Human Rights, Formalisation and Women's Land Rights In

Human rights, formalisation and women’s land rights in southern and eastern Africa By Ingunn Ikdahl, Anne Hellum Randi Kaarhus, Tor A. Benjaminsen Patricia Kameri-Mbote Studies in Women’s Law No. 57 Institute of Women’s Law, University of Oslo Revised version of Noragric Report No. 26 June 2005, Norwegian University of Life Sciences This report is a revised version of the report published by I Ikdahl, A Hellum, R Kaarhus and TA Benjaminsen in June 2005 as Noragric Report No. 26, ISSN 1502-8127. The study on which this report is based, was commissioned by the Norwegian Agency of Development Cooperation (NORAD) as a joint project to the Institute of Women’s Law, Faculty of Law, at the University of Oslo (UiO) – through the Norwegian Centre for Human Rights – in collaboration with Noragric. Noragric is the Department of International Environment and Development Studies at the Norwegian University of Life Sciences (UMB). Noragric’s activities include research, education and assignments, focusing particularly, but not exclusively, on developing countries and countries with economies in transition. Besides Noragric’s role as the international gateway for UMB, Noragric also acts on behalf of the Norwegian College of Veterinary Medicine (NVH) and of Norwegian Agricultural Research International (NARI), which form alliances with UMB. The Institute of Women’s Law is a part of the Department of Public and International Law (UiO). Activities at the Institute of Women’s Law include teaching and research in women’s rights in the field of human rights law, equal status law and law and development in Scandinavia, Africa and Southern Asia. The findings, interpretations and conclusions expressed in this publication are entirely those of the authors and cannot be attributed directly to the Department of International Environment and Development Studies (UMB/Noragric) or to the Faculty of Law (University of Oslo). Ikdahl, I., Hellum, A., Kaarhus, R., Benjaminsen, T.A., Kameri-Mbote, P. Human rights, formalisation and women’s land rights in southern and eastern Africa Studies in Women’s Law No. 57 (July 2005) Institute of Women’s Law Department of Public and International Law University of Oslo P.O. Box 6706 St. Olavs plass N-0130 Oslo, Norway Editor: Professor Anne Hellum Internet: http://www.jus.uio.no/ior/kvretten/english/index.html ISSN: 0809-621X ii List of Contributors Tor A Benjaminsen is Associate Professor at Noragric, Department of International Environment and Development Studies at the Norwegian University of Life Sciences (UMB). He has a PhD in Development Studies from Roskilde University (Denmark). He has extensive experience working with land tenure issues, drylands, environmental history and political ecology in a number of countries, including South Africa, Tanzania and Mali. He has produced a wide range of publications both in English, French and Norwegian. Anne Hellum is Dr. juris and Professor of Law at the Faculty of Law at the University of Oslo. She is Director of the Institute of Women’s Law and leading the Faculty research group on Rights, Culture and Society. She is a lawyer and anthropologist engaged in teaching and research on human rights and legal pluralism in Africa, Pakistan and Norway in relation to family, health, reproduction, land and water. She has been involved, since 1987, in a NORAD funded collaborative project between the University of Zimbabwe and the University of Oslo in setting up and developing a regional master program on Women’s Law. Ingunn Ikdahl is Research Fellow at the Faculty of Law at the University of Oslo. She has a law degree from the University of Oslo. As a research assistant at the Institute of Women’s Law she was engaged in a research project on women’s land rights in Tanzania. Her areas of teaching are international women’s law, equal status law and property rights. She is daily leader of the Institute of Women’s Law and sits on the editorial board of Retfærd (Justice) Nordic Legal Journal. Randi Kaarhus, with a PhD in Social Anthropology from the University of Oslo, is an Associate Professor, leading a research group working in the field of Rights, Conflicts & Resources at Noragric – Department of International Environment and Development Studies – at the Norwegian University of Life Sciences (UMB). She has practical experience with development cooperation in Mozambique and has carried out research and consultancies in Mozambique, Malawi, Angola and Ecuador. Dr. Patricia Kameri-Mbote, with a PhD in Law from Berkeley (USA) is Senior Lecturer in Law at the Faculty of Law of the University of Nairobi and an Advocate of the High Court of Kenya. She is the Programme Director for Africa for the International Environmental Law Research Centre, and is a member