Human Rights of Women: National and International Perspectives

21. Using the African Charter on Human and Peoples' Rights to Secure Women's Access to Land in Africa

Chapter 21 Using the African Charter on Human and Peoples' Rights to Secure Women's Accessto Land in Africa Florence Butegwa Introduction Insofar as there exists a de jure or de facto significant difference 4n opportunities for access to land in any country, and that differenceis based purely on whether one isa man or a woman,there isdiscrimination . Such discrimination violatesinternational human rights law if itis unable to pass the international standards of "objective and reasonable justification"1 or of reasonable relationship of proportionality between the means and the aim sought.2 In many African countries, there is both de jure and de facto discrimination against women in opportunities to acquire, hold, and deal in land. This chapter explores possibilities and difficulties of using the African Charter on Human and Peoples' Rights to secure women's access to land. The chapter is divided into four sections: an overview of the situation regarding women's access to land in Africa; the international principle of nondiscrimination and its relevance to women's access to land; the African Charter, possibilitiesand constraints; and some strategies for the future. Women and Access to Land In Africa Access to land in many African countries is governed by a dual system of law. Customary law and statutory law apply alongside each other often raising situations of internal conflict of laws and general confusion in case lawand in popular understanding of the law.The diversity of customary and legislative frameworks for land ownership in Africa 496 Florence Butegwa do not render themselves to easy combined analysis. Therefore, for purposes of this chapter, the situation of women regarding access to land is presented here with special reference to Tanzania and Uganda. In both countries, land isowned by the state and individualscanonly acquire rights of occupancy and usufructuary.3 The technical difference between usufructuary rights and ownership as understood in western legal theory is not material in this chapter. Both confer rights of control and power to deal in the land and the interest of the holder may be transferred by will, under laws of intestacy or through commercial transactions. Tanzania has attempted to codify its customary law rules and provides some insights into land ownership among matrilineal societies in Africa. In both countries, access to land ismainly through "family transfers," direct allocation from a state agency or through a commercial transaction. The situation ofwomen under each method is dealt with separately. Family Transfers and Women's Access to Land The term "family transfers" is used here to refer to three methods of acquiring land. The first is the case where a man transfers land to his son when he is ready to marry and is quite common in the rural areas, where land is not registered. The transfer is accomplished by simply showing the son that part of the land on which he can establish his new home. Daughters are never beneficiaries of this type of land acquisition. The second covers the rare instances where a woman isgiven a share of her husband's landed property on divorce. In Uganda, legislation and courts do not regard a married woman's domestic duties as contributions toward the accumulation of property by her husband. A woman will only share in the distribution of matrimonial property if she can prove actual monetary contribution toward the purchase.4 In Tanzania, however, the Law of Marriage Act provides that property acquired during the subsistence of the marriage shall be presumed as belonging to both parties.5 Courts are given wide powers when called upon to divide matrimonial property between the parties on divorce. They may take into account, inter alia, "the contributions by either party in money, property or work towards the acquisition of the assets ."6 Courts have differed in their interpretation of this provision. In Hamid Amir v. Maryam Arris, a woman's claim to a share in the matrimonial property wasrejected, and the judge stated: With due respect I'm unable to agree because the wife runs a household, washes, cleans, cooks and saves money each month, this should be termed as Using the African Charter to SecureWomen'sAccess to Land 497 her contribution andjoint effort towards acquisition of property during subsistence of marriage.7 In Bi Hawa Mohamed Ally Sefu, however, the Tanzania Court of Appeal held a different view: It isapparent that the Actseeks to liberate married women from such exploitation and oppression by reducing the traditional...