7-Env Ecology - IJEEFUS - Land - ANUMAKA, IJEOMA - Uganda

International Journal of Environment, Ecology, Family and Urban Studies (IJEEFUS) ISSN 2250-0065 Vol.2, Issue 3 Sep 2012 93-111 © TJPRC Pvt. Ltd.,

LAND ACQUISITION AND USE: KEY FACTOR FOR EQUITY, EQUALITY AND WOMEN EMPOWERMEN IN AFRICA-UGANDA EXPERIENCE ANUMAKA, IJEOMA BLESSING Senior Lecturer, Kampala International University, Uganda

ABSTRACT This paper attempts to discuss women land rights, acquisition and use as a key factor to equity, equality and empowerment in economic development of our society.

It examines the plight of women and the impact of ignorance of law, poor representation of women and mistrust of men in respect of women’s inheritance of land and property specifically in NdorwaEast, Kabale, Uganda.

KEYWORDS: Land rights and use, Equity, Equality, Women empowerment INTRODUCTION Equity denotes women having equal access to social, economic, political and cultural opportunities as men. It does not mean that women and men are the same, but rather that their similarities and differences are recognized and equally valued.

Equality is a process of being fair to both men and women .In order to be fair, measures must be taken to compensate for historical and social disadvantages that limit women from operating on a level playing field. This may require a redistribution of power and resources. Equity is thus a means while equality is the result.

Women Empowerment refers to the process where women are facilitated so that they are able to interpret their own situation (social, economic and political), identify the desired needs and make efforts to change in their lives, family and community positively i.e. being able to take control of their social, economic and political destiny. Ugandan women face a wide range of challenges including discriminating lower social status, lack of economic self-sufficiency and greater risk of HIV/AIDS. In Uganda, gender discrimination means that women must submit to an overall lower social status than men .This reduces their power to act independently, become educated, avoid poverty and/or escape reliance upon abusive men.

Women’s problems of access to land translate to limit their capacity to provide food and welfare for their household. In Uganda, both statutory and customary laws govern access to land. Customary laws

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emerge from unwritten social rules derived from shared community values and traditions. Customary laws limit women’s rights on land to secondary rights mainly derived from their membership in patriarchal households (WLSA, 2001). This law underpins patriarchal system of traditional authority to reinforce patriarchal values, which disadvantage women and place them to subordinate position in society (Walker, 2001).

EQUITY, EQUALITY AND WOMEN EMPOWERMENT Marriage has been primary means of getting access to land under customary system of tenure. In sub-Saharan Africa, unmarried women have little access to land because, they are not allowed to inherit property in most patrilineal societies with married women getting better access to their husbands’ land.

Security of marriage, thus, becomes major requirement for security of tenure (Davison, 1988). On the other hand, marriage as an institution and family structures are becoming more and more unstable especially by impacts of HIV/AIDS in sub-Saharan Africa (Chinkin, 2001). Customary laws give sons exclusive right to inherit land and other property whereas wives and unmarried daughters have the right to be maintained. Pre-existing customary norms in some patrilineal societies in Africa used to allow widows continued lifetime rights on their marital land which passes on to male heirs after their death (Nizioki, 2002).

However, this practice is not necessarily adhered to as land gained value.

Widows are becoming vulnerable being forced off their deceased husbands’ land by their in-laws or by their sons. Customary laws generally sanction male authority over women. Men control household land because, community customs and traditions support land allocation to male. Under customary laws all property acquired by the spouses except personal goods belong to the husband.

It is contended that in discussing women’s relations to the natural resource base especially land, there is a need to consider issues of access and control, relations to tools of production including aspects of technology and knowledge, and the areas of power and social structures. Usually existing structures and decision-making machineries and processes tend to determine access and control.

These powers and decision-making structures include those, which operate at the local community level such as, village heads, chiefs, headmen and other male kin, i.e., husbands, uncles or brothers. At the next level are national power structures, which put in place policies and legal provisions guiding access to and control over land and other factors of production.

These legal structures are either customary or statutory. More so in most parts of pre-colonial Africa, women’s use rights in land were usually inferior to those of men. However, in matrilineal systems, women, like men, had usufructuary rights in land. These rights could be exercised when they were single, during marriage, upon divorce or widowhood and women could inherit land and pass it on to their children.

