Women's Land Rights & Privatization in Eastern Africa 9781847016119, 1847016111

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Edited by

BIRGIT ENGLERT & ELIZABETH DALEY

Women’s Land Rights & Privatization in Eastern Africa

EASTERN AFRICA SERIES

Women’s Land Rights & Privatization in Eastern Africa

EASTERN AFRICA SERIES Women’s Land Rights & Privatization in Eastern Africa Edited by BRIGIT ENGLERT & ELIZABETH DALEY War & the Politics of Identity in Ethiopia Making Enemies & Allies in the Horn of Africa* KJETIL TRONVOLL

Moving People in Ethiopia Development, Displacement & the State* Edited by ALULA PANKHURST & FRANÇOIS PIGUET

* forthcoming

Women’s Land Rights & Privatization in Eastern Africa Edited by

BIRGIT ENGLERT Assistant Professor at the Department of African Studies University of Vienna &

ELIZABETH DALEY Independent consultant

James Currey Fountain Publishers EAEP E & D Vision Publishing

Published in association with

James Currey www.jamescurrey.co.uk is an imprint of Boydell & Brewer Ltd PO Box 9, Woodbridge, Suffolk IP12 3DF, UK www.boydell.co.uk and of Boydell & Brewer Inc. 668 Mt Hope Avenue, Rochester, NY 14620, USA www.boydellandbrewer.com Fountain Publishers PO Box 488 Kampala East African Educational Publishers PO Box 45314 Nairobi E & D Vision Publishing Ltd PO Box 4460 Dar es Salaam © Contributors 2008 First published 2008 1 2 3 4 5 12 11 10 09 08 British Library Cataloguing in Publication Data Women’s land rights & privatization in eastern Africa. (Eastern Africa series) 1. Land reform - Africa, East 2. Women’s rights - Africa, East 3. Land tenure - Government policy - Africa, East 4. Privatization - Social aspects - Africa, East 1. Englert, Birgit II. Daley, Elizabeth 333.3’082’09676

ISBN 978-1-84701-611-9 ( James Currey Hardcover) ISBN 978-9970-02-844-3 (Fountain Publishers Paper)

Typeset in 10/11 pt Baskerville by Long House Publishing Services, Cumbria, UK Printed and bound in Great Britain by ???

Contents Notes on Contributors Foreword by Robin Palmer

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Introduction Women’s land rights & privatization

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BIRGIT ENGLERT & ELIZABETH DALEY

1 Breathing Life into Dead Theories about Property Rights in Rural Africa Lessons from Kenya

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CELESTINE NYAMU-MUSEMBI

2 ‘Go Home & Clear the Conflict’ Human rights perspectives on gender & land in Tanzania

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INGUNN IKDAHL

3 Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo The impact of commoditization, rural-urban change & land registration in Mufindi District, Tanzania

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ELIZABETH DALEY

4 Changing Land Rights & Gendered Discourses Examples from the Uluguru Mountains, Tanzania

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BIRGIT ENGLERT

5 Falling Between Two Stools 101 How women’s land rights are lost between state & customary law in Apac District, Northern Uganda JUDY ADOKO & SIMON LEVINE

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6 Struggling with In-Laws & Corruption 121 in Kombewa Division, Kenya The impact of HIV/AIDS on widows’ and orphans’ land rights SAMWEL ONG’WEN OKURO

7 Women & Land Arrangements in Rwanda A gender-based analysis of access to natural resources

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AN ANSOMS & NATHALIE HOLVOET

Afterword Securing women’s land rights ELIZABETH DALEY & BIRGIT ENGLERT with Judy Adoko, An Ansoms, Nathalie Holvoet, Ingunn Ikdahl, Simon Levine, Celestine Nyamu-Musembi & Samwel Ong’wen Okuro Index

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Notes on Contributors

Judy Adoko is a lawyer who is working as the co-ordinator of the Land and Equity Movement of Uganda (LEMU), an NGO working especially on land rights in customary tenure in Northern and Eastern Uganda. She has previously worked for Oxfam GB in Uganda, Burundi and Tanzania. Email: [email protected], [email protected] and [email protected] An Ansoms is working as an assistant in political economy at the Institute of Development Policy and Management and is a PhD candidate in the Department of Economic Sciences, both at the University of Antwerp, Belgium. Email: [email protected] Elizabeth Daley is an independent land and gender consultant working in Rwanda and the UK. She has a PhD in development studies on land tenure and social change in Tanzania from the School of Oriental and African Studies, University of London, UK. Email: [email protected] and [email protected] Birgit Englert is Assistant Professor in the Department of African Studies at the University of Vienna, Austria from where she also received her PhD. Email: [email protected] and [email protected] Nathalie Holvoet is a lecturer and researcher in the Institute of Development Policy and Management (IDPM) at the University of Antwerp, Belgium. She holds a PhD in Economics. Email: [email protected]

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Notes on Contributors Ingunn Ikdahl is a jurist with specialization in international law and women’s rights. She is working as a research fellow in the Institute of Women’s Law at the University of Oslo, Norway. Email: [email protected] Simon Levine is working as an independent land consultant in Uganda. Email: [email protected] Celestine Nyamu-Musembi is a Kenyan lawyer with training in legal anthropology. She is currently a Fellow at the Institute of Development Studies, University of Sussex. She received her doctorate in Juridical Science (SJD) from the Harvard Law School, Cambridge, MA. Email: [email protected] Samwel Ong’wen Okuro is a lecturer at the History department at Maseno University, Kenya, where he is also working on his PhD on land rights in Kenya. During 2006 he was based in Hamburg, Germany, at the Institute for Global and Area Studies (GIGA). Email: [email protected] Robin Palmer is the land adviser for Mokoro Ltd., based in Oxford, UK. He previously worked as the global land adviser of Oxfam GB where he built up the land rights website: http://www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights /index.htm Email: [email protected]

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Foreword ROBIN PALMER

Property and a piece of land give women peace of mind.1

This is an exciting new collection from an impressive generation of young scholars. Their Eastern African focus makes geographical, historical and thematical sense, for the countries discussed in this volume have all undergone similar land reform and privatization processes in recent years. It is a source of great personal pleasure that the book has drawn its inspiration from a 2003 workshop on women’s land rights in Southern and Eastern Africa which I organized with the redoubtable Kaori Izumi of FAO. Participants there asserted that women’s already fragile land rights were being further eroded in a global context of privatization, of World Bank-sponsored land reforms, of HIV/AIDS, and of changing global employment and trade patterns (Englert & Palmer 2003). This volume will help test that hypothesis further. The struggle for women’s land rights across the globe has both a long history and an extensive and distinguished literature.2 Both the history and the literature illustrate how difficult that struggle has been and, as yet, how few have been the concrete gains. This is nicely encapsulated in this recollection from Bina Agarwal: ‘In 1979 in West Bengal, India, a group of poor women told their elected village council: “Please go and ask the government why, when it distributes land, we don’t get a title. Are we not peasants? If my husband throws me out, what is my security?”’ (Agarwal 2002, 2). Everywhere women who have struggled for security have been confronted by resistance and by patriarchy in its many forms. This is because in many parts of the world land is so often regarded as a symbol of male dominance, and for women to challenge the status quo is to

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Foreword challenge patriarchal control – and thus other social and political inequalities. One of the complexities of gender and land issues, as has been frequently stressed, is that women’s and men’s interests within marriages and households are both joint and separate (UNRISD 2006, 3). However, many land reform and administration programmes over more than 60 years have been premised on the notion of a unitary household in which resources (including title to land) were seen as benefiting the whole family in a fairly unproblematic way (UNRISD 2006, 1). Such programmes also regularly ignored the different meanings and values of land and how different rights to land are allocated, distributed, used and passed on. So women almost always lost out – with the secondary rights that they previously enjoyed being extinguished. Something very similar happened earlier, when colonial rulers across Africa found it convenient to make alliances with chiefs. In the codification of customary law that followed, custom was generally interpreted in ways that strengthened the rights of men over women and men’s control over women’s labour (Chanock 1985). Today, as this new volume on privatization amply demonstrates, new land market opportunities have also tended to disadvantage women (ActionAid International 2006, 6), as men find it easier than women to avail themselves of the new openings implicit in, for example, the striking slogan that greets arrivals at Lusaka International Airport – ‘Zambia, a paradise for investors!’ There have of course been advances, for example in parts of India and Latin America. These have generally come about either as a result of long political struggles involving both women and men, or from radical political change, such as India’s independence in 1947, which led to strong and ultimately successful pressure for gender equity in inheritance laws (Agarwal 2002, 14). Traditional practices of female seclusion – of not allowing women to be in certain places – have been successfully challenged by women activists in India. (ibid., 26). In Latin America, a relatively enlightened legal tradition has enabled many women to acquire land through inheritance (Palmer 2002, 3), though even within supposedly progressive social movements women have had to battle hard for recognition of their land and property rights. (Razavi 2003, 10). New gender sensitive constitutions in Brazil and South Africa have been helpful from both a legal and, to a degree, a practical point of view (Razavi 2006, 3). Africa lags far behind both Latin America and Asia in terms of social organisation and political mobilisation. It is also suffering immensely from the HIV/AIDS pandemic, with wide implications for

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Foreword land rights. Both factors make already difficult issues even more daunting. Women and men are embedded in a variety of social relations, networks and institutions. These can be absolutely critical for women in being able to lay claims on people. But as pressure on land increases, as society becomes more individualised and the economy more privatised, notions of reciprocity and social safety nets within extended families are breaking down, again to the disadvantage of women. Clearly, HIV/AIDS is exacerbating this situation still further with the disturbing consequence of property grabbing from widows and orphans. Gender and land issues are hugely complex and difficult the world over. There are no easy, painless, single solutions. The issues are complex because they operate and require responses on many different levels. Most critically perhaps they operate at the domestic level of the household, in the complex relationships between women and men, and also at the level of ‘traditional’ institutions which remain strong across much of Eastern Africa. Amartya Sen once noted that gender struggles are even more difficult than class struggles because, unlike women and men, the capitalist and the worker do not normally live under the same roof! (cited in Razavi 2006, 3). In Eastern Africa, as elsewhere on the continent, there is a major challenge to accept that many traditional attitudes and customs are now highly inappropriate and need to change, and change rapidly, in the new realities resulting from HIV/AIDS. Ways must urgently be found to help people acknowledge and face up to the painful realities of HIV/AIDS. It really is time to get rid of stigma and shame, while the attitude of blaming the widow for infecting the deceased husband and using this as an excuse for property grabbing should be stigmatised for what it is – a gross violation of human rights. Eastern Africa may well be ahead of Southern Africa in this respect. To confront these difficult, highly sensitive issues requires many things. It requires social mobilisation and collective action of the kind described in India by Bina Agarwal (2003). It requires raising awareness of rights that women may possess in theory but do not enjoy in practice. It requires that gender be addressed seriously and integrally in all land policy, administration and reform initiatives, as even the World Bank has come to acknowledge, at least in theory (World Bank 2005a, 2005b). It requires political and legal will. It requires serious alliance building so that advances can be made on many fronts. It also requires the kind of detailed, local level research so ably represented in this fine and well-edited collection; research that can help both to challenge the status quo and to demonstrate that another world is possible.

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Foreword

References ActionAid International. 2006. Women’s Land Rights, Discussion Paper for International Conference on Agrarian Reform and Rural Development – ICARRD, March 2006. http://www.oxfam.org.uk/resources/issues/livelihoods/landrights/downloads/womensl andrights_actionaid_icarrd.rtf (last accessed October 2007). Agarwal, Bina. 2002. ‘Are We Not Peasants Too? Land Rights and Women’s Claims in India’, Seeds, 21, 2002. http://www.popcouncil.org/pdfs/seeds/seeds21.pdf (last accessed December 2006). Agarwal, Bina. 2003. ‘Gender and Land Rights Revisited: Exploring New Prospects via the State, Family and Market’, Journal of Agrarian Change, Vol. 3/1–2, 184–224. Chanock, Martin. 1985. Law, Custom and Social Order. The Colonial Experience in Malawi and Zambia. Cambridge, Cambridge University Press. Englert, Birgit and Robin Palmer. 2003. Women’s Land Rights in Southern and Eastern Africa. A Short Report on the FAO/Oxfam GB Workshop held in Pretoria, South Africa, 17–19 June 2003, December 2003. http://www.oxfam.org.uk/resources/learning/landrights/downloads/wlrsea_short_ report.rtf (last accessed October 2007). Palmer, Robin. 2002. ‘Gendered Land Rights – Process, Struggle, or Lost C(l)ause?’, Oxfam GB, November 2002. http://www.oxfam.org.uk/resources/learning/landrights/downloads/genderedrtf.rtf (last accessed December 2006). Razavi, Shahra. 2003. ‘Introduction: Agrarian Change, Gender and Land Rights’, Journal of Agrarian Change, Vol. 3/1–2, 2–32. Razavi, Shahra. 2006. ‘Agrarian Change, Gender and Land Rights’, Paper for International Conference, Land, Poverty, Social Justice and Development, Institute of Social Studies (ISS), The Hague, 9–14 January 2006 http://www.iss.nl/navFrame/frame2.html?content=/land/conference/document/ index.html (last accessed December 2006). UNRISD. 2006. Land Tenure Reform and Gender Equity, Research and Policy Brief 4, January 2006. http://www.unrisd.org/publications/rpb4e (last accessed December 2006). World Bank. 2005a. Gender Issues and Best Practices in Land Administration Projects: A Synthesis Report, World Bank; Agriculture and Rural Development Department. http://siteresources.worldbank.org/INTARD/Resources/Gender_land_fulltxt.pdf (last accessed December 2006). World Bank. 2005b. Gender Best Practices Land Administration Sample Questionnaires. http://www.oxfam.org.uk/resources/livelihood/landrights/gender_questionnaire.htm (last accessed October 2007).

Notes 1

2

This is the slogan emblazoned on the striking T-shirts distributed at a series of four workshops in Southern Africa on property-grabbing from widows and orphans in an HIV/AIDS context organized by Kaori Izumi of FAO. Reports of these workshops have been posted on the Oxfam GB Land Rights in Africa website. My own very modest four-page contribution was targeted at Oxfam staff and partners. It concluded sombrely: ‘Latin American experience would suggest that there is no serious alternative to political struggle to achieve rights that are so fiercely resisted at so many levels.’ (Palmer 2002, 4).

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Introduction Women’s land rights & privatization in Eastern Africa BIRGIT ENGLERT & ELIZABETH DALEY

Aims of the Book Land is the main resource from which millions of people in rural Africa derive their livelihoods. That women do the vast majority of work in agricultural smallholder production, producing between 60 and 80 per cent of all food grown in African countries, has become a common observation – and with it the concern that most women on the continent do not hold secure rights to the land from which they derive their own and their family’s livelihood. In most African societies, a woman’s right to access and control land is still tied to her status as a daughter, sister, mother or wife. At an FAO/OXFAM GB Workshop on ‘Women’s Land Rights in Eastern and Southern Africa’ held in Pretoria in June 2003,1 it was noted that women’s already relatively more fragile land rights were being further eroded in the context of various contemporary processes of change, such as commoditization, economic and rural–urban change, conflict (and post-conflict reconstruction and reconciliation), the spread of HIV/AIDS, and the increasing ‘privatization’ of land tenure (Englert & Palmer 2003, 1). Among these processes of change, the privatization of land tenure – by which is meant the formulation and implementation of land tenure reforms which aim primarily at the private registration of land – has the most direct impact on women’s land rights. Moreover, as tenure reforms can be shaped and influenced by those who are concerned to protect women’s land rights, in both formulation and implementation phases, they are also distinct by their very nature from other contextual processes of change. The Pretoria Workshop identified an urgent need for further

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research into both the dynamics of tenure systems based on custom and the impact of land tenure privatization policies on women’s rights to land. This volume owes its inspiration to this, and aims to contribute to the debate with specific reference to Eastern Africa. At the Workshop it was repeatedly noted that contexts are very heterogeneous, that the different geographical, historical, political, socio-economic, cultural and legal realities which shape land rights in any given country are of the utmost importance, and that gender is only one differentiating factor among many, intersecting in critical ways with others such as age, marital status, education and economic situation – challenges which this volume also attempts to address. However, this volume does not attempt to offer a comprehensive overview of women’s rights to land in each country of the Eastern African region; rather, it takes a thematic approach. All the chapters reflect an overall appreciation of the importance of contemporary processes of change for women’s rights to land – not only the increasing privatization of land tenure through reforms emphasizing land registration, but also the realities of the spread of HIV/AIDS, of conflict and post-conflict situations, of internal processes of cultural change, and of broader processes of commoditization and economic and rural–urban change. These various processes of change thus set the context for the different chapters in the volume. The contributors offer different perspectives and different foci, but always on the basis of solid and empirically-grounded research; the majority of chapters are the result of in-depth qualitative studies and give voice to individuals in the text. By going down to the local level in this way, it is hoped that this volume can offer a deeper understanding of the complexities at stake and a more accurate picture of the realities on the ground – a picture, however, which must remain partial, as it would be impossible to fully capture the great diversity of this part of Africa within a single book. The first two chapters discuss the broader policy context within which the debate on women’s land rights is situated, drawing also from insights gained during field research in Kenya (Nyamu-Musembi, Chapter 1) and Tanzania (Ikdhal, Chapter 2) respectively. NyamuMusembi critiques the current policy emphasis on private land registration, while Ikdahl analyses women’s land rights from a humanrights based perspective. The following two chapters then provide insights into the micro-politics of gendered struggles over land within changing customary systems (patrilineal and matrilineal respectively) in different regions of Tanzania – Iringa (Daley, Chapter 3) and Morogoro (Englert, Chapter 4). These accounts of the local changes that are taking place under the influence of broader processes of commoditiza-

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Introduction tion and economic and rural–urban change, including notably the increasing commercialization of land, are followed by a chapter assessing the impact of new land legislation in Uganda on women’s land rights in the north of the country and its articulation with the changing customary system there (Adoko & Levine, Chapter 5). The next chapter examines the impact on widows’ and orphans’ land rights of the increased spread of HIV/AIDS in Eastern Kenya (Okuro, Chapter 6), while the last of these five case-study chapters addresses women’s land rights in the post-conflict context of extreme resource scarcity in Rwanda (Ansoms & Holvoet, Chapter 7). Women in Eastern Africa are not powerless actors but find creative means to claim and ensure their rights to land, as all five case-study chapters in particular illustrate. One of the broader aims of this book is therefore to offer suggestions as to how women can best be supported in their struggles over land; this is the main focus of the Afterword that has been co-authored by all the contributors. What all authors share is their commitment to women’s land rights, with each individual chapter contributing a detailed and differentiated analysis to the debate on how women’s rights can best be secured in the overarching context of the increasing privatization of land tenure. For while all the contemporary processes of change identified herein have an impact on women’s rights to land, as the different chapters of this book clearly show, it is the formulation and implementation of land tenure reforms which aim primarily at the private registration of land that should be the central concern of all those committed to securing women’s land rights, as it is this which offers the most direct scope for effective action. As the title of this volume deliberately suggests, we are indeed living in an era of privatization; it is therefore in the policy arena itself that we must seek to engage with and influence the gendered impact on land rights of all these processes of change.

Land Tenure in Africa In all African countries, land is still predominantly held under different forms of informal indigenous or customary tenure. Such customary tenure exists alongside the formal systems of common and statute law which were imported by Africa’s former colonial regimes. As Adams and Turner (2006, 6) point out, ‘this legal and tenure dualism tended to reinforce settler interests, simplify and strengthen the roles of traditional authorities, and suppress women’s land rights’. For a long time customary tenure was regarded by researchers – and even more

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so by policy-makers – as being both static and a hindrance to development. These negative perceptions contributed to policies which, throughout the nineteenth and twentieth centuries, ‘failed to accord indigenous and customary occupancy their deserved status as private property interests’ (Alden Wily 2006, 2), thereby helping to establish and maintain a second-class status for customary tenure. Only in the 1990s did customary tenure begin to be recognized as ‘one of the foundational elements of the land laws of all states in Africa. It is not an add-on to received law; indeed, received or imposed law is the add-on. Received law thus needs to be adapted and adjusted to indigenous law, not vice versa’ (McAuslan 2006, 9). Customary tenure is often wrongly referred to as a system, yet socalled ‘customary tenure systems’ have changed substantially over time and are neither static, harmonious nor coherent structures. Thus, while the distinguishing feature of African customary tenure – that it is everywhere socially- and politically-referenced and based – is an unchanging template, customary rules or laws are inherently flexible and dynamic and are better described as indigenous (or local) tenure practices that are subject to change (cf. Alden Wily 2006, pers. comms; Berry 1993; Bruce 1988; 1993; Bruce & Migot-Adholla 1994; Chauveau 1998; Lavigne Delville 1998; Mackenzie 1990; 1998; Peters 1994). These caveats aside, however, the term ‘customary tenure’ is retained in this volume because it is the term that is generally used in African land law and administration. Throughout the twentieth century, customary tenure has responded to a changing environment characterised mainly by population pressure and increasing competition for land (cf. Platteau 2000). Increasing individualization and commoditization of land rights has occurred, and private rights of use and occupancy within customary tenure have become increasingly the norm; such private rights can be very strong and in many societies are definitely able to be held in perpetuity and be traded (e.g. Daley 2005a; 2005b). These processes of commoditization and change have in many cases weakened women’s land rights in Eastern Africa; opportunities for them to buy land are very limited because, as Lastarria-Cornhiel (1997, 1326) has observed, most women enter the market with ‘no property, little cash income, minimal political power, and a family to maintain’. All women are not necessarily losing out from the increasing commoditization of land, but certain groups of women, such as widows, are certainly among those most vulnerable to such processes of change (compare Daley in this volume). On top of this, the HIV/AIDS pandemic leaves growing numbers of women and children behind whose husbands and fathers

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Introduction have sold off family land, frequently without their knowledge, while conflict and post-conflict situations often have negative impacts on women’s land rights too (compare Okuro and Ansoms & Holvoet in this volume respectively). As well as these socio-economic processes of change, women’s rights to land in Eastern Africa have also been negatively affected during the twentieth century by land tenure reforms ‘designed to convert existing customary occupancy into European-derived forms of land holding and to register these on the basis of formal survey’ (Alden Wily 2006, 7). This was pursued most systematically in Kenya, where privatization of land tenure through individual registration and titling was advocated in the 1954 Plan to Intensify the Development of African Agriculture and introduced by British officials in the late 1950s (Swynnerton 1954). However, the goals of agricultural transformation that were set there were not achieved (Palmer 1997, 3) and ‘[F]ifty years on, and with still under half the rural domain titled, it is apparent that conversion has not done away with customary norms in those areas, that titling has not prompted significant mortgaging, and that the security of tenure that widely exists in the farm sector does not derive from the often corrupted registration or the holding of title deeds’ (Alden Wily 2006, 7–8). Instead, land concentration and landlessness have increased, while the practice of registering land in the name of the predominantly male household head caused a further erosion of the marginal land rights many women held under customary tenure (Davison 1987; Mackenzie 1990; Pala 1980; compare NyamuMusembi in this volume). Evidence from other parts of Africa has also demonstrated that formal land titling does not necessarily provide greater security of tenure (e.g. Atwood 1990; Barrows & Roth 1990; Platteau 1996; Yngstrom 1999). To the contrary, where there are multiple and/or derivative rights over land held under customary tenure, titling land to individual household heads is more likely to provide security of land tenure for fewer people, and insecurity of land tenure for more (Lund 2000, 15–18). Titling may also be a source of insecurity if people become liable to pay for services, taxes etc. and ‘distress sales’ increase as a result (Cousins et al. 2006, 28; ‘compare Englert in this volume’). LAND TENURE PRIVATIZATION

Unfortunately, as Daley and Hobley (2005) relate, it has taken a long time for policy-makers to realize the shortcomings of past attempts to privatize land tenure. Although interest in individual registration and

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titling waned a little after the early Kenyan experiment, this was due more to a growing policy emphasis on land redistribution during the 1960s and 1970s, and, by the early 1980s, when Structural Adjustment Programmes (SAPs) came onto the development agenda in Africa, development officials were again enthusiastically promoting the ideas that had guided Kenyan land tenure privatization in the 1950s. The assumption of a linear connection between the introduction of title deeds, higher rates of investment and increased agricultural productivity was renewed with vigour, based on the belief that registered titles and individual private property rights were an essential prerequisite for a dynamic rural sector. Land tenure privatization as the private registration of land – and, more particularly, the narrowing of recognized rights to a single (usually male) person – has thus long been the dominant approach to African land law and administration (Daley & Hobley 2005, 8–13). However, this is only one possible understanding of land tenure privatization. During the 1990s the meaning of the term broadened considerably, such that while titling and registration remain key components of the privatization process, privatization is now no longer considered just as a matter of individualization. Instead, it refers more broadly to the formalization or regularization of land rights via the registration of land interests in whichever context they customarily occur – allowing for spouses, family, clan, village, community or any other customary social formation to be recognized as owners of private land rights (Alden Wily 2006, pers. comms.). As Alden Wily puts it, the basis of land tenure reforms has thus shifted dramatically in that ‘...what actually was to be titled has changed: rights are less to be converted into statutory forms than statutory support given to customary property in its own right’ (2006, 25–6, original italics). Most post-1990 land legislation in Eastern Africa emphasizes the formalization and regularization of land tenure through the titling and registration of existing rights to land, whether those rights be held individually, jointly or collectively; such formalization was the main purpose of titling in both Tanzania’s Land Act and Village Land Act (1999) and in Uganda’s Land Act (1998), although the latter is arguably less effective in recognizing multiple owners of private land rights (Alden Wily 2006, pers. comms). In addition, the Uganda Land Act, and to a lesser extent the Organic Law Determining the Use and Management of Land in Rwanda (2005), include another form of land tenure privatization which is that from the state to citizens (compare Adoko & Levine on Uganda in this volume); this involves the surrender by the state of any tenure interest in the land itself, and specifically of

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Introduction the radical title to land where freehold ownership is allowed, while usually only retaining power over land administration, management and policy-making. A final change observed during the policy shifts of the 1990s concerns the goal of land tenure privatization: titling and registration are now often advocated as a way to secure the land rights of the majority, by formalizing/regularizing their existing rights, instead of (as in the past) mainly as a way to enable indirect land redistribution to the productive minority via the market (Alden Wily 2006, pers. comms). Alden Wily argues that, as a whole, these post-1990 changes ‘suggest that century-long subordination of indigenous land rights and the systems which support them could finally become a thing of the past’ (2006, 25–6). There certainly seems to be a significant change of attitude concerning the position of customary tenure in modern land policies and laws, yet continuity between colonial and contemporary thinking still manifests itself in the way that these are frequently interpreted and implemented by officials (Daley & Hobley 2005). Moreover, in much recent land policy-making and legislation, ‘[T]he importance of land markets and individual tenure as the essential ingredients for agricultural productivity and growth continue to be underlined’ (Razavi 2006, 6). In the opening chapter of this volume, Breathing Life into Dead Theories about Property Rights in Rural Africa, Celestine Nyamu-Musembi analyses how it could happen that after a brief period of retreat (from the mid-1990s to about 2000) this titling for the market orthodoxy has gained new strength – years after its negative impact on the security of land rights for women had been demonstrated in Kenya. She traces this phenomenon to the work of Hernando de Soto, who has recently, and to much fanfare, renewed the argument that formally registered property rights open the way to the collateralization of land assets and provide the basis for the creation of capital and economic progress – thereby leading him to conclude that there is a need for land registration to convert poor people’s assets from ‘dead capital’ into ‘live capital’ (de Soto 2000). Drawing on fieldwork she carried out in Kenya, Nyamu-Musembi examines the relevance of de Soto’s ideas in the African context and especially points out their blind side – the gendered impact (at least in practice) of the privatization of land tenure. Despite (or perhaps because of) its tendency to oversimplification of these complex issues, de Soto’s work has had a tremendous influence on donor thinking, including on the World Bank – a key player in debates on the privatization of land tenure – as recently reflected in its land policy research report, Land Policies for Growth and Poverty Reduction

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(World Bank 2003). On the whole, this report marks a step forward in the Bank’s thinking on land tenure, away from its past emphasis on individualization. However, while it acknowledges the flexibility of customary tenure and its potential to adapt to changing circumstances, the main ideas promoted by the Bank on the value of titles as collateral for loans, and thus the likely beneficial impact of land tenure privatization (through registration and titling) on credit markets, have changed little over time (Daley & Hobley 2005, 14–15; Palmer 2002a; 2002b; Whitehead & Tsikata 2003, 83). It therefore remains to be seen how significant the post-1990s changes in land tenure privatization policies noted above will prove to be. In any case, the impact of these changes on women’s land rights – which, as already emphasized in this Introduction, tend to be relatively more fragile and marginal than men’s land rights, both under customary tenure and as affected by the various contemporary processes of change identified herein – very much depends on how the current wave of land tenure reforms are formulated and, even more so, on how they are implemented.

Women’s Land Rights The rationale that underpins a gendered analysis of land rights is securely grounded. Whereas gender equality in land rights should not be considered as a panacea to resolve gender equality more broadly, there is now a vast literature depicting the beneficial effects of secure and independent land rights on women’s empowerment and welfare, as well as on the welfare of their families and of society as a whole. Particularly convincing is the empirical evidence and theoretical modelling on intra-household resource allocation, with independent access to and control over land having clearly been shown to raise women’s bargaining power in intra-household negotiations (Agarwal 1994; cf. Hart 1995; Sen 1990). This, in turn, is often associated with increasing levels of welfare for different household members (e.g. Blumberg 1991; Kennedy & Peters 1992; Phipps & Burton 1998; Thomas 1997), but it is here, and as a result of this, that the argument for women’s land rights becomes confused and indeed weakened. That women usually contribute more to the welfare of their families than men, and supposedly attribute greater importance to food security than men, are often seen as positive characteristics that help them qualify for more secure land rights – on the grounds that they will then use their land to the greater economic benefit of their families. However, the argument that more

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Introduction secure land rights for women are of value because of this anticipated impact on poverty reduction is fundamentally unsatisfactory (Englert 2003, 78). Nor is there even a need to take refuge in such economic and social reasons to justify secure and independent land rights for women; the argument is strong enough when articulated solely in terms of gender equality and the impact of more secure land rights on women’s empowerment (Agarwal 1994). Relying on their impact on household welfare as a justification only serves to perpetuate negative perceptions of women’s inferior status and their somehow lesser position, vis-a-vis men, as human beings and individuals who should be due equal rights and equality of treatment under the law in their own right. Sadly, however, policy-makers remain more likely to be impressed by the welfare gains that accrue from recognizing women’s land rights. In its recent land policy research report, for example, the World Bank’s references to women’s land rights are almost always made by stressing the broader social benefits to be expected, as in, for a typical example: ‘Control of land is particularly important for women, whose asset ownership has been shown to affect spending, for instance, on girls’ education’ (2003, xx, xxvi–xxvii). Thus instead of talking about the benefits for women, the Bank focuses here on the benefits which society and the state (and donors like the Bank itself ) are expected to derive from giving women rights to land – in this case the benefit would be in the form of reduced donor and state spending on girls’ education (Englert 2005, 16; Manji 2003). In the second chapter of this volume, ‘Go Home and Clear the Conflict’ – Human Rights Perspectives on Gender and Land in Tanzania, Ingunn Ikdahl argues strongly for an alternative rights-based approach to justifying land rights for women. A rights-based approach provides a better basis for assessing the impact of customary inheritance practices and the reform of property rights on women’s access to land, and for arguing that more secure land rights for women are of value in themselves. Ikdahl also considers the relevance of a human rights framework for understanding situations marked both by differences between men and women and between different groups of women. While she makes a normative case, Ikdahl’s analysis is linked very much to her field research in Tanzania, which serves as a practical example of the challenges and possibilities for the implementation of women’s human rights in concrete and complex contexts. Since the late 1940s a number of international laws have specifically addressed the issue of women’s rights to land and property, as has national legislation in many countries, yet ‘scholars and practitioners

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have come to recognize the generally limited effectiveness of formal legislation regarding property rights’ (Lastarria-Cornhiel 2006, 5). This recognition has in turn fed into the post-1990 policy emphasis on the formal recognition and utilization of customary institutions and authorities in African land law and administration described above. However, there are questions to be asked about the extent to which the recognition of customary land tenure can have a positive effect on women’s land rights, as customary rights and institutions are often not equitable and are indeed often outright discriminatory; the inherent gender biases of customary tenure must therefore not be overlooked (Tsikata 2003; Whitehead & Tsikata 2003; Woodhouse 2003). On the other hand, the new land laws of Uganda, Tanzania and Rwanda do all contain important statutory provisions with the potential to increase the security of women’s rights to land, such as joint-titling, consent clauses and the stipulation of equality between men and women in land matters, although there remain questions to be asked about whether such provisions can actually be implemented. A key issue for those concerned to protect women’s land rights is thus to consider ‘when and where (spatially and institutionally) are formal and customary tenure systems appropriate in a specific context’ (Lastarria-Cornhiel 2006, 7). PURSUING WOMEN’S LAND RIGHTS IN PRACTICE

As Razavi (2006, 2) points out, it is ‘too simplistic’ to consider recent and diverse experiences of land tenure reform in Eastern Africa as being driven from the top down by policy-makers; the drive for land tenure reform has also come from women themselves. Women’s rights activists and gender-progressive NGOs,2 for example, were directly involved in the 1990s debates which led to the formulation of the new land laws in Tanzania and Uganda, and they have also been involved in more recent land debates in Rwanda and Kenya (cf. Manji 2006, 99 ff.). In Tanzania, the Gender Land Task Force favoured registration of land rights as a means to combat the gender discrimination that most women suffer within customary tenure, particularly from inheritance practices, and activists lobbied successfully for women to be able to hold land titles in their own right or to be registered on a joint title together with their husband (Tsikata 2003; Englert 2003; Manji 1998). Similarly, in Uganda much of the NGO, parliamentary and external adviser commentary on the draft land law in the late 1990s dealt directly with gender provisions. More generally, the umbrella civil society lobbying group, the Kenya Land Alliance, includes gender-progressive NGOs and activists promoting women’s rights to land, while in Rwanda gender-progressive NGOs are key members of the LandNet alliance.

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Introduction Despite their many successes, gender activists have not achieved everything they aimed for during the recent processes of formulating land tenure reforms in Eastern Africa. In Uganda, for example, what became known as the ‘lost amendment’, dealing with land ownership rights between spouses, did not appear in the published 1998 Land Act and argument long continued over what happened to it in the final stages of parliamentary debate; the Land (Amendment) Act, 2004, subsequently broadened the definition of spousal land but still did not make adequate provision for the full co-ownership for which activists had fought (McAuslan 2003, 10; Whitehead & Tsikata 2003, 102; ULA & AAIU n.d., 9, cf. Manji 2006, 105, 108, 110). However, the battle for women’s rights to land does not in any case end with the enactment of land laws which provide for equal rights to women and men: rather, it begins anew with the challenges of implementation. What should therefore concern us as land tenure reform moves forward is when statutory provisions to increase women’s security of land tenure are not implemented, and when national and local governments practice gender discrimination in the face of nondiscriminatory legislation. A gender-progressive statutory framework creates an enabling environment, setting benchmarks and underscoring the legal legitimacy upon which women both individually, as well as in groups, may base their claims (Razavi 2003). However, as already suggested in this Introduction, ‘[S]ome feminist lawyers and legal rights advocates recognise the limitations of law as a vehicle for social change, acknowledging that there may be enormous resistance to equitable practices’ (Razavi 2006, 4), and it is widely accepted that the introduction of formal land law does not replace customary practices and that the importance of other institutions which influence land rights must not be underestimated (e.g. Jacobs 2001; Lastarria-Cornhiel 1997; Lavigne Delville 1998; Meinzen-Dick et al. 1997 Razavi 2003; Whitehead & Tsikata 2003;). What is thus needed is a change in the culture of practice – something far more difficult to achieve than law reform. In practice, as noted above, land rights in Africa are usually governed by both formal (statutory) and informal (customary) rules, both of which are subject to continual adaptation and reinterpretation as circumstances change; they may mutually interact and reinforce each other, but there may also be competition between different institutional arrangements in a situation of ‘plurality of norms’ (Chauveau 1998, 70). In this situation of legal and institutional pluralism, actors have a degree of choice in pursuing their land rights through the rules that they think might advance their interests best, and in some cases

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this has been shown to help women secure their rights to land (e.g. Mackenzie 1990; Merry 1982). On the other hand, this process of mutual interaction and reinterpretation of formal and customary tenure also has the potential for very negative consequences for women’s rights to land (compare Adoko & Levine in this volume). An alternative and, perhaps, more promising approach might therefore be for policymakers and legislators to work towards moving away from legal and institutional pluralism by creating formal systems of land tenure that are more reflective of actual practices on the ground – especially if this is simultaneously accompanied by efforts to improve gender relations and gender equity and tackle gender discrimination within particular societies as a whole.

Case Study Contributions The five case studies presented in this volume each provide evidence of some of the many challenges to securing land rights for women in Eastern Africa. The collective value of these case studies lies in the contributions they make to finding a way forward, elaborated on in the Afterword, Securing Women’s Land Rights, which has been co-authored by all the book’s contributors. This Afterword suggests the best ways forward in securing land rights for women and points at the importance of acting at all levels of land policy-making and land law formulation and implementation: international, national and local. In Chapter 3, Gender, Uenyeji, Wealth, Confidence and Land in Kinyanambo, Elizabeth Daley focuses on the impact of broad processes of commoditization, rural–urban change and evolving local land registration practices on women’s rights to land, and argues that the burgeoning land market she encountered in Mufindi District, Tanzania, is not by itself directly eroding women’s land rights, but instead has a negative indirect impact through privileging those who have the money to buy land. There are a range of factors which mediate women’s success in securing their land rights, including age, marital status, education, knowledge and, above all, as Daley observes, confidence. She argues that by empowering women with the confidence to know, protect and claim their rights to land, they can be best supported through current processes of economic and social change. In Chapter 4, Changing Land Rights and Gendered Discourses, Birgit Englert discusses the changing discourse on land rights in the context of a changing matrilineal/matrilocal framework to show how women as well as men are taking advantage of the flexibility of customary

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Introduction tenure to secure their own and their children’s rights to land. Drawing on her fieldwork in Morogoro Region, Tanzania, she then explores gendered attitudes towards credit and the use of land as collateral and notes that risk aversion is especially high among women, who do not want to risk losing the land which provides them and their family with a livelihood. Yet while small loans can be obtained without mortgaging registered land, they can only rarely be used productively in a context of poor infrastructure – one of the main constraints to smallholder farming in the area. In Chapter 5, Falling Between Two Stools: How Women’s Land Rights are Lost Between State and Customary Law, Judy Adoko and Simon Levine focus on the implementation of the Uganda Land Act of 1998. On the basis of research carried out in Apac District in Northern Uganda, they argue that the Ugandan Government has been unwilling to take women’s protection seriously: enforcement of the protection offered to women by legislation, first and foremost in the consent clause, is not happening and women are especially vulnerable to the manipulation of legal codes. Adoko and Levine argue that while the Land Act recognized customary tenure for the first time, the policy intention remains to promote individualization of land tenure and to facilitate the growth of a land market as a way towards agricultural development and modernization. They point out that conceptions about customary tenure which do not relate to the reality on the ground are widespread and argue that the continual policy disinterest in customary tenure is a missed opportunity to reverse the trend in landlessness of women and children, as customary tenure still has a role to play in providing women with secure rights to land. In Chapter 6, Struggling with In-Laws and Corruption, Samwel Ong’wen Okuro discusses the impact of HIV/AIDS on the land rights of widows and orphans in Kenya, drawing on his research in Kombewa Division, in the east of the country. Besides often being accused of having infected the deceased, widows are often subject to corrupt practices in the land market. However, as Okuro points out, widows and orphans in Kombewa pursue a variety of strategies to safeguard their land rights – among which women’s groups play a central role. Yet despite a number of encouraging accounts of such activities, violations of widows’ and orphans’ property rights continue on a wide scale. This causes the author to argue in favour of a more proactive sensitization campaign that involves traditional institutions as well as the provincial administration, local community-based organizations and nongovernmental organizations.

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In Chapter 7, Women and Land Arrangements in Rwanda, the last of the five case studies presented in this book, An Ansoms and Nathalie Holvoet provide a gendered analysis of access to natural resources in a post-conflict context of extreme resource scarcity As Ansoms and Holvoet point out, policy measures do not operate within a genderneutral vacuum but instead are embedded in existing gendered social relations that similarly embed customary tenure and which influence outcomes for women’s land rights on the ground. Using data from field research on livelihoods strategies and social relations in the two former provinces of Gikongoro and Gitarama, the authors argue that while the development of a land law may be an important additional forum for land management, it remains to be seen how various groups will be able to use this forum to secure their own land rights in practice. In sum, the analysis presented herein of what is happening on the ground points up once more the continuing invalidity of some of the more common assumptions about women’s rights to land in Africa, and the limits to securing them through policy and legislation alone. The contributors to this volume hope that it will fulfil its aim of offering a nuanced picture of how the issues of privatization, gender relations and land rights are currently interacting in Eastern Africa, and that the differentiated picture which this volume presents will provide fresh inspiration to all those who are in a position to change the situation for the better.

Notes 1

This Workshop was organized by Kaori Izumi (FAO) and Robin Palmer (OXFAM GB). It brought together activists and donors as well as researchers working on or lobbying for women’s rights to land. 2 The term ‘gender-progressive’ has been used by Agarwal (1994, 62; 1997, 11) to depict NGOs or groups ‘whose activities are centrally or partially aimed at reducing gender inequities. ‘Gender-retrogressive’ implies the opposite’.

References Adams, M. and S. Turner, 2006. Legal Dualism and Land Policy in Eastern and Southern Africa. CAPRI Policy Brief. Agarwal, B., 1994. A Field of One’s Own: Gender and Land Rights in South Asia. Cambridge: Cambridge University Press.

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Introduction —— 1997. Bargaining and Gender Relations: Within and Beyond the Household. Food Consumption and Nutrition Department Discussion Papers No. 27. Washington, DC: International Food Policy Research Institute. Alden Wily, E., 2006. Land Rights Reform and Governance in Africa. How to make it in the 21st Century. Discussion Paper. United Nations Development Programme (UNDP). Atwood, D., 1990. ‘Land Registration in Africa: The Impact on Agricultural Production’. World Development, Vol. 18/5, 659-71. Barrows, R. and M. Roth, 1990. ‘Land Tenure and Investment in African Agriculture: Theory and Evidence’. The Journal of Modern African Studies, Vol. 28/2, 265–97. Berry, S., 1993. No Condition is Permanent – The Social Dynamics of Agrarian Change in Sub-Saharan Africa. Madison, WI: University of Wisconsin Press. Blumberg, R.L., 1991. ‘Income Under Female versus Male Control’, in Blumberg, R.L. (ed.), Gender, Family and Economy. The Triple Overleap. London: Sage. Bruce, J., 1988. ‘A Perspective on Indigenous Land Tenure Systems and Land Concentration’, in Downs, R. and S. Reyna, (eds), Land and Society in Contemporary Africa. Hanover, NH: University Press of New England, for University of New Hampshire. —— 1993. ‘Do Indigenous Tenure Systems Constrain Agricultural Development?’, in Bassett, T. and D. Crummey (eds), Land in African Agrarian Systems. Madison, WI: University of Wisconsin Press. Bruce, J. and S.E. Migot-Adholla, 1994. Searching for Land Tenure Security in Africa. Iowa: Kendall Hunt. Chauveau, S.P., 1998. ‘La logique des systèmes coutumiers’, in Lavigne Delville, P. and J.P. Chauveau (eds), Quelles politiques foncières pour l’Afrique rurale? Réconcilier pratiques, légitimité et légalité. Paris: Karthala. Cousins, B., Cousins, T., Hornby, D., Kingwill, R., Royston, L. and W. Smit, 2006. Will Formalizing Property Rights Reduce Poverty in South Africa’s ‘Second Economy’? Questioning the Mythologies of Hernando de Soto. CAPRI Policy Brief Daley, E., 2005a. ‘Land and Social Change in a Tanzanian Village 1: Kinyanambo, 1920s – 1990’. Journal of Agrarian Change, Vol.5/3, 363-404. Daley, E., 2005b. ‘Land and Social Change in a Tanzanian Village 2: Kinyanambo in the 1990s’. Journal of Agrarian Change, Vol.5/4, 526-72. Daley, E. and M. Hobley, 2005. Land: Changing Contexts, Changing Relationships, Changing Rights. October 2005. DFID. www.oxfam.org.uk/resources/learning/landrights/ downloads/land_changing_contexts _relationships_rights.rtf (last accessed Jauary 2008). Davison, J., 1987. ‘”Without Land We Are Nothing”: The Effect of Land Tenure Policies and Practices upon Rural Women in Kenya’. Rural Africana, Vol. 27, Winter 1987, 19-33. de Soto, H., 2000. The Mystery of Capital. Why Capitalism Triumphs in the West and Fails Everywhere Else. London: Black Swan. Englert, B., 2003. ‘From a Gender Perspective: Notions of Land Tenure Security in the Uluguru Mountains, Tanzania.’ Journal für Entwicklungspolitik / Austrian Journal of Develop– ment Studies, 1/2003, 75-90 —— 2005. Land Rights and The World Bank – an Analysis of the Policy Research Report On Land (PRR 2003). Occasional Paper No. 03, Occasional Papers Series, Department of African Studies, University of Vienna. www.univie.ac.at/afrikanistik/homepageneu/Occasional/ENGLERT_Occasional% 2003_Juli%202005.pdf (last accessed January 2008). Englert, B. and R. Palmer, 2003. Women’s Land Rights in Southern and Eastern Africa. A Short Report on the FAO/Oxfam GB Workshop held in Pretoria, South Africa, 17–19 June 2003. www.oxfam.org.uk/resources/learning/landrights/downloads/wlrsea_short_report.rtf (last accessed January 2008). Hart, G., 1995. ‘Gender and Household Dynamics: Recent Theories and Their Implica– tions’. In Quibria, M. (ed.), Critical Issues in Asian Development. Oxford: Oxford University Press. Jacobs, S., 2001. Land Reform: still a goal worth pursuing for rural women? Paper to Conference of

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the Development Studies Association on Different Poverties, Different Policies. 10th–12th September, 2001, University of Manchester www.oxfam.org.uk/resources/learning/landrights/downloads/pursuingrtf.rtf (last accessed January 2008). Kennedy, E. and P. Peters, 1992. ‘Household Food Security and Child Nutrition: the Interaction of Income and Gender of the Household Head’. World Development, Vol. 20/8, 1077–85. Lastarria-Cornhiel, S., 1997. ‘Impact of Privatization on Gender and Property Rights in Africa’. World Development, Vol. 25, No. 8, 1317–33. —— 2006. Women’s Access and Rights to Land: Gender Relations in Tenure. Issues Paper prepared for the Advisory Group Working Meeting organized by International Development Research Centre (IDRC) and International Land Coalition (ILC). Lavigne Delville, P., 1998. ‘Privatiser ou sécuriser’, in Lavigne Delville, P. and J.P. Chauveau (eds), Quelles politiques foncières pour l’Afrique rurale? Réconcilier pratiques, légitimité et légalité. Paris: Karthala. Lund, C., 2000. African Land Tenure: Questioning Basic Assumptions. Drylands Issues Papers No.100. London: IIED. Mackenzie, F., 1990. ‘Gender and Land Rights in Murang’a District, Kenya’. Journal of Peasant Studies, Vol. 17/4, 609–43. —— 1998. Land, Ecology and Resistance in Kenya, 1880–1952. Edinburgh: Edinburgh University Press, for The International African Institute, London. Manji, A., 1998. ‘Gender and the politics of the land reform process in Tanzania’. Journal of Modern African Studies, Vol. 36/4, 645–67. —— 2003. ‘Remortgaging Women’s Lives: The World Bank’s Land Agenda in Africa’. Feminist Legal Studies, Vol. 11/2, 139–62. —— 2006. The Politics of Land Reform in Africa. From Communal Tenure to Free Markets. London; New York: Zed Books. McAuslan, P., 2003. A Narrative on Land Law Reform in Uganda. Paper presented at Lincoln Institute Conference on ‘Comparative Policy Perspectives on Urban Land Market Reform in Eastern Europe, Southern Africa and Latin America’. Lincoln Institute of Land Policy Conference Paper. www.lincolninst.edu/pubs/pub-detail.asp?id=809 (last accessed January 2007) —— 2006. Legal Pluralism as a Policy Option: Is it Desirable? Is it Doable? CAPRI Policy Brief. Meinzen-Dick, R.S., Brown, L.R., Feldstein, H.S., and A.R. Quisumbing, 1997. ‘Gender, Property Rights, and Natural Resources’. World Development, Vol. 25/8, 1303–15. Merry, S., 1982. ‘The Articulation of Legal Spheres’, in Hay, M. and M. Wright (eds), African Women and the Law: Historical Perspectives. USA: Boston University African Studies Centre. Pala, A.O., 1980. ‘Daughters of the Lakes and Rivers: Colonization and the Land Rights of Luo Women’, in Etienne, M. and E. Leacock (eds), Women and Colonization – Anthropological Perspectives. New York: Praeger Publishers. Palmer, R., 1997. Introduction to Contested Lands in Southern and Eastern Africa: A Literature Survey. Oxfam Working Paper. October 1997. http://www.oxfam.org.uk/what_we_do/ issues/ livelihoods/landrights/downloads/contint.rtf (last accessed January 2008) —— 2002a. A Guide To, and Some Comments on, The World Bank’s Policy Research Report (PRR), ‘Land Policy for Pro-Poor Growth and Development’ (sic). December 2002. http://www.oxfam. org.uk/what_we_do/issues/livelihoods/landrights/downloads/guideprr.rtf (last accessed February 2007) —— 2002b. A short reference note on the World Bank’s Regional Workshop on Land Issues in Africa. Kampala, Uganda. April 29–May 2, 2002. http://www.oxfam.org.uk/resources/ learning/landrights/downloads/noteafwb.rtf (last accessed January 2008). Peters, P., 1994. Dividing the Commons: Politics, Policy and Culture in Botswana. Charlottesville and London: University Press of Virginia. Phipps, S.A. and P.S. Burton, 1998. ‘What’s Mine Is Yours? The Influence of Male and Female Incomes on Patterns of Household Expenditure’. Economica, Vol. 65, 599–613. Platteau, J.-P., 1996. ‘The Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment’. Development and Change, Vol. 27, 29–86.

