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Customary Land (3)

Unfortunately, I could not find specific data on the percentage of women who have obtained title deeds under customary ownership. The figures I was able to get are all from the FAO database and primarily relate to agricultural land: http://www.fao.org/gender-landrights-database/data-map/statistics/en/?sta_id=1164.

According to the agricultural census from 2002, 19.7 percent of agricultural holders were women and 80.3 percent were men. The agricultural holder is the person who makes the major decisions regarding resource use and exercises management control over the agricultural holding

Of total agricultural land owners, 45.2 percent were women and 54.8 percent were men in 2013 (LSMS-ISA 2012-2013). The agricultural landowner is defined as the legal owner of the agricultural land, but the indicator may not necessarily reflect documented ownership certified by a legal document.

Of total household agricultural land, 16 percent is owned by women and 44 percent is owned by men; 39 percent is owned jointly by women and men (LSMS, 2010-2011,[1] Doss et al. 2015)[2]

While the legal framework generally upholds women’s rights to land, in rural areas patriarchal practices predominate whereby men are de facto heads of households and have greater rights to land than women. The law is still weak in regard to women’s inheritance rights to land, and inheritance practices discriminate severely against women (FAO GLRD, country study).

Under the Village Land Act, seven-member Village Land Councils must be comprised of at least three women. The Village Land Council has a minimum quorum of four members, at least two of whom must be women. The Act provides that the nine-member Village Adjudication Committees, tasked in part with safeguarding women’s interests, must be comprised of at least four women. Five members are required for a quorum; at least two of which must be women (FAO GLRD, country study).

The Land Act of 1999 (Part XII) provides the legal framework for shared tenure. The Act recognizes two forms of shared tenure, joint occupancy and occupancy in common. Joint occupancy can only be created among spouses and exists when land as a whole is occupied jointly under a right of occupancy or lease. This means that: (a) there can be no disposition without agreement by all occupiers; (b) the joint occupiers—while alive—can only transfer their interest to the other joint occupier(s); and (c) when a joint occupier dies, interest vests in the surviving occupier (or occupiers, in which case jointly) (FAO GLRD, country study).

With occupancy in common, each occupier is entitled to an undivided share in the whole. The implications are that: (1) any occupier in common needs the consent in writing of the other occupier(s) before he or she can transact his or her interest to another person, but consent cannot be “unreasonably” withheld and (2) when an occupier dies, his or her share becomes part of the estate and his or her heir inherits the land. The legal presumption is that spouses hold all land that is co-occupied and used by both (or all) as occupiers in common, and the presumption of co-occupancy for spouses applies to granted rights (certificate of occupancy) and customary rights (customary certificate of occupancy). Co-occupancy is not presumed, under the Land Act, to apply to land that belonged to one spouse prior to the marriage (FAO GLRD, country study).

The Law of Marriage Act prohibits one spouse from alienating his or her interest in the matrimonial home (including associated agricultural land allocated by a husband or wife to his or her spouse for exclusive use) without the consent of the other spouse(s) (FAO GLRD, country study).

Click Here for a recent article that discusses the issues your question raises.  The article has case studies and gives a good feel for the issues faced by women but does not have hard statistics.


[1] Living Standard Measurement Study (LSMS) survey. LSMS-ISA (LSMS-Integrated Surveys on Agriculture)
[2] Doss, C., Kovarik, C., Peterman, A., Quisuming, A.R., Bold, M.V. den, 2015. Gender inequalities in ownership and control of land in Africa: Myth and Reality. Agricultural Economics 46(2).

From your question, I am not sure how much control you have over the design of the systematic land titling program, but for the purpose of this answer, I will assume that you have a reasonable level of influence over the design.

If possible, from the beginning it is helpful to involve local organizations or local government personnel who have regular positive contact with women in the community to understand the specific context of the area where systematic registration will take place. This can be as simple as a meeting with local women’s organizations or women leaders to discuss the project, provide information about the process and the law as it relates to women, and then to solicit their input and assistance on how best to ensure women know they have a right to be registered as joint or co-owners and how to implement that right. Identifying and involving women’s organizations will help throughout the project. Local organizations can influence men within households, create pressure to jointly register property, as well as oversee that women are included.

Another critical step will be to ensure that all the documents involved in systematic registration have room for at least two names. If there is only one signature line, only the head of household, usually a man, will sign.

Educating and training project personnel, stakeholders, and beneficiaries about the law and about the value and importance of women’s names being included on the documents is also critical. Beneficiaries, both men and women, will need to understand the process for registering, including, what is required for registration (are there identification documents required, for example) and how much it will cost. Registration personnel can be required to explain the law and to have all adults, who use the land in any capacity, present at the time of demarcation of the land

There are positive examples of incentives being offered for jointly registering property. For example, the cost for the registration can be lower for joint registration than individual registration. The stamp duty might be waived for joint registration, or other financial incentives can be provided.

Finally, if possible, having women as well as men hired as personnel on the project can encourage women to be more engaged. Being gender inclusive in hiring registrars, surveyors, and community educators is likely to lead to more women being named on documents.

Module 4 of the FAO technical guide: Governing Land for Women and Men provides a good checklist of practical steps that can be taken.

As you can imagine, there are no easy answers to this question, and people will disagree. Here are a few thoughts.