Married women whose husbands stayed in the wife’s village were able to acquire and own land over which

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their husbands had no rights or control. This land was obtained from their matrikin, although husbands could also give them plots of land.

Institutions that govern land rights are intricately embedded in the economic, political and social environments and in particular in the gender system. The distribution of land rights is clearly gendered and is frequently associated with the institution of marriage. In many parts of sub- Saharan Africa, women’s access to land and use rights are determined by marriage. By marrying a member of a clan, women can use the clan’s land but when the marriage link is severed, so are these rights.

The institution of levirate, by which a widow is to marry a brother or other close relative of the deceased upon his death, ensures her continued rights to use the land of the clan.

While frequently interpreted as a social safety net that ensures widows the possibility to continue to exercise use rights of clan resources, allowing for their children’s food security, primarily an institution preserves male property rights. In this system, women can never own the land and will always never carry them to other clans (Tsikata, 2003).

In the Luo of Western Kenya, a woman who loses her husband should be “inherited” by another man, frequently the elder brother of the deceased or, in his absence, by younger brothers. If there are no brothers, the late husband’s family decides on an appropriate “inheritor.” The property of the deceased, including his land is then inherited along with the wife and children. Strong social and economic pressures impel women into being inherited. Widows cannot restart agricultural chores until they are inherited. Women who refuse to be inherited become outcasts and those who have done so attest to enormous difficulties to survive.

They lose access to land and in-laws strip them of any other productive resource to reinforce the idea that out of the clan structure they will not be able to make their living. Widows are told that if they are not inherited, they will be in for a number of misfortunes, including that their children will not be able to marry. Male relatives refuse to pay for medical care and funerals of no inherited women. Not being allowed to own land, inheritance merely grants widows access to land and permission to carry out the different parts of the agricultural cycle. As ownership is transferred to the inheritor, many feel that they can be denied access more easily than in marriage and that their sons may not receive their due share of land. In Luo culture land is given to sons but not to daughters as these are seen as belonging to the clan into which they will marry (Villarreal, 2002).

The type of marriage results in different outcomes regarding women’s property and inheritance rights. In Nigeria, for example, three types of regimes: common law, Moslem Sharia (religious law) and customary law have widely different outcomes for women’s status both during marriage and in the event of its ending (Emery, 2005). Many countries have taken action to adopt international instruments or to formulate law which is non-discriminatory regarding gender and other socio-economic issues. However,

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more often than not, these provisions are not enforced. In particular, in the rural areas, customary law continues to take precedence.

International law has framed gender equality as part of global concern on human rights and basic freedoms for social, economic and political rights. These include claims on access to and control over productive resources like land. The Universal Declaration of Human Rights adopted in 1948 (UDHR, 1948) and international laws and conventions developed afterwards have a number of provisions to address gender equality.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibits any distinction, exclusion or restriction based on gender that harms or nullifies women’s human rights and fundamental freedoms (UNCEDAW, 1995:3). It establishes women’s rights on par with those of men to political, economic and social participation and benefit.

Articles 7-8, 10-13 and 16 of CEDAW have comprehensive coverage and oblige signatory states to achieve these goals. The Beijing Declaration in its Article 35 states that governments should ensure women’s equal access to economic resources including land, credit, science and technology, vocational training, etc. as a means to further the advancement and empowerment of women (UNCEDAW, 1995). The United Nations High Commissioner For Human Rights passed a resolution on women’s equal ownership access to and control over property and land (UNHCR 2003/ 22).

African Protocol to the African Charter on the Rights of Women in Africa adopted by the then Organization of African Unity (now African Union) called upon all African states to eliminate discrimination against women and to ensure women’s rights as set in international declarations and conventions (OAU, 2003). It demanded African governments to combat all forms of discrimination against women through appropriate legislative and institutional measures. The protocol includes a number of articles on women’s social, economic and political equality and gives particular emphasis to the rights of widows and divorcees.

UN agencies and international organizations play significant roles in supporting women’s equal rights on access to and control over land. FAO is the responsible UN agency to lead international efforts to overcome hunger. FAO draws special attention to rural development and facilitates debate forums on land policy issues. FAO established ILC (International Law Commission) that focuses on women’s access to land and gender relations in land tenure. ILC runs ‘Gender Relations in Tenure Project’ on women’s rights to land which focuses on key issues regarding women’s access to land (Adams, S. 2001).

