Embed Size (px)
Citation preview
1
A comparative study of women’s
right to access customary land in
Zambia and Zimbabwe
Tutsirai Patricia Makuvachuma
Student number: u11260476
Supervisor: Professor M Hansungule
A dissertation submitted to Centre for Human Rights, Faculty of
Law, University of Pretoria
2
Contents A comparative study of women’s right to access customary land in Zambia and Zimbabwe ................ 5
Chapter 1 ................................................................................................................................................. 5
1. Research .......................................................................................................................................... 5
2. Assumptions .................................................................................................................................... 5
3. Research .......................................................................................................................................... 6
4. Motivation ....................................................................................................................................... 6
4.1 History of Land in Zimbabwe ........................................................................................................ 6
4.2 History of Land in Zambia ................................................................................................................. 7
4.3 Inheritance and Women’s Constraints ............................................................................................. 8
4.5 The Legal Framework Administrating Women’s Land Rights ........................................................... 8
International law ..................................................................................................................................... 8
National legislation ................................................................................................................................. 9
4.5 Problems Associated with Women’s Control and Access to Land .................................................. 10
5. Methodology and approach ......................................................................................................... 10
6. Limitations of study....................................................................................................................... 10
7. Chapter Outline ............................................................................................................................. 11
Chapter 1 .............................................................................................................................................. 11
1. Research problem ......................................................................................................................... 11
2. Assumptions .................................................................................................................................. 11
3. Research Questions ...................................................................................................................... 11
4. Motivation ..................................................................................................................................... 11
4.1 History of land in Zimbabwe ..................................................................................................... 11
4.2 History of land in Zambia .......................................................................................................... 11
4.3 Inheritance and Women’s constraints ...................................................................................... 11
4.4 Legal framework administering women’s land rights ............................................................... 11
4.5 Problems associated with women’s control and access to land. ............................................. 11
5. Methodology and approach ......................................................................................................... 11
6. Limitations of study....................................................................................................................... 11
7. Chapter Outline ............................................................................................................................. 11
Chapter 2: Gendered Perspectives on Women’s Land Rights ............................................................ 11
1. Introduction .................................................................................................................................. 11
2. The Effect of Patriarchy in an African Context .............................................................................. 11
3. Defining Access to Land ................................................................................................................ 11
3
4. Ecofeminism .................................................................................................................................. 11
5. Role of Gender .............................................................................................................................. 11
6. African Feminism and Customary law .......................................................................................... 11
7. The Dichotomy between ‘Rights’ and ‘Customs’ .......................................................................... 11
8. Conclusion ..................................................................................................................................... 11
Chapter 3: Land Tenure Systems in Zambia and Zimbabwe ............................................................... 11
1. Distribution of Land in Zimbabwe ................................................................................................. 11
2. Background to the Land Tenure in Zambia ................................................................................... 11
3. Gender in Multiple Customary Land Functions ............................................................................ 11
4. Utilisation of Customary Law and Inheritance Laws ..................................................................... 11
5. Women in Zimbabwe Today ......................................................................................................... 12
6. Conclusion ..................................................................................................................................... 12
Chapter 4: International, Regional and Domestic Legal Framework .................................................. 12
1. Introduction: Is There a Right to Land? ........................................................................................ 12
2. International Law .......................................................................................................................... 12
3. Regional Law ................................................................................................................................. 12
3.1 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(the Protocol) ........................................................................................................................................ 12
3.2 Southern African Development Community Protocol on Gender and Development .................... 12
4. Domestic Laws .............................................................................................................................. 12
4.1 Constitution of Zambia ................................................................................................................... 12
4.2 Constitution of Zimbabwe .............................................................................................................. 12
5. Conclusion ..................................................................................................................................... 12
Chapter 5 .............................................................................................................................................. 12
1. Recommendations ........................................................................................................................ 12
2. Conclusions ................................................................................................................................... 12
Chapter 2: Gendered perspectives on women’s lands rights ............................................................... 13
1. Introduction .................................................................................................................................. 13
2. The Effect of Patriarchy in an African Context .............................................................................. 13
3. Defining Access to Land ................................................................................................................ 14
4. Ecofeminism .................................................................................................................................. 15
5. The Role of Law in Gender ............................................................................................................ 16
6. African Feminism and Customary law .......................................................................................... 16
7. The Dichotomy of ‘Rights’ and ‘Custom’....................................................................................... 18
4
8. Conclusion ..................................................................................................................................... 19
Chapter 3: Land tenure systems in Zambia and Zimbabwe .................................................................. 20
1. Introduction: Distribution of land in Zimbabwe ........................................................................... 20
2. Background to Land Tenure in Zambia ......................................................................................... 22
3. Gender in Multiple Customary Land Functions ............................................................................ 24
4. Utilisation of Customary Law and Inheritance Laws ..................................................................... 25
5. Women and Land in Zimbabwe Today ......................................................................................... 27
6. Conclusion ..................................................................................................................................... 28
Chapter 4 International, regional and domestic legal frameworks ...................................................... 30
1. Introduction: Is There a Right to Land? ........................................................................................ 30
2. International law ........................................................................................................................... 30
3. Regional ............................................................................................................................................. 33
3.1 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(the Protocol) and Non-Disccrimination ............................................................................................... 33
Weaknesses of the Protocol ................................................................................................................. 35
3.2 The Southern African Development Community Protocol on Gender and Development with
regard to land........................................................................................................................................ 37
4. Domestic ........................................................................................................................................... 38
4.1 The Constitution of Zambia ............................................................................................................. 38
4.2 The Constitution of Zimbabwe ........................................................................................................ 40
4.3 The Case of Magaya v Magaya....................................................................................................... 42
Conclusion ............................................................................................................................................. 43
Chapter 5: Conclusion and Recommendations ..................................................................................... 45
Conclusion ............................................................................................................................................. 45
Recommendations ................................................................................................................................ 46
Bibliography .......................................................................................................................................... 48
5
A comparative study of women’s right to access customary land
in Zambia and Zimbabwe
Chapter 1
1. Research Problem
The point of departure is the inequality that is evident between men and women in land tenure
rights in terms of succession law. Within customary tenure systems in Southern Africa,
women’s access to and control of land tends to be mediated by their male relations. The system
of male primogeniture is present in both Zimbabwean and Zambian customary law thus giving
rise to gender discrimination against women. My aim is to evaluate an international and African
human rights framework and the cultures of the above mentioned countries in order to achieve
a balance between the two perspectives. I will use a comparative approach and feminist theory
in order to pave the way for more access the right to own and control land for women.
2. Assumptions
Women lack rights to land within customary tenure
Customary practices such as male primogeniture diminish women’s access to
customary land in terms of the law of succession
The constitutions of Zimbabwe and Zambia afford women and men the right to equal
treatment and opportunity.
The African Human and People’s Rights provides for the equal enjoyment of the rights
and freedoms recognised by the present Charter.
The Convention on the Elimination of all forms of Discrimination Against Women
(CEDAW) ratified by both countries, aims to modify cultural practices to achieve the
elimination of prejudices and customary practices that are based on inferiority or
superiority of either of the sexes.
