Land rights in Africa: Revisiting customary institutions

by Zenebeworke Tadesse

Ever since the first attempt to record customary land law during the colonial period, a tension has persisted in Africa between the desire to codify this law in a simple and readily identifiable set of rules, and the ever-evolving practice of this law, which is based on hotly contested traditions.

Locally derived meanings attached to land and resources are perhaps best understood in terms of a set of rights, and no generalized land codification is likely to reflect the complexity and fluidity of this understanding. What is clear is that customary land laws are not always readily identifiable or consensually determined. What becomes law reflects the relative economic and political power of competing interest groups and individuals.

In most African countries, women have few and precarious land rights, if they have them at all. Where land rights specific to women do exist, even this limited entitlement is being eroded by a convergence of external and internal events. Unrelenting economic crises, wars and the HIV/AIDS pandemic, confusingly intertwined with population growth and land scarcity, form the context for attempts to create a market-based economy that will stimulate a market in land. The democratization process has itself contributed to intensified conflicts over land but has also broadened the space for public participation in policy debates. Each of these processes has had a profound impact on gender relations.

Replacement or adaptation?

Many World Bank studies on African agriculture tend to diagnose that the major constraints on increased productivity arise from the defects of customary tenure. The remedy they prescribe generally involves a move towards individual tenure systems based on statutory law. An alternative approach to tenure reform is that known as the policy of adaptation, which redirects attention to more incremental approaches to changes in indigenous tenure systems. An adaptation paradigm requires a supportive legal and administrative environment for the evolutionary change in indigenous law, which implies clear recognition of the legal applicability and enforceability of indigenous land tenure rules.

In Tanzania, the policy of replacement often had unforeseen side-effects, such as dispossessing women of their customary rights to land, and it is far from clear how the adaptation paradigm would address this issue of land for women or what form of dispute settlement mechanism it would propose establishing.

Tanzania's National Land Policy (NLP) exemplifies a typical ambivalence concerning women's rights in newly emerging tenure reforms. The NLP states that women will be entitled to acquire land in their own right, not only through purchase but also through allocation. However, inheritance of clan family land will continue to be governed by custom and tradition, and ownership of land between husband and wife shall not be the subject of legislation.

In addition to provisions in old and new tenure reform that continue to discriminate against women, a second, related, gender bias emanates from institutions set up to adjudicate land disputes. In Tanzania, the dispute settlement mechanism is known as Mbaraza ya wazee ya ardhi. It is structured so that councils of village elders have primary jurisdiction in all land matters, including settling disputes over individualization of tenure. They determine their own procedures, subject to the obligation to follow the principles of natural justice. They are not bound by any civil or criminal procedure codes or the law of evidence, and they do not hear appeals put forward by lawyers.

Since 1986, Ugandan women have made considerable gains on a number of fronts. First among them is the 1995 Constitution, which grants women legal equality and protection in political, economic, social and cultural spheres. Significantly, through the concerted efforts of the Women's Caucus in the Constituent Assembly, it also contains a clause prohibiting "laws, culture, customs or traditions that violate the dignity, welfare or interest of women." In parallel moves, women have been placed in key cabinet positions, including the vice presidency, and have secured 30% of the seats in local government.

Furthermore the new constitution supersedes customary law. In other words, customs that undermine the guarantee of equality should in principle be considered unconstitutional. But as there have been no statutory reforms, the constitutional provisions have had little effect on the courts. The controversy sparked by the 1998 Land Act exemplifies the inadequacy of such constitutional provisions alone, illustrating why clauses designed to ensure equality in the spate of new constitutions promulgated throughout Africa during the 1990s have not been effective.

Obstacles to women's land rights

In post-apartheid South Africa, the central thrust of land policy is the land reform programme, as set out in the 1997 White Paper on South African Land Policy. The White Paper specifies the removal of all legal restrictions on participation by women in land reform, including reform of marriage, inheritance and customary law where they constitute an obstacle to women receiving rights to land, and mechanisms to provide security of tenure to women, including the possibility of registering assets gained through land reform in the name of the household or its individual members.

Implementation of those provisions has been constrained in a number of ways. One is that guidelines – to identify beneficiaries and ensure gender equity – do not exist. And a more intractable problem is the persistence of customary practices such as those that prevent women from owning land, those that prevent widows from inheriting land and those that prevent women from speaking in public. As a result, women are perceived as a kind of appendage to male heads of household.

In order to be supportive of women's struggles for equality, new land legislation in Africa has to include explicit and mandatory mechanisms of inclusion. For the foreseeable future, the only measures likely to be adopted in some African countries are joint titling of land and, as in Ethiopia, the right of women to own land independent of their marital status. Even these limited measures, to have real meaning, require reforms in inheritance and marriage laws to be legislated for and implemented.

A wide array of gender-equitable legislation was passed, in numerous African countries, during the 1990s. However, most of it has remained trapped on paper, either because it is controversial or – more seriously – the costs of implementing it have not been included in public expenditure forecasts. The benefit that women will get from such reforms also depends on the gender awareness of those in charge of administering land, and of those in charge of making agricultural policies and services (such as technical assistance, credit and cooperative societies) more gender-equitable. The key to ushering in sustainable transformations and making gender relations in Africa more equitable is action that strengthens women's bargaining position within the household and ensures women's fall back position in case of family breakdown.