Kenya's Matrimonial Property Act, which is discriminatory towards women and inconsistent with the country's constitution, means few married women own land. Less than five percent of all land title deeds in Kenya are held jointly by women and only one percent of land titles are held by women alone. Credit: Miriam Gathigah/IPS

By Miriam Gathigah
NAIROBI, Jun 1 2020 (IPS)

Ida Njeri was a civil servant with access to a Savings and Credit Cooperative Society (SACCO) through her employer, and her husband a private consultant in the information and communication sector, when she began taking low-interest loans from the cooperative so they could buy up land in Ruiru, Central Kenya. She’d willing done it. Part of their long-term plan together for having a family was that they would acquire land and eventually build their dream home. But little did Njeri realise that 12 years and three children later the law would stand against her right to owning the matrimonial property.

“As a private consultant, it was difficult for my husband to join a SACCO. People generally join SACCOs through their employer. This makes it easy to save and take loans because you need three people within your SACCO to guarantee the loan,” Njeri tells IPS.

“My husband had a savings bank account so we would combine my loans with his savings. By 2016, I had 45,000 dollars in loans. My husband would tell me the amount of money needed to purchase land and I would take out a loan,” she adds, explaining that her husband handled all the purchases.

By 2016 the couple had purchased 14 different pieces of land, each measuring an eighth of an acre. But last year, when the marriage fell apart, Njeri discovered that all their joint land was in her husband’s name.

“All along I just assumed that the land was in both our names. I never really thought about it because we were jointly building our family. Even worse, all land payment receipts and sale agreements are also in his name alone,” she says.

Worse still, there was little she can do about it within the current framework of the country’s laws.

Despite Article 45 (3) of the 2010 Constitution providing for equality during marriage and upon divorce, and despite the fact that  Njeri’s marriage was registered (effectively granting her a legal basis for land ownership under the Marriage Act 2014) there is another law in the country — the Matrimonial Property Act 2013 — which stands against her. 

More specifically, it is Section 7 of the act that states ownership of matrimonial property is dependent on the contributions of each spouse toward its acquisition.

• “Ownership of matrimonial property rests in the spouses according to the contribution of either spouses towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved,” Section 7 states.  

Because Njeri had no proof of jointly purchasing the land, upon her divorce she is not entitled to it.

Hers is not an isolated case of married women struggling to ensure their land rights.

In 2018, the Kenya Land Alliance (KLA), an advocacy network dedicated to the realisation of constitutional provisions of women’s land rights as a means to eradicate poverty and hunger, and promote gender equality, in line with Sustainable Development Goals (SDGs), released an audit of land ownership after the disaggregation and analysis of approximately one third of the 3.2 million title deeds issued by the government between 2013 and 2017 — the highest number of title deeds issued in any regime.

Odenda Lumumba is a land rights activist and founder of KLA, which is a local partner for Deliver For Good, a global campaign that applies a gender lens to the Sustainable Development Goals (SDGs) and powered by global advocacy organisation Women Deliver. She explains that the data on land ownership is a pointer to the reality that gender disparities remain a concern, especially because of the intricate relationship between land tenure systems, livelihoods and poverty.

“There is very little progress towards women owning land. There are so many obstacles for them to overcome,” Lumumba tells IPS. 

• The KLA audit of land ownership found that only 103,043 titles or 10.3 percent of title deeds were issued to women compared to the 865,095 or 86.5 percent that went to men.

• Even greater gender disparities were found in terms of the actual land size. While men own 9,903,304 hectares in titled land, representing 97.76 percent of land, women own 1.67 percent or 10,129,704 hectares of land during this five year period.
• Further, this audit found that men own 75 percent of land title deeds of all allocated land settlement schemes.

In 2018, the Federation of Women Lawyers (FIDA) in Kenya petitioned Kenya’s High Court, arguing that Section 7 of the Matrimonial Property Act was discriminatory towards women and inconsistent and in contravention of Article 45 (3) of the Constitution.

The court dismissed the petition, ruling out a blanket equal sharing of marital property as it would “open the door for a party to get into marriage and walk out of it in the event of divorce with more than they deserve”.

Within this context, less than five percent of all land title deeds in Kenya are held jointly by women and only one percent of land titles are held by women alone who are in turn disadvantaged in the manner in which they use, own, manage and dispose land, says FIDA-Kenya.

But as gender experts are becoming alarmed by the rising numbers of female headed households — 32 percent out of 11 million households based on government estimates — securing women’s land rights is becoming more urgent.