6
3. Research Questions
i. Should the law privilege cultural practices over individual rights?
ii. Do customary practices discriminate against woman when inheriting from their
husbands or fathers in terms of control of land?
iii. How can constitutions (as the supreme law of the land) afford women’s right to land
more practically?
iv. Can ratified international instruments aid in legal equality when domestic legislation is
lacking on the issue?
4. Motivation
The issue of women’s right to land is important especially in Southern Africa because
ownership of land is critical to social and economic security and development, as well as human
identity. In this region, although women produce the bulk of the country’s food, it is evident
that the lack of control over and access to land is inextricably linked to women becoming the
majority among the poor. Despite the equality clauses that afford both men and women the
same opportunities, women are ultimately discriminated against as a result of gender biased
legislation, customs and traditions that inhibit women from owning and inheriting in their own
right. In this paper, the focus will be on inheritance with regard to the fact that allocation of
land discriminates against women who are married, divorced, single or widowed who become
most vulnerable to losing land after the death of the man in whom the land is registered. I seek
to do a gender-based research that analyses the different institutions and their role in shaping
legal processes.
4.1 History of Land in Zimbabwe
Land is pivotal to the economic, political and social lives of most women in Zimbabwean
society. In 1993 the Rukuni Land Commission was set up to re-evaluate the land tenure system
and establish a new course for resettlement.1 The commission came up with 5 new tenure
systems and also concluded that “23% of the women in communal areas had secondary land
rights, and most married women had no rights to land, except through their husbands”.2 It is
1 Mushunje, M (2001) Women’s Land Rights in Zimbabwe, University of Zimbabwe. 2 Ibid.
7
alleged by historians that the marginalisation of Zimbabwean women emanates from
colonialism and not tradition. The Land Husbandry Act of 1951 gave title to African men that
were married and women were left out of this process. However, it is evident that from custom,
that a woman was only given a piece of land after the birth of her first child, leaving childless
women at a disadvantage. This is indicative a patriarchal system has been that gave women a
facade of rights that has perpetuated into modern society. The lack of guaranteed land rights
has made women’s dependency on their male relatives or spouses rife.
4.2 History of Land in Zambia
In Zambia there are two ways of holding land; individually or collective rights. The main law
pertaining to land in Zambia is the Lands Act of 1995 and it divided land into state land and
customary land. The Act, defines as “land which is not situated in customary area”.3 This land
is acquired by making an application for a title deed to the custodian of state land,
Commissioner of Lands in the Ministry of Lands, who acts on behalf of the president of the
republic.4 Customary land is administered under traditions and customs pertaining to
ownership and use. The rules regarding these practices differ according to the area and are
generally not in writing. The title deed in this instance is obtained by approval by the Chief or
head of the village. The application has to go with a sketch to identify the land and this is sent
to the Commissioner of Lands.5 The Intestate Succession Act, 1989 in Zambia governs
inheritance where the deceased dies without a will; however this does not extend to customary
land. Being outside of this aforementioned Act, all customary land is inherited by patriarchal
customs and traditions which are discriminatory against women. Thus, although this act
appears to afford equal opportunity for women, as a result of the longstanding discrimination
in Zambian society, ownership, access and control are still limited.
3 Lands Act of 1995. 4 Machina R (2002) Women’s Land Rights in Zambia: Policy Provisions, Legal Framework and Constraints.
Paper presented at the Regional Conference on Women’s Land Rights, Zimbabwe.4 5 Ibid.
8
4.3 Inheritance and Women’s Constraints
While statutory law treats women under the age of majority principle, customary law ironically
treats women as minors.6 This comes as a result of a male dominated structure that implements
policies and legislation that demeans women as a whole. In the registration of land, it is a norm
that among married couples, the title is registered in the name of the husband. This ensures his
entitlement to the land where the state will decide if the surviving spouse(s) and children
succeed in gaining holdership under the same terms.7 In customary law, the heir is male
illustrating that the registration system favours men. A widow is only afforded a usufruct of
right to use, but not ownership.
English law is the primary form of governance in Zambia. In terms of succession, statute
determines the procedure followed one a testator dies testate and intestate. Because land is
required through inheritance, the areas under customary tenure do not afford the right of
inheriting this land from her husband.8 Thus, the inheritance of rights to the land and the control
thereof is the choice of the relatives of the deceased, and usually male. The Intestate Succession
Act of 1998 states that the surviving spouse and children must inherit 20% of the deceased’s
estate to protect their interest. However, under the customary tenure, land cannot be inherited.
The status quo is that the kin of the deceased’s man take the property including the house which
leaves the widow with close to nothing; this is known as property grabbing. Because women
are not afforded equal rights to property ownership, they lose their access to fields where their
homes and livelihoods have been invested.
4.5 The Legal Framework Administrating Women’s Land Rights
International law
Both Zambia and Zimbabwe have ratified the United Nations Convention of the
Elimination of all Forms of Discrimination Against Women (CEDAW).9 According to
6 Gaidzwana R (2011) Women and Land in Zimbabwe, University of Zimbabwe. Paper Presented at the
Conference “Why women matter in agriculture”, Sweden., p10. 7 Ibid. 8 Machina (note 4 above) 11. 9 Convention on the Elimination of All Forms of Discrimination against Women of 1981 adopted by the General
Assembly resolution 34/180 of 18 December 1979.
9
Article 2(f) of CEDAW states that “state parties... by all appropriate means and without
delay... undertake:.. (f) To take all appropriate measures, including legislation to modify
or abolish existing laws, regulations, customs and practices which constitute
discrimination against women”.10 The Protocol to the African Charter on Human and
People’s Rights on the Rights of Women in Africa of 2005 was established out of the
concern that African women continue to be victimised through discrimination and the
perpetuation of cultural practices. This Protocol holds African states to an international
standard of human and women’s rights.11 The shortfalls of international agreements are
that it gives no guidance as to how these protocols will be implemented in domestic
courts. Zimbabwe and Zambia has both statutory and customary law, and the protocols
draw no distinction between the two. This is particularly pertinent because the
application of either one could change the outcome of the affected parties.
Implementation would be seen the amalgamation of international tenets with domestic
legislation but the onus is on the states to see this materialise. This has proved to be
difficult because states have a constitution and customary law that is based on
longstanding traditional and tribal practices.
National legislation
The constitutions of Zimbabwe and Zambia contain numerous provisions that advocate
for equal treatment of women. The Zambian Constitution in section 51 gives women
and men the equal right to treatment an opportunity as well as right to inherit won,
administer and control property.12 The founding values of the Zimbabwean
Constitution declares that the state must promote must promote the full participation of
women in every sphere of Zimbabwean society. Furthermore, Section 80 states that
customs and cultural practices that infringe on the rights of women conferred by the
constitution are void to the extent of the infringement. 13
10 CEDAW Article 14(g). 11 African Women’s Protocol in the African Charter in Human and Peoples’ Rights. 12 Section 51 of the Zambian Constitution. 13 Section 80 of Zimbabwean Constitution.
10
4.5 Problems Associated with Women’s Control and Access to Land
The duality of laws is problematic for women because land rights are primarily in the hands of
traditional leadership under customary law. Most women in Zimbabwe are given communal
land and because this belongs to the state, it cannot be inherited if a woman becomes a widow.14
Although there has been an increase in single or married women buying property in their own
individual titles, there are still few married couples who register through joint titling.15 A
country may fail to implement international protocols simply because it does not feel the need
to commit to the goals at that particular point. This can be done after a state does an examination
of its needs and concludes that human rights are seen as a goal to be aspired for, rather than
embedding human rights in its foundational values. However, it is my view that the rights of
woman should be at the heart of national legislation and that the state should make an effort to
ensure that women’s rights need to be realised in a more practical manner.
