The Women and Land Studies
Gender, Land and Rights: Contemporary Debates in Law, Policy
and Practice in Uganda
Highlights of A Study by Winifred Bikaako
with the assistance of John Ssenkumba
Linking Theory to Practice
Studies on Law, Religion and Human Rights
Women in Uganda provide 70-80% of all agricultural labor and over 90% of food crop production and processing, but only 7% of the land in Uganda is owned by women.
GENDER, LAND AND RIGHTS IN UGANDA
In their study, “Gender, Land and Rights: Contemporary Debates in Law, Policy and Practice in Uganda,” author Winnie Bikaako and her colleague John Ssenkumba examine women�s land rights in Uganda, ask women themselves about their lives, and make recommendations to enhance Ugandan women�s rights.
In a place where 90% of the population is engaged farming small plots �Bikaako found average land sizes of 3.9 hectares in Bushenyi and 4.3 hectares in Mubende — land is not just the source of employment, it is money, food, home, and survival. Yet a woman�s inferior position in Ugandan society means she has few rights to land. Forbidden by custom from producing cash crops, rural Ugandan women produce all of the crops to feed their families while also caring for their homes and children. Despite laws on the books giving women the right to own land, Bikaako found that the idea that women need independent rights to land is still controversial in Uganda. And while they may have rights under the law, in practice only a very few women own land in Uganda.
Inheritance in most parts of Uganda is patrilineal, the author explains. A daughter does not receive land when her father dies and even a widow does not inherit land; she generally acts only as a caretaker until a son comes of age. In some parts of Uganda, a widow herself may be willed along with the land � for example, to her deceased husband�s brother. She may remain on the land and cultivate it if she marries the successor; but if she refuses she may lose access to the land and her livelihood.
Further, a woman� right to use land is pegged to marriage. If she is abandoned or divorced or she leaves because of domestic abuse, she will most likely lose all right to the land that had been her source of survival.
This penetrating study documents the entrenched practices that led to passage of a new Land Law in 1998 by the Ugandan Parliament and continue to be the subject of controversy and struggle in Uganda. It is part of a series of reports for the Project on Religion and Human Rights of the Law and Religion Program at Emory University on women and land reform in five African countries. The project offers serious scholarship in the service of local activists and grassroots organizations seeking to advance human rights, starting from the premise that women�s rights are human rights. Some of the study�s highlights follow.
LEGACY OF COLONIALISM AND CIVIL CONFLICT
Uganda is a landlocked country, east of Zaire, south of Sudan, west of Kenya, north of Tanzania and northeast of Rwanda. It is ethnically linked to all these countries, with borders that cut through ethnic groups and families. Its location in the Nile basin also provides links to other African countries like Egypt and Ethiopia.
Uganda has some 50 different ethnic groups, which fall into four categories: the Bantu, Nilotics, Nilo-Hamites and Sudanic people. According to the 1991 Census, Uganda has a population of 16.7 million people. The major religions are Catholics (44.5 %), Protestants (39.2%), Moslems (10.5 %), and 5.9% other religions.
Polygamy is a widespread practice in Uganda, domestic violence is common, and the divorce and birth rates are very high. (The average woman bears 7 children.)
Most of the country is flat plateau with a varied climate rich in flora and fauna. It is a country with tremendous economic possibility, but its history of colonialism and civil strife has left its potential untapped.
According to the author, the foundations of Uganda�s economy were laid by British colonialists who introduced a system of cash crops, tobacco and cotton. Plagued by widespread poverty, Uganda was ranked the fourteenth poorest nation in the world in 1997, with a Gross National Product per capita of U.S. $240.
DUAL LEGAL SYSTEMS
Like most post-colonial states, Uganda has a dual legal system � an imported western system coexists with the indigenous customary law governing land, marriage, property rights and inheritance. The authors argue that the inherent conflicts between the two systems permit a male-dominated society to vacillate between the two, neutralizing any reforms that would empower women.
WOMEN, THE LAW, AND LAND TENURE
A woman�s land rights are dependent on her relationship to a male � usually a father, husband, brother or son. In most cases, women do not inherit land on their own and where they do, they inherit less land than their brothers.
It is mainly through marriage that women acquire use rights in land as their husbands assign particular fields for cultivation and particular cattle to each of their wives. Women primarily produce for the family�s needs and in some regions they are able to exchange or sell the surplus of their labor.