In 1986, the United Nations Declaration on the Right to Development was declared. It established the right to development as a universal and inalienable right, and an integral part of the fundamental human

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rights (Chinkin, 2001). Earlier in 1979, the convention on the elimination of all forms of discrimination against women was adopted by the General Assembly, and ratified by the Government of Uganda in 1985.

Article 14(2)g of the Convention states that state should ensure that women have the right to have access to agricultural credit, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in resettlement schemes (FAO,2006). By virtue of being signatory to several human rights treaties like the ones indicated above, the government of Uganda has an obligation to respect, protect and fulfill the human rights of all its citizens.

The Beijing Platform for Action (1995) identifies the gap between the existence of rights and their effective enjoyment (Chinkin, 2001:14). The implications of this gap include among other things, the feminization of poverty and women’s limited access to resources. Uganda has ratified CEDAW and the Convention on the Political Rights of Women. Uganda has also signed the Treaty of the Southern African Development Community (SADC), the SADC Declaration on Gender and Development and its addendum on the Prevention of Violence Against Women and Children, which all acknowledge gendered rights as fundamental human rights.

AN OVERVIEW OF DIFFERENT DIMENSIONS OF GENDER INEQUALITY Dimensions of capability Economic participation

Social participation

Political participation

Women’s human rights

Form of gender inequality Gender discrimination in access to and control over resources such as land, property, agricultural inputs, extension services, employment and a wide range of livelihood opportunities.

Gender discrimination in access to essential public services such as education, health, water, energy and social security and protection, community and family support.

Gender discrimination in participating in decisionmaking process like political institutions and policy– making organizations ,consultations, and the rights and responsibilities of citizens African women do not always participate in public and private decision– making spheres to bring their priorities and needs into the agenda.

These are human rights violations that women face simply by virtue of being a woman. Women suffer various human rights violations that men do not, such as being deprived of schooling, forced marriage and violence against women.

IMPACT OF WOMEN INSECURITY ON LAND ACQUISITION AND USE Women in Uganda form 52% of the population of the country, and 86% of them depend on land for their livelihood and that of their families. Women also constitute 70% of all agricultural labour and are the

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primary managers of homes in communal areas. Article 14 (2)g of the CEDAW asserts that: ‘state parties shall take all appropriate measures to ensure that women have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in agrarian reform as well as in land resettlement schemes.

There is no enabling legal framework to ensure equality in the redistribution of land. Colonial land tenure arrangements that discriminated against women have been perpetuated in the present day through the Communal Land Act 1998 and the Traditional Leaders Bill 2010. Under these laws, women in communal areas, where most rural Ugandans live, are still expected to depend on men for land, denying them tenure rights. Even though article 21 of the Uganda Constitution stipulates that every citizen has an equal right to ownership of property, another Constitutional provision under customary law allows discrimination against women on ownership of property of their deceased spouses.Article26(1)of the constitution states that every person has the right to own property, either individually or in association with others and article 31(2) states that Parliament shall make appropriate laws for the protection of rights of widows and widowers to inherit the property of their deceased spouses WLSA(1994).

Given the fact that customary law places heavy emphasis on land rights being enjoyed by the head of the household who in the context of Ugandan customary law is generally considered to be a male, women’s land rights are not adequately protected. The fact that women lack access to and control over land makes them unable to acquire credit, marketing facilities and excludes them from decision- making powers over agricultural production activities and benefits.

Gender inequalities are pervasive across many dimensions of societal life including households, social, economic and political institutions in Uganda. The UN recognized that gender inequality resulting from women’s low status persist in all societies although the extent of the gap varies across countries, cultures and time. The UN presented the burden of this inequality as follows: “Women, who comprise half the world's population, do two thirds of the world's work, earn one tenth of the world's income and own one hundredth of the world's property” (UN, 1980).

World Bank study in regional patterns of gender inequalities in basic rights and access to and control of resources reflect that disparities exist all over the world and no woman in the developing regions has equal rights with man (World Bank, 2001). Gender inequality is difference in rights and privileges between women and men reflected in legal statutes, customary laws and community practices. These differences are reflected in marriage, inheritance, property ownership and management, household and community activities and decision-making. Deprivation of women’s land right through customary practices regarding land inheritance and property distribution after divorce is a challenge in patriarchal societies in Uganda.