(1) I do think that very often when titling of customary land is initiated by the government and not by the community, the goal is often to get land into the market or to make land easier to acquire (through compulsory acquisition) by the government and by purchasers and lessees. Communities themselves will object to titling of their land if they believe they need to be protected from the government not by the government. If titling is a pre-cursor to customary land entering the market, then I do think there is a real possibility of it being a threat to women’s and men’s rights to their customary land. The threat will be greatest for the most vulnerable—those who are poor, are outsiders, are minorities, or those who do not have an equal voice in decision-making. Often women stand to lose the most because they are not generally the decision-makers in the community, and their interests may be ignored when land is formalized or there is a decision to formalize it or not.

For both women’s land rights and community land rights, titling may not be a sufficient solution to a lack of secure tenure. Both the debate on women’s land rights and the one on community land rights highlight that the mere issue of land titling does not cover the implicit diversity of land rights. In fact, “instead of increasing legal certainty, individual titling could become a source of conflict and legal insecurity if it conflicts with customary rules regarding tenure, for instance as regards the communal ownership of land” (De Schutter 2011: 269). 1

(2) Titling of customary land, which is driven by the community for the benefit of the community may be very different. Part of the answer to whether it is good or bad for individual men and women in the community will be dependent on the definition of who is a member of the community. For example, women who marry into a community and use community land for the benefit of their families may still not be considered a member of the community and have no decision-making power. They may lose their rights to the land they use, even if the community, rather than the government, initiates the titling process. As well, if temporary users of the land (herders or wood gatherers, for example) are not considered community members, they too may lose their rights to use the land.

(3) Tenure security can be safeguarded under various approaches that make clear the rights of land users and owners: formal titles; clear, long-term rental contracts; reliable lease agreements; or formal recognition of customary and legitimate informal rights, with accessible and effective dispute mechanisms.2 Formal recognition of customary land is different from titling of customary land. Customary tenure regimes that are formally recognized by governments in law, hold a set of rights within a regulatory framework. For example, formally recognized rights to customary land may give the users of that land the right to sell products from the land but not the land itself. Generally the group that has formal recognition of customary land is given the right to manage the land within a set of guidelines. Customary land may be formally recognized without providing individual titles or even documenting individual land rights holders or community members.

Formal recognition of customary land without titling that land can provide protection for the community as a whole. The issue then becomes what governance structure is in place to govern the management of the land and who is included and who is excluded from land governance. Again, those who are not represented risk losing rights to land, but some of those risks can be handled within the legal regulations developed under the formal recognition.

Some 18% of the world’s land is formally recognized as either owned by or designated for indigenous peoples and communities. 3 However, studies estimate that while a significant portion of the world’s land is held under collective tenure, large areas of that land are not formally or legally recognized. While it has been estimated that up to 60% of sub-Saharan Africa’s land is subject to customary tenure, according to a study of 19 countries in the region, only 13% of the land is designated for indigenous peoples and local communities and only 3% of the land is legally owned under community-based tenure regimes. 4

There are a number of reasons why protecting collective tenure is important for sustainable development and why it is gaining traction in development practice. The understanding of local realities of land and resource use and management often embodied in collective tenure systems can result in efficient use of resources. Research provides evidence that where they are able to manage the land, indigenous peoples and local communities are good stewards of the land and natural resources.

Similarly, formal recognition of collective tenure over land can help communities attain food security and increase their income. When rights are formalized and therefore perceived by the community as more secure, the community is encouraged to invest in the long-term sustainability of the land, thus increasing its productivity. 5

Finally, as natural resources are being increasingly “commoditized,” 6 it becomes more important for communities to clarify existing property rights, especially where ownership rights are not easily identified. The growing demand for food and natural resources worldwide has led to increased commercial pressures on land, often resulting in negative impacts for all affected communities. 7 Expropriation by the state for commercial reasons and large-scale land acquisition can dispossess entire communities. The protection of collective rights has the potential to give communities a legal basis to defend their rights in the face of outside pressures. 8 Similarly, formally recognizing customary land rights provides a degree of legal protection for those who risk losing their rights in the transition to privatized rights.

(4) One last issue to consider in titling customary land. Arable land under customary tenure is most often allocated by customary authorities to be used and managed individually or by households. Some arable land may be used communally, though this is not common. Because customary arable land is usually allocated to households, many of the gender issues that arise in this context are similar to those that apply to privately-held arable land, titling land in the name of the head of household, for example. This similarity is not always recognized in law, thus creating a legal gap—family laws, which provide for joint ownership may exclude land held under customary tenure.

Notes:

De Schutter O. (2011) ‘How not to think of land-grabbing: three critiques of large-scale investments in farmland’, Journal of Peasant Studies 38, 249. FAO, “Governing Land for Women and Men: A Technical Guide to Support the Achievement of Responsible Gender-Equitable Governance Land Tenure,” 1 GOVERNANCE OF TENURE TECHNICAL GUIDE (FAO 2013).
Landmark: Global Platform of Indigenous and Community Lands.
RRI. 2015. Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights. Washington, D.C.: RRI.
IFAD, 2006. Community-based natural resource management How knowledge is managed, disseminated and used. In Brazil, for example, a group which gained legal title to communal land invested in sustainably harvesting acai palm, which had almost disappeared from the region. See RRI 2015. IRF 2015: Securing Indigenous and Community Rights in the Future We Want.
Cotula, L. 2015. Investment treaties, land rights and a shrinking planet.
Knapman, C., and P. Sutz. 2016. Reconsidering approaches to women’s land rights in sub-Saharan Africa. IIED.
Brinkhurst, M. 2015. Using the Law for Resource Justice. IIED.

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