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Land Registration (7)
I would like to know the data of the percentage of women who have obtained title deeds under customary ownership and the status of women land rights under the Tanzanian customary laws.
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.
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).
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.
 Living Standard Measurement Study (LSMS) survey. LSMS-ISA (LSMS-Integrated Surveys on Agriculture)
 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).
There is some research that says, “yes.” A paper given at the 2018 World Bank Land Conference found that financial conditionality was motivation for joint titling.
Cherchi, Ludovica; Goldstein, Markus; Habyarimana, James; Montalvao, Joao; O’Sullivan, Michael; and Udry, Chris, “Incentives for Joint Land Titling: Experimental Evidence from Uganda,” 2018 World Bank Conference On Land And Poverty, The World Bank – Washington DC, March 19-23, 2018.
That research looked at conditionality and gender information as motivation for joint titling—together and separate—in Uganda. The research found that:
Imposing conditionality raised co-titling probability by 31% among gender uninformed HHs, and by 14% among informed HH.
- Providing information raised co-titling probability by 16% among HH offered titles unconditionally, and no impact among HH offered titles conditionally.
- Fully-subsidized land titles successfully generated high overall demand for titling, as well as for co-titling.
- Imposing gender conditionality on subsidy raised demand for co-titling, without dampening overall demand for titling.
- Providing additional gender information in isolation further raises demand for co-titling, though not as much as the conditionality, and has no impact on demand for titling.
A reduction in the stamp duty, for lands registered in the name of women, has encouraged women’s property ownership rights in some states in India (e.g. Himachal Pradesh, Uttar Pradesh, Madhya Pradesh, Haryana, and Delhi). https://landportal.org/debates/2017/womens-land-rights-india-and-sustainable-development-goals-sdgs
Do any countries require the consent of both the husband and wife to transfer property used by both, even if only one is the owner?
Yes. Here are two examples, but there are many more. Mozambique’s Family law (No 10/2004), states that immovable property, whether belonging to each spouse individually or as common property, may only be transferred to others with the express permission of both spouses. Section 40 of the Uganda Land Act states that spouses have the right to use, access and live on their husband’s land and they may withhold their consent to stop land transactions.
What type of incentives have been used effectively to encourage women’s names to be included on land rights documents?
Several states in India have lowered the tax placed on legal documents usually in the transfer of assets or property (Delhi, Gujarat, Haryana, Himchal Pradesh, Madya Pradesh, Maharastra, Punjab, and Utter Pradesh). In some states, if land is registered in the name of women, no (or reduced) stamp duty is charged. In other states, if a husband adds his wife to the title, no stamp duty is charged.
In Nepal, the government waives part of the land registration fee when land is registered in a woman’s name. The exemption started at 10 percent in 2006, increasing to 20 percent in 2007 and 25 percent in 2009. As a result, the amount of land registered in women’s names more than tripled. In Ghana, the number of documents registered by women in their own names in the deeds registration system increased substantially between 2005, when there were only two land registries in the whole country, and 2006, when land administration was decentralized and more registries were opened outside the capital. Decentralization was accompanied by a public awareness campaign, informing women and men about the opening of new deeds registry offices where they could register their documents (See, Governing land for women and men).
Other activities that encourage women’s names on documents include promoting the participation of women employees in the registration process and conducting public awareness campaigns that target women and inform them of the importance of land rights and registration, where rights can be registered and under which conditions – service fees, need of proof, etc.
Lao successfully encouraged women’s names to be included on documents by funding the Lao Women’s Union to educate and inform women of their rights. The Lao Women’s Union (LWU) is the official state organization that advocates for gender equity. For a period of time, the LWU was a very active member of the titling brigades. Gender was integrated into the education, training and information dissemination activities at the village level by the LWU.
Be sure there are at least two signature lines on land documents.
We work on systematic land titling projects around the world. Unfortunately, in many cases, the legal framework does not require joint titling for spouses. This is compounded by cultural norms that define men as landowners and decision-makers. In Zambia, for example, several women told enumerators that their husbands alone would determine whose name should be on the title. In situations where joint titling is supported by law, but culturally unknown or even prohibited, what are some effective, practical approaches for promoting joint titling to ensure that women also benefit from such programs?
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.
We are preparing a project in Tanzania that will provide land certificates to urban land parcels including in urban informal settlements. We believe that a fair number of residents are renters, including likely many female headed households. What is good practice we can use to secure land rights for both the ‘owners’ and the ‘renters’? And are there any gender specific issues we should look at, be aware of?
While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.
The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.
The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).
The gist of the idea is this:
• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.
The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.
Gender Specific Issues
Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.
As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.
In discussing the political economy of land governance, titling of customary land is seen as a deliberate effort to push land into the market to be negotiated. Does this threaten women and men’s rights over customary land?
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.
1 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. 2 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).
3 Landmark: Global Platform of Indigenous and Community Lands.
4 RRI. 2015. Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights. Washington, D.C.: RRI.
5 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.
6 Cotula, L. 2015. Investment treaties, land rights and a shrinking planet.
7 Knapman, C., and P. Sutz. 2016. Reconsidering approaches to women’s land rights in sub-Saharan Africa. IIED.
8 Brinkhurst, M. 2015. Using the Law for Resource Justice. IIED.