AN ANALYSIS OF THE POSITION OF WOMEN IN THE GAME OF PROPERTY RIGHTS IN AFRICA THROUGH OUT HISTORY

ABSTRUCT

Despite having numerous provisions for the freedom from discrimination in property and land rights for women, customary practices seem to sip in hindering women from fully realizing these rights hence creating a deficient regime. Although, the idea of integrating customary laws into modern- constitutions serves to preserve African culture, it has entertained discrimination from certain customary practices. This article is  divided into the following sections; Review of the History of Women in property law, modern frameworks, case study concluding by summarizing the emerging issues from the above.

INTRODUCTION

The Game of property rights has been a paradox of different levels and there has always been a gap and women fall short. Despite this, the women in the Countries face various issues such as cultural beliefs, sexist attitudes and lack of awareness inter alia. With these challenges various theorist and analysts have come up with reasons why this gap The question this research seeks to answer is weather the theorists are in the right track and if so weather the country and continent will ever be rescued from the entanglements of this pandemic. In order to understand this paradox, one needs to understand the ways of the game in order to see what needs to change. This research seeks to detangle the concepts and decipher weather the policies and theories discussed actually apply and if so to what extent.

HISTORICAL CONTEXT

Customary Tenure concept

The general theory circulating in the development of property law is the fact that these laws developed from certain principles and moved from the ground up.  This indicates, in this instance, that in Africa, most customary practices have led to what we now term as statutory regulations. Therefore, customary tenure is a term that means the initial process of ownership of Land in Africa. Looking at various countries in Africa one can decipher that property rights emerged as a result of Customary tenures practiced in various systems. Here, land is generally communally owned but there are some instances where land may be on an individual’s hands. The principles of customary tenure presuppose that present tribal or lineage leadership is entitled to property rights since their ancestors claimed the land through first clearing, settlement, or conquest. Additionally, individuals have usufruct rights through their lineages. A good example is when Individuals claim rights of use of a specific piece of land by long-term occupation in the sub Saharan regions of Africa. Even though such land may still be collectively held, it is transferable to other family members if they are capable of its price[1]. This means to some extent the individual had rights at that time over land. In sum customary tenures are malleable and not fixated and as a result various needs arose and customary Law had to emerge with the changes that occurred in the various sections of Africa.

In the same light, one could determine that there was an interlink between customary regimes and the land tenure systems put in place during colonialism. Customary law is dynamic and it is not just a set of principles that persisted after the colonial reign. These customary principles not only affect the rural parts of Africa but the urbanites don’t seem to escape the bite of these principles. Since the laws are malleable, Elders in the community used this as a mechanism to restore the power they had lost due to colonialism. According to Martin Chanock they were able to use customary law to assert control over women, younger men and children – the limited realm over which they were given authority by the colonial power. Additionally, those who prospered within the limits of the colonial power were the ones who were most interested in promoting the ‘customary’ view of things[2]. On customary Laws, Land was owned communally, The focus was more on community guidelines and not individual rights. Africans were grouped according to these communities and there was an appointed chief who would distribute the land. Ann Whitehead and Dzodzi Tsikata pose a debate stating; Many of the supposed central tenets of African land tenure, such as the idea of communal tenure, the hierarchy of recognized interests in land (ownership, usufructuary rights and so on), or the place of chiefs and elders, have been shown to have been largely created and sustained by colonial policy and passed on to post-colonial states^[3]. Through this debate I am inclined to state that customary regimes still persist in many African societies despite the evolution of many legal regimes in Africa.

Neo-liberalization of customary tenure

This principle basically narrates the malleability of the customary tenure principle. This school of thoughts envisages the treatment of customary land tenure as a dualism concept of the colonial and post-independence in land policies.  It could be referred to as the new African customary tenure regime. Additionally, it is characterized to have retains of the DNA of what was previously described as customary tenure[4].  Therefore, the identification of customary tenure with African authority displays a pre-colonial status and therefore legitimacy in the entanglement of the Colonial Administration. This is because customary tenures were used to identify the political standing of Africans, or in the least those who were powerful in society.  In this sense, countries like South Africa, South Sudan, Tanzania, Burkina Faso, Kenya, Uganda and Zambia have formalized tenures into their reforms in that this move toward privatization of what was effectively state land has been aided by reform moves that on the face of it are designed to secure tenure. Conclusively, This ideology is meant to give individuals long occupancy on state land and so forth in order to create land markets and use of land in order to uphold social values of the tenures and maintain the economy. South Africa for instance, during its reforms declared to give titles to peasants who’s labour in certain areas of land provided food to the city[5]. However, In as rosy as this is, there is still the concept of the son of the soil and adopting to these regimes does not always necessarily mean one concept or ideology. Conclusively, these tenures are still regulated by patriarchy stems as a root issue in the full attainment of Women’s rights in property.

LEGAL FRAMEWORK IN THE GAME OF PROPERTY RIGHTS IN AFRICA.

