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Unearthing the truth: How discriminatory laws and social norms lead to insecure land rights for women and undermine sustainable development

Desertification and Drought Day, marked on 17 June 2023, shined a spotlight on women’s land rights under the theme “Her land. Her rights”Key fundamental questions arise: Do women still face barriers in accessing their land and property rights? If so, what factors underlie the issue? More importantly, can there be solutions?

Throughout the years, States have, through mutual consent and via treaty agreements, put in place frameworks to safeguard women’s land and property rights both regionally and internationally, which has resulted in the adoption of numerous human rights instruments such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) (1979), which in Article 14 provides that states are obliged to ensure equal treatment of men and women in land. Article 16 of CEDAW states that land tenure reform must ensure women’s property rights during marriage, at divorce and in the event of her husband’s death. The Optional Protocol to the African Charter on Human and People’s Rights on Women’s Rights in Africa (Maputo Protocol 2003) recognises women’s right to land and environmental resources in Article 15. The African Charter on Human and Peoples’ Rights (ACHPR) (1981), in Articles 2 and 3, provide for non-discrimination on any ground.

Despite the existence and recognition of all these human rights instruments worldwide, many States in Africa, as in most parts of the world, still experience challenges when it comes to enforcing women’s land and property rights. Whilst the barriers that prevent women from accessing, using, and controlling the land are vast and complex, the underlying barriers, still more often than not, include the existence of discriminatory laws and or inadequate regulations, lack of effective implementation at both national and local levels, including lack of legal knowledge and persistent discriminatory practices and cultural attitudes in countries where legal mechanisms are in place. States have been and continue to promote agribusiness investments,  regarding agriculture as a solution to poverty without proper safeguards and regulation of commercial agriculture in place. Compounded with the lack of political will or effort to protect land rights, communities that have lived on land for generations are being displaced unlawfully without proper due process and compensation when their land is allocated to commercial farms.

In Zambia, for instance, a group of Lala families from the Ntenge Muchinda Chiefdom of Serenje are on the verge of displacement following an order of eviction and the allocation of their customary land to a commercial farmer without their knowledge, consent, or adequate compensation. The women were unaware that their customary land had been converted to State land until commercial farmers started arriving. This is one of many cases around the world that show that without proper safeguards, commercial agriculture projects, whether as small-scale or massive investments by investors on agricultural land, may negatively impact on local communities, especially women and girls, leading them to increased poverty.

As the competition for land significantly increases as a result of the encroachment of indigenous and communal land by extractive industries, the result is the displacement of communities without due process from large-scale land acquisitions, unsustainable farming practices that is eroding soil and environmental challenges like land degradation and desertification. According to the United Nations Environment Programme (UNEP), land degradation affects about 33 per cent of land surface globally and has through erosion removed approximately one-third of the world’s arable land, with Africa being the most severely affected, and women and girls the heaviest hit. As climate change impacts continue to intensify around the world, women, particularly those living in rural areas and disproportionately reliant on land-based resources for their livelihoods, are increasingly becoming more vulnerable to climate change, especially in cases where they have weak land tenure.

Discriminatory national and customary laws, traditional gender roles and societal gender norms which prevent women from accessing, using, and controlling the land,  reinforce gender inequality and expose women to poverty, hunger and sex work and gender-based violence. Climate change-related economic stress may push women and girls into forced and child marriages. When combined with a lack of adequate disaster measures, natural disasters resulting from climate change may move women and survivors into crowded emergency shelters and temporary housing where they might be subjected to violence. Together these barriers hinder the country’s ability to fulfil the Sustainable Development Goals (SDGs) set by the 2030 Agenda for Sustainable Development, which in Goal 1 recognises women’s land rights as essential to ending poverty; Goal 2 calls on States to end hunger, improve nutrition and promote sustainable agriculture and Goal 5 calls for the achievement of gender equality and women empowerment.

States still need more effective implementation measures at both national and local levels to deal with discriminatory laws and practices that prevent women from owning and accessing land. However, some countries have made significant progress. As more threats and pressures such as climate change, land degradation, natural disasters, and desertification, continue to escalate, more than ever, States have to comply with their international human rights obligations to ensure equal land and property rights for women.

States have to exercise due diligence to protect and guarantee women’s rights to equality, take guided steps in ending discriminatory laws, and social, cultural or religious norms that hinder women’s enjoyment of land and property rights, include more women in policy-making decisions that relate to the land, take appropriate measures to prevent commercial investors, both public and private corporations and powerful local elites including family members from preventing women in accessing, using, inheriting, controlling and owning land. In addition, States must take necessary measures to ensure that women are informed about their land rights and have access to justice or dispute resolutions in enforcing them.

By Agnes Mondlane (Researcher at the Southern Litigation Centre)