Originally published by Open Society Initiative for West Africa
As a daughter she is usually not permitted to manage or inherit family land. The family expects her to move into her husband’s family land after marriage. As a wife she is generally not allowed to control, much less inherit her husband’s land- it belongs to the husband’s family and cannot be passed on to strangers.
This is the reality for many women in rural Sierra Leone, a country where at least 95% of its land is governed by customary law. This means that for the majority of citizens, the unwritten traditional rules and practices of tribes or communities determine who is able to hold, use or transfer land. In many ways, the application of rules of customary law in ordinary life has tended to affect women more adversely than men. On important issues, women are often treated as minors- needing the agency of a man to act. In worse case scenarios, they are regarded as chattels.
The draft National Land Policy 2014 concedes that women, children and youth suffer discrimination and denial of land rights under customary law. The policy makes some concrete proposals to address these shortcomings. This commentary will examine three policy provisions relating to women’s land rights and interrogate whether they address the challenges women face in accessing land in Sierra Leone. It is part of a series discussing the major changes proposed by the draft national land policy. The aim of this running series is to inform and motivate discussions of the policy content with a view to generating suggestions for improvement.
Challenges to women’s right to land
The draft policy exhibits a keen awareness of the challenges faced by women in accessing land especially under customary law. It notes that “culture and traditions continue to support male inheritance of family land.” It also underscores the lack of sufficient representation of women in institutions that deal with land. The draft further notes that women’s “rights under communal ownership are not defined, [thus] allowing men to dispose of family land without consulting them”.
The following are a few examples of how these problems play out in real life: At a landowners meeting convened by Addax Bioenergy in February this year it was disclosed that of the 153 land owners’ representatives that “engage” with the company only one is female. The company leased land from 51 villages in northern Sierra Leone for ethanol production;
In 2013, the men of a certain village in Lunsar, northern Sierra Leone agreed to lease to an investor the entire supply of arable land in the village. The women wanted to retain some of the land to continue their farming but the men refused. They were more interested in the $5 per acre offered by the company. Besides, according to one of the leaders, “land transaction is a man’s business and not a woman’s affair”. The deal eventually fell through;
A few months after the death of her husband in Kono, eastern Sierra Leone, a widow and her children were kicked out of the family home by the late husband’s relatives. They took charge of the farms that she and her husband had developed over many years leaving her with nothing. The children dropped out of school to help their mother petty trade to eke out a living.
Stories of women facing some form of land related exploitation are endless. As could be seen from the examples, the challenges to women’s use, access and control over land are multiple and diverse. Interestingly, there are existing laws that provide some level of protection for women. For example, the Devolution of Estate Act 2007 stipulates that surviving spouses have the right to reside during their lifetime in any family property, chieftaincy property or community property in which they co-habited with the deceased as their matrimonial home. Unfortunately however, many of these important provisions remain in the books and are never brought to life for ordinary people.
What does the draft policy propose?
One of the aims of the draft policy is to protect the “rights of inheritance and ownership of land” of women, including spouses, widows, unmarried daughters, divorcees, women in co-habitation and their children. The policy generally calls for women to be accorded the same land rights as men before during and after marriage. The policy also makes the following specific proposals:
End constitutionally sanctioned discrimination
The country’s constitution has been criticised for undermining women’s land rights because it permits discrimination under customary law with respect to devolution of property, marriage and divorce.
The policy notes that parliament has not made any effort to outlaw discriminatory cultures, customs and practices in land ownership, occupation and use and recommends that remedial provisions be inserted in the constitution. The policy calls for specific protection of women’s land rights in any new land law that will be adopted. This will include proscribing any “law or practice that discriminates against women and eliminating customs and practices that deprive them of accessing property through succession or other ways. On dissolution of marriage, the policy stipulates that women should be entitled to a “fair disposition of property.”
These provisions will no doubt improve women’s position under customary law. However, key issues remain to be addressed. The Devolution of Estates Act 2007 was enacted to improve the position of spouses, their children and other relatives on succession. Its detailed provisions securing the interest and welfare of women and children do not extend to property governed by customary law. The draft policy needs to rectify this omission by articulating similar minimum entitlements for spouses and their children with respect to family or community land governed by customary law. For instance, in addition to being able to reside in family or community property for life, spouses and children should similarly be able to utilise community or family farmlands. It should be an offence for anyone to interfere with this right.
On a broader level, the draft policy needs to specifically address use rights to secure women’s ability to use land for multiple purposes free from discrimination. This means that the right of women to for instance collect firewood, medicines, and access water sources, should be protected under any circumstance.
Joint spousal title registration
The draft policy would introduce a system of registration of title for both customary and non-customary land. This documentation process will provide better protection of rights and give certainty to land transactions. To adequately protect women’s land rights under customary law, the policy provides for “joint spousal registration and documentation of land rights”. It also stipulates “joint spousal consent to land disposals”. This provision would address one of the major failings of intra-community and intra-family governance particularly in relation to large scale land acquisitions. As shown in the previous examples, women have not been able to influence land transactions or hold those with decision-making power accountable even though they often suffer adversely from the consequences of misguided decisions by their menfolk. In addition, when their spouses die, women become vulnerable to predatory in-laws as the Kono example clearly illustrates. Joint spousal title registration would formally eliminate this vulnerability.
In addition to joint spousal registration, the draft policy could be expanded to provide for joint registration by adult siblings. Also, because not everyone with rights to family or community land may be included in the certificate, the policy could set out a process by which other extended family members could hold those who control family or even community property accountable. In Ghana for example, since the 1980s, a head of family accountability law has ensured that anyone who controls family property is accountable to the rest of the family. They can be compelled by any member of the family to file an inventory of the family property or render an account. Similar provisions in the draft policy would vastly improve accountability in deals concerning community or family land.
Representation in land administration institutions
A major pillar of the draft policy is institutional reform. It proposes the creation of a national land commission and sub-species at the district, chiefdom and village levels. These new decentralised entities would take over land administration functions now performed by government ministries and tribal authorities. In relation to membership of these bodies, the policy proposes “proportionate representation of women in institutions dealing with land at all levels”. By any account, this is a bold proposal in a country that has only paid lip service to women’s empowerment and advancement in public office. It effectively rounds out the enhanced protection of women’s land rights in the private sphere. The challenge however remains translating this progressive provision into reality. For starters, the policy could make women’s representation mandatory rather than discretionary.
The draft policy contains robust provisions which carry the potential to break new grounds in protecting women’s land rights in Sierra Leone. The challenge now is to make them better and stronger as the policy translates into legislation. These reform proposals could be significantly improved if, as discussed above, the draft policy –
For these provisions to come to life aspects of customary law would require reform. Civil society in general and women’s groups in particular can play a useful role facilitating the transformation of customary law. Women across the country must be informed about these proposed changes so that they can be actively engaged in advocacy, reform, and the establishment of effective accountability mechanisms. Women’s economic empowerment will never be realised if land tenure systems remain skewed and inaccessible to them.