Cope of Various polices and Laws 

The Laws that wrap around Land polices is a blend of both customary tenures and international law principles that stemmed from colonialism. Therefore, the various states became members of international bodies that upheld the general rights of humans as reflected in UDHR. In this view, the Human rights-based approach displays the initiatives taken by various international laws that are adopted in order to ensure the above is achieved. Additionally, CEDAW supports the same by stating that the development of a country is dependent on the maximum involvement and participation of women just as highly as men in all fields[6].

More so, the UN have sustainable development goals. And the SDG of Women is to end discrimination of women everywhere. Most Countries in Africa mimic the same human rights applied in international Law. For instance, In Kenya, the bill of rights is upheld in chapter 4 of the Constitution. Additionally, Article 67 of the constitution of Mozambique also states that  women are equal to men  before the law in all domains (the cultural, social and political arena)[7]. However, many countries have their own National polices. In that if in these National Policies the rights of women are not upheld they are most likely to be overlooked.  Some countries are quite open to the monist approach hence it makes it quite easy to integrate the international policies without having any form of legislation. Nevertheless, those of the dualist approach are not fully engaged with international law unless legislations of such are made.

Nevertheless, there is still a gap in these policies and therefore the ideology of these policies does not fully meet the realistic eye. The Hiatus in the Legal Frameworks. The 2009 Framework and Guidelines on Land Policy in Africa by the AU promotes customary tenure as a primary factor in land governance, a process that is nearly irreversible. Understanding this scope enables one to approach the initiatives of this body in a manner that uphold the ne-liberalization of the Tenure’s set-in place. True to this, the AUC, the UNECA and the AfDB came up with Land policy initiative(LPI) whose main objective was to enhance women’s land rights and increasing their access to land in Africa.

In this  a 5-year strategic plan was made in order  to map out for member states the implementation of the AU declaration on land matters and various issues in Africa. The first initiative was in 2006 and later in 2010. From this, various information was collected with regards to the place of women in property and land rights in different states. It was discovered that the position of women and their rights is not secure in that the access to land and ownership of land is heavily entangled[8]. The combination of customary tenure weather formalized and modern-day policies limit women in that these Laws were mean to protect those who had a customary say.

CASE STUDY IN KENYA

Kenya is a state that supports the monist approach. Therefore, international laws are applicable  according to article 2  of the constitution[9].  Most communities In Kenya were a kinship community and the narrative become similar under these principles. According to the LPI report Kenya showing that only 6% of the registered rights-holders are women demonstrate how formal and informal customary laws related to land transactions in family, marriage and inheritance matters often have a spill-over effect on registration of land rights that is detrimental to women[10]. Though  Kenya was never able to completely replace traditional tenure systems, colonialism and the Tenure   system had a significant impact on them.  Land Tenure systems here  have flaws when it comes to upholding and defending women’s rights to their land. The constitutional review offers a framework for considering women’s land rights, and the current national land policy formation process appears to be more interested in gender concerns. In contrast, the debate still stands on weather implementing old regimes into new ones would be the solution to this hidden pandemic. Another underlaying issue is the fact that the Land Registration Act of Kenya talks about various provisions of Land transaction but there is lack of secondary legislation in order to curve the issue [11]. Women in Kenya have their property rights matrimonial property rights realized in various statues (Matrimonial Property Act, Law of succession, Family Law). All of these Acts strive to ensure that both men and women enjoy their rights from an equal footing. However, there are some sections that contradict the above. Section 33 states that The law applicable to the distribution on intestacy of the categories of property specified in section 32  shall be the law or custom applicable to the deceased’s community or tribe, as the case may be[12]. This section fails to give details that support or provide an equal footing for women in customary cases of such matters.

Kenyan societies among other African societies don’t give an equal footing to stand on and such Women are limited from the start. Section 35 of the act describes the limitation of a widows’ inheritance but fails to mention the widower as well[13].

As seen in Ripples International V the Attorney General & Others the petitioner questioned the said acts based on the gender and violations of women rights in Kenya. The petitioners stated that the said sections that is, section 33, 35 and 36 of the Law of Succession Act (Cap. 81) Laws of Kenya were unconstitutional because they violated the 2010 Constitution of Kenya and restricted the rights of Kenyan women to marry and be treated equally under the law[14].  As a result, a loophole where the rights of a woman under this law are violated is created and continues to prevail. The said acts declared unconstitutional do not necessarily mean repealed. Mobile Access of the Act still displays the same Acts that were unconstitutional. Hence, one is able to decipher where the system is incomplete. It is not under the jurisdiction of the court to determine the applicability of the Act. Section 94(5) vests the power in the legislature and Article 159 subjects the judiciary to only interpretation. 