When widowed, women act as guardians or trustees for minor children until a male heir comes of age and takes charge. Women with grown-up sons are usually assured of cultivation rights, but childless women or women who bore only daughters are in a precarious position.
LAND AND HUMAN RIGHTS
Land is a scarce commodity in Uganda. With an ever-increasing population, the need for land greatly exceeds that which is available.
Human rights organizations have primarily focussed on the land resource rights of indigenous and tribal peoples, Bikaako notes, but have generally not addressed 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. In most developing countries, the connection between the right to land and the right to food and livelihood is very direct and access to land is essential for survival.
What of someone who is utterly dependent on the land for survival, who has no other means of subsistence? Does that person have a right to land? What of the competing land claims of those who need the land, but do not own or possess it, against the claims of those who hold legal rights to it, but do not necessarily need it? Surely these are human rights issues, Bikaako says.
The author designed a case study to examine women�s access to land under four existing land tenure systems in Uganda. She selected Bushenyi, formerly part of the Ankole Kingdom, in the Western region of Uganda, where the major land tenure systems are customary and leasehold. She also selected the Mubende district, in the central region of Uganda, which historically was largely Buganda region and where the major land tenure systems are mailo and customary tenure.
From each of the two districts, using multi-stage random sampling, two parishes were selected � Mazinga Parish and Kakanju Parish in Kakanju sub-county, Bushenyi and Nakaseta and Lutete parishes in Sekannyonyi sub-county, Mubende district. She chose a male to female ratio of 1:2, selecting 80 households in Bushenyi and 70 households in Mubende. The researchers used a structured questionnaire with open-ended questions. With the help of an interview guide, they conducted in-depth interviews with 10 opinion leaders, half of whom were women.
In addition, two focus groups discussions were conducted in each of the districts. Consideration was given to the gender makeup of the groups because most women did not feel comfortable participating in an open discussion in front of their husbands or other men known to their husbands.
Upon completion of the report, the author presented her findings at a symposium in Kampala with activists, scholars, and the press.
In Bushenyi and Mubende, 93% of the respondents strongly believed that the solution to stability and development of the Ugandan society lies in redressing women�s unequal relation to land.
VOICES OF UGANDAN WOMEN
The study found that women�s main concerns were their position in relation to land, the nature of their rights, the consequences of inequality in land rights, and the lack of effective conflict-resolution mechanisms for seeking justice in land disputes.
- Rights Pegged to Relationships with Men
The women of Buganda and Ankole confirmed that a woman�s right to land is connected to the institution of marriage. An unmarried daughter tends to have more secure access and greater claim to her parents� estate, the respondents reported. A married woman with children, especially male children, has greater security on her husband�s land than a married woman without children, they said.
- Women�s Subordinate Position
In the Banyankore and Baganda communities, custom denies a woman an independent right to own and inherit land. Her rights are viewed in terms of her responsibility to nurture the children of a deceased husband. Preference in inheritance is given to children over their mothers. Sons take precedence over daughters when a father is determining who the beneficiaries should be, how much each should get, and when they should receive a share.
- Impact of Inequality
Women�s lack of control, access and ownership of land has created additional strains on Ugandan society. In Mubende, 83% of the survey respondents attested to conflicts due to unequal land rights. The increasing rate of domestic violence, divorce, separation, prostitution and sexual harassment is directly related to land rights, the author asserts.
- Lack of Recourse to Justice
Existing conflict resolution mechanisms, including courts of law, Local Council Courts and the customary courts, all fail to protect the interests of women in relation to land, the study found. These institutions are male-dominated and generally rule in favor of men and the status quo. Court processes tend to be lengthy, expensive and too technical for rural Ugandan women to successfully bring their claims. A review of court records revealed that the majority of women who have sought recourse for land disputes have either lost or withdrawn their cases. The Local Council Courts have not protected women�s interests, either. Male-dominated and corrupt, these courts have discouraged women from seeking recourse. Without the money to pay bribes or continue with drawn-out cases, women�s efforts to seek justice have been thwarted.
WOMEN�S ACCESS TO LAND TODAY
The biggest hurdle women reported was that parents expect their daughters to get a share of their husbands� estate while husbands expect their wives will receive a share in the parents� estate.
In Baganda and Banyankore, the researchers found that it is taken for granted that a woman�s status changes when she marries and moves in with a husband. It is assumed that women do not need independent land rights because they are assured of the right to use or enjoy land (“usufruct” rights) as daughters, wives, or widows. The view is that they make their major contributions to the husband�s household, not their parental home, so they neither need nor deserve land from their parents.