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Introduction —— 2000. Institutions, Social Norms, and Economic Development. Amsterdam: Harwood Academic Publishers. Razavi, S., 2003. ‘Introduction: Agrarian Change, Gender and Land Rights’. Journal of Agrarian Change, Vol. 3/1-2, 2-32. —— 2006. Agrarian Change, Gender and Land Rights. Paper for International Conference on ‘Land, Poverty, Social Justice and Development’, Institute of Social Studies (ISS), The Hague, 9-14 January 2006. http://www.iss.nl/ navFrame/frame2.html?content=/land/ conference/document/index.html (last accessed February 2007) Sen, A.K., 1990. ‘Gender and Cooperative Conflicts’. In Tinker, I. (ed.), Persistent Inequalities. Oxford: Oxford University Press. Swynnerton, R. (compiler), 1954. A Plan to Intensify the Development of African Agriculture in Kenya. Nairobi: Government Printer. Thomas, D., 1997. ‘Incomes, Expenditures, and Health Outcomes: Evidence on Intrahousehold Resource Allocation’, in Haddad, L., Hoddinott, J. and H. Alderman (eds), Intrahousehold Resource Allocation in Developing Countries. Models, Methods and Policy. Baltimore and London: The John Hopkins University Press. Tsikata, D., 2003. ‘Securing Women’s Interest within Land Tenure Reforms: Recent Debates in Tanzania’. Journal of Agrarian Change, Vol. 3/1–2, 149–83. Uganda Land Alliance (ULA) and Action Aid International Uganda (AAIU), n.d. Biting the Feeding Hand – Voices of Women on Land. Kampala: ULA & AAIU. Whitehead, A. and D. Tsikata, 2003. ‘Policy Discourses on Women’s Land Rights in SubSaharan Africa: The Implications of the Re-Turn to the Customary’. Journal of Agrarian Change, Vol. 3/1–2, 67–112. Woodhouse, P., 2003. ‘African Enclosures: a Default Mode of Development’. World Development, Vol. 31/10, 1705–20. World Bank, 2003. Land Policies for Growth and Poverty Reduction. A World Bank Policy Research Report. Oxford: Oxford University Press and the World Bank. Yngstrom, I., 1999. Gender, Land and Development in Tanzania: Rural Dodoma, 1920–1996. Unpublished DPhil Dissertation: University of Oxford.

Thanks As editors we would like to thank all the contributors to this volume for the interest they have shown in this project and the time and energy they have invested to realise it. We would like to express special thanks to Robin Palmer who has been a source of inspiration to both of us since we first started to work on African land tenure. For this volume he has not only contributed a highly appreciated Foreword but has also assisted with the editing process and provided important moral support throughout. Thank you! Many thanks go also to Liz Alden Wily for her invaluable comments on an earlier draft of this volume, especially this Introduction.

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One Breathing Life into Dead Theories about Property Rights in Rural Africa Lessons from Kenya CELESTINE NYAMU-MUSEMBI

Introduction1 Presumption of a direct causal link between the formalization of property rights and economic productivity is back on the international development agenda. Belief in such a direct causal relationship had been abandoned in the early 1990s, following four decades of land tenure reform experiments that failed to produce the anticipated efficiency results (Bruce & Migot-Adholla 1994; World Bank 2003). The work of Hernando de Soto has provided the springboard for this revival (de Soto 2000). De Soto argues that formal property rights hold the key to poverty reduction by unlocking the capital potential of assets held informally by poor people. The premise of de Soto’s argument is that the poor inhabitants of the non-Western world have failed to benefit from capitalism because of their inability to produce capital despite holding vast assets (ibid., 5). The key to transforming assets into capital lies in instituting a system of property rights and information on property that is applied nationally and is ‘legible’ to outsiders. Instead of a national rationalized formal system of law and information, property relations in developing countries and former socialist states are governed through webs of informal norms based on trust, which do not extend beyond narrow local circles (ibid., 6). As a result most assets are not adequately documented, and therefore ‘cannot readily be turned into capital, cannot be traded outside of narrow local circles where people know and trust each other, cannot be used as collateral for a loan and cannot be used as a share against an investment’ (ibid.). Formal title would enable all these, facilitate enforcement of property transactions and

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Breathing Life into Dead Theories about Property Rights establish an accountable address for collection of taxes and debts and thus enable delivery of public utilities (ibid., 7, 59). By contrast, the West benefits from capitalism because over time, disparate micro-rules on property were assembled into one coordinated system of formal property rights thus overcoming the constraints of legal pluralism (ibid., 52). Unless the Third World can do what the West did a large majority of its people will continue to be ‘trapped in the grubby basement of the pre-capitalist world’, holding dead assets that cannot be translated into capital (ibid., 55). Formal title breathes life into dead assets and transforms them into capital. De Soto’s argument has found favour with development agencies across the political spectrum: from neo-liberal USAID and World Bank, to social democrat Nordic governments spearheading a property rights reform agenda in the UN Economic Commission for Europe. For the left the notion of ‘property rights for poor people’ or ‘pro-poor property rights’ wraps a social justice mantle around an agenda that is otherwise more closely associated with a conservative anti-redistribution agenda. For the right, the idea of unlocking poor people’s own assets to alleviate poverty is consistent with a lean state that merely facilitates market interaction by putting in place the necessary legal and institutional framework, rather than engaging in redistribution. Little wonder then, that a High Level Commission for the Legal Empowerment of the Poor co-chaired by Hernando de Soto and hosted jointly by the UN Economic Commission for Europe and the United Nations Development Programme (UNDP) has the support of several governments rich and poor alike, and has taken off notwithstanding protests from NGOs about lack of representation of poor people’s movements.2 What has this got to do with East Africa? A lot. For one thing, Tanzania, which is represented on the High Level Commission, has joined the list of countries that have engaged de Soto’s Institute for Liberty and Democracy (ILD) to design and implement formalization programmes.3 But discussion of those programmes is not our present subject matter. Of particular concern is the manner in which de Soto has breathed life into previously discredited theories on land rights, land tenure reform and efficiency, and enabled the current debate to proceed as though the negative lessons learned from African experiments over the last four decades never happened. Concern is heightened by the fact that while at times it is clear that de Soto is writing within the context of urban slums, at other times he writes as if making a general argument for formalization of property rights as the route to economic empowerment of all poor people. Those who have seized upon his work and popularized it in influential media are even

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less careful to make this contextual distinction.4 It is therefore necessary to pause and examine the implications of his prescriptions for formalization of property rights in the context of rural land in Africa.5 De Soto’s justifications of formal title do not differ much from justifications that were advanced for ambitious land tenure reforms in Kenya in the 1950s. Introduction of formal title in the African areas was seen as the key to solving problems of land degradation and improving agriculture by providing farmers with security of tenure that would create incentives for further investment in the land, transforming the African into ‘economic man’: He [the African] must be provided with such security of tenure through an indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security against such financial credits as he may wish to secure from such sources as may be open to him [...]. (Swynnerton 1954; my emphasis)

Such thinking exhibits five shortcomings which also manifest themselves in de Soto’s argument: 1. Narrow construction of legality to mean only formal legality. Legal pluralism is equated with extra-legality. This narrow construction of legality, combined with a social evolutionist bias results in a normative assumption that formal legal title must replace informal social norms in order for property systems to function efficiently; 2. There is an underlying social evolutionist bias that presumes inevitability of the transition to private (conflated with individual) ownership as the destiny of all societies; 3. The presumed link between formal title and access to credit facilities has not been borne out by empirical evidence; 4. Markets in land are understood narrowly to refer only to ‘formal markets’; 5. The argument ignores the fact that title spells both security and insecurity. This chapter will explore each of these shortcomings, relating them to both past and contemporary arguments for formalization of property systems, substantiating the discussion with empirical findings from research by the author in Eastern Kenya, and secondary literature based on experiences elsewhere. The empirical research was conducted in Makueni district between June 1998 and January 1999. The data comprises a village level survey with 111 respondents (49 women and 62 men) by means of in-depth semi-structured interviews, interviews with

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Breathing Life into Dead Theories about Property Rights local administrators and district-level land officials, clan leaders and women’s groups’ leaders, as well as observation of dispute proceedings and review of land records. The research is discussed in more detail elsewhere (Nyamu 2000).

Narrow Construction of Legality The only real choice for the governments of these nations is whether they are going to integrate those resources into an orderly and coherent legal framework or continue to live in anarchy. (De Soto 2000, 27)

According to this view, the absence of formal legality means anarchy. The existence of plural informal legal orders (legal pluralism) is equated with extra-legality, meaning being outside of the law. De Soto therefore uses ‘legality’ when he really means formal legality. By posing the choice as one between a formal property system and anarchy de Soto reveals an apparent internal contradiction in his own argument: while his work shows how central the informally regulated sector is to the economies of non-Western countries, he at the same time discounts the ordering force of informal legality. Local informal norms and formal law are presented as mutually opposed: the former as politicized and anarchic, and the later as impersonal and orderly (de Soto 2000, 53). Yet informal legality is an enduring feature of property relations everywhere including the West which, according to de Soto, has successfully replaced these multiple informal orders with one orderly and coherent legal framework where neighbourhood relationships or local arrangements no longer play a role in property relations (ibid.).6 The messiness of informality continues to intrude even in the US to render land titles much more ambiguous than de Soto admits, making costly title insurance a mandatory feature of land sales (Hendrix 1995). Kenya’s Registered Land Act embodies the legal-centric myth when it states that: ‘Except as otherwise provided in this Act, no other written law and no practice or procedure relating to land shall apply to land registered under this Act so far as it is inconsistent with this Act’ (section 4). The social reality, however, is different. Although the official idea of ownership anchored on formal title does exist in some form, it is not the defining feature of property relations. It coexists with, and is constantly in tension with broader and dynamic social processes and institutions that shape property relations by constantly balancing between various competing claims and values, rights and obligations.

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Justifications of private title over-value the role of formal state institutions as the anchor for property rights. Much as the legal-centric view would like to present property rights as simply ‘juridical constructs enforced by the centralized state’ (Firmin-Sellers & Sellers 1999, 1116), the legitimacy of property rights ultimately rests on social recognition and acceptance. Social institutions such as family networks and locally based dispute resolution processes play a much more central and immediate role in day-to-day interaction. When formal title is introduced it does not drop into a regulatory vacuum; it finds itself in a dynamic social setting where local practices are continually adapting to accommodate competing and changing relations around property. In these day to day local practices, the meaning of formal title gets transformed through the informal rules that people develop in their land relations. These informal rules and the concomitant expectations they produce become the immediate points of reference in people’s land relations, more often than not relegating the formal laws and institutions to a marginal role, or modifying them to suit the reality of their lives. Experience in Eastern Kenya illustrates this. The area in which I conducted research has sections that were titled in 1969/70, and sections that were titled in the mid-1980s. Formal title has therefore been in this area for periods ranging from ten to 30 years. One statement that kept recurring both among land officials and local administrators, as well as among people I interviewed was that one advantage that formal title had brought about was a reduction in boundary disputes, as these had become easier to solve. On further inquiry it emerged that a set procedure had emerged for dealing with boundary disputes: on an agreed date each of the disputing parties would bring two witnesses (often other neighbours), and the chief or assistant chief would attend.7 Each of the disputing parties would then be required to identify the spot he/she claims to be the boundary. A centre-point between the two disputed spots would then be identified. From this centre-point a distance of three paces in the direction of each party’s piece of land is measured and marked out, resulting in a strip six paces wide. This strip is marked off as a buffer zone between the two pieces of land. Each party agrees to fence off his/her land leaving this buffer in between to avoid further disputes. They sign an agreement to this effect, which is witnessed by their respective selected witnesses, and stamped by the chief or assistant chief. The procedure stipulated in section 21 of the Registered Land Act is far from this local arrangement. The Registered Land Act requires that in the event of a boundary dispute, the parties shall make a request

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Breathing Life into Dead Theories about Property Rights to the Registrar of Lands to make a site visit, bringing along the official map showing the boundaries demarcated at registration. Among the people I interviewed not a single person had used this statutory procedure, or knew of anyone who had. Apart from the obvious reasons of cost and avoidance of lengthy bureaucratic procedures, the reality of unregistered sub-divisions and transfers that have taken place since the initial official demarcation of boundaries in 1969/70 or the mid-1980s have rendered the registrar’s official information obsolete. Similarly in dealing with succession or inheritance it is family and clan procedures that apply, backed up when necessary by local administrators (Nyamu 2000; Nyamu-Musembi 2002a). Therefore even though people reflexively associated orderly resolution of property disputes with formal title, the formal property system cannot take credit for this order. The only official ‘rubber stamp’ present is that of the chiefs or assistant chiefs who apply a mixture of the community norms in which they are embedded and their own understanding of what would be viewed as officially acceptable by their superiors. A property system is a social system and it takes shape according to the cultural context in which it is rooted. The content and shape of formal title varies with local context, and can be very different from what the officials and proponents of formalization have in mind. Thus, given the reality of legal pluralism, to argue that formalization of title yields an efficiently functioning property system is to make a hollow claim.

The Social Evolutionist Bias The lack of legal property thus explains why citizens in developing and former communist nations cannot make profitable contracts with strangers, cannot get credit, insurance or utility services: they have no property to lose ... People with nothing to lose are trapped in the grubby basement of the pre-capitalist world. (De Soto 2000, 55)

De Soto’s work brings a nineteenth century idea back into popular discourse: that formal private ownership of property carries with it the mark of civilized progress (‘efficiency’ in present-day terminology). He digs into the history of property relations in pre-industrial revolution England and pre-nineteenth century United States and suggests that this historical reality is a snapshot of present-day property relations in the Third World. In order for the Third World to make the progress that the West has made, it has much to learn from the West’s experience of consolidation of a formal property system (ibid., 158–9). Although de Soto is careful to mention that he is not calling for slavish

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imitation of the US transition, he leaves no doubt as to a shared destination. De Soto presumes the inevitability of transition to formal private ownership as the universal route to efficiently functioning property systems. Whether wittingly or unwittingly, the simple dichotomization between capitalist and pre-capitalist (not non-capitalist) property relations, and de Soto’s juxtaposition of contemporary Third World realities with historical realities in the West allies him with nineteenth and early twentieth century social evolution theories. These theories placed all societies on an evolutionary ladder on the basis of criteria such as mode of political organization, the degree of rationality in their legal systems, and degree of complexity in division of labour (Durkheim 1964; Maine 1986; Weber 1954). These theories were imported wholesale into analysis of land tenure systems in Africa and have been deeply implicated in justifications for expropriation of land in colonial times, as well as land tenure reform experiments in the decades that followed. The evolutionist justification for formalizing and privatizing ownership of land was taken for granted and spoken of explicitly, as this quote from Sir Frederick Lugard, one of the chief architects of British colonial rule illustrates: Speaking generally, it may, I think, be said that conceptions as to the tenure of land are subject to a steady evolution, side by side with the evolution of social progress, from the most primitive stages to the organization of the modern state.(…) These processes of natural evolution, leading up to individual ownership, may, I believe, be traced in every civilization known to history. (Lugard 1922, 280; my emphasis)

This evolutionary view eventually provided the impetus for the introduction of formalization programmes in British colonies in East and Central Africa in the late 1950s.8 One key difference between these colonial-era views and de Soto’s is that de Soto affirms that informally held property rights are quite well defined and upheld within each narrow setting, and only need to be represented in a form that outsiders (such as the state and financial institutions) recognize. The colonial-era views, in contrast, view customary property relations as unable to give rise to defined rights. Chanock (1991) and Klug (1995) have hypothesized that this portrayal of African customary tenure was necessary in giving the impression that no defined rights were implicated in the expropriation of African lands for European settlement. But the notion that movement towards private individual ownership is inherently progressive is an influential one. It even makes a

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Breathing Life into Dead Theories about Property Rights subliminal appearance in an article that is otherwise strongly opposed to the presentation of indigenous tenure systems as ‘static polar contrasts’ in relation to Western ones. The authors defend the dynamic nature of indigenous tenure systems by arguing that such tenure systems embody ‘spontaneous individualization of land rights over time, whereby farm households acquire a broader more powerful set of transfer and exclusion rights over their land as population pressure and agricultural commercialization proceed’ (Migot-Adholla et al. 1991, 155). Such arguments are influenced by abstract contrasting images between communal and individual tenure, which gloss over the immense variety of relations over property that can exist within any given system. Property relations in any society are dynamic and adaptable and allow several types of property-holding arrangements to co-exist depending on the type of property in question, the types of uses, and even the types of social relationships between the people using and managing the property. As the following example from Akamba9 customary land tenure illustrates, different senses of ‘ownership’(control and use) exist for different types of land.10 Broadly people speak of five types of land: weu, kisesi, kitheka, muunda, and ng’undu. Weu refers to unsettled land, often used as common grazing and hunting areas accessible for use by anyone within a given locality. These hardly exist anymore.11 Kisesi also refers to grazing areas, but it differs from weu in the sense that individual families, or groups of families that are not necessarily biologically related could fence off an area and claim it for themselves. Isesi (plural) were seasonal pasture usually relatively far away from homes, which served mostly as temporary grazing areas in drought emergencies. They would usually be abandoned when conditions improved in grazing areas closer to home.12 Interests in isesi are regarded as temporary. They are not heritable, and cannot be reclaimed once they are abandoned. When a particular family’s use of a kisesi ceased, the land reverted to weu and could be used by anyone else. Kitheka refers to uncultivated land usually close to the home, which could be used for grazing, gathering firewood, bee-keeping and growing of timber. The boundaries between various people’s itheka (plural) are usually clearly marked or known to the families involved, even though the state presumes that until demarcation has been carried out there are no clear or ‘official’ boundaries. Muunda refers to cultivated land. This belongs to a distinct family, and within the family, particularly if it is polygamous, to a distinct household identified by reference to the particular wife. Finally, ng’undu also refers to cultivated

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land, but land that has been farmed by the same family for several years, spanning at least three or four generations. Thus, a piece of land that may have started off as an unsettled kisesi could end up as ng’undu as a result of subsequent settlement and cultivation. The strength of the claims of individuals and distinct households increases as we move towards ng’undu, the importance of individual or family claims being determined by the type of use. Where the land is being used (or was, at some point in the past used) to produce food for the basic survival of the family, the claims are given stronger recognition. Unlike kisesi, ng’undu is regarded as heritable (can be passed down patrilineally). In the event that there are no heirs, the land does not revert to weu. Instead, it passes to the clan (mbai), which has the power to allocate it to a member of the clan and to exclude non-clan members. The point of referring to this is to show that contrary to evolutionist assumptions of a linear progression from communal to individual control, the reality is one of ‘multi-tenure systems with different land uses calling for different tenures’ (Platteau 1996, 33). Variety in property holding arrangements is a reality in Western societies as well, as writings on property and social relations in the US illustrate (Alexander 1997; Singer 2000a; 2000b). It is important to expose evolutionist biases in contemporary arguments for formalization of property rights for two reasons: first, because the simplistic dichotomization into capitalist and pre-capitalist brushes aside the vast differences among and within Third World countries and charts only one direction in which change ought to proceed for all. Second, the evolutionist impulse dictates a weeding out of any vestiges of communalism and its parochial norms on property relations, in favour of according legal validity only to those interests that most closely resemble individual and absolute ownership. This concern is already a reality in Kenya’s fifty-year experience of formalization. During my field work I observed that although the Land Adjudication Act13 mandates the registration of all existing interests, not merely interests amounting to ownership,14 the exercise proceeds as though only interests amounting to ‘ownership’ in the absolute exclusionary sense matter. Neither in the land adjudication cases that I examined nor in the finalized registers that I perused did I find registered any other types of interests, other than interests amounting to ownership. The training manuals used by the Land Adjudication Officials do not guide them in this direction either.15 I must note that although this narrow approach has been the dominant trend, there are a handful of African governments who, since the late 1990s, have been experimenting with more inclusive land registra-

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Breathing Life into Dead Theories about Property Rights tion policies. Examples include Ethiopia, Mozambique and Tanzania (Adenew & Abdi 2005; Chilundo et al. 2005; Haile et al. 2005; Kanji et al. 2005; Teklu 2005; Tsikata 2003).

Where is the Credit? In the United States, for example, up to 70 per cent of the credit new businesses receive comes from using formal titles as collateral for mortgages. Extralegality also means that incentives for investment provided by legal security are missing. (De Soto 2000, 86)

That formal title enables access to credit and therefore increases economic productivity is one of the reigning myths of formalization. The security that formal title brings with it, so the argument goes, gives landowners an incentive to invest, using their land as collateral. A World Bank report on sub-Saharan Africa in the 1980s placed a lot of emphasis on the centrality of land tenure security in improvement and transformation of agriculture: ’Accordingly, farmers must be given incentives to change their ways ... Secure land rights also help rural credit markets to develop, because land is good collateral’ (World Bank 1989, 104). De Soto reiterates the argument linking formalization of land ownership to access to credit and productivity despite the fact that such arguments have long since been discredited by empirical evidence, including in de Soto’s native Peru (Hendrix 1995; Winn 1992). Empirical studies in Africa failed to establish the link between formal title and access to credit for smallholder farmers. A study of a sublocation of South Nyanza district in Western Kenya found that only three per cent of the 896 titles had been used to secure loans, seven years after completion of the formalization exercise in the sub-location. A similar study in a sub-location of Embu district in Eastern Kenya found that only 15 per cent of the titles had been mortgaged to secure loans, twenty five years after the formalization exercise (Shipton 1989, 35). A comparative study of two coffee-growing areas, one in a formally titled area in Kenya, and the other in a non-titled area in Tanzania found that only two out of the 115 households in the Kenya site had land-secured loans, not that different from the Tanzania site (Pinckney & Kimuyu 1994, 9). My own fieldwork findings in Makueni district, Eastern Kenya are consistent with these previous studies. Out of the 111 people interviewed, only two had ever taken out commercial loans. Several of the interviewees spoke of two families that had taken out loans, and then defaulted, leading to foreclosure and loss of land in one, and near loss in the other.16

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Reasons why smallholders’ access to credit has not improved significantly with formal titling may be summed up as follows: First, based on a cost-benefit analysis commercial banks tend to shun small scale (particularly rural or agriculture-dependent) landholders. Title does little to change these institutionalized practices and biases (Englert 2003; Government of Tanzania, 1994; Manji 2002). The second reason is the existence of a vibrant informal micro-lending network. The credit obtained from informal networks is not secured on land and is therefore more attractive in a context where people fear losing their family land. There is a strong attitude against risking family land for credit. My field research established this, as have studies in other parts of the country (Shipton 1992). Third, I found that many registered landowners have not gone to pick up their official documents of title from the land registries, several years after the formalization exercise. Most people only have the parcel number and sketch map issued to them following demarcation, the first step in the formalization process. Without the certificate of title they cannot transact with formal financial institutions, and since they do not get to transact with these institutions anyway, they have not bothered to pick up the documents and pay the requisite collection fee. Out of the 111 people interviewed in my study, 33 had picked up documents of title (about 30 per cent). Studies in other parts of the country also show a low incidence of collection of title documents. A study carried out at the Kisumu District land registry showed that in Lower Nyakach, out of 109,545 titles that had been processed, only 24,893 (23 per cent) had been picked up. In upper Nyakach only 28 per cent had been picked up since completion of the registration exercise in the 1960s (OkothOgendo & Oluoch-Kosura 1995). In Mbeere, Eastern Kenya only 22 per cent of the households had picked up their title documents since the registration exercise in 1970 (Hunt 2005, 222). Finally, the overall link between formal ownership and productivity has similarly been discredited by empirical data that shows that holders of unregistered land have made equally productive investments. The comparative study of two coffee growing regions in Kenya and Tanzania discussed above concluded that land titling had little or no impact on agricultural investments or credit markets, contrary to conventional and official justifications – an observation that brought the authors of the study to the conclusion that titling is simply unimportant (Pinckney & Kimuyu 1994). Another study conducted in the Njoro area in Kenya concluded that it is difficult to identify and measure the impact of tenure reform on productivity. The results were inconclusive because the richer (‘more productive’) farmers, who are

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Breathing Life into Dead Theories about Property Rights most likely to benefit from the titling programs, are also the ones more likely to seek title and loans. The poorer (‘less productive’) farmers are less able to acquire title and leverage loans. Thus, making a simple comparison of productivity in such a context tends to overstate the supposed benefits of title (Carter et al. 1994).

Which Market, Which Land? Any asset whose economic and social aspects are not fixed in a formal property system is extremely hard to move in the market. (De Soto 2000, 45)

Proponents of formalization make two assumptions that are refuted by empirical evidence: that ‘market’ refers only to ‘formal market’ and that ‘commodity’ or ‘asset’ captures all the dimensions of meaning that people attach to their possessions. These views could not be further from the reality when it comes to rural land in sub-Saharan Africa. The presumption that markets in land can only operate when there is formal private ownership is strong in arguments for formalization. On this point, however, de Soto makes a less ambitious claim. He at least acknowledges that there are vibrant markets in the informal economy, and that the contribution that formal title could make is to scale up people’s ability to transact beyond narrow informal circles (ibid., 6). In its conventional form the argument linking formal title to markets in land is expressed in economic terms as follows: a formalized private property regime is the only way that individuals are enabled to take advantage of increases in land values brought about by factors such as market integration, land scarcity, or technological innovation. Informal communally-based systems do not enable this capturing of economic rents because there is no institutional mechanism allowing assignment of valuable economic rents to any specific person or group. Individuals therefore capture these rents by demanding a shift towards private property rights that will enable them to take advantage of the new benefits. Formalization and individualization of ownership is therefore the state’s appropriate response to this demand. A market in land is thus encouraged to develop since formalization lowers transaction costs in land transfers due to reduced ambiguities in property rights, a view that has been much criticized (Firmin-Sellers & Sellers 1999; Platteau 1996). Contrary to this view, a market in land does exist in the absence of formal title, and informal transactions in land do take place in spite of formal title. This market in land is regulated primarily by informal social structures and only marginally, if at all, by formal official structures

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that are supposed to regulate land transactions. There is evidence of a thriving market in land in Kenya, mostly in the form of sales of portions of a family’s holding, land exchanges and leasing of farm land and grazing land (Mair 1948; Moore 1991; Nyamu 2000; OkothOgendo & Oluoch-Kosura 1995; Shipton 1989). In a sale transaction, it is common practice for the intending buyer and seller to simply call witnesses and draw up and sign an agreement of sale of land. Often a local administrator such as the chief, assistant chief or village headman is called in to witness the agreement, to give the transaction an appearance of official backing. One of the assistant chiefs in my area of study showed me a standard form of agreement that he had developed for people transacting before him.17 Thus, formal title and its institutional apparatus are only marginally relevant or useful in the rural land market. A further presumption that is often made is that people everywhere regard land as a commodity and view the freedom to dispose of it as central to their right to land. The 1996 World Development Report carried the following definition of property rights: ‘Property rights include the right to use an asset, to permit or exclude its use by others, to collect the income generated by the asset, and to sell or otherwise dispose of the asset (World Bank 1996, 49). Formal legal definitions similarly emphasize the owner’s absolute ownership, including the freedom to dispose of the property.18 Holders of property rights are presented as abstract autonomous individuals exercising their formally recognized rights of ownership. The reality is different. As Platteau observes, in a rural smallholding setting, land is much more than simply one more input in an agricultural enterprise (Platteau 1996, 50). It is impossible, for most people, to abstract land from the social and cultural meanings associated with it. Besides being the main source of livelihood for the majority of families, land also supports a wide network of kin relationships, and functions as a status symbol. To sell land – particularly ancestral land – is a monumental decision. Thus, the sale of land takes place mostly in emergency situations, such as meeting unexpected medical expenses, or paying for children’s education when there is no other source of income. Usually it will involve the sale of only a portion of the land, sometimes in an agreement expressed as a redeemable sale, and almost always on an informal basis, with no official transfer registered. Social institutions such as the clan play a major role in instilling a level of restraint in transacting in land. In the location where I conducted research, 17 clans are represented, of which ten have written rules. All ten had a clause concerning land transactions. Even

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Breathing Life into Dead Theories about Property Rights the clans without written rules had widely cited oral rules concerning land transactions. An example from the Atwii clan captures the spirit of clan rules on land transactions: ‘It is not permitted for a member of our clan to sell land without the knowledge and consent of the clan committee. Land belonging to a Muutwii [member of the Atwii clan] must first be offered for sale to the family, and then to other clan members, before it can be offered to outsiders.’19 A clan member who intends to sell land must satisfy the clan committee that he is in agreement with his family members and that he has valid reasons for selling the land, and most important, that he will still have sufficient land left for his family’s needs. Even in other communities where this rule may not be formally spelled out, there is general expectation of consultation of family members before any sale of land. This is an illustration of the fact that the commodity view of land promoted by officials and proponents of formalization competes with a different social vision of property as primarily a means through which social responsibilities are met and even though individual rights and entitlements do matter, these are conceived of broadly in order to enable the fulfilment of those social responsibilities. Individual entitlements are conceived of broadly so as to include rather than exclude. An argument that links formal title to the emergence of land markets on the expectation that individuals are always motivated by the desire to capture economic rents ignores the fact that the social context of which they are a part plays a role in shaping their preferences (Firmin-Sellers & Sellers 1999).

Security for Whom? The Distributional Consequences of Title When we ask ourselves whether a social or legal practice works, we must ask ourselves ‘works for whom?’ Who benefits and who loses from existing political, economic and legal structures? (Singer 1990, 1841)

If we take the relational nature of property rights seriously, the argument that formal title ensures security of tenure must necessarily be met with the question ‘security for whom?’ De Soto celebrates the promise of ‘lifting the bell jar’ to enable inclusion of poor people into formal property systems so much that he fails to acknowledge that there are negative distributional consequences involved. Any redefinition of property rights produces both winners and losers (Hunt 2004, 188; Manders 2004). Title holders can both gain and lose, as in the case of

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formalization in urban slum contexts where the land does gain value, but this has often meant that poor beneficiaries of land titling programs come under pressure to sell off their holdings to developers and slumlords, forcing them into further marginality and widening inequality (Manders, ibid.). In the context of sub-Saharan Africa the negative distributional consequences of formalizing rights to land, with an emphasis on absolute individual ownership in rural areas governed by customary tenure, have been well documented (Lastarria-Cornhiel 1997; Meinzen-Dick et al. 1997; Okoth-Ogendo 1979; Pala 1983; Shipton 1988; Whitehead & Tsikata 2003). Entitlements based on customary rights to land have been rendered vulnerable when title holders assert their absolute rights of ownership against unregistered family members. Courts have overwhelmingly ruled in favour of title holders, ignoring the reality that the vast majority of people regulate their property relations based on custom even in the case of registered land. Prevailing judicial attitudes against unregistered interests translate into systemic gender bias in interpreting property rights within the family, given the low incidence of registration of women whether as individual or joint owners.20 The remainder of this section focuses on the displacement of women’s claims to family land to illustrate the distributional nature of title and to refute the simplistic equation of formal title with security.

Displacing women’s claims to family property Low incidence of joint registration, coupled with the established practice of registering land in the name of the ‘head of household’ has meant that formalization weakens women’s claims to family property. This insecurity has been spoken of in some writings as if it were unique to women (Butegwa 1994; Karanja 1991; Tibatemwa 1995). However, it needs to be understood within the general context of the systemic narrowing of existing social criteria for recognizing entitlement. Framed this way, we are able to see that the problem is with the narrow and limited understanding of registrable interests employed in the individual titling programmes, which results in exclusion. This exclusion does have gender-differentiated consequences that translate into particular expressions of insecurity for women. For the vast majority of married women, interests in family land are held on account of the marriage relationship, which for most women is based on customary law. The precariousness of customary land rights in the

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Breathing Life into Dead Theories about Property Rights eyes of a legal system that pretends to be blind to the reality of plural and overlapping rights to land is obvious. Unmarried daughters living on land registered in their fathers’ or brothers’ names are in a similarly precarious position. In the absence of legal recognition of customary interests in registered land, the entitlements of women in these situations have no independent legal existence. They derive from the title-holder’s interests. The Kenyan Court of Appeal ruled in 1988 that a wife’s interests under customary law cease to exist once her husband becomes the formally registered owner. Therefore as a widow she could not rely on her customary law entitlements in the face of third parties with competing registered claims, in this case, a financial institution to which the land had been mortgaged.21 But it is not just exclusion from formal title that renders women’s interests in family land insecure. The formalization process reinforces the existing relative insecurity of women’s customary land rights. By relative insecurity I mean relatively weaker capacity to mobilize social support for one’s claim to property. It refers specifically to a person’s position in the property-holding entity – a family or kinship network. Relative insecurity does not have to be based on comparison between men and women only. It could be between people born into a family versus those who have married in; or between women at different stages of life; or between those with children and those without; those with a regular source of income and those without. A husband or eldest brother occupies a position of authority within the family. He enjoys economic power that derives from exercising control over valued resources, as well as social power to allocate resources, which implicates others’ loyalty, dependency and obligations. Against this background, formalization of title has become synonymous with transformation and increased visibility of men’s control rights over land, and the simultaneous disappearance or invisibility of women’s established usage rights. The programme relies on one understanding of ownership, namely ownership as absolute authority. Even in countries where recent reforms have required special attention to the property interests of wives and ex-wives, there is still evidence of practrices that circumvent the law and result in dispossession (Kanji et al. 2005; Teklu 2005). Empirical work conducted by Achola Pala in the Luo community in Western Kenya illustrates this aspect of the gendered effects of formalization (Pala 1983). She shows that in the Luo language, the term for ‘owner of land’ (wuon lowo) is understood at two levels. First, it refers to the person (often male, generally in the position of a grandfather) who has the power or right to allocate land to others. At the second level, it refers to a person (female or male) who

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has a recognized right to use a particular piece of land over a long period of time. This right exists by virtue of his or her relationship to the person who has authority to allocate the land. She argues that the process of formalization of title has focused on the first level only (which is exclusively male), and ignored the second sense of land ownership (which would allow for more gender inclusiveness). Thus, only men end up registered as owners of land. By equating ownership of land to only the first sense of wuon lowo, the process transforms men’s allocative authority into an absolute right of ownership, which includes the right to alienate the land, without any safeguards for the rights exercised by women and other family members as owners and users of land in the second sense. Parker Shipton, writing on the same community, concludes that registration has effected ‘a hardening of men’s land rights into absolute legal ownership to the exclusion of women and children’ (Shipton 1988, 119). Fiona Mackenzie (1990) writing on central Kenya makes a similar argument regarding the absence of protection for ‘lesser rights’, and the rendering of men’s interests in land into rights of outright ownership. She argues that the precarious position of these ‘lesser rights’ is made even less secure in light of the weakening of social institutions that would otherwise have played a supervisory role in the way men exercise those interests. Finally, the weakening of women’s claims to family property is illustrated by the manner in which courts have decided cases concerning marital property in Kenya (Nyamu-Musembi 2002b). Since there is no Act of Parliament specifying the rights of spouses to family property following marital breakdown, courts apply an English statute, the Married Women’s Property Act of 1882. This statute follows the common law doctrine of separate property, which means that each spouse retains as personal property whatever he or she owned before marriage, as well as what he or she acquired during marriage. The property holding unit is the individual, not the family unit. Marriage alone does not confer a proprietary interest on the other spouse. The starting point in any dispute therefore is to establish legal ownership. In the case of land this would be evidenced by title. The court then enquires into any claim of beneficial ownership made by the non-title holding spouse. The most common claim made is significant contribution in form of money or labour, which must be proved strictly. Thus, wives pursuing marital property claims with no formal title documents to show are forced into an uphill battle of proving significant contribution. Regardless of the duration of a marriage, a wife must strictly prove her contribution to the assets acquired during the marriage.

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Breathing Life into Dead Theories about Property Rights In a context where formalization of property rights in land has resulted in individual registration of men as heads of households, application of a strict separate property regime produces a gendered pattern of exclusion. Any discussion of formalization of property systems that engages seriously with this gendered pattern of exclusion, as well as the broader negative consequences of disregarding customary rights to land cannot credibly make the claim that formalization of title brings security.

Conclusion By disregarding discussions of the failure of tenure reform experiments of the last four decades, de Soto’s work repopularizes previously discredited theories of property rights and reproduces their shortcomings. This chapter has discussed five such shortcomings with reference to the context of rural land in Africa: First, narrow construction of legality to mean only formal law results in over-valuation of formal title and downplaying of the central role played by informal norms and practices. Second, dichotomization of property systems into capitalist and pre-capitalist glosses over the dynamic and multi-tenure nature of land-holding arrangements and echoes nineteenth century notions of the inevitability of social evolution toward private individual ownership. Third, the assertion of a causal link between formal title and access to credit is repeated without any acknowledgement of the overwhelming evidence discrediting it. Fourth, in arguing that formal title scales up markets in land de Soto does acknowledge that markets in land do exist in the absence of formal title. However, he overlooks the fact that informal transactions do persist in spite of formal title, and fails to take account of the multiple dimensions of meanings that people attach to land and other valued possessions besides ‘commodity’ or ‘asset’. The fifth shortcoming – failure to engage with the insecurity that formal title often brings with it – is most damning for a programme that proclaims a pro-poor agenda for property rights reform. In conclusion, offering inclusion into the formal legal framework as the solution to poverty and marginality keeps substantive discussion of inequality off the agenda. The solution is deceptively simple, hence its appeal in international aid circles. Such contemporary arguments linking formal title to productivity and poverty reduction need to be questioned in light of historical evidence, and their relevance for the African context examined in light of empirical evidence, as this chapter does.

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Notes 1 The author thanks the following for comments: the editors of this collection, Peter Houtzager, Ian Scoones and Ben Cousins. 2 See http://legalempowerment.undp.org; http://www.desotowatch.net (last accessed December 2006) 3 The programme, Properties and Business Formalization Programme, is intended to facilitate registration of land assets and formalization of businesses, thus enable small-scale enterprises’ access to credit. See ‘Big Plan for Small Firms in Tanzania’ FriedrichNaumann-Stiftung www.fnst.org (last accessed December 2006) 4 See for example ‘Breathing Life into Dead Capital: Why Secure Property Rights Matter’ The Economist, 17 January 2004, pp. 6–8; Peter Schaefer, ‘Poor Need Resurrection of their Dead Capital’, Wall Street Journal, Tuesday 14 June 2005, p. A15; Robert Robb, ‘Poor Africans Need Land Rights’, Arizona Republic, 15 July 2005; Kerry Dolan, ‘A New Kind of Entitlement’, Forbes Magazine, 23 December 2002. 5 For critiques of de Soto’s work from other perspectives see Hendrix 1995; Hunt 2004; Kinsella 2002; Manders 2004; Rakodi 2003; Rawson 2001; Winn 1992). 6 On the co-existence of formal and informal legality in Western property relations see Ellickson (1991), Merry (1990), Ruffini (1978). 7 Chiefs and assistant chiefs are government-appointed local administrators who have a broad mandate to maintain law and order. Roughly half of their time is spent solving local disputes. 8 Report of the Conference on African Land Tenure in East and Central Africa, Arusha, Tanzania, October, 1956. [Special Supplement to the Journal of African Administration] p. 2. 9 Akamba are the predominant ethnic group in four districts of Eastern Kenya, including Makueni district, the site of the empirical research referred to here. 10 This account is based on conversations I have had with various people prior to and during my field research. In particular, I draw from my interviews with clan elders and Land Adjudication Officers. I also rely on Penwill 1951. 11 Now references to weu exist almost exclusively in folk lore. See e.g, Mbiti 1966. 12 Since there is hardly any land available for isesi now, a similar practice in the case of drought emergencies is the leasing of land in a different area where herds are temporarily located for the duration of a drought. 13 The statute that outlines the procedure to be followed in determining registrable interests in land prior to their formal registration. 14 Section 23 (2) (e) of the Land Adjudication Act lists such interests to include ‘any lease, right of occupation, charge or other encumbrance, whether by virtue of recognized customary law or otherwise…’ The statute requires the Recording Officer to determine the nature and extent of such interest in order to enable it to be registered in the name of the person or persons claiming it. In theory, a wife or other member of the family claiming a customary law right of occupation could invoke this section to have that interest officially registered. I have not come across any such use of this provision nor any legal argument on its possible use. 15 The officers in the Makueni land adjudication office rely on two handbooks, none of which refers to the registration of claims other than ownership claims (Government of Kenya 1970; 1991). 16 Interviews in Kathulumbi Location, Makueni District, October 1998. 17 Interview with Mr. Justus Mwanzia, Assistant chief, Mutembuku sub-location, January 18, 1999. 18 Section 27(a) Registered Land Act, Chapter 300, Laws of Kenya. 19 Miao ya Mbai ya Atwii-Athunzu [Rules of the Atwii Athunzu Clan] [Passed on July 10, 1948, revised August 1993], Rule No.29. [Author’s translation]. 20 Estimates place the national figure at 5 per cent (Davison 1987). In Makueni district my

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Breathing Life into Dead Theories about Property Rights own calculation based on a sample of the land registers for the entire district yielded eight per cent. The incidence of joint registration in general is very low, let alone joint registration of spouses. In the sample, out of a total of 3,183 registered parcels of land, only 69 (two per cent) are registered as jointly owned. Of those 69 only 45 had a woman as one of the joint owners. 21 Elizabeth Wangari Wanjohi & Elizabeth Wambui Wanjohi –v–Official Receiver & Interim Liquidator (Continental Credit Finance Ltd.), Civil Application NAI No. 140 of 1988. Reproduced in The Nairobi Law Monthly, No. 14, February 1989 p. 42.

References Adenew, Berhanu & Fayera Abdi. 2005. ’Research Report 3: Land Registration in Amhara Region, Ethiopia’. London: IIED. Alexander, Gregory, 1997. Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970. Chicago: University of Chicago Press. Bruce, John & Shem Migot-Adholla (eds). 1994. Searching for Land Tenure Security in Africa, Dubuque: Kendall/Hunt Publishing Company. Butegwa, Florence. 1991. ‘Women’s Legal Right of Access to Agricultural Resources in Africa: A Preliminary Inquiry’, Third World Legal Studies, Vol. 45. Carter, Michael R., Wiebe, Keith D. and Blarel, Benoit. 1994. ‘Tenure Security for Whom? Differential Effects of Land Policy in Kenya’, in Searching for Land Tenure Security in Africa, Dubuque: Kendall/Hunt Publishing Company. Chanock, Martin. 1991. ‘A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa’, Journal of African History, Vol. 32, 65. Chilundo, Arlindo, Boaventura Cau, Marlino Mubai, Denise Malauene & Vitor Muchanga. 2005. ‘Research Report 6: Land Registration in Nampula and Zambezia Provinces, Mozambique’. London: IIED. Davison, Jean. 1987. ‘Without Land We Are Nothing: The Effect of Land Tenure Policies and Practices Upon Rural Women in Kenya’, Rural Africana, Vol. 27, 19. de Soto, Hernando. 2000. The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, New York: Basic Books. Englert, Birgit. 2003. ‘From a Gender Perspective: Notions of Land Tenure Security in the Uluguru Mountains, Tanzania’, Journal für Entwicklungspolitik / Austrian Journal of Development Studies Vol.19/1, 75–90. Durkheim, Emile. 1964 [1893]. The Social Division of Labor in Society. Translated by George Simpson. New York: The Free Press. Ellickson, Robert. 1991. Order Without Law: How Neighbours Settle Disputes, Cambridge, MA: Harvard University Press. Firmin-Sellers, Kathryn and Sellers, Patrick. 1999. ‘Expected Faiures and Unexpected Successes of Land Titling in Africa’, World Development 27 (7), 1115–28. Government of Kenya. 1970. A Handbook for the Guidance of Officers of the Land Adjudication Department, Nairobi: Ministry of Land and Settlement. Government of Kenya. 1991. Handbook on Land Use Planning, Administration and Development Procedures, Nairobi: Ministry of Lands and Housing. Government of the United Republic of Tanzania. 1994. Vol. 1, Report of the Presidential Commission of Enquiry into Land Matters, Dar-es-Salaam: Ministry of Lands, Housing and Urban Development. Haile, Mitiku, Wray Witten, Kinfe Abraha, Sintayo Fissha, Adane Kebede, Getahun Kassa & Getachew Reda. 2005. ‘Research Report 2: Land Registration in Tigray, Northern Ethiopia’, London: IIED. Hendrix, Steven. 1995. ‘Myths of Property Rights’, Arizona Journal of International and

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CELESTINE NYAMU-MUSEMBI Comparative Law, Vol. 12, 183. Hunt, Diana. 2004. ‘Unintended Consequences of Land Rights Reform: the Case of the 1998 Uganda Land Act’, Development Policy Review, 22/2, 173. Hunt, Diana. 2005. ‘Some Outstanding Issues in the Debate on External Promotion of Land Privatization’, Development Policy Review, 23/2, 199. Institute for Liberty and Democracy (ILD). 2005. ‘Programme to Formalize the Assets of the Poor in Tanzania and Strengthen the Rule of Law: Report on the Diagnostic Phase’ Volume II, Lima, Peru: Institute for Liberty and Democracy. Kanji, Nazneen, Lorenzo Cotula, Thea Hilhorst, Camilla Toulmin & Wray Witten. 2005. ’Research Report 1: Can Land Registration Serve Poor and Marginalized Groups? Summary Report’, London: IIED. Karanja, Perpetua. 1991. ‘Women’s Land Ownership Rights in Kenya’, Third World Legal Studies, 109. Kinsella, Stephan. 2002. ‘Book Review: Hernando de Soto. The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else’, Journal of Libertarian Studies, Vol. 16/1, 99. Klug, Heinz. 1995. ‘Defining the Property Rights of Others: Political Power, Indigenous Tenure and the Construction of Customary Law’, Working Paper No. 23, Center for Applied Legal Studies, University of Witwatersrand, October 1995. Lastarria-Cornhiel, Susana. 1997. ‘Impact of Privatization on Gender and Property Rights in Africa’, World Development, Vol. 25/8, 1317. Lugard, Sir Frederick. 1922. The Dual Mandate in British Tropical Africa (5th Edn. 1965), London: Cass. Mackenzie, Fiona. 1990. ‘Gender and Land Rights in Murang’a District, Kenya’, Journal of Peasant Studies, Vol. 17/4, 609. Maine, Sir Henry. 1986. Ancient Law: its Connection with the Early History of Society and its Relation to Modern Ideas, Tucson: University of Arizona Press (Reprint. Originally published: New York: Holt, 1864). Mair, Lucy P. 1948. ‘Modern Developments in African Land Tenure: An Aspect of Culture Change’, Africa, Vol. 18/3: 184. Manders, Jonathan. 2004. ‘Sequencing Property Rights in the Context of Development: A Critique of the Writings of Hernando de Soto’, Cornell International Law Journal, Vol. 37, 178–98. Manji, Ambreena. 2003. ‘Remortgaging Women’s Lives: The World Bank’s Land Agenda in Africa’ Feminist Legal Studies, Vol. 11/2, 139–62. Mbiti, John. 1966. Akamba Stories, Oxford: Clarendon Press. Meinzen-Dick, Ruth, Lynn Brown, Hilary Sims Feldstein & Agnes Quisumbing. 1997. ‘Gender and Property Rights: Overview’, World Development, Vol. 25/8, 1299. Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness Among Working Class Americans, Chicago: University of Chicago Press. Migot-Adholla, Shem, Peter Hazell, Benoit Blarel & Frank Place. 1991. ‘Indigenous Land Rights Systems in Sub-Saharan Africa: A Constraint on Productivity?’ World Bank Economic Review, 5, 155. Moore, Sally Falk. 1991. ‘From Giving and Lending to Selling: Property Transactions Reflecting Historical Change on Kilimanjaro’, in Mann, Kristin and Richard Roberts (eds), Law in Colonial Africa. London: James Currey, Portsmouth, NH: Heinemann. —— 1994. Anthropology and Africa: Changing Perspectives on a Changing Scene, London; Charlottesville, Va.: University Press of Virginia. Nyamu, Celestine. 2000. ‘Gender, Culture and Property Relations in a Pluralistic Social Setting’, S.J.D. Dissertation, Harvard Law School. Nyamu-Musembi, Celestine. 2002a. ‘Are Local Norms and Practices Fences or Pathways? The Example of Women’s Property Rights’ in An-Na’im, Abdullahi (ed.) Cultural Transformation and Human Rights in Africa. London: Zed Books. —— 2002b. ‘”Sitting on Her Husband’s Back with Her Hands in His Pockets”: Trends in Judicial Decision-Making on Marital Property in Kenya’ in Bainham, Andrew (General Editor 2002 Edition). The International Survey of Family Law. Leiden, The Netherlands: Brill

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Breathing Life into Dead Theories about Property Rights Academic Publishers. Okoth-Ogendo, H.W.O. 1979. ‘The Imposition of Property Law in Kenya’ in Harrel-Bond, Barbara and Sandra Burman (eds) The Imposition of Law. New York: Academic Press. Okoth-Ogendo, H.W.O. & W. Oluoch-Kosura. 1995. Final Report on Land Tenure and Agricultural Development in Kenya, Nairobi: Ministry of Agriculture, Livestock Development and Marketing. Pala, Achola O., 1983. ‘Women’s Access to Land and their Role in Agriculture and DecisionMaking on the Farm: Experiences of the Joluo of Kenya’ Journal of Eastern African Research and Development, 13. Penwill, D.J., 1951. Kamba Customary Law: Notes Taken in the Machakos District of Kenya Colony, London: Macmillan. Pinckney, Thomas Coty and Peter Kimuyu. 1994. ‘Land Registration in East Africa: Good, Bad or Unimportant?’ Journal of African Economies, Vol. 3/1:1–28. Platteau, J-P. 1996. ‘The Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment’, Development and Change, Vol. 27, 29–86. Rakodi, Carole & R.C. Leduka. 2003. ‘Informal Land Delivery Processes and Access to Land for the Poor in Six African Cities: Towards a Conceptual Framework’, Working Paper No.1, Birmingham: School of Public Policy, International Development Department. Rawson, Mary. 2001. ‘Review of: The Mystery of Capital by Hernando de Soto’ Land and Liberty, Summer 2001. Ruffini, Julio. 1978. ‘Disputing over livestock in Sardinia’ in Nader, Laura and Harry Todd, (eds), The Disputing Process: Law in ten Societies. New York: Columbia University Press. Shipton, Parker. 1988. ‘The Kenya Land Tenure Reform: Misunderstandings in the Public Creation of Private Property’, in Downs, R.E. & S.P. Reyna (eds) Land and Society in Contemporary Africa. Hanover, NH: University Press of New England. —— 1989. ‘Land and the Limits of Individualism: Population Growth and Tenure reforms South of the Sahara’, Harvard Institute for International Development, Discussion Paper No. 320, December, 1989. —— 1992. ’Debts and Trespasses: Land, Mortgages, and the Ancestors in Western Kenya’, Africa, 62/3, 357. Singer, Joseph. 1990. ‘Property and Coercion in Federal Indian Law: the Conflict between Critical and Complacent Pragmatism’, Southern California Law Review, 63, 1821. —— 2000a. Entitlement: The Paradoxes of Property, New Haven: Yale University Press. —— 2000b. ‘Property and Social Relations: From Title to Entitlement’, in Geisler, Charles and Gail Daneker (eds), Property and Values: Alternatives to Public and Private Ownership. Washington DC: Island Press. Swynnerton, R.J.M. 1954. A Plan to Intensify the Development of African Agriculture in Kenya, Nairobi: Kenya Department of Agriculture. Teklu, Askale, 2005. ‘Research Report 4: Land Registration and Women’s Land Rights in Amhara Region, Ethiopia’, London: IIED. Tibatemwa, Lilian E., 1995. ‘Property Rights, Institutional Credit and the Gender Question in Uganda’, East African Journal of Peace and Human Rights, 2, 68. Tsikata, D. 2003. ‘Securing Women’s Interest within Land Tenure Reforms: Recent Debates in Tanzania’, Journal of Agrarian Change, Vol. 3/1-2, 149–83. Weber, Max, Law in Economy and Society (Max Rheinstein, Ed. 1954), Cambridge, MA: Harvard University Press. Whitehead, Ann and Dzodzi Tsikata. 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, Vol. 3/1, 67. Winn, Jane Kaufman. 1992. ‘Book Review: How to Make Poor Countries Rich and How to Enrich Our Poor’, Iowa Law Review, 77, 899. World Bank. 1989. Sub-Saharan Africa: From Crisis to Sustainable Growth, Washington DC: World Bank. —— 1996. World Development Report 1996: From Plan to Market, Washington DC: World Bank. —— 2003. Land Policies for Growth and Poverty Reduction, Washington DC: World Bank; New York: Oxford University Press.

