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Human rights, formalisation and women's land rights in southern and eastern Africa

Studies in Women’s Law No. 57

Ingunn Ikdahl, Anne Hellum, Randi Kaarhus, Tor A. Benjaminsen, Patricia Kameri-Mbote

Institute of Women’s Law, University of Oslo

June 2005

SARPN acknowledges the ELDIS webiste as the source of this document - www.eldis.org
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Introduction

Land is a vital resource for rural livelihoods. Rural livelihoods are a key concern today as post-colonial countries in southern and eastern Africa propose changes in their natural resource policies and practices, including the regulation of land rights. These changes have been prompted by international, as well as national and local initiatives. Among the aims and values of these policies and reform initiatives are to:

  • promote fairer and more equitable distribution of natural resources in order to facilitate civil order, peace and economic growth
  • redress the history of racial, ethnic, social and gendered inequality in ownership and access to land
  • promote more productive uses of land through instituting and clarifying rights to land through formalisation
  • decentralise government functions to lower levels.
This report looks at some of these international and national land reform initiatives from a gendered human rights perspective. In the last few years, there has been a growing interest in how to integrate human rights in development policies and programmes. An overall concern is to ensure that all persons benefit on an equal basis from development policies, plans and programmes. Independent and effective land rights for women have been identified by researchers and policy makers as vitally important for family welfare, food security, gender equality, empowerment, economic efficiency and poverty alleviation (Agarwal 1994, 2002). Unequal ownership and control of land is a critical factor which creates and maintains differences between women and men in relation to economic well-being, social status and empowerment. In Kenya for example, less than 5 % of the holders of land titles are women (Kameri-Mbote & Mubuu 2002). In spite of their legally disadvantaged position, African women produce 60–80% of the continent’s food (FAO). The World Bank policy research report Land policies for growth and poverty reduction points to evidence that increased control by women over land and other assets could have ‘a strong and immediate effect on the welfare of the next generation and on the level and pace at which human and physical capital are accumulated’ (WB 2003:38).

How the human rights-based approach to development (HRBA) overlaps, conflicts, supplements and modifies the market based approach to both land and water is demonstrated in this report. Stressing the cross-cutting nature of human rights, the United Nations Development Programme (UNDP) has integrated human rights in recent reformulations of international development policies. The Johannesburg Declaration of 2002, which followed up the UN Secretary General’s initiative on Water, Energy, Health, Agriculture and Biodiversity (WEHAB), is also adopting this approach1. These initiatives have been further followed up by the Office of the UN High Commissioner for Human Rights (OCHCR) in the ‘Draft Guidelines on a Human Rights Approach to Poverty Reduction’ (OHCHR 2002).

Establishing and clarifying land rights through formalisation has become a key issue in development policies which aim to promote more productive uses of land. The World Bank’s 2003 report on land policies is an important document in this context. The report reflects the emerging consensus among researchers and policy makers about the potential of a range of tenurial systems grouped under the notion ‘customary land tenure’ to meet the needs of local users (Whitehead & Tsikata 2003). A related approach is the formalisation approach presented by Hernando de Soto and the Institute for Liberty and Democracy (ILD) in Peru that sets out to formalise the property of the poor to promote economic growth. In this report we address the implications of the unitary household/ community model, assuming common interest and equal power relations, which underlies these formalisation approaches. Their potential to secure women’s land rights is discussed in the light of the human rights-based approach to development.

A contested issue in contemporary policy discourse on women’s land rights in sub-Saharan Africa is the capacity of customary systems of land tenure to secure women’s land rights through evolution, and whether state-law intervention is necessary (Lastarria-Cornhiel 1997; Odgaard 1999; Whitehead & Tsikata 2003; Kameri-Mbote and Mubuu 2004). In this report we point to strengths and weaknesses of both statutory and customary systems. Rather than seeing state-law and customary law as distinct and opposing systems, we explore how women’s access to land and tenure security is affected by the interaction of the two systems. An overall issue is how women, regardless of the form of tenure, may be protected against the indirect discrimination that often is a consequence of gender and context-insensitive land laws, policies and practices.

Current international and national laws and policies addressing ‘formalisation’ or ‘secure land rights’ are clearly related to the human rights based approach to development. The application of a HRBA has a direct bearing on international and national land reform policies, facilitating gender equality through the elimination of direct and indirect discrimination. The non-discrimination principle, embedded in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)2 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereafter referred to as ‘the African Protocol on the Rights of Women’,3 applies in both the public and the private sphere. It cuts across market, state and family land transactions. It places a duty on nation states and international development agencies to respect, protect and fulfil the right to resources that are necessary for livelihoods, such as food, water, housing, health and education. It sets standards that apply to land reform regardless of legal or tenurial form. Whether land reform is based on statutory or customary, individual or communal ownership, mechanisms that protect women against direct and indirect discrimination have to be put in place.

The human rights based approach is still in the making. Its implications for land reform have not yet been addressed from a livelihood or a gender perspective. The aim of the report is to make a contribution to the concretisation and operationalisation of the HRBA. Towards this end we set out a framework to examine women’s human rights, land reform and formalisation of land rights in Kenya, Tanzania, Mozambique, Zimbabwe and South Africa, all countries that have ratified CEDAW. The country studies look into the role of both economic and legal mechanisms at the international level, such as Poverty Reduction Strategy Papers (PRSPs)4 and human rights reporting systems. In the country studies we also examine efforts of national governments, law and policy makers, the judiciary and civil society to secure women’s land rights on an equal basis with men. Our observations of these interacting and intersecting international, national and local processes give rise to some reflections on the strengths and weaknesses of the HRBA in supporting and promoting women’s land rights in different social, economic and political contexts and settings.

The report is primarily a desk study. It is based on a review of human rights instruments, human rights literature, general recommendations of human rights committees, and national reports to international monitoring agencies. At the national level, PRSPs, constitutions, legislation, land tenure commissions, court cases, legal literature and social science research looking into land reform and gender justice in the countries of concern have been reviewed. The team has also carried out one-week fact-finding missions to Tanzania and Mozambique. The case studies from Kenya, South Africa and Zimbabwe are based on the experiences of the team members involved in teaching and research co-operation with institutions in these countries.

Chapter 2 of this report focuses on different approaches to formalisation in different historical periods to date, starting with a discussion of the concept itself. In Chapter 3 the human rights-based approach to development is described in relation to women’s land rights, while Chapter 4 is an analysis of the approach to land policy found in the 2003 World Bank report. The country studies presented in Chapters 5–9 explore to what extent international and national formalisation initiatives are consonant with international human rights standards. By way of conclusion, Chapter 10 addresses some cross-cutting issues concerning the approach’s efficacy and adequacy at the international, national and local levels.


Footnotes:
  1. ‘The Johannesburg Declaration on Sustainable Development’, adopted 4 September 2002 at the World Summit on Sustainable Development.
  2. ‘The UN Convention on the Elimination of All Forms of Discrimination against Women’, adopted 18 December 1979, entered into force 3 September 1981.
  3. ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’, adopted by the Assembly of the African Union 11 July 2003.
  4. A PRSP (Poverty Reduction Strategy Paper) is formally a tripartite agreement between the International Monetary Fund, the World Bank, and a government seeking debt relief under the Heavily Indebted Poor Countries (HIPC) initiative. It provides a forum for policy dialogue and international conditionality in all countries receiving concessional lending from these international funding institutions.


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