Helen Dancer is a senior lecturer in law at the University of Brighton and consultant for the Future Agricultures Consortium. She is the author of Women, Land and Justice in Tanzania (James Currey 2015).
The ‘land rush’, large-scale agricultural commercialisation and land investment have taken centre stage in policy discourses on land in Africa in recent years.[i] At the same time, in many communities small-scale agriculture and local customary systems of land tenure continue to endure.
These systems are resilient in the face of national policies and laws aimed towards land tenure formalisation and the commoditisation of land. This resilience stems from their nature, as systems which are flexible, evolving and embedded in local social relations. However, these social ties also form the power relations that underpin gender inequalities concerning ownership, access and control over land.[ii]
This is a critical issue from the perspective of women’s interests in land, on a continent where pressure on land is increasing and customary tenure relations are being crystallised through statutory registration schemes.
Experience from Tanzania
In Tanzania, high demand for land in peri-urban and rural fertile agricultural areas has resulted in sharp increases in its commercial value and a great incentive to sell.
In areas of population pressure on land, poverty and the local economic climate have provided a catalyst for land conflicts and legal disputes on various scales. In some areas entire villages have been dispossessed of their land for large-scale land investments and land has been taken without compensation.[iii]
At the individual household level, in areas of land scarcity, widowhood or divorce can lead to some women losing their land to other more powerful family members. Sale of family land without knowledge or consent is also a particular problem. This illustrates the interconnectedness of the wider political economy and household.
Those who are in a vulnerable social position face the greatest risk of losing their land, or having a legal claim to land brought against them. Many such legal claims are brought by or against women.
Women’s claims to land
Women, Land and Justice in Tanzania explores women’s claims to land in practice. The book is based on a year of ethnographic fieldwork, mainly in Arusha, northern Tanzania – a region where there has been a high number of land conflicts and legal disputes throughout the colonial era to the present day. The book traces the progression of claims from their social origins, through legal processes of dispute resolution to judgment.
Taking the social nature of women’s claims to land as the starting-point, it discusses the extent to which women are realising their interests in land through the legal system. The book analyses the obstacles and pathways that women face, and the role of social, legal and political actors in processes of justice.
Land laws in Tanzania
Tanzania’s 1999 Land Acts are widely regarded as among the most progressive land laws in Africa in terms of promoting women’s land rights. Courts are required to give effect to local customary laws, subject to overriding provisions concerning gender equality.
However, in a country where land tenure practices continue to follow patrilineal principles in many areas, an important question is how the apparent tension between customary law and gender equality is being negotiated in social and legal contexts. In the book, I consider how women access justice, how they fare at different levels of court, the evidence that counts, and the kinds of laws and norms that are applied in practice. I also draw wider lessons for women’s access to land and access to justice.
Maasai homestead, Arusha, 2009 (© Helen Dancer)
Families and the law
One of the key findings from the research is the importance of designing laws that address the issues surrounding gender and land tenure as a whole.
The Land Acts of 1999 were an important landmark in the progressive realisation of women’s property rights in Tanzanian law. However, they also represent a missed opportunity for a more fundamental reconfiguration of laws concerning gender equality and land tenure, particularly inheritance of land.[iv]
Instead of focusing on the lived realities of Tanzanian families and the inseparability of marriage, succession and land tenure for many ordinary men and women, the architecture of the legislation was largely based upon the priority of developing land markets and formalising property interests. The relative lack of attention to the issues surrounding the connectedness of family and land in practice has resulted in inconsistencies between various laws and the splitting of family land disputes across different court systems.
Small-scale coffee farm in the foothills of Mount Meru, Arusha 2009 (© Helen Dancer)
Favouring male inheritance
Over the last twenty years all of the East African countries have introduced new land laws and constitutional reforms. The primary focus has been on the formalisation of land rights, strengthening of administrative systems and promotion of land and agricultural investment.
Some countries, notably Rwanda, go further than others in the scope of recognition of women’s land rights. However, customary laws that favour male inheritance still endure in most East African countries, despite gender-progressive reforms in other areas.
Tanzania is the last of the East African countries to reform its constitution, and a referendum on the proposed new constitution is anticipated later this year. The new constitution includes an article enshrining women’s equal rights to land, thereby giving constitutional strength to the statutory provisions that already exist in the 1999 Land Acts.
At the same time, in recent years, the Tanzanian High Court has been unwilling to use the current constitution to strike out gender-discriminatory parts of the written customary laws of inheritance.[v] To date, there has also been a lack of political will to reform such customary laws through statute, despite recommendations from the Law Reform Commission of Tanzania.[vi]
There is considerable social tension, as well as inconsistency between land, marriage and succession laws in Tanzania, particularly concerning female inheritance of land.
The UN Committee on the Elimination of Discrimination against Women has recently declared that such discriminatory laws should be repealed.[vii] This would be a significant step in terms of establishing consistency in gender equality provisions across related areas of law. However, as pressure on land continues to increase, women’s land rights will not be secured by legal change alone.
In my book, I explore the significance of social power relations and the roles that various local and professional actors play in realising women’s interests in land and access to justice in practice.
Equal rights provisions in constitutions and statutes represent an important legal and political commitment. However, their realisation in practice requires social recognition as part of the everyday norms and practices of individuals and their communities.
A special offer discount of 25% is available on the hardback edition of Women, Land and Justice in Tanzania until 31 December 2015 (offer price £33.75/$60 + p&p).
Visit the publisher’s website www.jamescurrey.com and quote 15828 when ordering. An African paperback edition is also available from booksellers within Africa.
[i] Hall, R., I. Scoones and D. Tsikata (eds) (2015). Africa’s Land Rush: Rural Livelihoods and Agrarian Change, (Woodbridge, James Currey).
[ii] Whitehead, A. and D. Tsikata (2003). ‘Policy Discourses on Women's Land Rights in Sub-Saharan Africa: The Implications of the Return to the Customary’, Journal of Agrarian Change 3(1-2): 67-112.
[iii] Askew, K., F. Maganga and R. Odgaard. (2013). ‘Of Land and Legitimacy: A Tale of Two Lawsuits’, Africa: The Journal of the International African Institute 83(1): 120-141; Rwegasira, A. (2012). Land as a Human Right: A History of Land Law and Practice in Tanzania, (Dar es Salaam, Mkuki na Nyota).
[iv] McAuslan, P. (2013). Land Law Reform in Eastern Africa: Traditional or Transformative? (Abingdon: Routledge).
[v] See the Communication by E.S. and S.C. to the UN CEDAW Committee; note vii, below.
[vi] Law Reform Commission of Tanzania (1995). Report of the Commission on the Law of Succession/Inheritance; (2009). Review of Customary Laws in the Legal System of Tanzania.
[vii] Views of the Committee on the Elimination of Discrimination against Women under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (sixtieth session) concerning Communication No. 48/2013 submitted by E.S. and S.C. State party: United Republic of Tanzania.