The Women and Land Studies
GENDER, LAND AND RIGHTS: CONTEMPORARY CONTESTATIONS IN LAW, POLICY AND PRACTICE IN UGANDABy
WINNIE BIKAAKO & JOHN SSENKUMBA
TABLE OF CONTENTS
1.2 GEO-POLITICAL AND SOCIO-ECONOMIC BACKGROUND
1.3 THE EVOLUTION OF TENURE IN UGANDA: MAJOR TRENDS
1.3.1. Pre – 1900
1.3.2. 1900 – 1974
1.3.3 1975 – to date
1.3.4 Implications of the Colonial Land Tenure Changes on Women�s Status on Land
1.4 THEORETICAL AND CONCEPTUAL ISSUES
1.4.1 Land Rights In Human Rights and Development: Conceptual Links
1.4.2 Women, the Law and Land Tenure
2.0 LAND RIGHTS IN CENTRAL AND WESTERN UGANDA
2.1 POLICY AND LEGAL ISSUES
2.2 VOICES OF THE RURAL WOMEN : WOMEN AND LAND RIGHTS
2.4.1 Women�s Rights to Land
2.4.2 Loss of Rights over Land.
2.5 CHANGES in CUSTOMARY PRACTICES.
3.0 STRUGGLES FOR WOMEN�S IMPROVED STATUS ON LAND
3.1 RURAL WOMEN’S STRUGGLES
3.2 OTHER KEY ACTORS
4.1 PRACTICAL ISSUES
4.2 THE 1998 LAND BILL IN PERSPECTIVE
LIST OF TABLES
TABLE 1: FACTORS DETERMINING WOMEN’S SECURE LAND RIGHTS
TABLE 2: MODES OF LAND ACQUISITION
TABLE 3: LAND SIZE
TABLE 4: PERIOD WHEN LAND WAS ACQUIRED
TABLE 5: AUTHORITY WITHIN A FAMILY
TABLE 6: CONTROL OF LAND
TABLE 7: RETENTION OF RIGHTS IN PARENTS ESTATES
TABLE 8: ATTITUDES ABOUT WHETHER A WOMAN SHOULD HAVE THE RIGHT TO SHARE
PART OF THE ESTATE
TABLE 9: OPINION ABOUT SOURCE OF LAND DISTRIBUTED TO WOMEN.
TABLE 10: ATTITUDE TOWARDS THE NUMBER OF SHARES A WOMAN SHOULD GET.
TABLE 11: ATTITUDES TOWARDS THE RIGHT OF A CHILDLESS WIFE TO THE MATRIMONIAL ESTATE
TABLE 12: ATTITUDE TOWARDS GENDER EQUALITY
TABLE 13: ATTITUDE TOWARDS WIDOWS SHARING THE MARITAL ESTATE.
TABLE 14: ATTITUDE TOWARDS JOINT OWNERSHIP OF THE MARITAL ESTATE
TABLE 15: ATTITUDE TOWARDS WOMEN�S INVOLVEMENT IN WOMEN�S GROUPS.
This study has been undertaken under the auspices of the Religion, Law and Human Rights Program of the Cultural Transformation Project of Emory University. Broadly, the project’s mandate has included the documentation and interpretation of key aspects of cultural transformation, foremost of which is concern with the dynamics behind the changing nature of rights to land that women have, through relentless struggle, made society to concede.
From the outset, we were guided by the recognition that although the women have nominally won some struggles, a lot lies ahead and very serious obstacles remain. This exploratory study seeks to unravel what these obstacles are, how they have hitherto been handled, and what needs to be done to ensure the desired outcome. Although many scholars, activists and policy makers have already implemented their diverse perspectives to effect a transformation, the novelty in our approach lies in identifying the conjuncture between Law, Religion and Human Rights, in the context of cultural transformation. We are conscious that these may not be the only variables, or the most important ones. But even then, the interplay between them enhances greatly the explanation of the rapidly changing realities in social change and transformation.
1.2 GEO-POLITICAL AND SOCIO-ECONOMIC BACKGROUND
Uganda is a landlocked country astride the Equator. It lies East of Zaire, South of Sudan, West of Kenya, North of Tanzania and North-East of Rwanda (See Map 1). It is ethnically linked to all these countries � the international boundary cuts through border ethnic groups, dividing extended families. Its location in the Nile basin provides a link to North African countries, like Sudan, Egypt and Ethiopia.
The total surface area of Uganda is 236,859 square kilometers, of which 82% makes up land. Most of the country is flat plateau between 1000 and 1400m above sea level, only about 7% being above 1500m. Both its position and varied topography have given rise to a varied climate, thus making Uganda rich in flora and fauna and given its human communities the possibility of a range of occupations. The conducive nature of the environment has rendered the country one with a rich economic potential. With proper economic policies, Uganda could develop into a prosperous agricultural and industrial society.
Currently, Uganda has 50 different ethnic groups, which fall into four categories, the Bantu, Nilotics, Nilo-Hamites and Sudanic people. According to the 1991 Census figure, Uganda has a population of 16.7 million people, of which 51% is female. Apart from ethnicity, religion has also shaped Uganda society and politics. The major religions are Catholics, Protestants and Islam. The 1991 Census reports that 44.5% of the Ugandan are Catholics, 39.2% Protestants, 10.5% Moslems and 5.9% other religions.
The class character in Uganda derives from agriculture, the dominant activity of 90% of the population of Uganda who live and work in the countryside / rural areas on small holdings; rendering it a primarily agrarian economy. Despite about 10% of the population living and working in the urban areas, the great majority of the urban group have rural homes as well.
The foundation of today�s economy was laid by the colonialists who destroyed whatever industry and enterprise existed in pre-colonial Uganda and introduced cash crops for the benefit of its colonial master – Britain. The economy is still dominated by structures established by the colonial authorities inspite of their failure to tap the potentials of the country.
According to the World Development Report 1997, Uganda is ranked the fourteenth poorest country, going by its Gross National Product (GNP) per capita of US $ 240. The country�s economic performance and civil strife have resulted in a poor quality of life for most Ugandans.
1.3 THE EVOLUTION OF TENURE IN UGANDA: MAJOR TRENDS
1.3.1. Pre – 1900
The customary tenure regime prevailed in Uganda, before the advent of colonial rule. Without losing sight of the unifying effect of cultures and laws, there were a multitude of customary tenure types reflecting the different tribal/ ethnic legal systems. The available literature suggests an emerging consensus that ownership in the various customary tenures prevalent in Africa was vested in different entities namely the chief or ruler, tribe, clan, family and in a few cases, individual. The existence of a dichotomy in the customary law of property is also evident; individual ownership was limited to what an individual had acquired and improved upon on the land, while the community owned the land or property in its natural state.
Land tenure relations under customary tenure varied, depending on the customs of a given ethnic community. In order to bring out the salient features of customary tenure, it is our intention to focus on some of the tribes/nationalities, which are representative of the tribal/ethnic groups in Uganda. Traditionally, customary land tenure systems in Uganda fell broadly under three systems namely communal or tribal tenure; clan tenure; and what one can call nomadic tenure.
The tribal tenure system was predominantly in the lacustrine kingdoms (Bunyoro, Toro, Ankole and Buganda) which had centralized and feudalistic systems of administration. Ownership of land was vested in the ruler, either as owner or trustee. The clan tenure system, on the other hand, was the common tenure in groups that were mainly governed by a decentralized system of administration – Nilotic, Sudanic, Nilo-Hamitic ethnic groups as well as the Bakiiga communities. Inspite of the existence of traditional chiefs in some of these communities, clan leaders and elders had greater influence than the chiefs over the people and the land. The former constituted the controlling authority over clan lands.
Although cultivated fields and homesteads were owned corporately under the tribal and clan tenure systems, individuals enjoyed specific rights. Such rights included individual rights to fields, agricultural products, trees, trapping site and homesteads. The clan or tribe however communally owned some resources, namely; grazing lands, forests and virgin uncultivated grasslands within the clan or tribal boundaries, No specific rights, estates or interests were vested in the individual members for such resources.
Nomadic tenure was prevalent in Karamoja district. Under this tenure type, rights to grazing resources were vested in the entire membership of the tribe with no specific rights vested in each individual. However, there were restrictive claims to certain pastures or wells, which could be permanently or seasonally enhanced.
In all the three tenures – nomadic, clan and tribal – there were virgin lands or wilderness which were not subjected to control by any of the three institutions. Wild animals normally inhabited these areas. In the Nilotic communities, such a virgin wilderness constituted hunting territories in which ownership was vested in individuals or clans.
The origin of exclusive claim by a clan or tribe over land was invariably through conquest, peaceful settlement of virgin land, or seizure. The quantum and nature of control exercised by the clan and its controlling agencies did not vary greatly among practices and customs. The head of the clan naturally became the land controlling authority in Bunyoro, Busoga and Teso . Through the clan head, the clan exercised rights over the land and their obligations to look after it. The clan head normally had the authority to allow members, both from within and occasionally from without, of the clan to occupy and use unused land; allocated unused land; settled disputes; and arranged customary procedures at specific times like sowing or harvesting. Depending on a specific clan, a clan head was paid tribute, for instance in Bunyoro, as a mark of prestige for the services that he provided as a leader.
Traditionally, a man within customary tenure systems practiced in a patrilineal society, had an absolute inheritable right to the use and possession of land under his effective occupation. After fulfilling minor pre-emptive customary obligations, the individual had an absolute right over the products of the land he occupied or cultivated and the right of privacy of his home. Essentially, effective use and occupation of land signified indisputable “ownership”.
This however did not apply to women. Traditionally, women did not inherit land. It was the boy in a family, constituted under both a monogamous and polygamous marriage, who usually took over the land allocated to his mother by the father for her use and care, in event of the father’s death. Where such a boy child was still a minor, normally a brother of the deceased father, not only looked after the land, but also all the women who were under the deceased’s care, until the minor became of age. A surviving wife continued to live on a portion of her deceased husband’s land until she elected to return to her father’s family or remarry outside the clan of the deceased husband. In Acholi, Kigezi, Lango and Alur, the system of inheriting land through one’s mother was widely practiced. Sons were usually allocated land which was not occupied or claimed, as soon as they married or wanted to grow their own cash crops.
Although all societies in Uganda are patrilineal in nature, there is evidence that some women in a few of the societies enjoyed a higher status, in relation of ownership and control of land, than the rest . In the lacustrine kingdoms, women from the ruling class owned land, for instance, the Kabaka�s (King’s) mother and sisters in Buganda had a share in the royal lands. In Toro, in the 19th Century, a woman could inherit property, including land and livestock, from her father, if he had no son. A daughter could be considered before another male agnate. She was free to dispose of her land. If one was married, her husband had no authority over such property. Disposal of her land required her permission and her land was returnable on divorce. Where a man had no sons, a daughter could inherit not only her father�s property but could also take on her father�s status as householder and became known as heir. Uxirilocal marriage was practised so that in effect, she filled several socially important roles, initially the preserve of men. Where there were sons, the daughter could still inherit some of her father’s property, even if it was less than the son�s share. The idea that a child, irrespective of sex, should receive part of the father�s property was strongly upheld. There is evidence of several wills where a daughter was appointed as heir of the deceased in spite of the fact that he had a capable living son; the daughter as heir would receive a share of the property approximately equal to or even more than that given to the son.
Some women in Toro also enjoyed rights of occupation in customary land, which would be acquired by request from the Parish Chief. The Toro customary law bound a Chief to grant, on request, land to an adult woman including a widow, provided she proved that she had the means to build a house on the land (Naiga, 1990). A married woman however, except in the case of freehold land would rarely be considered. If she were considered, she would normally get a smaller portion than a son. Among the Basoga, daughters of chiefs could inherit from their fathers and become chiefs implying they became family heads, Omukulu wa Ulhuya, who could own and freely dispose of land.
1.3.2. 1900 – 1974
As a means to achieve their goals and further their aims through indirect rule, the British colonial administration introduced “new” land tenure types mainly through policy changes. In Buganda, in particular, the mailo tenure system was introduced as a means to extend the colonial administration, through the Baganda leaders, over the hitherto uncolonised regions. Where the colonial administration did not perceive a specific social system as a threat to its rule, the “natives” were left to occupy land according to their respective customs. This was the case in several areas of the country which operated under the customary tenure system. As a result, a multiplicity of land tenure systems emerged with the major tenure types being mailo, leasehold, freehold and customary tenure.
(a) Mailo Land Tenure:
Mailo tenure was a particularistic system in Buganda and parts of Bunyoro introduced under the Uganda Agreement of 1900. The 1908 Buganda Land law passed by the Lukiiko (Buganda Parliament) and approved by the British Governor, defined the Mailo system. The 1900 Agreement granted authority for allocation of land to the Lukiiko, with the chiefs given the responsibility of determining the beneficiaries to whom land would be allotted. Individual beneficiaries were free to make choices of the land that they wanted to own, before the crown land was designated. However, only four thousand one hundred and thirty eight (4138) individuals benefited from this allocation. These were issued with provisional certificates for specified amounts of acreage and then allowed to select in turn land corresponding to those amounts. Under this law, the maximum area, which an individual mailo owner could own, was thirty (30) square miles. A final certificate was issued after land had been surveyed (1904 – 1936) and demarcated, and particular holdings entered in the land register.
The 1900 Agreement, read together with the 1908 Buganda Land Law, make the Mailo estates quasi-freehold estates, since they are subject to restrictions which were passed in subsequent legislation passed by the Lukiiko. Notably, two major restrictions imposed statutory controls over the mailo owner. Firstly, the 1908 Buganda Law prevented a Mailo owner from disposing of his land to one who was not of the Protectorate, the Churches, or other societies, except with the approval of the Governor and the Lukiiko). The second restriction, through the Land Law, Succession Law & the 1927 Busuulu & Envujjo Law, evolved around the specification of the jural relations between the mailo owners and the peasants, on the former�s land.
The implication of the mailo tenure system, was that a new form of land ownership, with a semblance of freehold, was introduced in an area where land was previously communally owned. Through the applied land distribution method, the beneficiaries of the mailo tenure system acquired the most desirable fertile land, while the remaining less fertile areas became crown land. Ownership of land, under the mailo tenure system, necessarily bestowed on the mailo owner the right to transfer his land by sale, gift or inheritance to an African. In the subsequent decades the provision for land transactions derived from mailo tenure resulted into subdivisions and transfers of mailo land. Tenants grew in number on unused mailo land. The presence of land titles also helped to spur mortgages and transfers. From this process a large class of tenants, commonly known as bibanja holders grew.
