AWD Report 2020
6.3. Trends in Legal, Policy and Institutional Reform 6.3.1. Legal Reforms The importance of agriculture as a component of national economies, as a primary resource and source of African men and women’s livelihoods, is recognised in many constitutions. During the Decade, several countries took steps to enshrine the right to food and provide equal access to land in laws and constitutions. The revised Constitution of South Africa requires relevant organs of the State to provide the South African Human Rights Commission with information on measures taken towards the realisation of the rights in the Bill of Rights concerning, among others, food (Article 184).1921 Concerning land rights, in 2019 the Supreme Court of Eswatini upheld a widow’s rights not to be arbitrarily deprived of her property and dignity.1922 While the final decision in Dlamini v Prince Chief Gasawa Ngwane resides with the Regional Administrator, the case is considered significant in that it is an unprecedented intervention into Swazi customary law by the Court.1923 Also, the case highlights the uncertain nature of women’s rights in a pluralistic judicial system even though the Eswatini Constitution guarantees the equal right to land. Many countries have adopted laws that promote the right to land (DR Congo) or the obligation to register land (Cabo Verde) and on food and protection of plants (such as in Comoros.) Legal reforms in Kenya, Liberia, Republic of Congo and Rwanda promote the rights of women and seek to eliminate gender discrimination. Land Registration Acts No. 3 and No. 6 govern all land (public, private and communal) in Kenya. Act No. 6 also requires, among its guiding principles, the elimination of gender discrimination in law, customs and practices related to land and property, and the equitable distribution of land.1924 In Rwanda, Article 4 of Law No. 43 on Governing Land of 2013 recognises the equal right to land and prohibits all forms of discrimination, such as by sex, concerning access to land. Notably, it also states that the right to land for a man and a woman who are lawfully married shall “depend on the matrimonial regime they opted for.”1925 Law 21 of 2018 establishes the rules for the occupation and acquisition of land in Republic of Congo. Article 19 specifically addresses the rights of women in access to land, noting that, “customs and traditions tending to suppress or restrict the right of women to occupy or acquire customary land, land or land in urban and peri-urban areas are deemed to be null and void.”1926 Under the Deeds Registry (Amendment) Act 2012 of Eswatini, married women may register property or land in the names of both spouses.1927 Law No. 034-2012/AN of 2012 on agrarian and land reorganisation in Burkina Faso states that developments must take into account principles of equity and gender.1928 In addition, countries have taken steps to empower women by strengthening and protecting women’s right to land. Burundi’s 2011 revision of its Land Code affirmed the principle of non-discrimination.1929 The Land Act of 2010 of Lesotho allows women to register land in their name1930 and grants women control of the productive resources1931 and stipulates that women can choose to be married in a community of property and, thus, obtain a joint title deed.1932 Moreover, the Land Act of Lesotho expressively states that it prevails over contrary customary law.1933 Of note, Mali’s Land Act of 2017 guarantees gender equality regarding ownership of land and aims to give women and youth 15% of all arable land.1934 In the same vein, the 2018 Land Act of Togo states that, “women have equal access to land as men.”1935 The Revised Botswana Land Policy of 2019 allows married women equal ownership of land alongside husbands, thus giving everyone an equal right to a plot, on both state and tribal land. Under the previous Land Policy, only unmarried women or the wives of men who were not landowners were eligible for land rights, and consequently it discriminated against married women, widows and single mothers, who were left without access to land.1936 In Botswana, the government allots deeds for land; according to a government audit in 2020, 53% of the people on the government land allocation waiting list are women.1937 Benin, Burkina Faso, Côte d’Ivoire and Gambia have adopted legislation to support rural women’s economic development. In Burkina Faso, Law No. 034-2012/AN declares that sustainable land use planning and development, among others, are governed by the principles of gender, respect for human rights and equity.1938 Article 6 of Law No. 2013-01 in Benin declares that the state and local and regional authorities must ensure equitable access to land for all parties and respect for gender in access to land.1939 In Gambia, the 2010 Women’s Act states that the government must take into account the particular problems faced by rural women and their key role in the economic survival of their families. The State shall also ensure that rural women participate in every step of development projects and have access
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