IN July 2004, at their meeting in Addis Ababa, Ethiopia, heads of the member States of the African Union made a declaration to promote the implementation of legislation that strengthens women’s land, property and inheritance rights, including their right to housing.
Guest Columist HLONIPHILE SIMELANE
Since then, however, little progress has been made in either reviewing outdated legislation or implementing the scant progressive legislation meant to strengthen these rights. Of great concern for a majority of women on this continent is their continued struggle to own land — a natural resource meant to be enjoyed by all.
A research working paper produced in 2018 by World Bank senior economist Isis Giddas and others reveal that less than 13% of African women between the ages of 20 and 49 have sole ownership of land compared to 36% of African men. In fact, in some African countries, fewer than 10% of women have the privilege. This points to skewed land distribution, which fails to seriously consider the critical role of ownership and its contribution to food security.
Although many African countries take pride in improving access to land by women, this does not translate to ownership. Access to land fails to provide the same benefits as those which can accrue from owning. Ownership extends beyond user and control rights, to include “sale or other forms of disposal, backed by formal legal institutions”.
Underlying the lag of female ownership — as pointed out by many researchers — is the patriarchy enshrined in both statutory and customary laws. On the one hand, protection of the few rights that women have under the customary tenure system have been compromised not only by colonialism but also by socio-economic transformation.
This assertion appreciates that the customary tenure-system only accords user rights and not ownership. On the other hand, the scant quasi-progressive laws and policies supporting land ownership by women are not translated into practice. Worse is the fact that statutory laws in many countries rarely include provisions to allow women to own land independent of men.
Gender-neutral laws and policies don’t help
Many African countries have adopted gender-neutral laws, policies and practices, which are ill-equipped to strengthen land ownership by women. In East Africa, the Kenya Land Alliance, an organisation advocating for land laws and policies to promote equitable access to land and natural resources conducted an audit which revealed that between 2013 and 2017 the government distributed 163 253 hectares to women, representing a meagre 1,62%, whereas men got 9 903 304ha, representing 97,76%. This anomaly is further elucidated by a Human Rights Watch report, aptly titled When you get out, you lose everything. They found that Kenya’s Matrimonial Property Act of 2013, which grants the same opportunities to men and women, is characterised by ambiguities, undermining the implementation stages and it leaves widows and divorced women disadvantaged.
In the West African region, researchers note that the Cameroon bureaucratic land registration procedures benefited men such that out of 11 796 land certificates issued between January 1980 and June 2010 in Anglophone Cameroon, 86,6% were granted to men and only 1 128 (9,6%) were issued to women.
In the Southern African region, Faustin Kalabamu notes that land and housing in Botswana are distributed on a “first-come-first-served” basis; a practice that neglects the inbuilt historical exclusion of women.
The Eswatini High Court ruling of 2019 dismissed the common law of marital power enshrined in the Registration Act of 1968 and Marriage Act no 47 of 1964 as a violation of the constitutional rights of women. This judgment exposes the bias of the legislation towards men.
South Africa is no exception. The 2019 report by the Presidential Advisory Panel on Land Reform and Agriculture notes that patriarchy continues to underpin discrimination of women and manifests in the failure to enact laws promoting control and land ownership by women.
Unsurprisingly, the Upgrading of Land Tenure Rights Act 112 of 1991 has been criticised for discriminating against women; and a new Bill is currently under consideration. However, the new Bill (2019) also falls into the trap of being gender-neutral.
For instance, section 2 reads: “Provide for equality in the conversion of tenure rights into ownership”. This clause does not necessarily make women a priority.
The failure to prioritise gender-sensitive policies is a common pattern in many Sub-Saharan African countries.
The benefits of women owning land
Land is not only an important resource in farming, but also a significant component of business assets and plays a significant role in business investment strategies. The capitalist system, as depicted by land markets, places much value on land ownership and not on access.
A woman who owns land can use it as collateral for loans to create other income-generation projects. Furthermore, research demonstrates that women who own land are likely to cultivate it and effectively contribute to the nutrition and education of their families.
In addition, secure rights to land are a basis for shelter, for access to services, as well as civic and political participation, asserts Lorenzo Cotula of the International Institute for Environment and Development.
It is also observed that women who own land are less likely to become economically vulnerable in the event of the death of, separation, or divorce from her spouse. Not to mention that, according to the Organisation for Economic Co-operation and Development, “women’s land rights reduce domestic violence” because women become more capable of exiting abusive relationships.
Regrettably, the subordination of women in landholding negates all these benefits and the pronouncements made by member States to strengthen the rights of women. Instead, laws, capitalism and a long history of certain practices buttress the systemic function of patriarchy in many countries. Consequently, a 2018 study on poverty and shared prosperity in selected countries reveals that poverty is higher among women than men.
Unjustifiable is the failure of some African countries to review certain legislation related to marriage, deeds registration and succession such as the Eswatini Marriage Act of 1964 and the Succession Act of 1906 in Uganda, which marginalise women; with the former considering them perpetual minors.
Why should adult women be considered minors? This notion should be discarded immediately and considered taboo. Certainly, a reversal of the current legislation skewed towards the dominance of land ownership by men is long overdue and governments need to treat the issue with a sense of urgency.
Below are recommendations directed to African governments and the AU which has the authority to influence the agendas of African countries:
lMake land ownership a national priority and appoint a land audit committee to catalyse land ownership by women;
lReview legislation pertaining to marriage, deeds and inheritance, which sustain deprivation of women;
lReview the policies and institutions, which are obstacles to women’s right to own land;
lCreate or improve accountability mechanisms to ensure the implementation of gender-sensitive policies and legislation;
lConscientiously execute a periodic review of progress regarding implementation and strengthening of the gender-sensitive legislation and policies;
lFacilitate land and housing programmes that will promote land ownership by women; and
lInvest adequate resources in educating women about their rights to land. This is imperative given that women are often deprived of access to information.