Shift in Practices
The researchers observed a shift in these practices in Ankole and Buganda, however. Some daughters are gaining recognition as useful members of the family and being rewarded with land for caring for their parents. This was in contrast to some of the sons, who parents viewed as opportunistic and irresponsible, capable of selling an entire estate in the hope of “getting rich quick.”
Parents also explained that they have given land to daughters as a cushion for the future since marriage has become so unstable in Uganda. But even when daughters do inherit family land, they seldom reside on or near the inherited parcels so they must rely on a brother or other male relative to act as custodian.
Women who have left men — battered women and those who have been abandoned, or are separated or divorced — automatically lose the right to use their husband�s land and can only hope that their parents will allow them to cultivate some of the family land. Said one woman: “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�.”
The more children a widow has, the better her chances of receiving a bigger share of land in her husband�s will. In Buganda, the author found that it depends on whether the children are male or female. And in polygamous homes, it is even more important to have male children, though the usual practice is for the senior, or first married, wife to receive priority in inheritance.
Women who have not borne any children are subject to blatant discrimination in inheritance, the author found. The justification cited most often was that a widow�s access to land is for the purpose of the children�s welfare, not her wellbeing.
On widowhood, male members of a deceased husband�s family sometimes harass the widow, sending her away from the matrimonial home and grabbing the land. According to the Uganda Women Lawyers Association (FIDA), 40% of the cases they saw in 1995 were related to property grabbing by male relatives of a deceased husband.
The practice of acquiring land seems to be growing in Uganda, perhaps due to an increasing population, land scarcity, and the advent of a monetary economy and modernization. The majority of purchases were made in the last decade, the author notes. Bikaako�s research found 28.8% of respondents in Bushenyi and 42.9% in Mubende had acquired land through purchase.
Although Ugandan laws permit women to own and dispose of property, including land, in practice women have not accessed the land market. In fact, Bikaako notes, the introduction of private ownership has merely shifted the form of control of land from communal ownership to individual male ownership.
Women Secretly Purchasing Land
In Buganda, Bikaako found that some women had actually arranged to secretly rear pigs, cows and goats at the home of a relative, have them sold, then gradually and secretly purchase land without their husbands� knowledge. It took courage for these women to try to build their own security because such a plan is riddled with risks in rural Uganda. First, a woman is at risk that she will lose the land because she must purchase it in the name of a brother or son, who can take advantage of her and declare it his own. Also, sellers are reluctant to sell to a woman without the consent and approval of her husband � for fear of being accused of having had a sexual relationship with her. And a woman is also vulnerable to the seller, who could require her to pay him a portion of her crops.
In the course of the study, Bikaako did encounter husbands who could be described as “liberal,” who were not troubled by a wife�s ownership of land and the independence it brings, though she notes that some of the husbands may have accepted the practice because they and their children clearly benefited.
Gender-Based Division of Labor
In Bushenyi, the author found a strict gender-based division of labor. The wife produced food crops for the family while the husband produces cash crops and tends to livestock. In this way, a wife has little chance of acquiring money. And in the majority of homes, the husband exercises exclusive discretion over use of the proceeds from farming. Men were also secretive when transacting in land, failing to consult their wives about this important family matter.
Another customary means of access to land is borrowing. The people in a position to lend are usually men, Bikaako notes. Women in Uganda, because of their status in society, cannot effectively negotiate with men. Also, borrowing brings with it terms equivalent to sharecropping � the lender expects a share of produce. And lenders usually lend out marginal land.
Women are disadvantaged in practice in all of the modes of access to land despite what the laws say because practice is usually based on custom and tradition, both of which relegate women to an inferior position. In the author�s assessment, women themselves have not been very militant in enforcing their rights of access, largely because they have accepted the status quo, but also because they are consoled by their minimal rights of land use.
A long-standing assumption in economic theory is that the household is a unit of harmonious interests whose members benefit fairly. To argue that women need independent land rights challenges this assumption, Bikaako notes. It is necessary, she writes, to look beyond the distribution of property between households to its distribution within households. To understand the position of Ugandan women, we must look beyond who owns property to who controls it?
Among the Baganda, a man will have acquired land and a home prior to marriage and a woman leaves her parents� home to join her husband�s home. Many women clearly pointed out that this explains their powerlessness relative to their husbands. And the researchers discovered in Mubende that gender power relations significantly altered when two spouses made joint contributions of matrimonial property, particularly land. Bikaako actually found situations where it was the woman who had acquired land and in those cases women exercised more decision-making authority.