Subsequent legislations made during the 1900-1974 period, including the 1967 Constitution, further entrenched the mailo tenure system, albeit with some modifications. The 1967 Constitution, in particular, empowered parliament to make provisions for regulation of the estates interests in and transfer of the Mailo land. The Constitution also vested entire property in and control of all mineral and mineral ores and water in mailo land in the Government.
(b)Leasehold Estate :
Leasehold tenure was another of the colonial administration’s innovations. In Uganda, two forms of leasehold were introduced – statutory and private. The Statutory leaseholds were created under the Crown Lands Ordinance, then the Public Lands Act 1969 and later entrenched by the 1975 Land Reform Decree. The Uganda Land Commission granted statutory leases over public land in rural areas, while urban authorities in urban area. The holders of customary tenure interests could be granted, on application to the controlling authority, a leasehold estate in public land occupied by him at the time of such an application . On conversion, the lease would be held subject to modern development conditions. Private leaseholds were created by private arrangements made either by individuals or organisations with freehold estates and mailo owners. The lessor and leasee of private leasehold privately determined the terms, duration, development conditions, and the amount of rents. A lease grant to a non- African and of more than five hundred (500) Acres, whether private or statutory, required the consent of the Minister.
Leaseholds grant the right to possession, use or occupation of land for a specified duration. Under the Crown Lands Ordinance the duration of the leases granted by the Governor to individuals was not to exceed 99 years. All leases hold development conditions, mainly for building and agricultural purposes, to be carried out by the leasee, failure of which would ultimately lead to forfeiture of the lease by the Governor. The District and Federal land Boards, under the 1962 Public Lands Ordinance, which later on assumed the role of the Governor, were vested with freehold estate of all public lands in the districts and federal states respectively. Hitherto, the conditions and terms on which such leases are held, have remained the same in substance as were under the Crown Lands Ordinance.
Freehold Tenure :
In line with the colonial government’s desire to redefine the status of land in Uganda and encourage individual land ownership by Africans, the freehold tenure system was introduced in parts of the districts known as Ankole, Toro, Kigezi, Bugisu as well as in parts of Buganda. Freehold estates were granted under the 1900 and 1901 Agreements in Toro and Ankole respectively, with titles issued to the allottees later, in accordance with the Crown Lands Ordinance of 1903. Another category of freeholds known as “adjudicated freehold” were granted in Kigezi, Ankole, and Bugisu in accordance with the Lands Adjudication Rules of 1958 Provision for registration of titles was to be made on a district basis (Customary Rights of Africans adjudicated under the crown lands (Adjudication) rules enacted in May 1958).
The 1962 Public Lands Ordinance, which repealed and replaced the Crown Lands Ordinance, vested all the former Crown Lands occupied for Government purposes in the Uganda Land Commission in freehold. Managament of all the former Crown Lands in the federal states and the district was vested in the federal and the district land Boards respectively. The Board, under S.22 of the Public Lands Ordinance, could make grants in freehold or leasehold of the Public land vested in it, even if such a land was occupied under customary law. Such a customary tenant however, would have to be resettled and could remain on the land until then or until he was given appropriate compensation or both, whatever the case could have been. As a result, in Kigezi district mainly, and to a small extent, in Ankole district, these Boards granted some of the Public lands in their respective areas in freehold to tenants. In other districts, however, only leaseholds were granted under this arrangement.
The 1967 Constitution abolished the federal and District Land Boards. The Constitution vested in freehold, in the Uganda Land Commission, all Public lands throughout Uganda inter alia, to grant freeholds and leasehold to individuals of any land vested in it by the Constitution or any other law. The Uganda Land Commission was to act on the advice of District Land Committees. In accordance with the Act, the Minister responsible for Lands must give his consent, to grant freehold of public lands for an area of more than 500 acres to an individual and grant of all public lands in the rural areas, thus restricting the power of the Commission . The Act stipulated that, once granted by a controlling Authority, a statutory freehold must be registered under the Registration of Titles Act, which makes provisions and stipulates conditions under which such statutory freehold may be alienated. The Act provides that the registered freehold is equivalent to the fee simple absolute in possession. The quantum of rights and interests invested in a freeholder are the same as the right of an owner of a fee simple estate in English land law. Thus, subject to statutory controls, the freeholder has the right to everything superjacent & subjacent to his land. He can sell, lease or mortgage the land. He can alienate it by testamentary disposition or inter vivos. The estate can be passed on to the heir, on death of the freeholder.
The Ugandan freehold, however, has statutory and administrative restrictions on the right of full enjoyment of absolute ownership. As pressure on land grows with increasing population the state takes more powers to ensure that land is properly used by whoever owns it. In a modern state, absolute ownership does not exist. What a person does with his land has to take into account public interests. The freeholder in Uganda arguably has the following restrictions imposed, on account of public interest and in order to check abuse. First, all statutory freeholds are subject to strict development conditions, as contained in the covenants between the grantor and grantee. The grantee is under obligation to develop the land within a stipulated period for the purposes specified on the grant. Any breach of the covenant on the part of the grantee leads to forfeiture of the freehold title : leading to the argument that the Uganda freehold is in substance equivalent to a leasehold estate. Secondly, all water and mineral rights in Uganda are vested in the state ; practically the rights of a freeholder are confined to the soil and surface of the land, nothing below the soil belongs to him/her. Thirdly, the Land Transfer Act restricts disposition of land to a Non – African without prior consent of the Minister.
All in all, freehold interests in land were not widespread. They were limited to a small category of individuals – Kings, notables and chiefs in a district; large scale agricultural estate developers; and some special interest groups such as the Protestant and catholic churches.
(d) Customary Tenure : Inspite of the introduction of other tenure systems, customary tenure remains the oldest and most widespread tenure in the county. According to Obol Ochola (1971), customary tenure covers 64% of the total land area. This tenure system continued to flourish during the colonial period, as long as the Protectorate Government did not perceive it as a threat to its mission. Customary tenants occupied unalienated land, which was designated crown land in the colonial period, that was not converted into mailo land or freehold land under the respective agreement and subsequent legislation of 1900, 1901, and 1903.
1.3.3 1975 – to date
The 1975 Land Reform Decree (LRD) legally abolished mailo and freehold tenures, The Decree reduced all freehold and mailo estates to leasehold and reduced all tenants to tenants at sufferance, repealing the Public Lands Act of 1969, which had provided for protection of the customary tenants. It granted statutory leases to individuals and organisations for 99 years and 199 years respectively. In practice, however, the mailo and freehold tenure relations have continued to feature prominently, de facto, alongside the legally recognised leasehold and customary tenure, in spite of the promulgation of the 1975 LRD. In effect, the LRD remained non-functional, except for two aspects; it abolished the payment of Busuulu (ground rent) and Envujjo (commodity rent) and empowered potential developers, who acquired public land to evict customary tenants. The laxity in enforcement of the decree may be partly attributed to the conflict between the 1967 Constitution and the decree itself. While the 1967 constitution entrenches the Mailo tenure system, the decree abolishes Mailo tenure, without repealing Article 126, thus rendering the abolition unconstitutional. By reducing Mailo and freehold interests to leases of 99 and 199 years, the Decree in effect nationalised land property without compensation, a move which was contrary to Article 13 of the 1967 constitution.
With the need to redress the ills of the previous land laws and the need to facilitate the expansion of land markets, requisite to the demands of a liberalised economy, the Land Bill, 1998 is in the process of being debated by the Ugandan Parliament. The Bill raises several contentious issues which suggest that thorough investigations have not been carried out. Later, in one of the sections, we shall discuss its likely implications on women.
1.3.4 Implications of the Colonial Land Tenure Changes on Women�s Status on
The colonial rule greatly impacted on the African customary land tenure conceptions. Whereas the traditional customary tenure guaranteed African women secure use rights, the colonial policies and direct legislation, by exerting pressure on customary tenure institutions, altered the women�s land rights. Family heads, dominantly male, assumed greater autonomy in decisions regarding land access, use and control, thus rendering women�s use rights less permanent than before. The family / household head assumed more rights that could enable him alienate land without necessarily consulting the larger family or communal groups. The colonial legal systems left intact the in- built traditions and customs adhered to by various patriarchal societies in Uganda, which rendered it difficult for women to inherit, access and own land. Customary law continued to thrive as long as it did not conflict with colonial interests. In essence, the new laws further strengthened the patriarchal relations that existed in the Ugandan Society.
As already noted, the land rights of women in traditional customary society were limited to servitude / usufruct right to land in traditional society. A woman had no control over land; land control was male domain. Decision – making was vested in men as heads of a clan or a family. The patrilineal systems prevailing in Uganda made it impossible for the majority women to inherit land or own land. Even where a women was given land / property in her natal family, she would not be allowed to alienate family property. Their rights to land in traditional society were especially in respect of their positions as daughters and sisters and to some extent in respect of their position as heads of families. The rights to disposition were vested in the kinship group and also in male family heads. The group was vested
with powers to allocate unused land to needful members thus controlling any alienation of group land to outsiders. The family head had the same powers of allocation with regard to family land. Such individuals did not have the right / power to sell the land in their control.
Although women did not have rights of control and disposition over land they were guaranteed rights of use; the argument being that the rights of use involved a form of land ownership in themselves which deserved to be protected by the new land laws because within such a framework usufructual rights were well – defined. Thus the post colonial laws, in as far as women’s rights were concerned, continued to recognise the subsistence nature of African societies, where the value of land was perceived more in terms of its use, than in the possession of abstract legal rights in it. Viewed from the gender dimension, this situation created double standards.
Like most post-colonial African states, the legal system of Uganda is characterised by its legal dualism – existence of the imported “western legal system and the indigenous customary law which specifically pertain to governance of land, marriage, property rights and inheritance. Inevitably, there exists a by-product from the internal conflicts of law. Such legal dualism makes it possible for a male dominated society to resist claims for women�s rights by vacillating between the two systems, successfully neutralising any reforms that might have been instituted. In the words of Mbilinyi (1997), “it has confined the majority (both male and female) to an arbitrary and contradictory world, governed at one moment by universal laws which apply to all citizens, and at another moment by laws, which apply solely to members of a given tribe, clan and ethnic group.
1.4 THEORETICAL AND CONCEPTUAL ISSUES
1.4.1 Land Rights In Human Rights and Development: Conceptual Links
This study aims to address a range of issues concerning land rights in economic and social development, with particular reference to human rights concerns. It will make use of conceptual and analytical research to examine the broad principles underlying the different approaches to land law and land rights in different parts of Uganda, particularly the existing mechanisms for addressing competing claims to land.
What is new in our approach, is establishing the linkage, on a thematic basis, between land law, land tenure and agrarian systems on the one hand, and the realisation of civil, political, economic, social and cultural rights on the other. Although land rights are beginning to gain the attention of human rights organisations, the emphasis has been on land resource rights of indigenous and tribal peoples, who are perceived as highly vulnerable groups. Such a narrow outlook side-steps the questions of land access and security of tenure, which are the very basis of subsistence and livelihood for billions of the world’s rural poor. Access and security are critical since they are a necessary precondition for the realisation of other internationally recognised human rights of the rural poor. The contemporary period has witnessed the proliferation of a range of conflicts, not only over principles of land law, but more so in land rights themselves. There is an emerging tension between “strong” and “weak” notions of land and property rights. This is best manifested in tensions between the civil rights of the landed and the economic and social rights of the landless, the land poor and precarious tenant farmers. Another dimension of this contestation is that between customary and “modern” or statutory law. Considering tenure regimes, there are the extremes of virtually unfettered private rights and full state control under nationalised ownership. In most developing countries, a middle ground between the two extremes has been struck. Private ownership (side by side with customary and communal tenure) has been recognised. Even then, certain limitations on the rights of private owners have been instituted, such as land expropriation in the public interest.
The present period has been characterised by a progressive trend towards more privatisation, with an emphasis on the diminishing role of the state. With the adoption of structural adjustment policies, there have emerged strong international pressures for land policies to be governed exclusively by market forces. This has led to concern about the social implications of such policies, particularly on the consequent conflicts between customary and modern law, and the need to preserve the traditional notion of land security associated with customary tenure. Renewed pressures to replace customary and communal forms of land ownership by private and registered forms of individual ownership are being advocated in the interests of greater agricultural productivity. But concern is also mounting that this will lead to greater inequalities and further accentuate rural poverty and landlessness. In such a context, is it possible to provide some guarantees for land security to the rural poor? Is there a need for a ceiling on the size of private farms? These are important questions at a time of increased and new patterns of land concentration alongside increasing landlessness and the scope for challenging private land rights has reduced.
While there has been much documentation of civil and political rights abuses deriving from land conflicts, the wider policy issues relating to land distribution and tenure or the legitimacy of land claims in themselves have not been addressed substantively. There are some real difficulties in approaching land rights from a human rights perspective. For one thing, land rights do not fit easily into typological distinctions commonly drawn between civil and political rights on the one hand, and economic, social and cultural rights on the other. The nature of a right to land, whether to a specific land area or to the fruits of the land has different dimensions which depend on whether or not one owns or possesses the land. Persons or groups who own a specific land parcel with title duly registered in civil law have a right to this land. But, also, persons who are utterly dependent on the land for survival, and who have no alternative means of subsistence, must be considered to have an economic and social right to the land. On its own, it may therefore make sense to talk of a universal right to food, shelter, health care and even to employment, whether or not that right is realised in practice. But in most developing countries, the connection between the rights to land and the rights to food and livelihood is very direct, as access to land is essential for survival. Even if this is so, the concept of a right to land is still fragile and ambiguous. The provisions of civil law, which notably provide for firm recognition of private land ownership do not take into account the social function of property, which would have implied placing limitations on the exercise of private ownership.
As a consequence, human rights approaches have not been of immediate relevance in supporting arguments for particular types of tenure arrangements. These approaches, however, are of immense value in determining the moral authority of competing land rights, when the claims of those who need the land, but do not own or possess it, are pitted against the claims of those who hold legal rights to the land, but do not necessarily need it. This adds a new dimension to land rights analysis. The focus changes from a mere bundle of rights associated with particular tenure arrangements, to the real relationship between land tenure systems and the realisation of fundamental human rights.
In addressing property rights, there has been a shift in approach since the adoption of the Universal Declaration of Human Rights in 1948. The early emphasis on strong protection of property rights changed in the 1950s and 1960s, to an approach, which recognised the broad principle of property rights, while allowing for a limitation of these rights in the public interest. This was consistent with development strategies emphasising redistributive economic and social policies, one of which was land reform. The commitment to land reform, based on the social function of property was further echoed in a number of Declarations adopted by the UN and its specialised agencies throughout the 1970’s.
