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Strengthening Land Tenure Security for Women: Overcoming Customary Barriers to Gender Equality

By: Amrita Kapur

The complex relationship between law, land rights and customary practices is increasingly recognized as foundational to formulating successful development policies. Similarly, the essential role of women’s economic participation to development and the current trend of gender discriminatory land and inheritance customary practices have prompted domestic civil society organizations in developing countries to use statutory provisions guaranteeing gender equality to improve women’s land tenure security. Premised on women’s need for secure land rights to enable their economic participation, this research focused on women who were most vulnerable to dispossession under customary law – divorcees and widows.

By targeting two countries with progressive legislation articulating gender equality both generally and with respect to land, Mozambique and Tanzania, surveys administered to women and community leaders identified current land practices and attitudes, and knowledge of formal land law. Within each country, surveys were conducted in rural communities which generally apply customary norms in distributing land following divorce or the death of a husband.

The overall intention was to determine whether and how laws enshrining gender equality with respect to land are more effectively applied and enforced when combined with legal empowerment programs comprising education and the provision of legal services. Through partnerships formed with domestic organizations, relevant community members were identified for survey distribution to assess whether and what kind of change NGO legal empowerment strategies have encouraged. Surveys were conducted in villages without any NGO services as a control condition, villages in which paralegals conducted legal dissemination and provided legal support, and villages in which NGOs had established paralegal offices to assist women file land rights claims in formal courts. The expectation was: statutory (top-down) interventions aimed at enhancing women’s tenure security have greater impact in modifying customary norms and practices when they are complemented with (bottom-up) legal empowerment programs to improve legal awareness and accessibility to legal remedies.

Central conclusions stemming from the results include: firstly, that formal court decisions are made pursuant to statutory law in favour of women’s land rights claims following dispossession upon divorce or widowhood. Secondly, that compliance with court orders remains a challenge in rural communities where customary law continues to create uncertainty in land tenure for vulnerable women such as divorcees and widows. Thirdly, that without legal and material assistance in taking claims to court, legal knowledge alone cannot be assumed to encourage women to challenge their dispossession. Tanzania emerged as more developed than Mozambique with respect to knowledge of formal law and the likelihood that gender discriminatory dispossession will be questioned and/or challenged.

Based on the survey findings, key recommendations include: 1) Directing resources (financial, human, material and intellectual) towards developing effective enforcement mechanisms is critical to increasing adherence to statutory law in rural communities traditionally governed by customary law. 2) An increased focus on establishing paralegal offices and permanent staff to assist in drafting and filing claims in court will improve women’s likelihood of challenging dispossession, approaching a legal service, taking their claim to court, and thereby (given the likely judgment in their favour) succeeding in having their rights recognized. 3) Dissemination to the broader population, including community leaders, needs to explicitly disentangle the individual rights widows and divorced women possess under law from their status and relationships within their family