- The overarching objective for drafters should be to promote equality and security of land and housing tenure for women and widows. The Committee on the Economic, Social and Cultural Rights in its General Comment No. 4 notes that tenure encompasses “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.” More specifically, the FAO defines land tenure as the “the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land.” Thus, legislation and policies should promote security of tenure—as the broadest approach to addressing the underlying rights of land and housing access, ownership, use, leases and other rights—for women and widows. Ensuring security of tenure for women and widows will enable them to make decisions on how best to use the land for its resources and long-term sustainable investment, more efficiently use land, and grant them greater access to economic opportunities.
- Security of tenure should include enforceable protections against evictions and arbitrary restrictions of land rights; remedies; a reasonable period of rights appropriate to both the land’s use and the user, and; legal capacity to bequeath, lease, or grant land for the short or long term. (See: UN-HABITAT, Secure Land Rights for All, 2008) Tenure encompasses many different forms, from a freehold that grants the owner the fullest rights to non-formal tenure systems, such as squatting.
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Incremental and Progressive Reforms
- Drafters should realize that security of tenure may not require automatic titling and that, in fact, individual titling may not be the best way to protect women. In some situations, individual titles, as opposed to common, public or communal ownerships, may diminish a woman’s current land use rights unless extra protections are implemented. Titling unregistered land could terminate other rights women hold over the property, drive up land prices and lead to expensive claims. See: UN-Habitat, Policy Makers Guide to Women’s Land, Property and Housing Rights across the World, 2007. For example, in Gambia, an irrigation scheme handed control over communal lands to male-headed households. This measure deprived women of their usufruct right (the right to use property owned by another) to grow their food on this communal property; their agricultural labor was instead diverted to helping the males with their land needs. (See: International Food Policy Research Institute, Promising Approaches to Address the Needs of Poor Female Farmers, 2008) A better approach would be to prioritize land allocation to those who have productively worked on those lands and are often women.
- Rather than impose automatic and immediate freehold titling, UN-HABITAT and IFAD recommend that states adopt a flexible approach to fit the context and institutional capacity of the country and community. An incremental, long-term approach uses existing and traditional land tenure systems as the foundation to build upon and cultivate land tenure reform. Instead of creating a new system at once, the incremental approach is a process using different grades of tenure depending on the political, social, traditional and customary factors, institutional resources, and gender considerations. Some possible tenure options include: providing some degree of habitancy rights to unauthorized settlers, individual titling, intermediate tenured options, alternative forms of ownership and tenureship, such as women cooperatives, including women strengthening rights of use, occupancy and development, integrating tenure policy with planning and infrastructure provision, and formalizing customary rights and building on customary tenure systems. Drafters should adopt measures to address, monitor and evaluate these projects’ impacts over time with a view toward developing more comprehensive long-term reforms. (See: UN-HABITAT, Secure Land Rights for All, 2008; IFAD, Land Tenure)
CASE STUDY: UN-HABITAT has documented several examples of tenure systems as an alternative option to automatic titling:
- In Kenya, the Nairobi City Council established a Temporary Occupation Licenses system, which distributes public land to a licensee for productive use. The licensee pays an annual renewal license fee and may erect semi-permanent structures on the land. Licensees have used the land for revenue-building activities as well as residential use.
- In the Philippines, the president has issued proclamations to protect squatters from eviction from public lands. This assurance has had the added benefit of motivating residents to make household and area improvements.
- Columbia has passed laws that offer a series of intermediate “stepping stone” options to promote secure and accessible housing, such as “Declarations of Possession,” “buying and selling rights for future use,” and “communal tenancy.” These options promote the tenure rights and offer protections against eviction. Also, Columbia has laws to help promote an adequate standard of living in the absence of a formal tenure system; laws ensure that all nationals can receive basic public utility services as long as they can demonstrate habitation in the homes and ability to pay for the service.
See: UN-HABITAT, Secure Land Rights for All, 2008.
Customary Land Systems
- Drafters should consider whether to formalize or register customary land rights. Such a determination should be made in consultation with women, widows, civil society and taking into account the current context. Advantages of formalizing a registration system for customary land rights include: an increase in security of tenure on these lands, documentation for landowners for credit purposes, and facilitation of land planning and administration. On the other hand, registration of customary land could terminate the informal use rights of women, exclude her from future rights should her marital situation change, and raise questions over whose name appears. Projects that fail to consider women’s customary land rights risks “jeopardizing those rights and alienating women, who often withdraw their labor in response.” (See: International Food Policy Research Institute, Promising Approaches to Address the Needs of Poor Female Farmers, 2008; Komjathy, Katalin and Susan E. Nichols, Women's Access to Land - FIG Guidelines, International Federation of Surveyors)
- In some cases, drafters may decide to build upon customary systems in land tenure reforms. Any such reforms must involve the participation of women, widows and community leaders, incorporate gender concerns and identify major tenure patterns in customary law. For example, Ghana is gradually shifting management of customary lands from the government to customary systems. Customary Land Secretariats were established to help address the requests from new residents for housing plots. The secretariat provides a structured land distribution system, and they document land rights, conduct land surveys, drafts leases, administers financial operations and facilitates registration. Compensation is provided to those who are deprived of their farmland as part of the allocation. Part of the income from land funds community infrastructure. (See: UN-HABITAT, Secure Land Rights for All, 2008)
Case Study: In the Teso region of Uganda, the NGO Land and Equity Movement in Uganda (LEMU) builds upon Uganda’s Constitutional recognition of customary rights to community and family lands to enhance protection for women’s tenure rights. The group worked closely with Iteso leaders over a period of years to document customary tenure rights and land management practices in Iteso clans. The result is a regularly updated booklet that is available to community members, clan leaders, and to the Ugandan judiciary which specifies Principles and Practices to provide for rights over customary land, procedure for sale of land and to provide for other land-related and land incidental [sic] matters in Teso. Designed to assist customary authorities and formal courts in making determinations about land conflicts, the Principles and Practices highlight the detailed ways in which Iteso regulate land holding, land use, and land transfers. The guidelines contain specific provisions about the rights of Iteso widows, for example:
I) All widows whether living alone or with a male partner from within the clan become heads of their families upon the death of their husbands with full rights to manage her land and the land of her children who are minors.
m) The clan of the deceased husband shall appoint a man to protect the land rights of a widow from trespassers but the land rights of the widow shall not pass onto the officer appointed to protect the widow.