From the human rights point of view, some issues have since then received prominent attention. Foremost has been the concept of a right to development, which has underlined the indivisibility of human rights, and the interlinkages between civil and political rights on the one hand, and economic, social and cultural rights, on the other. Strong emphasis is also placed on equity and equality of opportunity in the development process. The second issue has revolved around efforts to actualise economic and social rights, directly linked to the issue of land rights and access, as it is key to the all important right to food. Here, there is an obligation to protect the access by vulnerable groups to resources required to ensure their access to food. Measures like the protection of land rights and usufruct against advancing capital-intensive enterprises and legislation to curtail absentee landlordism are examples of what can be done in this area. The tensions between different human rights perspectives, as they relate to land and property rights have taken several forms. Strong rights over private property are aligned against whether property rights are subordinated to other societal needs. There has been a shift from the way these tensions were played out in the cold-war period. Human rights have now become a very contentious issue in the North-South relations. While the North emphasises strong property rights, the legitimacy of existing private rights to land is under severe scrutiny in most developing countries. The general trend is towards greater security of private land rights in the interest of greater productivity and efficiency. In some cases this has been due to domestic and internal pressure by peasants demanding individual land security. But external pressures have also played a part. Donor agencies and International Financial Institutions have called for the liberalisation of land tenure regimes under Structural Adjustment. Nevertheless, the trend towards land privatisation has culminated into a new and big dilemma. How is a balance to be achieved between security and productivity on the one hand and equity and traditional notions of land security on the other? Is there a middle ground between private and state property? Can we recognise private land rights, and at the same time limit them by other considerations of community interest?
The formulation of land rights systems, through land titling and modernisation programmes associated with structural adjustment, has an adverse effect on women�s rights to land. Titles have been vested in male heads of households. The problem has not been so much the legal barriers that women confront but the practices justified in the name of tradition. Even in cases where the law is changed to remove aspects of discrimination, like on the issue of inheritance, this may not provide effective protection, if there are conflicts with principles of customary law. Ultimately we are faced with the question of finding a balance between equity and efficiency, and adapt principles of land law changes, needs and competing needs of various sections of the population. This is the only way of meeting the challenge of ensuring that land rights become an integral part of the human rights realisation. Viewed in this perspective therefore, it is easy to argue that land access, land security, and land reform are fundamental human rights concerns. This is the more reason why the language of human rights should be increasingly used to press for more equitable land policies. This becomes even more relevant in times of negotiated political transitions such as is happening all over Africa. The stakeholders are aiming to reach a consensus on principles for addressing land rights and land reform.
1.4.2 Women, the Law and Land Tenure
In discussing women’s land rights, the first distinction drawn is usually that between societies practising matrilineal and patrilineal descent. In matrilineal systems, women, like men, had usufruct rights in land based on their position within their matrilineage. They could exercise these usufruct rights on non-marriage, during marriage, and upon divorce or widowhood. They could inherit land and pass it on to their children. Women could also maintain their independent activity and acquire property over which their husbands had no rights.
In patrilineal societies, like most of the societies in Uganda, women’s land rights are dependent on their relationship to a male, usually a father, husband, brother or son. In most cases, women did not inherit land on their own, and where they did, they inherited less land their brothers. It is mainly through marriage that women acquire use rights in land, and husbands assign particular fields for cultivation and particular cattle to each of their wives. Besides producing for family needs, the women, in some instances, have the discretion to exchange or sell the surplus. Upon widowhood, women act as guardians or trustees for the minor children until a male heir becomes of age to take charge. Women with grown up sons are largely assured of cultivation rights, in contrast to childless women or women who bore only daughters, whose position is very precarious. In a few societies where widow inheritance exists, the practice ensures continuing use rights for women in the fields they had cultivated during marriage. Refusal to marry the successor may mean cessation of use/cultivation rights. Use rights deteriorated under colonialism and its attendant commodity production. The biggest change in the content of land rights was the reduction in the larger lineage control of land and inheritance principles, which contracted to focus on the immediate and individual family. The role of law, both customary and statutory, was instrumental in reinforcing this change, and new property forms were introduced and recognised. But at the same time, customary law has resisted these new developments and some old property forms have survived. An example is the conceptual difference between a mortgage (a new property form) and a pledge (an old traditional concept). The latter is still upheld and it is held to be redeemable, not withstanding the lapse of time. This is not the case with a mortgage. Holding on to such a concept as a pledge is an important way in which local communities have sought to hold their own against the influx of new usages and capitalist forms. At the same time, men and elders reformulated customary law in order to control women’s sexuality.
The women have not been passive in the face of these changes, and have seized the social alternatives available. This partly explains the high rates of divorce and desertion; a resort to all independent income avenues in the informal sector; and outright refusal to enter into marriage.
The overall methodological approach used in this study is the Case Study. >From the outset, this approach required a careful selection of areas that are representative of and portray the dynamics related to the four existing land tenure systems in the country. The Central and Western regions ably suited this need. From each of the two regions, a district was randomly selected – Bushenyi and Mubende districts.
Bushenyi, formerly part of the Ankole Kingdom, is situated in the Western region of Uganda. The 1991 National Census indicates that it has a population of 736, 361 and a population density of 150 persons per square Kilometre . The major land tenure systems found in this district are customary and leasehold land tenure systems. Mubende district, on the other hand, is situated in the Central region of Uganda, which historically was largely Buganda region. Mubende district, according to the 1991 National Census, has a total population of 500,976 and a population density of 89 persons per square kilometre . The major land tenure systems prevailing in the district are mailo and customary tenure.
>From each of the two districts, using the multi-stage random sampling, two parishes were selected Mazinga parish and Kakanju Parish in Kakanju sub-county, Bushenyi district and Nakaseta and Lutete parishes in Sekannyonyi sub county, Mubende district. Bearing in mind the nature of our study, a male to female sex ratio of 1:2 was used when selecting the 80 households and 70 households in Bushenyi and Mubende districts respectively. A structured questionnaire with open-ended questions, was administered to each of these households. From each of the two selected parishes, indepth interviews were conducted, with the help of an interview guide, with ten (10) opinion leaders, half of whom were women. Additionally, two focus group discussions were conducted in each of the districts. Gender considerations were made when conducting the focus group discussions. This was specifically in view of the fact that most women did not feel comfortable to discuss freely in the presence of their husbands or other men known to their husbands. The average size of the groups was fifteen (15) persons. These groups mainly comprised of village and parish leaders of local councils and women councils. Other members included opinion leaders as well as leaders from local women�s groups and the church. The historical perspective of women�s status to land was derived from historical ethnographies, legal sources (court records mainly), colonial documents obtained from the National Archives and oral submissions from four knowledgeable elders. Contemporary law and its formulation was drawn from legal documents (court records and the hansards) and commentaries; current parliamentary debates; and accounts of women leaders, both at the national and local levels. District reports and records were also consulted.
Secondary sources included literature available in the Libraries at Makerere University- Faculty of Law, Main Library; and Ministry of Gender and Community Development. NGO Libraries included Centre for Basic Research (CBR); the Human Rights and Peace Centre (HURIPEC); Uganda Gender Resource Centre (UGRC); Action For Development (ACFODE); Uganda Land Alliance; Foundation for Human Rights Initiative (FHRI); Women and Law Society, Uganda Chapter; FIDA and ISIS-WCCE (Uganda).
Continuous data analysis was made during the data collection period. In the course of analyses and bearing in mind the tentative themes that were conceived at the begininning of the project, we identified the outstanding themes that emerged from the study. The data obtained was coded , entered and analysed through cross tabulations from the Statistical Package for Social Sciences (SPSS).
Having collected data from the two districts and compiled the findings, a simplified version of the findings in Bushenyi district, was presented to a local workshop in Bushenyi, from which recommendations were made by the participants. These recommendations, together with our findings from both Bushenyi and Mubende, were presented to a Kampala workshop, comprising of Activists, Scholars and the Press. From the Kampala workshop, specific policy and law reform proposals were made, in view of the Bushenyi Workshop recommendations and the study findings. We intend to generate a summary findings and proposals, from the entire research process which shall be circulated to the policy makers and lobbyists.
2.0 LAND RIGHTS IN CENTRAL AND WESTERN UGANDA
2.1 POLICY AND LEGAL ISSUES
Historically in Uganda, both the statutory and customary laws governed women’s legal status to land. Customary laws, under the traditional customary tenure regime, provided accessibility to land and effective land security to women. Property was inherited and descent traced along patrilineal lines, implying that traditional customs only allowed men to own or inherit land. Through patrilineal inheritance under the traditional system, a woman married to a lineage member was guaranteed security of land use rights. This, however, is not the case today. Statutory laws , on the other hand, guaranteed women the right to purchase, own and dispose of property in their own names. In its attempt to streamline the law of inheritance in Uganda, the Succession (amendment) Decree No.22 / 1972 provided for a slightly improved status of women with regard to inheritance of land and property. The law guarantees a wife�s an unequitable rights share of 15% in her husband�s estate when he died intestate. In a polygamous marriage under customary law, all the legal wives share the 15% in equal proportions. The widow(s) also enjoys a right to occupy the matrilineal home until she dies or remarries. The Succession Decree also gives the right of inheritance to dependant female relatives, the right to apply for letters of administration of deceased husband�s property, and the right to challenge an unfair will or the right to grant of probate.
The practice however does not reflect the enabling legal provisions. Only 7% (World Bank, 1993) of the land in Uganda is owned by women. Accessibility of women to land is rather difficult, since it largely depends on the women’s male relations and their socio-economic status. At the national level, most of the 16% of the households without access to farmland are female headed households (Nyamugasira, 1996).
2.2 VOICES OF THE RURAL WOMEN : WOMEN AND LAND RIGHTS
Our findings indicate that the women=s concerns regarding land rights revolve around four major issues, namely the position of women in land; their nature of rights; the consequences of gender inequality in land rights; and lack of effective conflict-resolution mechanisms.
a. Nature of Rights
The women of both Buganda and Ankole enjoy transient rights to land as a result of their rights being appended to male relations. Women=s rights to land tend to be fragile and are primarily defined by several factors. Our findings reflect a causal relationship of women=s rights to land with such factors as age and marital status; whether she has bore children and the sex of the children; as well as her sexual conduct.
A woman=s rights to land is essentially pegged to the institution of marriage, thus making the destiny of marriage determinant of her continuity to enjoy the rights therefrom. 88.2% of the respondents contend that the rights of a married woman differ from those of unmarried woman. An unmarried daughter tends to have more secure access and a greater claim to her parents estate than a married woman. However, the degree of secure access and control in the matrimonial estate largely depends on the type of marriage (customary, co-habiting, religious) and the success of the marriage (relations of the spouses).
90.8% of the respondents affirm that a woman with children, and most especially male children, is assured of more secure rights to the matrimonial estate than a childless woman. The relationships between the length of marriage, number of children and security of land rights is confirmed by 88.3% the respondents. (See table 1 below).
Table 1 : FACTORS DETERMINING WOMEN=S SECURE LAND RIGHTS
BUSHENYI MUBENDE TOTAL
YES NO YES NO
Children 39 79.6 10 20.4 69 98.6 1 1.4 108 90.8 11 9.2
Length 57 77.0 17 23.0 67 95.7 3 4.3 124 86.1 20 13.9 of Marriage
Marital 36 73.5 13 26.5 69 98.6 1 1.4 105 88.2 14 11.8Status
b. Position of a woman in land
Within the Banyankore and Baganda communities, a woman=s independent right to own land is not automatic. Custom denies her an independent right to own and inherit land. Customarily, a woman=s right to inherit land is viewed in terms of her responsibility to nurture the children of the deceased. Preference is given to children over their mothers, in event of death of the male household head. In the natal estate, sons take precedence over daughters when a father is determining who the beneficiaries should be, how much each of the beneficiary should get, and when a beneficiary should receive a share. Succession of land and other property by either the children (for the matrimonial estate) or the brothers (for the natal estate) does not guarantee the security of a woman=s right to land, either. A woman=s inferior position in society has meant an inferior status on land, reflecting the nature of power and authority that she has over land either in the matrimonial estate or the natal estate.
c. Consequences of Gender inequality in Land rights
Lack of secure access, ownership and control of land has resulted into a poor and low socio-economic status of women in these societies, like the rest of Uganda. Women�s claims to land remain insignificant and unprotected, inspite of the fact that women in Uganda provide 70 – 80% of all labour in agriculture and over 90% in food crop production and processing. Lack of protection of their rights and secure access to land has direct implications for their investment in agriculture and the development of the entire economy. It is not surprising therefore that the solutions to poverty and underdevelopment largely depend on addressing the gender dimension of these issues.
Women=s lack of control, access and ownership of land has created an additional strain on society. There is an over increasing degree of separation/ “divorces”, prostitution, domestic violence, sexual harassment and marriage instability directly arising out of the land rights issues.
In Mubende, 83.3% of the respondents attest to conflict emanating from gender inequality in land rights. This is why 93.9% of the respondents in both Bushenyi and Mubende strongly believe that the solution to stability and development of the Ugandan society largely lies in redressing the gender inequality in land.
d. Lack of effective conflict-resolution mechanisms The existing conflict-resolution mechanisms are ineffective, in as far as protecting the interests of women in land. These include courts of law, Local Council (LC) courts and the customary courts, as well. These institutions are male-dominated and they tend to favor their male counterparts, by maintaining the status-quo. The court processes of trying to resolve conflict have tended to be lengthy, expensive and too technical for the women, to the extent that the majority who have sought recourse to the courts of law have either lost or withdrawn the cases. The LC courts have not provided protection of women�s interests, either. Being male-dominated and corrupt, these courts have discouraged women from seeking recourse to them. The success of the women�s struggles, through legal means, has also been constrained by their lack of a firm economic base.
In order to appreciate the concerns raised by the rural women, as expressed above, we shall address the two critical areas namely access and control in the following two sections (2.3 and 2.4), as the major means through which the women’s rights in land can be understood. We shall proceed by analysing the present status of women�s legal rights to land and in the process identify obstacles and mechanisms that perpetuate gender inequality in access and control of land.