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Two ‘Go Home & Clear the Conflict’ Human rights perspectives on gender & land in Tanzania INGUNN IKDAHL 1

Introduction This chapter discusses human rights perspectives on gender and privatization of land rights, drawing on examples from Tanzania. While a substantial segment of the donor community support a human rights-based approach to development (HRBA), neo-liberal discourse on economic development often determines the outcome of policy making (see Nyamu-Musembi in this volume). In the context of land reform, human rights norms may provide an additional source of arguments which can be used to balance proposals for law reform stemming from the neo-liberal economic approach and aimed at individualising and registering land rights. The dynamic relationship between the two approaches necessitates consideration of the implications of human rights obligations for state action around land reform and privatization of land rights. The human rights-based approach to development is a project still in the making, and no academic consensus has been established concerning the preconditions for and consequences of establishing an integrated human rights and development paradigm (Alston & Robinson 2005; Nyamu-Musembi & Cornwall 2004; Scheinin & Suksi 2005). I argue here that the rights-based approach provides an analytical framework with which to assess the impact of property rights reform, crucial for women’s access to land.2 Of core importance is the prohibition of discrimination, the right to participation in decision making, and the rights to food and housing. The primary focus of this chapter is on the normative content of human rights and the legal obligations incumbent on ratifying states. Some authors argue that these norms also have implications for the

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‘Go Home & Clear the Conflict’ donor community and international financial institutions (Skogly 2003). Human rights are internationally binding norms, but they still leave room for the local in the implementation: for contextual considerations, for variations with respect to what constitutes ‘appropriate measures’, and for state discretion.3 Moving beyond a legal positivist approach, human rights scholarship is struggling to provide deeper and more contextualized analysis of how norms are appropriated and reinterpreted locally. I use examples from Tanzania’s land legislation and its implementation to illustrate how the quest for equality, livelihood security, applicability and macro-economic development may play out in real life. The 1999 land tenure reform in Tanzania includes the elements of recognition and registration of existing land use and rights, facilitation of a market for land rights, and efforts to ensure nondiscrimination and protection of women’s use.4 It also has international elements, through the engagement of both the World Bank and other donors.5 The next section of this chapter gives an overview of land as a human rights issue, and outlines three basic dimensions of a HRBA framework in the context of land reform. The following section provides a more detailed study of one of these pillars: the obligation to protect access to and rights to land. The subsequent section explores possible answers to the question of whether ‘to title or not to title’ with regard to the situation in Tanzania, while the final section assesses the relevance and consequences of the non-discrimination principle, with specific focus on land relations at the intersection of the rights of individuals, spouses, and collective entities.

Land as a Human Rights Issue This section identifies three pillars for developing a human rights framework for gender-sensitive formalisation of land rights: equal protection of access to and rights to natural resources, participation and due process/rule of law. The content of the latter two is outlined, while the following section provides a more detailed discussion of the question of protection of access to and rights to land. The discussion is based on the UN human rights conventions, with an emphasis on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979) and the International Covenant on Economic, Social and Cultural Rights (CESCR 1966), as well as the soft law emerging from the work of the CEDAW and CESCR committees. While titling or privatisation of land rights is not explicitly dealt with in the conventions themselves, the UN treaty-based monitoring committees have on

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occasions commented on this when examining state reports on the progress of implementation, or in their general comments regarding interpretation and implementation. Additionally, I rely on the African Charter on Human and Peoples’ Rights (AfCHPR 1981), and its attendant Protocol on the Rights of Women in Africa (AfPRW 2003). The human rights regulation of land rights is fragmented. UN human rights covenants contain no explicit right to land, nor is titling of land dealt with. However, on the regional level, the African protocol makes explicit reference to the state’s obligation to secure women’s access to land (art. 15) and adequate housing (art. 16). AfPRW obliges the state to ‘promote women’s access to and control over productive resources such as land and guarantee their right to property’ (art. 19c). In addition, the existence of a human right to land may be inferred more implicitly from the body of civil, political, economic, social and cultural rights. Privatisation of land rights affects the right to food, the right to housing and the right to an adequate living standard in general.6 The right of minorities to maintain and develop their culture may be linked to their access to land. The right to land also pertains to questions concerning the continuation of ‘traditional’ forms of tenure and administration.7 Furthermore, privatization may be considered from a property right perspective,8 as well as from a consideration of the fundamental right to equality before the law.9 The right to participation, both in political life and in development processes,10 has implications for land reform processes and institutions. Finally, the principle of non-discrimination applies to the interpretation of all other rights.11 Thus, a comprehensive picture of the obligations of states in relation to privatisation of land may only be achieved by a multifaceted approach, emphasizing the interdependence of the basic human rights. A number of relevant provisions should be explored as to how they interact, strengthen and supplement each other, with non-discrimination as a cross-cutting principle. With respect to the realization of the right to participation, states are obliged to facilitate gender equality. Particularly significant is the existence of an individual right to participate in natural resource management, both at the policy level and in everyday administrative and decision-making processes.12 Popular participation is critical where laws contain discretionary provisions, such as in contexts where decision-making has been decentralized and is to be carried out based on ‘local’ or ‘customary’ norms. Due to the flexibility, complexity and dynamic character of such norms, the participants may be vital for the outcome, as well as for the further development of the normative

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‘Go Home & Clear the Conflict’ framework. Women are generally less represented in decision-making, and a large body of scholarship reveals structural gendered differences with respect to the perceptions of custom. Education and other supportive measures are considered necessary for the full realisation of the right: the participation shall be real, active and meaningful. In addition, the introduction of quotas has been proposed as a possible strategy to counteract existing inequalities. The question of whether quotas for women do indeed ensure participation for all women – or just for a smaller group, depending on class, age, social relations or other factors must be addressed in this respect. As documented by some other authors in this volume: not all women are without power – and not all those without power are women (see chapters by Daley and Englert on Tanzania). Finally, international human rights law imposes obligations of process, not only of result.13 Due process guarantees, and the establishment of mechanisms for monitoring and assessing accountability are vital for land reform processes. In practice, most cases are decided by the implementing institutions, without ever going to courts. For rights to reach all people, it is therefore crucial to pay special attention to such bodies. Policies that are discretion-based give less security for equality and due process, and seem likely to disadvantage vulnerable groups. Institutions should be accountable, and legal remedies should be available if justice is not done.

Titling and Protection of Access and Rights to Land In the quest to establish a framework for the legal protection of rights to and access to land, a crucial question arises: to title or not to title? A state obligation to secure people’s continued use of the land they live on or use may be seen to follow from several economic and social human rights, but is most developed in relation to the right to housing in CESCR art. 11.1. In its general recommendation on the interpretation of this article, the CESCR Committee has established that legal security of tenure is central for adequate housing, and stated that: ‘Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate

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measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups’ (CESCR 1991, para. 8(a)). A possible protective measure is to provide vulnerable populations with formal land rights, as they represent an enforceable claim instead of having to rely on government discretion and shifting policies. In comments to State Party reports, the CESCR Committee has suggested regularization of land-ownership arrangements, including issuing title deeds.14 These comments have largely been made with respect to urban habitats where individuals do not possess clear property rights to the land on which they live, and this concern is linked to the growing number of people living in informal settlements worldwide. The right to housing is not the only provision that can form a basis for a state obligation to respect existing access to resources such as land. Eide has argued that respect for the resources that are available to the individual is a core element in economic and social rights (Eide 2001, 23–4). The individual is the active subject of all economic and social development, and is therefore ‘expected, whenever possible through his or her own efforts and by use of own resources, to find ways to ensure the satisfaction of his or her own needs, individually or in association with others’.15 From this may be inferred a state obligation to respect the resources individuals have access to (including shared rights to use communal land), and the choices made to use these. Specifically regarding land, Eide suggests that ‘as part of the obligation to respect these resources the state should take steps to recognize and register the land rights of indigenous peoples and land tenure of smallholders whose title is uncertain’. This libertarian emphasis on ‘being left in peace’ from governmental interference with one’s resources and ability to ensure one’s own livelihood has several parallels to the debate concerning the protection of property rights. However, one major difference must be pointed out: the right to secure tenure and to respect for livelihood resources will apply also in situations where the individual cannot claim to have a formally recognised property right. It applies whether land rights are already privatised or not: the central point is the actual use of land, and its function as basis for the livelihood of the individual concerned. It is thus broader in scope than the protection of property rights, encompassing also people using land in illegal settlements in urban areas, or accessing land through custom-based tenure systems or local practices in rural areas.

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To Title or not to Title – the Tanzanian Context These starting points suggest a favourable position on titling as a way to protect people’s livelihood. But while the CESCR Committee has recommended securing tenure through regularisation and titling, it has also occasionally expressed concern that such processes can lead to homelessness, loss of income, and livelihood insecurity.16 Difficulties arise when the idea is put into practice, as the 1999 land tenure reform in Tanzania can serve to illustrate. Protecting existing use of land is a fundamental policy goal of the 1999 land legislation, but so is the facilitation of a market in land rights (respectively sections 3.1.b and 3.1.j in both Acts). The possible tensions between these two objectives have not been clearly addressed in the Acts. This has led to concerns that the commoditization of land rights may lead to increasing insecurity, distress sales and landlessness for the poor (GLTF 2004; Oxfam Ireland et al. 2005; Policy Forum 2005a, 2005b). The relationship between these two arguments therefore requires discussion. Regularizing land rights through giving formal recognition to existing use should be seen as analytically different from increasing the ability to sell land (Penner 1996). Property rights should be understood as a bundle of different rights such as the right to use, the right to alienate (e.g. sell or mortgage), the right to manage and the right to income. Formalizing or recognizing rights to use does not necessarily entail an accompanying right to sell.17 While neo-liberal economic arguments emphasise the marketability of land, the human right objective of protecting people’s livelihood resources entail that user rights are seen as more important than the right to sell. This argument should be considered when balancing the two mentioned objectives of land reform. Second, the state obligation to protect people’s access to resources cannot be defined without discussing from whom one should be protected, and in which situations. What the most likely threats are will vary both between and within states. Thus the protection should be tailored according to the concrete situation. In Tanzania the state itself is one potential threat (Sundet 1997; URT 1994). During interviews I carried out in the Hanna Nassif settlement in Dar es Salaam in 2005, fear of state expropriation without compensation was a recurring theme and titling was mentioned as a measure to reduce this insecurity. As one woman expressed it: ‘Before you have a title, the government can take the area for any purpose, they can just change the use’. Human rights allow states to

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expropriate land for public benefit purposes (e.g. building schools, roads or similar), but existing users have a right to due process and compensation.18 The state is obliged to take measures necessary to avoid other types of insecurity caused by the state, for example abuse of administrative power or double allocation of land. Formal recognition of user rights through titling can be an appropriate measure to establish a relationship between state and individuals which fulfil the requirements for protection – at least in urban areas. However, information from rural areas suggests that unregistered custom-based tenure is sometimes felt as providing enough security here (see Englert in this volume; Englert 2003; compare URT 1994, 27–36). States are not, however, the only threats against people’s access to resources, and the state also has obligations concerning threats from other actors.19 Such threats can be divided roughly into two kinds of situations: ‘external threats’ where third parties without previous relations to the land are able to exclude users by achieving formal property rights themselves, and ‘internal threats’ where people with some kind of existing relation to the land and/or the present users (for example through being co-users, having family relationships or administrative positions in the area) are able to exclude them. In Tanzania, examples of situations involving external threats include investors, development projects, building of hotels, etc. Sundet’s account of the quest for ‘free land’ for investors during the early 1990s policy of investment promotion illustrates the urgency of the issue, as does the evidence collected by the Presidential Commission of Inquiry into Land Matters (Sundet 1997, 83–90; URT 1994). Threats from outsiders are often based on the ability to play the formal titles against informal bases for access. The CESCR Committee argues for a state obligation to address the need for protection in such situations (CESCR 1991, 1997). The state’s obligations in relation to ‘internal threats’ are less clearly developed in human rights literature. However, actors such as the UNHabitat, the UN Special Rapporteur on Adequate Housing and the NGO ‘Human Rights Watch’ have drawn attention to threats which affect women disproportionately, and which often fall within this group (HRW 2003; Kothari 2003; UN-Habitat 2004; Okuro in this volume). It includes widows being forced out of their homes by in-laws, husbands disposing of land on which the family has been living and using, and local leaders selling parcels of what had earlier been considered communal land. These types of situations are also known to exist in Tanzania. Such ‘internal threats’ are thus often linked to struggles for power and representation within existing social relations.

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‘Go Home & Clear the Conflict’ This begs for further inquiry into how registration processes address relationships within communities and households. Communities, households and local institutions form part of the space where individuals’ access to land is claimed, shaped, contested and supported. To understand the effects of registration in situations where land rights are socially embedded, layered, overlapping and gendered, it is necessary to move beyond the state-citizen relationship, to include an extended network of relations. Hence, while human rights generally may appear positive to titling as a way to protect people’s access to land, a central question in practice is who will benefit, and who will not. In addition, the facilitation of a market for land rights can increase the differences between ‘winners’ and ‘losers’, as the protective function of social networks may be weakened. Consequently, protection against discrimination becomes a central issue: how can these inequitable effects of privatization be avoided? To what extent does the principle of non-discrimination give guidance as to how the states should address the issue of relationships between individuals, households and communities in processes of registration of land rights and facilitation of land markets? What are the state’s obligations, and what are possible ‘appropriate measures’ in practice? The next section focuses on these questions.

Non-discrimination in Relation to Protection of Access to and Rights to Land The prohibition of discrimination is a cross-cutting principle in human rights law, and most conventions include an obligation to ensure equality between men and women.20 In addition, the CEDAW and the AfPRW focus more specifically on different aspects of women’s human rights. The CEDAW includes a provision (article 14) focusing on rural women, including an explicit right to equal treatment in land reform. Another provision of special interest is art 16.1.h, which forms the basis for state obligations to ensure equality within marriage with regard to property. As mentioned, the AfPRW includes state obligations to ensure women access to resources. A general starting point is that all people, whether men or women, married or unmarried, urban or rural, shall be able to enjoy their human rights. Ensuring nondiscrimination in practice does not only mean formal equality between men and women, but also taking into consideration the different situations people can be in. The AfPRW illustrates the demand for sensitivity to differences in situations and needs, as it goes beyond other

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instruments in explicitly covering different groups of women. It pays special attention to married women (art. 6 and 7), widows (art. 20 and 21), women in armed conflicts (art. 11), women with economic activities in the informal sector (art. 13 e and f), elderly women (art. 22), women with disabilities (art. 23) and women in distress (art. 24). What are the implications of this non-discrimination framework? Allowing discrimination in law to persist, such as denying women full legal capacity (regardless of marital status) or equal rights to inheritance, is clearly a violation of the state’s human rights obligations. Where customary law is recognized as part of the state’s legal system, the state has an obligation to ensure that it does not discriminate against women – for example by giving a non-discrimination provision which prevails over it. But such formal equality is not sufficient to fulfil the state’s obligations, which include taking ‘appropriate measures’ towards equality in practice. The state must make efforts to ensure that the laws are implemented and followed, thus moving from paper to practice. In addition, the principle of nondiscrimination has implications for the design of legislation. When a gender-neutral law meets a gender-specific reality, the effects may still be discriminatory. The context in which the law works must be carefully considered to understand possible gendered outcomes. How can one ensure non-discrimination and equality of people in relation to land when they have different starting points, life patterns and positions? No blue-print solutions are available: attention must be paid to the actual patterns of existing tenure practices, including social relations and gender roles. However, while recognizing the existing variations and complexities it can still be useful to suggest some common general features that ought to be taken into account when designing land tenure legislation. Protection of access to land can be established in different ways, choosing or combining different aspects of individual, household and community perspectives. These possibilities should be examined in the light of both local factors and the human right principle of non-discrimination. COMMUNITY AND INDIVIDUALS – REGULATION OF VILLAGE LAND IN TANZANIA

The relationship between the interests of communities as a whole and women’s individual rights within the community is an especially contested issue (Whitehead & Tsikata 2003). This tension pertaining to customary tenure practices is commented on in international soft law documents. The CEDAW Committee, with its main focus on women and gender equality, has on a number of occasions expressed concern

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‘Go Home & Clear the Conflict’ regarding customary law. The committee has frequently commented that customs and traditional practices, especially in rural areas, can prevent women from acquiring ownership to land, inheriting land or accessing credit facilities. Customary practices may also hamper (especially rural) women’s participation in decision-making. One example is the committee’s response to Tanzania’s 1998 state report: ‘235. […] The Committee further notes that customary and religious laws are practised and accepted more widely in rural areas and, inter alia, often prevent women from inheriting and owning land and property. […]. 236. The Committee recommends that laws of inheritance and succession be formulated so as to guarantee rural women their rights of inheritance and ownership of land and property. It also recommends that a programme be introduced to educate rural women about their rights […]’.21 The emphasis on how the customary reinforces internal differences in communities and problems experienced by women indicates that the CEDAW Committee perceives gender-neutral or women-friendly statutory legislation to be the preferred option. It would, however, be too simplistic to present the question as simply one of choosing either individual statutory rights or customary structures of communal rights. In Tanzania, as elsewhere, communal practices often co-exist with notions of individual or household rights, creating a complex system of rights-holding. The community may be a site of marginalisation and inequality, and at the same time provide a security net for individuals through allocation of land and notions of care and responsibility. In Tanzania, the 1999 land legislation clarifies and modifies the role of village government, while the root title to land remains vested in the president as trustee owner for all citizens. During the 1980s, Rights of Occupancy of 99 years were vested in the elected village government (the Village Council), which was expected to grant (sub-)leases to villagers (Shivji 1998, 19–21). Today, the Village Land Act lays out the legal framework and procedures for most of Tanzania’s rural land to be governed through a community-based land tenure management system (Alden Wily 2003). Authority over land administration, land management and dispute resolution is devolved to the community level. The village councils are given broad powers in terms of managing and administering land (including delineation and registration of rights) within the village boundaries, in addition to dispute resolution. However, the village councils are no longer owners, but are instead legally defined as ‘land managers’. The actual right to land is now deemed to be held by each individual, family, group, sub-village or village community as a whole. The villagers have the option to register

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their rights, although the new legislation recognizes all customary rights as property rights, irrespective of whether or not they are registered. The reform may be seen as embodying a move towards an increasingly individualized tenure system. However, notions of individual or household rights to use land within village boundaries existed before this Act. Furthermore, the law still allows for land ‘which is occupied and used or available for occupation and use on a community and public basis’ to be categorised as ‘communal village land’ (VLA section 12.1.a). The law does not require a transformation from communal to individual land rights, but rather provides a framework that can be used to formalise existing use patterns, whether individual or communal.22 By vesting authority over land within the village land area in the village council, it remains in an existing institution which is elected by and will act on behalf of the community. The Village Land Act provides for customary law to remain applicable as regards questions not solved by the act itself, with the important exception that customary law which is contrary to the Constitution, including the principle of non-discrimination in art 13, shall be declared invalid (VLA section 20).23 The recognition of all unregistered customary rights may also act as a disincentive to go through the process of registration. Nevertheless, however much the legal framework allows for the recognition and registration of existing rights, use patterns and norms, it appears unrealistic to expect the tenure reform to merely result in formalisation of the existing. Transformation of existing systems will produce specific social and cultural costs. As suggested by Hunt: ‘any redefinition of rights in land generates ‘winners’ and ‘losers’ (Hunt 2004, 188). Villages are not necessarily entities of harmony and common interest: in a workshop on the implementation of the 1999 Acts, concern was expressed ‘concerning arbitrary decisions of Village Councils and Assemblies in appropriating villagers’ lands without consent or compensation’ (Oxfam Ireland et al. 2005; see also Sundet 1997 and URT 1994). Although not formally required by the legislation, accelerated individualisation of land rights may be the result. When the law provides room for discretion and local choice, renegotiation of access to and control over resources locally can lead to increased inequality. In the process of drafting the legislation, the administrative capacity at village and district level was overestimated,24 while the role of power structures and struggles over resources at local level was underestimated. Decentralization of authority does not remove the state’s human right obligation to consider and address the legislation’s potential effects on individuals.

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‘Go Home & Clear the Conflict’ Participation is a core issue when ambiguous or discretion-based authority is devolved to local level. The introduction of women’s quotas in Tanzania’s village institutions is in line with the CEDAW committee’s emphasis on quotas as a way to increase women’s participation.25 These institutions are central to the application of the Acts (including a number of provisions aimed at improving women’s situation),26 to articulate customary law, and decide when it is discriminatory and what to replace it with. The quotas may help shift the power balance to women’s advantage, and give them a stronger voice where local norms shall be articulated and access to resources negotiated. On paper, this exemplifies the interaction between the different pillars of the human rights framework, as participation may facilitate the realisation of provisions aimed at ensuring equal protection for women and men. In practice the effects are more uncertain. In addition to the principle questions regarding participation and representation mentioned above, a number of concerns were expressed to me by NGOs working on land rights in rural areas. In some areas, the number of women elected is still lower than the law requires. Some women representatives are perceived to be elected due to their family relations, rather than their competence. There is a lack of active participation, and also lack of knowledge about the law. Statements from the CESCR Committee and the CEDAW Committee exemplify concerns about the situation of women under customary law, including land rights. Focusing on the dynamics of interaction and norms within communities can help address questions of equality, tradition and change without simplistic dichotomies of individual versus community interests. Ensuring participation and democratisation of the communal, such as through the quotas for women’s participation in Tanzania’s village institutions, can be one way to enable change from within. Art 17 in AfPRW implies a recognition of this, as it establishes a right for women to ‘live in a positive cultural context’ and also to participate in determination of this. HUMAN RIGHTS PERSPECTIVES ON HUSBAND AND WIFE – OWNERSHIP OF MARITAL PROPERTY AND JOINT TITLING

Questions regarding individuals with overlapping interests to the same land must also be addressed within individual tenure systems. As is the case with communities, differences and disagreements can exist within the household without always being reflected by the one representing it to the outside. Gender relations often prove central. The relationship between husband and wife has been subject to special interest – both in the general debate and in the context of human rights. The CEDAW

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convention art 16.1.h establishes the basic principle of equal rights for spouses in relation to property, and the CEDAW Committee has emphasized the importance of focusing on de facto realization of this: ‘There are countries that do not acknowledge that right of women to own an equal share of the property with the husband during a marriage or de facto relationship and when that marriage or relationship ends. Many countries recognize that right, but the practical ability of women to exercise it may be limited by legal precedent or custom’ (CEDAW 1994, para. 30). Ensuring equality is especially difficult in practice when life patterns take different forms, and gender roles are often decisive for property relationships. While much of women’s work is directed at reproduction (housework, subsistence farming, etc.), small-scale production (vegetable gardens rather than cash crops) or low-wage paid jobs, men often have higher income from either paid work or cash crops. The CEDAW convention draws attention to this situation in art. 14.1: ‘state parties shall take into account (…) the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy’. The CEDAW Committee has added to this point: ‘In some countries, on division of marital property, greater emphasis is placed on financial contributions to property acquired during a marriage, and other contributions, such as raising children, caring for elderly relatives and discharging household duties are diminished. Often, such contributions of a non-financial nature by the wife enable the husband to earn an income and increase the assets. Financial and non-financial contributions should be accorded the same weight’ (CEDAW 1994, para 32). In Tanzania, the Law of Marriage Act (No. 5 1971) section 114(2) prescribes that marital property shall be divided according to the parties’ contribution – and case law related to this provision has recognised domestic work as contribution, in line with the recommendation from the CEDAW Committee.27 However, as it is often difficult to establish the extent of the actual contribution, women rarely get as much as half of the property. Joint titling may be seen as an alternative measure to ensure women a right to land held and used by the couple, giving protection even during the marriage and without need to prove a contribution. Lobbying campaigns in several countries have argued for this as a vehicle for ensuring protection for both spouses, and it has been adopted in some recent land legislation. Yet, human rights documents contain few explicit discussions regarding joint titling. An exception is the CEDAW Committee’s 2002 comment to Tunisia’s state report, where it welcomes

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‘Go Home & Clear the Conflict’ new legislation allowing ‘spouses to agree to a joint property regime’.28 Tanzania’s Land Act section 161 establishes a presumption for joint titling: if the parties do not explicitly require only one of them being registered as owner, both names shall be put on the document. This was one of the provisions women’s NGOs fought for, and it has been hailed as a gain for women. However, some concerns regarding the effect of these provisions can be pointed out based on my interviews in Dar es Salaam. Remarkably, when residential licences (Land Act section 23) are issued in Dar es Salaam the document has space for several names – but only for one picture of the rights-holder. With respect to the process, several women lawyers explained that they had discovered that the officials who had visited residential areas during working hours had talked to neighbours and, based on their information, had put only the husband’s name on the documents. Understanding the potential consequences of this omission, these women found that getting their names added requires a level of legal literacy, as well as time and patience, to deal with the bureaucracy. A senior bureaucrat in the ministry of land stated that sometimes wives came to have their name included on the residential licence, but they would ‘normally not deal with such conflicts’. Instead, they told the wives to ‘go home and clear the conflict’, as they saw it as a household matter which was up to the couple to decide. In a community-driven titling effort in the Hanna Nassif settlement in Dar es Salaam, most of the women interviewed were not aware of the joint titling provision – some thought it was prohibited to put more than one name on the title deed. An officer in one of the organizations involved in the registration process expressed a profound lack of interest in the gendered fallout of the registration exercise: they simply did not recommend joint titling in the area, because as ‘the husband was already the owner’, the provision was ‘not relevant’ (compare Adoko and Levine on Uganda in this volume). Together, these stories and postures illustrate how the transformative potential of this type of provision is wholly dependant on the competence and commitment of the political and bureaucratic actors involved. The ‘lost clause’ incident in Uganda, where a comparable provision disappeared from the act between Parliament debate and printing, is an additional example of how the shift in power and control over resources inherent in this kind of provision is met with resistance (Hunt 2004). Training of officials and design of forms and interview schemes are potential strategies to overcome opposition, and make the wife visible at an early stage in the registration process. Furthermore, it is essential that routines are established to deal with complaints from non-registered wives.

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HUMAN RIGHTS PERSPECTIVES ON SPOUSAL CONSENT

Joint titling of land is but one way to attempt to protect women’s interest in marital property – and as seen above it is not unproblematic. Another possible legal measure is to have rules requiring spousal consent for dispositions over property, such as the matrimonial home or land used by the spouses. They do not get a right of ownership, but a right to veto sales and other dispositions may diminish the risk of losing access to the land at issue. Accounts of husbands selling or mortgaging land without consent have become usual, and seem likely to increase as titling of land increases the marketability of land rights.29 The demand for protection against such situations finds support in the concern expressed by the CEDAW Committee: ‘In many States, including those where there is a community-property regime, there is no legal requirement that a woman be consulted when property owned by the parties during marriage or de facto relationship is sold or otherwise disposed of. This limits the woman’s ability to control disposition of the property or the income derived from it’ (CEDAW 1994, para 31). Tanzania’s Law of Marriage Act section 59 includes a requirement for spousal consent to dispositions over the matrimonial home; without this, the sale or mortgage is invalid. The bank thus bears the risk if a spouse objects after the transaction. However, in practice there are some concerns about the effectiveness of this provision. A review of court practice produces many examples of cases where the courts have been reluctant to accept that the wife was not involved in the disposition, and dismissed the claim due to ‘conspiracy’ between husband and wife. In the words of one of my informants in the ministry of land: ‘many men sit down with their women and tell them to go to the courts.’ Unless the banks find it to be in their own interest to reach every spouse to get the consent and prevent conflicts, the economic and social costs of litigation must be borne by the wife. A similar provision was included in the Land Act section 114 which has been commended as an important measure for women. However, the provision was met with a strong critique from the Tanzania Bankers’ Association, as it was perceived to leave too much responsibility with the banks, and would therefore lead to distortion of the market for financial services (GLTF 2004; for a more general discussion see Manji 2003, 153–4). Amendments were proposed shortly after the law came into force in 2001 – one woman lawyer and activist commented that ‘they were even complaining before they had experiences with the effects of the new Acts’. Women’s NGOs reacted strongly and started lobbying members of parliament. Among the

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‘Go Home & Clear the Conflict’ issues discussed were how to deal with polygamous situations, and to what degree the bank could avoid invalidity by carrying out investigations before the agreement was made (GLTF 2004). The amendments that were made on this issue in 2004 appear to be of a minor character.30 Nevertheless, this illustrates a fundamental tension between competing interests: should the legislation prioritise the smooth running of the financial market as argued by the banks – or the wife’s need for protection? The question will only become more urgent where state policy aims at facilitating a market for land rights, and the number of transactions can be expected to increase. The above quote from the CEDAW Committee emphasises the interest of the wife, focusing on the state obligation to ensure equal protection even for those who are not registered as title-holders.

Conclusion In this chapter, I have argued that the human rights framework imposes certain limits with respect to regulation of land tenure, and privatization processes in particular. Norms from human rights conventions set out obligations of both procedural and substantive nature, which have a bearing on how reforms should be carried out. The concept of ‘privatization’ is often used to describe a combination of titling efforts, individualization of tenure and liberalization of the market for land rights. However, distinguishing between these three elements can be useful for identifying potential tensions between the reform and the human rights obligations incumbent upon the state.31 As discussed in this chapter, titling of land has been suggested as a measure to protect people’s existing access to and use of land, especially in the context of informal settlements in urban areas. Shifts from unregistered use with no or unclear formal legal status to registered rights can lead to better protection against government discretion and abuse of power and to entitlements that can be enforced against third parties. Privatization through titling may thus serve as a means of protection. Nevertheless, there is also a need for protection against the potential negative consequences. Reducing a complex reality to relationships between people and things simple enough to be registered has definite distributive consequences. Individualization of rights and liberalization of land markets will influence the outcomes of titling processes. When designing such reforms, attention must be paid to the likely effects on the enjoyment of a wide spectrum of human rights, such as food, housing, livelihood, participation and non-

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discrimination. Facilitating transferrals of land rights through sales and mortgages leads to a need for extra considerations of the effects on different groups in such situations. Spouses may be protected by spousal consent or joint titling – but what about other members of a household? Who – if anyone – should be allowed to make decisions about selling communal land – and under what kind of procedures? Who is at risk of ending up landless – or on new illegal settlements? Who will be able to enjoy the benefits of a functioning market for land rights? Neither laws based on inducing rapid individualization nor laws building on idealized notions of static and communal ‘customary land tenure’ can guarantee equal benefits for men and women. In practice, the state is required to perform a balancing act, for which the human rights framework provides guidelines. A basic premise is that women are to be given equal rights in law. Reaching the goal of de facto equality requires commitment to implementation, including the establishment of an environment which enables participation and makes complaint procedures popularly available and accessible. Thus, even where authority is decentralized the state must engage with issues of gender, class, power, inequality and representation. Finally, de facto equality requires that the design of laws be adapted to the social realities which they are meant to regulate. This is a crucial point, given the large-scale transplantation of land legislation and property concepts originating elsewhere (McAuslan 2000). Privatization of land rights is a multi-dimensional process, closely linked to the ways people’s relations to resources – and to each other – are shaped in practice. The relationship between policies and laws at the state level and people’s choices, agency and livelihood in practice is intricate and dynamic. A human rights-based approach to development thus demands that the state does not neglect the complexities caused by everyday conflict and cooperation between men and women.

Notes 1 This chapter draws upon my interviews with academics, government officials, lawyers, NGOs and urban women, carried out during visits in May 1999, April/May 2004 and November/December 2005. Section 2 is based on an earlier report, ‘Human Rights, Formalisation and Women’s Land Rights in Southern and Eastern Africa’, written together with Anne Hellum, Randi Kaarhus, Tor A. Benjaminsen and Patricia KameriMbote, commissioned by NORAD (Ikdahl et al. 2005). I thank Kristin Bergtora Sandvik, the editors and the publisher’s reviewer for useful comments on earlier drafts of this chapter.

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‘Go Home & Clear the Conflict’ 2 Inheritance law and practices are vital for women’s access and rights to land, and a central issue both in human rights law and in Tanzania. The plural, dynamic and gendered normative systems influencing inheritance merit an in-depth analysis besides the question of land tenure. Regrettably, this can not be done within the assigned space here. 3 Hellum 1999. For a discussion of this ‘culturally sensitive universalism’, see Engle 2005. 4 The two relevant acts are the Land Act, no. 4 of 1999 (LA) and the Village Land Act, No. 5 of 1999 (VLA). The Presidential Commission for the Inquiry into Land Matters (URT 1994) and the National Land Policy (URT 1995) are important background documents. For more detailed information on land policy and the tenure reform in Tanzania, see e.g. Alden Wily 2003; Izumi 1998; Sundet 1997; URT 2005. 5 For the official policy of the World Bank, see WB 2003. The ongoing Mkurabita programme, funded by Norway, also illustrates the international interest around property rights. 6 CESCR art. 11.1, CEDAW art. 13 and 14.h , AfPRW art. 13, 15, 16. 7 CCPR art. 27, AfCHPR art. 18, 22 and 29.7. 8 AfCHPR art. 14, UDHR art. 17. See Ikdahl (2007). 9 CCPR art. 26, CEDAW art. 15.1, AfCHPR art. 3, AfPRW art. 8. 10 CCPR art. 25, CESCR art. 15.1.a, CEDAW art. 7, 8, 13.1.c and 14.2, AfCHPR art. 13, AfPRW art. 8.e, 9, 17, 18 and 19. 11 CCPR art. 2 and 3, CESCR art. 2 and 3, AfCHPR art. 2, in addition to CEDAW and AfPRW. 12 CEDAW art. 7 and 14.2, AfPRW art. 8e, 9, 18.2.a and 19.b. 13 See e.g. AfCHPR art. 7, CESCR art. 14, UDHR art. 8, CEDAW art. 2.c, AfPRW art. 8. 14 See e.g. the CESCR Committee’s comments to state reports from the Dominican Republic in 1994 (E/1995/22 (1994) paras 322, 328 and 331) and 1998 (E/1998/22 (1997) paras 234, 240–41), and to the report from Trinidad and Tobago ( E/2003/22 (2002) paras 276, 299). 15 This could include shared rights to use communal land, and realization may take place within the context of a household, or the wider kinship (Eide 2001, 23). 16 See e.g. the Committee’s 1999 comment to the Solomon Islands’ state report, E/2000/22 (1999) para 203. 17 Penner provides a theoretical discussion of this question (Penner 1996, 746-750). An example of the distinction in practice is James & Fimbo’s account of how in Tanzania prohibitions against alienating clan land coexist with notions of land being privately owned (James & Fimbo 1973, 427–47). 18 See CESCR 1997, where para 10 pays special attention to the needs of women in such situations and points at a state obligation to ‘ensure that no discrimination is involved’. 19 See e.g. CEDAW art. 2.e. 20 See e.g. CCPR art. 2 and 3, CESCR art. 2 and 3, and AfCHPR art. 2. 21 CEDAW A/53/38/Rev.1 (1998) paras 235–6. See also similar comments to the state reports from Uganda (A/57/38 part III (2002) paras 151–2) and Kenya (A/58/38 part I (2003) paras 223–4). 22 This is in line with the fundamental principle expressed in the VLA section 3.1.b: ‘to ensure that existing rights in and recognized long standing occupation or use of land are clarified and secured by the law’. 23 However, the Local Customary Law Order (Declaration) of 1963 has not been amended or repealed. It contains several provisions that are directly discriminatory against women, for example concerning inheritance. While case law, legislation and constitutional provisions provide strong arguments in favour of letting the principle of nondiscrimination prevail, the continued existence of the Customary Law Declaration can sustain uncertainty regarding the legal position of discriminatory customs. 24 As of November 2005, District Land Registers were only established in 4 out of 120 districts – and the government considers them a condition for establishing valid Village Land Registers. 25 VLA section 60(2) establishes a women’s quota for the Village Land Council, section 53.2

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26 27 28 29

30 31

for the Village Adjudication Committee. CEDAW 2004 expresses the committee’s views on the applicability of quotas. For example protection of women with regard to assignments (s 30(4)b and 43), grant of derivative rights (s 33(1)d) and surrender of occupancy rights (s 35(2), 36 and 42). See Benschop 2002, 106–23. Bi Hawa Mohamed v. Ally Sefu, Court of Appeal of Tanzania 1983, Tanzania Law Reports 32 CEDAW, A/57/38 part II (2002) para. 184. The following quote illustrates the problem: ‘In a meeting with a group of churchwomen in Kenya, the Commission was told that their greatest curse had been the titling system (i.e. ITR). Now with these pieces of paper their men would sell off the land in strips leaving them destitute. Even the traditional clan constraints on selling off land had begun to break down’ (Shivji 1998, 88). The Land Amendment Act, no. 2, 2004. The Land (Mortgage) Regulations 2004 regulates this further in sections 5–7. For a similar argument see Rittich 2005.

References Alden Wily, L. 2003. Community-based Land Tenure Management: Questions and Answers about Tanzania’s new Village Land Act, 1999. London: International Institute for Environment and Development/Drylands Programme. Issue paper; No. 120. Alston, P. & Robinson, M. (eds), 2005. Human Rights and Development: Towards Mutual Reinforcement, Oxford/New York: Oxford University Press. Benschop, M. 2002. Rights and Reality: Are Women’s Equal Rights to Land, Housing and Property Implemented in East Africa? Nairobi: UN-HABITAT (United Nations Human Settlements Programme). Eide, A. 2001. Economic, Social and Cultural Rights as Human Rights, in Eide, A., Krause, C. and Rosas, A. (eds) Economic, social and cultural rights. Dordrecht/ Boston/ London: Martinus Nijhoff, 9–28. Engle, K. 2005. International Human Rights and Feminisms: When Discourses Keep Meeting, in Buss, D. and Manji, A. (eds). International Law: Modern Feminist Approaches. Oregon: Hart Publishing, 47–66. Englert, Birgit. 2003. ‘From a Gender Perspective: Notions of Land Tenure Security in the Uluguru Mountains, Tanzania’, Journal für Entwicklungspolitik / Austrian Journal of Development Studies Vol.19/1, 75–90. GLTF (Gender and Land Task Force). 2004. Report on Awareness, Advocacy and Lobbying Activities on the Land (Amendments) Bill of 2003. Unpublished Report. Dar es Salaam: GLTF. Hellum, A., 1999. Women’s Human Rights and Legal Pluralism in Africa. Harare: Tano Aschehoug/ Mond Books. Human Rights Watch (HRW) 2003. ‘Double Standards: Women’s Property Rights Violations in Kenya’, HRW report. Vol. 15/5 (A) – March 2003. Available at http://hrw.org/reports/ 2003/kenya0303 (last accessed December 2006). Hunt, D., 2004. ‘Unintended Consequences of Land Rights Reform: The Case of the 1998 Uganda Land Act’, Development Policy Review, Vol. 22/2, 1973–91. Ikdahl, I., 2007. ‘Engendering the Human Rights Protection of Property Rights: Women’s Local Land Use in Tanzania’, in Hellum, A., Stewart, G., Ali, S. and Tsanga, A. (eds) Human Rights, Plural Legalities and Gendered Realities. Paths are Made by Walking. Harare: Weaver Press, pp. 262–88. Ikdahl, I., Hellum, A., Kaarhus, R., Benjaminsen, T.A. & Kameri-Mbote, P., 2005. ‘Human Rights, Formalisation and Women’s Land Rights in Southern and Eastern Africa’, Studies

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‘Go Home & Clear the Conflict’ in Women’s Law No. 57, University of Oslo. Izumi, K., 1998. Economic Liberalisation and the Land Question in Tanzania. Unpublished PhD dissertation, Roskilde University, Denmark. James, R.W. and Fimbo, G.M. 1973. Customary Land Law of Tanzania. A Source Book, Nairobi/ Kampala/Dar es Salaam: East African Literature Bureau. Kothari, M. 2003. ‘Women and Adequate Housing’. Study by the UN Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination. 26 March 2003. E/CN.4/2003/55. Manji, A. 2003. ‘Remortgaging Women’s Lives: The World Bank’s Agenda in Africa’, Feminist Legal Studies 11, 139–62. McAuslan, P. 2000. ‘Only the Name of the Country Changes: The Diaspora of ‘European’ Land Law in Commonwealth Africa’ in Evolving land rights, policy and tenure in Africa, Toulmin, C. and Quan, J. (eds). DFID/IIED/NRI: London, 75–96. Nyamu-Musembi, C., 2002. ‘Are Local Norms and Practices Fences or Pathways? The Example of Women’s Property Rights’ in An-Na’im, Abdullahi A. (ed.) Cultural Transformation and Human Rights in Africa. London/New York: Zed Books, (2002), 126–50. Nyamu-Musembi, C. & Cornwall, A. 2004. ‘What is the ‘Rights-Based Approach’ all about? Perspectives from International Development Agencies’, IDS Working Paper 234, Institute of Development Studies, Sussex. Oxfam Ireland, Trocaire, Concern. 2005. Report on Proceedings of Symposium on Implementation of 1999 Land Acts, seminar held at Courtyard Hotel in Dar es Salaam 1st and 2nd March 2005. Development Cooperation Ireland. Penner, J.E., 1996, ‘The “Bundle of Rights” Picture of Property’, UCLA Law Review Vol. 41, 711–820. Policy Forum 2005a. Report on the Information and Discussion Forum MAKING DEAD CAPITAL LIVE: How can this happen in Tanzania?, organised by the NGO Policy Forum, Dar es Salaam, February 2005. Available from http://landrightswatch.net Policy Forum. 2005b: Report on the Information and Discussion Forum MAKING DEAD CAPITAL LIVE – Part 2: Preliminary Diagnosis of the Tanzania Business Formalisation Programme, organised by the NGO Policy Forum, Dar es Salaam, October 2005. Available from http://landrightswatch.net (last accessed December 2006) Rittich, K. 2005. ‘The Properties of Gender Equality’, in Alston, P. & Robinson, M. (eds) 2005. Human Rights and Development: Towards Mutual Reinforcement, Oxford/New York: Oxford University Press, 87–113. Scheinin, M. & Suksi, M. (eds) 2005. Empowerment, Participation, Accountability and NonDiscrimination: Operationalising a Human Rights-Based Approach to Development: Human Rights in Development Yearbook 2002. Dordrecht: Martinus Nijhoff/ Nordic Human Rights Publications. Shivji, Issa G. 1998. Not Yet Democracy: Reforming Land Tenure in Tanzania. Dar es Salaam: IIED, Hakiardhi and Faculty of Law, University of Dar es Salaam. Skogly, S. 2003. ‘The Obligation of International Assistance and Co-operation in the International Covenant on Economic, Social and Cultural Rights’ in Bergsmo, M. (ed.), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide. Leiden: Martinus Nijhoff Publishers, 403–20. Sundet, G., 1997. The Politics of Land in Tanzania. Unpublished PhD dissertation, Oxford University. Tsikata, D., 2003. ‘Securing Women’s Interests within Land Tenure Reforms: Recent Debates in Tanzania’. Journal of Agrarian Change, 3/1–2, 149–83. UN-Habitat. 2004. ‘Progress Report on Removing Discrimination against Women in Respect of Property & Inheritance Rights’, Tools on Improving Women’s Secure Tenure Series 1, No. 2, December 2004. UN-Habitat (United Nations Human Settlements Programme), Nairobi. URT (United Republic of Tanzania). 1994. Report of the Presidential Commission of Inquiry into Land Matters, Uppsala: Scandinavian Institute for African Studies. URT (United Republic of Tanzania). 1995. National Land Policy. Dar es Salaam: URT. URT (United Republic of Tanzania). 2005. Preparation of a Strategic Plan for the Implementation of

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INGUNN IKDAHL the Land Laws (SPILL). Phase III report: Draft Strategic Plan for the Ministry of Lands and Human Settlements Development, February 2005. Consultants: T Östberg, FN Lugoe and FP Mtatifikolo. World Bank (WB). 2003. Land Policies for Growth and Poverty Reduction: A World Bank Policy Research Report. Oxford: World Bank and Oxford University Press. Whitehead, A. & Tsikata, D. 2003. ‘Policy Discourses on Women’s Land Rights in SubSaharan Africa: The Implications of the Re-turn to the Customary.’ Journal of Agrarian Change, 3/1–2, 67–112.

INTERNATIONAL LEGISLATION AND RELATED SOFT LAW CEDAW. 1979. The Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN General Assembly 18 December 1979, entry into force 3 September 1981. CEDAW. 1994. ‘Equality in Marriage and Family Relations’. CEDAW Committee General Recommendation, no. 21. CEDAW. 2004. ‘Article 4, paragraph 1: Temporary Special Measures’. CEDAW Committee General Recommendation no 25. CESCR. 1966. The International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly 16 December 1966, entry into force 3 January 1976. CESCR. 1991. ‘The Right to Adequate Housing’. CESCR Committee General Comment no 4. CESCR. 1997. ‘The Right to Adequate Housing” Forced Evictions’. CESCR Committee General Comment no. 7. Af CHPR. 1981. The African Charter on Human and Peoples’ Rights, adopted by the OAU 27 June 1981, entry into force 21 October 1986. Af PRW. 2003. Protocol to the African Charter on Human Rights and People’s Rights on the Rights of Women in Africa, adopted by the AU 11 July 2003, entry into force 25 November 2005.

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Three Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo The impact of commoditization, rural–urban change & land registration in Mufundi District, Tanzania1 ELIZABETH DALEY

Introduction In 1999 and 2000, just as the government passed its new Land Act and Village Land Act (in legal force since May 2001 (Alden Wily 2003, 13), I carried out fieldwork on changing land tenure practices in Kinyanambo village, Mufindi District (Iringa Region), in the Southern Highlands of Tanzania.2 Kinyanambo is located in the north-eastern part of the Mufindi Plateau (1700m to 2000m in altitude, 950mm annual rainfall (MDC 1997, 9-13)) and lies along the Tanzam highway, which links Dar-es-Salaam to Zambia, immediately north of the district’s capital, Mafinga town. The area has experienced rapid change since Mafinga was first established during compulsory villagization in 1974 (incorporating part of Kinyanambo’s land), and increasingly so during the current period of structural adjustment and liberalization. The Southern Highlands saw quite high levels of non-African settlement during the British colonial period and Mufindi, with its relatively fertile soils and favourable climate, has attracted substantial foreign investment over time. Non-African settlers moved to the Mufindi highlands (an area now well-known for its tea plantations) from 1926; land alienations in Kinyanambo’s immediate vicinity, an area known as the ‘Sao area’, began shortly thereafter. A large non-African settlement scheme was established in the Sao area in 1937 and much of its land later became part of the government’s plantation forest at Sao Hill, where a saw mill was built in the late 1970s. A pyrethrumprocessing factory was also built in the late 1970s in Kinyanambo itself (Daley 2004, 79–90, 93–7, 150–3, 174–5, 182–3; cf. Blue Book 1926; 1937).

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My fieldwork in Kinyanambo included key informant interviews with 24 women and 30 men, a socio-economic survey of 156 houses (my first survey), a land transaction survey of 61 houses (my second survey), a review of local land and court records, and numerous contextual interviews with local officials, businesspeople and the like. My two surveys addressed the ‘economic unit’, the smallest economic grouping in each sampled physical ‘house’, which usually comprised the resident nuclear family (the core economic group of the head of that house) and did not always equate to the ‘household’, a conjugal and/or familial and social entity which sometimes consisted of multiple economic units spread between one or more houses. I therefore distinguish between economic units and the ‘household head’ of the households in which they lay (Daley 2004, 49, 172, 276–84). This chapter draws on the full range of my fieldwork data plus relevant secondary material in analyzing the impact of commoditization, rural–urban change and local land registration practices on women’s land rights and their means of access to land. It begins with a brief sketch of land relations in old Kinyanambo (before 1974) and then outlines key changes after the enforcement of Tanzania’s villagization policy and the establishment of Mafinga town, including to farming and relative wealth/poverty. The chapter then describes local land registration practices and the Kinyanambo land market, before analyzing the importance of a range of mediating factors to land relations in Kinyanambo by 2000. Case studies drawn from my key informant interviews with women (using pseudonyms) are presented throughout.

Old Kinyanambo Kinyanambo was first settled in the 1920s by five wenyeji kabisa families (literally ‘totally original inhabitants’). The core area of the old village, near the Kinyanambo River and the British Great North Road, was settled by one family around 1927–28; the others settled in outlying areas nearby, and at least one of them had probably lived in the immediate vicinity since the German colonial period. The wenyeji kabisa were all Wahehe, the main ethnic group in Iringa Region, who today comprise 85 per cent of Mufindi’s population (MDC 1997, 2). Gradual expansion saw Kinyanambo’s total population reach a maximum of 855 by the eve of villagization in 1974 (Daley 2004, 94), with land and farming important to livelihoods throughout. Women were the main farmers, with maize, millet, sweet potatoes, beans and Irish potatoes

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo the main crops. Men worked for wages as required, and most women depended on them to meet most cash needs, but men continued to have land farmed on their behalf while working elsewhere and some kept livestock or grew crops for sale. The wenyeji kabisa of old Kinyanambo acquired large landholdings as first occupants of the areas in which they lived; they chose the land they wanted and then the (male) family head went to the jumbe (headman) at Rungemba (the village bordering Kinyanambo to the north) to have their choice endorsed. Wenyeji men cleared land for farming as they needed it, passing some on to their children, and their sons cleared more land in turn. However, wenyeji land was not inalienable and over the years it was also transferred to (male) newcomers outside the family. Although land was formally administered by wajumbe during the colonial period, their powers were in practice subject to social norms and wenyeji support and they would discuss all local land matters with the karani wa kijiji (village leader) and the wenyeji men of the area; a newcomer would also always approach the wenyeji first to ask where he might live and farm, before going to the jumbe to have him confirm his right to the agreed area. The wenyeji kabisa continued to exert considerable control over land after independence in 1961, right up until 1974 (Daley 2004, 114–22; 2005a, 372–5; cf. Brown & Hutt 1935; Redmayne 1964). The alienation of large areas of land to non-African settlers during the colonial period and ensuing payment of compensation, and the application to alienated land (granted rights of occupancy) of a formal tenure system based on European legal concepts – as distinct from the separate regime of customary law for African-held land (deemed rights of occupancy) – contributed to growing local perceptions of land as an individually-owned commodity with monetary value. By the eve of villagization (male) African newcomers were increasingly buying land in Kinyanambo, for example if it contained trees or had already been cleared and farmed, as agricultural development, rising employment and population growth gradually stimulated sales and purchases of land – particularly during the late 1960s and early 1970s as uncleared land became scarcer with increasing inward migration. Such purchases (usually involving transfers of deemed, rather than granted, occupancy rights) conferred locally recognized ownership rights (including absolute disposal rights) and, like most land transfers, were witnessed (Daley 2004, 122–8; 2005a, 380–3). Women’s access to land in old Kinyanambo was less direct than men’s. On marriage a Mhehe woman would traditionally be shown land at her husband’s place for her to use to provide food for her

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family: usually this was land given to her husband by his parents when he first married (a part of his father’s land or a part of the land his mother had used since her marriage), or by his maternal uncles. If the marriage ended in divorce, all the land was usually retained by the man and the woman would return to her natal home and be given land by her parents or brothers. If her husband died, a woman might also return home, as it was not easy to stay and retain access to the land she had been farming without marrying one of her brothersin-law (cf. Brown & Hutt 1935; Redmayne 1964). A Mhehe woman marrying a man from the same place as herself would also be shown land to use by her husband, but was usually given additional land by her own family which she retained on divorce or widowhood. Wahehe women could inherit their parents’ land, though in smaller shares than their brothers (cf. Odgaard 1998); they could also give and bequeath land to their children, although they understood that their rights over land shown to them by their husbands were not absolute. Many of my female informants had obtained land from their parents before villagization if they had stayed in Kinyanambo on marriage, had never married, or had returned home on widowhood or divorce. However, daughters of more junior wives and women lacking support from male relatives, for example, found it harder to assert their claims. The cases of Bi Sophia and Bi Emilie are typically illustrative of Wahehe women’s past means of access to land: Bi Sophia was born in old Kinyanambo around 1931–32. She became a primary school teacher around 1954 and was then given 3 acres of land by her parents. She moved around a lot for work and only returned to live in Kinyanambo in 1977, but during those years away she gave money to her younger sisters (who had themselves also been given land by their parents) to pay wage labourers so that she could get food from her land. Bi Emilie was born in the Mufindi highlands around 1940–42. She moved to old Kinyanambo on marriage but left the land her husband gave her to farm there when they separated. She was then given 2 acres of land in her natal home by her father, which she continued to farm after marrying again. She moved back to Kinyanambo on widowhood in 1986 and bought 1.5 acres of land, but for the next ten years also returned home each year to farm her other land. She would now like her children to go and farm that land; they could not inherit their father’s land as he had been using his mother’s land which his maternal grandfather had not bequeathed on to him.