In general, Bikaako found a widespread practice of men being responsible for cash crops and livestock rearing while women were responsible for food crops. The main domestic chores and the welfare of all the family members are the responsibility of the wife. The husband has the opportunity to carve out a public role outside the home, but the wife does not. And though a woman has considerable control over land use patterns, the man exercises an ultimate veto.
Many of the men argued that they need full control over land and the products derived from it since they have roles in society they must perform � for instance, as taxpayers. One man said women could not be empowered to make decisions about land transactions because they would be easily duped.
The researchers did observe a trend toward joint responsibility and control within the home � which was more visible where a wife was making a significant contribution to the family income or had played a big role in the acquisition of property. And they observed an emerging trend of husbands at least informing their wives of major decisions affecting the family. In both Behenyi and Mubende, these patterns varied from home to home.
“�My father is the individual with full authority. In circumstances where other members� decisions are important, my father�s authority is followed by my brothers�. My mother has very limited authority, while I, because I am a girl, have no authority whatsoever.” � 30-year old single mother in Bushenyi
FROM MICRO TO MACRO
Economic theory assumes that a family is a necessary and fixed institution founded on principles of affective caring and sharing. In reality, Bikaako says, a family is too often a social unit based on unequal power relations and a site of conflict.
Ugandan women, who are the producers of sustenance for their families, see the cultural constraints under which they live and work as both unfair � and impractical. As they see it, men, the non-producers, are the controlling authority both at the micro, or family, level and at the macro, or national, level. This ignores the expertise and judgment of the primary producers who manage the family farms and thus hinders agricultural production and economic development. They say decisions are made arbitrarily by men, often according to selfish interests that may not necessarily serve the family, the farm, or the nation.
STRUGGLES FOR WOMEN�S LAND RIGHTS
Asked how they could improve their status, the women in the survey listed individual efforts such as seeking remedies from local council courts, chiefs and district courts, encouraging husbands to write fair wills, and seeking assistance from the Federation of Uganda Women Lawyers (FIDA) legal clinics. Among the respondents, 54.6% said they were involved in collective efforts to change their status � for example, organizing seminars through local clubs or national women�s organizations — and the majority was also optimistic about the women representatives to parliament they had elected.
OBSTACLES TO A WOMEN�S RIGHTS MOVEMENT
The majority of women said strong customary practices and institutions denied them the opportunity to effectively organize on their own behalf. They said they are hampered by fear of losing their homes, especially when they may have no alternative, the stigma associated with “forceful” women, and a lack of access to information. Finally, they are disadvantaged further by the lack of adequate finances to organize a movement and as a fallback should they suffer consequences for their involvement.
As a result, Bikaako found that the majority of women expect solutions “from without” and rely on the government and other sympathetic individuals and groups to assist them.
The pessimism that most women expressed was based on several disappointments. Many women had viewed local councils as new institutions that could sympathize with their cause, but they turned out to be faithful defenders of men�s interests. Local Council Courts sometimes refused outright to interfere with “private” matters. Many were corrupt and women could not afford the bribes. And so many women viewed the Local Councils as yet another institution, along with local and national courts, prisons, and police, interested in maintaining and enforcing the status quo.
As for men, equality has been interpreted by most as being disruptive of family harmony � which is why, Bikaako says, that 60% of respondents opposed equality and the manner in which it has been advanced.
Women reported that government has played a key role in tilting the balance in their favor. The most significant action has been to give them a voice and making them visible. A woman member of Parliament now represents women in each district. At the local level, local governing councils must ensure that one third of posts is filled by women.
Finally, the government has also created a form of affirmative action for women in university admissions, adding 1.5 points to the scores of female candidates.
“�As Local Council women leaders, we can talk in 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.” � Woman Representative to Local Council
EQUALITY AMONG UNEQUALS
All adult women are free to buy land in Uganda today, but most women have no independent income. Groups which provide services to village women, like the Federation of Ugandan Women Lawyers (FIDA), Action for Development (ACFODE), and Uganda Women�s Finance and Credit Trust, can continue to play a big role in women�s struggle for land rights, Bikaako says. Perhaps the greatest impact of these groups has been creating conditions of solidarity for collective action, she observes, shifting women�s struggles from covert individual actions to overt group actions.