Today, throughout Uganda, women have considerable legal rights to inherit land. But the degree to which they can exercise these rights, in practice, is constrained by several factors, foremost among which is the necessity for male mediation and the fact that custom still dominates practice. The majority of women=s access to land is dependant on their male relations, who own and/or control the land. In Bushenyi, none of the interviewed women holds land independently of male relations. The implications are that a women in Bushenyi can only gain access to land as a daughter, daughter in-law, wife, sister or mother. In Buganda, however there was an indication that a few women own land, independently of their male relations. In Bushenyi, 97.5% of the respondents have access to land. 38.8% access land through family ownership, while the rest make their claims through individual ownership.
>From Table 2, it is observed that 90.1% and 48.8% of the respondents� land holding in Bushenyi and Mubende respectively, fall under customary acquisition modes, that is, inheritance, donation and family access. It is also evident that the rest gain access through land markets – the land holdings that were accessed through purchase are 59.7% in Mubende and 28.8% in Bushenyi. Households which access land through borrowing are only 7.5% in Bushenyi and 9.5% in Mubende.
Table 2 MODES OF LAND ACQUISITION
BUSHENYI MUBENDE TOTAL
No % No % No %
Inheritance 6 7.5 12 17.9 18 12.2
Purchase 23 28.8 40 59.7 63 42.9
Donation 35 43.8 17 25.4 52 35.4
Borrowing 6 7.5 8 11.9 14 9.5
Family Access 31 38.8 1 1.5 32 21.8
Landless 2 2.5 – – 2 1.4
Total 80 67 147
The largest number of respondents (43.8%) in Bushenyi gains access to land through donations. Under this mode, a father gives part of his (commonly known as the ancestral land) estate to his son when he marries. This acquired piece of land is meant to provide a basis on which a new family, thus the continuation of a particular clan, is built. On death of the father, the son automatically inherits the land which he received as a gift/donation. Depending on the expected role that he will play in future (like being responsible for the surving family, as heir), the availability of undistributed land; the family size; and the father-son relationship; this son may receive another share, on death of his father. The clan elders responsible for distribution of the deceased=s estate will be the final determinants.
Donation is one of the major means through which land is customarily acquired. As a 46 year old male respondent observes: Custom specifies particular means through which land is obtained: a grown-up son receives a share of his father�s land, on which he can build a house for himself, his wife and children. The implication is that only sons can and do receive donated land as means to expand the clan. To confirm ownership rights over donated land, the father in the presence of clan elders and other family members, indicates the manner in which he intends to distribute his land among his children. A 50 year old woman observes: Whenever a father decides to give a share of his land to his son, he Invites the clan elders and together they mark the boundaries with “Emigorora” (specific short trees which customarily, are used to mark boundaries).
A deceased father is almost always succeeded by a male regardless of whether such male is a collateral relative or not, in contrast to the daughters who may be “linear descendants” and who in law are given preference to collateral relatives. Through his will, the deceased distributes his land amongst the heir (who retains the largest portion) and those sons who previously did not benefit from the donations (unmarried sons mainly). Depending on the land available for distribution and the personal father-son relationship, the married sons may also partake of the land; the priority however goes to the former category.
Succession is effected through either a written or oral will. In the latter case, an (ageing) father invites clan elders to physically witness the distribution of his land to his children. On his death, the clan elders are accordingly expected to implement the wishes of the deceased. In event of absence of the above two means, the clan elders are empowered to distribute the deceased=s land, using the customarily-recognised criteria. One of the sons, normally the eldest, is the heir. As such, he is given full responsibility over the family and property of the deceased. In cases where the father distributes his property amongst his children, the heir will not have any jurisdiction over the distributed land, except where the deceased charges him with express responsibility to enforce certain restrictions that he makes. In the absence of a son, the elders may choose to give the land to the brother(s) of the deceased. Today, the most common practice is that land is divided amongst the number of boys in the family. Prior to the colonial rule, the inheritance of property, including land, was governed by local customs. In Buganda, although these customs did give inheritance rights in land, they did not provide for equality in gender relations. With a strong patriarchal foundation, coupled with a critical importance of land in agrarian economies, the Baganda, while recognising women’s land rights made them conditional upon guarantees that this land would remain in the family (and consequently the clan) of either the husband or the father. One can justifiably conclude that the Baganda assumed that women did not need independent land rights since they were at all times assured of usufruct rights as daughters, wives or widows.
Tracing lineage after the male descent, the Baganda and Banyankore customs do not allow a daughter to become heir to her father. It is only the son (or in absence, another male relative) who can become heir to his father. As far as the parents are concerned, daughters have largely transient rights, since upon marriage it is taken for granted that their ststus changes as they move to reside in the homes of their husbands. It is in their husband’s home that most of their adult contribution, in terms of labour is made, and consequently it is taken that their due share should be there, but not at their parents. This is reinforced by the fact that daughters whose marriages are stable usually take very long to even pay a visit to their parents!
Even when they cannot be heirs to their fathers, daughters in Buganda and Ankole have long been getting shares from their parents’ estate. In a few families where there are no sons, the daughters are occasionally given all property and the male heir remains titular, a figurehead. Where there are sons, fathers have been found to give daughters smaller shares than their brothers, because it is deemed that it is the men who have to shoulder bigger responsibilities within the family. Responding to the proportion of land bequeathed to a daughter compared to the son, a forty year old man, like several other respondents in Bushenyi, observed : traditionally if you had two sons and eight daughters, each boy would get his separate share, while the eight girls will get only a single share. Today however, the customary rules on inheritance, in Ankole and Buganda are no longer universally applied. There are no longer hard and fast rules, rather there is a wide variation as to how property is divided from family to family and within family members themselves. To some extent, daughters are gaining recognition as useful members of the family. They are given Arewards@ for faithfully caring for their parents, in terms of being able to compliment the needs of the family, like money and labour. Their usefulness is compared to the sons or male heirs who have been viewed as opportunistic and irresponsible. Male heirs have been noted for selling most or all of the estates bequeathed to them and as such parents have shifted preference for sons only to vest authority over their estates in the daughters, who they consider as not being dominated by a “get-rich-quick” attitude.
Increasingly, parents are giving their daughters a share of their estates, on grounds of marriages becoming very unstable. Such a share is offered as a cushion for the daughters, in case of failed marriages. More still, on widowhood, the male members of the deceased husbands family have of recent increasingly taken to ganging up against the widow, sending her away from her matrimonial home. According to FIDA (Uanda Women Lawyers Association), 40% of the cases brought to them in 1995 were related to property grabbing by male relatives of a deceased husband and harassment of widows. So as a form of insurance against the vagaries of marriage, parents are finding it increasingly necessary to reserve a share for each daughter, in case of any eventuality. To strengthen the protection of their daughters rights to land, parents are forced to specify what they have given to their daughters (and sons) when they are still alive, so that there are as many witnesses to such transfers as possible. This is important in light of the rampant tampering with wills, most often through outright forgery. As a mode of access for women, inheritance presents several problems. There are usually conflicts in respect of perceived partiality in sharing out inherited land. In addition to this, daughters seldom reside on or near their inherited parcels, which means that it is quite often their brothers, particularly the heir, who act not only as custodian, but in most cases, ultimately exercise effective ownership of these parcels.
When parents die at a time when a daughter is already married, it is common for the daughters not to be considered at all. It is those who are not married as yet who are given a share in their parents estate. But we found that the biggest hurdle in respect of inheritance by women is the fact that the parents expect their daughters to get a share of their husband’s estate, while the husbands expect that their wives will receive a share in their parents estate. This leaves them stranded in between, each party shunning responsibility on the pretext that the other will take it up. A battered wife who is unable to contain marriage any longer or a divorced/separated woman who is either forced out of marriage, by her husband or on her own accord, does not have automatic rights of access to her father�s estate. A 30 years old separated woman states: If you are not married or have left marriage for any reason, your brothers may deny you access to family land. If you have a bad parent, he may choose to side with them, thus denying you access. Even if you have returned home after a misunderstanding with your husband or your husband has divorced or abandoned you, and you return with your children they may not be bothered. In spite of the clan elders intervention on your behalf, the father may either be obstinate or will give you a small inadequate piece of land.
Conversely, the practice of obtaining a share from both the natal and matrimonial estates, as we found in a few cases, constitutes an advantage to the women as they get a double share from both their husbands and their fathers; notwithstanding the fact that they may not exercise effective control over both shares of their inheritance. Even then it is important to observe that the widow�s inheritance of the estate of her deceased husband is not always automatic. In many cases, it is conditional upon factors (Refer to table 1), such as the length of time that a woman has spent in the marriage. The longer one has stayed, the more likely that she will receive a share of.
Secondly, it is also determined by whether one has begotten children in the marriage, usually the more the number of children, the better the chances of getting a bigger share. Further, in Buganda it is also dependent on whether the children got in marriage are male or female. A wife with more boys in a home has better chances of getting a share of the husband’s estate than one with only girls. In polygamous homes, the above factor is very significant in division of property, although the usual practice has been for the senior wife (the one married before the other[s]) to be accorded priority. In fact, just as the division of property among children presents complex issues, the sharing out of property among wives in a polygamous family is harzardous.
We found blatant discrimination against women who had not mothered any child in the marriage. On inquiring on the justification, a range of excuses were offered, the most often cited being that the real reason for a wife being allowed to exercise rights of access to land as a widow is to look after children, especially when they are still of a minor age. According to this view, it is children who enable the women to have a stake in family estate upon death of the husband. The question put crudely to us was, “whose interests would a childless widow look after? This was stressed in cases where the widow was still young and attractive enough to catch the attention of other suitors, from without the clan. A few exceptional cases were found among the Banyankore in Bushenyi district, where the clan could decide to apportion some of the deceased’s estate to a childless widow, on account of her good conduct during her marriage.
Whereas the justification for giving daughters a smaller share (than sons) of their parents estate, was that girls were likely to get an additional share from their marriage, we came across parents with a contrary argument. They contended that since it is logically easier for sons to acquire property through the various opportunities that they have, this could not be said for daughters who face many constraints and have fewer chances of accumulating more property.
In Bushenyi, there is an emerging trend of substituting land, acquired through donations and what would be bequeathed land, with education This phenomenon has been brought about by the assumption that education exposes an individual to greater opportunities. Parents are increasingly reluctant to consider an educated child as a beneficiary of their estate, especially through donation. They would rather sell off excess land, than allocate it to an educated child. Similarly, parents are reluctant to offer land to their sons, due to their lack of confidence in them. With the parents concern for their (male) children�s lack of enthusiasm, to maintain property that is passed on to them, parents attitudes towards their sons automatic rights to land are no longer positive.
>From the above discussion, it is apparent that traditional customs concerning inheritance have shifted position twice. From an apparently mandatory hereditary right to land for the sons to a consideration of daughters and wives, albeit an unequal share, to individual determination of who best suits what. As such, one can safely conclude that inheritance claims for either sons or daughters are no longer automatic. As a 40 year old man observes: Originally only boys were given a share of their parent=s estate … these days girls are also beneficiaries of land through succession … currently however, parents are discouraging their children from being heavily dependant on the natal estate … they are left to acquire their own land, as responsible grown ups. We would hasten to add that although such changes are occuring, the extent to which this is happening is still minimal.
(c) Family Access
Where family land is in surplus and the children of majority age need an independent source of income, a father may conditionally allow them to use his land for specific reasons and for a specified period. Under such an arrangement, there is no clear permanent demarcation of the land that one is supposed to use; the land is used only temporarily, in accordance with the fathers specifications. In Bushenyi, 38.8% have access to land, under such an arrangement. This land however is increasingly becoming individualised, thus reducing the opportunity for individuals to access land through this mode.
Our findings indicate that the concept and practice of access to family land is steadily disappearing. Family land (akin to ancenstral land) is described as that land which has been handed over by several generations through the male lineage. As a result, of this customary practice, the sons deem their right to family land as automatic. Hitherto, there is growing conflict generated by the son�s demand for a share, even when the father is not prepared to distribute it. In Bushenyi, in the absence of alternative opportunities for the male youth to access independent sources of income, irrespective of their level of education, several of them demand for a share even when (as required by custom) they are not yet married or in the process of marrying. There are cases where the existing conflict-resolution mechanisms are resorted to, for arbitration. In a focus group discussion conducted exclusively with men, in Bushenyi. 72.7% of the group members insisted that such claims made by their sons were customarily illegitimate. The rest (27.3%) who were mainly youth with no secure access to land, were convinced that their rights were customary. One elderly man during the focus group discussion argued that: Customarily, a male child should not claim ownership rights to land when the father is still living…. even when a son obtains a piece of his father�s land on or after marriage, he should not consider it as ownership. This son enjoys only use and occupation rights. Until he succeeds it after the death of his father, by way of an oral will that is executed by specific clan members (commonly paternal uncles).
The ever increasing population and consequently growing land scarcity have reduced the individual’s accessibility to communal and family lands and opportunities for adequate land sizes. Land scarcity and increasing individual needs have necessitated venturing into acquiring land from more than one source, with or without an explicit cost. 28.9% of the households in Bushenyi and 16.4% of those in Mubende have sought more than one avenue to access land. This is because their need for land greatly exceeds land that which may be available through customary acquisition. Thus increased dependency on borrowing and purchase as modes of access (see table 2) are resorted to.
Growing land scarcity and enabling laws have also resulted into the extinction of communal lands in Bushenyi; individuals have claimed all such lands. Depending on the sizes and location of the land, some individuals depend on their own lands for previously communal resources, like building materials – clay reds and poles; water; medicinal herbs; and firewood. Where individuals lack such resources, they depend either on the goodwill of the neighbours or relatives with the resources in their land, or they buy (its mainly water for domestic purposes that is not sold). The average size of land accessed by individual households is 3.9 hectares in Bushenyi and 4.3 hectares in Mubende district. Table 3 shows the land sizes of the interviewed households. The majority of the households have access to 1-5 acres in both Bushenyi and Mubende, followed by those in the category of 6-10 acres. In Bushenyi, most of the households practice mixed farming – grow food and cash crops and rear cross-bred animals which do not require huge expanses of land for grazing.
Table 3 LAND SIZE
BushenyiNos Bushenyi% MubendeNos Mubende%
Less than 1 8 10.0 2 2.9
1 -5 35 43.8 39 55.7
6 -10 23 28.8 9 12.9
11 – 20 4 5.0 4 5.7
Over 20 2 2.5 2 2.9
Non Response 8 10.0 14 20.0
Total 80 100.0 70 100.0
Turning to the land market as a mechanism of women gaining access to land, we observe that the women have not taken a sizeable advantage of this opportunity for various reasons. This, in spite of the fact that accessibility to and ownership of land in Uganda is increasingly being acquired through land purchases. 28.8% and 42.9% of the households in Bushenyi and Mubende respectively have acquired their land through the land market. The land market seems to be growing with increasing population, land scarcity, the advent of a monetary economy and modernisation. This is manifested by the fact that the majority of the land purchases have been made in the last decade (see Table 4). Land purchases have been made either individually by the household heads, the majority of whom are male, or jointly by the husbands and wives, from the proceeds of their agricultural produce. The latter is common when the family is seeking additional land.