This documentation process – to be distinguished from the codification processes that were prevalent for several decades throughout Africa and largely discredited – is based on long-term community consultation and consensus-building and accounts for the flexibility and adaptability of customary law. Despite the fact that this process focuses on protection for women and girl children, it has not ended all discriminatory land tenure practices. However, it is a positive step in recognition of the realities that customary systems govern a substantial proportion of women’s land rights across the globe and that customary systems can change over time, through participatory and consultative processes, to become more protective of women’s rights.
- Drafters should take into account the needs of women and widows when administering state-owned land. Women and widows must be consulted throughout the development, implementation and evaluation of land allocation policies. Drafters should take into account the context and customary practices when formulating a framework. For example, designating a “household” as the beneficiary unit for land redistribution can exclude women where men are seen as the traditional heads of households or where policies fail to encompass households with female heads or headed jointly. Policies should recognize women, irrespective of marital status, as a specific beneficiary group.
- Drafters should ensure that appropriate credit and loans are made available to women in these cases. For example, in cases where the state retains ownership of the land and grants individuals with usufruct rights, women and widows may face greater challenges than men. Where indigent women have little access to credit, the lack of title to the land they farm means they have no collateral and therefore little recourse to loans. This is particularly true in areas where women require a male relative to access credit and loans.
Botswana: Policies must take into account and address all needs of target beneficiaries. Botswana offered indigent people Certificates of Rights to provide them with security of tenure and avoid the complexities of registration. Under this scheme, the government owned the urban land and granted certificate holders the right to build a home on it. Granting registrants limited rights also impacted their economic capacities; women registrants were unable to use their home as collateral to access credit nor could they lease rooms to garner income. (See: Komjathy, Katalin and Susan E. Nichols, Women's Access to Land - FIG Guidelines, International Federation of Surveyors)
Zimbabwe: Legislation should ensure that women are equally able to benefit from land allocation programs by taking into account their particular needs and the context. Drafters may need to promulgate quotas, special policies and administrative mechanisms to promote women’s equal access. Zimbabwe’s fast track land reform involved taking land from white farm owners and redistributed it to other Zimbabweans. The process was plagued with violence, favoritism and corruption. The distributions were based on the head of households, who tend to be men. Where the household was headed by a widow, she could be the recipient of land if she had young children and local leaders concluded she was physically able to handle 12 acres. Notably, the policy did not apply this precondition to male heads of households. If, however, the local leaders determined she was too elderly or her children were of adult age, she was to receive only 2.5 acres. Divorced women were excluded based on an expectation they would leave the land and live with their father or family according to custom. See: Bill Derman, After Zimbabwe’s Fast Track Land Reform: Preliminary Observations on the Near Future of Zimbabwe’s Efforts to Resist Globalization, 2006. Furthermore, the policy lacked the infrastructure and design necessary to ensure equal access for women. Although the government announced a 20% quota for women beneficiaries of the program, it failed to establish administrative mechanisms to achieve this objective. See: Human Rights Watch, Zimbabwe: Fast Track Land Reform in Zimbabwe, 2002.
Promising Practice: In Ethiopia, where all land is state-owned, the government issued Land Certificates to approximately six million households with the intent of increasing tenure security, advancing women’s rights to land and promoting sustainable use of land. Local Land Administration Committees, with at least one female member, helped execute land registration and certification in villages. Certificates were to list the names of the husband and spouse, their pictures and maps. Land committees should have greater female representation, be required to undergo gender-sensitive training, and have a sub-village presence. Overall, however, Ethiopia’s land certification process was low-cost, fast, and transparent; women generally believed these joint certificates improved the socio-economic situation. (See: UN-HABITAT, Secure Land Rights for All, 2008; UN-HABITAT, Land Registration in Ethiopia: Early Impacts on Women Land Registration in Ethiopia: Early Impacts on Women, 2008; See: International Food Policy Research Institute, Promising Approaches to Address the Needs of Poor Female Farmers, 2008)
Drafters should consider the intersection of gender with other factors, such as ethnicity, that increases vulnerability. In a report about violations against the Oromo in Ethiopia, interviewees described the relocation of ethnic groups into Oromo land, intraethnic fighting, and destruction of the Oromo land base. Reports by interviewees reflected a perception that the government is relocating individuals by ethnic group within Ethiopia to the detriment of the Oromo people. The relocation of Oromos disrupts their traditional land base, creates real and perceived resource scarcity, and exacerbates environmental problems like drought. Interviewees reported that the Ethiopian government has taken land away from Oromo farmers, particularly around urban areas, thus displacing farmers, often leaving them on the streets. Drafters should take into account ethnic and other factors that may further impact women and widows’ access to security of tenure. (See: Human Rights in Ethiopia: Through the Eyes of the Oromo, The Advocates for Human Rights, 2009)