5. Methodology and approach
This is a desk top research method where I will make use of books, academic journals, statutes,
treaties and case law. This will be a comparative study of Zambia and Zimbabwe, focussing on
similarities and difference in the two countries on the subject topic. I will use a feminist
perspective because a gender perspective law and policy is necessary in the restructuring of
gender perspectives. Customary and traditional land allocation should be centred on
independent title deeds to land and gender equality in inheritance. Furthermore, land rights
should be given through occupation so that women do not become dispossessed in divorce or
widowhood.
6. Limitations of study
As a result of monetary constraints, I will not be able to travel to Zambia to do a more
in depth study.
14 Mushunje (note 1 above) 6. 15 Machina (note 4 above) 13.
11
7. Chapter Outline
Chapter 1
1. Research problem
2. Assumptions
3. Research Questions
4. Motivation
4.1 History of land in Zimbabwe
4.2 History of land in Zambia
4.3 Inheritance and Women’s constraints
4.4 Legal framework administering women’s land rights
4.5 Problems associated with women’s control and access to land.
5. Methodology and approach
6. Limitations of study
7. Chapter Outline
Chapter 2: Gendered Perspectives on Women’s Land Rights
1. Introduction
2. The Effect of Patriarchy in an African Context
3. Defining Access to Land
4. Ecofeminism
5. Role of Gender
6. African Feminism and Customary law
7. The Dichotomy between ‘Rights’ and ‘Customs’
8. Conclusion
Chapter 3: Land Tenure Systems in Zambia and Zimbabwe
1. Distribution of Land in Zimbabwe
2. Background to the Land Tenure in Zambia
3. Gender in Multiple Customary Land Functions
4. Utilisation of Customary Law and Inheritance Laws
12
5. Women in Zimbabwe Today
6. Conclusion
Chapter 4: International, Regional and Domestic Legal Framework
1. Introduction: Is There a Right to Land?
2. International Law
3. Regional Law
3.1 Protocol to the African Charter on Human and Peoples’ Rights on
the Rights of Women in Africa (the Protocol) and Non-Discrimination
3.2 Southern African Development Community Protocol on Gender and
Development with regard to land
4. Domestic Laws
4.1 Constitution of Zambia
4.2 Constitution of Zimbabwe
5. Conclusion
Chapter 5
1. Recommendations
2. Conclusions
13
Chapter 2: Gendered perspectives on women’s lands rights
1. Introduction
African social perspectives and everyday experiences centers on the way people form part of
the networks that lead to their access to resources.16 The extrinsic link between women and
land has been identified to be important for the status of women, gender equality and women
empowerment.17 Because women consist of the majority of the world’s population, it is
important that they have access to a larger portion of land. The underlying assumptions are that
there are gender neutral international and domestic laws and policies on access to property and
that there is gender equality.18 The reality faced by most is that access is gendered as a result
of customary and traditional practices. This chapter seeks to explore ecofeminism with regards
to access to the environment, the nexus between gendered relationships and gender-neutral
laws, gender justice, and human rights in legal pluralism.19 Furthermore an in depth analysis
will be made on the embedded nature of gender segmentation and segregation and the practices
that sustain gender inequalities.
2. The Effect of Patriarchy in an African Context
Patriarchy in its literal sense means ‘rule of fathers’.20 However, in the modern day era, this
has now gone beyond fathers and now extends to the rule of husbands, brothers and uncles who
form part of the societal structure.21 Male dominance is at the center and it is the cultural aspect
of patriarchy that women are seen as inferior and thus their rights are not realized in most
spaces. Patriarchy thus is the underlying foundation of women’s access to land because of the
patrilineal control of resources. This highly influences laws and how they are implemented
through the ideology that the adult male is the ultimate controller material resources and
decision maker. The issue of gender is highly linked to patriarchy because it is a social construct
16 Griffiths, A ‘Networking resources: a gendered perspective on Kwena Women’s property rights’ in H, Lim &
A, Bottomley (2007) Feminist Perspectives on Land Law. 218 17 Kameri-Mbote P, Hellum A, & Nyamweya P ‘Pathways to real access to land-related resources for women in
in A Tsanga & J Steward, Women in Law: innovative approaches to teaching, research and analysis 333. 18 Kameri-Mbote , Hellum & Nyamweya (note 17 above) 333. 19Kameri-Mbote , Hellum & Nyamweya (note 17 above) 334. 20 Patriarchy is a system of social structures and practices in which men dominate women. This happens in
almost all spheres of life including law, commerce, education, political or village leadership, etc. 21 Kameri-Mbote P (2005) ‘The land has its owners: gender issues in land tenure under
customary law in Kenya. International Environmental Law Research Centre. 1
14
that leads to the embedding of the patriarchal system.22 The division of maleness and
femaleness leads to each gender having specific abilities and duties in a social-economic set
up. Where women are viewed as the homemakers that perform domestic chores such as
washing and cooking food, men on the other hand, are the heads of the family and making the
decisions for the family.
Culture is important because it shapes one’s identity and how one experience oneself in a
familiar space and the world. Gender relations are passed down from one generation to the
next, and it is evident that inequality has remained the constant. The reinforcement of gender
roles tends to maintain the woman as inferior, and depending on the man for status and
resources.23 In this way, culture embeds and enforces male power and their interests, whilst
women remain in a position of subordination and inequality.
3. Defining Access to Land
The law of property denotes that ownership is the most comprehensive real right over a thing,
and its entitlements are protected by legal provisions. Access, however, is concerned with the
relationships with those that own the land, and those that use the land.24 A distinction must be
made between access in the legal sphere, compared to access in terms of living and the
customary law. The notion of having individual and communal land in a customary sense leads
to the potential detriment to some women members of the community.25 Access therefore is
the authorization that a person is given where one is not an owner. A contentious issue arises
here because of the gendered social constructs, where a woman access to the land is done
through a structure vicarious ownership through men as their fathers, husbands, uncles or
brothers.26 Access to property in many traditional societies as pointed out above is premised
on three things namely, membership to a given society, functions relating to the property and
the performance of reciprocal obligations owed to others in the society.27 The socially
constructed roles of men and women mentioned before are essential to the outlining of access
rights. Control for its part involves the power to distribute and redistribute access rights to
22 Kameri-Mbote (note 21 above) 2. 23 Albertyn C ‘The stubborn persistence of patriarchy? Gender and cultural diversity in South Africa’ (2009) 2
Constitutional Court Review 171. 24 Kameri-Mbote, Hellum & Nyamweya (note 17 above) 341. 25 Ibid. 26Kameri-Mbote, Hellum & Nyamweya (note 17 above) 343. 27 Kameri-Mbote (note 21 above) 6.