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Men remain central heirs and holders of land rights in patrilineal communities. Women’s direct access to land is often limited in traditional societies. Women have indirect access to land in terms of use rights acquired through kinship relationships and their status as wives, mothers, sisters or daughters (Davison, 1988).

However, these use rights may not grant enough security for women when family structures break due to various reasons. Breach in marriage is a serious issue in women’s access to and control over land because it makes women become more vulnerable. The gendered face of poverty in Uganda makes gender an issue in women’s access to and control over land. The outcome of a study carried out by UNDP in Uganda reflected that poverty has a gendered face and that women are poorer than men (UNDP, 2011). This UNDP study carried out on selected countries of sub -Saharan Africa showed the GDP per capita figures for women were less than those of men. Comparative figures in 1998 were US$1,142, per woman and US$2,079, per man (UNDP, 2011).

International human rights instruments related to women’s property ownership and inheritance revealed that denial of these rights make women’s land rights a human rights issue. Gap exists between international human rights provisions and national legal provisions because national laws of property rights in Uganda are influenced by customs, attitudes and perceptions (Benschop, 2002).

The interaction of statuary laws and community customs and traditions will determine how women’s legal rights on land are actually realized in practice in Uganda. Gap between legal systems and customary practices is obvious and nature of the gap defines the extent to which women’s rights are neglected or promoted in access to and control over land in communities. Women’s equal access to and control over land is an issue of equity, poverty reduction, food security, sustainable development and even human rights. Therefore, these issues as discussed above make gender a critical issue in access to and control over land.

STATE AND CUSTOMARY TENURE Land tenure refers to terms and conditions under which land and other related resources are held and used. A tenure system reflects who holds what land and under what conditions. Land tenure systems vary from community to community and are influenced by historical development of each community. Gender relations (Moyo, 1996) influence terms and conditions under which rights to land are acquired, retained, used, disposed or transferred.

Gender disparities in rights constrain women’s choices in many aspects of life and limit their opportunities to participate in economic activities of society. Access to land and land tenure relations are critical as most communities depend on land to ensure food security (FAO, 1997).

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Access to land is a means to access membership in agricultural associations, to access agricultural inputs, credit, etc. Lack of access to rural land is an obstacle to agricultural productivity and to increase rural women’s income, as they cannot access these resources without holding land and securing tenure. Gender power relation has serious influence on land tenure systems because it determines roles and statuses of women and men in society (Chinkin, 2001).

Intra-household gender relations reveal gender power imbalances (Denzin, 1995). These relations are reflections of inequalities in access to resources, intra household distribution of income and decisionmaking power. These inequalities are directly related to levels of household poverty and food insecurity.

Ensuring property rights is considered as one mechanism to enhance women’s bargaining power at household and community levels. In Africa, predominance of the patriarchal system induces gender power relations, which downgrade women to inferior position. The patriarchal system influences socio-economic and political structures, government policies and strategies and this has impact on accessing, managing and controlling resources.

Uganda, like many African countries, bases its land administration on a dual system, namely, state and customary tenure. Administration of land in rural areas is largely based on the latter, implying that traditional norms and cultural beliefs are the main determinants of decision-making. Under customary tenure, for instance, land is communally owned and is normally allocated to male heads of families. Although land acquisition and usage including land under customary tenure - has been liberalized in Uganda, this has not provided new opportunities for rural women.

Cheater (1992) suggests that , the ‘traditional’ land tenure that emerged from colonial era cooperation between male chiefs and elders and colonial officials had maintained women in secondary and eroding tenure status in Uganda. Many argue that in traditional tenure, widows had "no right to inherit and are therefore without even the theoretical protection provided to divorcees by the Matrimonial Causes Act.” According to the Land Acquisition Act 1965, land can be acquired by the state for public purposes and for matters incidental thereto connected therewith. Article 26(2) of Uganda constitution of 1995 empowers the state to acquire private land in a compulsory manner if taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health. Land titling started in the late 1950s and 1960s. Pilot land titling and registration program tenure system in Uganda was initiated in the Kigezi district in 1958(Kisamba Mugerwa et al, 1989).