of the IUCN Commission on Environmental Law, a board member of the Advocates Coalition for Development and Environment Uganda and Women and Law in East Africa. She has consulted for many international and national agencies including the World Bank, the United Nations Development Programme, the Norwegian Agency for Development Cooperation (NORAD) and the government of Kenya. She has published widely in the field of international law, environmental and natural resources law and policy, women's rights and property rights. iii CONTENTS LIST OF ACRONYMS AND ABBREVIATIONS vii ACKNOWLEDGEMENTS viii EXECUTIVE SUMMARY ix 1. INTRODUCTION 1 2. FORMALISATION OF LAND RIGHTS 4 2.1 Defining ‘formalisation’ of land rights 4 2.2 A historical glance at formalisation of land rights in Africa 5 2.3 Formalisation and the private/ public divide 7 2.3.1 The public/ private divide in post-colonial land reform 7 2.3.2 The spill-over effect on formalisation 9 2.4 International actors and formalisation 10 2.5 Women’s land rights, power and resources: Some emerging issues 12 3. WOMEN’S LAND RIGHTS: A HUMAN RIGHTS-BASED APPROACH 14 3.1 Background for a HRBA and its relevance for equal land rights 14 3.2 Core HRBA principles for development and poverty reduction 16 3.3 HRBA, equality and land reform 18 3.4 The Convention on the Elimination of All Forms of Discrimination against Women 20 3.5 Non-discriminatory access to and protection of land rights 21 3.5.1 Protection against direct discrimination 21 3.5.2 Protection against indirect discrimination 23 3.6 Equal participation and empowerment 26 3.7 Monitoring and accountability: Due process and the rule of law 27 3.8 Main standards for gender equal land reform 28 4. A MARKET-BASED APPROACH TO LAND RIGHTS 30 4.1 The World Bank report on land policies 30 4.2 Is ‘formalisation’ equal to ‘securing property rights’? 32 4.3 A World Bank approach to women’s land rights 33 4.4 Concluding remarks 35 5. COUNTRY STUDY: TANZANIA 36 5.1 Background 36 5.2 The 1999 land legislation 37 5.3 Women’s land rights and application of customary law 39 5.4 Implementation of the 1999 land legislation: Recent debates 42 5.4.1 Land formalisation in the Tanzanian PRSP 42 5.4.2 The ILD formalisation programme 44 5.5 Concluding remarks 45 6. COUNTRY STUDY: MOZAMBIQUE 47 iv 6.1 Some historical antecedents 47 6.2 The legal context of the present land law 48 6.3 The land law of 1997: Development and implementation 50 6.4 Institutional challenges, customary law and women’s strategies 52 6.5 Recent debates on land and formalisation 57 6.6 Concluding remarks 58 7. COUNTRY STUDY: SOUTH AFRICA 59 7.1 Introduction 59 7.2 Land reform in South Africa 61 7.3 Women and land in South Africa 63 7.3.1 Gender equality and the right to culture: A recent case 64 7.3.2 Communal land 65 7.3.3 ‘Commercial’ farms 66 7.3.4 From ideals to practice 67 7.3.5 A basic challenge: Defining the demand for land among women 68 7.4 Concluding remarks 68 8. COUNTRY STUDY: ZIMBABWE 70 8.1 Background and overview 70 8.2 The legal context of land reform with a view to gender equality 72 8.3 Privately-held land 74 8.4 Communal land 75 8.5 Resettlement: The post-conflict period 1980-2000 75 8.6 From 2000: Fast track 77 8.7 Factors influencing women’s negotiations of land rights: A comparative perspective 80 8.8 Concluding remarks 81 9. COUNTRY STUDY: KENYA 83 9.1 Introduction 83 9.1.1 The Place of International Law 83 9.1.2 Land Tenure 84 9.1.3 Constitutional Provisions 85 9.1.4 Judicial Decisions on Women’s Rights to Property Generally 86 9.2 Rights to land: Current laws and policies and their implications for women’s rights 89 9.2.1 Individual Ownership 89 9.2.2 Government Ownership 93 9.2.3 Group Ownership 95 9.3 Reform initiatives 98 9.3.1 Constitutional Review 98 9.3.2 National Land Policy Formulation Process 100 9.4 Concluding remarks 101 10. CONCLUSION 102 10.1 HRBA standards 102 10.2 International mechanisms 102 10.3 National policies and legislation 104 10.4 Judicial activism: General changes through individual cases 106 10.5 From principles to practice 107 10.6 From formal to substantive equality including the poor 108 v REFERENCES 110 International human right instruments and documents 124 Human rights conventions 124 Declarations and statements 125 General recommendations/ comments from treaty monitoring bodies 125 State reporting under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 125 National legislation and case law 126 Tanzania 126 Mozambique 127 South Africa 127 Zimbabwe 127 Kenya 127 ANNEX 1: LIST OF PEOPLE AND ORGANISATIONS CONSULTED/ INTERVIEWED FOR THIS STUDY 129 Mozambique 129 Tanzania 129 South Africa 130 Zimbabwe 130 ANNEX 2: OVERVIEW OF THE INTERNATIONAL OBLIGATIONS OF THE COUNTRIES STUDIED 131 vi LIST OF ACRONYMS

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