15
members of the society. This power is determined by the power relations between members of
the community. In patriarchal settings, the role vests in the older male members of a
community. Because customary communities often separate themselves from the legal aspects
of their societies, patriarchal perceptions continue to prevail. Land rights for women are
important for the betterment of the status of women in an African context. Their access to land
ensures that their needs are respected within the household and family set up.28
4. Ecofeminism
Ecofeminism29 is concerned with a desire to balance a deep concern for social and economic
justice, particularly with respect to welfare of women.30 This theory seeks to bring a radical
shift in the relations between women and men with regards to perception of land access. The
term “Mother Nature” is figurative of the interconnectedness between the women and the
land.31 There are therefore overarching perceptions that accompany ecofeminism: there is a
patriarchal dominance that has gender oppression as a consequence. Secondly, women relate
more to the environment, whereas men have a stronger connection to culture. Moreover, culture
is then seen to be superior to the environment, resulting in a male dominated order.32 The
ecofeminist approach then explores the effect of environmental degradation on the environment
on women’s everyday lives. Land is significant to women because it is a critical component to
their survival. The access to land for the purposes of production is a prerequisite that allows
vulnerable members of society, such as women, to have an agricultural benefit from the land.33
Furthermore, when women are given better access to land, they have a better position in
bargaining power. Rural women have a special bond with the land because it improves their
poverty and sustains the livelihoods.34 There is an assumption that women use the land for
activities such as vegetable gardens and rearing chickens, whereas men us the land for animal
farming and hunting. However, these gendered activities are not always static and therefore
policy makers have to ensure that they are gender sensitive when establishing policies.35
28 Walker C ‘Elusive equality: women, property rights and land reform in South Africa’ (2009) 25 SAJHR 469. 29 Ecofeminism is a theory that encompasses sustainable development of the environment and gender equality. 30Kameri-Mbote , Hellum & Nyamweya (note 17 above) 338. 31 Shiva, V (2005) Earth Democracy.
32 Kameri-Mbote , Hellum & Nyamweya (note 17 above) 339. 33 Moyo, C ‘Rural Women and Land, the Inseparable Twins: A Case of South Africa’ (2013) 11(2) Gender and
Behavior 5396. 34 Moyo (note 33 above) 5396. 35 Ibid.
16
5. The Role of Law in Gender
The legal pluralistic approach is combined with women’s law to establish a human rights
approach to the socio-economic plight of women. With the developments of the legal
dispensation through CEDAW and the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa,36 non-discrimination and equality has been
ameliorated extensively.37 However, the centralistic view that the abovementioned conventions
apply wholly, negate the patrilineal and inheritance systems that are imbedded in certain
spaces.38 The plight of women to access land cannot not be analysed solely through an
international lens because of the intersectionality their lived experiences. A national-level
investigation will be made in this paper to redress the fact that particular normative regimes
limit women’s access to land.39 It is important to interrogate whether a structure of legal
pluralism entailing diverse family law models will provide a meaningful reconciliation with
the prevailing patriarchal system and a state’s commitment to improve gender equality.40
6. African Feminism and Customary law
African feminism is a “feminist epistemology and a form of rhetoric that has provided
arguments, which validate the experience of women of Africa”.41 This discourse seeks to
generate a discussion the focuses on a universal consciousness which understands the history
of African women, their present everyday realities and future anticipations.42 The African
feminist framework works towards having the minority of voices of African women being
heard in terms a more secure access to land. Empirical studies in Zambia and Zimbabwe
illustrate that the complex relationship of standards and norms of customary and statutory
legislation significantly affects women in terms of how they access land, from whom and how
much.43 History of African land tenure is embedded in patriarchal tenets and has often been
36 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Woman in Africa of 2005
(The Protocol). 37 Kameri-Mbote, Hellum & Nyamweya (note 17 above) 345. 38 Ibid. 39 Kameri-Mbote, Hellum & Nyamweya (note 17 above) 347. 40 Higgins T, & Fenrich J ‘Customary Law, Gender Equality, and the Family: The Promise and limits of a
Choice Paradigm’ in J Fenrich, P Galizzi & T Higgins (2011) The Future of African Customary Law 423. 41 Goredema, R ‘African feminism: the African woman’s struggle for identity’ (2010) Vol 1 African Yearbook
of Rhetoric: Gender Rhetoric: North-South 34. 42 Ibid. 43 Whitehead A & Tsikata D ‘Policy Discourses on Women’s Land Rights in Sub-Saharan Africa: The
implications of the Re-turn to the Customary’ (2003) Vol 3(1&2) Journal for Agrarian Change 68.
17
affected by colonialism at a community level. As a result of these complex nuances, the
formulation of policies is far removed in African land tenure outcomes relating to gender. In
post-independent states, land remains an important weapon in power struggles, where the
inefficiency of land administrators reenacts the discriminatory practices of the past.44
Customary tenure is guaranteed in Zambia and Zimbabwe and unfortunately, the constitutions
of both countries prescribe the scope of customary law, identifying specific processes and
practices in relation to land.45 The reality of these enshrined rights do not bring practical
outcomes to equitable access to land because of the poor enforcement and implementation of
the law.46 The informal systems of land administration and management operate in a void that
makes women’s participation or leadership in land administration and management particularly
difficult.47 It is therefore imperative to assess whether principles of gender equity are broadly
embraced, socially or legally accepted, and promoted at the institutional level (such as land
registries, courts, conflict resolution institutions, and local land administration agencies);
assess the gender balance within land administration agencies; and examine the rules,
institutions, and players involved in customary, religious, and informal frameworks
particularly those regarding inheritance and divorce.48
Although this formalistic approach is favourable for legal centrists, the need to preserve the
native law and custom only displays the voices only of certain groups in indigenous society.
Therefore, there is a link between the holders of power in African communities, and colonial
powers.49 The socially embedded characteristic of land means that access to land is based on
its utility to certain groups in society. However, there is also a system of hierarchy, which has
gender implications for women. Although women have access to land, they are not similar to
the access of men to land because of the gendered positions that exist in kinship systems.50
Marriage is the most prominent way in which claim land as husbands pass land to their wives
for farming. Furthermore, they may preserve land from their own kin.51 However, this claim is
weak because it does not include unmarried women. As a result of this, it is important to be
44 Whitehead & Tsikata (note 43 above) 73. 45 Whitehead & Tsikata (note 43 above) 75. 46Whitehead & Tsikata (note 43 above) 76. 47 Odeny M ‘Improving Access to Land and strengthening Women’s land rights in Africa’ Presentation at the
Annual World Bank Conference on Land and Poverty (2013) The World Bank- Washington DC, April 8-11,
2013 p 6. 48 Ibid. 49 Whitehead & Tsikata (note 43 above) 75. 50 Whitehead & Tsikata (note 43 above) 77. 51Whitehead & Tsikata (note 43 above) 78.
18
wary of national laws and rules that marginalize the plight of women in processes that change
and redefine custom.52
7. The Dichotomy of ‘Rights’ and ‘Custom’
The universalist theory holds that human rights are central to each persons living reality and
therefore it is imperative for all states to protect human rights.53 Cultural relativists on the other
hand, challenge this trajectory and claim that rights can only be validated in a specific context,
and that their entitlements are culturally specific. A closely related debate is the differentiation
between individual and group rights. Relativists focus their argument on the community,
whereas universalists prioritize individuals. The static nature of custom “ignores the fact that
there are no longer bounded cultures circumscribing people’s life experiences”.54 Cultural
relativity upholds this position, thereby denying marginalized groups’ challenge for change.
