protecting women’s land rights through land reforms prof. patricia kameri-mbote “building...

Protecting Women’s Land Rights Through Land

ReformsProf. Patricia Kameri-Mbote

“Building Consensus on Community Engagement within Land Reforms and the Extractive Sectors in Kenya”

Tuvuke

Panafric Hotel, 12th March 2015

University of Nairobi ISO 9001:2008 1 Certified http://www.uonbi.ac.ke

IntroductionWhy LandAccess , Control & OwnershipCoK & NLPImportance of Law & PolicyEngendering Land ReformsConclusion

Key Points


Imbalance between economic contribution of women and land ownership rights in Kenya

Centrality of land & consequences for exclusion especially with EI entry

Gendered notions of ownership A factor of social, legal, political, economic factors

Effective Policy & Law : Law in context; Living Law

Land rights as complex web of relationships – gender is one

Gender identified as a land poliy chalenge in Africa

Introduction


Land hosts many resources – renewable and non-renewable No land rights no resource rights

Terms and conditions under which rights to land acquired, retained, used, disposed, transmitted a site of major contest

Land reform seeks to alter laws, regulations and customs regarding land ownership

Gender as social construct Gender roles and realms of operation –

homestead, clan, ethnic, group, nation Division of labour Femininity & Masculinity Translation into powerful/powerless

Introduction- 2


Patriarchal norms exacerbate situation In most cases, women’s access to land is

through vicarious ownership/control by men related to them Husbands, Fathers, Uncles, Brothers, Sons

Few women own and/or control land Limits of law in mediating between

contesting claims Broader national context

Crisis of property institution – no clarity of who holds enforceable rights

Might is right – how will the weak such as women fare in a ‘rule of the jungle’ context Patriarchy

Introduction- 3


Land as praxis for enjoyment of other rights – water and sanitation; housing; food; political participation; voice etc

Exclusion from land leads to other exclusions Land not just physical space - it has multiple

functions which need to be factored into law & policy protecting women’s rights: 1. Economic functions

Productive activities (farming, livestock rearing, eco-business)

Extractive Industry Land sales and rentals Benefits from land appreciation Investment incentive effects

Why Land


2. Food security Source of food and income Buffer against sudden price increases 3. Reduced vulnerability/shock mitigation Source of food and employment Collateral for credit Income from land sales and rentals

4. Social functions Social standing/bargaining position within household,

community, and nation Membership in groups Cultural identity Religious functions

5. Conservation Authority to make decisions, investments Incentives for sustainable management

Why Land - 2


Access to property in many cultural settings predicated on Membership to a given society – Women??? Function relating to the property –

Devaluation of women’s functions Performance of reciprocal obligations owed to

others in society Control entails the power to distribute

& redistribute access rights to members Ownership constitutes the overall right

to land

Interventions: Access, Control & Ownership

University of Nairobi IS O 9001:2008 8 Certified http://www.uonbi.ac.ke

Access may be limited by the owner/controller & this affects women

A,C & O influenced by diverse factors Gender;Marital status ‘Citizenship’ – national, local, ethnic

Control of land essential validation of social & political autonomy Land as identity Way of women moving to productive realm Vs

reproduction Reproductive role of women basis for their

subordination

Different Normative & Institutional Regimes influencing O/ship, Control & Access

Interventions: Access, Control & Ownership -2


International Geopolitical/political economic terrain implications

International institutions MFIs; WTO; Bilateral donors

Regional – Maputo Protocol on women’s rights National

Diverse juristic norms: Statute, Religion; Custom; Intersections; Interactions with international & regional

Local norms; Domestic/household Political, Social & Economic systems

allocation of resources Different instruments used by polities at

different levels Power; gender; generation factors influence

representation and input in decision-making process

Interventions: Access, Control & Ownership -3


Gender anchorage in Constitution National values and principles of governance

include equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized

Bill of Rights Chapter 4 including civil & political rights and socio-economic rights

CoK 2010 (Article 27) Men & women have right to equal treatment &

opportunities - politics, economic, cultural & social Grounds for non-discrimination much broader

Pregnancy, marital status, health status, disability and dress

Vertical & horizontal proscription of discrimination

Constitution


Constitutional provision for principle of affirmative action to redress past patterns of discrimination

Article 2 on the supremacy of the constitution ‘Any law, including customary law, ...inconsistent

with this Constitution is void to the extent of the inconsistency...’

Chapter 5- land to be held, used & managed in an equitable, efficient, productive and sustainable manner that is and in accordance with LPPs Equitable access to land Security of land rights

Constitution - 2


Elimination of gender discrimination in law, customs and practices related to land and property in land

Encouragement of communities to settle land disputes through recognised local community initiatives

Public, private, community land Article 68 (c) (iii) - enactment of laws

recognizing and protecting the matrimonial property especially the matrimonial home. Response to women’s pleas that their interest in

the matrimonial home be secured from abuse by spouses who may be the title holders.

Constitution -3


Article 68 (c) (vi) - protection of dependants in actual occupation of land in the event of the death of the owner of land. Protects widows & children with un-registered interests in

land from eviction from their homes e.g. where the deceased succumbs to HIV and AIDS related ailments

The principle of at least a third representation of women in elective and appointive bodies Women’s representation in land administration bodies

from the National Land Commission to the county and lower levels of land administration.

