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Property Rights

Justice and Power in the Adjudication of Women’s Property Rights in Uganda

Citation:

Khadiagala, Lynn S. 2003. “Justice and Power in the Adjudication of Women’s Property Rights in Uganda.” Africa Today 49 (2): 101-121.

Author: Lynn S. Khadiagala

Abstract:

This article challenges the notion that women who derive their primary rights from land are unable to use the legal system to assert or protect their property rights. Drawing on fieldwork conducted in southern Uganda, I suggest that female legal consciousness and legal strategies cannot be sufficiently explained by a paradigm of male hegemony and female dependence. Instead, women in Kabale District construct land claims around an ethos of justice entailing a quid pro quo between rights and responsibilities. Drawing on the value of their agricultural labor to the household economy, reinforced by the labor intensity of farming in Kabale, women transform property disputes into claims to the basic elements of citizenship, including membership, participation, and universal norms of justice.

Keywords: women's land rights, legal system, gender

Topics: Citizenship, Gender, Women, Gendered Power Relations, Gender Equality/Inequality, Households, Justice, Rights, Land Rights, Property Rights, Women's Rights Regions: Africa, East Africa Countries: Uganda

Year: 2003

Gender Analysis of Land: Beyond Land Rights for Women?

Citation:

Jackson, Cecile. 2003. “Gender Analysis of Land: Beyond Land Rights for Women?.” Journal of Agrarian Change 3 (4): 453-480.

Author: Cecile Jackson

Abstract:

Gender analysts of development have worked on land and property relations in poor rural areas for over two decades and the JAC 2003 special issue carried a range of work reflecting some of these research trajectories. This article is both a response to Bina Agarwal's paper on 'Gender and Land Rights Revisited', in which she reiterates her advocacy of land rights, and also an argument for why we should temper her transformatory expectations, recognize the complexity of what she sees as 'social obstacles' to women claiming land, and not rush to policy closure on land rights in all circumstances, or to blanket prescriptions. It argues for a renewed emphasis on reflexive ethnographic research with a focus on gender as social relations, on subject positions and subjectivities, on the meshing of shared and separate interests within households and on power residing in discourse as well as material assets.

Keywords: gender, land, property, development

Topics: Gender, Women, Gendered Power Relations, Rights, Land Rights, Property Rights, Women's Rights

Year: 2003

The Impact of Privatization on Gender and Property Rights in Africa

Citation:

Lastarria-Cornhiel, Susana. 1997. “The Impact of Privatization on Gender and Property Rights in Africa.” World Development 25 (8): 1317-33.

Author: Susana Lastarria-Cornhiel

Abstract:

This paper explores the transformation of customary tenure systems and their impact on women's rights to land in Africa. Emphasis is placed on the diversity of land rights within customary tenure systems, the different institutions and structures (e.g., inheritance, marriage) that influence rights to land, and the trend toward uniformity and increasing patrilineal control. With privatization, different rights to land have become concentrated in the hands of those persons (such as community leaders, male household heads) who are able to successfully claim their ownership right to land, while other persons (such as poor rural women, ethnic minorities) lose the few rights they had and generally are not able to participate fully in the land market. 

Keywords: privatization, women's land rights, ownership to land, gender, customary law

Topics: Gender, Women, Gendered Power Relations, Patriarchy, Rights, Land Rights, Property Rights, Women's Rights Regions: Africa

Year: 1997

Widows Weeds: Gender, AIDS and the Agrarian Question in Southern Africa

Citation:

O’Laughlin, Bridget. 2007. “Widows Weeds: Gender, AIDS and the Agrarian Question in Southern Africa.” Paper presented at the annual conference of Institudo de Estudos Sociaise Económicos, Maputo, Mozambique, September 19.

Author: Bridget O’Laughlin

Annotation:

O’Laughlin argues that a gendered analysis of women’s land access needs to be done in a way that locates women’s land rights “within the debate around tenure reform.” She looks at surrounding issues, such as gendered patterns of migration that are: “reflected in the high incidence of women-headed-households in southern Africa” (O'Laughlin, 4) [...] and rural livelihoods that are heavily dependent on regular remittances. The article addresses the HIV/AIDS epidemic in the context of property rights and explores the liberal and Marxist approaches to poverty and inequality in southern Africa through summarizing the arguments of key land rights academics.