From this perspective, the land question would be about correcting colonial injustices. However, while colonial injustice are being corrected, post colonial injustices are emerging and these have manifested in the discrimination against black women by black men. Land policies have been developed but as Moyo (2000) argues that, there has been inconsistent implementation of these policies by the government of Uganda. This would explain the poor implementation of the Uganda National Land policy2011, which

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sought to address gender in the Uganda Land reform program but with little fulfillment. It touches on historical injustices and colonial legacies, contemporary issues arising from such legacies and land use and management issues.

The Uganda National Land Policy whose vision is sustainable and optional use of land and land– based resources for transformation of Ugandan society and the economy has the goal of ensuring efficient, equitable and sustainable utilization and management of Uganda‘s land and land–based resources for poverty reduction, wealth creation and overall socio- economic development. It seeks to re-orient the land sector in national development by articulating management and co-ordination between the land sector and other productive sectors in the economy to enhance the contribution of the sector to the social and economic development.

Writing about contemporary trends regarding tenure and gender in sub -Saharan Africa, Birgegard (1993) remarked that women are increasingly being marginalized. He adds that in traditional indigenous tenure systems, “women are with few exceptions ascribed inferior tenure rights to men” (Birgegard 1993, 24). While men have primary rights, women have secondary rights. Men get access to land through their lineage or clan and women usually get access to land through their husbands, who are obligated to allocate land to their wives. Women do not inherit land rights because they hold only secondary rights.

To understand and abolish women’s marginalization, it is essential to examine the process by which gender characteristics are defined, and gender relations are constructed (Connell, 2000).

The patriarchal society socially constructs roles for women and men, ascribed to them based on their sex. Gender roles depend on a particular socio-economic, political and cultural context (Chinkin, 2001).

These roles are not natural, but just social constructs that a society produce and ideologically conscientise its members to believe in. The construction of gender involves the creation of gender hierarchies that include power relations between men and women. This deferential allocation of power to men and women determines their access to resources, be they political, social or economic (Chinkin, 2001).

Politically speaking, men have more power and participate more than women do. Socially, they have higher status and respect than women, whilst economically, they have more access to resources than women do. Obrien (2000) argues that patriarchy is structured, ideological and historical. She argues that the family plays a role in ideological reproduction, socialization of young children, the reproduction of the social and ideology relations of male supremacy Birgegard (1993). The postcolonial Government of Uganda retained the historical basis for gender inequality in access and control of land, which is customary law and practice.

This ensures that women access land through their relations with men. Customary law gives land rights to men on their own right or on behalf of the family. This gives them the duty to make allocations to their wives, daughters and other female relatives, but the outcome depends on their choices.

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The material base of patriarchy is embedded in men’s control over women’s labour power. This control is maintained by excluding women from access to essential productive resources (Connell, 1999). It is common in Africa that land and property in the household is controlled by men who give access to women and the young. Customarily, women are not considered heirs to the land or property of their husband or father. In instances where widows are left with children after the death of their husbands, they can continue to use the parcels of land. However, those without male children, their situation might be different. The land might revert to their husbands’ relatives (Jacobs, 1999).

Poverty is predominantly rural given that 70 per cent of Uganda’s population resides in rural areas.

However, the majority of those who are poor are the women, the children and the elderly. These, in other words, are trapped in poverty through a plethora of factors that include traditional and societal values that keep women and these other groups at the lower echelons of society, as well as restricting them to the work that is attached less value (Kisamba Mugerwa et al 1989).

Patriarchy plays a major role in women’s impoverishment through alienating them from the means of production. Thus, given the importance of land in food security, there is a need to address the socialcultural barriers to women access to land. By failing to do that, the gender and class characterization of poverty and landlessness will continue to prevail in Uganda, as well as other African countries. In other words, poverty in Uganda is predominantly feminine as well (Kisamba Mugerwa et al, 1995).

The UNDP (1995) noted that out of 3 billion people living in absolute poverty, over 70 percent were women. The main causes of women’s poverty were identified as structural adjustment programmes, armed conflicts and drought. These have affected women more than men, and resulted in the feminization of poverty. However, FAO also attributes the concentration of poverty among others to their limited access to production resources like land, extension services, water, labour and technology.