Table 4 PERIOD WHEN LAND WAS ACQUIRED
BUSHENYI MUBENDE TOTAL
< 10 yrs 36 47.4 32 52.2 68 49.6
11-20 yrs 15 19.7 14 23.0 29 21.2
21-30 yrs 18 23.7 4 6.6 22 16.1
> 30 yrs 7 7.9 11 18.0 18 13.1
Total 76 100.0 61 100.0 137 100.0
Non Response 4 5.0 9 12.9 13
Although Ugandan laws are quite clear about women being as free as men to own and dispose of property, including land (Registration of Titles Act; Cap 205, 1964 of the Laws of Uganda), in practice women have not accessed the land market. The introduction of private ownership has merely shifted the form of control from communal ownership to individual male ownership. The women’s lack of access can be explained by a shortage of funds due to their income activities being confined to the garden and kitchen. Where they can muster resources with which to purchase land, they have had to do this very discreetly because most husbands perceive their wives independent acquisition of property, particularly land, as her first step towards a preparation of an independent existence. This is the very same reason husbands try to ensure that their wives do not have independent sources of income.
Given this situation, women devise several strategies. In Buganda, some women arrange to secretly rear domestic animals, especially pigs, cows and goats at the home of a relative, have them sold and, then gradually, secretly purchase land without the knowledge of their husbands. Although this is at times an effective strategy, it has an inherent problem; a woman becomes very vulnerable to dispossession because most often she has to purchase the land in the names of a brother or a son who can take advantage of this fact to declare the land as his.
There is also a problem that potential sellers are most often reluctant to sell to a woman without due consent and approval of the husband or male relative – sometimes for fear of being wrongly accused of having a sexual relationship with a man’s wife. The woman who is forced to transact in land stealthily, is also vulnerable to the seller. The transaction involves an assurance that the seller will not disclose to the husband any aspect of the transaction, implying a possibility of being cheated by the seller. We also came across “liberal” husbands, who felt their wives had every right to independently own property, including land, while in marriage. Beneath their outward sense of fairness, we were able to detect that the hidden reason for their acceptance of women owning property was their perception that any such property would ultimately be for the good of their children, and in some cases, for the men themselves, especially where their income is inadequate for the family needs.
With respect to income, the division of labour is such that the wife is usually responsible for food crops and the husband for cash crops and livestock products, in the case of Bushenyi district. This means that the wife’s chances of acquiring money are reduced, from the onset. Even where a wife has surplus which could be marketed to earn an income, the power relations in the majority of the homes are such that it is the husband who exercises exclusive discretion over what the proceeds from farm produce are used for.
Interestingly, most men openly claimed joint ownership of property independently acquired by the woman during her marriage, especially land, while at the same time they enthusiastically denied their wives a reciprocal ownership of what the men acquire after marriage. The men reasoned that they deserve a share of this property, since it is the conditions in their homes which facilitate women to acquire the property. On their part, the husbands are themselves secretive when transacting in land, to such an extent that their wives are often kept ignorant of such transactions. They can sell off part of the land without consulting their wives, just as they can buy other pieces of land without the knowledge of the wife. The result of withholding information from one’s spouse about such transactions is that it becomes very difficult for the other spouse to follow up, when the owner dies. As far as land markets are concerned as a means of access to land, the women are again constrained, though this time in a subtle and latent manner. It is those women who are single, either separated or unmarried who are relatively free to transact in land
The fourth major avenue of access to land for women is through borrowing. Land is lent mainly by those who have land in excess of what they can use. Needless to mention, this is a very tenuous and short-term form of access. Among the challenges faced by women with respect to borrowing is the fact that most of the people in a position to lend out land are men and as such women, because of their status in society cannot effectively negotiate with them on good terms. It is also important to mention that borrowing enforces obligations on the borrower, terms that are more or less equivalent to share-cropping. This is because those who lend out land expect, as a matter of right, that the borrower is morally (and at times obligatorily) bound to give some share of the produce to the lender.
Some lenders go to the extent of fixing this portion before hand, irrespective of the fact that the risks in farming make it impossible to be certain about the yields. Added to this is the problem of lenders lending out either marginal land which is not potentially very productive, or lending out very outgrown bushes with a view to the borrower clearing them and using the land for only one or two seasons before reverting it to the owner. Lenders also have the habit of lending out land they are sure will act as a buffer zone between their gardens and vermin. Besides people are reluctant to lend because there have been cases when the borrowers have claimed absolute ownership in event of the death of the lender. All these circumstances make it very hopeless for women to rely on borrowing as a secure mode of access.
All in all, access to land is becoming increasingly difficult as population increases and availability of land becomes scarce. With increased individualization and further fragmentation the prospect of new entrants gaining access to family land become dimmer. Customary rules to land access, through inheritance, donation and family access are being replaced by the individual relationship that the land owner (father and husband) enjoys with the intended beneficiaries (especially the children and wife). Land is increasingly becoming scarce for those without the means to access land markets. As dependency on land markets grows, fewer people (only those who can afford) can cope with the demands of the land market. In Mubende, the dominant tenure type (mailo tenure) presents an additional dimension to the landlord – tenant relations.
The women in particular are faced with several problems that hinder their access to land; the major problem being custom which necessitates women�s accessibility through male mediation. This implies that women are no longer guaranteed secure access, like it was traditionally; rather their access is now conditional on several factors. Their secure access is limited by the interplay of both traditional customs and the changing demands caused by the process of modernization. For instance, not all married women under a polygamous marriage have land that they can subsist on. As a 56 year old woman observes : A husband cannot provide land for his new wives. This is because he is economically incapacitated and fewer and fewer co-wives are able to live together in harmony.
Denial of women�s land ownership rights and limited access to land is therefore mainly due to patrilineality and the socioeconomic circumstances within which the law operates. Culture denies women in Uganda access to real and personal property whether it is discriminatory inheritance, divorce or customary law. In many cultures in Uganda, the commonality lies in the traditional division of rights and responsibilities which usually places women in an inferior position – that of total dependence on the men and the consequential dominance. Women are further disadvantaged by their poor economic status which renders them vulnerable to land markets. The land markets tend to favour those with the least need but the greatest resources, at the expense of those without resources but with the greatest need and no guarantee of alternative forms of livelihood. Other factors include lack of education for the majority females, harsh economic reality in the context of scarcity and male attitudes.
Looked at broadly, therefore women are systematically disadvantaged in practice in all the main modes of access to land. This is irrespective of what the law says because the practices usually followed are based on custom and tradition, both of which relegate women to an inferior position. In our assessment, the women themselves have not been very militant in enforcing their rights of access, largely because they have accepted their status quo and, more still, are consoled by the fact that at the very minimum, they are assured of some form of usufruct rights to land.
There is still considerable controversy surrounding the debate as to whether women do actually need independent rights to land. In the mainstream economic thinking, employment has hitherto been taken as the principal measure and guarantee of women’s economic status. This has obscured the would-be self-evident yardstick, that of property ownership and control. There has also been a long-standing assumption in economic theory and development policy that the household is a unit of congruent interests, among whose members the benefits of available resources are shared equitably, irrespective of gender. To argue therefore that the economic needs of women require a specific focus, distinct from those of men is to challenge the above assumption. But to further argue that women need independent rights in land, (the most critical form of property in agrarian economies) is to challenge the assumption that women’s economic needs can be accommodated adequately merely through employment and other income-generating schemes.
In exploring the link between gender subordination and property, it is necessary to look beyond the distribution of property between households to its distribution between men and women within households. It is also vital to view beyond who owns property to who controls it. From our discussion of factors affecting access, it is already evidently clear that equality in legal rights to own property does not, by all means, guarantee gender equality in actual ownership, nor does ownership guarantee control. The distinctions between law and practice and between ownership and control are, as we shall elaborate later, especially critical in the context of gender. There are real barriers to exercising women’s legal rights to land and exercising effective control over what women nominally own.
In examining the question of control, the approach that we have adopted is to delineate the actualisation of whatever rights are vested in the male and female members of a household unit. In practical terms, this entails unraveling the power relations within the family with respect to who determines what use the available resources, particularly land is put to, followed by scrutinising who determines what is to be done with the product from the land and what form of activities are to be carried out on the land. Using this approach, we found that the above three situations are structurally linked to, and are often a direct result of, the as yet rigid division of labour within the family, and the common practice that it is women who change residence at marriage, going up to join the homes of their husbands.
2.4.1 Women�s Rights to Land
Customarily, land that was a communal asset, was passed on among the male, at least in as far as its control was concerned. The introduction of private ownership merely changed the form of control to individual male ownership from communal ownership, implying the change did not affect the position of the males over women who remained in the subordinate role of using the land. The exclusion of women from property ownership, according to the majority of men, rests on the need to preserve family property within the lineage and to effect it�s disposal only within the husband�s lineage.
Our findings in Bushenyi indicate that a married woman has the right to use the land belonging to her husband to grow food crops that are consumed by the family. She also grows cash crops and participates in rearing livestock, depending on the availability of her husband and/or supplement farm labor. The husband, however, takes keen interest and is particularly responsible for determining what cash crops are to be grown. The wife has the right to use other resources available on the family estate, namely water, firewood, grass and any other resource required for domestic purposes. She will determine what produce is enough for her family, and therefore surplus available for sale. A woman�s right to the production decisions and income from the proceeds is not absolute, as shown in table 5. A wife does not have the right to the income derived from the sale of crops or animal products, like milk and meat. She cannot decide on the use to which the proceeds can be put, without consent from the husband.
Table 5 Authority within a family
Father – all Power Mother – some power Other family members – some Both have powers
Authority Over: BUSHENYI MUBENDE BUSHENYI MUBENDE BUSHENYI MUBENDE BUSHENYI MUBENDE
Nos % Nos % Nos % Nos % Nos % Nos % Nos % Nos %
Production Decisions 26 32.5 52 74.3 37 46.3 10 14.3 8 10.0 4 5.7 9 11.3 4 5.7
Disposal; of Produce 6 7.7 51 72.9 17 21.8 7 10.0 5 6.4 1 1.4 50 64.1 11 15.7
Income from Produce 57 71.3 45 64.3 10 12.5 18 25.7 4 5.0 7 10.0 9 11.3 – –
The limited power that a wife enjoys over production decisions mainly concerns food crop production. She also has a limited right to dispose of the produce, since she has to consult with the husband on the use and disposal of the surplus from the food crops.
As regards the all-important issue of division of labour, it was found that in the rural areas the gender roles are still rigidly defined by custom, some tasks are defined as women’s, while others as men’s. Even where there has occurred an inversion of roles so that sex or gender is not the determining factor, one found, unfortunately, that the definition of such roles still remained as stereotyped, and there was some stigma associated to the role inversion.
Two major tendencies were observed. There is still a widespread practice of men being responsible for cash crops and livestock rearing, while women are responsible for food crops. Secondly, and consequent on the above, the main domestic chores and the detailed welfare of all the family members is the responsibility of the wife which leaves the husband ample opportunity to curve out a public role outside the home, basically in the public sphere. On the positive side, the fact that the woman has to look after the home, makes her exercise considerable control over the land use pattern. But even here the man exercises what amounts to an ultimate veto. There was indeed a particular incidence in Mubende where the alleged cause of a rowdy separation was due to the woman reaching an extent of not tolerating the overly restrictive injunctions from the husband regarding land use.
Interestingly, even where the division of labour was such that the man was responsible for cash crops, he still wielded the final say with regard to whether the woman was free or not to dispose of the surplus food crops in the market, not to mention what the money so-earned was to be used for.
There was an upward trend towards joint responsibility and control within the homes between the spouses, but, as has been noted before, this was more visible in those homes where a wife was making a significant contribution to the income of the family (normally away from the family farm), or played a big role in the acquisition of the property owned by the home. It was also observed that there is an emergent trend to consult, or at least inform, the wives before their husbands undertook most major decisions that affected a family. Big decisions like the disposal of part of the family land are now increasingly, having to be sanctioned, or at least approved of, by women. It is therefore quite instructive to examine what has changed in terms of who can do what with the land. From the above observations, we can safely conclude that although the dominant trend, both in Bushenyi and Mubende, was for men, as heads of households, to exercise superior rights in the domestic power relations, the configuration of power actually varies from home to home, with varying degrees of women’s involvement in the core decisions.
Control of land, and therefore the rights that an individual enjoys on land, also depends on the mode of land acquisition and is currently effected in three major ways – through activities carried out on the land; land transactions; and decisions made on the income generated from the (crops and livestock products) produce sold.
Table 6 Control of Land
YES NO TOTAL
BUSHENYI MUBENDE BUSHENYI MUBENDE
No % No % No % No % No %
Restriction on:Land Transactions 26 32.5 42 60.0 54 67.5 28 40.0 150
Land Use 32 40.0 36 51.4 48 60.0 34 48.6 150
According to our findings (See Table 6) 32.5% and 60% of the respondents in Bushenyi and Mubende respectively, have restrictions on land transactions imposed on them by the (previous or current, depending on the acquisition mode) land owners. Restrictions on Land use are imposed on 40% and 51.4% of the respondents in Bushenyi and Mubende respectively.
Where land has been purchased or inherited, the controlling authority, who is also the owner, is the household head. Depending on the land tenure system in question, those who have acquired land through purchase generally have no conditions attached to the land. Ownership belongs to an individual – the head of the household, who is male in most cases. Individual ownership is premised on the perception that the interests of the family shall be catered for, since a family is considered as a necessary and fixed institution founded on principles of affective caring and sharing. In reality, however, a family is a social unit based on unequal powers relations, and is a possible site of conflict. Depending on the position that an individual occupies therefore, different members within the household enjoy different rights.