“The Matrimonial Property Act gives women the capacity to register their property but a majority of women do not realise just how important this is. Later, they struggle to access their property because they did not ensure that they were registered as owners,” Janet Anyango, legal counsel at FIDA-Kenya’s Access to Justice Programme, tells IPS. FIDA-Kenya is a premier women rights organisation that, for 34 years, has offered free legal aid to at least three million women and children. It is also another Deliver For Good/Women Deliver partner organisation in Kenya.

Anyango says that in law “the meaning of ‘contribution’ was expanded to include non-monetary contributions but it is difficult to quantify contribution in the absence of tangible proof. In the 2016 lawsuit, we took issue with the fact that the law attributes marital liabilities equally but not assets”.

• In 2016 FIDA-Kenya sued the office of the Attorney General with regards to act, stating the same issues of discrimination against women. 

In addition to the Matrimonial Property Act, laws such as the Law of Succession Act seek to cushion both surviving male and female spouses but are still skewed in favour of men as widows lose their “lifetime interest” in property if the remarry. And where there is no surviving spouse or children, the deceased’s father is given priority over the mother. 

Women Deliver recognises that globally women and girls have unequal access to land tenure and land rights, creating a negative ripple effect on development and economic progress for all.

“When women have secure land rights, their earnings can increase significantly, improving their abilities to open bank accounts, save money, build credit, and make investments in themselves, their families and communities,” Susan Papp, Managing Director of Policy and Advocacy at Women Deliver, tells IPS.

She says that applying a gender lens to access “to resources is crucial to powering progress for and with all during the COVID-19 pandemic, even as the world continues to work towards the SDGs”.

And even though marriage services at the Attorney General’s office have been suspended due to the COVID-19 pandemic, as have all services at the land registries, women like Njeri will continue to fight for what they rightfully own.

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Jam Bai (in red sari), a member of the Indigenous 'Kawar' community, sows rice saplings in her paddy field as her relatives and neighbours help her. After years of struggle she now officially owns the land she farms on. Credit: Stella Paul/IPS

By Stella Paul
KORCHI/GADCHIROLI, India, Aug 9 2019 (IPS)

Jam Bai, an Indigenous farmer from Korchi village in western India, is a woman in hurry. After two months of waiting, the rains have finally come and the rice saplings for her paddy fields must be sown this week while the land is still soft.

But on Saturday Aug. 3, a day before IPS visited the village, government security forces shot dead seven armed rebels belonging to a far left, radical communist group called the ‘Maoists’ or ‘Naxals’ in a village 40 km from here.

Located roughly 750 km east of Mumbai in Maharashtra state’s Gadchiroli district, which has one of the India’s thickest teakwood forests, the area is often in the news for the violent incidents such as landmine blasts, killing, gunfire, arrests and protests that occur here. Maoists have been waging war against the government for over a decade here as they demand a classless society.

Since the incident, there has been an unofficial shutdown around Korchi. As tension and fear spreads, Bai could not find a single labourer to hire. But the 53-year-old will not give up: not sowing the fields this season is not an option.

Her reasons are not only financial but also emotional.

After years of struggle she now officially owns the land.

So today Bai has called on several of her women relatives and friends from the village. With saris pulled up over their knees and heels dug into the muddy water, they bend in a row, holding a bundle of saplings in one hand, while sowing a small bunch with the other.

“I have five acres of land. So far we have finished sowing about one acre. There are four more to go, but we will surely finish the rest in two to three days,” says Bai. The women laugh and cheer for her.

• The village of Korchi consists of just over 3,000 people, most of whom are small and marginal farmers belonging to Gondi and Kawar Indigenous communities, who recognised by the country’s constitution as ‘Schedule Tribes’—the official term for Indigenous peoples in the country.
• The area may be conflict-ridden but studies show that the district stands as being the first in all of India to grant land rights to Indigenous people. Much of this is credited to local Indigenous women like Bai who have been leading a ground movement for years for formal ownership of both the farming land and the forest land.

The paddy fields that Bai owns are located at the edge of a her village, beyond which lies a forest. For generations, Bai’s family has sustained itself both by farming on the land and collecting fruit, tree bark, vegetables and herbs that grow in the forest, just like other members of their Indigenous communities.

But they never possessed official rights over either of the land areas.

