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Protecting Women’s Land Rights Through Land Reforms

Protecting Women’s Land Rights Through Land Reforms. Prof. Patricia Kameri-Mbote “Building Consensus on Community Engagement within Land Reforms and the Extractive Sectors in Kenya” Tuvuke Panafric Hotel, 12 th March 2015. Key Points. Introduction Why Land Access , Control & Ownership

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Protecting Women’s Land Rights Through Land Reforms

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  1. Protecting Women’s Land Rights Through Land Reforms Prof. 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

  2. Key Points Introduction Why Land Access , Control & Ownership CoK & NLP Importance of Law & Policy Engendering Land Reforms Conclusion University of Nairobi ISO 9001:2008 2 Certified http://www.uonbi.ac.ke

  3. Introduction • 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 University of Nairobi ISO 9001:2008 3 Certified http://www.uonbi.ac.ke

  4. Introduction- 2 • 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 University of Nairobi ISO 9001:2008 4 Certified http://www.uonbi.ac.ke

  5. Introduction- 3 • 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 University of Nairobi ISO 9001:2008 5 Certified http://www.uonbi.ac.ke

  6. Why Land • 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 University of Nairobi ISO 9001:2008 6 Certified http://www.uonbi.ac.ke

  7. Why Land - 2 • 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 University of Nairobi ISO 9001:2008 7 Certified http://www.uonbi.ac.ke

  8. Interventions: Access, Control & Ownership • 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 University of Nairobi IS O 9001:2008 8 Certified http://www.uonbi.ac.ke

  9. Interventions: Access, Control & Ownership -2 • 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 University of Nairobi IS O 9001:2008 9 Certified http://www.uonbi.ac.ke

  10. Interventions: Access, Control & Ownership -3 • 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 University of Nairobi IS O 9001:2008 10 Certified http://www.uonbi.ac.ke

  11. Constitution • 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 University of Nairobi IS O 9001:2008 11 Certified http://www.uonbi.ac.ke

  12. Constitution - 2 • 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 University of Nairobi IS O 9001:2008 12 Certified http://www.uonbi.ac.ke

  13. Constitution -3 • 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. University of Nairobi IS O 9001:2008 13 Certified http://www.uonbi.ac.ke

  14. Constitution -4 • 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. University of Nairobi IS O 9001:2008 14 Certified http://www.uonbi.ac.ke

  15. National Land Policy • 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 University of Nairobi IS O 9001:2008 15 Certified http://www.uonbi.ac.ke

  16. National Land Policy -2 • 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 University of Nairobi IS O 9001:2008 16 Certified http://www.uonbi.ac.ke

  17. National Land Policy -3 • 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 University of Nairobi IS O 9001:2008 17 Certified http://www.uonbi.ac.ke

  18. Importance of Law & Policy • 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 University of Nairobi ISO 9001:2008 18 Certified http://www.uonbi.ac.ke

  19. Importance of Law & Policy - 2 • 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 University of Nairobi ISO 9001:2008 19 Certified http://www.uonbi.ac.ke

  20. Engendering Land Reforms • 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 University of Nairobi ISO 9001:2008 20 Certified http://www.uonbi.ac.ke

  21. Engendering Land Reforms -2 • 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 University of Nairobi ISO 9001:2008 21 Certified http://www.uonbi.ac.ke

  22. Engendering Land Reforms -3 • 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 University of Nairobi ISO 9001:2008 22 Certified http://www.uonbi.ac.ke

  23. The Promise of Law & Policy • 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 University of Nairobi ISO 9001:2008 23 Certified http://www.uonbi.ac.ke

  24. The Promise of Law & Policy - 2 • 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 University of Nairobi ISO 9001:2008 24 Certified http://www.uonbi.ac.ke

  25. The Promise of Law & Policy - 3 • 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 University of Nairobi ISO 9001:2008 25 Certified http://www.uonbi.ac.ke

  26. Conclusion • 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 University of Nairobi ISO 9001:2008 26 Certified http://www.uonbi.ac.ke

  27. Conclusion - 2 • 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 University of Nairobi ISO 9001:2008 27 Certified http://www.uonbi.ac.ke

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