Quotes:

“The policy discourse on the impact of AIDS in Africa almost inevitable presents the AIDS widow-stripped of her possessions and chased from her land by rapacious in-laws while left to care for her children though ill herself- as an object of moral outrage. The minimum that can be done would seem to be to ensure that she can legally own land in her own name and inherit the property of her husband, to which her labour has contributed”(O’Laughlin, 1)

Liberal “script” for resolving rural poverty in Africa:

“land tenure reform has a central place..combination of state ownership of land and maintenance of communal access under customary tenure regimes in the labour reserves has both the free flow of labour and the allocation of land to the more efficient forms of production…recognizes that individual tenure and the commodification of rights of land have developed within customary tenure regimes in southern Africa. But it does assume that the overlapping property rights associated with such systems impedes security of tenure and thus reinforces poverty, inequality and economic stagnation.” (O'Laughlin, 6)

Statutory law makes much clearer provisions for gender equity in ownership and inheritance of property. The impact of AIDS crisis on women’s property rights:

“the crisis of AIDS has strengthened demands for women’s independent land rights on human rights grounds.” (O'Laughlin, 7)

Marxist analysis and agrarian question:

“whereas liberalism sees the crisis of rural southern Africa today to be rooted in the weakness of liberal institutions, particularly fragmented and imperfect markets, Marxist political economy emphasizes the transformations wrought over more than a century of commodification of land and labour…not the absence of markets but historical forms of inequality that have been integrated into global economy and political order…answer requires dealing with historical dynamic of three independent aspects: accumulation, class and politics…land ownership per se cannot explain poverty in southern Africa ” (O’Laughlin, 9)

“class differentiation crosses the rural-urban divide in ways that affect the ways we see disputes over women’s property rights…it is clear that in the familiar tale of the deprived AIDS widow, both the terms widow and in-laws need to be deconstructed by class.” (O’Laughlin, 9)

The particular position on women reflects their varying positions within this shifting class structure:

“the liberal rhetoric of donor-driven consensus—good governance, rule of law, human rights papered over the lines of class division and rural-urban difference that matter for the relation of different groups of women and men to land” (O’Laughlin, 12)

“The figure of the widow robbed of her land by her predatory in-laws is an ideological construct that embeds a standard neo-liberal proposition—the centrality of privatization and commodification of land—within the liberal language of human rights. It focuses our attention narrowly on gender inequality in inheritance of property, of which the rural poor have very little…titling excludes those who have not…a more exact metaphor for AIDS widow would be widow’s weeds” (O’Laughlin, 13)

“feminist theory has been particularly critical of both liberalism and Marxism for focussing their attention so narrowly on commodified work and public space and ignoring contradictory relations of gender that cut across the commodified/ non-commodified and public/ private devides” (O’Laughlin, 14)

"A consistent theme in all accounts of AIDS widow is “the importance that support from other women of the community in getting by and keeping agricultural production going in times of adversity.  In context of AIDS, pushing for legal enforcement of a strict conjungal model of inheritance of land, excluding the claims of descent group, could easily heighten vulnerability rather than secure women’s livelihoods.” (O’Laughlin, 18)

Returns yet again to metaphor of AIDS widow:

“without income and great endurance, it will be difficult for the AIDS widow even to have her land surveyed, to establish her legal rights relative to those of other claimants, to wend her way through the bureaucratic process of registry …the image of the widow saved by titling from expulsion from her land by greedy in-laws risks celebrating exclusion as autonomy” (O’Laughlin, 19)

“it is particularly misleading to use the AIDS widow as an emblem for the transformative power of private property. The epidemiology of AIDS in southern Africa reflects the patters of what made it a region—an economy and society based on labour migration within and across national boundaries” (O’Laughlin, 20) 

 

Topics: Gender, Women, Health, HIV/AIDS, Rights, Land Rights, Property Rights, Women's Rights Regions: Africa, Southern Africa

Year: 2007

The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights

Citation:

Khadiagala, Lynn. 2001.”The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights.” Development and Change 32: 55-76.

Author: Lynn Khadiagala

Abstract:

Advocates of alternative dispute resolution argue that informal, community-based institutions are better placed to provide inexpensive, expedient and culturally appropriate forms of justice. In 1988, the Ugandan government extended judicial capacity to local councils (LCs) on similar grounds. Drawing on attempts by women in southwestern Uganda to use the LCs to adjudicate property disputes, this article investigates why popular justice has failed to protect the customary property rights of women. The gap between theory and practice arises out of misconceptions of community. The tendency to ascribe a morality and autonomy to local spaces obscures the ability of elites to use informal institutions for purposes of social control. In the light of women's attempts to escape the 'rule of persons' and to seek out arbiters whom they associate with the 'rule of law', it can be argued that the utility of the state to ordinary Ugandans should be reconsidered.