However, the essentialism nature of rights by universalists is also problematic. The rights based
approach been illustrated to be a variable that can be re-negotiated in various levels of society
through international instruments and within the jurisprudence of different countries.55
Legal pluralism can be used to criticize both universalism and relativism. The argument is that
both theories fail to take into consideration the intersectionality of individual or cultural rights
of people in the majority of societies. There are state laws, international instruments, customary
regimes, that people choose to draw upon to fit their needs at that specific time. Therefore, it
is almost impossible in the context of Zambia and Zimbabwe, to rely on only one or the other
because “nowhere can rights or custom be said to exist or operate in isolation from the other.56
In the everyday lives of people in a society, people live in a context of cultural and legal
pluralism to deal with real life situations. This approach encapsulates the plight of women as
they deal with issues of gender equality. It is imperative to challenge the status quo to make
rights and customs more intersectional, contextually negotiable and sensitive to the
interdependence of women.57 It is evident that rights and legal strategies fail when they do not
interrogate power relations and gendered relationship. National laws do not grapple with
52 Classens A & Mnisi S ‘Rural women redefining land rights in the context of the living customary law’ (2009)
25 SAJHR 495. 53 Classens and Mnisi (note 52 above) 496. 54 Classens and Mnisi (note 52 above) 497. 55 Ibid. 56 Ibid. 57 Classens and Mnisi (note 52 above) 499.
19
women’s problems at local level. The most progressive way to rectify this is that the law needs
to be informed by the pragmatism of overlapping rights and customs existing at different levels
in different spaces.58
8. Conclusion
Gender and land tenure in African customary law continues to engage policy and law makers
for as long as there is no equity for women. This chapter has outlined the predominance of
patriarchy in law, policy and practice ensures and that the discrimination against women is
embedded in formal structures. The deconstructing, reconstructing and reconceptualising
customary law notions around the issues of access would create a positive difference for
women. It is important to debunk the notion that all customary law is retrogressive and capture
positive ‘living’ customary law aspects. The struggle of land rights is inherently covered in
the contestation between custom and land rights. A legal pluralistic approach is needed to
address this issue. The following chapter addresses a situational analysis of the Zambian and
Zimbabwean land tenures and the practical implication for women.
58 Classens and Mnisi (note 52 above) 515.
20
Chapter 3: Land tenure systems in Zambia and Zimbabwe
1. Introduction: Distribution of land in Zimbabwe
Zimbabwe has a total area of 39 million hectares of land.59 Two main models have been at the
core of the re-allocation of land in Zimbabwe; one premised on smallholder production and
one focused on commercial production.60 However in practice, these models vary significantly
and they regularly overlap. The historical background of Zimbabwe illustrates the inequitable
distribution of land from the era of colonialism to present day times:61
1984 The native reserves were established and this resulted to the codification of
customary law, a concept which was imposed on to indigenous African
people.62
1901 7,000,000 black people were given 8,4 million hectares of land, and 12, 600
settlers allocated 32 million hectares of prime land to the colonial regime.63
1930 The Land Apportionment Act formalised after recommendations by the
Morris Carter Commission.
1977 The Land Apportionment Act was amended to allow Africans to purchase
land in European areas.
1982 Communal Areas Act passed to create Tribal Trust lands to allow for
resettlement.
1992 Land Acquisition Act gave the government the first right to purchase excess
land for redistribution to the landless.
1993 Rukuni Land Commission was established to study land tenure system and
come up with recommendations for the possible best route for resettlement.
1997 Land Reform and Resettlement Program II was launched.
2000 Fast-Track Land Reform Programme.
Before independence in 1980, it is evident from the above timeline that the discrimination was
mainly against black people, as white people were the given the most fertile land.64 The main
59 Mushunje (note 1 above) 4. 60 Scoones, I., Marongwe, M., Mavengedze, N., Murimbarimba, F., Mahenehene, J. & Sukume, C, (2011)
Zimbabwe’s Land Reform: A summary of findings. Brighton. 61 Mushunje (note 1 above) 6. 62 Ibid. 63 Ibid. 64 Mushunje (note 1 above) 7.
21
goal of the land reform programme in Zimbabwe was to redistribute land to black people and
deal with the social internal stratifications of black people with regard to land entitlement.65
The issues concerning age, gender class and gender discrimination have been dealt with very
little attention, while efficiency of land use, commercial viability and effects of land tenure on
output have been highly debated in the discourse of land.66 In the post-independence
dispensation, the discrimination shifted to discrimination by black men against black women.67
This illustrates that women have always been in a subordinate position; discrimination exists
pre and post-independence. The majority of labourers in agriculture have been women, yet land
reform has continuously apply inheritance and allocation regulations that discriminate against
women such that married, divorced, single and widowed women always exposed to the danger
of losing land open the death of man in whom the land is registered.68 This chapter discusses
the various cultural, political and administrative factors that have limited women’s access to
land and how this lack of security has a detrimental effect on women’s sustainable livelihood.69
A report compiled by the Zimbabwe Women’s Resource Centre70 states that 23% of women
who lived in communal areas had access to land rights, while married women only had access
through their husbands.71 Historically, the Land Husbandry Act72 gave all African men a title
those living on the reserves. However, women were side-lined from this colonially-entrenched
criterion, and this has perpetuated in the low status of women today. There was no protection
of women’s rights and this illustrates that traditional society is also to blame for the position
women are in, as this has disseminated into modern society.73 According to anthropologists
studying pre-colonial Zimbabwe, the status of Zimbabwean women has shifted dramatically
due to the impact of colonial structures and a colonially-imposed legal system.74 Historically,
women's land and resource access was guaranteed through social and familial connections,
65 Gaidzwana (note 6 above) 2. 66 Ibid. 67 Mushunje (note 1 above) 2. 68 Gaidzwana (note 6 above) 2. 69 Gaidzwana (note 6 above) 3 70 Zimbabwe Women’s Resource Centre and Network (1994) The Gender Dimensions of Access and Land Use
Rights in Zimbabwe. Evidence to the Land Commission. 71 Mushunje (note 1 above) 7. 72 Land Husbandry Act of 1951. 73 Mushunje (note 1 above) 9. 74Knobelsdorf, V “Zimbabwe’s Magaya Decision Revisited: Women’s Rights and Land Succession in the
International Context” (2006) 15 Columbia Journal of Gender and Law 3.
22
with women's agricultural production tied to traditional roles in the family, and access to land
guaranteed by marriage or clan-based land allocation.
The Tribal Trust Lands were changed to Communal Areas under the Communal Lands Act,75
which switched land from traditional leaders to District Councils. However, chiefs continued
to allocate land to households as land was held in trust by the chief or headman.76 This duality
of the law created a lack of clarity between statutory and customary law, under the customary
law, the male head of the household is considered the holder of the land.77 This excludes women
from having primary land rights, demoting women to secondary holders of rights derived from
a male superior. Upon the death of the husband, the land is apportioned amongst his wife and
relatives.78
2. Background to Land Tenure in Zambia
Tenure is an important factor in determining the way resources are effectively managed,
distributed and used. Furthermore, it instructs the way in which people hold collective and
individual rights to land.79 Since the colonial era, there have been three types of land tenure in
Zambia:
i. The ‘reserve land’ was set aside for African residents by the colonialists, which
gave them communal rights under the customary law with administration by the
tribal chiefs. This was arranged under a patrilineal and or matrilineal system,
accounted for by 36% of the country’s 752 000 square kilometre land area. This
system of land tenure advocated for joint ownership, as the land was jointly owned
by all persons that could successfully trace their ancestry to that particular village.
ii. The ‘trust land’ was also set aside for Africans but was not established under a non-
tribal basis. Some land was set aside for the purposes of public use and some limited
grants were offered to non-Africans. This comprised of 58% of all land and was
administered by the chiefs.
iii. 6% of Zambian land was referred to as ‘state land’ which comprised of freehold or
leasehold titles administered under English law.
