Protecting Womens Land Rights Through Land Reforms Prof

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

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

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 of. Gender identified as a land poliy chalenge in University Nairobi ISO 9001: 2008 3 Certified http: //www. uonbi. ac. ke Africa

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 University of Nairobi ISO 9001: 2008 4 Certified http: //www. uonbi. ac. ke Femininity & Masculinity Translation into powerful/powerless

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 University of Nairobi Patriarchy ISO 9001: 2008 5 Certified http: //www. uonbi. ac. ke

Why 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, ecobusiness) Extractive Industry Land sales and rentals Benefits from land appreciation University of Nairobi ISO 9001: 2008 6 Certified http: //www. uonbi. ac. ke Investment incentive effects

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 ISO 9001: 2008 7 Certified Incentives for sustainable management University of Nairobi http: //www. uonbi. ac. ke

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

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 IS O 9001: 2008 9 Certified http: //www. uonbi. ac. ke influencing O/ship, Control & Access University of Nairobi

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 University of Nairobi IS O 9001: 2008 10 Certified http: //www. uonbi. ac. ke Power; gender; generation factors influence representation and input in decision-making process

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 Co. K 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

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 University of Nairobi IS O 9001: 2008 12 Security of land rights Certified http: //www. uonbi. ac. ke

Constitution -3 Elimination of gender discrimination in law, customs and practices related to land 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 University of Nairobi IS O 9001: 2008 13 Certified http: //www. uonbi. ac. ke spouses who may be the title holders.

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

National Land Policy NLP also has provisions that promote women’s rights to land resources Equitable access to land 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 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 University of Nairobi IS O 9001: 2008 15 Certified http: //www. uonbi. ac. ke effective protection of women’s rights to land related resources

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 University of Nairobi IS O 9001: 2008 16 Certified http: //www. uonbi. ac. ke from inheriting family land

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 coownership of matrimonial property Appropriate legal measures to ensure that men and women are entitled to equal rights to landbased resources during marriage, upon dissolution of marriage and after the death of the Mechanisms to curb selling and mortgaging of University of Nairobi IS O 9001: 2008 17 Certified http: //www. uonbi. ac. ke family land without the involvement of the spouses

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

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

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 ISO 9001: 2008 20 Death University of Nairobi Certified http: //www. uonbi. ac. ke

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 University of Nairobi ISO 9001: 2008 21 Certified http: //www. uonbi. ac. ke to establish contribution

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

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 whathttp: //www. uonbi. ac. ke men have’ University of Nairobi ISO 9001: 2008 23 Certified Interrogate this position

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 knowledge associated with the land resources Use images: Life stories of propertied women to debunk myth that women do not/cannot be loci for land rights University of Nairobi ISO 9001: 2008 24 Certified http: //www. uonbi. ac. ke holding

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

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

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 ISO 9001: 2008 27 Certified http: //www. uonbi. ac. ke Too much emphasis on women in marriage relationships University of Nairobi