Customary tenure is associated with three problems: •

it does not provide security of tenure for land owners;

•

it impedes development because it does not allow the advancement of land markets, through which, those who need land for development can acquire it; and

•

it discriminates against women, and does not accord them land rights.

The Land Act 1998 (Cap. 227) and the Constitution 1995 have been criticized for their attempts to formalize customary tenure thus destabilizing and undermining its progressive evolution. Despite these attempts, it continues to be: •

regarded and treated as inferior in practice, to other forms of registered property rights, denying it opportunity for greater and deeper transformation;

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•

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assessed as lesser to other tenures that have titles for proof of ownership in courts of law in the administration of justice;

•

converted to freehold before it attains the totality of the bundle of rights inherent in all other registered tenures that are held in perpetuity; and

•

disparaged and sabotaged in preference for other forms of registered tenures, denying it the opportunity to progressively evolve.

MAILO TENURE Mailo tenure and “native” freeholds, separate the ownership of land from occupancy or ownership of developments by “lawful or “bonafide” occupants. This creates conflicting interests and overlaps in rights in the same piece of land. The definition of rights accorded to bonafide occupants in the Land Act (Cap 227) and all the subsequent amendments, lack legitimacy on part of the landowners.

The Land (Amendment) Act 2010 grants statutory protection to the bonafide and lawful holder and his or her successors against any arbitrary eviction as long as the prescribed nominal ground rent is paid.

However, the nominal ground rent provided for, as opposed to economic rent is largely ignored, creating a land use deadlock between the tenants and the registered landowner, leading to conflicts and many times evictions. The property owner-tenant relationship as legally regulated is not amicable or harmonious and is non-operational.

FREEHOLD TENURE The incidents of freehold tenure, which are standard, include the conferment of full power of disposition and the compulsory registration of title in perpetuity. It is clear that public policy regards freehold as the property regime of the future, to the extent that current law provides for conversion from leasehold tenure or customary tenure to freehold.

This stipulation is contentious in some areas of the country. Where it has been tested, it has been expensive, as it requires substantial resources for adjudication, consolidation, and registration. In some instances, freehold poses challenges to public regulation since its covenants are not conditional.

LEASEHOLD TENURE Leaseholds promote sophisticated forms of concurrent ownership such as condominiums and timeshare arrangements, thus open land to a much larger range of users and use functions. The 1995 Constitution (237 (5)) provides that any lease, which was granted to a Uganda citizen out of former public land, may be converted into freehold. Since customary tenure is now legally recognized with rights in perpetuity, the conversion needs to be reviewed so that:

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•

leaseholds issued to individuals who held land under customary tenure before the 1995 Constitution; and

•

those accidentally granted to customary owners in respect of their holdings after the 1995 Constitution, automatically convert to freehold.

However, leaseholds granted out of former public land without any customary rights should not be converted to freehold, since the land was not customarily owned at the time of grant of the lease and should continue to run as leaseholds, with the citizens of Uganda keeping the reversionary interest.

INTEGRATING STATUTORY AND CUSTOMARY TENURE SYSTEMS IN POLICY AND LEGISLATION Customary tenure is recognized by the1995 Constitution that provides that all citizens owning land under customary tenure may acquire a certificate of customary ownership. It further provides that such land may be converted to freehold land ownership by registration.

The Land Act 1998 operationalises the reforms brought about by the constitution by providing that any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land. In addition, and in line with the Constitution, it provides that any person, family, community or association holding land under customary tenure on former public land may convert the customary tenure into freehold.

Immediate title can be obtained under the regime in the same way as other tenure without having to go through the conversion process. Further still, certificates granted under customary ownership may be leased, mortgaged and pledged where the customs of the Community allows.

Finally, the Land Act 1998 enables holders of customary tenure, who wish to use land as a group, to establish common land associations to manage and protect their interests in the communal land. The communal land association may be reinforced by the establishment of a common management scheme for any of the following reasons: grazing and watering of livestock; hunting; gathering wood fuel; and building materials and other natural resources that any member of the community may gather for use of his or her family.

These provisions for common land associations and common management schemes are an attempt to accommodate the rights of communities that practice communal tenure. Therefore, in the Ugandan context,

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much has been achieved both at the constitutional and legislative level to integrate customary tenure, including communal ownership and statutory tenure, notwithstanding the lack of a policy in this regard.