It was only after the government started to implement the Forest Rights Acts 2006—a new law which recognised the rights of the Indigenous peoples living in the forest—that Bai applied for formal ownership to the land her family held. Finally, after nearly a decade’s struggle, she received her land rights last year.

“Before me, my mother in law and her mother in law also sowed rice in this land. But 15-20 years ago, everyone started to say, ‘this land belongs to government, you are only occupying it’. That is when we realised that we need formal rights and ownership. After the new forest law came, along with others, I also applied in 2008 for my rights. Finally, last year I received my Patta (ownership certificate),” she says. 

A woman shows an application for individual landrights and the documents that are required. This includes maps and receipts of the land tax paid to the district government by the family for past three generations, multiple signatures of the applicant, their family members, the village chief, and senior government officials at the Land and Revenue department etc., several rounds of verification by village and district level officials. Credit: Stella Paul/IPS

Land ownership for women: a complex story

Kumaribai Jamkatan, 51, is one of those leaders who have been fighting for women’s land rights since 1987.

• Though the constitution of India grants equal rights to men and women, women first started to stake their claim for formal ownership of land only after 2005–the year the government accorded legal rights to daughters to be co-owners of family-owned land.
• For the Indigenous communities, it was the Forest Rights Act 2006 which allowed women to own land.
• Presently, the Indigenous people here in Korchi have two kinds of land rights:
  • The rights of an individual over farmland in their village, and
  • A collective right over a specific area in the forest for hunting-gathering – which was made possible in 2006 under a special forest law (The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act).

Under this law, the entire community shares the forest resources of barks, seeds, fruit and vegetables, which include; gooseberries, blackberries, mushrooms, bamboo shoots, soap nuts, and various herbs and shrubs. All of these have been part of the Indigenous communities’ diets and source of their livelihood for generations.

• The land allotted to a village community is typically decided by the size of the village population. However, it usually falls between four to 10 acres.
• But their struggle for land rights started decades ago and continues today as many women are still waiting to receive land rights due to slow pace of implementation of Forest Rights Act and lack of awareness in their communities. According to India’s Agriculture Census 2010-2011, nationally, women own only 10.34 percent of land.

The struggle has been long and hard with social, financial and legal challenges, Jamkatan says.

“In the beginning, nobody even believed in the individual land rights of women. Some saw it as a huge work burden as the land is usually in the name of the patriarch of the family and granting ownership to women would mean distributing the land to individual family members.

“Then there are legal challenges: the application needs several documents, including maps and receipts of the land tax paid to the district government by the family for past three generations, multiple signatures of the applicant, family members, the village chief, and senior government officials at the Land and Revenue department etc., several rounds of verification by the village and the district level officials and goes through several government agencies all of which take a long time,” says Jamkatan.

In 2017, locals, supported by a local NGO, Amhi Amchya Arogyasathi (We for our own health in Marathi), formed the Maha Gram Sabha (the Great Village Assembly). The assembly is a community-based organisation with members from 90 Indigenous villages of the district’s 125 villages. Gadchiroli district is at least nine times the size of London, with a total population of about 1.7 million.

The Great Village Assembly has not only spearheaded the land rights movement of women in a collective manner, but also asserted their rights to the forests and its resources. About 3,000 women are reported to have received land rights since the assembly was formed.

The assembly believes that Indigenous people have the first right to land and forest. When this is ensured, the community has a better life and the forest also flourishes, Nand Kishore Wairagade, a former village chief and now an advisor to the assembly, tells IPS.

Wairagade says the formation of the Great Village Assembly helped revolutionise people’s rights over the land: “There are 90 villages in this assembly who meet regularly and decide on everything from applying for land rights to collecting forest resources like Tendu leaves (a significant source of income for the forest peoples which is used to make hand-rolled cigarettes), gooseberry, mushroom etc. The assembly also oversees the sale of Tendu leaves, negotiates its price with the buyers and ensures that the money is paid directly to bank accounts of the women sellers.”

These have all been hard-won gains.

“We have taken to the road many times. Since 2012, when the government first decided to grant us the collective rights, we have held protest rallies, sit-in demonstrations, road blockades and strikes. Finally, last year they started to distribute the certificates again. Now, people in 77 villages (out of the 90 villages that are part of the assembly) have land ownership but people in 13 villages are yet to receive theirs,” says Jamkatan who is pursuing a personal goal of helping 1,000 women get land rights this year.

