Land in Africa: Market Asset, or Secure Livelihood? Church House, Westminster, London November 8-9 2004 Women and Land Tenure Rights in Southern Africa: A human rights-based approach Prepared by Gladys Mutangadura for Session Two: Gender, land rights and inheritance 1 Women and Land Tenure Rights in Southern Africa: A human rights-based approach Gladys Mutangadura1 Abstract Land is considered the most fundamental resource to women's living conditions, economic empowerment and, to some extent, their struggle for equity and equality. More than 60% percent of women in Southern Africa are dependent on land for their livelihoods. Despite the importance of land to women in the sub-region, their land rights are still largely discriminated against. A combination of statutory and customary laws favoring male ownership of property disadvantage women's rights to own land. The traditional exclusion of women from property and land ownership on gender grounds is the most damaging global human rights violation experienced in many developing countries. Without rights to land, women's economic and physical security is compromised. Using evidence from selected countries in Southern Africa, this paper uses a human rights approach to argue that women's equality and land rights are violated if their rights to land are not honored. The paper offers recommendations on strategies that can be adopted by countries to enable women to equitably access, own and control land. 1.0 Introduction Despite their central role in agricultural production, women in Southern Africa continue to face discrimination in accessing and owning land. Most women in the sub-region have access to farmland only through their husbands or fathers as they are only granted usufructuary rights as land title pass through the male line. It must be noted however that this characteristic is typical of customary land tenure system, which is existent and is the dominant land tenure system in many Southern African countries (see annex 1). The phenomenon of limited women’s access to land is further compounded by the HIV/AIDS pandemic, which affects women and men differently; prevalence, impact and effects of HIV/AIDS are higher on women and children in particular (see annex 1 for details on the HIV prevalence rates). Widows and children of AIDS patients for instance, often do not have the right to inherit their late husband's/father’s agricultural land, and are thus condemned to poverty and dependency. Yet access and ownership of land is fundamental to basic livelihood sustenance implying that discrimination of women from owning this basic good is violation of women's human rights. Limited rights of women to agricultural land is of primary concern in Southern Africa since justice in development requires that women's right to agricultural land be treated as a priority Human Right. Southern African economies are highly dependent on agriculture. The agriculture sector is a major contributor to GDP. In Malawi and Mozambique, agriculture accounts for approximately 35 per cent of GDP, but less than 10 per cent in mineral-rich countries, such as Botswana and South Africa (see annex 1). Women play a crucial role in agriculture, providing 80 to 90 percent of the labour in subsistence production and over 70 percent in cash crop production. In this scenario therefore, discrimination related to women land ownership must be addressed because it has great bearing on food security and the contribution of agriculture to the economy. Equal rights to land for women and men are an essential and inherent component of progress on overall human rights and democratic development. 1Gladys B Mutangadura, United Nations Economic Commission for Africa – Southern Africa Office (ECA-SA), P.O. Box 30647, Lusaka, Zambia. Telephone: (260-1) 228502/5, email: [email protected], or [email protected]. 2 The main objective of this paper is to analyze Southern Africa's land tenure systems in as far as they constrain women’s access to land ownership and suggest a set of policy recommendations, as well as statutory and technical strategies to address land tenure issues within the context of human rights and sustainable development in the sub-region. This paper is divided into six sections. Section 2 provides an overview of the conceptual framework, Section 3 describes the methodology that was used in the study, Section 4 outlines the findings of the study; section 5 discusses the findings, and section 6 presents conclusions and a list of recommendations. 2.0 Human rights-based approach to women and land rights: A conceptual framework Rights to use and control land is central to the lives of rural women in countries where the main sources of income and livelihood are derived from these natural resources. The lack of land rights by women and girls indicates that they are victims of discrimination since land is considered the most fundamental resource to women's living conditions, economic empowerment and, to some extent, their struggle for equity and equality within a patriarchal society. Without rights to land, women's economic and physical security is compromised. They are deprived with a reliable source of food and are further curtailed access to other inputs, especially credit, necessary for carrying out productive activities. In Southern Africa, women make up more than 60% of small farmers, and provide more than 70% of the workforce in agricultural production. Women's access to land therefore determines not only women's and households' level of living and livelihood, but also food security (ILO, 1996). The problem of lack of access to land is particularly critical for the increasing number of female heads of rural households, which is now evident in Southern Africa (Drimie, 2002). The land rights of women can be seen as elements in the “social bases of self-respect,” which Rawls (1971, 2001) defines as perhaps the most important “primary rights”. Sen (2000) argues that millions of people living in developing countries are not free. “Even if they are not technically slaves, they are denied elementary freedoms and remain imprisoned in one way or another by economic poverty, social deprivation, political tyranny or cultural authoritarianism” (Sen, 2000). Sen argues that it is important for governments through institutions like markets, political parties, legislatures, the judiciary and the media to contribute to development by enhancing individual freedom. The fundamental point is that there is need for countries and the international community to fulfill or protect the land rights of women, since they are so crucial for their sustained livelihood. The human rights argument emphasizes women’s right to equality, human dignity, non-discrimination, autonomy, and economic well being (Walker, 2002). A human rights approach requires an analysis of why women still experience discrimination in obtaining land rights and how the land rights of women can be observed and protected and an analysis of what steps the governments need to undertake to ensure that the land rights of women are acknowledged and protected. To protect women’s rights, the international community has created specific standards set in different legal foundations. These include the Universal Declaration of Human Rights, 1948, and the International Covenant on Economic, Social and Cultural Rights, 1966, and the Convention on the Elimination of all forms of discrimination against women. At the regional level, the African Charter on Human and Peoples’ Rights, 1981, and the Southern Africa 3 Development Community Declaration on Gender and Development, 1997. Recent relevant world conferences, including Vienna Declaration and Program of Action of the 1993, Cairo Conference on Population and Development (ICPD) 1994, Beijing 4th World Conference on Women - Declaration and Platform for Action (1995), and Durban World Summit on Sustainable Development, Johannesburg, 2002, have confirmed the strong link between the gendered nature of violations of human rights and the advancement of women’s rights. The Convention on the Elimination of all forms of discrimination against women (CEDAW) brings together all conventions and treaties that protected and promoted the rights of women in particularly vulnerable areas into a single instrument.2 The United Nations General Assembly adopted the Convention on the Elimination of all forms of discrimination against women in 1979. The Convention, which entered into force on 3 September 1981, establishes women’s right to non-discrimination on the basis of sex and affirms equality in international law. It is monitored by the Committee on the elimination of discrimination against women (CEDAW). The CEDAW lays the basic principles on how women’s land rights should be treated in a rights-based approach. Specifically Article 14 of the CEDAW obliges state parties to ensure equal treatment between men and women in land and agrarian reform. In order to achieve real equality, the CEDAW requires that marriage and inheritance laws with regard to land rights should be based on equality. Article 16 of the CEDAW also implies that land tenure reform must ensure women’s property rights during marriage, at divorce and in the event of death of the husband. All countries in the sub-region with the exception of Swaziland have ratified the CEDAW (see annex 1). The question is; are all the countries that ratified the CEDAW doing what they agreed to do? By signing the CEDAW, these countries agreed to incorporate the principles of equality of men and women in their legal systems, to abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women. This paper adopts this human rights approach to explore how the countries in the sub- region have treated the issue of women’s land rights and suggests strategies that ensure that women are accorded full and equal rights to own land and other property. 3.0 Methodology The study methodology consisted of a combination of collection and synthesis of existing country level literature on land policies and land laws and key informant interviews with key government officials in relevant ministries (agriculture, lands, women’s affairs) and with representatives of civil society groups (e.g.