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AFRICA: Customary Law Bars Women’s Access to Land

Susan Anyangu-Amu and Joshua Kyalimpa

NAIROBI and KAMPALA, Sep 30 2010 (IPS) - Regina Namukasa has been twice dispossessed – first when her husband died and his clan left her out when dividing up his estate, and again when she was denied a share in her father’s land. But this time she’s fighting back.

When Namukasa’s husband died fifteen years ago, she did not struggle with his relatives for a share of his estate; she moved back to her own family’s home in central Uganda’s Luwero district with her three children to start a new life.

But when her father died, his sisters decided only her younger brother was entitled to a share in the land, and asked her to leave.

Uganda’s constitution grants women equality and legal protection against discriminatory traditional practice, but there have been no reforms to the law and the constitutional provision has had little impact.

Across sub-Saharan Africa, customary law is hindering efforts to reform land tenure and increase women’s access to and ownership of land.

Flawed reform

Dzodzi Tsikata, a senior research fellow at the University of Ghana, says that land tenure reforms across Africa have had few positive results due to the fact that customary laws have been reaffirmed.

"Most of these customary laws have discriminatory provisions against women, which have not been addressed. Despite the existence of these policies guaranteeing women land rights, there are no tangible results where one can attest to actual numbers of women owning land increasing," she says.

She cites the example of Customary Land Secretariats (CLS) in Ghana, which formally recognised a role for traditional authorities in administering land. She criticises the CLS programme as an accommodation with chiefs, despite growing evidence from across Africa that rather than promoting equitable access, chiefs are most likely to strengthen their control of land at the expense of other land users.

Traditional authorities – almost exclusively male – have successfully placed themselves at the centre of reformed land tenure systems developed by government officials and donors, including the World Bank, yet chiefs can not be assumed to be managing land on behalf of a community.

"Customary land management under the CLS has potential to deepen the discrimination against women both as members of the land holding group and as potential buyers of land," Tsikata said.

Despite the fact that women form the majority of subsistence farmers in Africa, and play a critical role in food security, they typically have limited control over land.

“Far fewer women own land than men,” says Fatou Diop Sall, “and often have access to land only through male family members, marking them as dependent mothers, wives or daughters. In cases where couples divorce, or a man dies, women often run the risk of losing their entitlement to land.”

Sall is the coordinator of a research project on gender and society at the University of Gaston Berger in Senegal.

Sall says Senegalese law stipulates that men and women have equal access to land. But just as in Uganda, the reality on the ground is markedly different. Women’s representation on village land councils, for example, is limited; when it comes to inheritance, women are also often excluded.

“Despite what the law says, women are blocked from land control by cultural and economic factors. Most women do not have the financial might required to purchase a piece of land. When families are sharing out pieces of land, women are not allocated portions,” Sall says.

Namukasa’s grandfather originally gave the piece of land in question to her father, and her aunts ruled it belongs to the clan; having been married, they say, Namukasa must look to her deceased husband’s family.

“It’s because of culture which dictates that girls are worthless and should get their share where they get married,” Namukasa told IPS.

She has turned to the courts to defend her rights. “I approached the resident district commissioner for Nakawa, Fred Bamwine, who helped me by taking [the case] to court.”

Namukasa is a defiant exception to the rule in Uganda and elsewhere.

Magadelena Ngaiza, a senior lecturer at the University of Dar es Salaam, says ignorance of their rights is still blocking women from land ownership.

In her native Tanzania, legal provisions to address land rights inequalities between men and women have not yet had the desired effect.

“The majority of women are not aware of what the law states with regard to land ownership. They are not informed that they have such rights and must demand for them. Most do not even consider themselves landowners and actually are surprised by such a suggestion,” she says.

She says attempts at improving women’s access to land must begin with massive awareness creation, educating women on existing land laws and policies.

Women must also be empowered economically to ensure they can access land and not just be tied to be small scale farmers.

“Any discussion towards improving women’s land rights must go beyond empowering them at a small scale. We must visualise a situation where they become large scale producers and this requires them to own large tracts of land. Financial might is what will make a difference here,” Sall says.

Back in Luwero district, Namukasa is sad that her own relatives have turned against her. “Imagine: it’s women mistreating a fellow woman. My father must be turning in his grave.”

“This government should help us women becasue they say that they are helping us but why should they look on when women are mistreated?”

Namukasa’s case is being heard in Nabweru court, and she is convinced she will get justice.

“I will not rest until I get my share, in fact even your very own brother can deny you a share because a girl should not not inherit property this is unfair,” she says.

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