Keywords: local councils, customary law, informal institutions, gender inequality, Property Rights, women's rights

Annotation:

  • The article finds that in the adjudication process, increasing emphasis is being placed on the social role of women, which has impacted the information considered relevant in land claims adjudication. Successful claims by women are often tied to community relations and the fulfillment of social obligations to husbands, kin and family members.

Topics: Gender, Women, Gender Roles, Gendered Power Relations, Gender Equality/Inequality, Justice, International Tribunals & Special Courts, Rights, Property Rights, Women's Rights Regions: Africa, East Africa Countries: Uganda

Year: 2001

On the Edge of the Law: Women’s Property Rights and Dispute Resolution in Kisii, Kenya

Citation:

Henrysson, Elin, and Sandra F. Joireman. 2010. “On the Edge of the Law: Women’s Property Rights and Dispute Resolution in Kisii, Kenya.” Law and Society Review 43 (1): 39-60.

Authors: Elin Henrysson, Sandra F. Joireman

Abstract:

Scholars have argued that economic efficiency requires a clear definition of the rights of ownership, contract, and transfer of land. Ambiguity in the definition or enforcement of any of these rights leads to an increase in transaction costs in the exchange and transfer of land as well as a residual uncertainty after any land contract. In Kenya, government efforts at establishing clearly defined property rights and adjudication mechanisms have been plagued by the existence of alternative processes for the adjudication of disputes. Customary dispute resolution has been praised as an inexpensive alternative to official judicial processes in a legally pluralistic environment. However, our research demonstrates that customary processes may also carry a monetary cost that puts them beyond the means of many citizens. This article compares the costs and processes of the formal and informal methods of property rights adjudication for women in the Kisii region of Kenya. The research results suggest that women have weak property rights overall, they have limited access to formal dispute resolution systems because of costs involved, and even the informal systems of conflict resolution are beyond the means of many citizens.

Keywords: Property Rights, gender inequality, rights of ownership, customary law, formal and informal dispute settlements

Topics: Conflict Prevention, Economies, Gender, Women, Gendered Power Relations, Gender Equality/Inequality, Rights, Land Rights, Property Rights, Women's Rights Regions: Africa, East Africa Countries: Kenya

Year: 2010

Human Security and Reconstruction Efforts in Rwanda: Impact on the Lives of Women

Citation:

Gervais, Myriam. 2004. “Human Security and Reconstruction Efforts in Rwanda: Impact on the Lives of Women.” Development in Practice 13 (5): 542-550.

Author: Myriam Gervais

Abstract:

This paper evaluates the pertinence of interventions sponsored by aid agencies that seek to meet the security needs of women in post-reconstruction Rwanda. Personal security, economic security, and socio-political security are used as the main methodological reference marks and indicators. The information and data used in the paper were gathered during several visits to Rwanda in 2001 and 2002. The study reveals that efforts have brought about positive impacts on the lives of women. However, findings also show that specific strategies aimed at increasing women's security would better benefit them if they were more consistently planned so as to take into consideration the ways in which issues of poverty, gender, and security intersect.

Keywords: women's land rights, women, economic security, socio-political security, reconstruction

Annotation:

  • The author examines a sample of initiatives and evaluates how pertinent the interventions sponsored by aid agencies that seek to meet the security needs of women have been. A look at the projects undertaken in Rwanda during the reconstruction period reveals that there were two types of initiatives aimed at supporting women's efforts to respond to the crisis caused by conflict and genocide: the formation of solidarity groups and production associations, and the establishment of advocacy groups and women's collectives. These associations have also taken on the task of providing legal and medical assistance services, forming groups to assist survivors, and providing business advice. The document describes how with the collaboration of local people, some non governmental organisations (NGOs) built houses in various parts of the country and tended to the most needy. By giving priority to the most vulnerable and by making this a condition for funding, NGO projects promoted the taking into account of women's needs in housing programmes. In many cases, women signed individual contracts recognised by communal authorities. The signing of a contract between a woman, the local authority, and the NGO brought about a major change: women and girls were recognised as owners of their homes. The document then considers other issues such as economic security and socio-political security.