75 Communal Lands Act of 1981. 76 Gandaidzwa (note 6 above)3. 77 Gandaidzwa (note 6 above) 4. 78 Ibid. 79 Machina (note 4 above) 3.
23
Zambia was a protectorate of the British Government in the 1920s and this resulted in that the
land was held in ‘trust’ for the Zambian people.80 In the post-colonial period, in 1975, land
reform resulted in land vesting in the President for and on behalf of all Zambians. This gave
the President the ultimate authority over land tenure arrangements structures. The Lands Act
of 199581 repealed the various groupings of land and replaced them with state land and
customary land. State land is governed under English law and one obtains this land by applying
to the Commissioner of Lands in the Ministry of Lands for a title deed.82 Customary land, on
the other hand, is held under traditions and customs that oversee use and ownership. The
common elements of customary land are that it is presided over by a Chief or village head.83
The identified land is sketched and approved and the applicant may proceed to approach the
Commissioner of Lands for a title deed. Therefore the government continued to recognise the
Chief’s to regulate the use and allocate trust and reserve land.84
The Lands Act can be commended for various achievements. The power of the president to
alienate land is limited as consultation with chiefs and local
councils is necessary.85 The conversion of customary land to leasehold tenure allows anyone
who follows the proper procedure to obtain a title deed from previously restricted ‘customary
areas’.86 The Act also yields all council land to the Commissioner of Lands to allow for land
tenure that eliminates all kinds of discriminatory practices of land holdings in councils. Above
all, the Act does not expressly discriminate against women in that any woman can apply for
land, similar to any male. However, this legislation fails to take cognisance of the historically
embedded social inequality where women had no access to the land.87 Consequentially, the
Act is not gender sensitive and continues to perpetuate disproportion. The Land Policy in
Zambia finalised in 2000 identified the need to better the position of women with regard to
their access to land.88 Although discriminate is not explicit, it is implicit and illustrated by the
lack of protection of women’s rights.
80 Ibid. 81 Lands Act of 1995. 82 Machina (note 4 above) 4. 83 Ibid. 84 Hasungule M (2001)’The 1995 Land Act: An obstacle or instrument of development? Briefing paper prepared
for The Zambian Land Alliance. 85 Machina (note 4 above) 5. 86 Ibid. 87 Machina (note 4 above) 6. 88 Machina (note 4 above) 7.
24
3. Gender in Multiple Customary Land Functions
Customary land plays a pivotal role in the well-being of rural communities as land serves as a
source if shelter, food and social status.89 Customary land provides predominantly poor
communities with access to a commonly shared base of resources which include water from
rivers, grazing land and firewood. The underlying function is socio-economic, therefore
enhancing a person’s status in the community. However, access to land remains a large
contention for women as patriarchal structures maintain power over communities. Land has
several implications that through policy can help bridge the gap between women and men.
Table 1.Multiple Functions of Land Lights.90
Function Examples
Economic Functions Productive activities (farming and livestock
rearing)
Land sales and rentals
Benefits from land appreciation
Investment incentive effects
Food security Source of food and income
Buffer against price increase
Reduced vulnerability Source of food and employment
Collateral for credits
Income from sales and rentals
Social functions Social bargaining within communities
Membership within groups
89 Tagliarino N ‘Zambia; Conversions of Customary Lands to Leasehold Titles’. 90 Meinzen-Dick R, Kameri-Mbote P and MarkelovaH, (2009)” Property Rights for poverty reduction” in J Von
Braun, RV Hill and Pandya-Lorch (eds) The Poorest and Hungry: Assessments, Analyses and Actions, An IFPRI
2020 Book. Washington: IFPRI.
25
Cultural identity
Religious functions
4. Utilisation of Customary Law and Inheritance Laws
In a male-headed household, it is taken as the norm that the land permit is registered in the
name of the man in the context of married couples.91 The male registrant is therefore guaranteed
tenure until his death, and thereafter, the widow and the children can succeed under the same
terms of the original holder of the right.92 A single woman has access to land through her father
or guardian. Under customary law, the male heir is the immediate successor, showing that
males are also favoured in the registration system. Inheritance laws are legally recognised, but
not enforced socially therefore women are highly likely to lose land to the relatives of their
spouses.93 Without a secure access to land, many widows and children become vulnerable as
this undermines their economic independence and security, as well as their access to adequate
food and housing.94 The denial of access to land leads to the feminization of poverty, as land,
property and power are mostly synonymous to men.95 Zimbabwe and Zambia have made
official efforts to remedy inheritance laws that are discriminatory against women. However,
these are statutory changes that have a minimal practical effect on the majority of population
who are governed mostly through customary law.96 It is important to note legislators have
neglected to decipher the various nuances of cultural realities of their countries which results
in laws that are unpopular and consequently ineffective. In order to develop systems of
customary law that will respect women’s rights, the law must be written and exercised in ways
that will recognise and respect cultural traditions in the systems and contexts they are based.
91 Gandaidzwa (note 6 above) 10. 92 Ibid. 93 Bhatasara, S ‘Women’s Land and Poverty in Zimbabwe: Deconstructing the Impacts of the Fast Track Land
Reform Program’ (2011) Vol 13(1) Journal of Sustainable Development in Africa 324. 94 Richardson, AB, ‘Women’s Inheritance Rights in Africa: The Need to Integrate Cultural Understanding and
Legal Reform’ (2004) Vol 11(2) Article 6 Human Rights Brief 19. 95 Human Rights Commission ‘Right to adequate housing with a perspective from selected areas in Zambia.
(2009). State of Human Rights Report in Zambia. 96 Richardson (note 94 above) 19.
26
Although Article 23 of the Zambia’s Constitution97 forbids discrimination against the lines of
gender, the same constitution does not mention personal law concerning inheritance of property
and the application of customary law.98 The safeguard of women’s interests has changed over
time, but what is constant is that women are treated as minors who are subordinate to men-
fathers, brothers, uncles and husbands. When a woman is divorced or widowed, she is
permitted to use the land but she but will not, under customary law, inherit control of the land.
The result is that widows return to their natal families where they are subsequently subjected
dependant on male kin for access to land.99 Therefore, regardless of a woman’s status, single,
single mother, married, widow or divorced, the inequality is constant and is an underlying
feature.