IMPACTS It is clear that imposing private tenure practices face resistance from men because they martial individuals, corporate and public institutional defenses against women roles in arbitrating land in a market economic context.

Aiming at improving private land holdings, colonialism is castigated to have institutionalized and worsened patriarchy’ male domination culture’ that undermines women effective rights to land in Africa.

Under colonialism, supreme position over statutory and religious laws over customary land tenure system institutionalized patriarchy and the systematic reduction of women land rights in Africa. This was done through statutory laws that declared some land to be crown, which could only be accessed through the colonial government that the postcolonial government has retained. Broadly speaking this intended to promote private tenure systems and for that matter, law ownership benefited limited rights of specifically wealthy African women to land.

In other instances, colonialism recognized religious norms and institutionalization or made them law, that is from polygamy under sharia in Moslem territories and monogamy in Christian territories.

Whereas Christianity did not seek to change the land laws, there insistences on monogamy as the only acceptable form of marriage has had far reaching effects especially on women ability to own land. The monogamy that the church promotes is not based on equal partnership but on the subservience of women to men. The revelation from this complex interaction of forces is that most of the challenges to women land rights arise as much from the traditional land management systems.

STATUTORY AND CUSTOMARY TENURE This form of tenure is the most derided for its denial of women’s rights to land in Africa. Contrary to expectations, however, the recent land tenure reform in Uganda actually re-invigorated customary land tenure. By definitions, customary land tenure is a system where some social authority or local political entity exercises administrative rights over land (Lawry 1988). An important aspect of customary land tenure is the principal of first occupancy giving overriding special rights to the first settlers in a particular area (Adeyoyu 1976).

Individuals have right to land usually in the form of usufruct rights by virtue of their membership in a particular social group. Bruce (1988) by virtue of hierarchies in many societies can be defined by common descent or common residence, or by a combination of both common descent and residences. He points out that usually, a customary land tenure system applies significant group control, reflecting some group interest over land that is apportioned for the relatively exclusive use of individuals or families of the group.

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Consequently, most customary land tenure systems tend to prohibit customary users from selling land to outsiders. Customary land tenure systems are often verified as negative by perpetrators of private tenure as a bottle neck to land reform that seeks to open land to individual rights to transfer ownership (Tripp, 2003: Kobusingye 2002) but others highly idealize the customary ways of indigenous people in dealing with the denial of women’s land rights (Shiva 1988).

Under the statutory laws in Kenya and Uganda, inheritance rights have been given recognition, but these laws still do not include equal inheritance rights for widows and their application is still quite limited.

In Tanzania, a statutory uniform law on inheritance is urgently needed. In all three countries, customary laws and tradition still play an important role and often block women from owning landed property. Uganda has made an effort through its 1995 constitution, which prohibits discrimination on ground of sex, while the village land act of 1999 prohibits the application of customary law if it denies women lawful access to ownership, occupancy or use of land.

CONCLUSIONS AND RECCOMENDATIONS Land is a vital asset for millions of Africans and a critical resource for development and can provide economic security, incentives to protect the environment, increased social status and especially for women.

However, in African context, the poor mostly have rights of land, forests, or pastures when resources are held as common property meaning that women’s rights to land are more resilient with communal ownership settings. However, outside communalism, redefined customary laws while protecting common property can often prevent women from owning and inheriting land.

New approaches to improve land rights should provide legal advice reforms that reflect customary tenure to ensure that the rights of women groups are safeguarded. To do so, the new approaches to improve land rights should provide legal advice to inform the women of their rights.

It should also provide guidance to banks and women to affordable and flexible lending rules to accommodate group rights.

Most important of all is to recognize that there is no one–size-fits-all solution to reforming land rights in Africa. Innovative approaches to property rights can achieve equity, protect the environment and improve the lives of the poor.

Much more theoretical and action research has to be conducted to delve deeper into the dynamics of culture and land rights in Africa and the place of women’s rights therein. The issue of culture as an impediment to promoting women’s land rights is pertinent but often poorly articulated causing an impasse that needs to be debunked by critical research.

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Cultures are pervasive and manifest themselves differently in places, e.g. the different land tenure policies. Culture then should not be essential in the negative. By getting at the bottom of these dynamics, we should yield lessons for way forward in improving women’s land rights.