Constitution -4


NLP also has provisions that promote women’s rights to land and resources Equitable access to land and the protection of rights of women,

minorities & children in matters of access to and ownership of land

Recognition, protection and registration of community rights to land and land based resources taking into account multiple interests of all land users, including women

Ensuring that the rights of women in pastoral areas are recognized and protected

Putting in place appropriate legislation to ensure effective protection of women’s rights to land and related resources

National Land Policy


Repealing existing laws and outlawing regulations, customs and practices that discriminate against women in relation to land

Enforcing existing laws & establishing a clear framework to protect inheritance rights of women

Making provision for joint spousal registration & documentation & joint spousal consent to disposal

Securing inheritance rights of unmarried daughters

Facilitating public awareness campaigns on the need to write wills

Carrying out public education campaigns for abandonment of cultural practices barring women from inheriting family land

National Land Policy -2


Ensuring proportionate representation of women in institutions dealing with land at all levels

Review of succession, matrimonial property and other related laws to ensure gender equity

Protection of the rights of widows, widowers and divorcees through enactment of law on co-ownership of matrimonial property

Appropriate legal measures to ensure that men and women are entitled to equal rights to land and land-based resources during marriage, upon dissolution of marriage and after the death of the

Mechanisms to curb selling and mortgaging of family land without the involvement of the spouses

National Land Policy -3


Law can empower or disempower Provide robust mechanisms for assaulting

inequality Reinforce social injustices

1. Legal Rules: De jure equality, De facto discrimination 2. Patriarchal social ordering 3. Intention and rationale of law Vs consequences of law

Our Constitution & NLP are empowering Law however affects men and women

differently Need to eliminate legal barriers beyond

provisions

Importance of Law & Policy


Remove injustice behind façade of rights & privileges guaranteed to all Discrimination in enforcement

Unfair decisions of court & administrative authorities

Social & econ barriers to fulfilment of rights and privileges

Different sexes living different lives & substance of rules rarely just for persons of a particular sex Interplay between life and law Equality & equality of treatment

Law can lag behind society’s view of what law ought to be Reality, opinion

Law can be captured by interest groups such as status quo beneficiaries

Importance of Law & Policy - 2


Goes beyond policy & legal prescriptions Need to get into implementation Law allows women to own land but many

women do not own land Most land titles are held by men

Many women have access to land but that access is not well anchored in law Based on relationship with owner/controller

Most labour on farms is provided by women but this does not guarantee their access/interests when relationship with male benefactor ceases Dissolution of marriage Death

Engendering Land Reforms


Women’s access to land needs to be secured quite apart from ownership & control

Laws that seek to deal with gender discriminatory practices do not go far enough New wine in old wineskins

Laws implementing Constitution have not allowed for continuum of rights which would accommodate access rights Spousal consent requirement not useful without

addressing invisible power dynamics in the household

Matrimonial property protection with requirement to establish contribution

Engendering Land Reforms -2


Idea of women’s land rights not yet firmly anchored in minds despite women’s contribution to land productivity and in other spheres.

Not a one off activity – it is for the long haul and takes all of us Very easy to lose gender equal provisions

in the constitution

Need to lobby and advocate as well as identify critical allies

Engendering Land Reforms -3


Land reforms have the potential to protect and guarantee women’s rights through: 1. Confronting culture through policy charting a

path to deal with gendered aspects of culture that overpower even well-meaning laws This calls for interrogation of culture

2. Through law – Promulgation and Implementation

Education on substance of rights and procedure for enforcement to enable access to rights availed

Legal aid – test cases to illustrate how law might be applied innovatively

Lobbying for non-gendered application of law 3. Changing dominant discourse over land control

and ownership Policy & Law have sought to ‘give women what men have’

Interrogate this position

The Promise of Law & Policy


Stop backing the wrong horse in light of finite land resources and struggle over resources & need for sustainable use of land

Shift focus from ownership/control to access based on need and capacity to use & actual use

Reconsider land ownership and/or control by any one person/group and consider subjecting land rights to greater public good resident in trusteeship over land for posterity (identify trustee and duties)

4. Innovation & pro-activity Devise land rights system based on use Align land rights to responsibilities Link land rights to resource rights

Forests, wildlife, genetic resources Tax idle land to discourage absentee landholders Link land rights to rights to knowledge associated with

the land and resources Use images: Life stories of propertied women to debunk

myth that women do not/cannot be loci for land rights holding

The Promise of Law & Policy - 2


5. Social engineering Educate society on benefits of gender equality

and equity in land holding Diffuse tensions among genders related to land

Women’s right to land one contested issue in draft constitution

6. Examine and promote the role of women’s groups in guaranteeing women rights to land Acceptability of role of women’s groups in

community can be used as pathway to popularising women’s rights over land

The Promise of Law & Policy - 3


The role of land reforms in promoting and protecting women’s rights to land widely accepted Many African countries flag this as an issue AU Land Policy Initiative has identified it as a critical

issue

Tractable issue is how to deliver the lofty policy and legal provisions in a context where acceptance of women’s rights to own land is contested

Law has limitations in engendering social transformation processes

Conclusion


People go to law; law does not go to people Law operates in a context which nuances its effects Judicial interpretation of law can limit/enhance

law’s effectiveness Need to capture and build on enhancements and discard

limitations Centrality of the law ensures legal sanctions

to dictates for equality in land rights delivery Need for extra legal interventions alongside law

To translate dictates into reality To transform societies’ views on women’s rights to land

Need to recognise and deal with diversity among women Too much emphasis on women in marriage

relationships

Conclusion - 2


protecting women’s land rights through land reforms prof. patricia kameri-mbote “building...

Documents

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