In a patrilocal marriage100 a woman will only have use of the husband’s land at the pleasure of
the latter’s choice, and when a divorce or death of the husband happens, she will normally
return to her relatives. She therefore does not retain any rights in respect of her husband’s
land.101 However, if the widow decides to stay at her husband’s village, she may continue using
the land, especially if there are children involved. This is done in terms of the Intestate
Succession Act102 and a spouse is the primary inheritor of the estate.103 The widow is not
entitled to inherit the title to the home, but she can only stay on the homestead after she dies or
remarries. Therefore her only right is a limited real right through a usufruct of use and not
ownership.104 The traditional courts are mandated to preside over conflict over issues on a local
level, but they are not recognised officially by the Zambian government. In addition, the chiefs
who head these courts are predominantly male and accordingly rarely take into consideration
the plight of women.
It is important to note that section 2 of the Intestate Succession Act105 does not refer to land
which at the time of the intestate death had been under customary law. The issue here is that
widows cannot benefit or even seek for protection under the act which purports to elevate their
status because the property is excluded may be the only property that is owned by the deceased
97 Zambia Constitution of 1991. 98 Machina (note 4 above) 9. 99 Machina (note 4 above) 10. 100 This is where a wife moves to her husband’s village. 101 Machina (note 4 above) 10. 102 Intestate Succession 5 Act 1989. 103 This act governs administration of estate where there is no will. 104 Richardson (note 94 above) 21. 105 Intestate Succession Act 5 of 1989.
27
person.106 The widows are excluded as a result of customary land not being included in the Act,
and thus are deprived of engaging in activities such as farming, to make a living. The Act
becomes redundant as it leaves widows that the mercy of discriminatory customary practices
which the Act seeks to avoid. Woman should effectively be allowed to inherit land that is in
customary areas as it is the cornerstone people’s livelihoods.107
In Zimbabwe, it is common cause that land allocation is centred on households with married
couples, or that women seek land within the family context. Therefore the male registrant is
always guaranteed of tenure until he dies and it is only after his death that the widow and
children can succeed to the land.108 It is evident that the system of land registration
automatically biased in favour of men.
5. Women and Land in Zimbabwe Today
Despite the aforementioned importance of land to women, there is a lack of security of tenure.
This is largely due to social and economic discrimination that exists in various levels in society.
Women’s lack of access to land is linked to poverty in both urban and rural areas.109 Out of 70
percent of the rural poor, 80% are women who rely on agriculture to survive. In order to address
this issue, women’s access to land has to be defined in its own context, in such a manner that
the right is guaranteed with or without the help of patriarchy. The current shrinking economy
of Zimbabwe leads to a change in roles in the family structure; however women’s land rights
are not evolving fast enough to illustrate the reality of the situation on the ground.110 Male wage
earners seldom share their earnings with women in the household, which means that without
access to land, they are dependent on a male relative or spouse. 80% of food security in
Zimbabwe is generated by women therefore it is imperative that they have significant access
to the land.111 Section 15 of the Deeds Registries Act112 contains Special Provisions Relating
to Women stating that “a married woman shall be assisted by her husband in executing any
deed or document required to be registered in any deeds registry”. However critics claimed that
106 Chabu D ‘A critical analysis of the efficacy of the Intestate Succession Act chapter 59 of the Laws of Zambia
protecting the right of widows (2005) University of Zimbabwe.4 107 Chabu (note 106 above) 10. 108 Gandaidzwa (note 6 above) 10. 109 Mushunje (note 1 above) 9. 110 Ibid. 111 Mushunje (note 1 above) 11. 112 Deeds Registries Act of 1996.
28
this was replaced by the Administration of Estates Amendment Act113 which repealed
inheritance laws that were discriminatory against women, civil and registered customary
marriages particularly.114 However this omits a group of women that include unmarried or
divorced women.
The Land Reform Programme in Zimbabwe divided land into A1 and A2 models. The A1
model is generally intended for “landless people with a villagised and self-contained
variant”.115 The model A2 is a commercial based scheme comprising of small, medium and
large scale commercial settlement.116 A major impediment of the A1 model is that patriarchal
tendencies resurfaced as the permits was issued in the name of the husband. The consequence
being that the husband is given primary and use; therefore, the crops and the profits that
emanate from them are his. Although the woman is predominantly the labourer of the land, she
does not have a right to the fruits of her labour.117 Since communal land is generally allocated
to a man at his ancestral home area. Where married women have access through their husbands,
unmarried women are at a disadvantage even in their own home areas as they only have access
through their brothers. Irrespective of a woman’s status, women have minimal or no access to
communal land in their own right because the emphasis on customary law and tradition is
prejudiced against women.
6. Conclusion
This chapter has outlined the empirical realities that women have faced in Zambia and
Zimbabwe with regard to their access to land. At first glance, one may state that women and
men have equal user rights pertaining to land. However, access and control is dominated by
men. The current legal framework concerning land and inheritance laws perpetuates the
discriminatory practices that have been embedded in society since colonialism. The use of
customary law in land issues furthers this discrimination as the administrators of these
communities are at the helm of patriarchy and uphold the mindset that males are the heads of
the household.
113 Administration of Estates Amendment Act of 1997. 114 Shumba D ‘Women and Land: A Study of Zimbabwe’ (2011) Vol 13(7) Journal of Sustainable Development
in Africa 239. 115 Shumba (note 114 above) 241. 116 Ibid. 117 Shumba (note 114 above) 242.
29
Legal and cultural barriers have manifested themselves and that creates gender inequality with
regard to land. Society is the source of the practices that influence gender roles and that
entrench the notion that women have a lower status than men. Customary law contains complex
intricacies that need debunking on a social level. This can be achieved through transformation
of the social current attitudes of leaders such as chiefs and headmen, who administer customary
law. Furthermore, women need to be included in the rhetoric that affects them; they must be
given an equal opportunity to voice their opinions in the decision making processes. Changes
in long-held traditional practices cannot be only achieved by promulgating legislation. Laws
are only effective if enforced, and in turn, enforcement is possible only with acceptance and
understanding. Society can only respect the law if they believe that it is beneficial and necessary
for it. Ultimately, women’s right to access land can only be secured when cultural
understanding encompasses a respect for women’s rights and when legal systems respect and
adapt to the cultures in which they will be applied.
30
Chapter 4 International, regional and domestic legal frameworks
1. Introduction: Is There a Right to Land?
The majority of sub-Saharan African countries derive their livelihood from the land. This
makes it imperative that they have enough access to land in order to generate enough food and
produce to sell and make an income.118 The contentious issues are whether the right to access
to land us fundamental right that each person is entitled to and which a citizen can claim from
their government. Section 295 of the Zambian Constitution119 states that “land shall be held,
used and managed in a way that is equitable”. In the Zimbabwean Constitution120 guarantees
the right to agricultural land in section 72, but this does not include Communal Land. In both
constitutions it is evident that there is mention land being a right. This aspect will be dealt with
in more detail later in this chapter.
2. International law
The Universal Declaration of the Human Rights is the overarching international treaty that
upholds principle of non-discrimination.121 The International Covenant on Economic, Social
and Cultural Rights122 recognise the right to food and housing. This can be translated into the
right to land as land is the basis of obtaining food and shelter. Furthermore, the right of access
to land is also the right to development as “every person is entitled to participate in, contribute
and enjoy economic, social, cultural and political development”.123 Land is inextricably linked
to the right to life and dignity.124 Although Zimbabwe has ratified these conventions, women
cannot claim the right to non-discrimination and the right to legal tenure.125
118 Rugege S ‘The right of access to land and its implications in Southern Africa: A comparative study of South
Africa and Zimbabwe land reform laws and programmes’ (2004) 14 Law, Democracy and Development Law
Journal 236. 119 Constitution of Zambia of 1996. 120 Constitution of Zimbabwe of 2013. 121 Universal Declaration of Human Rights of 1948. 122 International Covenant on Economic Social and Cultural Rights of 16 December 1966, Art 11. 123 Declaration on the Right to Development adopted by the United Nations General Assembly in Resolution
41/128 of4December 1986: Art 1. 124 Rugege (note 118 above) 237. 125 Mushunje (note 1 above) 12.