Among the Banyankore, where land has been received as a gift (donation) or borrowed from the father, the father remains the controlling authority. He determines the nature and quantum of rights that an individual shall hold on the donated/borrowed land. Individuals who acquire their land through donations from their fathers, are given land with specified boundaries. This land, is more often than not, given to a son when he marries, as a means to nurture a family. The individual who acquires donated land is normally free to grow crops, rear livestock and build a house for his family. He is, however, not allowed to sell, mortgage or lend out this land, without conferring with the male relation (largely the father) from whom he acquired the land. On the father’s death, the individual inherits this particular piece of land and is free to do with it whatever he pleases. However, if it is a woman inheriting mainly from the husband (and occasionally from the father), she is not allowed to sell or mortgage the inherited land. She is expected to maintain the land until her death or she chooses to leave her marital home. In such circumstances, her sons, in the absence of whom, the heir to the deceased husband, reclaims the land. Unlike those who acquire donated land, those who are granted temporary use rights (lending!) by the male relations (father, brother or husband) on the family land, are heavily dependant on the owner of the family land for continued use. No specific boundaries are drawn, under this arrangement. The owner is free to allocate any portion, as and when he feels like. The owner restricts the activities that the individual can carry out on the borrowed land. Such restrictions include those related to construction of a permanent house or any other structure; growing trees or cash crops; utilisation of resources, like firewood and building materials. Disposal of land through sale, lease, mortgage or lending is completely out of the question, for the beneficiaries of the borrowed land. Their rights are strictly limited to use rights and the improvements derived from their labour. On both borrowed and donated land, the controlling authority retains the right to terminate the rights enjoyed by the beneficiaries. A father is free to dispossess the son of land, where the latter’s misconduct is unacceptable to the former. Misconduct is not necessarily related to the (mis)use of land but also to the respect that the son gives to his parents; to the working relationship with the parents/ especially the father; and sometimes, to the conduct of the son towards the entire family or clan. A father may decide to punish his son through dispossessing him of land that he was previously given; the son is therefore denied of basic survival and stripped of status because he has failed to conform to the norms of society as perceived mainly by the father.
When viewed from the land tenure system prevailing in a particular area, control is exercised at various levels. In Mubende, where mailo tenure system prevails, control is exercised on two levels – the family and the community. At a broader level, the landlord (owner of the land/ttaka) imposes restrictions on his/her tenant, on acquiring land and depending on the manner through which the tenant has accessed land. Such conditions include the absence of the tenants right to sell, mortgage or lease the land; to grow or harvest trees on the ttaka, to build a permanent structure (house), and to grow specific crops, especially perennial crops. The tenant accesses the ttaka through a premium and regular (commonly annual) rent determined by the landlord. On complying with the specific requirements of land regulations set by the landlord, the tenant is considered a kibanja owner. At this level, she/he is a legal owner of the developments on his/her Kibanja and his/her interests on the kibanja are transferable to a person of his/her choice. The tenant can dispose of the kibanja, through sale, provided s/he informs the landlord of the transaction carried out on his (allocated) ttaka.
At the family level, inspite of the differences in the tenure systems, the relations pertaining thereof are defined by custom. It is therefore not surprising to discern similarities in both areas under investigation, in regard to rights of family members within a household, since these are particularly shaped by tradition and custom. In order to appreciate the question of women�s rights, it is pertinent that we unfold the issues pertaining to control at the family level.
Land obtained through inheritance confers specific rights to an individual. Under the customary tenure system, the successor is free to do anything on the land. He can sell, lease, mortgage or lend the land. He can use the land in a manner that he pleases. To a large extent, these rights, are also enjoyed by the beneficiaries from land purchases and donations. The differences, however, vary according to the individuals involved in exchanging the land. For instance a father may, through his will, instruct his heir never to sell or mortgage the land that he has bequeathed the latter. This applies largely to women who benefit from both the natal and matrimonial estates. The purpose for which such restrictions are imposed under customary acquisition (inheritance and donation) is to ensure that such (family/ancestral) lands are maintained within the family/clan. Some women, whose land was obtained through donation or inheritance may be free to lend but not to sell such land. Similarly, the right to mortgage or build a permanent structure may be restricted, according to the previous owner of the transferred land.
Among the Baganda and Banyankore, like several of the other ethnic groups in Uganda, patrilineality is the main reason for denial of women�s right to own or inherit land. The women possess only use rights on the land in their marital homes. All the women with access to land enjoy various rights to land due to their particular relationship to the male. Since their rights to land are appended to male relations – husbands, brothers and fathers, the women do not possess full control over the land, even when the particular land in question was bought from the proceeds of the wife’s labour. Where the deceased dies intestate, the clan, through its elders, appoints a heir, normally the eldest son. The heir takes over all the rights and responsibilities of the deceased. He attains absolute decision-making power, thus makes all major decisions concerning property and family affairs. He also reserves the right to recover bridewealth when a widow decides to leave the matrimonial home. The clan appoints a caretaker to inherit (take care of) the widow. A heir may take over a widow if she is not his mother. In instances where the elder brother of the deceased is appointed heir, he can also be caretaker so that he takes over the widow. In such a case, the heir is also caretaker and can have sexual relations and produce children with her. If the widow refuses to be inherited, she loses access to all or part of the property and sometimes, is chased out of the matrimonial home.
Wills, whether oral or written, have offered some form of protection for the widows and children of the deceased. The family therefore, depends on the good will of the deceased to protect their property from the in-laws. Our findings indicate that most of the wills are respected. In some cases, where the will seems to favour the widow, the in-law either change the will to suit their interests or they hide them so that the contents are not disclosed. Tampering with the will is more common where the widow is given more property than the rest of the dependants, or where she is barren and/or where poor relations exist between the widow and in-laws.
The majority of women whose husbands have obtained holdings through purchase do not necessarily enjoy the same rights as their husbands. They do not have the freedom to do anything. They are free to cultivate and occupy such matrimonial estates. Depending on the controlling authority (husband or father), they may neither have the right to build a permanent structure, nor sell the land, after the husbands death. They may need to consult the father or brother(s) of the deceased before growing perennial crops, like coffee, bananas or tea. The women may not even be free to carry out projects of their choice on the land. A 30 year old women observes. A woman is not free to undertake projects that may be initiated by women�s clubs, on her husband�s land …. If they are big projects especially, like brick making, my husband will say that I am spoiling his land.
On the other hand, acquiring land through the family access mode places restrictions on the beneficiary. Their rights to land are only usefruct, as several respondents indicate: … can only dig a garden of food crops and graze my few goats.
33 year old male.
… My father controls the activities that I can do on his land.
Single woman with a child.
…… I can only dig my garden of potatoes, but cannot sell, lend, mortgage or give it away to anyone as a gift……. I am not even supposed to plant long term (perennial) crops like bananas, coffee or trees.
A 24 year old man married with one child
…. I can use resources from my father�s forest … Occasionally, he can allow me to sell some trees to generate some money that enables me purchase personal items.
22 year old single man
>From the (women) producers point of view, the fact that the (men) non-producers are the controlling authority, both at the (family) micro and (national) macro levels points to a major obstacle that hinders development, through agricultural production. The women argue that production is affected by the lack of recognition and utilization, by the men, of the experience obtained from managing the farm. This is manifested in the manner in which decisions are arbitrarily made by the man, according to his priority (selfish) interests and needs which may not necessarily confirm to the producers (women) or the family needs. Such decisions include those related to the use of the land. The woman lacks the authority to determine to what use land should be put, in spite of the fact that they are the managers of production on the estate. They also lack the authority to determine the use of the income derived from the produce. Although several women were reluctant to admit, in the presence of their husbands that they have no or little control over the income earned from farming, it has been clearly observed through intense discussion with them (during the focus group discussions), that the ultimate authority lies with their husbands or fathers. In Bushenyi, 81.3% of the respondents claim that the income derived from the family produce is spent on family needs, related decisions on income use however are largely determined by the, largely male, household head. This is mainly evidenced by the division of labour pattern where a man is not actively engaged in an income-generating activity away from the farm, his work is mainly confined to the growing of cash crops and livestock rearing (zero-grazing). The woman will then be left to grow food crops. One respondent, a thirty (30) year old single mother, attempts to describe the nature of authority within a typical family in Bushenyi : ….. My father is the individual with full authority. In circumstances where other members� decisions are rendered important, my fathers authority is followed by my brothers my mother has very limited authority, while I, because I am a girl, have no authority whatsoever.
Among the Baganda, the first practical implication of a woman�s change of residence at marriage, to join her husband�s home, is more often than not, that the man will have acquired the infrastructural basics for the running of the home, fundamental of which is a house and some land. Indeed many women clearly pointed out that this very situation explains their powerlessness relative to their husbands in terms of gender relations. We also discovered in Mubende, that there is some significant alteration to the nature of gender relations in situations where the two spouses reported that they both made a joint contribution to acquire matrimonial property, particularly land. Further than this, in Mubende as well, we actually found that in situations where it was the woman who had acquired all the land, she exercised relatively bigger discretion in the decision-making processes in the home. This finding, however does not apply to Bushenyi, where joint responsibility and contribution depends on the individual power relations between husband and wife.
On their part, the male respondents argue that they need full control over land and the products therefrom, since they have specific roles described by society that they must perform. For instance, the men are the tax payers, they need to control the sources of income in order to ensure that they meet this and other obligations. Custom depicts women as being weak and frail and therefore, unable to manage property adequately.
The women are considered as being vulnerable to the environment. One male respondent reasoned that women cannot be empowered with authority to carry out land transactions (like selling, leasing, mortgaging or hiring out the land) since, left to transact the land on their own, they would be easily duped and increased incidences of fraud would be registered. Like the majority of the male respondents, he strongly agrees with the tradition where husbands and fathers are left with the sole authority to decide on the three major issues:- land transactions; land use; and use of family income. The implications of the woman�s lack of control are several. The woman is a mere user or servant on the land of her male relations. Since she cannot independently own land, she is expected to provide (unpaid) labour for the family, in exchange for the right to use and occupy the land that she is surviving on. Her interests in land are measured in terms of the children. If a woman does not have (her biological) children to nurture, she is considered as having no justification to make any claims to the land. According to the customs governing both the Baganda and Banyankore, a woman cannot and must not need land for her own sake or in her own right. Land is accessed to her, particularly to protect the welfare of others – her parents, children, husband and his relatives, before her own interests are considered. This is why the rights to continued use and occupation of the deceased husband or even a living husband, for a childless woman, depends on other factors including the conduct of the woman as perceived by the husband and his relatives and occasionally, the length of marriage. Interestingly, the sexual conduct and sexuality of a woman greatly contributes to her rights to land. A woman who is suspected of having mothered a child who is not the husbands, a woman who is suspected of having an extra-marital sexual relationship, a woman who is “disrespectful” of a man by being uncooperative to the extra demands that accrue from her husbands extra-marital relationship is likely to suffer, by being denied even the minimal rights of occupancy and/or use rights.
2.4.2 Loss of Rights over Land.
Control over individual family members is exercised by the head of the household through his control over land. There are several ways in which an individual loses rights over land. In Bushenyi, children within the family commonly lose their rights of access, use or control when they perform illegal land transactions. A father may access land to his son with specified conditions. A son may lose rights over land, when the son chooses to sell part or all of his land without the consent of his father or, in his absence, the clan elders. An irresponsible child (drunkard, a lazy and uncooperative) and an ill-mannered child (for instance disrespectful or abusive of the father) may also lose rights over land. A father may curse an abusive son and dispossess or disinherit him. Such an individual will not receive a share of his father�s land even when the latter dies. A father may pay money to release his son from prison (bribe to court officials or enforcement officers), and then decide to forfeit distribution of land to the son or compensate himself by denying the latter continued rights of access, use or control. A child may also lose rights over land, on death of his father, when the surviving relatives choose to deny him rights. In a few cases, an irresponsible father may also sell off all/or part of his land or chase away his children with their mother, in favour of a new wife or family.
On her part, a woman may lose rights to her husbands land for various reasons. A husband may have misunderstandings with the wife during marriage and he chooses to either abandon her or chase her away from his estate. A husband may also choose to remarry and displace his wife with another woman. He may choose to live with several wives on the same piece of land, thus reducing the share of land available to the previous wife/wives and sometimes certain rights to her share of land. In some cases, the senior (in terms of length of marriage) wife may be resettled in another piece of land belonging to the husband, but which is marginal or has not been developed and is insufficient or inadequate for farming purposes, in favour of the new wife. This, in spite of the contribution that the senior wife has made, in terms of developing the matrimonial estate. An abandoned wife, a separated wife or a widow cannot choose to remarry or bear children from another man, if she is to retain a claim to her husband�s estate. On death of a husband, a widow may lose her rights over the husband�s estate to the surviving successors – commonly her children and their paternal uncles. Customarily, a woman who separates from her husband automatically loses claim over here husband�s estate.
Children within the family retain use rights to parents estate before they are married, when their relationship with the father is good and if there is adequate land on which they can grow crops, in a few cases, rear a few animals – goats and cows. Table 7 indicates that 71% of both sons and daughters who get married, lose their rights to their parents� estate. The reasons for lose of rights to the parents estate differ in terms of gender. Whereas a son, under the Kinyankole customs, loses rights over the natal estate after marriage because he has got an independent share (on marriage) for him and his family to subsist on, this does not apply in case of a daughter. A 50 years old female respondent, commenting on a daughter�s lose of rights to the parents� estate remarks: Your parents and clan believe that your share (of land) is in your Husband�s estate… once you are married they think that whenever you go back to your father�s home you are a mere visitor, no longer part of them … so you have no rights over the (parents) estate as a married woman.
Today, there is an emerging change of attitude of the parents towards the question of whether a daughter retains rights to the parents estate after she has married. This change is premised on the increasing incidence of marriage instability and thus separation of couples; the increasingly perceived reliability of daughters to maintain the family property (unlike sons who are believed to be interested in selling it off); and the comparative appreciation of the daughter�s contribution towards the parents, even after her marriage. Therefore, a daughter retains rights to her parents� estate either as a cushion against marriage failure or as a reward for her contribution towards her parents welfare and a relatively high sense of belonging or attachment to the family land. This is why in Buganda, single (dispossessed, separated/divorced or unmarried) women are the major custodians of the family burial grounds (ebijja). This is also true for other cultures in Uganda, including the Banyankore.
Table 7 Retention of Rights in Parents Estates
Yes No Total
Nos % Nos % Nos %
Male 8 18.2 36 81.8 44 30.3
Female 34 33.7 67 66.3 101 69.7
TOTAL 42 29.0 103 71.0 145 100.0
As fathers gain improved rights as a result of individualization of the land in Uganda, the children must ensure that their good relations with the father are maintained. A trustworthy and well behaved child is more likely to retain use or ownership rights than an irresponsible and ill-mannered one. It is up to the father to choose whether you retain rights to his estate.