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo

Map 3.1 Sketch map of Kinyanambo Village, showing the three main settlement sites A and B, from 1974, and C, from 1982, and important landmarks (Source: Adapted from 1982 Ministry of Land Surveys and Mapping Division survey sheets 232/2 and 232/4 (Series Y742, Edition 1-TSD))

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Modern Kinyanambo Tanzania’s villagization policy was enforced in Mufindi District between July and October 1974.3 People living in the outlying areas of old Kinyanambo were moved to the old core area, around the junction of the newly-built Tanzam highway and the road to Sadani, where the ‘new’ village of Kinyanambo was planned; this became the centre of the modern village, known today as Kinyanambo A. A few people also settled along the Tanzam near the newly-established town of Mafinga, in Kinyanambo B; Kinyanambo C, around the junction of the Tanzam and the road to Itimbo, was settled from 1982 (see Map 3.1). Villagization has since become a reference point for social identity in modern Kinyanambo. Here I use the term uenyeji (literally ‘localness’) to describe a complex characteristic shaped by a person’s arrival time in the location, length of residence therein, local kinship ties and general level of involvement in local social and political relations (Daley 2004, 2, 48–9; 2005a, 392). After villagization the wenyeji kabisa and the various newcomers who had moved into old Kinyanambo in the years to 1974 coalesced into one coherent uenyeji group, which I call the ‘wenyeji’, whose shared bond is that they had all lived in the old village. A second, broader, uenyeji group then gradually emerged, which I call the ‘wenyeji of villagization time’. These were the new village residents of villagization, the late 1970s and the 1980s; they were all newcomers vis-a-vis the wenyeji but by the late 1990s had established themselves socially and politically in the modern village. The 1990s then brought a new wave of ‘newcomers’, the largest uenyeji group, who, while the most diverse, nonetheless have different interests to the former two groups. Finally, a much smaller fourth uenyeji group emerged in the late 1990s: people born in modern Kinyanambo to wenyeji or wenyeji of villagization time parents, who by 2000 were household heads in their own right (Daley 2004, 162, 188; 2005a, 392; 2005b, 527). Before villagization people’s farms were usually near their houses, so most of the wenyeji – those from the various outlying areas – kept most of their land. However, those who lived in the old core area generally lost land for the incomers to build new houses on. Village governments were given extensive jurisdiction over land, including powers to expropriate and reallocate land and to control land use (Friis-Hansen 1986, 28-9; Von Oppen 1996, 99; Sundet 1997, 97): house-plots were therefore allocated by the village government, while mashamba (rain-fed

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo farms) and vinyungu (riverine/irrigated farms) were also paced out and allocated to newcomers (as customary/informal (deemed) land rights, and not formal granted rights). In practice, however, as one informant explained, the village government ‘asked the wenyeji to show the newcomers where to build and where to have farms’ (Daley 2004, 165-8; 2005a, 392, 394-5). The new farms were mostly close to the new settlement site, in areas near the rivers which were formerly used communally for grazing but had been individually owned. Land was allocated for all adult villagers, but male household heads were ‘given’ the family land and only single women (such as widows or unmarried mothers) were able to obtain land in their own right; it then became easier for married women to be directly allocated land during the 1980s (McCall 1987, 205-6; Booth et al. 1993, 77), as Mama Martina found: Mama Martina was born in the Mufindi highlands in 1954. Her father was a senior politician and she became his driver’s second wife. In 1981 she moved to Kinyanambo and became involved in local politics. Her husband (by then working as a bus driver in Iringa town) bought a small house-plot on which he built her a house, but she went independently of him to the village office to ask for land for farming and was allocated a 2-acre shamba and 1 acre of vinyungu.

Over time many wenyeji ceased farming the land furthest from their new homes and looked for new land nearby; this increased land pressure around the new settlement site – exacerbated by proximity to Mafinga town – and caused a decline in long fallowing (Raikes 1986, 111–2; Mohamed 1989, 3, 30; cf. Friis-Hansen 1986). Mufindi District headquarters had been established at Mafinga in 1974–75 and it was officially declared a township in 1984. In Tanzania residents of a declared urban area become subject to town planning legislation and have to obtain formal granted rights of occupancy or be regarded as squatters, their pre-existing deemed (customary/informal) rights being extinguished. However, anyone to whom their land is granted is supposed to compensate the former landowner for their unexhausted improvements: the resources (rasilmali) or expenses (gharama) permanently invested in or on the land, such as permanent dwellings, wells, fences, trees, standing crops, and labour expended in maintaining irrigated farms and first clearing of the land (James & Fimbo 1973, 30; Fimbo 1992, 65–81, 117–8; Shivji 1998, 26–32). Residential houseplots began to be surveyed in Mafinga in the late 1970s, including in some parts of Kinyanambo B, but no more surveying was then undertaken in Kinyanambo until the late 1990s.

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COMMODITIZATION AND RURAL–URBAN CHANGE

Kinyanambo’s population grew to a maximum of 2367 by 1980, 3192 by 1990 and 5431 by the end of 1999 (Daley 2004, 14, 136). The 1970s and early 1980s had seen living standards fall significantly across rural Tanzania; the current period of structural adjustment and liberalization then began with the National Agricultural Policy of 1983. This stimulated commercial farming and resulted in a large increase in ‘landgrabbing’: the granting of formal occupancy rights to urban businesspeople and other wealthy, well-connected individuals over land they had usually first bought from individual villagers (Hydén & Karlström 1993; Izumi 1999, 87–9, 110; Shivji 1998, 32–9; Sundet 1997, 133–5, 148). After villagization payments for land in Kinyanambo initially ceased and none of the wenyeji whose land was taken for others’ farms or houses received any compensation. However, people acquiring formally surveyed house-plots from the District Land Office paid compensation for unexhausted improvements because they were unable to develop their plots without settling with the former landowners. With increasing liberalization, urbanization and population growth, payments for land in two other forms then resumed in Kinyanambo – as sitting allowances and land purchases. First, by 1980 sitting allowances were being paid to the village land committee as a recompense for members’ time spent allocating land; such payments were long-established in Uhehe, where the local wenyeji kabisa had traditionally been given ‘gifts’ by newcomers (in cash or kind) to help to ensure a welcome (Daley 2004, 121–2, 169–70; 2005a, 396–7). Second, during the 1980s the demand for land for cultivation and construction rose; this combined with the growth of the cash economy to increase pressure on wenyeji (men) to sell land, especially as falling yields from declining long fallowing made asset sales a better source of cash than agriculture itself. As off-farm earnings increasingly contributed to wealth accumulation, many Kinyanambo wenyeji gradually became relatively poorer, their generally more limited educational qualifications compared to the wenyeji of villagization time decreasing their access to employment and skilled work.4 Meanwhile, wenyeji of villagization time, and outsiders from Mafinga and elsewhere, with money from off-farm earnings to invest more profitably in agriculture, were steadily buying up village land (Daley 2004, 162–3, 170; 2005a, 392–3, 397). As structural adjustment and liberalization continued during the 1990s, the local economy grew considerably, and with it Kinyanambo B and C. The parts of Kinyanambo B nearest Mafinga were, by 2000, more crowded and had higher land prices than elsewhere in the village;

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo house-sharing was also common there, resulting from the high demand for housing and shortage of space for new construction near the town. In contrast, Kinyanambo C grew rapidly due to its perceived availability of land: being outside the town boundaries, granted rights of occupancy over larger farms could be formally obtained there, making it attractive to outsiders seeking land near Mafinga. However, by 2000 it was also planned to extend the town boundary into Kinyanambo C, attracting those who hoped for future profits when house-plots were surveyed. Meanwhile, a relatively wealthy ‘middle class’ was solidifying in Kinyanambo, as the wenyeji of villagization time (and some newcomers) in public sector employment benefited from better-paid and more secure jobs, and some of those retrenched joined the (many other) often younger and better-educated newcomers in taking up the skilled work and business opportunities presented by the growing town. FARMING AND WEALTH DIFFERENCES

In Kinyanambo in 2000 almost all families still farmed. Mean average landholding among economic units in my first survey (total land owned in Kinyanambo, entailing possession of locally recognized rights of control and transfer) was 3.3 acres; the largest landholding was 29.5 acres. Actual farm sizes in Kinyanambo were usually smaller: a mean farmed area of 2.4 acres and a maximum of 10.75 during the 1999/ 2000 agricultural year. There were no obvious differences in average landholdings between economic units in female- and male-headed households, nor in farm size between smaller and larger units. However, there were clear differences by uenyeji:5 54 per cent of newcomer units owned either no land in Kinyanambo or less than 1 acre (usually just a house-plot and/or vinyungu), compared with 16 per cent of wenyeji of villagization time units and 3 per cent of wenyeji units; 78 per cent of wenyeji units had landholdings above the mean of 3.3 acres, compared with 40 per cent of wenyeji of villagization time units and 12 per cent of newcomer units. These differences are particularly interesting when it is considered that the majority of wenyeji units were in female-headed households.6 Six per cent of the economic units in my first survey farming in Kinyanambo in 1999/2000 were renting, and 13 per cent borrowing, at least some of that land; a few did both. In addition, 19 per cent of units were renting, and a further 8 per cent borrowing, housing. Many people cultivated ‘kitchen gardens’ on the house-plots which in some cases was their only farmed land. Major crops were maize, green vegetables, beans and Irish potatoes, with sweet potatoes, bananas, peaches, sunflowers, and pine and bamboo trees also commonly grown. The

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majority of the economic units in my second survey of farming in Kinyanambo in 1999/2000 used fertilizer and nearly all used pesticide; a fifth used wage labourers. Before villagization wage labourers were mainly hired by wealthier people but by 2000 they were increasingly used by poorer people, unable to farm themselves because of sickness or old age, and paid for with money received from children or other relatives. My informants generally claimed that more land was now needed to get the same output as in the past (because yields (and soil fertility) had fallen over time) and that farming could not be relied on either to meet their own food needs or for profit (Daley 2004, 199–202; 2005b, 537–8). Yet despite steadily growing local opportunities to earn nonagricultural cash incomes – with 92 per cent of economic units in my first survey obtaining cash from at least one non-agricultural source in 1999 – farming remained vital to livelihoods, and thus land a key asset. Moreover, the most lucrative activities of 18 per cent of economic units in my first survey during 1999 were agricultural, and 55 per cent earned at least some money this way. Structural adjustment and liberalization policies had introduced user fees for health and education services and triggered price increases and availability problems for farming inputs; villagers were also subject to a wide range of increasing sales, income/profits and development taxes as well as license fees for bicycles, places of business and the like (Ellis & Mdoe 2003, 1379–80; Mbilinyi 1997, 5, 21–5; Narayan 1997, 21–3, 42–3; Turuka 1996, 33, 41). Using housing quality and possessions scores (P Scores) to assess wealth differences in Kinyanambo by 2000 (Daley 2004, 202, 278–84; cf. Sender & Smith 1990), I found that wenyeji and wenyeji of villagization time units were by then poorer on average than newcomer units and that economic units in female-headed households were much poorer on average than economic units in male-headed households. For example, the mean P Score for units in female-headed households in my first survey was just 0.7, compared with a mean of 2 for those in male-headed households; 52 per cent of units in femaleheaded households had P Scores of 0 and 37 per cent scored 1, compared with only 15 per cent each of those in male-headed households. At the same time, two distinct subsets of wealthy people had emerged in Kinyanambo by 2000 from within the new ‘middle class’ – one with relatively large landholdings and farms and the other with very small landholdings and farms (Daley 2005b, 539–40; 2004, 206). Members of both subsets generally had earnings from businesses (and small businesses), salaried employment and skilled work – livelihood activities which normally all required formal education or training and/or generated higher cash incomes throughout the year. However, the

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo latter subset – those with very small landholdings and farms – were predominantly newcomers to Kinyanambo, usually with only one or two (relatively secure) sources of cash, who were mainly farming to produce some of their own food. In contrast, the former subset – those with relatively large landholdings and farms – were either wenyeji of villagization time who had had time to acquire more land or newcomers who had the money to obtain land more quickly; this subset were more likely to be engaging in profitable agricultural activities (or at least earning some on-farm cash). Both wealthy subsets were thus also distinct from the much poorer wenyeji with relatively (and sometimes very) large landholdings, whose sources of cash income were now more limited and less remunerative. The two subsets of wealthy people were also predominantly male. For example, no women in Kinyanambo were self-employed skilled workers, and women were generally less likely to be salaried employees; they tended instead to undertake work that was lower paid and (frequently) less secure. Older women generally had fewer livelihood options than both older men and women of their daughters’ generation, given their more limited education, although work opportunities for wage labourers have multiplied and growing demand from urbanization and population growth have provided increasing opportunities to earn money from the production and sale of alcohol (Daley 2004, 189–91). Furthermore, female poverty in Kinyanambo deepened during the 1990s with the deterioration of support networks as kinship relations were renegotiated, for example as economic uncertainty forced younger people to prioritize their immediate families and as the deaths of adult children from HIV/ AIDS (and related illnesses) left older people without the support they had expected in old age. Some 10 per cent of economic units in my first survey were headed by widowed grandmothers bringing up often orphaned grandchildren: these women and their dependents were among the poorest people in the village.

Land Registration By 2000 almost all the land in Kinyanambo was individually owned and there was very little left for the village government to allocate. By far the most commonly anticipated ways of being able to obtain land in Kinyanambo were through purchase and, to a lesser extent, rental; only small numbers of people reported that land might be obtained through nonmarket mechanisms from relatives, non-relatives or the village govern-

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ment. Yet the village government retained a role in land allocation through both the (re)allocation of land that was not being farmed by its owner (Daley 2004, 158, 164–5, 241–2; 2005a, 382, 389, 393–7; 2005b, 551–3, 559–60), and the informal registration of private land transfers.7 First, the allocation of land by the village government (widely described as ‘buying from the village government’) involved the payment (by 2000) of a one-off TSh 50008 per acre sitting allowance, although this could sometimes be avoided by those with good local social and political connections on payment of smaller discretionary amounts of ‘chai’ (literally ‘tea’ – a form of bribe (rushwa)). This chai contrasted distinctly with sitting allowance (posho, daily food rations, maintenance etc.), which was perceived as ‘money you get for doing something’ and was generally tolerated locally as a (more or less) legitimate payment or ‘gift’ (Daley 2004, 169–70, 228, 253–4; Daley 2005b, 553–4). Second, sitting allowance was also payable to the village land committee on the informal registration of private land transfers (Daley 2004, 251, 253–4; 2005b, 553–4, 561–2). In the case of land sales (allowed (up to 5 acres) since the 1995 adoption of the National Land Policy), the purchaser was supposed to pay TSh 5000 per acre to register their purchase in the village office, while the vendor was supposed to notify the village office of the sale and make a contribution from their sale proceeds (at no set rate) towards the cost of this registration in the new owner’s name. All deemed (customary/ informal) rights to land were supposed (according to local practice) to be registered in the village office, although many private land transfers were not registered at all. However, to obtain granted rights of occupancy land had to be formally registered at the District Land Office; individual fees to survey and register farm land started at TSh 300,000, so at TSh 5000 per acre in sitting allowance it was clearly much cheaper to informally register land at the village office. To formally register a house-plot in the declared urban area (as a granted right of occupancy), people would first look for the plot they wanted and arrange to settle with the existing landowner; they would then check whether it had already been allocated by the District Land Office and, if not, pay an official fee of TSh 24,000 as a contribution to the surveying costs (Daley 2004, 20, 143–5, 234; 2005b, 554). The case of Mama Lisa shows the potential consequences of not registering land in Kinyanambo: Mama Lisa was in her mid-30s and had moved to the Mafinga area with her parents when still small. She inherited 2.5 acres of land in Kinyanambo from her father in 1985, but 2.25 acres has since been built on by other people: she had not registered this land (anywhere) in

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo her own name as she had not realized that doing so would have helped protect her right to receive compensation when it was formally surveyed and allocated for house-plots. She has now planted trees on the remaining 0.25 acres to assert her rights to it and raise its future compensation value; she could neither afford to register it at the District Land Office, nor to develop it thereafter as would then be required, but was also too poor to register it informally at the village office.

Farm land and house-plots could legally be registered at the District Land Office in joint names with both parties’ consent. However, cost issues aside, most women did not know that they had the right to ask their husbands for joint registration of their farms and house-plots, and would anyway have been afraid to ask (in case the husband thought that his wife was planning to leave him and wanted to get some of their property registered in her own name before doing so) (compare Nyamu-Musembi in this volume) – despite the efforts of the joint International Labor Organization/ Mufindi District Government ‘Action to Assist Rural Women’ project since the early 1990s to sensitize local people about women’s land rights and encourage formal land registration to be done in joint names. By the end of 1999 only one of the 821 house-plots in Kinyanambo that were fully surveyed and allocated was therefore registered in joint names (to a husband and wife in Mafinga), although at least 32 others had been registered individually by women from Kinyanambo. Mama Janet, a well-educated, middle-aged former district government employee was one of them: Mama Janet was born in 1960 in Mbeya Region and moved to Mafinga in 1989. Since 1992 she has lived in a large modern house in Kinyanambo that she built with her husband; he obtained the houseplot and formally registered it in his sole name. However, her husband had since left and she was no longer entirely secure there. In 1997 she therefore went to the District Land Office and obtained the neighbouring house-plot for herself; having seen that no-one seemed to be responsible for it, she then followed the same procedure that she had previously seen her husband use.

In contrast, Mama Lucie, a district government employee in her mid30s, was not as sure either of her actual rights or of her ability to claim them: Mama Lucie lived in a (still unfinished) modern house that she was building with her husband. She knew that women had the right to buy their own farm land; however, she was not aware of the procedure to formally register a house-plot in joint names and their plot was currently registered in her husband’s sole name. She was very concerned that her

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husband’s relatives might take the house that she had invested a lot of her own time and money in if he should die.

The Kinyanambo Land Market Fifty-seven per cent of economic units in my second survey had engaged in land transfers in Kinyanambo between 1997 and 2000. Forty-six per cent of these transfers were through non-market mechanisms: gifts of land (19 per cent), loans (15 per cent) and inheritance (12 per cent). Twenty-nine per cent of all these non-market transfers were undertaken by units in female-headed households, 71 per cent by units in male-headed households. The remaining 54 per cent of all land transfers in Kinyanambo between 1997 and 2000 were market transactions: purchases or sales of farm land and house-plots (23 per cent) and farm land and housing rentals (31 per cent). Seventeen per cent of all these market transactions were undertaken by units in female-headed households, 83 per cent by units in male-headed households. Moreover, 36 per cent of economic units in my second survey were, by early 2000, actively planning to undertake at least one farm land or housing transfer in Kinyanambo during the following 12 months; 82 per cent of all these anticipated transfers were market transactions. Twenty-six per cent of all the transfers, and (by coincidence) all the market transactions, were reported by units in female-headed households, 74 per cent by units in male-headed households. Although most were not actively looking, 75 per cent of economic units in my first survey wanted more land for farming in Kinyanambo in 2000. Respondents generally felt that they lacked sufficient land to meet their food needs; some also wanted more land to pass on to their children, as an asset for future sale, or to secure a livelihood in old age. Demand was stronger for the scarcer and more fertile riverine vinyungu; these were more reliable than rain-fed land, could support multiple cropping, and were especially sought after for growing fresh fruit and vegetables for sale in Mafinga. However, demand from those with money to invest profitably in agriculture pushed up vinyungu prices and made this type of land more difficult for poorer people to obtain. Indeed lack of money was the main reason why most units who wanted more farm land in Kinyanambo had not yet obtained it and was a particular problem for units in female-headed households, usually containing fewer cash-earning adults than units in male-headed households, as money for investments in land and farming had to compete with other more immediate needs. Meanwhile, many of those

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo who did not want more land for farming in Kinyanambo were poorer wenyeji families headed by (often female) grandparents, with relatively large landholdings, who already had as much (or more) land than they were able to farm productively (or even at all). Most respondents reported that they could get land in Kinyanambo by buying it from other individuals in the village; some specified that this was likely to be from those who were undertaking distress sales. As one would-be purchaser explained: ‘Those selling are those people living in Kinyanambo who are poor and are not able to use all their land, they can’t farm a big area as they can’t pay for fertilizers and wage labourers’ (Daley 2004, 230; 2005b, 551). Poverty (or, rather, the need to raise money to meet immediate cash needs) was particularly relevant in the case of the poorest wenyeji families headed by middle-aged and older women. The wenyeji were thus widely known in Kinyanambo (and Mafinga) as the main sellers of land; some also rented out farm land in the short-term that they were unable to make use of themselves (long-term renting making the land vulnerable to re-allocation by the village government). For example, Mama Prudencia was a middle-aged woman who obtained her land in Kinyanambo in this way: Mama Prudencia moved to Kinyanambo in 1988 with her second husband, but separated from him and left Kinyanambo in 1996. She returned a year later, whereupon she easily found a house to rent as she already knew the people to ask. In 1998 she rented 0.25 acres of vinyungu from an older mwenyeji woman and was then given the opportunity to buy it outright in 1999, which she did.

Gender, Uenyeji, Wealth, Confidence and Land As I have argued elsewhere, gender, uenyeji (localness) and wealth were the three main factors mediating land relations in Kinyanambo by 2000 and, of these, wealth was the most important: the majority of land transfers were now individualized market transactions, in which the key factor was whether the would-be acquirer of land had the means to pay for it (Daley 2004, 239–40; 2005b, 557–8). Second to wealth was uenyeji. Good local social and political connections were very useful in easing access to land (providing knowledge of where there was good land for sale, what the going rate was, who might be willing to rent out or lend land, and so on), as Mama Prudencia’s case has just suggested, and such connections were particularly helpful to

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poorer villagers as they were more likely to facilitate access to land through non-market mechanisms. However, uenyeji was also important to newcomers like Mama Joan, another middle-aged woman participating in Kinyanambo’s land market: Mama Joan moved to Kinyanambo in 1997 to live in a small modern house she had inherited from her husband in 1993. In 1998 her brother-in-law found a small area of vinyungu for her to borrow from a relative of his from Mafinga and he made all the arrangements for her for this loan. She now wanted to buy 1 acre of vinyungu of her own and, once she had saved enough money, intended to look for the land herself and then ask her brother-in-law to act as a witness to the transaction.

Mama Joan was able to benefit from her brother-in-law’s help because he had lived in the village for longer than she and had built up local knowledge and social relations of value to a widow lacking the confidence to manage on her own. However, as this case suggests, the impact of commoditization, rural–urban change and land registration on the gendered experience of local land tenure practices – on women’s land rights and their means of access to land – was complex and nuanced, and mediated also by a range of other factors including youth, marital status, education and knowledge as well as, above all, confidence in one’s rights, resulting as much from these latter factors as from kinship or other ‘customary’ relations. For example, youth was important because younger people tended to be better educated about their rights and because they were often more confident of asserting them. Young people in modern Kinyanambo could only start to acquire their own land before marriage after setting up a house on their own, because they were expected to help farm their parents’ land for as long as they lived with them. It was more usual for male children to live independently of their parents before marriage than female children, but some young women did also live on their own; they were not necessarily poorer than young men living on their own, and their means of access to land appeared to be mediated more by wealth, uenyeji and confidence than by gender, as the case of Binti Ali shows: Binti Ali was born in the Mufindi highlands in 1972 and moved with her parents to Kinyanambo in the mid-1980s. She was unmarried and lived (free of charge) in a house owned by a non-resident relative, which she shared with some rent-paying tenants. As the eldest child in her family she expected to inherit all her mother’s land (her father was dead). Meanwhile, she could not afford to buy her own land, but had

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo been borrowing a 1-acre shamba and 0.25 acres of vinyungu since 1998. She found it easy to borrow this land – she had just gone by herself to discuss it with the wenyeji and got land.

Marital status was also of vital importance to women’s land rights (Daley 2005b, 556, 558). As Mama Janet (above) explained, it was generally easier in Mufindi District by 2000 for single women to get land in their own right than those who were married: Women here think that the man is the head of the house, so they just leave the men to deal with these things. It is usually the husband who goes to look for the plot or the land, and when he does, the wife understands that the husband is looking for our house or land. Now I am alone I can look for land that is mine alone, but for couples it is the husband’s responsibility. The single woman is the head of her house, so she recognises that she has to look for everything herself. Those who are married are behind their husbands. (Daley 2004, 236; 2005b, 556) Yet there were nonetheless married women in modern Kinyanambo who were undertaking their own land market transactions, whether by choice or necessity, while there were others who had the confidence (and means) to do so but chose not to. The following cases illustrate two of these situations, for monogamously married women: Mama Biashara was a middle-aged woman who moved to Kinyanambo in 1980 when she and her husband were transferred by the government for work. They had a close marriage, co-operating in acquiring assets for the good of their immediate family. In looking for land to buy, they first sat together and planned, and then chose who should go and look for the land and pay for it out of their individual earnings (they had both done this); they then considered that the land belonged to them jointly, regardless of which of them had actually bought (and registered) it. Mama Alicia was a young woman who had moved to Kinyanambo in 1994. She was responsible for farming, while her young sister ran a small kiosk and her husband worked as a self-employed roofer; they decided jointly what to do with all their earnings. In 1995 Mama Alicia had looked for and found 0.5 acres of vinyungu which her husband gave her the money to pay for. Although it was possible for her to get her own land if she looked for it herself and paid for it from her own purse (and she said that her husband could not feel bad about her doing this), in practice she did not see any need to buy her own land. In contrast, Mama Lisa (above) was in an unhappy polygamous marriage and, after realizing that she had lost most of her inherited land, had begun trying to obtain more land herself:

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During the 1990s Mama Lisa borrowed 0.25 acres of vinyungu from a neighbour for four years, but the owner took it back after her husband refused to give her the money to subsequently buy it. By 2000 she was looking for 2 acres of mashamba and 0.5 acres of vinyungu to rent, which she intended to pay for herself. She made all farming decisions independently of her husband and was very clear that she could do what she liked with any land that she obtained herself.

The gendered impact of some of these mediating factors on land relations in modern Kinyanambo could also be seen in situations where women’s land rights were directly challenged. One option here was for women to pursue their land claims through the courts and, as Mama Julia’s case suggests, those with good local social and political connections and with the confidence and money to take a case to court had a good chance of success: Mama Julia moved to Kinyanambo C when still young with her mother and maternal uncle (a mwenyeji of old Kinyanambo). She had had some secondary education, was involved in local politics, and earned cash regularly from a range of (mostly agricultural) income-generating activities. In 1987 she was given a 0.5-acre house-plot by the Kinyanambo village government, but a villager from the neighbouring village of Kitelewasi was then given the same piece of land by the Kitelewasi village government in 1995 during a boundary dispute between the two villages. This man built a house on her plot, but she won her court case against him in 2000 because she had been allocated the land first.

Youth, education and knowledge also appeared to be key factors in determining how, and how far, women would pursue their land claims, with older women often relying on support from their daughters when their land rights were challenged. For example, in a case from the neighbouring village of Luganga in 1999, a man had sold some of his first wife’s land without informing her, leaving her, his adult daughter and the children and grandchildren that the two women looked after with nowhere to grow food. His daughter pursued the case at the village office but got nowhere; she then wrote to the District Community Development Officer, who took the case up at the local court on their behalf. As the land had belonged to her mother, the court found that her father had no right to sell it and the daughter had the right to use it and hence ordered the Luganga village chairman to take back the land from the purchaser and return it to her. However, in some situations these other mediating factors (youth, education, knowledge, and confidence) could not compensate for lack of money and/or good local social and political connections. For example,

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo as Mama Thea’s desperate case shows, widows without wellestablished, independent social relations in the village faced particular problems in Kinyanambo due to the pressures caused by increased demand for land: Mama Thea was a young Mhehe woman who had moved to Kinyanambo in 1996 on marriage, but was preparing to return to her natal home on widowhood during my fieldwork. Despite the fact that she was looking after six children – two of her own, two of her husband’s from a deceased former wife, and two children of his recently deceased sister – her husband’s relatives in Kinyanambo were claiming their house and 1-acre house-plot, which he had bought from another villager in 1990; she had also been asked to return a 1-acre shamba that he had been given by his mother in 1989.

Mama Thea had no relatives of her own in Kinyanambo to help her, directly or by supporting her claims. Yet those claims should have been strong, due to the continuing Wahehe tradition that people looking after orphaned children, aged parents or sick relatives had stronger claims to inherit land (cf. Odgaard 1998): in another local court case in 1999 a woman had successfully challenged her male cousin who had taken her deceased brother’s land; the court awarded her both the land and her costs as she was looking after her brother’s orphaned children. Mama Thea could perhaps have benefited from the support and solidarity of other women, as was the case for some of my key informants who belonged to informal farming groups, church groups and so on. Several other key informants were members of a more formal group, Mwakaumu – a district-wide women’s organization set up by the ‘Action to Assist Rural Women’ project. This project had made efforts in the early 1990s to sensitize both village and district leaders in Mufindi about women’s land rights (as noted above in discussing land registration), and had subsequently run many workshops with Mwakaumu’s women members to educate them about their rights and help them develop the skills to assert them. The result of all this was greater confidence and knowledge, both in the case of women individually and for some of the women’s groups who had since managed to collectively acquire land for their income-generating projects. The Mwakaumu group in Kinyanambo, for example, had been allocated 20 acres of land by the village government for a pyrethrum-growing project, while the Igomaa group had been allocated a central plot in their village, along the road to Sadani, on which to build a large banda to use jointly for selling their individually produced handicrafts.

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Conclusion Drawing on fieldwork conducted in Kinyanambo in 1999 and 2000, this chapter has examined the impact of commoditization, rural–urban change and local land registration practices on women’s land rights in Mufindi District, Tanzania. That there were no absolute gender obstacles to obtaining land in Kinyanambo by 2000 is clear. Access to land was by no means gender neutral, but some women – especially those with money and/or good local social and political connections – had been able to acquire land in their own right and to register it (both formally and informally) in their own names. This was the case much more than in the past, when land was almost invariably obtained through men (fathers, brothers, husbands). However, gender remained an important factor in local land relations because families headed by women were on average poorer than those headed by men; the women best able to secure their land rights were therefore probably fewer than those selling their land because of poverty. We can conclude that the burgeoning land market is not by itself directly eroding women’s land rights in Mufindi District, but that it does have a negative indirect impact through its direct impact on privileging those who have the money to buy and register land. Moreover, there were clearly a range of other important factors which mediated women’s land rights, including youth, marital status, education, knowledge, and, above all, confidence. By empowering women with the confidence to know, protect and claim their rights to land, we can therefore best support them through current processes of economic and social change.

Notes 1 This chapter draws heavily on wide-ranging research I carried out for my PhD (Daley 2004), and also on Daley (2005a; 2005b) which set out key findings; full details of all my sources and analyses can be found in those works. I am grateful to the Government of Tanzania for permission to carry out fieldwork (partly funded by an Additional Fieldwork Award from the School of Oriental and African Studies, University of London), and to everyone who assisted me in this, especially the International Labor Organization/ Mufindi District Government ‘Action to Assist Rural Women’ project staff, the project’s Mwakaumu women groups, my field assistants Joyce Sarufu and Victoria Mganda, and my senior field assistant, Phoebe Msigomba, with all of whom I had many fruitful discussions about women’s land rights in Mufindi District. I am also grateful to my PhD supervisors, Henry Bernstein and Deniz Kandiyoti, my PhD examiners, Colin Murray and Elizabeth Francis, and Simon Allen, for their many comments which have fed into my analysis here. Any errors remain entirely my own.

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Gender, Uenyeji, Wealth, Confidence & Land in Kinyanambo 2 The land tenure practices described in this chapter pre-date the coming into legal force of the Land Act and Village Land Act, which introduced a new national land tenure and registration system across Tanzania. The new system is still far from fully operational and this chapter makes no attempt to analyze its impact on (or implications for) gender and land in Kinyanambo. 3 The intention of Tanzania’s village development policy (launched in 1962) was that people living in scattered rural locations should move closer together to facilitate the provision of services. This was meant to be voluntary and to involve communal farming and development work. However, between 1973 and 1975 the policy was made compulsory across Tanzania (Coulson 1982; Hydén 1980; Sundet 1997). 4 I generally distinguish between employment (permanent and salaried), skilled work (artisanal, usually pursued via self-employment) and wage labour (casual, unskilled, daily or weekly paid). 5 I use the terms ‘wenyeji units’, ‘wenyeji of villagization time units’ and ‘newcomer units’ to refer to the economic units with household heads in each of those uenyeji groups. 6 Thirty-three per cent of economic units in my first survey had female household heads, 67 per cent male. However, 58 per cent of wenyeji household heads were female, compared to only 33 per cent of wenyeji of villagization time household heads and 23 per cent of newcomer household heads. 7 Local land registration practices in Kinyanambo are extensively analysed in Daley (2004; 2005a; 2005b). 8 TSh 1200 = £1 during most of my fieldwork (approximately TSh 780 = US$1).

References Alden Wily, E., 2003. Community-based Land Tenure Management. Questions and Answers about Tanzania’s new Village Land Act, 1999. Drylands Programme Issue Paper 120. London: IIED. Blue Book, 1926 & 1937. Report by His Brittanic Majesty’s Government to the Council of the League of Nations on the Administration of Tanganyika Territory for the year… Annual Reports. London: HMSO. Booth, D., F. Lugangira, P. Masanja, A. Mvungi, R. Mwaipopo, J. Mwami & A. Redmayne, 1993. Social, Economic and Cultural Change in Contemporary Tanzania. A People Oriented Focus. Stockholm: SIDA Brown, G. & A. Hutt. 1935. Anthropology in Action. An Experiment in the Iringa District of the Iringa Province Tanganyika Territory. London: Oxford University Press, for the International Institute of African Languages and Cultures. Coulson, A., 1982. Tanzania. A Political Economy. Oxford: Clarendon Press. Daley, E., 2004. ‘Land Tenure and Social Change in Tanzania. A Study of Kinyanambo Village, Mufindi District’. PhD Dissertation: School of Oriental and African Studies, University of London. Daley, E., 2005a. ‘Land and Social Change in a Tanzanian Village 1: Kinyanambo, 1920s1990’. Journal of Agrarian Change, 5/3, 363–404. Daley, E., 2005b. ‘Land and Social Change in a Tanzanian Village 2: Kinyanambo in the 1990s’. Journal of Agrarian Change, 5/4, 526–72. Ellis, F. & N. Mdoe, 2003. ‘Livelihoods and Rural Poverty Reduction in Tanzania’. World Development, 31/8, 1367–84. Fimbo, G., 1992. Essays in Land Law in Tanzania. Dar-es-Salaam: Faculty of Law, University of Dar-es-Salaam. Friis-Hansen, E., 1986. Changes in Land Tenure and Land Use Since Villagisation and their Impact on Peasant Agricultural Production in Tanzania. The Case of the Southern Highlands. Centre for Development Research Research Report 11 and Institute of Resource Assessment Research Paper 16. Copenhagen:

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ELIZABETH DALEY Institute of Resource Assessment, University of Dar-es-Salaam, and Centre for Development Research. Hydén, G., 1980. Beyond Ujamaa in Tanzania. Underdevelopment and an Uncaptured Peasantry. Berkeley and Los Angeles: University of California Press. Hydén, G. & B. Karlström, 1993. ‘Understanding Structural Adjustment: Tanzania in Comparative Perspective’. In Blomström, M. and M. Lundahl (eds) Economic Crisis in Africa. Perspectives on Policy Responses. London: Routledge. Izumi, K., 1999. ‘Economic Liberalisation and the Land Question in Tanzania’. PhD Dissertation: Roskilde University. James, R. & G. Fimbo. 1973. Customary Land Law of Tanzania. A Source Book. Nairobi: East African Literature Bureau. Mbilinyi, M., 1997. ‘Towards a Viable Farm/Land Policy for Smallholder Farmers. Women and Men; Old and Young’. Paper Presented at the Tanzanian Gender Networking Programme’s Annual Gender Studies Conference, held at the University of Dar-esSalaam, Tanzania, 15–18 September 1997. McCall, M., 1987. ‘Carrying Heavier Burdens but Carrying Less Weight: Some Implications of Villagization for Women in Tanzania’. In Momsen, J. and J. Townsend (eds), Geography and Gender in the Third World. London: Hutchinson. Mohamed, S., 1989, The Effects of Short Fallowing on Agricultural Productivity in Mgololo, Mufindi District, Tanzania. Institute of Resource Assessment Research Paper 22. Dar-es-Salaam: Institute of Resource Assessment, University of Dar-es-Salaam. Mufindi District Council (MDC), 1997. Mufindi District Socio-Economic Profile. Tanzania: The Planning Commission, Dar-es-Salaam, and MDC, Iringa. Narayan, D., 1997. Voices of the Poor. Poverty and Social Capital in Tanzania. Washington DC: The World Bank. Odgaard, R., 1998. Fathers and Daughters in the Scramble for Women’s Land Rights. The Case of the Hehe and Sangu Peoples in South Western Tanzania. SASA Notes and Working Papers, October 1998. Copenhagen: Centre for Research on Sustainable Agriculture in Semi-Arid Africa. Raikes, P., 1986. ‘Eating the Carrot and Wielding the Stick: The Agricultural Sector in Tanzania’. In Boesen, J., Havnevik, K., Koponen, J. and R. Odgaard (eds) Tanzania. Crisis and struggle for survival. Uppsala: Scandinavian Institute of African Studies. Redmayne, A., 1964. ‘The Wahehe People of Tanganyika’. DPhil Dissertation: Oxford University. Sender, J. & S. Smith. 1990. Poverty, Class, and Gender in Rural Africa. A Tanzanian Case Study. London: Routledge. Shivji, I., 1998. Not Yet Democracy. Reforming Land Tenure in Tanzania. UK: IIED, Hakiardhi and Faculty of Law, University of Dar-es-Salaam. Sundet, G., 1997. ‘The Politics of Land in Tanzania’. DPhil Dissertation, Oxford University. Turuka, F., 1996. ‘Input Price Policy Reforms and Their Implications for Input Use in Smallholder Agriculture: Fertilizer Use in Tanzania’. In Schmied, D. (ed.), Changing Rural Structures in Tanzania. Münster: Lit. Von Oppen, A., 1996. ‘Villages beyond Ujamaa. Land conflicts and ecology in Western Handeni’. In Schmied, D. (ed.), Changing Rural Structures in Tanzania. Münster: Lit.

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Four Changing Land Rights & Gendered Discourses Examples from the Uluguru Mountains Tanzania BIRGIT ENGLERT

Introduction This chapter aims to complement the detailed analysis of land markets in Iringa Region by Elizabeth Daley in the preceding chapter in two ways: through a discussion of women’s rights to land in the context of a changing matrilineal/matrilocal framework and a focus on gendered attitudes towards titles as collateral. It aims to show how women as well as men are taking advantage of the flexibility of what is termed the ‘customary system’ to pursue their rights to land. It is argued that the assumed benefits of land titles – enhanced tenure security, creation of a land market, use of land as collateral – also exist in the absence of titles, and that existing practices might indeed be better suited to meet the demands of the poor than registration of land titles. The geographical focus of this chapter is on the Uluguru Mountains which are the dominant geographical feature in Morogoro Region in East-Central Tanzania as they rise abruptly from the plains to an altitude of about 2600 meters above sea level. There is no consensus on when exactly the first people settled in the Uluguru Mountains. Young and Fosbrooke (1960, 21) date the beginning of human settlement to the end of the sixteenth century, whereas according to Kjekshus (1977 in Hymas 2000) the Morogoro District Book dates first settlement to only some 150 to 200 years ago.1 There is more consensus over the fact that people of mixed background moved to the Uluguru Mountains because of the increasingly insecure living conditions in the plains. These ‘settlers’ came as individuals or as families and thus the term Waluguru actually refers

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to a geographical grouping of different clan groups (Young and Fosbrooke 1960, 21–2).2 The population of the Uluguru Mountains increased sharply from the 1880s onwards as more and more people settled on the mountains, mainly for two reasons: rains were better there than on the plains, and it was easier for people to defend themselves against raiders who were attacking both the caravans which passed the Ulugurus to north and south and also the population in the area (ibid., 23). While offering protection against the raiders, the mountains were still close enough to allow their inhabitants to trade in food with the passing caravans. This history has contributed to the great diversity of the Uluguru Mountains area and is also reflected in land tenure practices and in the issue of women’s rights to land. Hartley and Kaare (2001, 6) argue further that the ‘isolated living conditions in many villages have resulted in radically different institutional dynamics existing, even between villages that are geographically very close to one another, which might have been expected to show a high degree of homogeneity.’ The discussion in this chapter is based on a hundred semi-structured interviews (two-thirds of them with women), which were conducted in six different localities in the Uluguru Mountains area in Morogoro Region during 2002 and 2003. Nugutu, Bigwa and Misongeni are peri-urban areas of Morogoro town, Ruvuma and Visole Juu are villages located on the side of the mountain in close proximity to town, and Nyandira is a village situated in the mountains close to Mgeta, about 60 km from Morogoro town.3 In Nugutu and Bigwa, which were both integrated into the municipality of Morogoro in 1994, the number of migrants, many of them from more densely populated parts of Northern and North-Western Tanzania, is high. This stands in sharp contrast to the low level of immigration into the villages of Visole Juu, where production for the market is virtually non-existent, Ruvuma, where vegetables are produced for sale to some extent, and Nyandira, an important center of cash-crop production for the market in Dar-es-Salaam (Englert 2005a, 79–80).

Land Tenure Practices in the Uluguru Mountains: Continuity and Change The Uluguru Mountains are located at the crossroads of what is referred to as ‘patrilineal’ and ‘matrilineal’ societies, with matrilineal

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains and matrilocal arrangements still prevailing in the villages of the upper mountains such as Nyandira, and a predominance of patrilineal inheritance patterns in the villages of the lower mountains and the peri-urban areas. In about 20 per cent of Tanzanian societies forms of matrilineality4 and direct female inheritance of land exist, but as Longway (1999 cited in Hilhorst 2000, 187) noted, inheritance patterns are eventually changing towards the patrilineal model. However, in general women in these societies do have better access to land than women in patrilineal societies, although there are a lot of variations between different communities. In most of the case study area – the exception being Visole Juu5 – access to cultivated land is highly individualized in the sense that it is being held by nuclear families. This does not mean, however, that the influence of the clan does not play any role altogether as will be pointed out below. In the great majority of families land is directly passed on from parents to their children. As Maack (1996, 164) writes, throughout the colonial period ‘parents tried to give a portion of their land to their male and female children at the time of their marriage or just prior to it.’ This is still the most common practice today. Children are generally given their share of the inheritance before they leave the parental home, thus usually before the death of the parents. In the peri-urban areas of Morogoro town, Nugutu, Bigwa and Misongeni, land can generally be inherited by female and male children alike; whether in equal parts or not varies from family to family. In some families, the eldest child, whether a boy or a girl, gets a larger part of the family land than his or her siblings. In other families the land is shared in equal parts. Inheritance practices seem to be mainly led by pragmatism, which might mean that elder children might not be considered by their parents if they have already moved away and formed their own families. If someone has inherited land but does not use it for various reasons such as temporary migration to other areas, this does not undermine his or her rights to that piece of land. Even though other family members might use it in the meanwhile, he or she keeps the rights to the land and can use it on their return. In the densely populated and cultivated areas of the upper mountains where Nyandira is situated, land had already been a scarce resource during colonial times and many parents turned to other relatives in search of plots for their children. Another possibility pursued by young couples was migration down to the plains, where they could still find an unclaimed piece of land. Clearance of land and inheritance were thus the most frequent means of acquiring land

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in the Uluguru Mountains and surrounding plains. Allocation, rent and purchase of land have existed for several decades but gained importance only in recent years as land became increasingly scarce. Rent used to be paid in the form of shares of the harvest called ngoto6 (see Young & Fosbrooke 1960) but nowadays rent is paid exclusively in cash. In Nyandira, the influence of the matrilineal clan is still present and it is mainly women who inherit land. Nevertheless, these practices are also on the decline and young couples, for example, increasingly base their decisions about their future place of residence on personal preferences rather than in accordance with the traditional practice of matrilocality. The answer given by 20-year-old Bertolda Ndonge reflects the current changes and ambivalence quite well: ‘Yes, indeed, the husband moves to his wife, but nowadays it is your choice.’ It is still common for the couple to move to the family of the woman, at least for a period that might be as short as a week but can also last up to several years – depending on the financial capacity of the young family to build their own house. Whether the husband then moves to the homestead of his wife’s family or the other way round, or whether they start their household on a third plot, depends mainly on socio-economic considerations such as who of the spouses disposes of more land. CHALLENGING TRADITIONS

For many men in Nyandira their situation with regard to tenure security seems to be quite similar to that experienced by the majority of women in patrilineal societies: their access to land is tied to their status as spouse. Many men who had stayed at their wife’s compound have had to return to their parent’s home after their wife had died because her relatives would not allow them to continue using the land. One strategy pursued by men in Nyandira to escape this is to buy the plot of land owned by the wife’s family. Sixty-nine-year old Andreas Bernd Mgale who used to live at the land of his wife’s brother, bought the plot because, as he says: ‘Tomorrow or the day after tomorrow, there are relatives who will say that this plot is not mine.’ Annoyances from their own family or the in-laws are perceived as the most common threat to land tenure security in the area, and women in Nyandira also pursue active buying strategies in order to protect their families from the arbitrary behaviour of their relatives. Emma Mlinze, aged 57, recounts: ‘I inherited my fields from my uncle, they cannot annoy me, but when I am no longer there my family can get problems. That is why my husband and I

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains keep on buying fields from other people. One I bought for my child, and then me myself I bought one […].’ An interesting development is that women in Nyandira increasingly argue that they are ‘now awakened’ and therefore no longer want to discriminate against their male children. Several of the women I talked to had decided to challenge the influence of the matrilineal clan and to bequeath part of their land to their sons. The ways they had chosen in this regard were however quite different. First, there are those women (and men) who simply distribute their land equally among their children, thereby directly, but silently, challenging the ‘tradition’, which they no longer perceive as suitable. Emma Mlinze who had chosen that way, stressed that inheritance practices have actually always been more complex: ‘You find others who do not share these thoughts, they tell you that a male child cannot inherit these fields – but you cannot discriminate against him, because if it were like this we would not inherit fields from our fathers.’ She gives the credit for her open attitude in this respect to her father, who she refers to as an old man ‘with an open mind’. Others do not take this course of (silent) confrontation, but try to please both sides – the matrilineal clan as well as their male offspring. They manage the conflict of interest by buying land on the market in addition to the land they own through the family clan. The purchased land can then be left to the male children without the parents having to worry that those children will eventually be harassed by the clan. If the financial means to buy land are not available in time, clan land can temporarily be handed over to the son for cultivation while the parents continue with their efforts to buy additional land. This temporary handing over of land to the sons is generally accepted by the clan as male children are allowed to work the land. However, they must not pass it on to children whose mother is from another clan as in this case the land would be regarded as ‘lost’ to the clan of their grandmother. What makes this temporary solution a risky one is the tendency for male children who feel discriminated against by the matrilineal tradition not to wait passively for their parents’ (mainly mother’s) attitude to change. Increasingly they opt to challenge it openly and bring their cases to court – a development that interview partners accredited to a new awareness about inheritance rights. This new awareness about their rights in formal inheritance law, which prohibits discrimination on the basis of gender, and the consequent actions taken, have however created the paradoxical situation that it has become even more difficult for a son to be given a field from the

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clan land than it was in the past. Many parents have reduced the amount of land they hand over to their sons for temporary use on the grounds that they might not be willing to return it to them after they have married. As 43-year-old Sophia Severin explained: ‘In the past a male child was given land for a certain period and when he had married he left. But nowadays the male children know about their rights and can go to court. Therefore people are afraid to give land to their male children because they think that the field is then already lost for the clan.’ The above example shows that land tenure practices are a highly contested terrain between local ‘tradition’ and influences from outside, including law reform. Increased reference to law might provoke reactions from people whose agency is often underestimated and these reactions might be to the disadvantage of those meant to benefit from the new rights. The discussion above should not be read as testimony of the erosion of women’s rights to land in matrilineal societies, but rather to the active role of women in decision making and in developing strategies which are in their own interest as well as in the interest of their children. MAKING DECISIONS – WHO IS ‘DRIVING’ THE HOUSE AND THE LAND?

Decisions about the use of land in the narrower sense, that is, decisions concerning the choice of crops to be grown and whether or not to sell a plot of land, seem to be highly individualized and lie with the person who inherited (or bought) a certain piece of land. She or he is the one with the power of decision-making, ‘the one with the final say’ (msemaji mkuu or mwenye sauti in Kiswahili). She or he decides whether to have the plot registered or not, what to grow and whether or not to sell it. There might be consultation with the spouse and other affected family members about the selling of certain plots of land, but the final decision lies with the msemaji mkuu. Interestingly, this is not only valid for matrilineal-dominated Nyandira but also for the other villages and peri-urban areas of the Uluguru Mountains where matrilineality is not a consciously perceived concept. Also there are women who hold full decision-making powers over those plots which they have inherited themselves or purchased in their own name. In the interviews most confirmed this as emotionally as 50year-old Reema Jonas from Nugutu: ‘It is me indeed who has the power to decide. Me alone!’ However, when considering other decisions to be taken within the

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains household, men seem to be in a more powerful position. This observation is relevant both for the areas where the influence of the matrilineal clan is considerable as well as for those where it is virtually non-existent. Most women and men in Nyandira for example asserted that, despite consultation among the grown-up members of the household, the father usually takes the decisions. Bernhard Mogela, 32, put it as follows: ‘She has to pass the president of the house, the president of the house is the father.’ However, while this seems to be true for the majority of households, there were also differing accounts such as the one given by Emma Mlinze who asserted firmly ‘what concerns the processes inside the house, the driver is the mother.’ Younger interview partners emphasized that consultation between husband and wife is the norm and that there is no msemaji mkuu as such. Men seemed to have a tendency to present their own position – especially with regard to land sales – in a somewhat idealized way. The decision-making power of women therefore seems to be greater than acknowledged by most men. I had expected that men would tend to present themselves as more supportive of women’s decisions than they actually are. That might still be the case in other contexts, but when asked about decision-making in the household and with regard to land, men always first claimed it as their domain but eventually had to admit that it was in fact more limited than they had been inclined to admit in the first place. Andreas Bernd Mgale for example, claimed that decisions about land sales were, just like decisions about the use of the produce, taken by the husband. When asked more specifically about the decisions in relation to the fields inherited by his wife, however he left no doubt that these are fully up to her. A similar point was made by 65-year-old Nepomuk Johannes Mzonga who stated: ‘Ah, this – what concerns her property, she is going to tell me: I have this place there, so this is what I want to do! I cannot keep her from doing so, […], I have to agree.’