Quotes:

“Promoting human security in post-conflict societies means taking specific actions that support a safe environment, social harmony, equal status, and equitable access to resources and to the decision-making process.” (542)

“Gender-based violence still remains high during reconstruction periods, proving that peace is not enough to ensure women’s security. In many cases, women are also confronted with radically changed realities: they have to assume new roles and new responsibilities at the family and community levels, and in so doing they are more susceptible to new forms of insecurity.” (543)

“Rwanda’s agriculture-based economy was completely destroyed by the war, forcing most of its population to live in a state of extreme precariousness. The food shortages caused by the destruction of crops and the severe reduction in cultivated land was aggravated by the inability of many households to obtain the labour they needed. In 1996, 34 per cent of families—with an average of six to seven young dependants— were headed by widows, unmarried women, and wives of prisoners suspected of genocide…64 per cent  of labour force in basic production is female.” (544)

“It is conventionally considered unacceptable for women to inherit from their families. Since girls who are heads of family enjoy no protection, they live in a climate of permanent insecurity and are vulnerable to attempts at intimidation and sexual assault, particularly at night.”(545)

“Following the genocide, one of the challenges for female heads of household was to secure a cultivable plot of land in order to ensure their family’s subsistence. One frequently observed way of doing this was to join an associative group.” (546)

Topics: Gender, Women, Girls, Gender-Based Violence, Gendered Power Relations, Gender Equality/Inequality, Gender Equity, Genocide, Households, Livelihoods, NGOs, Post-Conflict, Post-Conflict Reconstruction, Rights, Land Rights, Property Rights, Women's Rights, Security, Human Security Regions: Africa, Central Africa, East Africa Countries: Rwanda

Year: 2004

Policy Discourses on Women’s Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary

Citation:

Whitehead, Ann, and Dzondki Tsikata. 2003. “Policy Discourses on Women’s Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary.” Journal of Agrarian Change 3 (1-2): 67-112.

Authors: Ann Whitehead, Dzondki Tsikata

Keywords: customary law, land tenure reform, Women's land interests, legal pluralism

Annotation:

  • This article is unique in that it approaches legal pluralism and customary law from the perspective of women’s movements fighting for increased tenure security for women. The focus on women’s movements allows the authors to present divergent views of the utility of customary law and critiques of its ability to advance the interests of women.  
  • Authors argue customary ownership has been eroded since the time of colonialism, “making women's access to land significantly more precarious as the protections traditionally ensured by the clan system have been peeled away." (2) 
  • With increased commercialization of land and problems of land scarcity, local leaders have felt pressure to protect the clan system, and in so doing have placed even greater constraints on women's access to land. The article outlines the strategies women have used to respond to the growing interest in preserving customary laws, including land alliances and coalitions.
  • Discusses the amendments to the Ugandan Land Law in 2000 and how women’s movements were not successful in their push to include a co-ownership clause in the law. This clause was necessary because current legislation provides limited opportunities for women to own land, but was omitted at the last second: “Thus under customary law, which prevails in Uganda, a woman may have jointly acquired land with her husband and may have spent her entire adult life cultivating the land, but she cannot claim ownership of the property. If he dies, the land generally goes to the sons, but may also be left to daughters. Nevertheless, he may still leave the wife with no land and therefore no source of subsistence." (6)
  • Other strategies used: purchase of land, obtaining titles to land, taking claims to courts, and organized collective protest around legislation.

Quotes:

“Rather than seeing customary land practices as a basis on which to improve women’s access to land, they are advocating for rights-based systems that improve women’s ability to buy, own, sell, and obtain titles on land." (2)

“Because women's ties to land are mediated by their relationship to men in patrilineal societies, women's attempts to assert their rights in ways that challenge customary land tenure systems is often perceived as an attempt to disrupt gender relations, and society more generally." (2)

“Women, both rural and urban, have responded to the renewed interest in protecting customary laws and practices through collective strategies, which in Uganda have included a movement to ensure women's access to and ownership of land. Women have also adopted individual strategies of purchasing land and taking their land disputes to court. Purchasing land has, in effect, become a way of circumventing the traditional authorities." (2)

“Heightened protection of customary land tenure arrangements has taken place in a context where the customary and religious laws and practices that have been retained have selectively preserved those elements that subordinate women. These arrangements have included customary divorce and inheritance practices, keeping women as minors (e.g., Swaziland, Lesotho, Zimbabwe), bridewealth, widow inheritance (levirate), dehumanizing rituals pertaining to widows, early childhood marriage, polygamy, and female genital cutting." (3)

Topics: Civil Society, Clan, Coloniality/Post-Coloniality, Gender, Women, Gendered Power Relations, Patriarchy, Gender Equality/Inequality, Governance, Households, Political Economies, Rights, Land Rights, Property Rights, Women's Rights Regions: Africa

Year: 2003

Land, Dowry, Labour: Women in the Changing Economy of Midnapur

Citation:

Gupta, Jayoti. 1993. “Land, Dowry, Labour: Women in the Changing Economy of Midnapur.” Social Scientist 21 (9-11): 74-90.