Another contentious issue is that of division of matrimonial property in the matter of VWN V F.N, The division of matrimonial property was not shared equally and the appeal decided to split it on a 70% 30% basis. This decision was recited in the matter of F.S v E.Z [2016] eklr, where the judge likened the decision above to section 14 of the Matrimonial Property Act stating that division of property is not on an equal basis but rather in terms of contribution[15]. It was later stated in that case that one of the properties is still incomplete although it is of the highest value[16].The issue with this particular judgement is that the non-monetary value of the applicant at this time wasn’t accounted for. The equal distribution of property accounted for both spouses especially with regards to property. The woman becomes slightly challenged if her monetary value is not accounted for and suffers a loss. In support, The House of Lords in White V White stated the importance on non-monetary contribution. It was considered that the non-monetary contribution often-times cannot be quantified. If that contribution were to be reduced to monetary…. a woman’s non-monetary contribution in the home would amount to a higher amount compared to that of the man …… therefore, that the Applicant made monetary and non-monetary contribution towards acquiring the matrimonial property and that her non-monetary contribution is higher than that of the Respondent[17].

EFFECTS OF THE CAVITY IN THE LEGAL FRAMEWORK.

Sexist attitudes.

The development of Human rights in Kenya’s setting stems from the international Laws that provide women with equal rights such as the men. These laws include: The African charter on the rights of Women in Africa (Maputo Protocol) inter alia. However, these laws have not succeeded in replacing the existing customary tenure systems since colonization and its profound effects. As a result, the formalization of land rights in Kenya was done in a patriarchal setting sabotaging women and their journey to acquiring their ownership rights.  

In Rwanda, Women were recognised as legal minors until their 1991 constitution. If a Rwandan woman wanted to buy a plot of land, a building or even a home she had to either do so in the name of a male relative or establish a corporation which could act as a legal person for her[18].

CONCLUSION

In conclusion, I am of the opinion that this debate will drive these theories into insanity because as a continent, repeating the same methods and expecting different results is the accurate disposition of integrating the regimes of customary tenure and evolving policies from these tenures and expecting a balance on equality. Additionally, the government and Non-governmental institutions, should do the ground work in order to ensure the women in rural areas are aware and able to enjoy their rights in order to end the whirlwind of this paradox

References

Whitehead, D. T. (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, 75.

Amanor, K. (2010). Family values, land sales and agricultural commodification in South Eastern Ghana. . Africa 80 (11), 104-125 .

Article 27,The Constitution of Kenya . (n.d.).

Chanock, M. (1991). Paradigms, Policies and Property: A Review of the Customary Law of Land Tenure. In I. K. (Eds.) (Ed.), Law in Colonial Africa. Portsmouth, NH: Heinemann Educational Books.

Chimhowu, A. (2019). The ‘new’ African customary land tenure. Characteristic, features and policy implications of a new paradigm. Land Use Policy Volume 81,2019,, Pages 897-903.

De Soto, H. (2003). The mystery of capital: Why capitalism triumphs in the West and fails everywhere else. . Basic Books; Reprint edition (July 9, 2003).

Krantz, L. (2015). Securing Customary Land Rights in Sub-Saharan Africa. Working Papers in Human Geography, 3.

Odeny, M. “. (2013 ). Improving Access to Land and strengthening Women’s land rights in Africa.” Annual World Bank conference on land and poverty. Washington DC: The World Bank.

Wanyeki, L. M. (2003). Women and Land in Africa: Culture, Religion and Realizing Women’s Rights. New York, NY: Zed Books Ltd. New York : NY: Zed Books Ltd .

LIST OF ABBREVIATIONS

AUC- African Union Commission

ECA- Economic Commission for Africa

AfDB- African Development Bank

LPI- Land Policy Initiative

[1] (Amanor, 2010)

[2] Chanock, M. (1991). Paradigms, Policies and Property: A Review of the Customary Law of Land Tenure. In K. Mann & R. Roberts (Eds.), Law in Colonial Africa. Portsmouth, NH: Heinemann Educational Books.

[3] A. Whitehead, D. Tsikata. “Policy discourses on women’s land rights in sub-Saharan Africa: the implications of the re-turn to the customary.” Journal of Agrarian Change (2003): 75.

[4] Chimhowu, A., Woodhouse, P., 2006. Customary vs private property rights? Dynamics and trajectories of vernacular land markets in Sub-Saharan Africa. J. Agrar. Change 6 (3), 346–371. C

[5] (Chimhowu, 2019)

[6] The UN Convention on the Elimination of All Forms of Discrimination against Women’, adopted 18

December 1979, entered into force 3 September 1981

[7] Constituição da República de Moçambique, translation in WLSA Mozambique (1997:149).

[8] (Odeny, 2013 )

[9] Article 2, The constitution of Kenya

[10] (Odeny, 2013 )

[11] the Land Act

[12] Section 33, Law of Succession Act.

[13] Section 35, Law of Succession Act.

[14] Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR) (29 September 2022) (Judgment)

[15] Section 14, Matrimonial property Act.

[16] F.S v E.Z [2016] eKLR

[17] White v White [200] UKHL 54 

[18] (Wanyeki, 2003).