Registering land – more burden than necessity The Tanzanian land law of 1999 provides for the registration of title deeds with the village council as land manager. At the time of the research, implementation of the new law was still lacking and it seems that there has been little change so far (cf. chapter by Ikdahl in this volume). Thus, the aim of the study was to find out about attitudes towards registration of land among women and men in

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villages and peri-urban areas, to see what they think about registration as a means of protection against land tenure insecurity. Of special interest were the opinions of women on the option of jointregistration (of land in the name of adult heads of the family) which is provided for in the new Tanzanian land law of 1999. (cf. Alden Wily 2003) In peri-urban areas the large majority of female interviewees responded that the land which they had either inherited or bought themselves would be registered in their name, while some preferred to have it registered in the name of their children. For none of them did it seem to be an option to imagine having it registered jointly with their husband or even in his name. However, titling in general seems to be rejected on the grounds that it would be an additional financial burden while it was not felt likely to improve the perceived security of tenure – rather to the contrary: interview partners in the peri-urban areas stated that they considered it more secure to leave their land unregistered. For them registration meant that they would in the long run become subject to all kinds of taxes which they would not be able to pay. Therefore, they argued, failure to pay the taxes might lead to them losing their land which is why they regarded it as more secure to remain without a title to land (cf. Englert 2003, Englert 2005a): Cousins et al. (2006, 28) have noted a similar attitude in their case study on South Africa where they observed that despite the titling programme all property sales were informal. As Alden Wily (2006a, 18) points out, in theory the peri-urban areas might indeed be one of the few domains where titling has the potential to fulfill a major securitization function as formal registration of plots of farmland does a great deal to lessen the power of governments to wrongfully expropriate without compensation for the now much raised (urban development) values of the land. The procedure for converting rural to urban areas under the land laws in Tanzania7 has taken this into account; customary rights cannot be extinguished without due process of law and now that ‘land has value’, ‘compensation for the open market value of the land must be paid, not just the value of crops on it, as was the case prior to 1999.’ (Alden Wily pers. comm.) In practice however, these provisions will remain difficult to implement and the reality in many newly defined peri-urban areas is that the former villagers are losing out precisely because of the formalisation processes through registration. The peri-urban areas of Morogoro town, to which Nugutu, Bigwa and Misongeni belong, might serve as an example here. These

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains former villages whose inhabitants used to derive their livelihoods mainly from agriculture, have been included within the municipality in a top-down process which did not include any consultation on the part of the population (cf. Izumi 1998). Since they have been turned into peri-urban areas, they have continually lost land to richer newcomers who were either allocated land by the municipality or bought it on the market. Most of them do not engage in agriculture but use the land for building plots and usually have no problems paying for its registration which is mandatory, as the land now falls under urban land legislation. The former villagers on the other hand cannot afford registration and a fear of future developments was given as a main cause for the increasing land sales. Interview partners such as Margret Yahaya from Bigwa explained that they preferred to sell their land as soon as possible in order to get at least some money rather than wait for the government to confiscate it without compensation: [We have been told that] if you do not have the money to pay for your field, your field will be taken and will be given to another person. [...] We at the low level, we do not have the money to pay for the registration, […] so the field will be taken. People said that they have decided to sell their land because they are afraid of what is going to happen in the coming years. Many people are selling their plots, many are afraid. I can have a big plot of land but if I fail to pay when the government comes they will have to take the field. […] When the government has already taken your field you cannot get any money – the money then has already entered the purse of the government.

The process which can be observed in peri-urban areas such as Bigwa is thus that people increasingly sell off their land from fear of failing to deliver their taxes and then rent another plot of land – in many cases outside of the municipality. The following comment from Destuta Kidogo, 38, nicely sums up the relationship between the preemptive land sales in the peri-urban areas and the increased cultivation in the ‘new agricultural centres’ such as Mikese: The area here belongs to the municipality, so every person says, they are coming, they cheat us for our fields, the people come and ask for plots, they are being measured and measured, and give you some money. So when the municipality comes to measure the plot, many people here in Bigwa sell their fields, they sell to strangers, therefore we are cultivating far away, in Mikese […] In Nyandira, attitudes were again different and much more positive towards the option to register land. This mainly seems to be due to

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the intensive cash crop production there and the related cash income. Confronted with the possibility of registering land against payment most respondents asserted that payment would not be a problem. As Bertolda Ndonge acclaimed: ‘You can pay, because due to the climate here, you have three seasons over the whole year, you can get a lot of money, so you can get that money to pay because you are perhaps afraid of annoyances.’ Among those who did not see titling as a financial problem, opinions are divided about its necessity. Some regard a title deed as a welcome option against troubles and disturbances while others regard a system of registration of title deeds from the side of the government as rather unsuitable, as land related conflict were mainly due to unresolved inheritance problems. Several interview partners therefore considered the writing of wills in which the landholders write down how the land should be divided after his or her death as more important – and easier to implement. Those who rejected registration did so mainly on the grounds that people refuse to pay for what they regarded as ‘their property’. While demand for registration of land as a means to enhance security of tenure can be said to be low, the next question to explore is whether the option to use title deeds as collateral for loans has any appeal to women and men in rural areas of Tanzania – drawing again from evidence from the Uluguru Mountains.

Mortgaging the land In its much debated Policy Research Report (PRR) on land entitled ‘Land policy for pro-poor development’ the World Bank (2003) – drawing heavily on de Soto’s ‘Mystery of Capital’ (2000, ‘cf. criticism by Nyamu-Musembi in this volume’) – aims to encourage smallholders to use their land as collateral. In the Executive Summary of the PRR the linear logic of security leading to investment leading to growth is outlined under the heading ‘Importance of Property Rights for Economic Growth’: ‘Property rights affect economic growth in a number of ways. First, secure property rights will increase the incentives of households and individuals to invest, and often will also provide them with better credit access, something that will not only help them make such investments, but will also provide an insurance substitute in the event of shocks.’ (World Bank 2003, xix) As I have argued more fully elsewhere (Englert 2005b, 12), I am less convinced that in the context of rural Africa, credit could serve as an insurance substitute in the event of shocks. I would argue that it is more likely

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains that ‘the event of shocks’ will result in failure to repay the rates of credit and result in the loss of the ‘secured’ land in the first place. The danger that many households will end up landless because of their inability to pay back the loans was not mentioned at all in the first draft of the PRR which was circulated for discussion (see Manji 2002, 9).8 While this not in the least unrealistic danger was mentioned in later versions, this was done – as Manji (ibid., 10) has pointed out – in a context which reveals that ‘[I]n fact, the Report treats this risk as a problem not for the household but for commercial lenders.’ In the more recent working paper published by the World Bank (2006, 13) its authors note that ‘evidence shows that simply introducing title deeds may not lead to collateralized lending […]’ and that ‘[…] it is unlikely that a banking system would emerge merely because of the introduction of title deeds’, bringing them to the conclusion that ‘[I]n many rural areas of Sub-Saharan Africa the potential for mortgagebased lending is limited.’ These statements show indeed a much more nuanced approach to the promotion of credit secured on mortgaged land, and are in line with much of the scholarly literature which stresses that the purpose of collateralization has indeed been over-focused by policy makers and donors alike (cf. Alden Wily 2006, 18, Adams & Turner 2006, 7, Lund 2000). CREDIT IN THE ULUGURU MOUNTAINS – GENDERED PERCEPTIONS

In his study of two villages in the Eastern Ulugurus, Masawe (1992, 171) noted a scepticism about credit supplied by a bank – only five per cent of farmers interviewed by him relied on the bank because it was viewed as too complicated and simply unsuitable to their circumstances.9 Van Donge (1993), in his study of Mgeta area, also observed that people tend to avoid credit. Although he does not elaborate, he seems to be talking about informal credit arrangements between individuals because he blames the scarcity of credit on the lack of trust among people. For van Donge the absence of dependable relationships is the crucial factor responsible for the ‘decline of agriculture’ in the Uluguru Mountains: ‘For example, people avoid credit as much as possible since it requires dependable social relationships. If they use credit it is on a short-term basis linked to one particular transaction. […] Credit is scarce because people do not trust each other. The resulting scarcity of capital limits the possibilities for entrepreneurship’ (ibid., 204) While my own research revealed a similar scepticism or outright refusal of credit arrangements by most interview partners, I interpret this much more

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positively as an awareness of the many risks associated with credit, which are rarely mentioned by those who try to sell it in rural communities. On the following pages I want to discuss the realities of loans in the case study area and to point especially at the gender division in attitudes towards the possibility of using land as collateral. In the peri-urban areas of Nugutu, Bigwa and Misongeni, microcredit programmes have been available since the late 1990s. Especially popular in the case study area is the credit scheme called ‘Purse of the President’ or ’Mfuko wa Rais’ in Kiswahili. This scheme, which is intended for women only, works as follows: five women sign up together for a loan which they have to pay back on a weekly basis. If one of them fails to return the money, the remaining partners have to come up with it. Private companies or NGOs such as the American PRIDE Programme also run similar programmes in the area.10 The idea behind this concept of granting credit only to groups of women is that women should be empowered by giving them access to money which they can dispose of independently from their husband. However, by making microcredit available to women only, the pressure on them to provide for the household income might actually be increased. The income she might generate thanks to the loan might well benefit all members of the household, thus also the husband or boyfriend who have little or no possibility to access a loan in their own right. The risk, however, the women carry alone. The privilege of being able to access a loan might thus turn into an extra burden for the woman, precisely because of the lack of similar opportunities for men. A good example in this respect is Mariam Jonas, 30, who has been borrowing money from the Mfuko wa Rais since 2000. She uses the money to run a small stall in Misongeni where she sells chapati and other foodstuffs. This business is her main source of income as she does not have any fields. She steadily increased the amount which she borrowed and has now reached the limit with 800.000 TSh. However, she uses only 100.000 TSh for her own business whereas the rest of the money is taken by her brother who owns a bigger enterprise in Morogoro town. Mariam Jonas recounted that for the type of business that she is doing 100.000 TSh is enough and that she could not manage a higher repayment rate. In case her brother fails to pay back his part of the loan, she would obviously be held responsible as the credit has been taken in her name. Whether she would be successful in claiming the money from her brother would again depend on the power relations between them (cf. Goetz & Gupta 1996).11

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains A more general problem of the Mfuko wa Rais and other similarly conceived schemes is that they have been developed for an urban context and thus do not fit with the realities of most people living in the peri-urban and rural areas who depend mainly or exclusively on subsistence production in agriculture. Microcredit programmes generally have very high interest rates and unfavourable and unrealistic conditions of repayment, which have led to the failure of many to repay their loans. For example, the kind of loans which are available in Nugutu, Bigwa and Misongeni have to be paid back after only a week – which means a high risk for those who invest in business activities which are subject to seasonal irregularity. In more remote villages such as Visole Juu and Ruvuma, business opportunities are not only irregular but virtually non-existent. In a society where there is little purchasing power the idea of conducting a business might sound good in theory, but often proves difficult to realize in practice. In Visole Juu for example, none of the interview partners had ever taken up a loan and nobody had the intention of doing so. They argued that they had witnessed too many of their relatives and friends in neighbouring Visole Chini fail to return their loans, forcing them to sell all their belongings. Also in Nugutu, Bigwa and Misongeni, many women who had received loans from the Mfuko wa Rais have discontinued their involvement after they had experienced going into debt or after they had seen their friends and relatives struggling with such a situation. In general, women seemed to be more cautious than men about the possibility of taking up loans, and about mortgaging their land specifically. Men, who had much less experience with regard to loans, showed a high level of self-confidence and expressed no doubt that they would be able to use the loan successfully. Most women, by contrast, were aware of the risks associated with loans and stated that using their land as security for a loan would be irresponsible behaviour towards their families, especially the children – ‘this would be equal to giving away my house and my field’ as Tania Mgoto, 39 years old and also from Nugutu, expressed it. These gendered attitudes towards loans may partly be due to the lack of experience on the side of men which makes them less aware of the difficulties related to credit. It is also obvious that the option to mortgage one’s land has more appeal if one is excluded from other alternatives, such as the microcredit programmes available to women. However, the gap in attitudes between women and men can certainly also be related to the fact that women feel more responsible for the wellbeing of their families and thus reject any serious risk to the basis of their livelihoods – their land.

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In Nyandira the situation is again slightly different from the other villages, and peri-urban areas respectively, as the choice of different credit systems is much broader and includes some which work on a longer term – starting from one month to up to one year – which fit better with the needs of agricultural producers. Due to the better conditions, the number of those who invest their loans in agriculture seems to be significantly higher than in the other areas. Nevertheless, in many cases money obtained through loans is not invested in agriculture, but is increasingly used to pay for school fees, health services and other taxes which have been increased within structural adjustment programmes. Manji (2004, 2) has pointed out the irony of this development: ‘The World Bank has pushed for the privatisation of public services such as healthcare and education in Africa over the last decade. It is now promoting the idea that rural families should mortgage their land in order to invest in these previously public goods’ (cf. Manji 2006, 127). The spread of HIV/AIDS has also led to an increase in financial demands with which families might be faced – and which they might attempt to solve by selling their land (cf. Okuro in this volume), or mortgaging it if possible. So far, the use of titles as collateral has been very limited in the Uluguru Mountains and research findings suggest that it would remain on the margins of the lending system even if more land would be registered with a title. Manuel Lumande, 60, from Nugutu, comes straight to the point when he asks: ‘How are you going to pay back if it is a big loan?’ and adds: ‘the small loans you can get without a title.’ The small loans, however, cannot be used successfully in a context of poor infrastructure which is one of the main constraints to smallholder farming in the case study area. The provision of infrastructure by the state, financed with the help of donors, is needed far more than title deeds and credit which would rather tend to increase the burdens on small-holders. One alternative could be to take a more innovative approach to mortgaging such as considering the commons which, as Alden Wily points out, ‘ironically, […] could have more viable mortgaging potential than the family house or farm. This is because owning communities could mortgage one part of their often substantial common properties and at no risk to their individual properties should foreclosure be administered (and for which smaller and shorter term loans through other mechanisms may anyway be more viable). (Alden Wily 2006a, 33–4). As she writes loans could be raised for income-generating activities of benefit to the whole community such as the installation of a community-

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains owned and managed maize grinding mill or borehole, for which members would pay users fees which would serve to pay back the loan. The model advocated by her is indeed an innovative approach which would also fit the demands of the people living in the rural Uluguru Mountains much better than the existing models. In the context of the Uluguru Mountains, such an approach could solve the dilemma that loans which really would make a difference cannot be afforded by individuals and that small loans do not allow for meaningful economic activity in an area where agriculture is the main sources of income.

Conclusion While knowledge about the availability and procedures connected with loans is widespread, the awareness about risks associated with it is also high – especially among women. The possibility of taking up loans on the basis of land is not likely to lead to an increase in production but might be used in situations of crisis. The risk of failing to pay back loans is obviously much higher if the money is not invested in a business activity but spent to cover fees for health and educational services, whose payment often remains the responsibility of women. In the introduction to this volume it was argued that the fact that women are more concerned about the food security of the household should not be used/needed to justify land rights for women. But if this holds true – as the analysis of discourses on credit in the Uluguru Mountains reveals – this conclusion suggests that especially where women are the ones with the ‘final say’, widespread loss of land by small-holders as a result of mortgaging might not actually become a reality in the near future (cf. Englert 2003). As implementation of the new land laws from 1999 has not yet got very far, it can be expected that for some time to come changes concerning land tenure and inheritance practices will mainly be contested within the ‘customary system’. As has been shown in the first part of this chapter, women in the Uluguru Mountains are taking an active role in these discourses. They make use of the flexibility of the customary when they buy land for themselves and their children, especially sons, in addition to the land which they inherited, in order to limit interferences from the matrilineal clan whose influence is, though vanishing, still strong in the upper parts of the Ulugurus. The comparative approach used in this study has however also shown that within such a small area as the Uluguru mountains there is far

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from homogeneity with regard to land tenure practices – which is what makes solutions based on generalised assumptions concerning land tenure in Africa and women’s land rights so problematic.

Notes 1 Compare Ponte (2001, 97, footnote 2) for more contradicting sources. 2 But obviously differentiation does not only refer to different clans. As Maack (1996, 167) asserts: ‘Indeed, the Waluguru were not in fact “the Waluguru”, but rather a collection of groups of people, cross-cut by age, gender, kin status and economic and political position, each with different motivations; many struggled against each other.’ 3 More detailed description of the villages/peri-urban areas is given in Englert 2005a. The names of all interviewees have been changed. 4 Matrilineality basically means that descent is based on or traced through the female line and inheritance follows the same line which ‘may mean, for example, that women inherit from their mothers. However it can also, and frequently does mean, that maternal uncles (mother’s brothers) transmit their powers and/or property to their nephews (sister’s sons)’ (Waterhouse & Vijfhuizen 2001, 11). Matrilocal residence means that women remain resident with their parents and bring in their husbands after marriage. Thus men leave the household to join their wives. It is important to note that matrilocal residence does not necessarily imply matrilineal descent, or vice versa. 5 In more remotely located Visole Juu land ownership is far less individualized than in the neighbouring lowland areas. A still common practice is for the girls of one family to inherit one field together and the boys to inherit another. This land is cultivated collectively and the girls and boys are not allowed to work on one another’s fields. 6 The practice of ngoto is discussed at length in Young & Fosbrooke (1960, 64ff.). It basically means that non-lineage members who were seeking cultivation rights in lineage land had to pay a ‘small token, ngoto, in grain to the lineage’. The payment of ngoto had been officially abolished in 1942 by the British Colonial Government but, as its existence had not ceased anyway, it was reauthorized by a proclamation in 1955 (Young & Fosbrooke 1960, 65). While most authors who worked on the contemporary Uluguru Mountains claim that practices of ngoto no longer exist, Hartley and Kaare (2001, 43) note that ngoto is still being given in exchange for rent of land in the Uluguru villages of Lanzi and Ng’ungulu. In the villages examined for this study rent is nowadays exclusively paid in cash. 7 The regularization scheme for villages caught within areas declared towns or cities is laid out in the Land Act, 1999. 8 Manji (2006, 124–5) argues that the promotion of a formal rural credit market by the World Bank is based on the assumption that the women’s household labour is freely available, thus making owner-operated farms ‘more efficient and productive than those relying on waged labour’. 9 Due to his small sample size this means that in fact it was only one or two persons. 10 PRIDE AFRICA was founded in 1988 as a non-profit corporation. The organization is active in Uganda, Kenya, Tanzania, Malawi and Zambia and describes itself as ‘an early pioneer in successfully introducing the group solidarity model in East and Southern Africa’. It is now managed by PRIDE Management Services Ltd. http://www.prideafrica.com/about.htm (last accessed September 2006). 11 The study by Goetz & Gupta focuses on Bangladesh where microcredit has first been started in the 1970s by the Grameen Bank whose founder Muhammad Yunus has been awarded the Nobel Peace Prize in 2006. The literature on microcredit in

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Changing Land Rights & Gendered Discourses in the Uluguru Mountains Bangladesh is especially broad (e.g. Kabeer 2001 or Mahmud 2003), but the problems associated with these programmes have also been well explored in studies situated in an East African context (e.g. Ivanceanu 2000 on Uganda).

References Adams, Martin & Turner, Stephen, 2006. Legal Dualism and Land Policy in Eastern and Southern Africa. CAPRI Policy Brief. Alden Wily, Liz, 2003. Community-Based Land Tenure Management. Questions and Answers about Tanzania’s new Village Land Act, 1999. IIED Drylands Issue Paper No. 120. —— 2006a. Land Rights Reform and Governance in Africa. How to Make it Work in the 21st Century. UNDP Discussion Paper, http://www.oxfam.org.uk/resources/learning/ landrights/downloads/land_rights_reform_and_governance_in_africa.rtf (last accessed January 2008) —— 2006b. The Commons and Customary Law in Modern Times: Rethinking the Orthodoxies. CAPRI Policy Brief. Cousins, Ben; Cousins, Tessa; Hornby, Donna; Kingwill, Rosalie; Royston, Lauren; Smit, Warren, 2006. Will Formalizing Property Rights Reduce Poverty in South Africa’s ‘Second Economy’? Questioning the Mythologies of Hernando de Soto. CAPRI Policy Brief. Englert, Birgit, 2003. ‘From a Gender Perspective: Notions of Land Tenure Security in the Uluguru mountains, Tanzania.’ Journal für Entwicklungspolitik / Austrian Journal of Development Studies Vol. 19/1, 75–90. —— 2005a. Land Tenure Security of Women and Men. A Case Study of the Uluguru Mountains, Tanzania. Unpublished Doctoral Thesis, University of Vienna. —— 2005b. ‘Land Rights and the World Bank – an Analysis of the Policy Research Report On Land (PRR 2003).’ Occasional Paper No. 03, Department of African Studies, University of Vienna, http://www.univie.ac.at/afrikanistik/homepageneu/ Occasional/ENGLERT_Occasional%2003_Juli%202005.pdf (last accessed December 2006) Goetz, A. M. & Sen Gupta, R. 1996. ‘Who Takes the Credit? Gender, Power and Control over Loan Use in Rural Credit Programmes in Bangladesh’, World Development, 24/1, 45–63. Hartley, D. & Kaare, S., 2001. Institutional policy and livelihoods analysis of communities adjacent to the Uluguru Mountains Catchment Reserves, Eastern Arc Mountains. CARE International with inputs by UMBCP. http://www.africanconservation.com/uluguru/downloads. html (last accessed September 2006). Hilhorst, Thea, 2000. ‘Women’s Land Rights: Current Developments in Sub-Saharan Africa’, in Toulmin, Camilla & Quan, Julian (eds), Evolving land rights, policy and tenure in Africa. London: DFID/IIED/NRI. Hymas, Olivier, 2000. Bananas on the Hills. MSc Dissertation, University College London. http://www.africanconservation.com/uluguru/downloads.html (last accessed September 2006). Ivanceanu, Ina, 2000. The Dynamics of the Husband’s TV. Participation and Empowerment in Development Co-Operation. The Case of Micro-Credit Programmes in Uganda. Wien: Afro-Pub. Izumi, Kaori, 1998. Economic Liberalisation and the Land Question in Tanzania. Unpublished PhD Thesis, Roskilde University: International Development Studies. Kabeer, N., 2001. ‘Conflicts over Credit: Re-evaluating the Empowerment Potential of Loans to Women in Bangladesh’, World Development 29/1, 63–84. Lund, Christian, 2000. African Land Tenure: Questioning Basic Assumptions. London: International Institute for Environment and Development, Drylands Issue Paper No. 100. Maack, Pamela A., 1996. ‘“We don’t want terraces!”. Protest and Identity under the Uluguru Land Usage Scheme’, in Maddox, Gregory, Giblin, James L. and Kimambo, Isaria N. (eds), 1996. Custodians of the Land. Ecology and Culture in the History of Tanzania.

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BIRGIT ENGLERT London: James Currey; Dar-es-Salaam: Mkuki na Nyota. Mahmud, Simeen, 2003. ‘Actually how empowering is microcredit?’, Development and Change, Vol. 34/4, 577-605. Manji, Ambreena, 2002. ‘“Mortgaging the future”: The World Bank’s land agenda in Africa’, http://www.oxfam.org.uk/resources/learning/landrights/downloads/ammstarrtf.rtf (last accessed January 2008). —— 2002. ‘The World Bank’s Policy Research Report ‘Land Policy For Pro-Poor Development’ – A Gender Analysis.’ Paper Prepared in Response to the Publication of the Policy Research Report in Order to Facilitate an Email Discussion to Take Place Between 27 December 2002 and 10 January 2003. —— 2003. ‘Capital, Labour and Land Relations in Africa: a Gender Analysis of the World Bank’s Policy Research Report on Land Institutions and Land Policy’, Third World Quarterly, 24/1, 97–114. —— 2004. ‘Capital, Labour and the Future of African Land Relations’. http://www.ossrea.net/ publications/newsletter/feb04/article15.htm (last accessed September 2006). —— 2006. The Politics of Land Reform in Africa. From Communal Tenure to Free Markets. London, New York: Zed Books. Masawe, J.L., 1992. ‘Farming Systems and Agricultural Production Among Small Farmers in the Uluguru Mountain Area, Morogoro Region, Tanzania’, African Study Monographs, 13/3, 171–83. McAuslan, Patrick. 2006. Legal Pluralism as a Policy Option: Is it Desirable? Is it Doable?, CAPRI Policy Brief. Ponte, Stefano, 2001. ‘Trapped in decline? Reassessing agrarian change and economic diversification on the Uluguru mountains, Tanzania’, Journal of Modern African Studies 39/1, 81–100. Tsikata, Dzodzi, 2003. ‘Securing women’s interest within land tenure reforms: Recent debates in Tanzania’, Journal of Agrarian Change, Vol.3/1–2, 149–83. van Donge, JanKees, 1993. Trapped in Decline: a Sociological Analysis of Economic Life in Mgeta, Uluguru Mountains, Tanzania. Wageningen Agricultural University, Unpublished PhD. van Donge, JanKees, 2002. ‘Trading images? A comment on Ponte’s reassessment of agrarian change in the Uluguru mountains’, Journal of Modern African Studies 40/2, 303–11. Waterhouse, Rachel & Vijfhuizen, Carin (eds), 2001. Strategic Women, Gainful Men. Gender, Land and Natural Resources in Different Rural Contexts in Mozambique. Mozambique: Land Studies Unit, Faculty of Agronomy and Forestry Engineering, Actionaid. World Bank, 2003. Land Policies for Growth and Poverty Reduction. Oxford: Oxford University Press and the World Bank. —— 2006. Consensus, Confusion, and Controversy – Selected Land Reform Issues in Sub-Saharan Africa. World Bank Working Paper 71 (written by Rogier van den Brink, Glen Thomas, Hans Binswanger, John Bruce, Frank Byamugisha). Washington DC: The World Bank. Young, R. & Fosbrooke, H., 1960. Smoke in the Hills. Political Tension in Morogoro District of Tanganyika. Evanston, IL: Northwestern University Press.

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Five Falling Between Two Stools How women’s land rights are lost between state & customary law in Apac District, Northern Uganda JUDY ADOKO & SIMON LEVINE

Introduction As in other countries in Africa, there are two parallel and competing histories of land tenure in Uganda. The indigenous systems evolved to suit the needs of different local groups, or at least certain elite members in those groups, in a variety of different ecological and economic circumstances. They worked on rules which have never been written down, making it easy for outsiders to consider all these systems as ‘customary tenure’ a single, unchanging system of rules and administration. Another, written, history began with British colonialism. The British introduced a system of freehold title under which client chiefs and kingdoms (as well as missions) were granted formal land rights. All land which was not registered was considered by the British to be ‘crown land’. Although customary tenure continued to operate on this land, the customary owners had little protection from the arbitrary expropriation of their property. The British colonial administrators regarded customary ownership as backward and a constraint to economic development, which by the 1950s they intended to replace with the ‘modern’ system of freehold.1 However, colonialism ended before this could be implemented. On independence in 1962, crown land became public land, which made little difference to most people. The old colonial opinions on the primitiveness of customary tenure were deeply engrained (and remain so today, as we shall see). As a result, Uganda, like many other newly independent countries, experimented with nationalizing land, another way of trying to replace the ‘backwardness’ of customary tenure with a ‘modern’ system. This was supposed to allow

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for more ‘rational’ allocation of land. Still, the customary tenure systems continued to operate, though without legal status. From 1975, with the Land Reform Decree, land owners were effectively merely the occupiers of their land, which they held ‘under sufferance’ – meaning that possession of their land could be taken by the government whenever it wanted. Some land was indeed taken and given on leasehold to people who would now be termed ‘investors’ 2 – in practice often civil servants, businessmen or those with political connections. The real ‘owners’ of the land had no rights at all. More recently, nationalization of land and other natural resources went out of favour in Uganda as in the rest of the world, and the ‘backwardness’ of customary tenure is instead now contrasted with the assumed superiority of private individual freehold. Land reform was a priority from the time the current government came to power in 1986. Several years were spent in policy research (see, for example, Agricultural Policy Committee (APC 1989a, APC 1989b, APC 1990), and there was active participation from the World Bank and other donors (see for example, Economic Policy Research Centre (EPRC), 1997). The result was the 1995 Constitution and 1998 Land Act which brought about two fundamental changes: all land was privatized; and customary ownership was given full legal recognition as private property.

Law and Policy The privatization of land can mean many different things: in this paper we look at the impact on women’s rights of two different ways of privatizing land. Privatization can simply mean that the State denationalizes land, giving up its ownership in favour of citizens, and giving up the State’s rights to use or allocate land as it sees fit. All the land interests and rights which existed at local level would be recognized and respected. A second, narrower, sense would mean that the citizen’s ownership of land is private and individual: the social obligations that went with ownership disappear, formal titles are given and land ownership is brought under the freehold system. In Uganda, it is as though parliament and the government failed to agree on which privatisation they wanted. The land law which Parliament enacted in 1998 is clearly based on the first sense. In a very radical move, customary ownership of land is recognised as private property, together with the customary tenure system, which, with all of its rules and institutions, is given full legal status on all

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda land held under customary tenure.3 The law sets up ways in which communities could own land communally on their own terms; and it allows people (individuals, families or clans) to have certificates proving customary ownership of land, without entering the freehold system. It also provides for communities, villages, families or just groups of individuals, to be able to own land together, by becoming a ‘legal entity’ called a Communal Land Association (CLA). The potential of the CLAs to protect women’s rights is enormous.4 The CLA must have a constitution, in which it can make whatever rules it wants about how land rights are shared and how land is to be managed. Land can be owned by a family (or clan), maintaining the stewardship role of the head of the family (or clan), without however giving them the land as their own personal property. Land rights of women on the basis of customary law can be written into these constitutions, thereby combining protection from customary and state judicial systems. Parliament had also recognized that there are family members who depend on land without themselves formally being landowners. They could be vulnerable to the privatization of land, and in particular to an increased land market. Parliament considered their need for protection by enacting the ‘consent clause’,5 which only allows the sale of land after consent is obtained in writing from the owner’s spouse. The result should, in theory, be the best of all worlds: privatization has been enacted, which allows for a land market, but in combination with protective legislation. This should bring economic growth coupled with social protection, particularly for women. Furthermore, those who wish to remain in the customary tenure system can do so (see Nyamu-Musembi in this volume) and their rights must be upheld by the courts, irrespective of whether or not the land is formally titled. The existing protection of women in customary law thus remains, but with two additional advantages: first, those customary rules of protection now have full judicial force in state law; and secondly, protection has been added by bringing customary land into the framework of national law, because women now enjoy additional safeguards (notably from the Constitution and the consent clause). Government policy has so far taken a different view of privatization. It has shown no interest in customary tenure or nonindividuated rights, and has instead invested its resources in bringing customarily held land under freehold. This is because customary legal systems are embedded in a social context of rights and obligations. The government wanted to ‘liberate’ ownership from the very context

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which gave people the right to make ownership claims in the first place. For the government, recognizing customary ownership was the regrettable – but unavoidable – side-effect of recognizing customary owners. This distinction between supporting customary ownership and recognizing customary owners has proved crucial with regard to women’s rights. Despite a reasonably favourable environment for women’s land rights in Uganda in both customary and state law, protection is failing precisely because privatization (and, with it, protection) has fallen between these two stools: customary law and state law. In this context it seems reasonable to ask why the government recognized customary ownership after all, if it wants to bring all land under freehold? Recognizing customary owners is certainly welcome from a rights/justice point of view. But it was also a necessary first step to incorporate customary ownership into a privatized freehold system (by allowing conversion from customary to freehold ownership, and by giving titles to any customary owners who want them). Such a privatized freehold system, the government believes, is good from an economic point of view. The theory is well-known: a title holder, unfettered from the ‘constraints’ of customary law, can invest in his land with security that he will enjoy the fruits of his investment (the male pronouns here reflect the norm). Attention is avoided to the fact that these constraints are largely based on myths rather than proven deficiencies. The new title holder can now use his title to secure bank loans for investment in modernizing his agriculture. More importantly (for some policy makers), once there is secure title, an investor can buy his land with security, because the purchase and ownership will have legal protection. So, a land market will be created, through which land will go to those who can use it most productively. (Attention is also avoided to the fact that the economic assumptions behind the policy obsession with titling have long been critiqued on analytical grounds).6 The Ugandan government set up a three stage process; first, customary ownership was recognized; second, owners can get certificates to prove that they are the legal (customary) owners of a plot of land. Finally, this land can be formally surveyed, to replace the certificate of customary ownership by a freehold title. Because surveying is expensive, costs need to be reduced by undertaking the exercise on a large scale. The government therefore invests most of its attention on land, and its funds, in a process of surveying at one time the land of anyone who wants it in certain districts in a process called systematic demarcation. Eight years after privatization of land began in Uganda, what was the result? Has support for titling and a land market brought

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda economic change? And what has been the impact on the protection of women’s rights of reinforcing customary protection within state law? In this chapter, we look at the evidence on the ground. In the first section, we examine what customary tenure systems mean in the context of Northern Uganda and how practices are changing. We then examine the main way in which women lose their rights to land. In the final part of the chapter we analyse why women have been so vulnerable and discuss the likely impact of further implementation of the government’s policy on titling. The following arguments are based on three years work on land rights in Apac District in northern Uganda, conducted by the Land and Equity Movement of Uganda (LEMU), a national NGO.7 This has included three specific pieces of research, one conducted in Apac District (Adoko and Levine 2005a), and the other two in the subregions of Acholiland in northern Uganda (Adoko and Levine 2004) and Teso in eastern Uganda (Adoko and Levine, forthcoming). This chapter is based principally on the research in Apac, which took place during March and April in 2004, and looked at whether the hopes underlying the government’s land market policy are well founded, or not. A team of six graduate researchers spent one month in Apac, spending three days in each of six sites, chosen to represent the spectrum of land issues, from rural to peri-urban to displacement. Community discussions were held about the government’s land policy and trends in customary tenure, together with focus group discussions and individual interviews and a study of documentation relating to land sales. This was supported by meetings and workshops with clan leaders and local land judges in November and December 2004, to clarify the past and present rules of customary tenure. The other two studies have also informed this chapter.8

Case Study: Apac – the Socio-Economic Context Apac district is typical of most of northern Uganda. The district is predominantly rural, and the population depends almost entirely on agriculture. Mechanisation is rare, so the only productive assets which most households own are land, some hand tools, and partly also livestock. Although such a setting is often described as ‘traditional’, the past few decades have seen profound economic and social changes. The local economy used to be based on cattle, but nearly all the cattle in the district were looted in the political instability of the late 1980s. The local economy has never fully recovered from this. Also

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the production of the main cash crop, cotton, declined because of a combination of low world prices and the collapse of marketing structures – at least partly the result of Structural Adjustment Programmes (SAPs). Today, there is no obvious cash crop substitute besides traditional food crops. Population growth is very high with the population doubling every twenty years. One consequence is that the area of land owned by each family is decreasing, there is no longer free forest land which can be taken, but agricultural technologies have not changed to keep pace with this. In the last few years, there have also been changes in the way land itself is perceived: it is increasingly seen as an asset which can be sold – with far reaching social and economic consequences, as we shall examine below. However, commoditization is not only an economic transformation. In an increasingly monetarised economy, economic goods have become divorced from the social norms in which they were set and which gave them value. This has affected how people see each other, as the personal and social ties, which were inherent in exchanges of goods and services, are weakened. While this process can be liberating for some people, it has inevitably weakened the social structure, for both better and worse. This social (clan)9 structure was formerly the principle judicial system. The power of the clan has been decreasing since colonial times, as first the colonial power and then the independent state claimed a monopoly on the legal use of coercion. What remained for clan elders is recourse to social pressure to bring offenders of clan rules into line – but this social pressure is often weak today. It is important to stress the multiple roles of the clan in the past: as a social context for economic life, as the administrative and judicial system, and as the structure of social protection. The weakening of clan structure has therefore had far reaching implications for everyone in social, economic and legal terms – and since land rights are a product of these three domains, inevitably also for them. LAND TENURE RULES AND LAND TRANSACTIONS IN APAC

It is often believed that under customary tenure land is owned communally – the 1998 Land Act even defines customary tenure as a system with communal ownership. Clan members in the case study areas often claimed that ‘land belongs to the clan’. However, individual households have long had security of tenure within the clan rules on their farm land, and clans do not have the right to ‘reallocate’ farmland to another family. Yet individual or family rights do exist within a wider social context. This could either be held to be root

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda title or just a social domain of ‘rights and rules’ (the case varies widely in Africa). Such regimes lose a lot of clout when communal properties within the area decline dramatically in size or utility to community members, or disappear. Everyone we spoke to confirmed that they feel comfortable in their security of tenure: any constraints to investing in their land are due to economic factors.10 When members of extended families farm together, they do so on each other’s land only to make the work easier. They do not work together on communally owned land. Farm land is owned and inherited within the family, and the management of the land is passed on from father to sons. If customary tenure actually means private family ownership as indicated above, closer examination is required of what is meant by ‘belonging’ in the phrase ‘land belongs to the clan’. The confusion about communal or clan ownership comes from the claim by the clan to set the rules by which owners own land, and to set the social context within rights are claimed, by which the clan claims the village as its ‘territory’. This sense of ‘to belong’ is much closer to the idea of sovereignty than of ownership, or of holding a ‘radical title’ rather than a freehold title. We can compare it with the government’s claim to limit the sale of land to ‘foreigners’, or to set limits on what may be done on land (planning regulations, etc.) This is not a claim that the government ‘owns’ the land, to which a private citizen may have title. The confusion over this concept of ‘belonging’ is not merely of theoretical importance. Unfortunately a great deal of the state’s attitude to customary tenure seems to stem from this mistranslation of the word ‘to belong’, resulting in a mistaken belief that ownership is communal.11 Customary tenure in the area has been constantly evolving (Opyene, 1993) and recent trends long pre-date a change in state land law. In Apac district, there used to be large areas of land which did not fall under any families ownership, but were genuinely ‘owned’ by the clan as a whole – grazing and hunting lands. These lands have gradually disappeared, and with it much of the clan’s ability to impose social rules on its members. Family land is usually vested in the head of the family, who is the ‘steward’ of the land with the responsibility to look after the land in the interests of his (occasionally, her) family. Being responsible for the land is thus inseparable from being responsible for the welfare of the family, including of the future generations. Ownership, though, is becoming increasingly individualized and more family heads are dividing up their land between their sons, rather than passing on the land as a

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single family holding to one son. This process is accelerated with an increase in land sales. Although customary law in theory forbade land sales, in practice they have taken place for many years – with the acceptance of clans. In more recent times the clans would claim the right to vet land sales, looking at the seller (why they wanted to sell the land, what the situation of the family would be after a sale) and the buyer (were they of the clan? friendly to the clan? people who should be accepted in the clan’s village?). Sales to ‘the right people’ by a family which had a good reason for the sale, would be endorsed if the family could still look after itself after the sale. In cases where a family lacks land for all its children, some turn to buying land in the village. This is particularly pronounced in Teso. However, this land is considered to have fewer family encumbrances than inherited land, and the clan elders would be more reluctant to stop a future sale of such land. (Nonetheless, the land is still ‘clan land’ and should be sold to a clan member). In general it can be noted that this process of individualization is more pronounced in areas with a higher density of population and a greater integration of the local economy into the national one. This comparison can be made, for example, between Gulu and Kitgum Districts, and between the Districts of Teso and Apac. In Gulu and Apac clan control seems weaker than that in Kitgum and Teso leading to an increase in land sales without clan permission. Once land is sold it is individually owned, usually by a man and clan control is removed.

Women’s Land Rights under Customary Law Does customary ownership allow for women to ‘own’ land? We consider this question as not very useful for a gender analysis and argue that it is more important to look at what rights different people have. On marriage, a woman normally enters the clan of her husband, thereby gaining rights to the land of the clan. The protection of her rights to land is the responsibility of her husband’s family. If her husband takes other wives, she is still guaranteed enough land to provide for herself and her children. In the past, there was an assumption that every girl would marry, would thus leave her parents clan and join her husband’s clan. Those few who remain unmarried or divorced have rights to be allocated land to use by their own parents’ clan. If a woman’s husband dies, the widow still claims social and economic protection from her late husband’s clan. Until the spread of HIV/AIDS, the biblical practice of levirate marriage was

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda followed. This meant that a woman became one of her late husband’s brother’s wives, thus maintaining her rights to the family land. If she chose not to be remarried, she maintained full rights over whatever land her husband had allocated to her. The rights of a married woman are limited because though she has rights to be given land to use by her husband, she has no right to sell this land. However, under customary tenure, there was no right for a man to sell land either, because the land was ‘under his stewardship’ rather than his personal property. In practice, there were therefore fewer differences in rights to land between a woman and a man than is often presented in public discourse. TRENDS IN LAND SALES AND ECONOMIC DEVELOPMENT

Although land sales long predated government land market policy, they are becoming more frequent. This growth in transactions in land owned under customary tenure, done without written documents, are hard to ascribe specifically to a government land market policy. Most sales in Apac now are what can be called distress sales – meaning sales that take place under pressure of poverty, usually with a likely long-term negative impact on the household’s economy. Small portions of land are being sold to meet consumption expenditure by the poorest people, who earn their living to a great extent by hiring out their labour to others rather than by farming. These kinds of land sale are organized locally and often finalized in drinking places, usually by men. Women do not have control over these sales and frequently they do not even know about them until they see their husbands with money. Katy L.’s complaint reflected many others: ‘Consent is never sought. You only see your husband buying something and when you ask where the money is coming from you are told to pack and go back to your home because you do not own land. We fear to talk because we have nowhere to go.’ Men also admit they do not consult their wives. Peter O., at a meeting, was quite frank: ‘Women have weird thoughts and suggestions and do not understand quickly, so it is not necessary to involve them in the land sales. I would rather involve the clan in the sale than the wives.’ Mary A. also voiced the fear that many women have of complaining, but also opened up the reason why men do not inform wives about the sales – and why they fear the woman would object: ‘Do not believe men when they say they sell land to send children to school. Men sell land to drink. Men do not only sell land, they sell crops as well without women’s permission. Women fear to talk because of beating and quarrels at home. I am able to talk because I am a

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widow.’ The case study showed that most people allege that sales are usually made to raise money for drinking. In other cases, for example where the sale is to raise money for medical treatment, a substantial balance on the sale may still be used for alcohol. The direct result of these sales is a loss of land rights for women and children; also each sale of land makes future sales, and thus increasing landlessness, more likely. This kind of land sale should have been stopped by customary law. Some sales involved landgrabbing, where one family member, for example, sold the family land without the knowledge of the rest of the family. Such sales were often to people with some power or influence – politicians or civil servants, for example – who proved able to override any attempt by the family to stop the sale. Given that the buyers are in many cases not primarily farmers, their interest in the land appears to be more for speculative than investment purposes. In our research we found no cases where land use had changed or investment had taken place. A smaller number of sales are by wealthier people with larger land holdings. These sales are mostly for what could be called ‘investment’ purposes – to build lock up shops for renting, or grinding mills or to start a retail shop business, for example. In these cases the family retains enough land for its economic well-being and therefore these sales would probably have been allowed by clan elders under customary law, though possibly with restrictions on who could buy the land. Customary tenure has for long been alleged to be an obstacle to development because it prevents the emergence of a land market. Evidence from the case study area clearly shows that this is not so but also that the growing land market in northern Uganda is not bringing about economic development. The land sales never come to the knowledge of ‘investors’ or ‘progressive farmers’, and since they involve only small plots of land, they would probably be of no interest to them. In almost all cases, the land continues to be used for farming as before. It is precisely these sales, for consumption rather than investment, and against the economic welfare of the family, which clan law should have stopped, because of the duty to protect women and children. Why is the clan protection failing these women? Many factors combine, among which is greed. The first guarantor of women’s rights is the family head of her in-laws: but these are often the ones who now violate her rights. Grace M.’s case in Aduku is common: ‘My father-in-law gave me and my husband land, but later on sold it to someone else without informing us.’ The final guarantors of

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda protection are the clan elders. Some are well meaning, but powerless, as Ruby A. testified: ‘The land issues are sometimes solved by the clan leaders, but these days clan leaders are not respected.’ Other elders have become inclined to seek personal advancement, since they cannot enforce protection anyway. In a community meeting Patience A. spoke out about the corruption of clan rule: ‘If one is poor, the clan members will not assist you. Instead they laugh at you with your problems. It is only the rich who will be assisted.’ In a different community meeting, Ruth O. told a similar story: ‘Sometimes we go to the clan leaders to complain [when our husbands sell land for drinking], but they too do not assist, and yet we have to pay them [to hear the complaint].’ One clan chief, who is also the chairperson of the sub-county Local Council (LC) compared the clan leaders and local state administrators: ‘The behaviour of the clan leaders is very similar to that of the LCs, with both of them having an interest in money first.’ Protection should theoretically have been strengthened by the privatization of the 1998 Land Act. In the following section we examine what is going wrong with land tenure reform in Uganda.

What is going wrong? Government’s assumptions were that customary tenure retards economic development. As a result, all land policy is based on the belief that the institutions of customary tenure can play no positive role – not even in protecting people’s land rights. The power of the state administration began to overtake that of the clan authorities many years ago. Most people now involve the ‘LC1’ chairman12 (the ‘village chief’) in land sales, because he is erroneously considered to give legitimacy to a land sale. People may approach either traditional land judges or the LC1 chairperson to solve a land dispute. The latter is believed (equally erroneously) to have more official legal power, so appeal may be made to him after consulting the traditional arbiter. However, in law, the LC1 has no authority in land issues whatsoever. Customary authorities were given the authority to settle land issues by parliament, without there being any specification of who this should be for any given ethnic group or clan. However, government’s refusal to take this seriously has reduced the standing of customary authority among the population even further – to the extent where it can no longer exercise any authority. Government could have administered the law to give the decisions of clan judges

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the full backing of the law through the police and courts, giving them the responsibility to implement protection of women’s rights, as both customary law and parliament intended.13 A second difficulty surrounds the belief that people actually follow the law as parliament intends them to, and that the state is capable of making sure that they do. Many conditions need to be met for this to be true, including: that people interpret the law as parliament intended; that people can defend violations of legal rights, by knowing their rights and how to claim them; and that there is a functioning court system which is accessible to people and which protects people’s rights fairly. In Uganda, none of these conditions holds. Knowledge of land law is almost entirely absent among the Ugandan population, and was no better among the LC1s. We found that few people know their rights and when they are told by someone more powerful that they have no rights, most simply accept this. This applies particularly to women, who keep being told that they cannot own land because they are women. In our research we did not meet a single woman who knew about the consent clause. This lack of knowledge is not limited to women only. It also applies to men and women alike whose land is taken by the state for building roads, when they are told that without title they are not entitled to compensation. In other cases knowledge of one’s rights does not improve the situation either. This is particularly true for widows who are often simply thrown off the land by their in-laws. They know that this is wrong, under both customary and state law, but lack the means to challenge these practices as P. A. recounts: ‘I married in 1955 … I have one son. When my husband died 30 years ago, my father-inlaw made me move to be near him … Now [my brother-in-law] has chased me from this land, claiming that it belongs to him. He arrested14 my son and had him imprisoned.’ This old lady had taken the case all the way to the District Tribunal. But even if the case is found in her favour, judgement is unlikely to be enforced, as the alltoo-typical story of J. O. shows. J. O. is an orphan girl who heads a household of four other children in Kitgum. She recounts: Our father died of AIDS in 2000. His relatives began grabbing the land from my mother ... [They] mobilised friends with bows and arrows, and chased us away … My mother’s brother went to the LC, the police, to Kitgum Court and Gulu High Court. The police went to arrest the people who had chased us away, but they just ran away from the village. Then, when my uncle planted crops for us on our land, the relatives came back and destroyed what he had planted. My uncle gave up and now we are all in the [IDP] camp.

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda Court rulings, if they cannot be bought, are simply ignored. It is rare for the police to intervene at all. Another complication arises around the assumption that laws will be followed. This does not relate to whether or not people are law abiding: law-breakers exist everywhere and can be dealt with. However, we found that in many cases people do not break laws as ‘criminals’, but rather create a different ‘legal’ code from the one the legislature intended. They create new ‘hybrid’ legal codes by combining parts of different legal systems (in our case study, customary law and state land law), according either to their consciousness or their self-interest. We encountered several cases of men who wanted to sell a small plot of land for money for drinking, but saw no reason to consult their wives, because they would probably oppose the sale. Their argument to justify their failure to consult their wives was that first and foremost, their claim to ownership of land is on the basis of customary law – usually, because they inherited it. They denied their wives ownership of any land, on the basis of two arguments: their being woman, and, moreoever, not born of the clan. Such an argument is a mutation of customary law, formed by adding ‘modern’ notions of individualized ownership. Actually customary law made the man the ownercustodian of the land with the duty to give his wife rights to the land. Under customary law a land sale for the purpose of buying alcohol from the proceedings would not be allowed by clan elders. Being aware of this, men tend to appeal over the head of the clan elders to the LC1, the representative of the State Administration. He claims the right in state law to sell land for which he claims ownership through customary law. In this case it is state law which has undergone a mutation, because the ‘real’ state law says that land owned under customary tenure is governed by customary law – which would have forbidden the sale and given the LC1 no role in ‘authorizing’ the sale. The same process of hybridization seems to prevail among those administering land. We asked several LC1s for records of sales agreements and did not find a single case where a woman had signed her consent to a land sale. Most of the LC1s simply did not know about the consent clause – the main reason why it was not being enforced. However, when challenged about the validity of such sales, they argued that a woman had no right to oppose a sale, since ‘women do not own land under customary law’. LC1s seem to be falling back on the corrupted version of customary law. If customary law were being followed, the LC1 would not have been involved in the land sale in the first place.

