Human Rights, Formalization and Women’s Land Rights in Southern and Eastern Africa

Citation:

Ikdahl, Ingunn, Anne Hellum Randi Kaarhus, Tor A. Benjaminsen, and Patricia Kameri-Mbote. 2005. Human Rights, Formalization and Women’s Land Rights in Southern and Eastern Africa. 26. Aas, Norway: Noragric. 

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

Keywords: development, economics, law, women's land rights, women, International actors

Annotation:

  • Discusses both the human rights-based approach and market-based approach and their relevance to equal land rights,  reviews international actors and their influence on formalization and it gives an overview of land reforms in case study countries (Kenya, South Africa, Mozambique, Zimbabwe) and issues particular to each. The study’s focus on the Human Rights Based Approach means that it emphasizes clear and “legally enforceable rights” to land for individuals, an independent judiciary to guarantee women’s human rights (stresses “the efficacy of judicial activism as a means of implementing women’s human rights” (Ikdahl et al., xv)) and a market based approach to development.  Research from Tanzania, South Africa and Zimbabwe also demonstrates the capacity of customary law to change in response to changing social, economic and legal conditions. 
  • South Africa: Reviewed women’s land rights in Southern Africa from a human rights point of view focussing principally on the content of legislation and its implementation. Found that although there were some differences in the quality of legislation, the main problem was women’s lack of information on the property rights they legally enjoyed

​Quotes:

Kenya: Formalisation of land rights in Kenya, actualised within a very patriarchal setting, has: “resulted in the exclusion of women from ownership of land.[...] only 5-7% of registered rights-holders are women—“demonstrates how formal and informal customary laws related to land transactions in family, marriage and inheritance matters often have a spill-over effect on registration of land rights that is detrimental to women.”(Ikdahl et al., x)“The case of Kenya raises the important question of whether “formalising the informal” is the best way to provide for women’s rights to land. The subjugation of customary rights and their systematic replacement with modern norms on tenure has not resulted in the obliterating of those norms, suggesting that formalising informality is not an easy task in a social context where informal norms are sometimes perceived to be more binding than formal ones.” (xiii)

 
“The case of Kenya raises the important question of whether “formalising the informal” is the best way to provide for women’s rights to land. The subjugation of customary rights and their systematic replacement with modern norms on tenure has not resulted in the obliterating of those norms, suggesting that formalising informality is not an easy task in a social context where informal norms are sometimes perceived to be more binding than formal ones.” (xiii)
 
Tanzania: “One of the aims of the land reform was to facilitate a market for land rights and the use of land as collateral. This idea is supported by the World Bank, international donors and Hernando de Soto’s Institute for Liberty and Democracy. In this picture women’s land rights seem to be sidelined.” (2)
 
Mozambique: “The current legislation is a type of hybrid, through its recognition of both customary and statutory rights. Still, there is a lack of knowledge on how the present multiple and hybrid laws and practices actually impact on women’s rights to and access to land. The current focus on facilitating market mechanisms in the field of land rights does not adequately take into account concerns and questions related to ways women actually access land, for example, through inheritance.” (58)
 
Zimbabwe: “Land distribution, access to land and secure tenure have been issues since Zimbabwe became independent in 1980…” (xii)
 
“Although secure tenure does not rely solely on the law – the institutional and the infrastructural set-up are also critical – appropriate laws are a basic condition for an entitlement-based land regime. Most importantly, the Zimbabwean case shows that access to land, unless combined with political will to provide infrastructure, is not in itself a sufficient condition to improve the position of poor women.” (xiii)
 
“Lack of measures that counterbalance male dominance results in poor access to information among women, thus constraining their participation and the exercise of their rights in land programmes carried out by both state and civil society.” (xv)
 
“Instead of field cultivation, many women are intensively cultivating gardens close to where they live where the risks of loss are less. Gender equality in land reform calls for policies that are responsive to poor women’s agricultural activities”(68)

Topics: Economies, Gender, Women, Gendered Power Relations, Patriarchy, Gender Equality/Inequality, Land Tenure, Households, International Organizations, Rights, Human Rights, Land Rights, Women's Rights Regions: Africa, East Africa, Southern Africa Countries: Kenya, Mozambique, South Africa, Tanzania, Zimbabwe

Year: 2005

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