In event of the death of the father, the daughter rights, in spite of the Father�s wish to have her retain rights, are not guaranteed. Her brothers and uncles may use up her powers to the estate that the father bequeathed her. They may also change the nature of rights that she can enjoy by imposing fresh conditions on how to use and dispose the land in question. A woman loses rights to her husbands estate through the dominant control over land that either her husband or his surviving relatives (in case of the husband�s death) enjoy. These include specific circumstances where a woman does not oblige to what is customarily required of her like performing reproduction and production functions. A husband who considers his wife�s roles falling below his expectations has the power to dismiss the woman, and in most cases replace her with another. As we have already indicated, she may be denied access to her parental estate, on return to the natal estate. A widow who remarries or is suspected of indulging in sex with a man (especially from without the clan); a wife who separates with her husband; or a woman who bears a child outside marriage or commits adultery; in spite of the number of children and responsibility that she has over the family may lose rights over the matrimonial estate, depending on the will of the husband or his relatives.
Through the man�s, sometimes incorrect and, sole decision making, his wife and family may lose rights automatically. Such cases include, a man mortgaging the family / individual land and fails to repay the loan; a man who individually wrongs community members and has no alternative source of income to meet community obligations. In Bushenyi, for instance, the circumstances under which one loses rights over land are where a woman (wife) separates/divorces with her husband (22.5%); where the controlling authority (father/brother) dispossesses the land user/ son/ daughter/ brother etc) of the land (31.3%) for misconduct, illegal land transactions; and/or where government repossesses land for development purposes. Rights over land can also be lost where a husband/father (controlling authority) sells off the land either for selfish reasons or through distress sales) (42.3%). To illustrate the fluidity of control that other members have over “family” land, we came across a case in Bushenyi where a man was caught committing adultery, and made to sign an agreement, witnessed by local council (LC) officials, that he had sold off his land to the husband of the woman with whom the “offence was committed”.
2.5 Changes in Customary Practices.
In this section, we shall attempt to highlight what the researched communities perceive as the changes that have occurred in the customary practices that were gender discriminative. In the process, we hope that we shall bring out the factors that have caused these changes.
Representing the view of the majority of the respondents, a 24 year old youth council chairman observes: (President) Museveni�s government has brought about major changes…. since his government came to power and through education, people in society have realized that all children are the same and should be treated equally… people have realized that, in most cases, if a girl gets married and the marriage fails, she has no where to go to. This has caused most girls to resort to prostitution to suffer from AIDS and subsequently, death… so if they have land they would not suffer.
A 49 year old retired Grade III Teacher and Chairperson of a Local Women�s Council laments: …… Broken marriages are several these days due to poverty, lack of education, heavy drinking and redundancy of many men, ….. leading to the suffering of women. So parents have opted for giving their daughters a share of their land so that they do not suffer …. People have realized that given some opportunities, girls are as equally useful as boys.
In an attempt to explain the reasons for the positive attitudinal change regarding securing women�s access rights to the parental estate, a 30 year old male respondent remarks: In the past, a male adult would get married before getting land and on getting married, he would receive a share of land from his father as a basis for building and maintaining a family …. Today, some children demand for their share from the parents, and when the parents give it to them, most children misuse the land by selling it off and playing matatu (gambling)…. these men consider land as a quick means to obtain income that will solve their immediate needs, in the absence of employment. >From the above statements, it can be confidently argued that there exists an emerging trend of the parents reconsideration for land allocation to their daughters. A father�s decision to give the daughter a share of his land is premised on the married daughter�s lack of security and control over her husband�s estate and the lack of confidence that the fathers have of their sons, regarding preservation of family land. It is also based on the growing realization that it is the absence of equal opportunities that the girls remain in a subordinate position and therefore a lower and unprivileged status in society. The change of attitude and practice signifies a shift from a daughter being one of the “properties” that her brother succeeds from the father to one who can have access to family property. The daughters access to the natal estate, however, does not necessarily imply control. Rather, the daughters who have benefited from this particular change are also those whose rights, especially of disposal are restricted.
A few of the widows can and have inherited their husbands estate, with a relatively greater degree of control and autonomy. This change signifies a shift from getting no share at all, to getting a smaller share (belonging to the widow and her youngest son), with specific restrictions concerning use and disposal, and then to receiving the whole estate with a considerable degree of control and autonomy. One female respondent, who is a beneficiary of this new arrangement comments:
I am the head of the family, after the death of my husband….. when I die, my children will take over all the property then when the children are old enough, they will consult the elders who will give each child his share … all this will be controlled by the heir, the oldest child or any other surviving relative, to whom I will assign the responsibility. The possibility of women who have not been able to bear children in their marriages, retaining rights in their husband�s estates, exists, however limited. As noted earlier, her rights depend on the good will of the husband or his relatives, in event of his death.
A few woman, especially in Buganda, have resorted to risk their marriages by purchasing land, independent of their husbands. These women have independent sources of income which they depend on, for access to land markets. All of these purchases, however, are still carried out secretly. It is easier for a woman who is known to be employed to acquire independent property, rather than a housewife who is assumed to have no independent income, since all that she does and has access to, belongs to the husband and, sometimes, his clan.
Privatisation of land has greatly reduced the scope of authority that a clan has over individual land holdings. With increased competing needs amidst land scarcity; changing attitudes that are accommodative of modernisation; education; and commercialisation of agriculture, individuals have exerted more control and influence over the land that they own, and to some extent, the nuclear family institution has been strengthened. Hitherto, the clan, through its elders, retains the right to resolve disputes; to distribute land of the deceased; and to enforce the will of the deceased.
3.0 STRUGGLES FOR WOMEN�S IMPROVED STATUS ON LAND
3.1 Rural Women�s Struggles
Apart from about 15% of the female respondents in Mubende who have openly admitted to a secret purchase of land and other property, married women are still reluctant to disregard customs which restrict them from acquiring independent property. Responding to the question posed to them regarding what they can do as women to improve their land rights, 47.9% of the women in Bushenyi and Mubende said they could join others when opportunity arose to struggle for their rights, while 12.6% considered any effort, individual or collective, to reverse women�s status on land, futile. The latter were pessimistic about the possibility of woman enjoying stronger rights than they presently are.
Individual efforts included seeking remedies from the local council courts, chiefs and district courts; encouraging their husbands to write fair wills and seeking legal assistance from FIDA (Federation of Uganda Women Lawyers) legal clinics. Our visit to the district court, showed that fewer land-related cases are being handled by the court, since the Local Councils (LCs) were granted judicial powers to deal with such cases. We discovered that the district court in Bushenyi had handled about sixteen cases involving gender-related land disputes, for a period of (1984- 1990) six years . Of the thirteen cases that we had access to, 15.4% had been technically dismissed, 30.8% had judgements passed, while 53.8% of the cases had been withdrawn before passing judgement.
The majority of the presented cases were concerning either women who were disgruntled about an unequitable distribution of matrimonial property by their husband amongst the wives or dispossession of the women by male relatives. In the latter case, the relatives either forcefully grabbed the land from the women, like Nakajugo v. Byasoba or sold it without the wife�s consent, like Inid Nyamagoye v. Samu Nyamagoye and Boaz Birungi . An example of the former case, Yokana Babichengire v. Edurayi Babichengire , is where the lawful wife, married for 34 years complains about a husband who gives her a smaller share, in favour of his second wife, in spite of the substantial contribution that she had made to the development of the estate. There was also a case where a parish chief takes advantage of a widow�s vulnerable position and grabs part of her land which he sells to the widow�s uncle – Harriet Komuruka v. Rwamuhanda Natukunda and Yorokamu Facian .
>From the above scenario, it can reliably be argued that the women�s struggles are frustrated by the existing ineffective conflict- resolution mechanisms which do not necessarily protect the interests of the vulnerable women. The majority of the women who have sought recourse to the courts of law have not received deserving attention; they have either decided to withdraw their cases or ended up losing them. Either the courts have dragged the cases, implying heavy costs required to pursue the case, or the demands made by the courts, whether direct/official or not, like bribing the court officials, have discouraged them. The technicalities of the court have also discouraged individuals further, in this case, 15.4% who could not benefit from a fair hearing since their cases were technically dismissed. Admittedly, the long court process requires women with a firm economic base, in order to be able to effectively utilise the existing conflict-resolution mechanisms.
Regarding the form of collective efforts that women were currently involved in, to strengthen their status on land, 35.3% admitted that nothing was being done collectively, while 54.6% argued that they were doing something collectively to change their status. Collective efforts included organizing seminars, through their local clubs or women�s organizations in liaison with women�s and other national organizations that sensitized them about women�s rights and how to improve their status. The majority were optimistic about the women representatives to parliament that they had elected, thus giving them a mandate to address the rights and interests of their constituencies.
The majority of the female respondents pointed at the strong customary practices and institutions which denied them the opportunity to effectively organize. Fear of losing their homes especially when they had no alternative; the stigma that was associated to forceful women (in the pretext of emancipation of the woman); lack of commitment of their colleagues to the women�s movement; and lack of access to correct information; were considered as the major obstacles to the effective struggles of the rural women. Their disadvantaged position was further worsened by lack of adequate finances both to effectively carry out their struggles and as a fall back position, in event of being adversely affected during the course of the struggles.
As a result, the majority of women expect solutions from without. The rural women�s dependence on government and other sympathizing individuals or groups, mainly from the center, to effectively struggle for their rights was apparent in their recommendations for change as well as their identification of factors responsible for existing change in customary practices.
The pessimism that most women had about the possibility for change was backed by the several futile attempts that they had previously made. Whereas most women had viewed local councils at their inception especially at the grassroots level as new institutions that could sympathize with their cause, these institutions turned out to be faithful defendants of the men�s interests. The frequent rulings made against cases presented to the LC courts; the reluctance and sometimes outright refusal of LCs to interfere with “private” matters, especially when the case presented affected one of their own; and the unaffordable bribes required for them to intervene, were cited as obstacles to their struggles. The LCs therefore, turned out to be an additional male-dominated institution (apart from local and national courts of law, prisons, police), interested in maintaining the status-quo.
3.2 Other Key Actors
The significance of inequality of rights resides in the fact that it restricts what women can do with the land, how much they can invest and their sense of belonging. Apart from the few individual and collective efforts, undertaken by the researched female community, to redress gender inequality in land rights, there are several other initiatives, made through other key actors to contribute to the struggle. According to our respondents, Government has played a key role in tilting the balance in their favor. The most significant contribution attributed to Government is its deliberate effort to give women a voice, thus making them visible. The National Resistance Movement (NRM) Government, since its inception in 1986, has created an opening for women within the realm of policy and decision making in the public sphere. For the first time in the history of Uganda, a woman vice-president was appointed by the President and a few more cabinet posts have been filled by women. In the legislature, women in each (hitherto they are 45 districts) district are represented by a woman member of parliament. At the local levels, each of the local governing councils (LCs) at the various levels (village, parish, sub-country, divisions and municipalities and district) must ensure that 1/3 of the posts is filled by women. Women councils have also been formed from the grassroot to the national level. A 45 year old Local council Women Representative notes: as LC women leaders, we can talk in LC meetings, make decisions and plans at all levels. We can talk and the men listen…. signifying a change from previous attitudes and practices where men used to say that the women cannot and must not talk amongst men. The respondents, especially the women appreciate the leadership and advisory functions that the women LC leaders have played in their struggles. It was observed that these women leaders, from a strength of knowledge and connection to the authorities have, more often than not, encouraged women with land-related matters to confront the relevant authorities with a view to improve the status of the latter. Notably, this year (1998) which has ushered in the implementation of increased women representation on local governing councils is viewed among the women, as a blessing for women, whose cases were previously ruled against their favor, in male-dominated LC courts.
Women�s lack of access and control over land implies restriction of credit and marketing facilities, limited decision-making power over agricultural production activities and control over benefits by women, a condition which has a negative effect on the optimum productive capacity of women. To uplift the productive capacity of women, women councils are considered as such a tool. Women councils have concentrated on increasing the opportunities for their constituencies, in relation to income generation. They have arranged for sensitization workshops, training sessions, professional expertise on project development, all geared towards improving the status of women both at the micro and macro level. Women�s groups, like the “Bika Oguze” in Bushenyi have initiated saving and credit schemes for their membership. On the whole, Government�s provision of an enabling environment for women�s struggles, is greatly commended by the vulnerable women in the two districts.
Critically examining Government’s efforts to uplift the status of women through deliberate measures like guaranteeing a third of the positions of all local government structures, ensuring representation in Parliament and other measures under the rubric of affirmative action like giving an additional 1.5 points to female candidates seeking to enter the University, we observe that this has not only increased the visibility of women, but it has actually enhanced the impact that women are able to exert within the realm of policy and decision-making in the public sphere. This has also meant that the opportunity of finding sympathy, or at least understanding for women’s concerns at the various levels of the public fora has increased tremendously.
Conversely, it is also instructive to remark that the issue of gender equality has been vulgarised by some militant and confrontational feminists who have sought very extreme measures to ensure its actualisation. One effect has been the perception by most men that equality, contrary to arguments raised to back it up, is meant to overthrow them from their traditional status. From the perspective of the interviewed communities, the issue of equality needs more than mere legislation and enforcement, as at the very minimum it can only be sustained by mutual love and respect and is subject to complex contestation and negotiation within each individual family. This is the more important as the domestic configuration of power is subject to very subtle factors that vary from family to family. Equality has been interpreted by most men, together with some women sympathisers (especially those of the older generation who are interested in maintaining the status quo), as being disruptive of family harmony; the reason that about 60% of the respondents are against equality and the manner in which it is being advanced.
The issue of mediation of women’s access to land through the males has largely been addressed, both in the Constitution of 1995 and the subsequent 1998 Land Bill under discussion. But as stated earlier, the gap between law and practice means that a lot remains to be done. Taking for instance, the freedom to buy land by all adult women, one cannot miss the fact that this freedom only makes sense if the women have as much money as the men, which, as we all know is factually not the case. The situation will remain such that equality among unequals will always be in favour of the stronger. It is in particular respect of this, that affirmative action makes a lot of sense. In the same context, women’s organisations, especially in the rural areas, do have a very important function in empowering women economically to enable them meet the expectations raised by the legal empowerment. This has been in so far as women access to income generating ventures has been afforded through them.
But there is also another dimension to this which resides in building group support among and for women. This has been through separately constituted groups which provide specialised services to village women, like the Association of Women Lawyers (FIDA) which provide legal aid, Action for Development (ACFODE) which has awakened women to their real life situations and Uganda Women’s Finance and Credit Trust (UWFCT) which has addressed the all important issue of credit extension to women, including those without the conventional requirement.