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The term ‘law breaking’ is certainly inappropriate for this game of creating new hybrid ‘rules’ in order to suit one’s position, since the people involved do not think of themselves as ‘breaking the law’. The case study clearly shows that the practice of making law is not simply a matter of writing down rules. The threat to women’s land rights has not come from unfair laws, but from a way of using rules which has evolved in a context where gender power relations remain unequal. This situation cannot simply be changed by rewriting rules. A concerted effort is also needed to change the inequality inherent in those relations – and that cannot be the work of parliaments alone. Women’s rights have also fallen victim to more implausible assumptions surrounding the question of land administration after privatization. The policy would only make sense if it was assumed that the state could put into place and also finance the necessary institutions of administration (and have these working by the time land was privatized, as intended, and without corruption).15 In fact, over seven years after the signing into law of the Land Act, many of the institutions needed to administer land in Uganda are still not in place. Those which have been set up are so badly under-funded that they are hardly operational in many cases. By 2005, in much of northern Uganda District Land Tribunals (DLTs), which replaced the magistrates’ courts for hearing land matters, had still not passed judgement on a single case. Because of lack of funds they often have to cover three or more districts, and do not work full time. The certificates for attesting to customary ownership of land are to be issued by sub-county recorders, after the ownership is verified by an area land committee: these committees have not even been set up. To date, the District recorders are still not in place and no certificates have ever been issued. The recorders are supposed to record all transactions on land with certificates of customary ownership (sales of registered land i.e. land with freehold or leasehold title are maintained centrally), but they have never been given the job of recording transactions on customary land, and nor has anyone else. This makes a complete nonsense of the consent clause, because if no-one has the job of ensuring that the wife’s written consent is given, what is the point of making it mandatory? Women’s rights, given by parliament, have been taken away by neglect in implementation. The communities’ right to own land as a Communal Land Association (CLA) has also been taken away by neglect. CLAs are set up by the District Land Registrar, but the District Registrars are not in place, and so no CLA has yet been set up in the country!

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda It is easy to complain that funds are lacking in a poor country to set up a costly land administration. However, two points need to be made. First, spending is a question of priorities. The government has budgeted thirteen times more money for systematic demarcation in just four Districts than it has for support to all the sub-county institutions of land committees and recorders in the entire country (MWLE 2000). Neglect of support to customary institutions and customary land is deliberate, because government’s main interest is in surveying land to bring it into freehold. Second, if the state does not have the money to set up these institutions, why did it legislate for them? The law could have chosen to work through an existing (if imperfect) administration, that of customary institutions, which it could have supported very cheaply. Instead, the state does not have the capacity to fill the vacuum that it has itself created. The result is that institutions which could protect women’s land rights are either non-existent, non-functioning, unsupported, or they do not know or accept the law. The possibility of promoting titling and the land market and at the same time protecting women’s land rights rested on one more assumption, that probably escaped the attention of many law makers. Rights will inevitably be lost if there is no direct ‘translation’ of rights and claims to land when moving from one legal code (customary law) to another (state, freehold). It is obvious that in the two kinds of ownership rights are radically different – is this not the very reason why so many policy makers want to replace customary tenure with sets of rights which they believe are more conducive to ‘development’? Titles are typically held by one individual. In a society where access to land is through the male line and where the power in gender relations is so unequal, titling means turning almost all land into men’s personal property. That, however, was not the position under customary tenure where women’s rights to use land were protected. Theoretically, ‘subsidiary’ rights can be recorded as ‘encumbrances’ on a title. The work of consulting with all the rights holders to reach agreement is similar to the process which should be happening in the formation of CLAs. Since no interest has been shown by local or central Government in CLAs, it is hard to take seriously the idea that such a process will be undertaken properly in systematic demarcation and subsequent titling. Even if the will were not lacking, the resources clearly are. Systematic demarcation is taking place in a very charged environment. A hunger for individual economic advancement, even at the

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expense of one’s own family, has been exacerbated by increased poverty, decades of war, the conspicuous lack of rule of law and rampant corruption as the only role model. The murders of close relatives for the sake of land grabbing are recorded regularly in the newspapers. Land boundary disputes are among the most frequent cases heard by local courts. There is insufficient trust between the vast majority of people and the institutions of the courts, the police and local administration (K2 Consult 2003). In such an environment, encouraging one person to claim personal ownership of family land is bound to cause conflict. In 2005, the case was reported in the local newspapers and in parliament by the minister for lands of government people carrying out the systematic demarcation exercise who were almost beaten to death in Aminit parish, Soroti district.

What State Law Makes Possible – a Conclusion The Ugandan government could still choose to take customary tenure seriously. This does not involve abandoning a desire to see a gradual process of titling, but recognises an inevitably long transition period, during which most land remains under customary tenure. Every village in northern Uganda has customary land judges who are known and recognised. These men know the boundaries of each field and the ownership of all the land. A local, public process could be held to record this and delineate boundaries in ‘customary’ ways. It could be made mandatory to register all land sales, including those of customary land. The process could include giving the local land judges (or the state administrator who registers the sale) the responsibility to verify the wife’s consent. Customary law could also be codified, so that everyone knew what land rights a woman, a widow, a brother and sister or an orphan had in each area. This could be the principle reference for customary authorities in adjudicating land matters. This would be a big change, because rights claimants would know what rights they could expect before hearing judgement. There would certainly be difficulties16 and negative aspects as far as the customary authorities were concerned. However these processes would enable them to work more easily in partnership with the DLTs. Costs would be minimal for the state. One result would be that the Land Tribunal would have most of its caseload removed, because customary authorities would be the court of first instance for most land cases, with the DLT acting as an appeal court. (This would be some measure of protection for women

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda from corrupt or weak clan elders who connive in the violation of their rights.) The customary authorities could expect the DLT to call upon resources for state enforcement (police, courts) in order to give force to the customary judges’ decisions. Another result could be that government would more easily achieve its desire to see land titled, though within a longer time frame. If there had been a long process whereby a community had agreed how land ownership was partitioned and how land rights were shared, and if this had been written down and served as a basis for titling, there would be less confrontation and conflict – and less violation of women’s rights. Such a partnership between clans and the state would not be easy. There is some overlap of interest – clan authorities want to protect their land from certain kinds of sale, and the state wants to protect vulnerable dependants from the same kinds of sale. Other areas have no such confluence of interest: clans often do not want land sold to people form outside the clan, whereas the state constitution forbids any discrimination on the basis of ethnic identity. The Land and Equity Movement in Uganda (LEMU), a national NGO working to improve land rights for all, has proposed such a partnership in Apac District. Both district government and the DLT on one side, and the clan heads on the other, have shown enthusiasm for the idea so far. District government is passing by-laws with the aim to ensure that customary rules are followed and to bring in new procedures for land sales, developed jointly by customary authorities and the state administration. It is too early to say how far this partnership can go and what its impact will be, but the attitude of local government and clan leaders has been remarkably positive so far – born out of a shared realization that the current system, or lack of system, is simply not working. Government has until now been similarly unwilling to take women’s protection or customary tenure seriously. No attempts have been made to enforce the consent clause, or even to think of a system where the wife’s consent could be registered. Nothing has been done to set up an administration for land which would help people, families and communities to protect their land and their rights. The state is weakening customary institutions, and no measures have been taken to help reinforce them even in areas where they could help implement state law and government policy. Women are vulnerable not from defects in the protection offered by legislation, but in the actualization of that legislation on the ground. They are vulnerable to the twisting of legal codes, culminating in the slogan that ‘women don’t own land’, which ignores the

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land rights which women used to have under customary tenure. Protection is thwarted from two directions: government’s unwillingness or inability to enforce law and support land administration, and prevailing gender power relations in society. The law cannot provide gender protection. Violations of women’s rights, including land rights, will continue until power relations in society as a whole are equal and until government prioritises the administration of laws which are supposed to provide protection. Titling of customary land is just starting and will almost certainly result in further massive loss of women’s rights to land. The process of systematic demarcation is governed by the simplistic question ‘who owns?’, rather than the complex question ‘who has what rights?’. The laws to protect women are there, but until the desire to implement them is there, they are meaningless. As they say, ‘where there’s no will, there’s no way.’

Notes 1 East African Royal Commission 1955 Report. Cmd 9475 2 The use of the term in political discourse is significant in Uganda, as it is closely tied to corruption and the granting of special favours to certain individuals. Not every local person who puts his or her savings into a small business gets to be considered an ‘investor’! 3 Land Act, 1998, 3 (1) (d): see also (b), (c) and (e) 4 They are not a panacea. There are several dangers in the power given by the Act to the CLA management committee, which are beyond the scope of this paper to analyse (see Adoko and Levine, 2005b). 5 Land Act 1998, section 40. 6 See, for example, Daley and Hobley, 2005; or, for an overview of the arguments relating to economic development and tenure systems in Uganda, Adoko and Levine, 2005a; compare also Nyamu-Musembi in this volume. 7 See www.land-in-uganda.org for more details on the organization, and for the full text of its research reports and policy papers, including an overview of the existing situation regarding land rights and administration in Apac. 8 The work in Acholiland examined the legal status relating to landowners and IDPs, and involved two months of field work by the authors and a team of six graduate researchers in July and August 2004. Over a hundred interviews were held with district officials, lawyers and politicians, landowners, soldiers – and hundreds of IDPs from twenty-three camps. Research in Teso was conducted in September and October 2005 in seven sites across five districts. It examined largely the same questions as the research in Apac, and included quantitative work on different kinds of land transactions which are taking place and their impact on land use. 9 It is not easy to give an exact definition of a clan, since the word can be used to cover wider or narrower communities. In Apac district, the principle clan, within which someone is not allowed to marry, is a patrilineal family network, typically extending to cousins of fourth or fifth grade.

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Falling Between Two Stools: Women’s Land Rights in Northern Uganda 10 Compare Englert 2005 in this volume. Ikdahl in this volume points at a different situation in an urban context. 11 During research for this study the head of one of the District Land Tribunals was heard arguing that all land ownership in his tribe is communal. This is obviously wrong and raises the question as to how the District Land Tribunal can protect a family’s right to land, if the chief judge does not believe that families have any rights to land. Alden Wily (2006) discusses the distinction between ‘communal property’ (an estate in land) and communal land tenure (a community-based land administration regime). 12 The Ugandan administrative structure has villages, then parishes, sub-counties, counties and districts, or Local Councils (LC) 1, 2, 3, 4 and 5 respectively. 13 Where the two legal systems disagree, specific provisions of parliament and the constitution are superior. The District Land Tribunals would have to rule on this. 14 The brother-in-law was not a policeman, but an ex-priest. Interviewees recounted that if you know someone in the police or pay a sum of money, you can have someone arrested without any offence having been committed – a convenient method of extortion. 15 The question of corruption is well known. According to the national press, corruption is rife even within the National Land Registry, where forged titles can easily be obtained. 16 E.g. writing down a code makes it unchanging, whereas unwritten customary law is flexible, being recreated in interpreting each new case. Processes would be needed for changing a code, to respond to new needs and changing circumstances.

References Adoko, J. & Levine, S., 2004. Land Matters in Displacement: The Importance of Land Rights in Acholiland and What Threatens Them. CSOPNU. —— 2005a. A Land Market for Poverty Eradication? A Case study of Apac District in Northern Uganda. LEMU. —— 2005b. Where We Are and Where We Need to Go. A Study on Land Rights in Apac District in Northern Uganda. LEMU. —— forthcoming. Customary Land Law and Vulnerability in Eastern Uganda. LEMU. Agricultural Policy Committee (APC), 1989a. Proceedings and Recommendations of the Workshop on Land Tenure Resource Management and Conservation Studies. Jinja, May 1989. —— 1989b. The Report of the Technical Committee on the Recommendations Relating to Land Tenure and Agricultural Development. Bank of Uganda. —— 1990. The Report of the Technical Committee on the Recommendations Relating to Land Tenure Reform Policy. Bank of Uganda. Alden Wily, L. 2006. ‘The commons and customary law in modern times: Rethinking the orthodoxies’, in Mwangi, Esther (ed.) Land Rights for African Development: From Knowledge to Action. IFPRI. Brock B., 1969. ‘Customary land tenure, ‘Individualization’ and agricultural development in Uganda’, East African Journal of Rural Development, Vol. 2/2. Daley, E. and Hobley, M., 2005. Land: Changing Contexts, Changing Relationships, Changing Rights. DFID Deininger, K., 1997. ‘Principles and evolution of the Bank’s Land Policy’, In Economic Policy Research Centre (EPRC), 1997. Proceedings of the Seminar on The Land Bill and its implications for poverty eradication. EPRC, Makerere University, Uganda. East African Royal Commission, 1955. Report. Cmd 9475 Economic Policy Research Centre, 1997. Proceedings of the Seminar on The Land Bill and its implications for poverty eradication. EPRC, Makerere University.

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K2-Consult Uganda Limited, 2003. Second National Integrity Survey, Inspector General of Government, Government of Uganda. Ministry of Water, Lands and the Environment (MWLE), 2000. Land Sector Strategic Plan, 2001-2011. Mugerwa, Bruce and Blarel. 1988. The Impact of Land Titling on Agricultural Development. (Land Tenure Study: Rujumbura Pilot Land Registration Scheme, Kigezi). Makerere Institute of Social Research. Opyene, J., 1993. Recent Trends in the Lango Land Tenure System. Working Paper 36, Centre for Basic Research, Kampala. Pender, J., E. Nkonya, P. Jagger, R. Sserunkuuma and H. Ssali, 2003. Strategies to Increase Agricultural Productivity and Reduce Land Degradation: Evidence from Uganda. IFPRI.

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Six Struggling with In-Laws & Corruption in Kombewa Division, Kenya The impact of HIV/AIDS on widows’ & orphans’ land rights SAMWEL ONG’WEN OKURO

Introduction In Africa, access to, ownership of and control over land is a fundamental determinant for secure livelihoods, especially for the rural poor. Land provides a secure place to live, a site for economic and social security, and can serve as collateral for credit and other resources. In the last two decades, HIV/AIDS has been responsible for the weakening of rural economic safety nets and depletion of assets, chief amongst them being land. AIDS leaves many relatively young widows and orphans behind and the specific manner in which HIV/AIDS impoverishes households means that, upon finding herself a widow, a woman has few resources left with which to resist outside pressures exerted by neighbours or members of the extended family or to make choices that are in her own interest (Drimie 2002, 20). Violations of women’s property rights are most frequent when it comes to inheritance and control of matrimonial property, particularly land, homes, vehicles, livestock, furniture and household items. A crucial issue in the discussion of land rights and gender in Africa is therefore the recognition of women’s land rights upon the death of their husband, or children’s rights upon the death of their parents. As a study by Human Rights Watch (HRW 2003) on the Kenyan situation has pointed out, women widowed by HIV/AIDS often suffer injustices of both statutory and customary law that militate against their being able to retain marital property. Customary laws which are largely unwritten and liable to multiple interpretation coexist with formal laws and influence local norms that are based on patriarchal traditions in which men inherited and largely controlled land and other

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properties. These practices permeate contemporary customs that deprive women of property rights and make them powerless when these rights are infringed. While the Kenyan Constitution prohibits discrimination on the basis of sex, it undermines this protection by condoning discrimination under customary laws that privilege men over women. Women’s property rights are under constant attack from individuals – including government officials – for whom it is convenient to believe that women cannot be trusted with or do not deserve property. A complex mix of cultural, legal, and social factors therefore underlie women’s property rights violations (HRW 2003). According to the 2003 Kenya Demographic and Health Survey (KDHS), (CBS et al. 2004), about seven per cent of Kenyan adults between the age of 15 and 49, who were tested for the HIV-virus, were found to be infected. Nearly two-thirds of those infected are women, who tend to become infected at an earlier age than men. There are significant regional differences in prevalence rates, for instance, those living in urban areas, those with greater wealth, and those in polygamous marriages are more likely to be infected. Adult prevalence peaked at the level of ten per cent in adults in the late 1990s and has since gone down. New infections in adults have declined dramatically from over 200,000 to approximately 86,000 per year, but deaths have continued to increase to 150,000 per year. Approximately 1.3 million adults and 100,000 children are at the time of writing (2006) infected with HIV. Regionally, of all the provinces in Kenya, Nyanza has the highest infection rate at 15 per cent in adults. The province has by far the highest level of orphanhood, with almost one in five (19 per cent) children under 15 having lost one or both of their biological parents. In total, Kenya has 1.6 million orphans – a term which has been defined differently in various contexts. In Kenya, an AIDS orphan is defined as a child under the age of 15 who has lost their mother to AIDS (NASCOP 2005) This paper however, takes a generalized definition of an AIDS orphan to mean a child below 16 years who has lost either or both of their parents as a result of HIV/AIDS. Research on HIV/AIDS in Kenya has yet to document empirically its impact on widow’s and orphan’s land rights (Christine 1996, Manji 1999, Eilor and Mugisha 2002, Machunguzi 2002). Besides the study referred to above by Human Rights Watch (2003), there are two other main studies that have attempted to specifically link HIV/AIDS and land tenure in Kenya. These are the Forest Action Network (FAN) study sponsored by the Food and Agricultural Organisation (FAO) and carried out by Wambui et al., 2002,1 and the study by Aliber et al., from 2004 which examined The Impact of HIV/AIDS on Land Rights. These studies

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya have brought to the fore a lot of information and preliminary hypothesis. However, they disagree on the extent to which HIV/AIDS impacts on land rights of vulnerable groups. For example, Wambui et al., (2002) acknowledged that HIV/AIDS worsens the already vulnerable situation of women and children and argues that in some cases women were dispossessed of land and property they inherited after their husbands died of HIV/AIDS related complications. They emphasized that orphans were among those most affected and concluded that the lack of existing provision for direct land rights for children has increased the vulnerability of HIV/AIDS orphans and is increasingly threatening food security. Similar points were made in the study carried out by Human Rights Watch (2003), whereas the study by Aliber et al. (2004) rejects the thesis that tenure loss due to HIV/AIDS is rampant. While it confirms the conclusions drawn from earlier studies, namely that HIV/AIDS can undermine security of tenure, the authors emphasize that threats to tenure security do not usually result in actual or sustained loss of land rights. They found that the presence of a male child could further undermine a widow’s tenure security, but that does not necessarily need to be the case. No clear examples were observed in any of the sites of AIDS orphans or widows being dispossessed of land. Thus, in this study HIV/AIDS emerges as a significant but not primary cause of tenure insecurity. Despite the opposing arguments, all studies pointed at the fact that the number of land disputes has risen and will continue to increase because of high death rates due to HIV/AIDS-related diseases. However, they did not account for how these disputes are resolved, and particularly, if mechanisms for resolving land disputes are sensitive to the land rights of widows and orphans. Moreover, these studies do not address the responses at the local level by widows, orphans, elders, the government and local non-governmental organizations to the challenges raised by HIV/AIDS for land tenure security.

Focus of the Chapter and Background on the Case Study Area This chapter aims to provide a more nuanced understanding about the relationship between HIV/AIDS and land rights in western Kenya, more specifically in Kombewa division, Kisumu District. It evaluates the impact of HIV/AIDS on widows’ and orphans’ land rights, especially their capability to acquire, use and transact land. It also focuses on the

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coping strategies they have designed and used for their survival. The case study derives from 156 interviews collected in various locations in Kombewa division between 2004–2006. Households where interviews were conducted were identified by working closely with voluntary counselling and testing centers, community health workers, homecare providers, prevention mother to child transmission providers, nongovernmental organizations, and health officers at local dispensaries. The real names of the respondents are concealed to protect their anonymity. Kombewa is an administrative division of Kisumu district, Nyanza province. It borders Lake Victoria on the eastern side and Maseno division to the northeastern side. The area is mainly inhabited by a section of the Luo community called Joseme and by a few immigrants (Jodak) from neighbouring clans, such as Jo-Asembo, Jo-Kisumu and Banyore. Subsistence farming is the major economic activity in Kombewa division. As half of the division is dry and of low agricultural potential, the main crops are maize, millet, cassava, groundnuts and cowpeas. Inadequate and unreliable rainfall patterns have immensely affected agricultural activities and incidences of livestock diseases like Nagana, foot and mouth and tick-borne diseases are high. (Kisumu District Development Plan 2005). Also the infrastructure is quite dilapidated, hindering development of the fishing industry. At present fishing activities are popular mainly with youth who tend to come from generally poor families, orphans, primary school drop outs, widows and underprivileged in the society (Daily Nation, April 13, 1999). As in most other parts of Africa, women in Kombewa bear a disproportionately large share of both domestic and agricultural work. Their contribution to family farm income is considerable and they spend many hours in planting, weeding, cultivation, and fetching firewood and water. Women in Kombewa are faced with inhibitive cultural practices, such as the traditional division of labour, lack of access to land and property, inheritance of widows, exclusion of women in decision-making and restrictions on inheritance of family property. Despite the prevalence of other diseases such as malaria, HIV/ AIDS remains the major challenge facing the people in Kombewa division. In rural as well as urban areas, HIV/AIDS has caused a lot of suffering and has placed a heavy burden on the health service delivery system. Its effect is felt in every sector of the economy since a lot of resources and time are needed to care and cater for the sick person’s welfare. Animals and other properties are sold in order to raise money to treat family members infected by HIV/AIDS. The prevalence rate of HIV/AIDS in the division, according to the 2005 District Develop-

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya ment Plan, stands at 38 per cent and is among the highest in the country. Kenya’s failure to eliminate discriminatory property inheritance practices exacerbates the havoc caused by HIV/AIDS. Women with AIDS in Kenya, virtually all of whom are infected by husbands or regular male partners, suffer when their homes, land and other property are taken away. They not only lose assets they could use for medical care, but also shelter.

HIV/AIDS and Land Rights in Kombewa Division On the following pages the various threats to land rights of widows and orphans will be discussed and related to the ways in which the land market operates in Kombewa Division. Many of the households affected by HIV/AIDS were found to have sold off parcels of land to offset medical, and at times funeral, expenses in disregard of the surviving orphans and widows. In the case of funeral expenses, land is sold to transport the deceased home, to clear hospitalization bills, and to feed mourners. However, it is during sickness that several parcels of land may be sold to pay for medical bills and buy drugs as the case of Caroline Abonyo, now a widow with four male children and two female children, demonstrates: My husband had around 6 ha of land in different places. He fell sick in 2000 while working in Nairobi […] He stopped to work and returned home to start afresh […] While at home his health did not improve. We had to look for money to take him to the hospital. As such in the year 2001 he sold one parcel at Kshs 15,000 to establish a home and to seek for treatment. Things did not improve. In January 2003, my husband, without my knowledge, sold another parcel at Kshs 21,000 […] I was against the sale, but he did it in cohort with the assistant chief who by then was also very sick and desperately needed money […] There was nothing I could do. I have 1.5 ha left for my children. My husband eventually died in May 14th 2005. The assistant chief has also died and that parcel was sold at a low price and not even paid for fully according to the records I found with my husband. However, the person who bought the land insisted having paid for it in full […] I am still following the matter.

A second form of land sales in relation to HIV/AIDS are those cases where widows – at times in partnership with their orphans – sell off land. The majority of widows who sell land have lost their husbands

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after having established a homestead on their own. In fact, it seems very difficult for a widow, whether HIV-infected or not, to be engaged in selling land while at the same time still living at their in-laws’ homestead. Such widows would be considered to be selling land that was ‘allocated to them in trust’ for their male children. Although there are several cases in the division, two stand out as an illustration. Dora Odhiambo, 31 years old and widowed in 2002, argued: When Odhiambo died, he left me with nothing. I remained with his children to feed and to take to school. I had no proper house. The children had no clothing. Life was terrible but I had to start somehow. In the year 2003 I had to sell one of the pieces of land Odhiambo left, at least to build a house and to seek treatment particularly for my last born child. Although I have not yet built a house I have kept the money somewhere, but not in the Bank. I have used part of the money for treatment but some is still remaining. Next year I will also use some of it to pay school fees for my son.

Boone Asaria, a 38-year-old widow, has sold sections of the land left to her by her deceased husband. She has been able to keep records for all her transactions to ensure buyers pay her in full. In fact, her case illustrates the extent to which land seems to be the only property to lay hands on in case of any slight economic distress for many widows and orphans. She recounted: My husband died when the children were still young. Now my son is an adult and I am like his father. I have to take responsibility. In 2001 I was forced to spoil my property. I sold my land […] to give out as bridewealth for my sister-in-law who is my son’s first wife. In 2002 I fell sick and had to seek treatment. I had to sell the second piece of land […] to treat myself and to give as bridewealth to my son’s second wife. He is my only surviving son and I have all the reasons to assist him. He is now having four children: three with the first wife and one child with the second wife. In the same year I sold another piece of land […], although he has not completed paying it, to seek treatment for my daughter.

The above testimony shows that some widows indeed exercise a remarkable degree of freedom concerning their ability to hold, use and transact land at the local level after the death of their husbands. The third aspect of HIV/AIDS-related land sales in Kombewa, concerns fathers-in-law or widowed mothers-in-law selling their pieces of land. These cases are rampant, particularly when they have not subdivided the land amongst their male children and are still living in one homestead. They sell their lands to seek treatment and care for their

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya sons or daughters, thereby leaving nothing for their in-laws and their children. The following account was given by Majiwa Omollo: My husband died in 1991. In this home I have not sold any land […] My mother-in-law is the one selling land. I had to acquire the space I am living in today by force. My father-in-law died without sub-dividing the land and it is now everything goes. My mother-in-law started selling land in 1998 to treat her son and her daughter who were diagnosed to be suffering from HIV/AIDS. Both died. Two years later, another brother-in-law of mine fell sick. My mother-in-law sold another land to treat him. He too died. Today, I am the only surviving sister-in-law; all others have died. They have left children. I have five children, four male ones and a daughter. I don’t know how my male children will survive, where will they get land? Recently my mother-in-law took a loan from a neighbour and she is now asking me to sub-divide for her a section to help pay back the loan. It is difficult. The story above is not only limited to widowed grandmothers; several cases of grandfathers selling their parcels of land to seek treatment and care for their adult children to the disadvantage of surviving orphans and widows are also evident in Kombewa. However, in their case the rush to sell land directly does not occur. These fathers-in-law usually start off by selling other household items like livestock, furniture, clothes, television and other consumer goods in order to cover such costs as clinic visits, medical treatment, supplies, and funerals. Having used all these assets, they also often end up turning to disposing productive assets such as land. The case of Awuor Ochoro illustrates this: I had four sons but now they have all died. Because they have died with their wives it must be because of HIV/AIDS. I had a lot of land in this village but now I don’t have it anymore. I have been selling my land to treat my sons since 1998. At first I used my cows, they got finished and I had no other option but to sell land […] My only surviving daughterin-law has no land, neither do my grandchildren, but I am happy to have used what I had to treat my sons […] God knows these children would one day be people […] They will have to buy land elsewhere.

These rampant land sales leads to impoverishment and disempowerment of widows. It is also not a sustainable adaptive strategy. In Kombewa, it is, however, not land sales alone that threaten land rights of widows and orphans: many are upon the death of their spouses denied rights to the land which they had used together. After the death of their spouses, many widows are left at the mercy of indifferent inlaws who target their husband’s properties. For many widows in

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Kombewa, the choice is a difficult one: either to appease the in-laws by allowing them to take whatever they want in exchange for peaceful settlement on the family land, or to protect the property at the risk of being evicted from the family land and being accused of tough-headedness. The case of orphans is not any different in this regard as illustrated by Phelix Ochieng’ Okombo, who was born in 1988: In 1995 my father died, later in 2000 my mother also died. Thereafter the four of us were divided among relatives. When I reached standard seven, I went back to my grandfather’s place, especially to see if we had land. I was chased to go and ask for land at the grandmother’s because I was not a legal child to my late father.

This case demonstrates the extent to which a particular section of Luo culture may be manipulated and at time renegotiated to deny and exclude orphans of their right to land.

Role of the Government and Traditional Authority Since the first HIV/AIDS case was reported, the Kenya government has never had a clear policy document on widows and orphans – pronouncements on these issues exist only in various papers. For example, in its First Sessional Paper No. 4 of 1997 on AIDS in Kenya, the government saw orphans as a social burden and asked for intensification of advocacy on their rights especially property rights. However, from 2003 on, the government, through the Ministry of Home Affairs in collaboration with the National AIDS Control Council (NACC), developed national programme guidelines on orphans and other children made vulnerable by HIV/AIDS. This document identified that parental illness robs children of inheritance from their parents as family resources are used in an attempt to sustain health and prolong the life of parents. In 2005, the Government developed the Orphaned and Vulnerable Children (OVC) National Action Plan which aimed at strengthening the capacity of families to protect and care for OVC; provide economic, psychological and other forms of social support; mobilize and support community based responses and increase OVC access to essential services, including food and nutrition, education, health care, water, sanitation, and shelter. It is important to identify that the government has so far only focused on orphans whereas no documents, let alone a clear policy guideline, exist on widows to date. While such documents exist at the national level, within the rural areas, including Kombewa, the provincial administration, which

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya includes chiefs, assistant chiefs, district officers and the provincial commissioner, is the only government structure that widows and orphans might approach during distress. However, in Kombewa, the chiefs and their assistants are partly to blame for the violation of widow’s and orphan’s land rights. In order to understand the role of the provincial administration in this regard, it is necessary to give some background on the process of selling land, which in the case study area begins outside the law but struggles to end within it. The person willing to sell his/her land secretly informs the local land agents of his/her willingness to ‘spoil his/her property’. The land agent then looks for a buyer: usually he consults the civil servants in the area, often teachers, who are perceived to be having money and to be willing to cash in on the unfortunate situations of others to acquire land. Once a buyer is found, both of them agree on the price and inform the landowner. Should the landowner accept the offer, he/she invites the buyer to agree on the mode of payment – which is usually done in instalments. The land agent gets his commission and the process of selling that parcel of land begins. It is common in Kombewa for the seller to visit the buyer asking for instalments, especially if the seller has any real or imagined financial problem. This process usually goes on for years until the last instalment is paid. Unless there is a dispute, it is usually during the payment of the last instalment that the chief or assistant chief is informed about the land sale for the first time as they are required to witness the sale agreement. Aware that the whole transaction was done illegally (Okuro 2005b), the chief or his assistant will usually ask for pess kalam (money for the pen) to witness the transaction. But should there be a dispute, which is often the case, and the chief gets to know about it, he will require the parties to either report to the Land Tribunal or he will arbitrate the dispute informally. In cases where the chief decides to deal with the matter outside the law, the outcome might be especially disastrous for widows. These chiefs often solicit for bribes by threatening the land purchaser with dire consequences. Some unscrupulous chiefs also use false pretences and claim that they have been sent by the land-selling widow to receive on her behalf the remaining instalments from the purchaser and then fail to deliver the money to the widow, as the case of Serfina Opiyo demonstrates: I sold my land in 1992 at Khs. 57,000 to treat my son and his wife who have since died. At first I was paid Kshs. 30, 000 the rest were to be paid in instalments […] Between the year 2002 and 2003 the person whom I sold the land to, came to me asking that we write an agreement […] I refused and told him to pay me the last instalment which, he told

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me, he had paid the chief. I later approached the chief who acknowledged having received the money and promised to pay me […] he has not paid me till today. He died with my money.

In fact, these land transactions are but one of the avenues through which chiefs enrich themselves at the expense of the widows selling their parcels of land to survive. The current structure of the provincial administration cannot be relied on in safeguarding widows and orphans land rights. Despite the fact that a majority of widows and orphans still report to the chiefs for assistance, especially if they are threatened with eviction and denied inheritance rights, the provincial administration is not well suited to tackle the problems of tenure insecurity in the era of HIV/AIDS. However, all chiefs and assistant chiefs I have talked to informed me that they have been sensitizing people in barazas against the rampant sale of land without following the law and disposing of family land without considering future generations. While these chiefs stand to benefit from these sales via ‘money for the pen’ it should also be observed that the chiefs’ barazas belong in the men’s world – very few women, let alone widows, attend these barazas. Those who attend, only do so if they are specifically invited and have a case to be heard. Thus the chiefs’ self-claimed sensitization campaigns rarely reach the widows and orphans in villages. What about the traditional authority? Several factors have contributed to the curtailment of the powers and responsibilities of traditional authority as it existed in Kombewa. Among these are the colonial and postcolonial creation and appointment of the provincial administration, the establishment of Kombewa Division Land Tribunal (KDLT) and the appointment of particular elders to the tribunal. Although weakened, attempts are currently in place to reinvigorate the Luo traditional authority named Luo Council of Elders (LCE) (Oguto 2001), with the task of focusing particularly on violations of widow’s and orphan’s property rights. The success of this initiative is yet to be seen. However, so far two forms of disputes or cases have been forwarded to local elders in Kombewa division. The first involves those widows and orphans facing eviction from their matrimonial homes who have nowhere to go. They often find it extremely difficult to come before the elders particularly if they were ‘not properly married’, as Mzee Joseph Nyamwanda, a respected elder in Seme, explains in the case of the widow of Omullo Obongo and her children which was brought to his attention in 2002: This widow came to me with her two children that they have been chased form their matrimonial home. In the first place, I did not know

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya her. I did not even know that Omullo had married. We only saw the widow during burial […] How are we as elders expected to solve a case like this? I asked her if Omullo had exchanged bridewealth, she said no […] and Omullo had not even gone to their home. I told her that it will be difficult for elders to help her and she had to talk to Obongo’s family to help her.

In such cases these widows and orphans are always dependent on the good will of those particular families where they claim to have been ‘married’ and are suppose to live. The second form of dispute concerns either those widows whose deceased husbands sold land and died before the last instalments were paid, or those widows who themselves had sold land and have difficulty with the land purchaser especially when payment was to be done in instalments. Their fate is not any better. Because of the illegal process in which a majority of the people buy and sell land in Kombewa division, it is during these disputes that the traditional authority (just as the provincial administration) normally gets to know for the first time that a particular parcel of land was sold within their jurisdiction but without their knowledge and consent as required by law. Scenarios like this leave these elders powerless and they therefore arbitrate cases at the whims of the land purchaser and in most instances arrive at a verdict that is not lawfully binding. It also creates room for demanding ‘money for the pen’ because these elders are aware that should the case be reported to the chief he/she would first of all demand ‘money for the pen’. Such land disputes are not usually reported to Kombewa Division Land Tribunal, because, given their illegal nature, the tribunal will not only declare then null and void but also fine the parties involved. In the end, widows suffer silently as the case of Bonne Asaria illustrates: In 2002 I fell sick and had to seek treatment. I had to sell my second parcel of land […] we agreed with the purchaser to pay in instalment. Between him and me is Kshs 2000, which he has refused to pay to complete the instalment […] so we have not written agreement with him. I have asked him several times for the money as he has already built a homestead within the plot […] He is not a good man […] he tells others that he will pay me after I die […] for my funeral expenses. I cannot report him to the chief because we normally do that after all instalments are paid or if the last instalment is being paid. The chief will not listen to me and instead will demand ‘money for the pen’ or I go to the tribunal […] but I cannot afford the long process of selling land via the tribunal […] may be I will leave him the money.

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Strategies Adopted and Used by Widows and Orphans Amidst such threats, widows and orphans in Kombewa pursue a variety of options to safeguard their land rights particularly those threatened by their mothers- or fathers-in-law. First, a threatened widow normally attempts to establish her own homestead as soon as possible if the husband died without establishing a home. In this way, the widow is assured of security for her piece(s) of land from where she can cultivate and pass on the rest to her male children to also establish their homes. However, this option has serious health implications as it usually demands that the widow needs a suitor to establish a home; the institution is usually labelled ‘widow guardianship’ or ‘widow inheritance’. It is in the process of accomplishing the demands of this cultural practice that HIV/AIDS spreads most in Kombewa. However, this survival strategy demonstrates how tenuous women’s social and economic status can be when they are members of HIV/AIDS-affected households and lack the guarantee of property and inheritance rights. The second option usually available to and used by widows in Kombewa is to encourage their sons to marry and establish homes early. In this way, their sons will also be able to acquire and access more land for other young siblings. However, while this encouragement of marriage at a young age might help to sustain the lineage and also act as discouragement against land grabbing by in-laws, this strategy is obviously fraught with difficulties. The young married couples are often not capable and mature enough for the challenges of marriage and eventually interpret their partnership as a punishment as the case of 19-year-old Elmont Kenyatta demonstrates: Before my surviving mother died two years ago, our extended family met and pressed on me to get married. They even identified for me the woman to marry. They invited me home from Kisumu, took me to the woman’s grandmother and encouraged me that since she was also an orphan we could get along well. I had to build a house and married her. I left her home to take care of my widowed mother as I had to go back to Kisumu to continue with my work. After two or three months, my mother sent my wife to Kisumu to tell me that she wanted me to establish a home. I said I had no money. My mother then sold one parcel of land and gave me the proceeds to establish a home. In October 2004 my mother died. After the burial my wife had to remain at home to take care of our land, crops and animals. She did it for

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya sometime then migrated to Kisumu. I pleaded with her to remain home and she refused and left to her grandmother. Now she doesn’t want me anymore, I am looking for another woman […] I had to come home and look at our other siblings who are still in school. Nowadays I commute everyday to Kisumu and back.

The third option pursued by widows is share-farming which is also open to those widows who experience complete loss of land, as well as to those whose access to land is threatened by their in-laws. Widows who are aware of a particular piece of land that was supposed to be assigned to her deceased husband opt to cultivate it with a neighbour or friend. Such a friend or neighbour usually does most of the cultivation then sub-divides it to the widow to plant her crops. This widow will then weed and harvest the crops from her section. By being involved in this form of cultivation, the widow ensures that her late husband’s parcel is not vacant or fallow for any brother- or sister-in-law to use. In this way, such a widow protects the interest of her surviving male children against the intentions of the in-laws who would rather exercise closer control over the land left by the deceased family member. For those widows who lack access to land of their own, sharefarming usually remains the only option for them to be involved in some cultivation. Their cases are usually slightly different in that they trade with their labour, for example they may do the weeding and the harvesting and then share the harvest with the landowner. Similarly, they may ask a brother-in-law for land to cultivate. The brother-in-law may give the widow a parcel of his land that is temporarily not in use to cultivate for a particular period of time. While in such cases the widow partially enjoys user rights, she cannot bequeath such land to her male children when they come of age. This latter case is a demonstration of the extent to which some widows can enter into non-conjugal relations with their male kin within the extended family (grandparents, grandchildren, uncles, cousins, and nephews) to access resources through reciprocal rights and obligations that may last a lifetime. A majority of widows in Kombewa have formed widows and orphans groups and other informal social networks to access cash and other productive resources outside marital and kinship relations. These women’s groupings have various and multiple purposes, and are very diverse as they might be based on village, neighbourhood and church, or occupation-, activity- and age-groups. This diversity also applies to the range of activities they undertake. In the era of HIV/AIDS, these groups have provided widows and orphans with opportunities to access state and non-state development resources. In South West Seme, for example, widow’s and orphan’s groups named Bop, Alara or Nyasithi

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focus specifically on care and education of HIV/AIDS orphaned children and get modest resources from the Anglican church. Through these groups many widows manage to ensure that their children go to school and are adequately fed in orphanages. For widows themselves these groups allow them to solidify their power within and outside their neighbourhoods and villages, to establish their solidarity and support for each other, and to secure access to productive resources through various group schemes. Widow’s groups also provide widows with an avenue to substantiate, negotiate and expand their autonomy. Many informal social networks exist in Kombewa such as Uyoma Widows Group (UWG) formed by widows who were from the same sub-clan which is active in South West Seme of Kombewa location. This group, which is not registered by the government as the law requires, is of much benefit to members, especially when it comes to identifying and using land resources. These widows normally assist each other with land to cultivate or engage in share-farming. In these groups, widows console each other emotionally and spiritually, and acquire knowledge and contacts during their informal meetings. Some widows have started small-scale businesses. Some are cereal traders, shop owners, fishmongers and illicit brew sellers in the market centers. Many of them manage to accumulate money and purchase productive properties in their names which they can then use and transfer as they wish without going through family and kin networks. The case of Colleta Yuje, a 36-year-old widow who was chased from her husband’s family, serves as an example: I was chased away from my late husband’s place. My mother-in-law claimed that I infected her son with Ayaki (HIV/AIDS) […] because I always stayed away from home doing business […] I came back to my mother who encouraged me that I will get another husband and to continue with my business in the nearby market center […] you know I cannot live in the market center with my children forever. So, I had to look for land to buy and establish a home so that, should I die, my children would have some shelter on land that I bought with my sweat […] thus how I got this plot and build this house. As you can see my children are going to school like other children, they have a home like others and I can feed them with my business.

At present there are two non-governmental-organizations (NGOs) whose activities and actions relate to land rights of vulnerable groups in Kombewa. These are Jaramogingi Oginga Odinga Foundation (JOOF) and Kenya Female Advisory Organization (KEFEADO) all based in Kisumu Town. JOOF has been organizing stakeholder seminars in

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya Kisumu with the aim to break the silence on widow’s and orphan’s property rights violations in the era of HIV/AIDS. So far, JOOF is experimenting with the extent to which the Luo Council of Elders (LCE) and other Luo cultural structures can be incorporated in the fight against violation of widow’s and orphan’s land rights all over Nyanza region inhabited by Luo people. KEFEADO has been training paralegals in the rural areas of Kombewa to assist widows and orphans identify their property rights as inscribed in the constitution.

Conclusion Despite these encouraging accounts of activities, widows and orphans property rights violations continue in Kombewa and there is a need to initiate a more proactive sensitization campaign that incorporates the provincial administration and land control boards. Similarly, coownership of land or joint titling together with will-writing should be encouraged (compare the chapter on Uganda in this volume). There is also a need to reconstitute cultural structures that are favourable to widows and orphans during the era of HIV/AIDS and work towards eradicating those cultures that are harmful. For example, in the institution of marriage, there is a need to encourage reliable and culturally acceptable unions and avoid aromogo to oyiena (I have met and accepted). Irregular unions that do not involve bridewealth exchange often lead to situations where, upon the death of the husband, the widow may not be absorbed into the patrilineal tenure system. This loose form of marriage often works to the detriment of widows as they tend to be expelled from the deceased husband’s land more easily. Traditional practices such as ‘widow inheritance’ which enhance the spread of HIV/AIDS, need to be eradicated while at the same time there is a need to encourage extended family structures to continue taking care of orphans. Instead of selling their lands, widows and grandparents should be encouraged to lease or rent out land to other users. This will however require liberalization of land rental market so as to allow AIDS affected households to obtain cash by renting out their land. In Kombewa, the land market is thriving and the way land transactions are conducted leaves space for corruption and leaves widows and orphans as the most vulnerable. What can be witnessed in Kombewa division today is an increasing number of landless people, who, due to economic burdens of HIV/AIDS, have sold their pieces of land at relatively low prices in order to finance medical and other disease-related costs.

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At the moment, widows and orphans in Kombewa are experimenting with many options to safeguard their rights not only to land but also to other productive resources. However, a majority of their options seem difficult to sustain due to the high prevalence of HIV/ AIDS and the often difficult choices that HIV/AIDS-affected households face, particularly when it comes to diverting their limited resources to the cost of care and treatment for those infected. It has also been demonstrated that loss of control over household assets and the overarching need to safeguard these rights easily drive poor households into destitution, increasing their vulnerability to infection with HIV/AIDS and reducing their ability to cope with its further consequences. It is on this understanding that this chapter recommends a more proactive sensitization campaign that involves the traditional structures, provincial administration, local community-based organizations as well as NGOs in order to ensure that a future generation of people, especially from poor households, will not have to generate a livelihood without having any access to land.

Notes 1 In addition to Kenya, this study also includes Lesotho and South Africa. The three case studies are summarized in Drimie 2002.

References AIDSCAP/FHI/USAID, 1996. Aids in Kenya: Socio-Economic Impact and Policy Implication. Aliber, M.; Walker, C.; Machera, M.; Kamau, P.; Omondi, C. & Kanyinga, K., 2004. The Impact of HIV/AIDS on Land Rights. E-Edition at www.hsrcpublishers.co.za/books. Christine, N., 1996. ‘Social change for orphans and adolescents due to the complexity of AIDS epidemic’ in Cabrera, C., Pitt, D. & F. Staugard (eds), AIDS and Grassroots Problem Challenges and Opportunities. Nairobi: Ipelegeng Publishers. Central Bureau of Statistics (CBS) [Kenya], Ministry of Health (MOH) [Kenya] and ORC Macro. 2004. Kenya Demographic and Health Survey 2003: Key Findings. Calverton, Maryland: CBS, MOH and ORC Macro. Drimie, S., 2002. The Impact of HIV/AIDS on Land: Case Studies from Kenya, Lesotho and South Africa. A Synthesis Report Prepared for Southern African Regional Office of the Food and Agricultural Office of the United Nations (FAO), August 2002. Eilor, E. A. & Mugisha, M., 2002. Report of the Study on HIV/AIDS and Women’s Land Rights in Uganda: A Case Study of Selected Individuals in Rukungiri and Kampala Districts. Kampala: EASSI. Hemrich, G., 1997. HIV/AIDS as a Cross-Sectoral Issue for Technical Cooperation: Focus on Agriculture and Rural Development. GTZ HIV/AIDS Prevention and Control in Developing Countries Paper No. 1. Eschborn: GTZ. Human Rights Watch (HRW), 2003. Double Standards: Women’s Property Rights Violation in Kenya. New York: HRW.

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Struggling with In-Laws & Corruption in Kombewa Division, Kenya Kisumu District Development Plan, 2005. Nairobi: Kenya Government Printer. Machunguzi J., 2002. HIV/AIDS and Women’s Land Ownership Rights in Kagera Region, Northwestern Uganda. Paper Presented at FAO/SARPN Workshop on HIV/AIDS and Land Tenure, Pretoria 24–25, June 2002. Manji, A., 1999. Who’s Afraid of Land Rights? Women, AIDS and Land Reform in Tanzania. Paper Presented to a Seminar on Gender, Property Rights and Development. Det Juridiska Fakultet, Universitete 1 Oslo. Mullins, D., 2001. Land Reforms, Poverty Reduction and HIV/AIDS. Paper Presented at the SARPN Conference on Land Reforms and Poverty Alleviation in Southern Africa. OXFAM GB Regional Management Centre, Pretoria: South Africa. NASCOP, 1999; 2000; 2004; 2005. Aids in Kenya: Background, Projections, Impacts, Interventions and Policy. Nairobi: Ministry of Health. Nzioki, A., 2001. A Synthesis Report: Sub-Regional Study on Women’s Ownership and Access to Land. Nairobi: The Eastern Africa Sub-Regional Support Initiative for Advancement of Women. Ogutu, G.E.M., 2001. KER in the 21st Century: Luo Social System. Kisumu: Sundowner Institute Press Okuro, S.O., 2002. The Impact of Colonial Socio-Economic Policies and Practices of Female Headed Households in Kombewa. MA Thesis, Kenyatta University. Okuro, O.S., 2005a. HIV/AIDS Pandemic and Its Impact on Land Rights in Kisumu District, 1993– 2003. PhD Research Proposal Presented at Maseno University. Okuro, S.O., 2005b. ‘Land reform in Kenya: The place of land tribunals in Kombewa division’ in: Macamo, E. (ed.), Negotiating Modernity – Africa’s Ambivalence Experience. London: ZED Books. Seyoum, S., 2000. ‘Gender and HIV/AIDS’ in Reflections No.4, Dec. 2000, PANOS, Ethiopia. Shipton, P., 1988. ‘The Kenyan land tenure reform: Misunderstandings in the public creation of private property’. In Downs R.E and Reyna S.P. (eds), Land and Society in Contemporary Africa. London: University Press of New England. Shipton, P., 1984. ‘Lineage and locality as antithetical principles in East African systems of land tenure’. Ethnology 23/2, 117–32. UNAIDS/WHO, 2003. A History of the HIV/AIDS Epidemic with Emphasis on Africa. Geneva: UNIAIDS. —— 2005. Global HIV/AIDS Statistics. Geneva: UNIAIDS. UNAIDS, 2000. The Global HIV/AIDS Epidemic. Geneva: Joint UN Programme on HIV/ AIDS. UNICEF, 1999. Children Orphaned by AIDS: Front Line Response from Eastern and Southern Africa. New York: UNICEF. —— 2000. HIV/AIDS, Orphans and Vulnerable Children. New York: UNICEF. Wambui, K., Wagaki, M., Bosire, E., 2002. The Impact of HIV/AIDS on Land Issues in Kenya. Nairobi: Forest Action Network.

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Seven Women & Land Arrangements in Rwanda A gender-based analysis of access to natural resources AN ANSOMS & NATHALIE HOLVOET

Introduction After a long process of drafting and negotiations, the government of Rwanda recently adopted a new land policy and a related land law1 that seek to formalize land rights through official titling. The stated overall objectives of the land law, ‘sustainable economic development’ and ‘social welfare’ (see article 3 of the land law), are to be realized through rural economic transformation, increasing productivity, land consolidation,2 commercialisation of agriculture, specialization and grouped settlements (imidugudu).3 Whereas the new land law has already been assessed for its likely impact upon conflict prevention (see Musahara & Huggins 2004), so far no in-depth analysis has been made from a gender perspective. At face value, Rwanda’s new land law endeavours to ensure gender equality in land rights. Article 4, for instance, states that ‘Any discrimination either based on sex or origin in matters relating to ownership or possession of rights over the land is prohibited. The wife and the husband have equal rights over the land’ (Law no. 08/2005).4 This attention to gender issues matches similar earlier efforts by the current Rwandan government. Particularly interesting within the scope of this chapter is, for instance, the inheritance law adopted in 1999 that may be viewed as a first step towards recognizing women’s rights of ownership by giving some of them5 the legal right to inherit property from their husband and/or father. Other initiatives include the ‘Gender Budget Initiative’, a three-year pilot project (2002–2004) aimed at introducing gender budgeting within different ministries (see Diop 2002). Furthermore, Rwanda has been showcased as one of the

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Women & Land Arrangements in Rwanda countries that excelled in drafting its Poverty Reduction Strategy Paper (PRSP) (see Zuckermann 2001), and it currently holds the world’s largest percentage (45.3 per cent) of female parliamentarians (see UNDP 2005). Although one may applaud the Rwandan government for its seeming commitment towards gender issues in policy-making, in this chapter we advance a more balanced account of the gendersensitiveness of the newly-adopted land policy and law.

Structure of the Chapter In this chapter we will analyse land rights from a gender perspective in the context of Rwanda, a country characterized by extreme resource scarcity and societal disruption. The first section of this chapter begins by presenting how land rights for women have evolved within the customary system. Section two will look at the impact of formal legislation with regards to women’s inheritance and land rights up to early 2005, focusing especially on the inheritance law adopted in 1999. To complement our findings from secondary literature, section three adds primary data from field research done by one of the authors on ‘livelihood strategies and social relations’ of rural households in two provinces, Gikongoro and Gitarama, from June to October 2004. Next to quantitative data from 292 households in 24 cellules,6 this research gathered qualitative data from semi-structured interviews for a sub-sample of 68 households, focusing on the difficulties that household heads reported in securing their livelihoods. In several of these interviews, including both male and female household heads, interviewees made reference to land-related conflicts – from which we study 16 cases in detail. We also provide an analysis of the early 2005 situation regarding gender and land rights by illustrating how both formal and informal institutional arrangements prevail within local realities. The new land law, published in September 2005, explicitly refers to the 1999 inheritance law and to customary practices, reinforcing in fact the earlier situation of ‘multiple fora’. While it is still too early to assess the specific gender impact of the new official land policy on the ground, section four suggests possible ways of identifying its likely gender effects. Including a gender-aware policy appraisal, prior to implementation, is one of the suggestions made in this last section to increase the gendersensitiveness of the land policy and law. Accordingly, we present some elements to be included in such an analysis and highlight how the Rwandan policy and law could be improved. In other phases of the

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land policy cycle, gender analysis should be used to monitor and assess the expected and unexpected gender effects on the ground of law and policy. Both the implementing government and non-government actors have a role to play here. In addition to remedial action that focuses on the statutory legal framework, we also suggest ways of engendering other fora. The condition that all institutions governing access and control over land are embedded within socially-‘gendered’ relations is a primordial one. Eventual changes in those underlying gender relations will most effectively influence the gender sensitiveness of different fora.