Indigenous people’s land–what experts say

Global experts have emphasised how land use by Indigenous peoples plays a role in conserving the environment and mitigating climate change. A special report on Land and Climate Change released by the Intergovernmental Panel on Climate Change (IPCC) on Thursday, Aug. 8, highlights how indigenous and traditional ways of managing land can help reverse land degradation and mitigate climate change in the process.

Commenting on the report, Andrea Takua Fernandes, frontline organiser for Indigenous communities at 350.org, tells IPS the leadership of the Indigenous people is key to addressing both the climate crisis and deforestation. “The biodiversity defended by Indigenous people will be essential to cracking the code of how to respond sustainably and fairly to the climate breakdown.”

In Korchi village, Wairagade shares an example of how Indigenous people use land in a sustainable manner: “the community here knows exactly how much to take from the forest. Their need is not driven by market and profits, but meeting the need of the family. When they harvest bamboo shoots, they take only a few to feed themselves and leave enough in the wild, so that the forest can be regenerated. So, sustainability is in our culture.”

No land rights, no empowerment of women
Sarajaulabai Ganesh Sonar, a smallholder farmer in Korchi who owns three acres of land which she was officially awarded the title deed to last year, believes that without land ownership, women’s empowerment is incomplete.

She tells IPS that previously women were too scared to demand their share of land.

“Now they see it as a fight for their own identity. [A woman] can also earn a living from her own land. In the forest also, before we had collective rights, we used to be scared of the forest guards and think ‘what if he caught us and beat us etc’. Now we don’t have to sneak in and hide. So, for us, land is our real source of empowerment.”

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Women's secure tenure rights lead to several positive development outcomes for them and their families, including resilience to climate change shocks, economic productivity, food security, health, and education. Here a young tribal woman works shoulder to shoulder with her husband planting rice saplings in India's Rayagada province. Credit: Manipadma Jena/IPS

By Manipadma Jena
NEW DELHI, Jun 12 2017 (IPS)

In Meghalaya, India’s northeastern biodiversity hotspot, all three major tribes are matrilineal. Children take the mother’s family name, while daughters inherit the family lands.

Because women own land and have always decided what is grown on it and what is conserved, the state not only has a strong climate-resistant food system but also some of the rarest edible and medicinal plants, researchers said.The importance of protecting the full spectrum of women’s property rights becomes even more urgent as the number of women-led households in rural areas around the world continues to grow.

While their ancient culture empowers Meghalaya’s indigenous women with land ownership that vastly improves their resilience to the food shocks climate change springs on them, for an overwhelming majority of women in developing countries, culture does not allow them even a voice in family or community land management.  Nor do national laws support their rights to own the very land they sow and harvest to feed their families.

Legal protections for indigenous and rural women to own and manage property are inadequate or missing in 30 low- and middle-income countries, according to a new report from Rights and Resources Initiative (RRI).

This finding, now quantified, means that much of the recent progress that indigenous and local communities have gained in acquiring legal recognition of their commonly held territory could be built on shaky ground.

“Generally speaking, international legal protections for indigenous and rural women’s tenure rights have yet to be reflected in the national laws that regulate women’s daily interactions with community forests,” Stephanie Keene, Tenure Analyst for the RRI, a global coalition working for forest land and resources rights of indigenous and local communities, told IPS via an email interview.

Together these 30 countries contain three-quarters of the developing world’s forests, which remain critical to mitigate global warming and natural disasters, including droughts and land degradation.

In South Asia, distress migration owing to climate events and particularly droughts is high, as over three-quarters of the population is dependent on agriculture, out of which more than half are subsistence farmers depending on rains for irrigation.

“For many indigenous people, it is the women who are the food producers and who manage their customary lands and forests. Safeguarding their rights will cement the rights of their communities to collectively own the lands and forests they have protected and depended on for generations.” said Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples.

“Indigenous and local communities in the ten analyzed Asian countries provide the most consistent recognition of women’s community-level inheritance rights. However, this regional observation is not seen in India and Nepal, where inadequate laws concerning inheritance and community-level dispute resolution cause women’s forest rights to be particularly vulnerable,” Keene told IPS of the RRI study.

“None of the 5 legal frameworks analyzed in Nepal address community-level inheritance or dispute resolution. Although India’s Forest Rights Act does recognize the inheritability of Scheduled Tribes and Other Traditional Forest Dwellers’ land, the specific rights of women to community-level inheritance and dispute resolution are not explicitly acknowledged. Inheritance in India may be regulated by civil, religious or personal laws, some of which fail to explicitly guarantee equal inheritance rights for wives and daughters,” Keene added.