ROLE OF RELIGIONS
Religion has not been used significantly in the fight for women�s rights in Uganda. Taken at a very general level, there is a perception that Christianity treats women more or less as equals to men, at least nominally. This is in contrast to Islam where women appear to have an inferior position to men. Yet Ugandan women appreciated that Islam at least specifies that they get a very definite share in their parental and husband�s estate, unlike in Christianity which is silent on such matters. The widespread tendency was for custom to override not only religion, but statutory law. This is therefore where activists� efforts need to be concentrated, Bikaako says, and that means engagement in the ideological terrain � where battles are always hard.
CRITIQUE OF 1998 LAND LEGISLATION
As Bikaako�s study was coming to an end, the women members of the Ugandan Parliament had sponsored a bill to address women�s unequal rights to land. Bikaako�s critique of the proposed bill contained the following criticisms:
- The bill was 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.
- As proposed, the bill said that no persons shall sell, exchange, pledge, mortgage, lease, or give away land inter vivos, or enter into any other transaction on land, in the case of a married couple, without prior written consent to the spouse in occupation of the land. Bikkako points out that “consent” is based on the assumption that all parties have an equal power relationship in marriage, which is not the case in Uganda. Given the inequality between men and women, a woman�s consent is presumed automatic once the husband has made a decision. If a woman were to withhold consent, she would risk being abused or abandoned. And prior written consent presupposes literacy, thus the illiterate, who are mostly women, would be incapable of exercising this right.
- As proposed, the bill reflected the government�s attempts to promote privatization to satisfy business interests � both national and foreign � and its wish to safeguard local peasant communities by protecting customary laws � which are patriarchal. Bikaako believes that existing customary laws must be abolished and replaced by laws reflecting the values of the community as is exists today � pluralistic, multiethnic, urban and rural. The community should have power to regulate and control land within its boundaries, she says, through representatives elected for this purpose.
Women�s ability to improve their position has been seriously hampered by entrenched
Inequalities and the distribution of property, by cultural constructs and by the exclusion of women from public decision-making. This has relegated them to the role of taker, and not makers of laws, social norms, and rules, Bikaako says.
Change will require simultaneous struggles over property, the norms governing gender roles and behavior, and over public decision-making authority. For rural Ugandan women, she says, land rights are the critical point of entry for challenging inequality.
In her view, achieving land rights for women will not only require removing existing inequalities in law, but ensuring that new laws are implemented. It will mean strengthening women�s ability to claim and retain their rights to land as well as their ability to exercise control over it. The struggle of rural Ugandan women for land rights is a struggle for survival, dignity, and justice. It is a struggle for human rights.
is a Research Fellow at the Centre for Basic Research in Kampala, Uganda. Her research papers include “Economy, Livelihood and Constitutionalism in Uganda: the Ugandan Constitution Revisited,” for the Centre for Basic Research, Kampala; “The Impact of HIV/AIDS on Young Mothering in Uganda,” for the Centre for African Family Studies, Nairobi; and “Land to the Tillers to Land: The Impact of the 1975 Land Reform Decree on Mpigi district, Uganda,” for the Centre for Basic Research, Kampala. Since 1993, she has served as the coordinator of the Centre for Basic Research�s Gender Project.
Linking Theory to Practice
“Gender, Land and Rights: Contemporary Debates in Law, Policy and Practice in Uganda” is a study produced for the Project on Religion and Human Rights of the Law and Religion Program at Emory University in Atlanta, Georgia, U.S.A. Starting in 1995, the project sought out scholars and activists with access to local communities and grassroots organizations to study the land rights of African women. The five countries in the series of studies on “Women and Land in Africa” are Cameroon, Ethiopia, Nigeria, Senegal, and Uganda.
The project begins from the premise that women�s rights are human rights. Recognizing that human rights principles cannot be imposed from without, but insisting that human rights are universal, the project seeks to provide scholarship to inform policy and assist local activists in promoting human rights. The project takes a broad and dynamic view of religion to include local or indigenous belief systems and customary practices. It defines law as encompassing customary and religious law as well as state law and its enforcement institutions.
The project was conceived and is administered by Dr. Abdullahi Ahmed An-Naim from Sudan, the Charles Howard Candler professor of Law at Emory University and former Executive Director of Human Rights Watch/Africa. He is a widely acclaimed authority on human rights, Islam, and African politics, and has taught human rights and comparative law in universities in Europe, North America, and Africa. The project is funded by the Ford Foundation and received additional support from the Emory University Foundation for Internationalization.