1. Gender and Customary Land Rights in Rwanda As in many African countries, land arrangements in Rwanda have adapted to changing physical and social environments. Growing population pressure resulted in resource scarcity which has increased the intrinsic value of land and fragmented land properties when bequeathed to (numerous) successor generations. As a result, land rights evolved from a lineage to a household to an even more individualized logic. Second, the range of rights held by individuals has been extended from control to transfer rights, allowing for the renting and eventually selling of land. Further, the landholder’s autonomy to exercise these rights has evolved with the gradual breakdown of the traditional family cluster, thus increasing the ability to transfer land titles to outsiders (Pottier 2002). This seems rather surprising given that land belonged, de jure, to the State7 which had legally forbidden land transactions.8 Nonetheless, this formal rule could not prevent the emergence of a vibrant informal land market over the 1980s, with even written documents used to validate the transfer of land titles (Platteau 2000). Rwanda’s land property arrangements thus spontaneously evolved towards a deepening degree of individualization consistent with the evolutionary theory of land rights.9 However, in contrast to this theory, it was not a smooth process leading towards more efficient land-user systems in Rwanda; see for example André and Platteau (1998) who critically question the ‘virtuosity’ of these evolutionary forces by comparing Rwanda’s situation to the ‘Malthusian trap’. Moreover, this trend towards more individual land tenure rights tends to be highly exclusionary for disadvantaged groups, including (especially poor) women. The adaptation process departed from a predefined context where, according to customary practices, women only had indirect access rights. As a result,

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Women & Land Arrangements in Rwanda women were, and still are, often unable to acquire official land rights within the ‘modern’ individualized system. At the same time, women’s traditional rights of indirect access are more and more called into question. As Platteau states, ‘In this process [towards individualized land rights], customary rights of access for outsiders (…) are gradually restricted by the host community and, at later stages, exclusionary processes start to affect weaker categories within that community itself’ (Platteau 2000, 100). In Rwanda, this tendency does not only occur at the community level, but increasingly within the smaller lineage and even household boundaries. The definition of membership to a family has often become extremely narrow, victimizing and even excluding those with secondary rights, as the customary solidarity mechanisms securing land access for women are often disregarded when the land is needed by the male lineage (Burnet 2001). Women are seen increasingly as outsiders by their own brothers and even fathers; and/or by their husbands and/or his family. The traditional and relatively more inclusive customary logic was even further affected by the civil war from 1990 until 1994 and the genocide. The traumatic experiences of this conflict severely disrupted the Rwandan social fabric, not only at a community level, but also within family boundaries. The human cost of the war and genocide created great confusion in kinship relations as traditional ‘life lines’ were severed by the death of people ‘at the wrong time’. Consequently, the relative proportion of weak population groups expanded when considerable numbers of widows and orphans were left behind. A second main consequence was that after war ended, intra-kinship power relations and solidarity mechanisms between generations and genders had to be renegotiated, which often resulted in a further breakdown of traditional solidarity mechanisms to the disadvantage of those weaker population groups. To reiterate, land relations in the current context are characterized by some remainders of the ‘traditional’, more inclusive customary land rights systems, coexisting with new, more exclusionary customary logic as a result of the evolution towards increased individualization and informal privatization; a trend that was accelerated by the societal disruption due to the civil war and genocide. The Rwandan case is a perfect illustration of how customary systems are not arranged by a fixed set of rules, norms and values. On the contrary, informal land arrangements are flexible and adapt to the setting, specific circumstances, and the prevailing social networks and power structures in which the construct of gender, but also class, ethnicity, etc., play an important role.10

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2. Gender and the Formal Arena up to Early 2005: focus on the inheritance law of 1999 and its applicability Apart from the informal customary systems, there are also formal structures that arrange access and control over land which have an important influence on the gender aspects of land rights. In 1999, the government of Rwanda adopted an inheritance law that gave equal rights to legitimate children, whether male or female, to inherit from their father (see article 50, Law no. 22/1999). Further, it allowed legally-married women to inherit from their husbands11 (see article 70, Law no. 22/1999). Although an important advance towards gender equality, the law contains several ambiguities. First, the jurisdiction of the law seems unclear in the case of the inheritance of land as article 90 refers to the land legislation for further details regarding the partition of land property. The land policy, at that point in time, did not include any of the gender aspects of land inheritance. Nonetheless, our case studies (section 3) highlight the fact that the inheritance law was understood by the rural population to be also applicable to land issues. However, it is beyond any doubt that this ambiguity creates uncertainty rather than decreasing it. Moreover, this problem has not disappeared with the introduction of the new land law (on which we will expand in section four) as the latter refers on several occasions to the inheritance law. Second, the law formally protects women’s inheritance rights only since the date of its adoption in 1999. As a result, it does not protect the inheritance rights of the numerous widows and orphans left behind after the civil war and genocide. In some case studies (see section 3), certain interviewees considered (erroneously) that the 1999 inheritance law was applicable to pre-1999 land cases. Further, the inheritance law ignores the rights of the very large vulnerable group of wives in non-legal marriages and their children. There are different marriage practices in Rwanda. A customary marriage, concluded by an agreement between two families, is often celebrated through the transfer of bridal wealth. Culturally, the value and honour of a woman increases when a dotte (or dowry) is paid, but according to the common law, a marriage can also be based on the length of cohabitation. A religious marriage is performed by a representative(s) of a recognized religious order or institution (e.g. in a church, mosque, temple). These different types of marriages are, as

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Women & Land Arrangements in Rwanda such, insufficient to be recognized as legal: a ‘legal marriage’ has to be registered before the local authorities and only then are children recognized as ‘legitimate’ children (Burnet 2001). With regards to the regulation of inheritance law, the legal status of the marriage has very important consequences for the women involved. De facto, women in non-legal marriages often do gain user rights to the land property of their husband by cultivating his land or that of his lineage. However, ‘illegal wives’ are extremely dependent upon their husband’s and his family’s goodwill. Their vulnerability is exposed when problems arise (e.g. in situations of polygamy, divorce, disputed heritage). Officially, informally-married women have no succession rights to their husband’s property; their situation is not even mentioned in the 1999 law. Nonetheless, a majority of the Rwandan population do not register their marriages with the appropriate authorities either out of ignorance of its importance or due to the financial cost (Burnet 2001). Further, the official law prohibits polygamous marriages,12 no longer recognized by law since May 1952 but nonetheless a common practice in customary traditions. This automatically transfers women in polygamous marriages into a permanent ‘illegal’ marriage status. The legality of marriages also has important consequences for the children of ‘non-legal’ partnerships. The 1999 inheritance law specifically includes the requirement of legitimacy for children to inherit equal parts without discrimination between the male or female sex. The legitimacy of a child is defined by the 1988 law forming the basis of the civil code, stating that ‘L’enfant conçu pendant le mariage est légitime et a pour père le mari de sa mère’ (Law no. 42/1988, article 296). The 1988 law also foresaw the possibility for children born outside the marriage to be recognized by their father but only through quite strict procedures.13 The inclination of official law to protect the legitimate family results in the denial of any official inheritance rights for children born outside legally established marriages. Another issue that commonly surrounds the implementation of ‘gender-progressive’ laws is the fact that they are often poorly understood, particularly by rural populations, girls and women. This was observed in Rwanda by the Rwanda Initiative for Sustainable Development (RISD) project in 2001. Their report explicitly stated, ‘girls and women in particular are ignorant of the rights guaranteed [to] them by the new inheritance law’ (Burnet 2001, 16). On the ground three years later (during field work in 2004), we found that the general principle of ‘gender equal’ inheritance rights is much better known (although not always correctly interpreted); and certainly plays

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some role in the narratives of women regarding their personal land conflicts (see section 3). During a field visit in early 2006, several male interviewees also referred to the radio as a major source of information about equal inheritance rights for women. However, legal rules are certainly not automatically adopted within local realities as they often interact and compete with informal customary practices.

3. Into the Field: multiple fora in gender/land conflicts In the current context of rural Rwanda, there are several types of open or more tacit conflicts involving aspects of gender and land rights. In this section, we draw upon data from interviews with 68 households on their difficulties in securing their livelihoods from which we have selected 16 cases on land conflicts with gender dimensions. The first type of land conflict emerging within our sample was that of widows with children, whose property was claimed by their families-in-law. Interestingly, female members of the family-in-law used their lineage to support their land claim. In one case, a widow whose brother-in-law claimed part of her inheritance had chosen not to take up this matter with the appropriate authorities as the claimant was a family member who had previously owned the land in question. As such, she implicitly recognized the lineage rights upon this land property. Another widow, a ‘genocide survivor’, was obliged to share her husband’s fields (referring to the lineage property that was managed by her husband as the only male child) with her sisters-inlaw.14 She explained that she could not keep all the land property in her possession ‘due to a law that states all girls can claim land’ from the parental property. She referred to the formal inheritance law,15 which interestingly she reinterpreted to her own case. Another case concerned a woman with a child whose sister-in-law refused any inheritance rights for the child after the father died (although the latter had informally recognized his child). The fact that the child was a daughter, while the mother was not even ‘illegally’ married to the father, gave them little chance to claim any inheritance. A second type of land conflict involves women in an illegal second or polygamous marriage being chased from the land property by their husband, his first wife or the children from earlier marriages. Most women in this case raised two main issues when explaining their situation. First, they referred to the ‘legality’ of their marriage: ‘illegal’

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Women & Land Arrangements in Rwanda wives acknowledged the ‘illegality’ of their union as a serious problem for their land claim. They implicitly recognized the validity of this ‘formal’ argument used to deny them any rights. Instead, these women used the status as mother of the former husband’s children as an argument in favour of their land inheritance claim. In strictly formal terms, their children were the illegitimate offspring of an illegal (sometimes polygamous) marriage with no formal rights whatsoever. The women’s main argument to support their claim, to guard the land property for their children’s future, was the fact that their children were informally recognized by their father or his ‘official’ descendents (children from a previous legal marriage). Interestingly, one woman used the same argument for her only daughter, combining the formal recognition of gender equality in inheritance matters (although not applicable to her case due to the illegitimacy of her child) with informal customary arrangements guaranteeing inheritance rights for male descendents (again not applicable to her case as she had no son). In most cases, these types of conflicts were unresolved. We came across a third type of conflict where first wives were involved in a land conflict with their own husband who had married other wives. Being the first wife, whether legally or illegally married, clearly improved their chances of getting access to land property. A fourth type relates to conflicts over the inheritance and division of parental property between brothers and sisters. We came across two very different cases. A first (tragic) case was a woman who was chased away by her brothers, denying her customary user rights to a small plot of ingaligali16 land after their father’s death. A second case concerned a woman accusing her brother of denying her the formal right to inherit an equal part. This woman had managed to use informal gossiping, in the form of a poisoning accusation,17 in the power struggle between her and her brother to reinforce her formal claim to land heritage. Finally, a very interesting case was that of a woman whose own son claimed the property of her former husband and told her to go back to her parents. This meant that he denied the customary tradition of taking care of his mother when the property was transferred to him as a son. The woman, on the other hand, refused her son’s demand, referring to the formal right of equal inheritance for all children (both her two sons and her married daughter). Further, she claimed other land that she had bought, and thus not inherited from her husband, for herself. Our case studies illustrate that gendered discourses on land conflicts often refer to a combination of both informal norms and formal rules. This illustrates how formal law is partly adopted, partly reinterpreted and partly ignored while customary systems are partly substituted

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and/or partly complemented by formal norms. In reality, a hybrid combination of formal and informal institutions make up the rules of the game, negotiated by the various players with unequal power relations. This power imbalance is among other things based upon gender.

4. The Way Forward: engendering multiple fora There is clearly a lively discussion about the appropriate way forward in ensuring women’s land rights. As Whitehead and Tsikata (2003, 15) state: ‘Issues about the respective merits of the customary and the statutory remain unresolved. While some argue a reformed and strengthened customary law is in women’s interests, the majority of African feminist legal specialists reject this and argue for women’s land and property rights to be enshrined in statutory law.’ As extensively discussed above, there are multiple fora in Rwanda’s case that are intertwined and impinge upon the actual land rights men and women hold. As a result, efforts to ensure more gender equality in land rights need to target multiple fora and should combine multiple-level mutually-reinforcing top-down and bottom-up interventions. 4.1. ENGENDERING THE NEW POLICY AND LAW: SUGGESTIONS FOR TOP-DOWN GOVERNMENT MEASURES

To stimulate the gender-sensitiveness of the newly-adopted land policy and law, instruments of gender mainstreaming and particularly gender budgeting18 could be (have been) used by the government at various stages.19 A gender-aware policy appraisal and needs assessment could, for instance, have provided useful insights during policy and law elaboration while gender-aware monitoring and evaluation could prove helpful during implementation. It is beyond the scope of the present chapter to give a detailed account of each of those instruments. In what follows we present a gender-aware policy appraisal to predict potential ‘gender’ effects from the new land law; and we advance some of the remedial actions that could (have aided) aid gender-sensitiveness. The basic idea is that any policy is affected by and potentially affects ‘gender’. Ignoring this when elaborating policy can lead to undesired gender effects on the ground and might even put jeopardize the effectiveness of the policy and law.

4.1.1. Objectives of the new land policy and law From a gender perspective, it is not only the process of land titling and formalization as such that create a ‘gender’ effect, the underlying 146

Women & Land Arrangements in Rwanda objectives are also significant. Overall, the law is surrounded with ambiguity, except for its cluster of objectives. The emergent pattern is one of sustainable economic development through increasing agricultural productivity, commercialization of agriculture, privatization, land consolidation and concentration. These objectives are translated into articles (no. 20) stating: ‘in respect of public interest and in a bid to improve rural land productivity, [the authorities] may approve the consolidation of small plots of land in order to improve land management and productivity’.20 … ‘It is prohibited to reduce the parcel of land reserved for agriculture to one or less than a hectare’.21 If implemented according to the letter of the law,22 this type of policy may further marginalize small-scale poorer farmers, particularly those with lower productivity rates. Femaleheaded households,23 for instance, tend to be disproportionately represented among these categories. They are clearly deprived in terms of land ownership as male-headed households have on average 0.80 hectares of cultivated land at their disposal, while female-headed households have only 0.66 hectares; and for those households without any male adult members (70 per cent of female-headed households) the average land holdings only amount to 0.60 hectares. Moreover, femaleheaded households on average only realise about three-quarters of the average households’ productivity per land unit (based on 2001 data, EICV).24 While a policy of consolidation and concentration, stripping those of landholdings that are too small or who do not showcase ‘good land management’ techniques may seem efficient at face value, a gender-sensitive analysis of the underlying causes of the observed differences in productivity is illuminating and suggestive of possible corrective interventions. First, research (see e.g. Blackden & Bhanu 1999) has shown that lower agriculture productivity rates for female farmers, in general, result from gender bias in access to and control over agricultural inputs including fertilizers, extension services, credit and agricultural labour. By failing to correct for obvious inequalities in take-off positions, the present policy and law reinforce gender inequalities and risk undermining its sustainability in the long run. Gender-sensitiveness underscores the need for assorted interventions ensuring women’s access to and control over production factors. Concretely, a good start would be to ensure that in measures to increase agricultural production (Government of Rwanda 2002, 36–40) women’s and men’s specific needs and constraints are taken into account. This could involve, inter alia, the improved targeting of extension and micro-finance programmes towards women including gender training for extension

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officers and hiring of female staff. Furthermore, female farmers need to be included in farm demonstration plots and field schools and receive better information and support in envisaged new crop developments. In fact, as women constitute 80 per cent of the farmers, any activity targeted at ‘farmers’ should necessarily be gender-sensitive in order to be effective. Further, the assumption of homogeneity of labour allocation is obviously counter to the reality of the gendered structure of labour and time allocation over productive and particularly reproductive activities. Given the enormous time and work burden that women face in terms of reproductive activities, it is obvious that they do not compete on equal terms with men in the productive arena. Ignoring this and stripping women in particular of their land rights, on the basis of observed productivity differentials, reveals a deep-rooted gender blindness in the present land policy and risks to further reinforce the genderbased allocation of labour and time.25 A gender-progressive policy and law would recognize the interdependence of market and household economies and, at least, foresee complementary ‘practical gender needs’26 interventions aimed at attenuating the burden of reproductive work. Well known examples are investments in water and sanitation, child-care facilities, rural infrastructure and labour-saving technologies (see, for example, Blackden & Bhanu 1999). In summary, if the law is implemented as it currently stands it is highly probable that it will exacerbate rather than attenuate present inequalities, including those along gender lines, and will fail to achieve its stated objectives of ‘sustainable agricultural development’ and ‘social welfare’ (art. 3). In fact, there is mounting and convincing evidence to support this (see Blackden and Bhanu 1999, World Bank 2001 for an overview). Gender inequality has proved costly, not only for individual women themselves, but for society at large, inhibiting economic growth, human development and poverty reduction. From this perspective one may consider the present land policy and law as missed opportunities. This lost battle, however, does not necessarily imply a lost war. Under the legacy of Poverty Reduction Strategy Papers (PRSPs), governments nowadays increasingly adopt an iterative approach towards policy-making and implementation based on information from monitoring and evaluation. Given Rwanda’s seeming commitment towards gender issues, one might expect that the government will monitor and assess the expected and unexpected gender effects of the new policy and law on the ground. Instruments that may be useful include, for instance, a gender-disaggregated benefit incidence analysis that looks at the changes in distribution of land titles along gender

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Women & Land Arrangements in Rwanda lines. Obviously other relevant layers of analysis, including income, ethnicity and location could be added. Additionally, surveys that move beyond household boundaries could prove highly valuable, that is ones which interviewing various members of one household so as to capture intra-household implications in terms of the allocation of productive and reproductive resources. As highlighted in section 4.2, non-government actors might also play an important role in these monitoring and evaluation exercises.

4.1.2. Ambiguity and continuous prevalence of multiple fora As extensively discussed in sections 2 and 3, Rwanda’s case illustrates how multiple fora become intertwined and impinge upon the actual land rights men and women hold. It is highly unlikely that the new land law will change this situation, on the contrary. First, there is ambiguity within the formal legal system itself. A detailed reading of the law, for example, highlights that the gendersensitiveness contained in some articles may be curtailed by seemingly contradictory passages in other articles. In article 35, for instance, the law provides that the ‘final transfer of rights on land like sale, donation or exchange by a representative of the family requires the prior consent of all other members of the family who are joint owners of such rights’, being the legally-married spouses, adult children, and minors represented by their guardian. However, granting ‘joint’ rights is somewhat contradictory to the statement that gives land rights, in the form of a long-term lease from the Rwandan state, to those who ‘own land either through custom, or who acquired it from competent authorities or who purchased it […]. Owners of land acquired through custom are all persons who inherited the land from their parents, those who acquired it from competent authorities or those who acquired it through any other means recognized by national custom whether purchase, gift, exchange and sharing.’ In fact, those who historically have acquired land either through custom or purchase are typically men. A major question is then which interpretation will prevail: individual, male-biased land rights or joint family land rights. Ambiguity is also present because of a flawed articulation between the inheritance law of 1999 and the new land law. While the former refers to the land law for further details regarding the inheritance of land, the latter in articles 33 and 34 refers to the ‘law that governs succession’ (see also Musahara & Huggins 2004, 3). Further, the new land law does not provide answers to situations where non-legal marriages are involved, and thus shares a similar ambiguity with the inheritance law. 149

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Second, there exists continuous ambiguity regarding the authority of formal and informal institutions. Formal law is imposed upon a local context that is pre-defined by informal customary systems. On several occasions, the new land law explicitly refers to the authority of the customary system as a reference for land allocation. On the other hand, the law has a clear ambition to become the only forum defining land rights. One can thus speak of a situation of a ‘plurality of norms’ arising from multiple fora. A complex combination of interaction, reinforcement and competition between a range of formal and informal institutions defines the rules of the game within the political arena. Therein various social actors of unequal power confront each other on a common issue – namely land rights. The actors involved in this ‘struggle for land’ will refer to the multiple fora at their disposal, adapting their discourse to their personal situations. The outcome of this game will differ according to which rules prevail, to the context, power relations (including those based upon gender) and the social interactions within that arena. Land policy-making should take this process into account – the objective of protecting the rights of the weakest in this ‘negotiation game’ is not simply achieved by implementing formal structures.

4.1.3. Implementation issues: competent authorities and negotiation mechanisms In between laws and policy on one hand and individuals on the other there are a number of intermediary bodies and institutions that are responsible for policy and law implementation (see Adoko & Levine in this volume). In the case of Rwanda, the law and policy foresee major responsibilities for several public bodies including, among others, land commissions and bureaus at different administrative levels (see articles 8 and 31).27 Obviously, it is naïve to assume that all these bodies have gender-neutral visions and daily workings. Consequently, it is important for the government to assess all competent public authorities involved on their gender-sensitivity and to suggest corrective measures where necessary. While it is too early to make any judgments on this matter, on the positive side the government seems to be somehow aware of this need. While it is a far from perfect guarantee for gendersensitivity, article 8 at least dictates that land commissions at all levels should include both men and women. The law is, however, very vague on the settlement of land disputes. Article 53 only mentions that this will be taken care of by ‘competent courts and procedures provided for by the law’ without going into detail. Other government documents describing the land policy and 150

Women & Land Arrangements in Rwanda law, including the Poverty Reduction Strategy Paper (PRSP) (GOR 2002, 150), state ‘land disputes should be resolved at community level, in a cost-effective participatory manner.’ Several authors have emphasized the importance of appropriate mechanisms for dispute settlement as these tend to be more important for tenure security than land titling itself. Given that women often face problems in resolving land struggles and disputes, particularly at the local ‘community’ level, the government should increase the awareness of the gender aspects of land rights, not only within the newly-installed formal bodies but also among local leaders and within traditional dispute settlement arrangements (as, for example, gacaca). Non-government actors may also contribute to the realisation of a more gender-sensitive land policy (see Section 4.2). 4.2. A ‘CRITICAL’ ROLE FOR NON-GOVERNMENT ACTORS

As mentioned earlier, it is seemingly surprising that Rwanda’s much applauded commitment towards gender issues is not unambiguously reflected in its land policy and law. Within the legacy of the gender budget initiative one might have expected that the Ministry of Gender Issues (MIGEPROFE) would have been actively involved in formulating this policy and law.28 In fact they were not. Similarly, there seems to be little pressure or lobbying from (‘gender’) actors outside government, for instance umbrella organizations such as Profemmes Twesehamwe29 or the Forum of Rwandan women MPs. It is not easy to disentangle factors underlying the lack of major campaigning initiatives for women’s land rights. To some extent, it might to be due to a lack of specific expertise on the issue. One may also find parallels in the case of Tanzania where in the 1990s an urban and middle class bias in large civil society organizations (CSOs) let the ‘rural poor’ land issue slide down the political agenda (Manji 1998). This is particularly plausible in Rwanda where the strong rural–urban disconnect constrains the forging of linkages between poorly-resourced rural organizations and larger urban-based organizations that are more experienced in lobbying and accessing authorities. Another reason for the lack of much action in this regard might be the fact that Rwanda, ‘which has a century-old highly top-down tradition of governance, regardless of who is in power’ (Palmer 2000, 2), does not excel in openness, particularly not on such a sensitive issue. In fact, in cases where CSOs have been consulted,30 it seems that not much has been done with their input (see Jones 2003; cited in Musahara & Huggins 2004, 2). Even if actors outside government have played a rather minimal role in the elaboration of land policy, they still have an important role

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to play in the subsequent implementation and assessment phases. LandNet, a recently-created pressure group comprising a mix of local and international NGOs (see Palmer 2000), could for instance stimulate and strengthen present CSO activities.31 On one hand, CSOs may provide the population, and particularly women, with the necessary information about the law, including the importance of being legally married, to benefit from some of the law’s potential ‘entry’ options. On the other hand, they might provide the government with information on the successful of implementation (by local public authorities) and on the realization of anticipated as well as unexpected effects. This evidence might, for instance, unveil flaws in the theory underlying the land policy and law. It could show, for example, that some of the assumed relationships between ‘consolidation’ on one hand and sustainable economic development and social welfare on the other do not hold. Similarly it might bring to the fore the (probably unwanted) gender implications of the current policy. A more prominent role for non-government actors would also match the present discourse of PRSPs (that is iterative evidence-based policy-making, transparency, accountability, etc.). Even if government attaches little importance to reactions from civil society actors, independent research institutes, universities etc., the information provided by them should be of interest to the foreign donors who fund current processes and/or their domestic constituencies. 4.3. TOWARDS THE FUNDAMENTALS: THE IMPORTANCE OF ‘COLLECTIVE ACTION’

Shifting the action-radius to rural areas and, in particular, towards bottom-up approaches might be necessary to effectively change or modify both customary and statutory practices and, even more fundamentally, the underlying and deep-rooted gender relations that shape all institutions. Obviously all institutions that govern access and control to land are impregnated (to varying degrees) by gender relations, while they are simultaneously accomplices in reproducing and perpetuating the socio-cultural construct of ‘gender’. The most radical and effective way of addressing gender inequality in land rights is then to take a more holistic approach and tackle those underlying ‘gender’ relations. While institutional changes, particularly regarding strongly-internalized constructs such as gender, are clearly not easy to realize, history has shown that women (particularly) have been able to defy and redefine ‘gender’ through collective action. Practical experience from Rwanda shows that women are able to set up their own local self-help groups and tontines (ROSCAs, rotating

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Women & Land Arrangements in Rwanda savings and credit associations) to reduce their vulnerability to risks threatening their livelihoods. Particularly interesting, with regards to the land issue, is the existence of collectives of poor rural women facing similar small landownership problems. These groups attempt to ensure communal access to land by renting property from the contributions of its members. These plots are cultivated together and the profits are shared when the harvests are sold. While such forms of collective ownership and production certainly are not a panacea to all problems, they could mitigate some of the potentially injurious ‘gender’ implications of the currently-envisaged policy of land consolidation and optimal land use. Under the latter, communal cultivation will be stimulated, particularly in cases where landholdings are small. One may expect that women in particular with small landholdings will be forced to join lands with other family members. In line with what has happened in other African countries (see e.g. Manji 2003), this may lead to an increase in unpaid family labour by women who lose effective control over their small plots and output. To prevent this, it may be preferable for women (mostly female household heads) who currently own small plots to join lands with other women in similar situations than with male relatives. For land-poor women such collective arrangements with peers might be a creative and effective way to prevent marginalization in the current process of ‘marshlands’32 leasing to individuals and collectives. Gender-progressive umbrellas as Profemmes Twesehamwe and the MIGEPROFE, as well as donors, might support these collective arrangements by providing funds and subsidized credit. One of the challenges now facing Rwanda is to realize the transformative potential of collective agricultural arrangements that are initially defined around individual risk settlement and vulnerability reduction. While there is ample evidence from other settings regarding the maturation of such groups and networks of groups into local ‘institutional entrepreneurs’ that negotiate with the community on various aspects of ‘gender’ relations, we are rather sceptical about this happening in Rwanda in the short term. Cleavages along ethnic lines and class divisions, as well as deeply-rooted sentiments of distrust still rule daily lives. The chances for virtuous institutional redefinition towards ‘larger issues’, such as improved gender relations, particularly depend upon whether collectives will be able to grow through a slow incremental process enhancing their capacity beyond a rationale of individualised interests (see also Ansoms 2006, 16–17). This suggests that, particularly in the case of Rwanda, we cannot leave gender and land issues to the initiative of collective action alone.

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It reinforces our argument in favour of a multi-pronged strategy of mutually-reinforcing top-down and bottom-up interventions. It necessitates genuine commitment from the stakeholders involved as well as capacity in moving towards ‘gender equality’ and ‘empowerment’.

Notes 1 Its full name is the Organic Law determining the use and management of land in Rwanda (N° 08/2005 of July 14th 2005). It was published on September 15th 2005 by the Official Gazette of the Republic of Rwanda. A previous version of the land law and policy was also summarised in Rwanda’s Poverty Reduction Strategy Paper (PRSP – see Government of Rwanda 2002). 2 In article 2, the law defines land consolidation as ‘a procedure of putting together small plots of land in order to manage the land and use it in an efficient manner so that the land may give more productivity’. 3 There was already a provincial directive on settlements in July 1997. At the outset, living in villages was only intended for returnees, later on it became instituted for the overall rural population (UN High Commissioner for Refugees 1998). Though the Rwandan government considers it a mechanism for appropriate land management, there has been widespread resistance against it by the rural population in the provinces. It is obviously one of the sensitive issues within the land policy and law. 4 There is some confusion between the English and the French versions of the law. In French, the law mentions ‘l’homme et la femme’, which could be translated as ‘man and woman’ or ‘husband and wife’. It is not clear from the French version of the text which of the two interpretations is alluded to. 5 The law is not retrospective and only applies to women married since the law came into effect. 6 At the time of the research, a ‘cellule’ was an administrative unit comparable to a village. However, Rwandan households do not really live within concise village boundaries but are most often scattered over a hill. A cellule then comprised one or a few hills. Since the administrative reform of 2006, a cellule has become a larger administrative unit, the merger of several old cellules. 7 This is mentioned explicitly in Décret-Loi n°09/76 art. 1 (March 1976): ‘Toutes les terres non appropriées en vertu de la législation de droit écrit, grevées ou non de droits coutumiers ou d’occupation du sol, appartiennent à l’Etat.’ 8 As is stipulated explictly in Décret-Loi n°09/76 art. 2 (March 1976): ‘En ce qui concerne les terres grevées de droits coutumiers ou de droits d’occupation du sol accordés régulièrement par les autorités compétentes, nul ne peut céder ses droits par la vente, (…).’ One can only get the permission to sell when the seller’s property remains at a minimum of two hectares and when the buyer has no more than two hectares. (art. 3). 9 For an overview of the evolutionary theory of land rights, see Platteau (2000). 10 Interestingly, land property is also very unequally distributed among female-headed households. The distribution of female-headed households over the different land quintiles is as follows: 23.4 per cent in the first poorest land quintile; 19.7 per cent in the second; 22.1 per cent in the third; 17.7 per cent in the fourth and 17.1 per cent in the richest land quintile. When excluding female-headed households with male adult members, over 25 per cent of the exclusively female adult households fall in the first land quintile (based on 2001 data, EICV). This confirms the observation that other axes of inequality, including in particular urban/rural, income, age and ethnic divides are also important and thus complicate the situation further.

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Women & Land Arrangements in Rwanda 11 Article 70 seems incomplete: although it enumerates the succession arrangements for different situations, it does not provide a clear answer for a very common case. When the remaining partner is left with children, the law foresees this person assuming the administration of the entire property while the children are educated; but the law fails to set rules for the partitioning of the property between mother and children when the children reach the age of majority. Strangely, it does however provide very specific guidelines for less common cases where the remaining partner has no children, or when he/she (with or without minor children) wants to remarry. 12 The law clearly mentions: ‘Seul le mariage civil monogamique est reconnu par la loi. (169) (…) Nul ne peut contracter un nouveau mariage avant l’annulation ou la dissolution du précédent’. (175) 13 The paternal affiliation can only be established through the initiative of the father or from a juridical decision. The law states that a natural child can only be recognized by the father through an authentic act which gives recognized children the same rights and obligations as children legitimate by birth. Further, the official partner of the father has to give her consent. The recognition procedure can be disputed by any interested party (Law art. 324, 325, 326, 327). In case the father is unwilling to recognize his natural child, the child’s only option is to enforce a paternity examination through a juridical decision, a difficult and expensive procedure. 14 This redistribution of property only took place in 2002 as her sisters-in-law had earlier allowed her to exclusively cultivate the plots to help nourish the children and earn something, which allowed her to send one child to secondary school. 15 In purely legal terms, the inheritance law was not relevant for this case as it only came into effect in 1999. 16 Through the customary practice of ingaligali, fathers give their daughters access to some land while the control of land rights remains in the hands of the lineage. 17 She accused her brother of poisoning her husband out of revenge for her land claim. 18 For an overview of the whys and hows of gender budgeting, see Budlender and Sharp (1998), Budlender et al. (2002) and Budlender and Hewitt (2002). 19 It is surprising that the 2005 land law has not been subject to a gender-aware policy appraisal before adoption, as the Rwandan government had already experimented with gender budgeting in the recent past (see Diop 2002). Positively, in the current process of land law implementation (and particularly using inputs from the public consultations going on in the field), a gender-aware policy appraisal is being performed within Minitere (personal communication from the Minitere ‘Phase 1 of the Land Reform Process’ Project Team) 20 Article 20 implicitly links ‘low productivity’ to ‘small size’. This runs counter to empirical evidence emerging from large-scale studies (see a.o. Blackden & Bhanu 1999) and from the agricultural panel data gathered by the Food Security Research Project between 2000 and 2002. Interestingly, even Rwanda’s PRSP (2002, 20) explicitly refers to the findings of Clay et al. (1996) stating that ‘… on all major crops, smaller farms tend to yield more than larger farms in Rwanda as well as in other countries.’ 21 Whereas earlier drafts also included a maximum size for landholdings (in some versions 30 ha., in others 50 ha.), ceilings have eventually disappeared in the adopted version of the law (see Musahara & Huggins 2004 and Des Forges 2005). 22 There was a similar policy before this law was implemented, stating that a person could not receive permission to sell land when reducing its plot size below two hectares. The formal prohibition for land transactions (except when special permission was given) did not prevent the emergence of a very lively informal land transaction market. 23 In Rwanda, about 32.1 per cent of all households are female-headed (based on 2001 data, EICV). 24 Female-headed households realize 76.86 per cent of the average household’s productivity measured in monetary terms per land unit. Female-headed households without male adults only realize 73.15 per cent of average productivity. Female-headed households are, on average, also smaller in size both in absolute and adult equivalent terms and are headed by significantly older than average household heads (based on 2001 data, EICV).

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25 In her analysis of Structural Adjustment Programmes (SAPs), Elson (2005) points out that an ignorance/unawareness of the reproductive economy is one of its design flaws. This, for instance, partly explains why price incentives for agricultural outputs did not produce the anticipated supply response. 26 Practical gender needs are related to the realization of men’s and women’s ascribed tasks and roles, without however questioning the ‘gendered’ division of the tasks and roles themselves. Strategic gender needs involve changes in the underlying gender relations themselves. See Moser (1993) for a more extensive discussion of these notions. 27 Land commissions will, for instance, have an important role in plot division and consolidation, in monitoring and reporting on the land’s (appropriate) exploitation and in imposing sanctions (see articles 22 and 73). Land bureaus will mainly be responsible for land registration. As the book goes to press, commissions and bureaus are being legislated through new decrees. 28 ‘Promotion of socio-juridical equity through support to legal reform’ is even mentioned as one of its objectives (Government of Rwanda 2002, 124). 29 Profemmes Twesehamwe is an umbrella organization of national NGOs that coordinates 41 organizations, the majority of which are women’s NGOs (Diop 2002). For more information on Profemmes Twesehamwe, see http://www.profemmes.org/index.html. 30 Palmer (2000) indicates that Minitere (Ministry of Land, Environment, Forests, Water and Natural Resources) has shown a considerable degree of openness in consultations with civil society organizations. 31 LandNet is the Rwanda chapter of LandNet East Africa. It was formed in September 2000 and it is the only national network of organizations working on land issues. For more information on LandNet, see http://www.mwengo.org/land/index.htm. 32 ‘Marshlands’ refers to land in the swamps belonging to the State. According to the land law, the Ministry of Environment decides how this land should be managed (article 14 and 29, Law no. 08/2005). In practice, this land can be temporarily allocated to collectives in return for tax payments.

References André, C. & Platteau, J.-P., 1998. ‘Land relations under unbearable stress: Rwanda caught in the Malthusian trap’, Journal of Economic Behavior and Organization, Vol. 34/1, 1–47. Ansoms, A., 2006. ‘The Potential and Limitations of Collective Action in Rural Rwanda: Local Associations in a Context of Economic Hardship and Societal Disruption’, Unpublished Paper, Antwerp. Blackden, C. M. & Bhanu, C., 1999. ‘Gender, growth, and poverty reduction, SPA 1998 Status report on poverty in Sub-Saharan Africa’, World Bank Technical Paper No. 428, Washington, DC, World Bank. Budlender, D., Sharp, R. with A. Kerry, 1998. How to Do a Gender-Sensitive Budget Analysis: Contemporary Research and Practice. London: AusAid, Commonwealth Secretariat. Budlender, D., Elson, D., Hewitt, G. & Mukhodpadhyay, T. (eds), 2002. Gender Budgets Make Cents: Understanding Gender Responsive Budgets. London: Commonwealth Secretariat. Budlender, D. & Hewitt, G. (eds), 2002. Gender Budgets Make More Cents: Country Studies and Good Practice. London: Commonwealth Secretariat. Burnet, J.E., 2001. ‘Women’s land rights in Rwanda – The Rwanda initiative for sustainable development’, http://www.law.emory.edu/WAL/WAl-studies/rwanda.htm, (last accessed in January 2006). Clay, E.J., Dhiri, S. and Benson, C., 1996. Joint Evaluation of European Programme Food Aid: Synthesis Report. London: Overseas Development Institute. Des Forges, A., 2005. ‘New Rwandan land law: more threats to small farmers’, Presentation

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Women & Land Arrangements in Rwanda at the DPRN conference on Central Africa, Institute of Development Policy and Management, December 1st 2005, Antwerp. Diop, N.-T., 2002. Rwanda: Translating government commitments into action, in Budlender, D. & Hewitt, G. (eds), Gender Budgets Make More Cents: Country Studies and Good Practice. London: Commonwealth Secretariat. Elson D., 1995. ‘Male bias in macro-economics: the case of structural adjustment’, in Elson D. (ed.), Male Bias in the Development Process. Manchester, Manchester University Press, 164–90. Jones, L., 2003. ‘Giving and taking away: The difference between theory and practice regarding property in Rwanda’, in Leckie, S. (ed.), Returning Home: Housing and Property Restitution Rights for Refugees and Displaced Persons, New York, Transnational Publishers. Government of Rwanda (GOR), 2001. Household Living Conditions Survey. Kigali: Ministry of Finance and Economic Planning (conducted in 2000–2001). —— 2002. The Government of Rwanda Poverty Reduction Strategy Paper. Kigali: Ministry of Finance and Economic Planning, National Poverty Reduction Programme. —— 2005. Organic Law Determining the Use and Management of Land in Rwanda (No. 08/2005 of July 14th 2005), Kigali, Official Gazette of the Republic of Rwanda. Manji, A., 1998. ‘Gender and the politics of the land reform process in Tanzania’, The Journal of Modern African Studies, Vol. 36/4, 645–67. —— 2003. ‘Capital, labour and land relations in Africa: a gender analysis of the World Bank’s policy research report on land institutions and land policy’, Third World Quarterly, Vol. 24/1, 97–114. Moser, Caroline O.N., 1993. Gender Planning and Development – Theory, Practice and Training. London and New York, Routledge. Musahara, H. and Huggins, C., 2004. ‘Land reform, land scarcity and post-conflict resolution. A case study of Rwanda’, Eco-Conflicts, Vol. 3/3, Nairobi: African Centre for Technology Studies, 1–4. Palmer, R., 2000. ‘Recent experiences of civil society participation in land policy planning in Rwanda and Malawi’. Paper Presented at the International Conference on Agrarian Reform and Rural Development, Philippines, December 5th–8th 2000, London: Oxfam GB. Platteau, J.-P., 2000. Institutions, Social Norms, and Economic Development. Amsterdam: Harwood Academic Publishers. Pottier, J., 2002, Re-imagining Rwanda: Conflict, Survival and Disinformation in the Late Twentieth Century. Cambridge: Cambridge University Press. United Nations Development Programme (UNDP), 2005. Human Development Report 2005, Country Fact Sheets- Rwanda, http://hdr.undp.org/statistics/data/country_fact_sheets/ cty_fs_RWA.html (last accessed January 2006). UN High Commissioner for Refugees, 1998. Women’s Property Rights and the Land Question in Rwanda. Kigali: UNHCR, February 1998. Whitehead, A. & Tsikata, D., 2003. ‘Policy discourses on women’s land rights in SubSaharan Africa: The implications of the return to the customary’, Journal of Agrarian Change (Special Issue on Agrarian Change, Gender and Land Rights), Vol. 3/1–2, 67–112. World Bank, 2001. Engendering Development: Through Equality in Rights, Resources and Voice, Washington DC: World Bank. Zuckermann E., 2001. ‘Why engendering PRSPs reduce poverty, and the case of Rwanda’, WIDER Discussion Paper No. 2001/112, Helsinki, United Nations University, World Institute for Development Economics Research.

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Afterword Securing women’s land rights ELIZABETH DALEY & BIRGIT ENGLERT with Judy Adoko, An Ansoms, Nathalie Holvoet, Ingunn Ikdahl, Simone Levine, Celestine Nyamu-Musembi & Samwel Ong’wen Okuro

What Remains to be Done? With this book we have tried to offer a nuanced picture of how the issues of privatization, gender relations and land rights are currently interacting in Eastern Africa as a contribution to the debate on how women’s rights can best be secured in the overarching context of the increasing ‘privatization’ of land tenure. The detailed and differentiated analysis of what is happening on the ground that has been presented herein points up once more the continuing invalidity of some of the more common assumptions about women’s rights to land in Eastern Africa, and the limits to securing them through policy and legislation alone. Women are not powerless actors, and the case study chapters of this volume in particular have provided ample illustration of the multiple and creative ways which women have found to claim and ensure their rights to land. We therefore hope that, collectively, we have provided fresh inspiration to all those who are in a position to change the situation for the better. It remains only to ask: What still needs to be done? How can women best be supported in their continuing struggles over land? Drawing on all the contributions to this volume, and co-authored by all the contributors, this Afterword therefore aims to suggest the best ways forward in securing land rights for women. In the following sections, we first make some general observations about the impact of land tenure privatization on women’s land rights thus far, and then examine how the new policies and laws address women’s rights. In drawing together our conclusions we focus, first, on the best ways to

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Afterword implement the new policies and laws and, second, on the importance of civil society in supporting women’s land rights more broadly. However, it is important to establish at the outset whether the land access and tenure security problems of women in Eastern Africa are driven by land policies and laws, or by failures in these (Alden Wily 2006, pers. comms), or whether a much broader understanding and approach is required. What our various chapters in this book have clearly shown is that women’s land rights are influenced by a whole range of contemporary processes of change, such as commoditization, economic and rural–urban change, conflict (and post-conflict reconstruction and reconciliation), the spread of HIV/AIDS, and the increasing privatization of land tenure – through the formulation and implementation of land tenure reforms which aim primarily at the private registration of land. Women’s land access and tenure security problems cannot therefore be described as being driven by successes or failures of policies and laws alone. On the other hand, we contend that it is the increasing privatization of land tenure that has the most direct impact on women’s land rights and offers the most direct scope for effective action. It is therefore appropriate for this to be the central concern of all those committed to securing women’s land rights, and thus it is in the policy arena itself (locally, nationally and internationally) that we must seek to engage with and influence the gendered impact on land rights of all these processes of change.

The Impact of Land Tenure Privatization The specific impact of land tenure privatization on women’s land rights is mediated both by different types of threats to women’s land rights and by different aspects of land tenure reform. For example, private land registration may help against ‘external threats’, such as state expropriation, but its impact on ‘internal threats’, such as those that come from in-laws, husbands and other male relatives, may be more uncertain. In the latter case, women’s rights might best be safeguarded by tenure reforms that provide for the mandatory registration of joint land rights between spouses and require full spousal consent to land transfers. In Kenya, where the privatization of land tenure began during the colonial period, it seems very clear that it has simultaneously weakened women’s rights to land while strengthening men’s land rights into absolute ownership (see Nyamu-Musembi’s chapter and the Introduction to this volume; see also Okuro’s chapter). In contrast, in

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Tanzania, it is more difficult to assess the impact of land tenure privatization on women’s land rights because the process of implementing the 1999 Land Act and Village Land Act has been very slow, and because there is a lack of gender-disaggregated statistical data. Nonetheless, there is some emerging evidence to suggest that the 1999 legislation may be having some positive effects on women’s tenure security. In Dar-es-Salaam’s Hanna Nassif, for example, preliminary estimates in 2006 suggested that about one third of those who had paid for surveying to be carried out in a community-driven registration effort were women, while similar numbers of women in Dar-es-Salaam were thought to be obtaining residential licenses in their own names (see Ikdahl’s chapter in this volume). In rural areas of Tanzania, such as the Southern Highlands and the Uluguru Mountains, anecdotal evidence also suggests that some women have already begun registering their land as individuals, but that while in the Southern Highlands case many others wanted to do so, in the Uluguru Mountains case many women either saw registration as a threat or considered it unnecessary, and registration tended only to be sought after by relatively wealthier women (see Daley’s and Englert’s chapters respectively). As these examples from Tanzania suggest, while some women might already be benefiting from the possibilities offered by the post-1990 land legislation, there remains a need to look closely at which women these are – differentiating between them along the lines of age, marital status, education, economic situation etc. – and at what the actual consequences of land registration (or the lack of it) are in each individual case. Clearly, the impact of land tenure privatization on wealthy, educated, urban women is likely to be quite different to its impact on the poor, rural women who often rely much more directly on land for their livelihoods. Yet even here it is still important to differentiate between women – the high numbers of female tenants in Tanzania’s cities, for example, are likely to be affected very differently by land tenure privatization than their landowning (urban or rural) sisters, while, similarly, the situation of a daughter-in-law living in a house of which her mother-in-law is the registered owner is very different from the situation of that same mother-in-law. Compared with Tanzania, it is even more difficult to assess the impact of land tenure privatization on women in Rwanda and Uganda, as the implementation of the new land policies and laws in those two countries is much further behind. In Rwanda, the land registration mandated by Article 30 of the 2005 Organic Law Determining the Use and Management of Land is yet to commence. However, the broader

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Afterword evolution of customary tenure towards more individual rights under conditions of increasing population pressure and land scarcity and the growth of a vibrant land market seems to have had generally more negative effects for women than men, albeit due at least in part to the preponderance of women among the poorer groups in Rwandan society (see Ansoms & Holvoet’s chapter in this volume and compare with Daley’s chapter on Tanzania; see also Dore-Weeks and Arnesen 2007). In Uganda, the impact of privatization on women’s land rights has been mediated by major implementation failures with the 1998 Land Act, as there are not yet any institutions mandated to ensure that an important consent clause is heeded. In practice, customary institutions continue to wield responsibility for giving consent to sell inherited (clan) land and women’s rights as spouses are given no greater weight than those of other family members; they are thus not yet protected as the legislation stipulates (see Adoko & Levine’s chapter in this volume).

