May 5, 2010

Women and Land

Poverty often manifests itself through the lack of access and control of resources, especially land. In communities that are largely agrarian this felt most acutely by the landless. A subset of this group, women, shoulder a larger burden due in part to the inequality that persists with regards to land ownership and property rights. Women are only 1% of landowners worldwide.

Many women are excluded from owning, inheriting and controlling property, and find themselves evicted from their home when they divorce, are widowed or abandoned. This can be attributed to various prevailing traditions and customs and is patently seen in Zambia, and other areas of sub-Saharan Africa.

This exclusion from property ownership is more prevalent in rural areas (though not restricted there) where customary law is most influential. Customary laws are largely unwritten but are very influential. They are based on patriarchal traditions in which men inherited and largely controlled land and other property. Women have very few rights and are placed in subordinate positions.  

This is most evident in the question of inheritance. “Inheritance is a fundamental issue with regard to how wealth is transferred within a society, and it directly relates to the protection of a woman’s housing and land.” In most ethnic groups in Zambia the deceased man’s family retains all inheritance rights – often leaving widows and their children disinherited of their property.

The practice of “property grabbing” is widespread and is a manipulation of customary law. It assumes a husband’s sole ownership of matrimonial property, and upon his death the ownership passing to his family – not the surviving spouse and/or children. Past practice was the family of the deceased would “inherit” and assume responsibility of property, the widow and children often through a male relative. This was done to protect and care for the widow and her children. However, today the responsibility of caring for the widow and her children has been abandoned but not the claim to property – hence the distasteful practice of property grabbing.

Women who lose their property lose their economic base often descend into poverty. They struggle to support their children and often cannot meet their subsistence needs. This affects children too – the loss of status, the ability to attend school regularly, and the security of having a home. 

The 1989 Intestate Succession Act was passed to deal with the issue of inheritance for those who die without a will. It is designed to provide for the surviving spouse, children (born inside and outside of wedlock) and other dependents. More specifically, a surviving spouse is entitled to receive 20% of the deceased's estate, parents 20%, other dependents 10%, and children an equal share of 50%. 

However, it is important to note that the Intestate Act holds for land held under statutory law. “Family property” and land held under customary tenure are excluded and rights to inherit rest with the deceased man’s family. In a country where almost 80 percent of land is customary land (land held by communities identified on the basis of tribe, residence or community of interest), this exclusion in effect denies women the access to the one resource they need the most to make it in agrarian communities.

The inherent weaknesses of the above mentioned Act, the inadequate training of judges, magistrates, police and a general lack of understanding of their rights among women make it difficult to make a significant change in the application of equitable inheritance rights. Furthermore, among the women that do know their rights, there is often fear of retribution from the husband’s family for asserting their property rights, and the time and money it costs to pursue such a case can be prohibitive.

Moving Forward

It is recommended that through the ongoing constitutional reform process the following language from the Mung’omba draft constitution remain:
“Women and men have an equal right to inherit, have access to, own, use, administer and control land and other property,” and
“Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited”. 
If a constitution is not adopted in the near future:
  • Amend Article 23 of the current constitution that forbids laws that discriminate on the basis of sex, but at the same time excludes from this provision, personal law (matters such as inheriting property) and the application of customary law.
  • Amend or repeal the provisions in the Intestate Act that exclude the inheritance of customary and family land/property.
Legal reform is obviously one way of addressing the issue of inheritance and access to land and property but can only be effective if people are aware of it and attitudes and beliefs are changed - this is probably the biggest obstacle.

NGOs such as Eastern Province Women Development Association (EPWDA) and Law and Development Association (LADA) are already at the forefront of providing legal education in rural communities. They are working to spread legal awareness and train community-based paralegals to give legal advice and provide sensitisation training to community members, leaders and chiefs. 

0 comments:

Post a Comment