Author: Jayoti Gupta

Keywords: dowry, gender, gender roles, womens rights, women's land rights

Annotation:

  • This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that context, it assesses the range of barriers and challenges that women face and offers some thinking to address and remedy these complex issues.  As countries face the transition process, they can begin to measure the conflict’s impact on the population and the civil infrastructure.  Not only have people been displaced from their homes, but, typically, health clinics, schools, roads, businesses, and markets have deteriorated substantially.  While the focus is on humanitarian aid in the midst of and during the immediate aftermath, the focus turns to development-based activities for the longer-term.
  • Development activities provide a significant opportunity to ensure that gender is central to the transitional process. Here we take gender centrality to be a first principle of response – namely planning, integrating and placing gender at the heart of the development response to conflict.  First, many of the post-conflict goals cannot be implemented when the population is starving, homeless, and mistrustful of government-sponsored services.  Women constitute the overwhelming proportion of refugees misplaced by war; not responding to their specific needs to return home dooms the reconstruction process.  Second, women are central to any socioeconomic recovery process.
  • This paper looks at the need to integrate development and post-conflict, and then turns to an analysis of why gender matters.  It then looks at the development as both a short and long-term process, using the model of “social services justice” to describe immediate needs as the country begins the peace stabilization process.  Social services justice serves as an “engendered” bridge between conflict and security, running the temporal spectrum from humanitarian relief through post conflict to longer-term development, any of which is inclusive of transitional justice.  The goal throughout is to respond to the immediate needs of the population post-conflict, ranging from livelihoods to health to education.

Topics: Development, Displacement & Migration, Refugees, Economies, Gender, Women, Gender Mainstreaming, Gendered Power Relations, Livelihoods, Peacebuilding, Post-Conflict, Post-Conflict Reconstruction, Rights, Land Rights, Property Rights, Women's Rights Regions: Asia, South Asia Countries: India

Year: 1993

Women, Land Struggles, and the Reconstruction of the Commons

Citation:

Federici, Silvia. 2011. “Women, Land Struggles, and the Reconstruction of the Commons.” The Journal of Labor and Society 14 (1): 41-56

Author: Silvia Federici

Abstract:

This article examines the question of communal land property in Africa and its implications for women's land rights. Among the themes discussed are: the reforms of communal land tenure attempted by the World Bank in the 1990s, the critique of communal land relations that feminist organizations have made on account of their patriarchal discrimination against women, and the simultaneous efforts by landless rural and urban women to appropriate unused plots of public land for subsistence farming. While warning that the feminist attack on communal land ownership may strengthen the neo-liberal drive towards the privatization of land, the article looks at women's reclamation of unused public land for subsistence farming as the path to the constitution of new commons.

Annotation:

  • The article looks at two kinds of struggle that women are making in Africa that have a direct impact on the future of communal lands. First is the women’s movement that has developed in the 1990s to fight for land rights and which has declared its opposition to customary tenure because of its patriarchalism and discrimination against women. Second, are the struggles of women in urban areas who, in contrast to the prevailing trend toward privatization, take over plots of public land to farm them for their families’ subsistence.

  • There is much that we can learn from them as to the interests that are today shaping people’s relation to communal resources and the role that gender issues play in this process. These struggles show that egalitarianism is for commons a question of survival, for unequal power relations within them open the way to outside intervention and expropriation. In particular, they show that gender-based disparities generate dynamics that consolidate the dominance of the market over agricultural relations for they weaken the solidarity between women and men in front of the siege to which the commons are subjected by state business, and international institutions and lead many women to demand a strengthening of the very legal machine upon which land privatization depends. This is a lesson social justice movements need to learn if commons are not to remain pure ideals but are to become an object of struggle. The same movements can learn from the example of the women who instead of turning to the law, opt for direct action, farming on public land, thus subverting the neoliberal attempt to put a monetary gate around all natural resources and reaffirming the principle the earth is our common.

Topics: Feminisms, Gender, Women, Gendered Power Relations, Patriarchy, Rights, Land Rights, Property Rights Regions: Africa

Year: 2011

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