Features
C: Unlocking women’s right to land
Equality Now Africa Regional Office
2005-01-20, Issue 190
http://pambazuka.org/en/category/features/26454
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Women’s right to equal ownership of and access to property is of vital importance in securing women’s equality. But as Mwalimu Julius Kambarage Nyerere once said: “Women of Africa toil all their lives on land that they do not own, to produce what they do not control and at the end of the marriage through divorce or death, they can be sent away empty handed.”
The Protocol on the Rights of Women in Africa (the Protocol) offers potential solutions to these long-standing problems. To date, nine more countries must ratify the Protocol in order to bring it into force. Enforcement of the Protocol is vitally important to reforming and better protecting women’s property rights.
If women had equal access to and control over land, it would not just benefit them individually, but their countries as a whole. As the Honorable Winnie Byanyima, Member of Parliament from Uganda has said: "When women own and control land, there will be more food in each household and more crops for export since most farm work is done by them.” This statement is reinforced by studies undertaken by the Ugandan authorities themselves, which have shown that denying women equal access to land robs the whole country of progress in development. The same is true of other countries.
The Protocol on the Rights of Women Applied
The Protocol sets out a broad range of rights for African women, including protections for economic independence, the right to own and manage land, and the right to be equal partners in making decisions about property, regardless of marital status. These provisions would need to be domesticated into the national laws of each country that ratifies the Protocol to ensure that they are translated into reality. Some of the relevant provisions of the Protocol include:
- Article 2 states that governments “shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures”. Article 2 (1)(d) elaborates on this by creating a duty on states to “take corrective and positive action in those areas where discrimination against women in law and in fact continues to exist”.
- Article 6(j) states, “during her marriage, a woman shall have the right to acquire her own property and to administer and manage it freely.”
- Article 7 states that governments should enact legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage and, more particularly “in case of separation, divorce or annulment of marriage, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage”. When domesticating these provisions, governments should reflect the true intent of the Protocol, which might mean also measuring a women’s contribution to the household in more than mere monetary terms in accordance also with Article 13(h) of the Protocol as highlighted below.
- Women’s property rights are also protected through the Protocol’s protections of economic development. Article 13(e) obliges the state to “create conditions to promote and support the occupations and economic activities of women, in particular, within the informal sector.” Article 13 (h) strengthens this protection by creating an obligation to “take the necessary measures to recognise the economic value of the work of women in the home.”
- Article 16 (Right to Adequate Housing) provides that “[t]o ensure this right, States Parties shall grant to women, whatever their marital status, access to adequate housing.”
- Article 18 creates a duty on states to “ensure greater participation of women in the planning, management and preservation of the environment and the sustainable use of natural resources at all levels.”
- Article 19(c), in making guarantees for a sustainable environment, also provides for the promotion of “women's access to and control over productive resources such as land and guarantee their right to property.”
- Article 20 requires governments to “take appropriate legal measures to ensure that widows enjoy all human rights.” Supporting this, Article 21 guarantees widows “the right to an equitable share in the inheritance of the property of her husband”, and “the right to continue to live in the matrimonial house”, even in instances of remarriage if it belongs to her or she has inherited it. Article 21 also accords to women and men “the right to inherit, in equitable shares, their parents' properties”.
Just looking at these few provisions we can see how the Protocol could be a powerful instrument for change. It attempts to tackle many of the crucial issues facing women in Africa, including the critical area of land ownership for all women as well as widows who have been additionally neglected.
The Protocol makes it very clear that custom cannot be used as an excuse to deprive women of their rights and that women have “the right to live in a positive cultural context and to participate at all levels in the determination of cultural policies” (Article 17). This shows very clearly that governments cannot hide behind traditional practices, in whatever sphere, to continue to deny women equal rights with men. The Protocol points the way to individual governments who do not have laws that adequately protect women’s rights and shows them the principles they should be reproducing at the national level. Governments will have an obligation to look at all sources of law in their countries to make sure the rights provided for by the Protocol are respected and protected.
Conclusion
Discrimination of women in property and marriage law will not be easily remedied. The problem is complex: unfair treatment is rooted in national laws and social attitudes, in customary law and in the law imposed by colonial forces. But there is much hope to be seen in the fact that the 53 countries of the African Union did adopt the Protocol and that several countries have already ratified it or are on the way to ratification. We must encourage them to take progressive steps to ensure that the Protocol is not only ratified but implemented for the benefit not just of African women, but for the continent as a whole.
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