncles (4). 

In northern provinces, such as Nampula and Niassa, the main ethnic groups are the Macaus, Nyanjas, Macondes and Kimwanes. Catholic and Muslim religions are predominant and the main social unit is the matrilineal extended family (11). Here, the maternal uncle, known as the mwene, is the head of the household and of the matrilineal family and he is in charge of the lineage lands. The woman, the sister or the niece, pyamwene, has no role other than to be a link with the ancestral lineage (4).

Polygamy is widely practised, especially among the large Muslim population (4).

Gender roles are perpetuated through initiation rites, which, according to tradition, represent the passage from adolescence to adulthood. Indeed, initiation rites for girls are regarded as the most valid form of education because they prepare young girls for their role as wives and mothers. As a result, young girls are forced into leaving school and early marriages (4). Early marriages remain frequent, especially in rural areas (14).

Despite the increase in the number of divorces, the customary role of a woman remains that of a wife and mother and single women remain marginalized from society (4).

In the central provinces – Tete, Sofala, Manica and Zambèzia – the ethnic groups are the Ndaus, Senas, Shonas, Chuabos and Lomuès and the family systems are prevalently matrilineal. The husband moves to his wife’s home, although he does not receive land rights; upon dissolution of the marriage, the wife retains custody of the children and ownership of the land. Women work mainly within the household and men are more involved in seasonal wage work and in taking surplus produce to the market. Consequently, men receive the cash proceeds and control expenditures (4). 

In the southern part of the country, the dominating ethnic groups include the Rongas, Changanas, Chopes and Bitongas within the provinces of Maputo, Gaza and Inhambane (11). In these regions, especially in the Inhambane province, a patrilineal system prevails, whereby a woman’s access to land depends on her husband and male relatives. When women do gain access to land, plots are smaller – usually no larger than 1 hectare. Moreover, women are confined to household chores and heavy workloads because many men have migrated to other areas for work (4).

Although the law does not provide for the traditional payment of a bride price, known as lobolo, it is openly accepted. This custom gives husbands full custody of their wives who have no say in the administration of assets and cannot claim their right to access land (7).

According to customary norms, sons protect women, especially widows and the elderly. Moreover, according to the levirate custom, widows can continue to have access to cash income and land benefits by marrying their brother-in-law (4).

Overall, gender relations and customary social practices, which define the sexual division of labour, limit women’s activities to small-scale farming and hamper women from gaining access to better economic opportunities. Women require the authorization of their husbands or other male relatives to engage in economic activity and their involvement in the informal market is deemed inappropriate (4).

Традиционные органы власти и общепринятые учреждения

Customary norms are enforced and administered by traditional courts presided over by local chiefs. Alongside these there are the so-called “community courts” presided over by local elected judges and which were established by the State to alleviate the state courts.

The community courts’ mission is to deal with small cases with the recourse to equity and common sense rules and with the objective of alleviating the state courts. Thus, while traditional courts apply the customary law and the state courts the statutory law, community courts apply equity and common sense rules (9). Their competence is officially recognised under Article 223(2) of the 2004 constitution.

Due to complex and often overlapping community structures, the question of who holds power at the local level remains unresolved. Depending on the local history and kinship systems, there are multiple traditional authorities, regulos, including heads of lineages and religious authorities, who are in charge of allocating land and reviving traditional ceremonies, such as initiation rites (13).

Traditional chiefs have legitimacy on religious and lineage grounds and act as mediators between a given ethnic group and its environment. Overall, the main function of the local chiefs is to establish peace and harmony within the rural communities and, more specifically, to resolve land conflicts and regulate access to land (19).

Наследование/правопреемство фактическая практика

Under patrilineal systems, men have direct inheritance rights to land and housing property while women do not. As a matter of fact, women’s access to land use and benefits is dependent upon kinship or marriage (9).

Although statutory law states that spouses are both fourth in line for inheritance of the other half of the family assets, in practice, upon dissolution of marriage women are in a weak position compared to men due to the gender based social inequality that prevails in all spheres of the social life. This includes the possibility of women losing the custody of the children (9).

In the southern part of the country, patrilineal customary practices bestow primary inheritance rights on men who have the right to demand additional land territories from the traditional authorities. Male relatives or husbands regulate women’s access to land. Upon divorce or separation, the woman is forced to leave the husband’s household and return to her natal family (20).

In the northern part of the country, although matrilineal family systems prevail, control over land rights is vested in the maternal male relatives (20). When the husband dies, the wife can be obliged to reside with her husband’s nuclear family with her children and the right to property or inheritance is bestowed on the first-born son. The widow is only entitled to inherit the hut and other domestic utensils (11).

Расхождения между статутным и обычным правом и пробелы в законодательстве

Even though Article 30 of the Family Law bans marriage before the age of 18, early marriages occur frequently, especially in rural areas. Young girls are often taken out of school prematurely in order to be married (14).

Although Article 16(2) of the Family Law formally states that marriage is monogamous, polygamous marriages are widely practised (14). 

Although the Land Law of 1997 guarantees men and women equal rights to land use and benefits, under customary practices male relatives or husbands regulate women’s access to land (11). More specifically, article 12 states that the right of use and enjoyment of land is acquired through occupation by individuals and local communities according to the relevant existing norms and practices, provided they do not come into contradiction with the constitution. Nevertheless, the fact that the article does not specifically enter into the detail of such norms,   hampers the accurate consideration of those discriminatory customary practices which are often contrary to both customary and statutory law, which proclaim the equality of women and men’s access to and use of land (9). 

Even though the Constitution prohibits discrimination on the grounds of sex, the labour market for women in the formal labour sector remains small and, as a result, working women are marginalized. Women are confined to household chores and primary education in order to fulfil their roles as wives and mothers; there are strong limitations to their access to education (11). 

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