Desertification, the silent, invisible crisis, threatens one-third of global land area. This photo taken in 2013 records efforts to green portions of the Kubuqi Desert, the seventh largest in China. Credit: Manipadma Jena/IPS

Pointing out challenges behind the huge gaps in women’s land rights under international laws and rights recognized by South Asian governments, Madhu Sarin, who was involved in drafting of India’s Forest Rights Act and now pushes for its implementation, told IPS, “Where governments have ratified international conventions, they do in principle agree to make national laws compatible with them. However, there remains a huge gap between such commitments and their translation into practice. Firstly, most governments don’t have mechanisms or binding requirements in place for ensuring such compatibility.”

“Further, the intended beneficiaries of gender-just laws remain unorganised and unaware about them,” she added.

Women’s land rights, recurring droughts and creeping desertification

According to the United Nations Convention to Combat Desertification (UNCCD), one way to address droughts that cause more deaths and displaces more people than any other natural disaster, and to halt desertification – the silent, invisible crisis that threatens one-third of global land area – is to bring about pressing legal reforms to establish gender parity in farm and forest land ownership and  its management.

“Poor rural women in developing countries are critical to the survival of their families. Fertile land is their lifeline. But the number of people negatively affected by land degradation is growing rapidly. Crop failures, water scarcity and the migration of traditional crops are damaging rural livelihoods. Action to halt the loss of more fertile land must focus on households. At this level, land use is based on the roles assigned to men and women. This is where the tide can begin to turn,” says Monique Barbut, Executive Secretary of the UNCCD, in its 2017 study.

Closing the gender gap in agriculture alone would increase yields on women’s farms by 20 to 30 percent and total agricultural output in developing countries by 2.5 to 4 percent, the study quotes the UN’s Food and Agriculture Organisation (FAO) as saying.

An Indian tribal woman holds up her land tenure document secure in the knowledge that now she can plan long term for her two sons. Credit: Manipadma Jena/IPS

Why the gender gap must close in farm and forest rights

The reality on the ground is, however, not even close to approaching this gender parity so essential for achieving the Sustainable Development Goals 1, 2 and 5 which connect directly with land rights.

Climate change is ushering in new population dynamics. As men’s out-migration from indigenous and local communities continues to rise due to fall in land productivity, population growth and increasing outside opportunities for wage-labor, more women are left behind as de facto land managers, assuming even greater responsibilities in communities and households.

The importance of protecting the full spectrum of women’s property rights becomes even more urgent as the number of women-led households in rural areas around the world continues to grow. The percentage of female-led households is increasing in half of the world’s 15 largest countries by population, including India and Pakistan.

Although there is no updated data on the growth of women-led households, the policy research group International Institute for Environment and Development (IIED) in its 2014 study found that from 2000 to 2010, slightly less than half of the world’s urban population growth could be ascribed to migration. The contribution of migration is considerably higher in Asia, it found, where urbanisation is almost 60 percent and is expected to continue growing, although at a declining rate.”

“Unless women have equal standing in all laws governing indigenous lands, their communities stand on fragile ground,” cautioned Tauli-Corpuz.

Without legal protections for women, community lands are vulnerable to theft and exploitation that threatens the world’s tropical forests that form a critical bulwark against climate change, as well as efforts to eradicate poverty among rural communities.

With the increasing onslaught of large industries on community lands worldwide, tenure rights of women are fundamental to their continued cultural identity and natural resource governance, according to the RRI study.

“When women’s rights to access, use, and control community forests and resources are insecure, and especially when women’s right to meaningfully participate in community-level governance decisions is not respected, their ability to fulfill substantial economic and cultural responsibilities are compromised, causing entire families and communities to suffer,” said Keene.

Moreover, several studies have established that women are differently and disproportionately affected by community-level shocks such as climate change, natural disasters, conflict and large-scale land acquisitions, further underscoring  the fortification of women’s land rights an urgent priority.

With growing feminization of farming as men out-migrate, and the rise in women’s education, gender-inequitable tenure practices cannot be sustained over time, the RRI study concludes. But achieving gender equity in land rights will call for tremendous political will and societal change, particularly in patriarchal South Asia, researchers said.

Having land has made all the difference to Zar Bibi, a 60-year-old widow in Pakistan (centre). Credit: Zofeen Ebrahim/IPS

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