Women and land: Challenges of empowerment

RIGHTS to land for women have been enshrined in law in Zimbabwe, but the practice of law in reality often has not delivered women’s empowerment and rights. This must change, but how? Zimbabwe has a range of progressive laws aimed at gender equality on the statute books — notably around marriage, inheritance and succession. These feed through into land legislation and administration, and are recognised in the new Land Commission Bill.

These include the recognition that leases and permits should recognise both spouses as land holders.

However, law in practice may not uphold these ideals. Biases in administrative procedures, competing legal orders in a pluri-legal system, and the resort to “tradition”, and the lack of awareness of rights all combine.

Women did gain access to land in their own right at land reform.

This was at higher levels than exist in the communal areas, with around 15-20 percent of all plots in A1 schemes being registered to a woman, compared with typically around five percent in communal areas. Most such female land holders were widows, divorcees and single unmarried women.

The possibilities of women’s empowerment in land access through the land invasion and occupation process around 2000 has been widely documented.

However, since land acquisition, there has been a reversal of some of these gains, and women have lost out in new allocations due to the patriarchal practices of local administration systems, now combining “traditional” approaches (via chiefs and headmen) and land offices.

Many lobby groups argue that women must be allocated land. Yet, women often recognise the value of gaining access to land and other resources in the context of the marriage contract, making addressing gender equity within joint arrangements just as important.

Indeed, a focus on the allocation of plots for women, while essential for some, may miss the point for the many — and divert attention from many other opportunities to protect wider rights and entitlements.

While current statutory law notionally provides the basis for women’s empowerment, in practice it often falls short — and this differs between A2 (medium-scale commercial farms) and A1 (smallholder) land.

A number of high profile cases have occurred in relation to A2 farm land, where divorced women have contested the rights of their husbands to hold all the land following separation. Yet these have also shown the limits of the law in practice.

This is despite the fact that, in cases of contests over A2 land, where large areas of land are concerned and the case comes to court, there are procedures in law and administrative practice that can be used to address gender inequalities.

Even with joint registration, and in the absence of “traditional” customary legal frameworks operating in these areas, the rights of women may not be upheld, either by formal courts or administrative procedures, due to the pervasive patriarchal assumptions around land ownership.

This needs to be challenged through the development and documentation of case law and the sharing of effective practice that upholds women’s rights within both the legal profession and within the administrative arms of the Ministry of Lands.

In A1 land, however, the enforcement of statutory law is more challenging. Permit regulations from 2014 again specify the rights of women, encouraging the joint naming of spouses. The regulations specify rights in relation to divorce, and around polygamous marriage.

However, in practice, very often women’s names do not appear on permits (or their predecessor offer letters). There is no legal requirement for this, as this appears to be a discretionary provision in the implementation process.

The point of land registration is an important moment for specifying rights and ensuring joint naming moves from optional to mandatory, but as disputes are dealt with locally within a pluri-legal system, even this move will have to be backed by wider cultural change in a deeply patriarchal traditional and administrative system.

Land reform areas in Zimbabwe are state land, where nationally agreed legislative provisions — around women’s rights, for example — apply.

Formally, the State can overrule patriarchal institutions, and can have a role in enforcement.

In seeking progressive change in land related policy, such as around women’s empowerment, state ownership is important.

The State, unlike in customary land, can take back land and also specify the rights over land for both men and women, without any intermediation by traditional councils, chiefs, or a poorly defined “community”.

However, in A2 farms, with considerably larger land areas and more capitalised systems of production, there is greater value at play, and the opportunities for the state to override may be less, although formally the state can still intervene.

Clarity on roles and responsibilities and a clear administrative framework for land is therefore essential.

To help push administrators and the legal system to recognise women’s rights to land, joint naming of spouses should be a legal requirement, in my view.

Equally any wider audit and registration process needs to include a gender audit. As with past public awareness campaigns around marriage and inheritance (such as the 1993 film “Neria”, written by Tsitsi Dangarembga and starring Oliver Mtukudzi), a similar effort needs to be mobilised during land audit and registration.

There are real challenges for realising rights in practice, as progressive legislative moves may be undermined by patriarchy in both local communities and administrative systems.

This requires reform of administrative processes, the guaranteeing of joint naming on land holding documents and public awareness campaigns.