Implementing land reform in itself does not add up in the absence of institutionalizing mechanisms to back the reforms with building capabilities of beneficiaries to place to intended use and outcomes. Hence revamping customary tenure and then leaving the judiciary and local traditional structures in the dark on how to implement their roles was a mistake that needs to be addressed.

Almost 80% of Uganda’s land is under customary ownership, and it is acknowledged that customary law for most tribes in Uganda gives women considerable rights, far more than state law that allows free hold system. The challenge is that, customary law is always not being applied. There are many reasons for this including the fact that many of the customary authorities (clan leaders) do not know their own convention any more.

In addition, there is much needed reform of the judiciary to enhance capacities to handle the land conflicts while at the same time paying attention to specific plight of women. The evidence suggests problems like gross understanding, ignorance about customary law in practice, ignorance of tenure system and land rights, encumbrances in accessing, using and benefiting out of courts, which among others need to be addressed. As a result, court roles are being usurped and misused by lower level government structures.

Besides reforms of the systems, the state has to facilitate implementation and enforcement to work through integrating the customary justice system so that courts can supervise and hold the clan system to account, facilitate procedures for appeal against the clan judgment but ensure the enforcement of judgments if there is no appeal There is need to bring parity into regional legal reforms such that there is correspondences in working towards equitable and effective land tenure regimes in East Africa. According to UN HABITAT (2003), existing legislations in the three East African countries ranks Tanzania’s new land laws as the most elaborate and contains most provisions on women’s equal land rights.

Tanzania is the only East African country to have included presumption co-occupancy in its legislation. In Uganda, only a few provisions related to women’s land rights were included and a clause on spousal co-ownership is added. In Kenya, a growing number of women have acquired land through cooperatives or land buying companies.

In general, most women in Africa do not have the means to buy land or houses. Under the statutory laws in Kenya and Uganda, the inheritance rights have been given recognition, but these laws in Kenya still do not include equal inheritance right for widows and their application is till quite limited. In Tanzania, a statutory, uniform law on inheritance is urgently needed. In all three countries, customary laws and traditions

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still play an important role and often block women from owning landed property. Uganda has made an effort through its 1995 constitution, which prohibits discrimination on grounds of sex, while the village land act of 1999 prohibits ownership, occupancy or use of land.

Civil society efforts (activism) should go beyond the assumption that modern tenure is pro-women’s rights while customary tenure system is anti-women’s rights. It is important to reflect on Tripp’s (2003) observation that while the most dramatic changes in land tenure reform today is that, for the first time since pre-colonial period, states are giving legal recognition to existing African tenure regimes, which are being treated on par with the freehold/leasehold systems. Ironically, at the very time that these gains are being won in the name of the rural poor, the pastoralists, women and the landless, African women have mounted new movements to eradicate customary land tenure practices and fight for the rights of women to be able to inherit , purchase and own land in their own names.

Feminist lawyers working with these movements have argued that customary law in the present law context has been used to selectively preserve practices that subordinate women. Rather than seeing customary land practices as a basis in which to improve women’s access to land, they are advocating for the rights–based system that improve women’s ability to buy, own, sell and obtain title on land.

Concerted efforts should be made to educate the masses that land is life, but denying women land is to limit its potential. People should be clear about their cultural rights to land and that women are central to land management, its productivity and sustainability but should first have the equal rights in order to fulfill these roles. In articulating advocacy for women’s land rights, both modern and traditional authorities over land should be respected and supported to deliver their best.

This is crucial because a contemporary traditional land tenure system such as the revamped customary land tenure in Uganda can be more adoptable, efficient and productive than a single land tenure system created out of the historical accident of European physiocracy. Thus, even if a government opts for a policy of individual land title and freehold as the basis of a modern land tenure system, it can still consider how to build the new policy on the well-tested community based traditional land system. Hence, the policy makers who are building new systems should consider the operational principles behind the traditional ways, which have been developed and tested over a long period.

Finally, those who decide land allocations should have particular cultural understandings of the role of women in society. Moreover, wider gender disparities in economic and political power need to be addressed. For that matter, state justice system on its own will never be able to defend the rights of all women. Women land rights will not improve until attitudes towards customary law have been changed both within government and in the distant world of academia and NGOS, government proactive about improving the situation and policy based evidence not on preconceptions.

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