The New Land Policies and Laws Despite these mixed comments about the actual impact of land tenure privatization thus far, there can be no doubt that the land policies and laws that have emerged in the Eastern African region in recent years have come a long way in addressing women’s rights. Across Eastern Africa, there are now many explicit provisions, both constitutional and statutory, that support and strengthen women’s land rights. However, the significance for women of the post-1990 land legislation’s recognition of customary land tenure in the region – noted in this volume’s Introduction – must also be carefully considered. CONSTITUTIONAL PROVISIONS

In Kenya, the post-1990 process of land tenure reform has run in parallel to a much broader process of constitutional reform, as part of which the Constitution of Kenya Review Commission led extensive consultations nationwide in which gender issues were specifically addressed. Although a new draft constitution was rejected in a national referendum in November 2005, its Chapter 7 nonetheless provides a framework on which to build a national land policy; it articulates the principle of gender equality with regard to access to, ownership of and control over land and its products, in inheritance, and in the administration and management of land estates and other property (GOK 2005; cf. Kameri-Mbote 2005). In contrast, the existing Constitution

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and land legislation in Kenya contain little in the way of genderprogressive provisions and, although the language of the existing land legislation is at face value mostly gender-neutral, in practice the implementation of private land registration has had the adverse impact noted above (Nyamu 1997). Had it been passed, the draft new Kenyan Constitution would also have gone further in terms of gender-progressive land-related provisions than the constitutions of most other countries in the region. In Uganda, for example, while Article 237 of the 1995 Constitution privatized all land and gave full legal recognition to customary ownership as private property, and Article 33 provides an antidiscrimination safeguard for women by according them ‘full and equal dignity of the person with men’, there is no specific articulation of the principle of gender equality with regard to land (GOU 1995; see Adoko & Levine’s chapter in this volume). The constitutions of Tanzania and Rwanda similarly contain little in the way of specific provisions about women’s rights to land. However, they too contain important anti-discrimination articles – stronger than those of Uganda – that provide a solid legal foundation for gender-progressive land policies and laws. Article 11 of the 2003 Rwandan Constitution, for example, prohibits discrimination of any kind and states that all Rwandans ‘are born and remain free and equal in rights and duties’, while Article 9 commits the government to ‘ensuring that women are granted at least thirty per cent of posts in decision making organs’ (GOR 2003; see Ansoms & Holvoet’s chapter in this volume). In Tanzania, Article 13(1) of Chapter 1 of the 1977 Constitution stipulates that ‘all persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law’. Article 13(5) goes on to specify the bases of discrimination as ‘nationality, tribe, place of origin, political opinion, colour, religion or station in life’, without any mention of gender (URT 1977). However, as a result of lobbying by gender-progressive NGOs, the Constitution was amended in 2000 to now specifically ‘include sex as one of the outlawed bases of discrimination’ (Tsikata 2003, 161). STATUTORY PROVISIONS

In addition to these constitutional provisions, many gender-progressive statutory provisions are contained in the new land laws of Tanzania, Rwanda and Uganda themselves. The Tanzanian land legislation contains provisions which support and strengthen women’s rights to land in two main ways: by providing ‘equality’ provisions, which are focused on the equal treatment of individual women as compared to

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Afterword individual men, and ‘protective’ provisions, which are more focused on women as part of a social context. For example, Section 3(2) of both the Land Act and the Village Land Act explicitly state that a woman’s right to ‘acquire, hold, use, and deal with land’ shall be equal to that of a man, while Section 20(2) of the Village Land Act declares discriminatory customary law as void and inoperative. Other ‘equality’ provisions demand equal treatment of men and women on the part of lending institutions, village councils and village adjudication committees. Both acts then also contain important ‘protective’ provisions which support the land rights of women as spouses and dependant family members, such as the facilitation of joint titling, the requirement for spousal consent to land transfers – building on a similar provision in the 1971 Law of Marriage Act (Section 59) as regards the matrimonial home – and the requirement that village land councils pay attention to the effects on women’s use of land before allowing any assignment or surrender of customary rights by others (URT 1999a; 1999b). The combination of these two sets of provisions therefore supports and strengthens Tanzanian women’s land rights in situations where they are acting independently in respect of land (e.g. purchasing their own land), as well as in situations where their land relations are closely tied to those of men (for example, where their husbands hold registered rights to the family land). In addition, the land legislation contains a third type of ‘pro-active’ provision, such as the establishment of quotas for women’s participation in decision-making bodies like village land councils and village adjudication committees. However, there remains a clear weakness with the Tanzanian land legislation in that there is a lack of clarity as to the relationship between the non-discriminatory provision of Section 20(2) of the Village Land Act and the existing discriminatory provisions of the still-valid 1963 Customary Law Declaration Order, especially as regards inheritance. The principle of non-discrimination is now constitutionally overriding, but it would clarify the legal situation if existing discriminatory laws were to be repealed (see Ikdahl’s chapter in this volume). The key gender-progressive provision in the Organic Law Determining the Use and Management of Land in Rwanda is contained in Article 4, which states that ‘any discrimination either based on sex or origin in matters relating to ownership or possession of rights over land is prohibited. The wife and husband have equal rights over the land’ (GOR 2005). The English version of the legislation is in fact a mistranslation of the original Kinyarwanda, and it should say that men and women have equal rights over the land: this article is therefore both

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an ‘equality’ and a ‘protective’ provision. Other ‘protective’ provisions can be found in Articles 35 and 36, which make it a requirement for ‘all other members of the family who are joint owners of such rights’, including (but not limited to) ‘spouses legally married’, to give their ‘prior consent’ to permanent transfers of land, while joint registration of family land by legally married couples is implied in Article 32, which requires details of both ‘the applicant, and of his or her spouse’ (GOR 2005). The Organic Law Determining the Use and Management of Land in Rwanda also requires a number of pieces of subsidiary legislation for its implementation and it is to be expected that these will contain more specific gender-progressive provisions as appropriate. The Presidential Order No54/01 of 12/10/2006 Determining the Structure, the Responsibilities, the Functioning and the Composition of Land Commissions, for example, in line with the Rwandan Constitution, already mandates that ‘at least 30 per cent of the commission’s members must be women at each level’ and that at least two of the five members of each sector and cell land committee must be women (GOR 2006). Women’s land rights in Rwanda are further supported by the statutory provisions of Law No22/99 of 12/11/1999 to Supplement Book 1 of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions (also known as the Inheritance Law). For example, Article 50 of this law provides for equal inheritance rights for legitimate children, irrespective of their gender, while Article 70 provides for legally married women to inherit from their husbands and specifies the share of the deceased’s property that they should inherit in different situations. The inheritance rights of illegitimate children to their father’s property are also protected by this law, although not to the same extent as those of legitimate children (GOR 1999). However, the land rights of a very large and vulnerable group of women in non-legal marriages are as yet not at all adequately provided for by law in Rwanda, due primarily to the provision in Article 26 of the Constitution that ‘only civil monogamous marriage between a man and a woman is recognized’ (GOR 2003; see also Ansoms & Holvoet’s chapter in this volume); this constitutional provision makes it extremely difficult for policy-makers and legislators to make statutory provisions in support of the land rights of women in polygamous households or who are not legally married to their ‘husbands’. In Uganda, the Land Act was an important milestone for women with its introduction of a consent clause. The Ugandan consent clause is contained in Section 39 of the Land Act and stipulates that no-one may undertake any transfers or transactions in respect of the family

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Afterword land ‘except with the consent of his or her spouse’; family land is defined in Section 38A (4) as land which a family depends on for their livelihood and food supply or which is otherwise considered as family land in practice. Consent is not supposed to be ‘unreasonably withheld’ – although what this means for women in practical terms is not defined – but any transaction for which spousal consent has not been obtained ‘shall be void’. Spouses are also entitled to apply for caveats to be listed on registration documents ‘to indicate that the property is subject to the requirement of consent’, although the practicality of this entitlement can again be questioned (GOU 1998; 2004). All state land administration bodies in Uganda also cater for women representatives but, this and the consent clause aside, land policy and legislation in Uganda contains few other gender-progressive provisions; as noted in the Introduction to this volume, for example, a co-ownership clause that women activists had advocated for did not appear in the published Land Act and the amendments made in 2004 did not sufficiently address this. On balance, then, it would seem that the post-1990 land legislation contains more statutory provisions to support and strengthen women’s land rights in Rwanda and Tanzania than in Uganda. RECOGNIZING CUSTOMARY LAND TENURE

All these pieces of recent land legislation in Eastern Africa also include varying levels and forms of recognition for customary land rights and the institutions that govern customary land tenure. For example, Article 7 of the Organic Law Determining the Use and Management of Land in Rwanda ‘protects equally the rights over the land acquired from custom and the rights acquired from written law’ (GOR 2005). In the Tanzanian case, the Village Land Act makes provision for the majority of people to obtain customary rights of occupancy for land held in their villages and Section 18(1) similarly specifies that ‘a customary right of occupancy is in every respect of equal status and effect to a granted right of occupancy’ (URT 1999b). Section 20 mandates village councils to administer land in accordance with customary law but subject to the limitation that this be consistent with the National Land Policy, the land legislation and the Constitution – including its non-discrimination principle (URT 1999b). In the Ugandan case, customary tenure is formally recognized in Section 3 of the Land Act. Land held under customary tenure is defined as land to which ‘local customary regulation and management in individual and household ownership, use and occupation of, and transactions in land’ is applicable, and includes clan land and land subject to communal tenure (GOU 1998). With clear roles in land administration thus

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established for existing customary institutions, the Ugandan legislation therefore goes further towards the formalization of customary tenure than that of either Rwanda and Tanzania. In both those cases, although local level institutions are given a land administration role, those institutions cannot be considered as ‘customary’ institutions in the same way as in Uganda because they are much newer and thus in no way ‘traditional’ – the Tanzanian institutions date from 1974, while the Rwandan institutions have been newly-created as a result of the 2005 Organic Law Determining the Use and Management of Land. As observed above, the significance of all this for women must be carefully considered. Governments, policy-makers and legislators have clearly acknowledged the importance of customary land tenure in practice, and the need to somehow incorporate it into statutory law in order to avoid the continuing persistence of tenure dualism. However, they must also acknowledge that customary tenure is likely to remain the dominant form of tenure for most people in Eastern Africa for many years – this will then require them to address the potential inconsistencies and contradictions between customary tenure and the various gender-progressive constitutional and statutory provisions described above, as noted already with reference to Tanzania. In each specific country context they must therefore try to assess (and as needs be take measures to mitigate) the likely effects of the legal recognition of customary land tenure – with all its inherent and well-documented gender biases, as discussed in the Introduction to this volume – on the land rights of women. As was also suggested in the Introduction, a more promising, longterm approach to this problem would be for policy-makers and legislators to work towards moving away from legal and institutional pluralism and tenure dualism by creating formal systems of land tenure that are more reflective of actual practices on the ground, yet which are also improved upon in a gender-progressive way. However, during the implementation of land policies and laws in the short and medium term, governments will still need to think creatively about how to cross the traditional chasm between customary and statutory law, and, more particularly, about how to do this too in a gender-progressive way. In the Ugandan case, for example, the government could seek partnerships with local customary institutions to ensure that all citizens have access to land administration and channels of justice and dispute resolution. Where customary institutions administer land sales, these could be co-opted to help enforce legal provisions such as the consent clause; customary judicial institutions could also handle the vast majority of land disputes. Government could then concentrate its

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Afterword limited resources (both financial and human) on training and overseeing the work of the customary institutions, providing an appeals process, and ensuring that the customary institutions follow statutory law and not aspects of customary law which are discriminatory or which breach gender-progressive constitutional and statutory provisions more generally. Yet there is also much debate – not least between the authors of this Afterword – over the extent to which women’s rights to land can be successfully supported and strengthened by working in this way. In some areas, restoring the roles of customary institutions that were historically mandated to protect women’s land rights – or at least their rights within a family context, as daughters, sisters, mothers or wives, as opposed to their rights as individuals – and making them aware of the ongoing changes in, and potential impact of, new land tenure legislation, might produce results faster than working directly with women. Those in favour of this position argue that the problem is much more complex than any women’s organization can overcome, and that institutions of power, such as the clans in Northern Uganda, need to be the focus of any advocacy work around women’s land rights (see Adoko & Levine’s chapter in this volume). This approach may be fruitful in places like Northern Uganda where conditions seem favourable, but in other situations where there is greater market integration and customary tenure is already much weaker, for example in urban areas where local land tenure practices are likely to have evolved quite differently to those in rural areas, women’s organizations might be in a better position to achieve change – as we discuss further below (see also chapters by Daley and Okuro in this volume). Women’s land rights therefore need to be assessed under the different types of land tenure found in practice in different situations, in order, first, for the likely impact on women of land tenure reforms to be assessed, and, second, for the measures and strategies needed to ensure a positive impact on women’s land rights to be determined. What is most important in all situations overall, however, is to find ways to help women secure their land rights by making them aware of their rights and supporting them in asserting their claims.

Implementation Issues As already argued in the Introduction to this volume, the law alone does not suffice. Governments, legislators and policy-makers must recognize that policies and laws cannot protect vulnerable citizens from

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discrimination without an integrated implementation strategy that brings together actors from many fields (for example, education, law enforcement, social and economic development, culture and religion, etc). Moreover, as noted both in the Introduction and in many of the individual chapters of this book, access to, ownership of and control over land in Eastern Africa are influenced by the complex interaction of customary tenure and statutory law, which further need to be understood in accordance with the particular rights and responsibilities contained, broadly, within different types of tenure systems (such as customary, freehold, leasehold and, in the case of Uganda, mailo) and, specifically, within different sets of indigenous (or local) land tenure practices. Women’s land rights cannot therefore be secured simply by implementing gender-progressive land policies and formal constitutional and statutory legal provisions – there is a need to engage with the existing forms of tenure as well (cf. Manji 2006, 123 ff., on the issue of implementation of land laws and gender in the East African context). Before the implementation of any new land policy or law, it is therefore important for policy-makers and legislators to gain in-depth knowledge, in particular contexts, of customary tenure and its evolution, of the direct and indirect impact of past land policies and laws, and of the way customary tenure and statutory law interact. This has already been recognized in Rwanda, for example, where the Ministry of Lands, Environment, Forestry, Water and Mines (MINITERE) has been taking an iterative and consultative approach to the implementation of the land legislation there, by testing out ideas with the public, including on gender, and feeding the responses back into the design of the land tenure reform implementation strategy (MINITERE1/DFID/HTSPE Ltd. 2007). This sort of approach can help to correct any exclusionary tendencies found within both customary tenure and local land administration institutions, although of course only time will tell whether it succeeds. This sort of approach also requires all those responsible for implementing land tenure reforms to work towards a clear understanding of both land rights and responsibilities under existing forms of tenure; this is especially the case under customary tenure, where rights and responsibilities are usually not written down and are therefore easily open to misconceptions. Understanding what rights and responsibilities exist in practice, and what elements of the existing tenure systems are discriminatory, can then help all those who are concerned to support women’s land rights to work to remove the discriminatory elements without necessarily condemning the existing tenure systems in their entirety.

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Afterword Policy-makers and legislators must then work further to link the recognition of land rights with clear institutional responsibilities for their protection that can be enforced during implementation; this is also likely to require both an understanding of power dynamics and concerted efforts to tilt these in favour of women’s land rights. In between policy- and law-making and the individuals to whom those policies and laws will apply lie the administrative institutions, at different levels of government, which are responsible for policy and law implementation. To a greater or lesser extent, all recent Eastern African land legislation devolves responsibility for implementation to decentralized institutions. However, it is short-sighted to think that devolution of responsibilities to lower levels of government will necessarily increase gender-sensitivity, or to assume that local institutions, whether customary or not, will necessarily be gender-neutral in land matters. Consequently, it is important for central governments to assess the implementation performance of all institutions involved in land administration with regard to gender-sensitivity; equally important is to consider the gender-sensitivity of informal institutions, as these often have a key influence on whether or not gender-progressive constitutional and statutory provisions are implemented in practice. There is also a specific need for consultation, debate and provision of information on issues around land registration before its implementation. In Tanzania, for example, women’s lack of knowledge about the registration process has been a source of problems for them during the implementation of the 1999 land legislation there, combined at times with administrative procedures that leave them invisible and a lack of interest on the part of government officials in implementing gender-progressive provisions (see Ikdahl’s chapter in this volume). Public consultation and debate is needed about how to record and guarantee existing rights and about whose names to include on registration documents; wherever possible governments should be encouraged to consult widely and try to build new registration processes and systems on existing local practices while at the same time making sure to update them in a gender-progressive way. On the other hand, what women also need – more than their names on registration documents – is a guarantee of underlying tenure security, and several of the contributors to this book have also emphasized the importance of appropriate mechanisms for dispute settlement as a means to achieve this (see chapters by Adoko & Levine and Okuro in this volume, for example). A final consideration here is that it is not only the implementation of land tenure reforms aimed primarily at the private registration of land

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that will have gendered effects; the underlying objectives of the reforms may have gendered effects too. Policy-makers and legislators must therefore also consider the baseline situation that land tenure reforms are intended to address, including the non-gender specific provisions in the reforms that might have an adverse impact on women’s land rights. For example, provisions that hurt resource-poor, small-scale farmers would also be likely to hurt women in situations where women predominate among such farmers. While the effective implementation of gender-progressive provisions in land policy and legislation is clearly essential, it is thus possible that the policy and/or legislation may not be satisfactory in itself, if it was not initially based on sufficient depth of understanding about the causes of vulnerability to the land rights of women so as to be able to effectively deal with them. Monitoring and evaluation processes that broaden their scope from examining the effectiveness of the implementation of policy and law as they presently stand to a more in-depth evaluation of their gendered impact can help to assess this; gender-aware policy and law appraisals at the moment of policy- and law-making can also be useful. In these ways, unforeseen gender-biased effects of land policies and laws can be identified, and the overall relevance and adequacy of the gender-progressive provisions presently included can be assessed, with ameliorating measures to support and strengthen women’s rights proposed as required.

The Role of Civil Society So far in considering how women can best be supported in their continuing struggles over land, we have focused on the best ways to implement the new land policies and laws. In drawing together our conclusions about the best ways forward, we now draw on the lessons and experience of the past in turning to the importance of civil society in supporting women’s land rights more broadly – through the provision of information and sensitization to boost women’s (and men’s) awareness of their rights and women’s overall confidence in asserting their claims, and through collective action. For the post-1990 gender-progressive constitutional and statutory provisions described in this Afterword to have the maximum possible positive impact on women across Eastern Africa, the women themselves must first and foremost have knowledge of those provisions. Laws are often poorly understood, particularly by rural populations, girls and women (see Ansoms & Holvoet’s chapter in this volume). Sensitization and awareness-raising also takes time, and thus a long-

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Afterword term perspective is needed. Local civil society organizations, familiar with the best means of undertaking sensitization work in their particular contexts, have a key role to play here, while national and international actors can help by funding local NGO- and CBO-led public information campaigns and training for land administration officials. Specific examples in this volume have documented a Tanzanian NGO conducting seminars to educate local land officers about women’s rights under the Land Act and Village Land Act, as well as the important role of popular local radio media in informing the rural population about women’s rights under the Inheritance Law in Rwanda (see chapters in this volume by Daley and Ansoms & Holvoet respectively). Such initiatives can support women, both as individuals and in groups, by spreading official ‘gender-sensitized’ knowledge about land rights and thereby boosting women’s confidence in being able to approach local governments, whether collectively or individually, to assert and claim their rights. However, these kinds of initiatives also need to be specifically targeted according to the different needs and circumstances of women in different urban and rural settings. The promotion of ‘legal literacy’ through information campaigns, sensitization and awareness-raising nonetheless has limitations. For example, especially in rural areas, women have often had less education than men, they may be less likely to have attended school, and in some countries within Eastern Africa they are also less likely to even speak the official language of formal policy and law. Furthermore, and notwithstanding the low levels of knowledge which hinder many women from effectively asserting and claiming their land rights, cultural constraints can hinder women’s ability to make use of the law, even when they are aware of legislation which is supportive of their rights. For example, provisions such as consent clauses and joint-titling might be effectively useless if women are not in a position to challenge the views and wishes of their husbands (see Nyamu-Musembi’s and Daley’s chapters in this volume). It is thus vital that major efforts are made to promote legal literacy throughout the whole population – men and women – on the part of both governments and gender-progressive NGOs and CBOs. This can help women as they grow in confidence, collectively and individually, to make use of gender-progressive provisions and thus contribute to their implementation; when women do take the initiative and move into litigation, this in its turn can have a reinforcing, awareness-raising impact on other women. In overall terms, however, the most effective way of addressing gender inequality in land rights may be to tackle the underlying gender relations themselves through collective action. Gender relations are

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among the most deeply-entrenched types of norms regulating human behaviour and are tacitly enforced by the community one resides in; social sanctions against non-conformist behaviour usually weigh heavily in personal decision-making and circumscribe and constrain choice. Gender norms are also internalized from early childhood, with any deviation causing internal shame. This helps to explain why women, particularly when they stand alone, do not necessarily claim all that a gender-progressive land policy or law might offer them. Underlying gender relations also manifest themselves very differently in different situations, and strategies need to be tailored accordingly. The wider choice of livelihood activities and income sources that urban women have compared to rural women, for example, affects their respective levels of economic independence and thus the degree to which they may be able to resist underlying gender relations. While institutional changes relating to strongly internalized gender constructs may be difficult to realize, at least in the short term, history has shown that collective action – women acting together, alone or in alliance with others in society who support gender equality – can be a powerful mechanism for change. Women have traditionally been mobilized into women’s groups by gender-progressive NGOs or community organizations in order to fulfil practical gender needs, such as the installation of water pumps or improvements in children’s health care; some women also set up their own local self-help groups and rotating savings and credit organizations in order to reduce their vulnerability to risks threatening their livelihoods. The creation of such forums can then make women aware that many of their experiences are ‘collective’ rather than ‘individual’, thereby contributing to an increased awareness of the links between their own condition of ‘relative deprivation’ and the broader socio-economic structures and institutions that mediate gender relations, and to the identification of common strategic gender needs, including, among others, secure rights to land (Agarwal 1994; 2003; Lastarria-Cornhiel 1997; Molyneux 1985; Moser 1993). Nonetheless, it has by now been increasingly recognized that the very marked differences between women (whether wealthy or poor, urban or rural, landladies or tenants, mothers, or wives, and so on) often make it difficult in practice to identify and talk about ‘women’s problems’ in such a way. Clearly, governments acting alone cannot use the privatization of land tenure as an opportunity to enhance the rights of all people – men, women and children – without help from a whole range of other institutions (customary, NGOs, churches etc.). A great deal of grassroots work needs to be undertaken, led either by central and local

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Afterword governments with a supporting role for civil society, or by civil society itself where governments are either unwilling or unable to prioritize women’s land rights themselves. This latter course can be seen in Kenya, for example, where civil society organizations have taken the lead in recent years in questioning the legal and administrative manner in which land rights are recognized and regulated as the debate over the new constitution continues. Conversely, civil society must work with and through governmental institutions wherever possible, and civil society actors must seek to engage with, and even participate in, those same institutions. As Okuro’s Kenyan case study in this volume has most notably shown, the same provincial administration which is to blame for violations of widows’ land rights is the only government institution that widows might approach when deprived of their land rights by their relatives. Yet, encouragingly, in the last decade or so, a significant number of women have begun to be appointed within the provincial administration – especially at the local level as chiefs, assistant chiefs and village elders – and these women are now strategically placed to initiate change and dialogue to safeguard widows’ land rights and to arbitrate land disputes on behalf of women. International actors, whether international NGOs or donor governments and organizations, also have a key role to play here in helping to open up the space for dialogue with national governments over women’s land rights and access to land. For example, in contexts where it is appropriate they could introduce a human rights based perspective into their lobbying on land issues to help stimulate debate on women’s land rights and ensure that gender concerns are fully addressed in the formulation and implementation of land tenure reforms, albeit while emphasising local initiatives and priorities and the role of civil society. In addition, international actors are also wellplaced to provide the long-term funding and support to both national and local governments and civil society that is needed for the implementation of land tenure reforms.

Conclusion For the privatization of land tenure in Eastern Africa to be an opportunity to enhance the rights of all people, it will require changes in the knowledge, attitudes and practice of all actors concerned. At the local level, Eastern African women must work together, and with men, to raise awareness of and subsequently claim their land rights. At the national level, the role of governments is crucial from the beginning:

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there must be recognition of what is really happening on the ground, followed by changes in government policies and priorities and serious and concerted attempts to implement the gender-progressive provisions of land policies and laws. At the international level, longterm support must be forthcoming for locally-driven initiatives. And at all these levels in the formulation and implementation of land tenure reforms which aim primarily at the private registration of land, civil society must play a key role in working to support women’s land rights more broadly. Ultimately, as we have illustrated throughout all the chapters of this book, what is most needed if the privatization of land tenure is to be an opportunity for enhancing the rights of all is increased understanding of land rights and responsibilities within different contexts, increased awareness of issues of land rights vulnerability, and increased awareness, understanding and confidence among Eastern African women themselves, in order that they may best be supported by all those concerned to support women’s land rights to secure their own futures and assert their own rights.

Notes 1 MINITERE was subsequently transformed into the Ministry of Natural Resources (MINIRENA) in March 2008.

References Agarwal, B., 1994. A Field of One’s Own: Gender and Land Rights in South Asia. Cambridge: Cambridge University Press. —— 2003. ‘Gender and land rights revisited: Exploring new prospects via the state, family and market.’ Journal of Agrarian Change, Vol. 3/1–2, 184–224. Dore-Weeks, R. and Arnesen, K.N. 2007. Facilitating a Shift to Gender Equitable Land Distribution: Legal Frameworks, Inheritance Patterns and the Gap between Policy and Practice. African Rights: Kigali. Government of Kenya (GOK), 2005. Kenya Gazette Supplement No. 63, 22nd August 2005: The Proposed New Constitution of Kenya. Nairobi: Government Printers. Government of Rwanda (GOR), 1999. Law No 22/99 of 12/11/1999 to Supplement Book 1 of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions. Kigali: GOR, as published in the Official Gazette of the Republic of Rwanda. —— 2003. Constitution of the Republic of Rwanda. Kigali: GOR. —— 2005. Organic Law No 08/2005 of 14/07/2005 Determining the Use and Management of Land in Rwanda. Kigali: GOR, as published in the Official Gazette of the Republic of Rwanda on 15/09/2005.

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Afterword —— 2006. Presidential Order No 54/01 of 12/10/2006 Determining the Structure, the Responsibilities, the Functioning and the Composition of Land Commissions. Kigali: GOR, as published in the Official Gazette of the Republic of Rwanda. Government of Uganda (GOU) 1995. Constitution of the Republic of Uganda. Kampala: GOU. —— 1998. The Land Act, 1998. Kampala: GOU. —— 2004. The Land (Amendment) Act, 2004. Kampala: GOU. Kameri-Mbote, P., 2005. ‘Country Study: Kenya’. In Hellum et al. (eds) Human Rights, Formalisation and Women’s Rights in Southern and Eastern Africa. Studies in Women Law No. 57. Institute of Women’s Law, University of Oslo. Lastarria-Cornhiel, S., 1997. ‘Impact of Privatization on Gender and Property Rights in Africa.’ World Development, Vol. 25/8, 1317–33. Manji, A. 2006. The Politics of Land Reform in Africa. From Communal Tenure to Free Markets. London; New York: Zed Books. MINITERE/DFID/HTSPE Ltd, 2007. Results of Preparatory Field Consultations in Four Trial Districts; March – October 2006. National Land Reform Programme Report, Final Draft, 16 February 2007. E. Daley and T. H. Ngoga, J. Cyubahiro, O. Kamusiime and D. M. Rugema, with P. D. Mwambari, J. Wamukama and H. Kyomugisha. Molyneux, M., 1985. ‘Mobilization without Emancipation? Women’s Interests, the State and Revolution in Nicaragua.’ Feminist Review, Vol. 8, 1–34. Moser, C., 1993. Gender Planning and Development: Theory, practice and training. London: Routledge. Nyamu, C., 1997. WLEA Research Project on Women, Marriage and Management of Resources, (Unpublished Report). Nairobi: Women and Law in East Africa (WLEA). Tsikata, D., 2003. ‘Securing Women’s Interest within Land Tenure Reforms: Recent Debates in Tanzania’. Journal of Agrarian Change, Vol. 3, Nos. 1 & 2, 149–83. United Republic of Tanzania (URT), 1977. The Constitution of the United Republic of Tanzania (and subsequent amendments). —— 1999a. The Land Act, 1999. Dar-es-Salaam: Government Printer, published as Act Supplement No. 6 to the Gazette of the United Republic of Tanzania No. 21, Vol. 80, 21st May 1999. —— 1999b. The Village Land Act, 1999. Dar-es-Salaam: Government Printer, published as Act Supplement No.7 to the Gazette of the United Republic of Tanzania No. 27, Vol.80, 21st May 1999.

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Index Abdi, Fayera 27 Abonyo, Caroline 125 access, to credit 27-9, 35, 49, 92, 94, 147; to land 1, 8, 9, 40-4 passim, 47, 48, 54, 55, 62-4 passim, 75-6, 80, 85, 86, 113, 121, 124, 140-2, 147, 152, 153, 159, 161, 168, 173; to resources 45-7 passim, 50, 51, 138-57 passim ActionAid International x,11 Adams, M. 3, 93 Adenew, Berhanu 27 adjudication, land 26 adjustment, structural 6, 61, 68, 70, 96, 106 administration, land x, 6, 7, 42, 46, 49, 63, 113-18 passim, 161, 165-70 passim Adoko, Judy 3, 6, 12, 13, 53, 101-20, 150, 161, 162, 167, 169 African Charter on Human and People’s Rights 42 Agarwal, Bina, ix-xi passim, 8, 9, 172 age factor 2, 12, 43, 48 agriculture 1, 5, 6, 13, 20, 27, 30, 62-3, 68-71, 74, 91, 93, 96, 97, 104, 105, 124, 138, 147-8 alcohol 71, 109-10, 113 Alden Wily, E. 4-7 passim, 49, 61, 90, 93, 96-7, 159 Alexander, Gregory 26 Ali, Binti 76-7 Aliber, M. 122, 123 Alicia, Mama 77 alienation, land 34, 45, 61, 63 allocation, land 26, 33, 34, 46, 49, 66-7, 72, 86, 102, 150 Alston, P. 40 André. C. 140 Ansoms, An 3, 5, 14, 138-57, 161, 162, 164, 170, 171 Arnesen, K.N. 161 Asaria, Boone 126, 131 Atwood, D. 5 awareness raising 170-1, 173 banks 28 Barrows, R. 5 Berry, S. 4 Bhanu, C. 147, 148

Biashera, Mama 77 Blackden, C.M. 147, 148 Blumberg, R.I. 8 Booth, D. 67 borrowing 69, 76-8 passim boundaries 22-3, 25, 116 bribes 72, 129 Brown, G. 63, 64 Bruce, J. 4, 18 budgeting, gender 138, 146 buffer zone 22 Burnet, J.E. 141, 143 Burton, P.S. 8 Butegwa, Florence 32 capital 7, 18-19, 93 Carter, Michael R. 29 Chanock, Martin x, 24 Chauveau, P. 4, 11 chiefs x, 23, 30, 101, 129, 130, 173 children 13, 34, 122, 123, 143, 164 see also orphans Chilundu, Arlindo 27 Christine, N. 122 civil society 10, 159, 170-4; organizations 151-2, 173 claims, land/property 32-5, 7880 passim clans 23, 26,1, 85, 87, 106-13 passim, 117, 167 clearing, land 63, 85 coffee 28 collateralization, of land 7-8, 13, 18, 27, 83, 92-4 passim, 104, 121 collective action xi, 152-4, 170-2 colonial era x, 3-5 passim, 24, 614, 85, 101, 106 commercialization 3, 24, 138, 147 commissions, land 150, 164 commoditization, of land 1, 2, 4, 12, 30, 31, 45, 62, 68-9, 76, 106, 159 communal land 44, 46, 50, 56, 107; associations 103, 114, 115 communities 47-51, 103 compensation 46, 63, 67, 68, 73, 90, 91, 112 complaints procedures 56 concentration, land 5 confidence 12, 76-80 passim, 95,

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170-1 conflict 1, 2, 5, 48, 92, 138, 139, 141, 144-6, 159; of interest 87; post- 2, 3, 5, 14, 159 consent clauses10, 13, 103, 11217 passim, 161, 164-6, 171 consolidation, land 138, 147, 153 consultation 168, 169 contribution, to property 34 control, of land 1, 8, 9, 121, 140, 142, 152, 161, 168 coping strategies 132-6 Cornwall, A. 40 corruption 13, 111, 116, 129-31, 135 costs, transaction 29 cotton 106 Cousins, B. 5, 90 credit 13, 20, 27-9, 35, 49, 92-7, 121, 147 crown land 101 culture 2, 23, 42, 132, 134, 171 custom x, 2, 43, 49; systems 83100, 139-46 passim, 150 Daley, Elizabeth 1-17, 43, 61-82, 158-75 Davison, J. 5 De Soto, H. 7, 18-21, 23-4, 27, 29, 31, 35, 92 debts 19, 95 decentralization 42, 50, 56, 169 decision making 40-3 passim, 49, 88-9, 124, 163 default, on loans 27 degradation, land 20 demand, for housing 69; for land, 68, 74, 79 demarcation, systematic 104, 115-16, 118 democratization 51 development 40-2 passim, 46, 56, 63, 101, 110, 111, 115, 147 dichotomization, capitalist/precapitalist 26, 35 Diop, N.-T. 138 disabilities, women with 48 discretion, government 41-4 passim, 50 discrimination, gender 11, 12, 40, 87, 122, 125, 138, 168; Convention on Elimination of 41, 47-52 passim, 54-5

Index disposal rights 63 dispossession 33, 123 disputes 130-1, 144-6, 166; resolution 22, 49, 111, 116, 123, 150-1, 166, 169 divorce 64, 143 donors 7, 9, 40, 41, 96, 102, 152, 173 Dore-Weeks, R. 161 Drimie, S. 121 drought 25 Durkheim, Emile 24 education 2, 9, 12, 49, 68, 70, 76, 78, 80, 96, 97, 171 Eide, A. 44 Eilor, E.A. 122 elders 109-11, 113, 117, 123, 130-1, 173; Council of 130, 135 Ellis, F. 70 Emilie, Bi 64 employment ix, 63, 68, 69 Empowerment, Legal of Poor, Commission for 19 empowerment, women’s 8, 9, 12, 80 Englert, Birgit ix, 1-17, 28, 43, 46, 83-100, 158-75 entitlements 31-3 passim, 55 equality, gender 8-12 passim, 413, 47-9, 52-6 passim, 138, 143, 146, 161-3 passim Ethiopia 27 evaluation 146,148-9, 170 eviction 43, 130 evolution, social 23-7, 35 exclusion 24, 32-5, 46, 124, 1401, 168 expropriation, of land 24, 45-6, 50, 66, 90, 91, 101, 109 extension 147-8 extra-legality 20, 21, 27

grandparents 126-8, 135 grazing/hunting areas 25, 107 groups, women’s 79, 152-4 passim, 172; widows and orphans 133-4 growth, economic 7, 92, 103, 148 Gupta, Sen R. 94

local/traditional 13, 47, 117, 161, 166-7 insurance 21, 92-3 interest rates 95 investment 6, 20, 27, 28, 74, 92, 104, 110; foreign 61 Izumi, Kaori ix, 68, 91

Haile, Mituku 27 Hart, G. 8 Hartley, D. 84 health care 70, 96, 97 Hendrix, Steven 21, 27 Hilhorst, Thea 85 HIV/AIDS ix, x, 1-4 passim, 13, 71, 96, 108, 121-8 passim, 132, 135, 136, 159 Hobley, M. 5, 7, 8 Holvoet, Nathalie 3, 5, 14, 13857, 161, 162, 164, 170, 171 homelessness 45 households x, xi, 8, 9, 47, 49, 515 passim, 141; female-headed 69, 70, 74, 75, 80, 147 housing 40, 42, 43, 69; UN Rapporteur on 46 Huggins, C. 138, 149, 151 Human Rights Watch 46, 121-3 passim Hunt, Diana 28, 31, 50, 53 husbands 46, 51-3 passim, 163, 171 Hutt, A. 63, 64 Hyden, G. 68 Hymas, Olivier 83

J.O. 112 Jacobs, S. 11 James, R. 67 Janet, Mama 73, 77 Joan, Mama 76 Jonas, Mariam 94 Jonas, Reema 88 Jones, L. 151 Julia, Mama 78 justice 43

Ikdhal, Ingunn 2, 9, 40-60, 89, 160, 163, 169 ILO 73 income 45, 52, 68, 70-1, 92 India ix-xi passim indigenous peoples 44 individuals 34, 48-51 passim individualization 4, 6-8 passim, FAO ix, 1, 122 13, 24, 26, 29, 35, 40, 50, 55, fees, user 70, 96, 97 56, 85, 107, 108, 140-1 Fimbo, G. 67 inequality 35, 50, 114, 115, 148, Firmin Sellers, Kathryn 22, 29, 152 31 informality, economic 21, 22, 29fishing 124 30, 35, 48 food 40; security 8, 97, 123 information 18, 152, 171 foreclosure 27, 96 infrastructure 13, 96, 124 formalization, of land rights 6, 7, inheritance x, 9, 10, 23, 26, 49, 18- 20, 23-35 passim, 50, 90, 64, 74, 79, 85-7 passim, 92, 97, 138, 146, 166 121, 124, 125, 138, 139, 142-4, Fosbrooke, H. 83, 84, 86 161, 163, 164 Friis-Hansen, E. 66, 67 in-laws 112, 126-8 passim, 132, 133, 144, 159, 160 gender relations x, xi, 8-12, 32-5, innovation, technical 29 40-56, 80, 118, 138-57 passim, insecurity 45, 46; of tenure 32-5, 171-2; bias 32, 147 123, 130 gifts 74 Instutute for Liberty and Goetz, A.M. 94 Democracy 19 grabbing, land 68, 110, 112, 116, institutions xi, 10, 11, 22, 42, 43, 132 114-16 passim, 150, 152, 161, Grace, M. 110 165-6, 169, 173;

177

K2 Consult 116 Kaare, S. 84 Kameri-Mbote, P. 161 Kanji, Nazneen 27, 33 Karanja, Perpetua 32 Karlström,B. 68 Katy L. 109 Kennedy, E. 8 Kenya 2, 3, 5-7 passim, 10, 13, 20-39, 121-37, 159, 161-2, 173; Akamba 25; Central Bureau of Statistics 122; Constitution 161-2; Court of Appeal 33; Demographic and Health Survey 122; JOOF 134-5; KEFEADO 134, 135; Kinyanambo 61-82; Kombewa Division 13, 123-36; Land Alliance 10; Land Adjudication Act 26; Land Tribunal 129-31 passim; Makueni District 20-35 passim; Mufindi District Council 61, 62; NASCOP 122; Plan to Intensify Agriculture 5; Registered Land Act 21-3 passim Kenyatta, Elmont 132-3 Kidogo, Destuta 91 Kimuyu, Peter 27, 28 kinship 30, 71, 141 see also inlaws Klug, Heinz 24 knowledge 12, 75-80 passim, 112, 170-1; lack of 112, 169 Kothari, M. 46 labour 147-8, 153; division of 24, 52, 124 land, types of 25-6 landholdings 70-1, 75, 147 landlessness 5, 13, 45, 56, 93, 110, 135 Lastarria-Cornhiel, S. 4, 10, 11, 32, 172 Latin America x Lavigne, Delville, P. 4, 11 law 3, 6, 10, 11, 20, 21, 35, 40-3,

Index 47, 63, 87-8, 104, 107, 112, 113, 116-18, 121, 146, 150, 166-8 passim; customary x, 324, 48-51 passim, 63, 87-8, 103, 104, 108-11, 113, 116, 121, 122, 146, 150, 163, 165-7 passim; due process 43, 45, 90 leasing 30, 43, 49, 75, 135 legislation 3, 6, 7, 9-11 passim, 14, 41, 45, 48-51, 56, 162-70 passim, see also individual countries; international 9-10, 43, 48 Levine, Simon 3, 6, 13, 53, 10120, 150, 161, 162, 167, 169 liberalization 61, 68, 70 Lisa, Mama 72-3, 77-8 livelihood resources 44, 70-1, 121 livestock 105 loans 8, 13, 17-8, 74, 92-7 passim, 104 loss, of land 27 see also dispossession Lucie, Mama 73-4 Lugard, Sir Frederick 24 Lumande, Manuel 96 Lund, C. 5, 93

minorities 42 Mlinze, Emma 86-7, 89 Mogela, Bernhard 89 Mohamed, S. 67 Molyneux, M. 172 monitoring 43, 146, 148-9, 170 Moore, Sally Falk 30 mortgaging 13, 27, 33, 45, 54, 56, 92-7 passim Moser, C. 172 Mozambique 27 Mugisha, M. 122 Musahara, H. 138, 149, 151 Mzonga, Nepomuk Johannes 89

152 participation 40-2 passim, 49, 51, 56, 163 Patience A. 111 patriarchy ix-x patrilineal systems 2, 85, 135 Penner, J.E. 45 Peru 27 Peter O. 109 Peters, P. 4, 8 Phipps, S.A. 8 Pinckney, Thomas Coty 27, 28 Platteau, J-P. 4, 5, 26, 29, 30, 140, 141 pluralism, legal 11, 12, 19-23 Narayan, D. 70 passim nationalization 101, 102 politics x, 42 Ndonge. Bertolda 86, 92 polygamy 55, 143, 144, 164 networks, kin/family 22, 33, 71; population growth 63, 68, 84, micro-lending 28; social xi, 47, 106; pressure 4, 24, 140, 161 133, 134 Pottier, J. 140 NGOs 10, 13, 19, 51, 53, 54, 94, poverty 71, 75; reduction 9, 18, 123, 134, 149, 151-2, 171-3 35, 148; PRSPs 139, 148, 152 passim prices, land 68, 74 non-discrimination 41, 42, 47-55, privatization x, xi, 1-3 passim, 5-8, 163, 165 24, 41-2, 44, 55, 56, 96, 102-4 Nyamu, C. 162 passim, 114, 141, 147, 158-62 Maack, Pamela A. 85 Nyamu-Musembi, Celestine 2, 5, passim, 172, 173 Machunguzi, J. 122 7, 18-40, 73, 92, 103, 159, 171 productivity 6, 7, 18, 27-9 passim, Mackenzie, F. 4, 5, 12, 34 Nyamwanda, Mzee Joseph 130-1 35, 138, 147, 148 Maine, Sir Henry 24 property rights x, 7, 9-10, 13, 18Mair, Lucy P. 30 19, 21-5, 30-2, 42, 44-6, 50-5, obligations 40, 42-8 passim, 55, management, land 7, 14, 42, 45, 92, 122; customary 6, 21-5 102, 103 49, 51-5, 161 passim; marital 51-5; violation Obongo, Omullo 130-1 Manders, Jonathan 31, 32 of 121, 122 occupancy rights 4, 49, 68, 165; Manji, A. 9-11 passim, 28, 54, 93, protection of rights, clan 110; deemed 63, 67, 165; granted 96, 122, 151, 153, 168 livelihood 45; women’s 13, 34, 63, 67, 69, 72 marital status 1, 12, 76, 77 41, 43-6, 48, 51, 52, 55, 103-5 Ochoro, Awuor 127 markets, credit 8, 27, 28; land x, Odgaard, R. 64, 79 passim, 108, 115, 117, 118, 163, 7, 12, 13, 20, 29-31, 35, 45, 164 Odhiambo, Dora 126 47, 74-5, 80, 83, 103-5 passim, Protocol on Rights of Women in Ogutu, G.E.M. 130 109, 110, 115, 125, 135, 140, Africa 42, 47-8, 51 Okombo, Phelix Ochieng’ 128 161; land rights 41, 55 Okoth-Ogendo, H.W.O. 28, 30, Prudencia, Mama 75 marriages x, 32, 34, 47, 48, 51-6, purchases, land 63, 68, 71, 74, 32 63-4, 67, 77-8, 108-9, 132, 75, 86-7, 104, 108 Okuro, Samwel Ong’wen 3, 5, 135, 142-5, 164; 46, 96, 121-37, 159, 167, 169, illegal/polygamous 77, 144-5, quotas 43, 51, 163 173 149, 164 Oluoch-Kosura, W. 28, 30 Martina, Mama 67 Raikes, P. 67 Omollo, Majiwa 127 Mary A. 109 Razavi, Shahri x, xi, 7, 10, 11 Opiyo, Serfina 129-30 Masawe, J.L. 93 reallocation/redistribution, of Opyene, J. 107 matrilineal systems 2, 12, 83, 85- orphans xi, 3, 13, 71, 122, 123, land 6, 7, 19, 66, 72, 75, 106 9 passim 125-8, 130, 131, 136, 141, 142 recognition, of rights 45, 46, 50, Mbilinyi, M. 70 165, 166 ownership 11, 21, 23-4, 26, 28McAuslan, P. 4, 11, 56 reconciliation 1, 159 34 passim, 44, 49, 53, 63, 101McCall, M. 67 reconstruction 1, 159 4, 107, 113, 115, 117, 121, Mdoe, N. 70 redistribution, land 6, 7, 19 159, 161, 168; collective 153; Meinzen-Dick, R.S. 11, 32 Redmayne, A. 63, 64 communal 103, 106, 107; men x, xi, 8, 9, 33-5, 86-9 passim, reform, constitutional 161-2; land customary 103-4, 106-8, 114, 95, 109-10, 113, 122, 159, 171; 1-3 passim, 5, 6, 8, 10, 11, 24, 162; freehold 7, 101-4 passim; see also husbands 28, 35, 40-5 passim, 47, 102, joint 10, 135, 165 Merry, S. 12 159, 161, 168, 170, 173, 174 Oxfam (GB) 1; (Ireland) 45, 50 Mgale, Andreas Bernd 86, 89 registration, of land 1-3, 5-7 Mgoto, Tania 95 passim, 10, 12, 22-3, 26, 28, 32, P.A. 112 Migot-Adholla, S.E. 4, 18, 25 40, 41, 47, 49-50, 53, 62, 71-4, Pala, H.O. 5, 32, 33 migration 63, 84, 85 76, 89-92, 116, 159-61 passim, Palmer, Robin ix-xii, 1, 5, 8, 151,

178

Index 165, 169, 174; joint 32, 73, 90, 163 renting 43, 69, 71, 74, 75, 86, 91, 135, 140 rents, economic 29, 31 repayment, of loans 94-7 passim reproduction 148 research xi, 1-2 responsibilities 31, 49, 168-9 rights, human 2, 9, 40-56, 173; African Charter on 42; International Covenant on (CESCR) 41-6 passim, 51 rights, land/property ix-xiii, 1, 812, 18-39, 41-56 passim, 101, 111, 117, 123, 125-8, 138, 150 see also ownership; tenure; customary 90, 141, 163; joint 149, 159; use 4, 33, 34, 44-6 passim, 50, 133, 143, 145; women’s 8-12, 32-5, 41-2, 4755, 62, 76-120, 139-75 passim; Protocol on 42, 47-8, 51 risk 13, 94-5, 97, 153, 172 Robinson, M. 40 Roth, M. 5 Ruby A. 111 Ruth O. 111 Rwanda 3, 10, 14, 138-57, 160-1, 163-8 passim, 171; civil war/genocide 141, 142; Constitution 162, 164; Forum of Women MPs 151; Gender Budget Initiative 138; inheritance law 138, 139, 142-4, 149, 164, 171; land policy/ legislation 6, 138, 139, 142, 146-9, 163-70 passim; LandNet alliance 10, 152; Ministry of Gender Issues 151, 153; Ministry of Lands, Environment etc. 168; Profemmes Twesehamwe 151, 153; PRSP 139, 151; RISD project 143

Shivji, Issa G. 49, 67, 68 Singer, Joseph 26, 28, 31 sitting allowances 68, 72 Skogly, S. 41 Smith, S. 70 social relations xi, 47, 75-80 passim, 93 Sophia, Bi 64 South Africa x, 90 spouses 11, 34, 52-5, 86, 159, 165 see also husbands; consent 54-6, 159, 163 see also consent clauses squatters 67 succession 23, 49 Suksi, M. 40 Sundet, G. 45, 46, 50, 66, 68 surveying 160 Swynnerton, R. J. M. 5, 20

Tunisia 52 Turner, S. 3, 93 Turuka, F. 70

uenyeji 66, 69, 75-6 Uganda 3, 10, 11, 13, 101-23, 161, 162, 164-7 passim; Agricultural Policy Committee 102; Apac District 13, 105-20; Constitution 162; District Land Tribunals 114, 116, 117; Land Act (1998) 6, 11, 13, 102-3, 106, 111, 161, 164, 165; ‘lost amendment’ 11; Land Alliance 11; Land and Equity Movement 105, 117; reform, land 102, 111-18 passim; Decree (1975) 102; tenure, land 101-20 UN human rights conventions/ Tanzania 2, 9, 10, 19, 27, 28, 41, covenants 41-52 passim, 54-5 45-100, 151, 160, 162, 165, UNDP 19, 139 166, 169, 171; ‘Action to Assist UNRISD x Rural Women’ 73, 79; urban areas 32, 44, 46, 55, 67, Constitution 162, 165; Gender 90, 160, 167; peri- 90-2, 95 Land Task Force 10, 45, 54, US 21, 23-4, 26, 27, 94; USAID 55; Kinyambo 61-82; Land 19 Act/Village Land Act (1999) 6, use, land 25-6, 43, 44, 55, 66, 49, 50, 53, 54, 61, 89-92 88-9, 110 see also rights passim, 160, 162-3, 165, 169, 171; land reform 41, 45, 49-51; values, land 29, 32, 90 Law of Marriage Act 52, 54, van Donge, JanKees 93 163; National Agricultural veto, on sales 54 Policy 68; Land Policy 72, 165; villagization 61-3, 66-8 passim Policy Forum 45; ‘Purse of the Von Oppen, A. 66 President’ credit 94, 95; Uluguru Mountains 83-100 wage labourers 70, 71 taxation 19, 70, 90, 91, 96 Wambui, K. 122, 123 Teklu, Askale 27,33 wealth 68, 70, 75 tenure, land 1-13 passim, 24-6, Weber, Max 24 44, 48-50, 55, 63, 76, 84-9, 97- welfare, family 8, 9, 148 8, 140, 158-61; customary 3-13 Whitehead, A. 8, 10, 11, 32, 48, passim, 24-5, 32-5, 42, 44, 46, 146 48, 50, 56, 101-20, 161, 165-8; widows, xi, 3, 4, 13, 33, 46, 48, reform 1-8 passim, 10, 11, 24, 64, 67, 71, 79, 108, 112, 121, safety nets, social/economic xi, 28, 35, 40, 41, 45, 159, 161, 123-36 passim, 141, 142, 144, 121 168, 173, 174; state 6-7 173; guardianship/inheritance sales, land 29-31, 45, 46, 54, 56, Thea, Mama 79 132, 135 63, 68, 72, 74, 89, 90, 91, 96, Thomas, D. 8 wills 92, 135 103, 108-13 passim, 116, 117, Tibatemwa, Lilian E. 32 Winn, Jane Kaufman 27 125, 129, 135, 140, 166; titling, land x, 5-8, 18-23, 27-32 Woodhouse, P. 10 ‘distress’ 5, 45, 75, 109 passim, 34, 35, 41-9 passim, 55, World Bank xi, 7-9 passim, 18, scarcity, of land 29, 161 83, 90, 92, 96, 102, 104, 105, 19, 27, 31, 92-3, 96, 102, 148; Scheinin, M. 40 115-18 passim, 138, 166, 171; Land Policies report 7-8, 9, 92-3; security, of livelihood 41; of deeds 28, 44, 53, 92, 93, 96; World Development Report 30 tenure 1, 5, 7, 11, 20, 27, 31-2, joint 10, 52-6 passim, 135, 163, 43-4, 46, 83, 86, 89-90, 92, 171 Yahya, Margret 91 106, 123, 159, 160, 169 tontines 152-3, 172 Yngstrom, I. 5 Sellers, Patrick 22, 29, 31 traditional authorities 3, 10, 111, Young, R. 83, 84, 86 Sen, Amartya xi, 8 116, 117, 130-1 see also chiefs youth/young people 76, 78 Sender, J. 70 transactions, land 76-7, 109-11, Yuje, Colleta 134 sensitization 169-71 passim 114, 140 see also purchases; settlement 25-6, 43, 44, 83 sales Zambia x Severin, Sophia 88 trust 18; lack of 93, 116 Zuckerman, E. 139 share-farming 133, 134 Tsikata, D. 8, 10, 11, 27, 32, 48, Shipton, Parker 27, 30, 32, 34 146

179

EASTERN AFRICAN STUDIES These titles published in the United States and Canada by Ohio University Press Revealing Prophets Edited by DAVID M . ANDERSON & DOUGLAS H . JOHNSON

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Squatters & the Roots of Mau Mau 1905–63 TABITHA KANOGO

HELGE KJEKSHUS

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Political Power in Pre-Colonial Buganda RICHARD J . REID Alice Lakwena & the Holy Spirits

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Dhows & the Colonial Economy of Zanzibar 1860–1970 ERIK GILBERT

African Womanhood in Colonial Kenya TABITHA KANOGO

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Slaves, Spices & Ivory in Zanzibar

African Underclass ANDREW BURTON

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Zanzibar Under Colonial Rule Edited by ABDUL SHERIFF & ED FERGUSON

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Emancipation without Abolition in German East Africa JAN - GEORG DEUTSCH Women, Work & Domestic Virtue in Uganda 1900–2003 GRACE BANTEBYA KYOMUHENDO MARJORIE KENISTON M C INTOSH

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War in Pre-Colonial Eastern Africa RICHARD REID

Slavery in the Great Lakes Region of East Africa Edited by HENRI MÉDARD & SHANE DOYLE

The Benefits of Famine DAVID KEEN

&

This volume focuses on the impact on women’s land rights from the contemporary drive towards the formulation and implementation of land tenure reforms which aim primarily at the private registration of land. It is solidly grounded in the findings from seven case studies, all based on in-depth qualitative research from various regions of Tanzania, Kenya, Uganda and Rwanda. ‘This is an exciting new collection from an impressive generation of young scholars. Their focus on Eastern Africa makes great sense, geographically, historically and thematically, for the countries discussed in this volume have all undergone similar land reform and privatization processes in recent years.’ – Robin Palmer in the Foreword. Birgit Englert is Assistant Professor and lecturer in the Department of African Studies at the University of Vienna, Austria; Elizabeth Daley is an independent land consultant Contents: Foreword by Robin Palmer – Introduction: Women’s land rights & privatization by Birgit Englert & Elizabeth Daley – Breathing life into dead theories about property rights in rural Africa: lessons from Kenya by Celestine Nyamu-Musembi – ‘Go home & clear the conflict’: human rights perspectives on gender & land in Tanzania by Ingunn Ikdahl – Gender, uenyeji, wealth, confidence & land in Kinyanambo: the impact of commoditization, rural-urban change & land registration on women’s land rights in Mufindi District, Tanzania by Elizabeth Daley – Changing land rights & gendered discourses: examples from the Uluguru Mountains , Tanzania by Birgit Englert – Falling between two stools: how women’s rights to land are lost between state law & customary law in Apac District, Northern Uganda by Judy Adoko & Simon Levine – Struggling with in-laws & corruption in Kombewa Division, Kenya: the impact of HIV/AIDS on widows’ & orphans’ land rights by Samwel Ong’wen Okuro – Women & land arrangements in Rwanda: a gender-based analysis of access to natural resources by An Ansoms & Nathalie Holvoet – Afterword: securing women’s land rights by Elizabeth Daley, Birgit Englert with others Cover: Woman in Gitarama, Rwanda, carrying a clod of earth on her head as she works on a project to build irrigation canals for rice fields © Martin Roemers/Panos Pictures

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