There are also many organisations comprised of the women groups themselves. In both cases, such groups can play a big role in the women’s struggle for land, for instance, in the assertion of inheritance claims and struggles by the landless seeking access. Perhaps the greatest impact of these groups has been at the level of creating conditions of solidarity for collective action, which has shifted women’s struggles from individual-covert efforts to group-overt resistance. Even within such groups there are still class, religion and ethnic divisions, which sometimes culminate into conflicts of interest within them. For example, middle and rich peasant households were perceived to enjoy several class-related advantages over women of poor peasant households both in the rights they can exercise, even within these very organisations, and in the share of the benefits that accrue to each. A loose coalition of NGOs dealing with women’s issues is continuously lobbying for a gender-fair tenure system and has justifiably criticised the main provisions of the proposed Land Bill. Their most significant departure from the mainstream view has been the proposal that to ensure equality between man and women in marriage, all matrimonial property, especially land should be registered jointly in the names of both spouses. Needless to mention, this is being resisted fiercely by most men. Notwithstanding this, we actually believe that if a consensus could be arrived at in this direction, it would go a long way to altering or redressing the imbalance in gender relations within the family.
Compared to customary practices, law and religion have not, in the Ugandan case played a visible role in ensuring equality or inequality between men and women regarding land. In the case of religion, it has not been used significantly in the fight for and defence of women’s rights. However, taken at the very general level, there has been a perception that Christianity, in its various forms, treats women more or less as equals to men in terms of status, at least nominally. This is in contrast to Islam where the situation is perceived to assign women an inferior position to men. But in this case, there was immense appreciation of the fact that Islam at least specifies that women get a very definite share in their parental and husband’s estate, unlike in Christianity, where this is not specified. In any case, our finding, was that whatever the religious provisions and injunctions, the tendency was for custom to override not only religion, but also statutory law. And in so far as most of the prejudices against women are embodied in custom, our considered view is that it is here that the critical efforts need to be concentrated. And, surely, this will principally mean engagement in the ideological terrain, a task we assess as harder than the battles at any other level.
Before the conclusion of the study is drawn, we shall attempt in the next section to consider two major questions. First, we shall examine what the communities perceive as the issues that require serious attention as a means to effect a significant change that will improve the status of the women on land. Secondly, we shall examine the Land Bill, 1998 in the context of the communities recommendations. By tackling the two, we hope to be able to come out with recpmmendations that are responsive to the needs and interests of the Ugandan community.
4.1 Practical Issues
Our findings indicate that women need such an interest in land as will ensure that they have control over what the land is used for; the kind of transactions that the land should be involved in; and the manner in and purpose for which the income, derived from the produce, is used. In order to realize this interest in land, there was a consensus that women�s secure access to land should be guaranteed as well as her control over land and its products ensured. Variations, however, emanated from how this could be achieved. To appreciate the differences concerning the manner in which this could be achieved, an attitudinal survey, of both sexes, was conducted, from which the following can be discerned :
(i) Women�s interest in land
(a) Women should be guaranteed a share of the family land (Table 8)
Table 8 Attitudes about whether a woman should have the right to share part of the estate
Women – some share 37.7%
Men – bigger share 34.4%
Both – Equal share 16.4%
Women – No share 11.5%
Although the majority (88.5%) seemed to be in favor of women�s right to a portion of the estate in which she has an interest, has contributed to and belongs, they are still reluctant, as to whether the question of gender equality should apply in land distribution.
(b) The share should be obtained from where they belong (Table 9)
Table 9 Opinion about Source of Land distributed to Women.
Marital estate 54.5%
Parental estate 45.5% In light of the changes that have occurred in society and the consequent necessity for change of some of the customary practices, there seemed to be no serious resistance to the girls/women acquiring rights to the natal and/or matrimonial estates.
(c) The Majority were in favor of a single share being obtained by women
Table 10 Attitude towards the number of shares a woman should get.
Single share (either natal or marital estate) 60%
Double share (both natal and marital estates) 40%
(d) A childless mother/window should partake of the marital estate (Table 11)
Table 11 Attitudes towards the right of a childless wife to the matrimonial estate
Yes – Should get a share 63.0%
No – Should not benefit 32.6%
It depends 4.3%
(e) A significant number of the respondents was against (gender) equality in principle since it contravened customary law (Table 12). Here “equality” is considered from the respondents perspective.
Table 12 Attitude towards Gender Equality
It depends 10.3%
Do not understand 13.8%
(f) The majority supported the idea of widows receiving a share of the marital estate (Table 13)
Table 13 Attitude towards Widows sharing the Marital Estate.
It depends 5.9%
(g) The majority favoured joint ownerships of marital estate (Table 14)
Table 14 Attitude towards joint ownership of the marital estate
Other safeguards that were suggested as safeguards against dispossession of Women�s estates include:
Writing of valid wills – recognised by laws
“Popularising” the manner of estate distribution, by the estate owner, before his/her death. All members of the immediate and extended member should know the manner in which the estate is distributed or intends to be distributed.
All members of the (immediate) family – of majority – should be directly involved in the decision-making process of issues that concern the property and welfare of the family
Joint contribution of labour on the estate by all family members
Joint consultation and decisions made on income derived from the produce
All children, borne of a spouse must receive a share of the marital or husband�s estate.
(ii) Key Actors and land rights struggles
All stakeholders should contribute towards the struggle for equality in land rights.
Government should legislate and implement land laws that ensure equality of rights between women and men.
Government, NGOs, Religious institutions and members of parliament should, through Mass sensitisation, educate people especially women, about their rights and the existing laws, with their implications on equality. Land use planning and management should begin at the family level, where all family members, of majority age, should participate in the decision making process.
Women should build their own confidence by getting involved in activities in the public sphere. They should not confine themselves or be confined to the private / domestic sphere alone.
As to whether women should join groups that are geared toward improving their status there were strong feelings raised both for and against. The men�s opinions about this particular aspect was premised on their perception of the (especially material) benefits that the family would derive from her involvement in woman�s groups (Table 15)
Table 15 Attitude towards women�s involvement in women�s groups.
Both men and women should attend and make use of sensitisation and educational initiatives, so that these struggles are approached from the strength of knowledge .
Non Governmental Organisations (NGOs) should strengthen the women�s bargaining position by providing sustainable means to generate income. For instance, credit, technical and infrastructural support should be provided.
(iii) Land Management and Conflict Resolution
All family members should be involved in the decision making process of family land.
Clans involvement in land distribution and conflict – resolution should be phased out gradually in favor of local community formations that are representative of the (previously) marginalised groups like women, women�s with disabilities and the children.
Land management bodies at all levels as well ad conflict-resolution mechanism should comprise a gender sensitize structure.
All members of the local governing councils should be sensitised about women�s rights and land issues, as a means to strengthen the community�s knowledge about issues which greatly affect their lives.
All land management bodies and tribunals should be constituted by a representation of women and other marginalised groups
4.2 THE 1998 LAND BILL IN PERSPECTIVE Currently, there appears to be a serious inclination to fight for women’s rights, from all aspects – legal economic, social and political. The 1995 Constitution of the Republic of Uganda, in particular, entrenches women�s rights. Article 26(11), for instance, guarantees women a right to own real and personal property, while Article 33(6) prohibits laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status. Inspite of such prominence being given to the issue of women’s rights, the Tenure and Control of Land Bill, 1996 does not seem to sufficiently address the plight of women.
The current draft Bill on land is based on the 1995 Constitution which vested land in Uganda citizens according to the existing (de facto) four tenure systems, and the recommendations of the 1989 Study of Land Tenure and Agricultural Development carried out by the Land Technical Committee. Like many other Sub-Saharan African countries, the proposed land law reform in Uganda, shows a marked trend towards land privatisation; and greater security of private land rights in the interests of greater efficiency. This tendency fits very well with external pressures by donor agencies to liberalise land tenure arrangements under Structural Adjustment Programmes and the modernisation goal of the National Resistance Movement Government.
The major limitation to an inclination towards recognition of stronger private title, in accordance with Western notions of freehold or Civil Code ownership, is the failure to recognise the acute social need of the majority peasants in rural areas, who need land essentially for survival. To what extent does the emphasis on “efficiency” alone enhance women�s rights to land? Similarly, to what extent do such land tenure laws and policies respond to the existing changes, needs and competing demands – which require balancing equity and efficiency in the proposed land tenure systems. How can fair claims procedures be established in a situation where land was acquired and expropriated in a manner contrary to the principles of international human rights law, through forcibly expropriating land without fair compensation?
In line with Structural Adjustment thinking, the technical committees recommendations unduly and almost exclusively are based on “economic” criteria, totally disregarding the social consequences of their proposals. The proposed land reform law, premised on the market mechanism, can be best described as inequitable; it favours those with the least need but the greatest resources at the expense of those without resources but with the greatest need and no guarantee of alternative forms of livelihood. The implications of the proposed land bill is that the majority small holding peasants who largely depend on their land for survival, shall be left with no option but to sell to the ‘haves’ their land and labour. Ownership of land will then be concentrated in fewer and absentee owners who facilitate exploitative and rent relations in land use resulting into inequality in landed property and absentee landlordism. In the proposed land bill, the traditional structures, such as clans, lineages and families, that govern land matters are disregarded, yet they are key institutions that uphold the interest of the citizens.
The need for protecting women’s secure access to land in light of the fact that women are the major land users in the country, providing 70-80% of labour in agricultural production and over 90% in food crop production and processing is not given its due. Ins pite of this high labour – input, women in Uganda are reported to own 7% of the land (UWONET, 1997). Thus the disproportionately low share in right of ownership is bound to have direct implications on women’s control over the products of their labour and their productivity in agriculture.
The draft land Bill is premised on the assumption that women�s access to land will automatically be addressed once the rights of ownership are resolved. This ignores the legitimate interests of women as land users whose rights used to be protected under customary tenure, but which have gradually been eroded. The legitimate interests of women continue to be undervalued and the contribution of women to agricultural production in this country is made invisible. The perception that women are dependants has continuously informed official policies and plans related to land use and management.
The draft land Bill purportedly caters for women�s interests in clauses 13, 6, 4, and 11. Clause 13(1) of the draft imposes restrictions on transfer of land by family members. It states that no person shall sell, exchange, pledge, mortgage, lease, or give away land inter vivos, or enter into any other transaction on land, in case of a married couple, without prior written consent of the spouse in occupation of the land. In the case of a non- married person having children, the consent of his / her child of majority age in occupation of the land is sought, while in cases where the children are below the age of majority in occupation of the land, the consent of the committee is obligatory.
However, “consent” is based on the assumption that all parties have an equal power relationship in marriage, which is not the case in Uganda. Rather, given the unequal gender – based power relations, a woman�s consent is presumed automatic once the husband has made a decision, short of which (withholding the consent) the woman risks being abused or abandoned. Without equitable interest in land, women (wife / wives) cannot give consent or restrict transfer of land. The clause is silent about polygamous unions / marriages which have been legalised by the Customary Marriages Decree and the Mohammedan Act. Prior written consent that is required before a land transaction takes place, presupposes literacy, thus the illiterate, mostly women, are not capable of exercising this right due to the high rate of illiteracy.
Struggles over land manifest the problems with the dualistic legal system in Uganda. The proposed bill attempts on the one hand, to promote the business interests (both national and foreign) to liberalise land laws and secure protection / assurance of their rights to land. On the other, it seeks to provide “safeguards” to protect the interest of the local community – majority peasant community, based on customary law and practice. Such a situation however only exposes government�s repeated failure to abolish patriarchal laws, which discriminate against women. The solution therein seems to lie in a compromise position – away from completely abolishing customary laws and desisting from entirely leaving land open to market forces. The existing customary laws must be abolished and replaced by the community as it exists today (pluralistic, multiethnic, urban and rural). The community should have power to regulate and control land within its boundaries. Community members, through their representatives, should have powers of regulation and control over land through district and national land agencies, which are accountable to parliament – the highest representative organ. Specific measures would be needed to ensure equal participation of women and men, young and old, in decision-making at every level.
The contemporary manifestations of the domestic land tenure relations exhibit diversities reflective of social, cultural, economic and political conditions whose specificity reflects the nature of penetration of commodity production and integration into the world capitalist system. The slow-moving transformation process signifies the resistance of the (male) powers that be, to transform the domestic land tenure relations in favor of the women who constitute a significant labor force in the agriculture sector, the Momentary of the Ugandan economy. Maintenance of the status quo has serious implications not only on development of the economy and society, but also on human rights.
The main conclusion of this study therefore, is that gender relations and women’s economic, political and social positions are the outcome of processes of contestation and bargaining. These processes may not always be explicit or discernible, but are nonetheless, revealed in final outcomes. They involve both elements of co-operation and conflict and take place in different arenas, ranging from the household, the market, the community, and the state. These arenas are inter-linked in such a way that a change in one impinges on the other arenas. For instance, a strengthening of women’s bargaining power in the community, would also give them greater bargaining power within the household. As we have laboured to illustrate in this study, women’s ability to improve their position has been seriously circumscribed by a historical process that has entrenched inequalities in the distribution of property, in the cultural construction of gender and in the exclusion of women from processes of public decision-making. This has relegated them to the role of takers and not makers of laws, social norms and rules.
This implies that the necessary change will require simultaneous struggles over property, over the norms governing the gender roles and behaviour and our public decision-making authority. It will practically mean contesting the hierarchical character of gender relations, within and outside the household, based on highly unequal access of women and men to economic, political and social power. For the rural women, land rights are the critical entry point for challenging unequal gender relations and power structures at many levels.
How this struggle would need to be conducted is really a complex question with no easy answers, nor can most dimensions of it be resolved outside the context of praxis. Our view is that to establish women’s land rights will require not only removing existing gender inequalities in law, but also ensuring that the laws are implemented. It will need strengthening of women’s ability to claim and retain their rights I land, as well as their ability to exercise effective control over it. The complexity of the noted obstacles and their contextual variability preclude any simple prescriptions and specific strategies to overcome them. This will only evolve through localised campaigns and this is where the compelling force of the human rights paradigm could play a pivotal role.
Abeyesekera, S (1994) Equality versus Difference: Examining the concept of Human Rights and Women.
Brock, Beverely (1968) Customary Land Tenure, “Individualisation” and Agricultural Development in Uganda.
Bunch, C (1994) Women’s Rights as Human Rights: Towards a Re-vision of Human Rights. Social Scientists Association, Colombo.