31
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)126 reiterates that while observing fundamental human rights, there must be a
concerted effort to realise the worth, dignity and equal rights of men and women. Article 3 of
CEDAW emphases that State parties have to take “...all appropriate measures, including
legislation, to ensure the full development and advancement of women, for the purpose of
guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on
a basis of equality with men.” Despite the various international instruments established by the
United Nations, widespread discrimination against women continues to exist. CEDAW
purports to realise the full development of the potential of women in the service of their
countries. The new economic order of the world needs to be based on equity and this includes
equality to access land. According to article 14(g), “state parties shall ensure that women have
the right to have access to agricultural credit loans, marketing facilities, appropriate technology
and equal treatment in land and agrarian reform as well as in land resettlement schemes”.
By ratifying CEDAW, a member State commits itself to undertake a series of measures to end
discrimination against women in all forms,127 including:
a. The integration of the principle of equality of men and women in their legal
system,
b. The abolition of all discriminatory laws and the adoption of suitable laws
prohibiting discrimination against women;
c. The establishment of tribunals and other public institutions to ensure the
efficient protection of women against discrimination; and
d. The elimination of all acts of discrimination against women by persons and
organisations.
Zambia ratified CEDAW in 1985, and Zimbabwe ratified the Convention in 1991 in which
both states agreed to "incorporate the principles of equality of men and women in (its) legal
system, to abolish all discriminatory laws and adopt appropriate ones prohibiting
discrimination against women". However, both states have not successfully implemented and
incorporated this human right treaty in their constitutions. Furthermore, the constitutions
126 CEDAW. 127 Ibid.
32
excludes “equal protection and anti-discrimination provisions practices pertaining to marriage,
divorce, devolution of property, and other personal and family matters”.128 African customary
law and human rights are intrinsically incompatible because “human rights emphasise the
individual while customary law emphasises the group or community; customary law stresses
duties, human rights regimes normally stresses rights; and customary law is imbued with the
principle of patriarchy which means that any freedoms of thought, speech, movement or
association are qualified by the respect due to all senior men”.129 In these areas of critical
concern for women, the law legitimizes a discriminatory customary system.
The high court in the case of Sarah Longwe v Intercontinental Hotels has shown its willingness
to rely on international treaties which have not yet been incorporated into domestic law.130 In
that case the late Justice Musumali had this to say:
‘… I have to say something about the effect of international treaties which the Republic
of Zambia enters into and ratifies. Ratification of such documents by a nation state
without reservation is a clear testimony of the willingness by that state to be bound by
the provisions of such a document. Since there is that willingness, if an issue comes
before this court which would not be covered by local legislation but would be covered
by such international documents. I would take judicial notice of the treaty or convention
in my resolution of the dispute.’
All the above ratifications by Zimbabwe are ostensibly an effort to ensure that women are
included in the development process and that their basic fundamental rights are protected.
However, a closer examination of the situation in Zimbabwe will show that many of these
pieces of legislation have not gone beyond mere rhetoric. This is particularly evident when the
Constitution of Zimbabwe is taken into consideration. Section 327 (2) b of the constitution
states that the government is not obliged to domesticate any international convention, unless
they have been passed by an act of parliament.
128 Richardson (note94 above) 3. 129 Bennett TW “The compatibility of African customary law and human rights” (1991) Acta Juridica 23. 130 Machina (note 4 above) 9.
33
3. Regional Law
3.1 Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa (the Protocol) and Non-Disccrimination
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa (the Protocol)131 was adopted as a response to human rights abuses that African
women faced across the continent. The African Charter on Human and People’s Rights (the
Charter) was found to be inadequate in addressing the socio-economic plight of women despite
various provisions.132 The Charter failed to achieve any progress for women because it
pertained to the public arena and not the private realm.133 In the Zambian and Zimbabwean
constitutions guarantee equality, but this does not pertain to customary which is considered to
be part of private law. Secondly, the Charter values African traditions, without considering that
these traditions uphold harmful practices such as male primogeniture regarding inheritance
laws.134 In the context access to land, most widows are considered practically landless once
their husbands die and are subjected to property grabbing by the relatives. The land titling
system consists of laws and policies that are biased in favour of male-headed households.
The Protocol describes ‘discrimination against women’ as ‘any distinction, exclusion or
restriction based on sex, or any other differential treatment whose objective or effects
compromise or destroy the recognition, enjoyment or the exercise by women, regardless of
their marital status, or human rights and fundamental freedoms in all spheres of life”.135 Article
2 provides for gender equality, mandating states to combat all forms of discrimination against
women through appropriate legislative, institutional and other measures.136 Specifically, the
measures taken should ensure the principle of equality between men and women, and prohibit
all forms of harmful practices which endanger the health and general well-being of women and
girls. Importantly, it is required that the principle of equality be included in the constitution or
131 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Woman in Africa of
2005 (The Protocol). 132 Article 2 stated that everyone enjoys the rights of the Charter without distinction on grounds of sex; Article 3
states that everyone shall be equal before the law and shall be entitled to equal protection of the law; Article 18
guarantees family protection and prohibits discrimination against women in the context of the family. 133 Oder J ’Reclaiming women’s social and economic rights in Africa’ (2004) Vol 5(4) ESR Review 14. 134 Ibid. 135 The Protocol. 136 Ebeku K ‘Considering the Protocol on the Rights of Women in Africa’ (2006) Vol 36(1) Africa Insight 25.
34
statutes of states, and they are obliged to ensure its “effective application”.137 This is a pivotal
obligation because most constitutions’ in Africa advocate for equality and non-discrimination,
but the lived reality is that women in those countries continue to suffer gender-based
discrimination and unequal treatment. Fundamentally, this duty recognises that it will take
more than legal provision to achieve gender equality and non-discrimination in Africa.
Furthermore, states have an obligation to take positive action in those areas where
discrimination against women continues to exist, and change the social and cultural patterns of
conduct through specific actions (such as public education) to achieve the elimination of
harmful cultural and traditional practices.138
Article 6(j) states that women have the right to acquire administer and manage property during
marriage. Furthermore, in matters of separation, divorce and annulment of marriage, they have
an equitable share of the property.139 Women and men shall have the right to an equitable
sharing of the joint property deriving from the marriage. It is important to note that before the
Protocol was adopted, women married under customary or religious in many African societies
had no right to divorce; the right was only available to men, and divorce could be for any reason
whatsoever – or for no reason at all.140 Moreover, upon divorce or separation, African women
married under customary or religious law had no right to any property acquired during
marriage, even if they had contributed financially to its acquisition. Therefore, the execution
of Article 7 is intended to reverse these unequal and discriminatory positions. Article 21(1)
recognises that widows have the right to live and retain ownership of the matrimonial home
and have the same inheritance laws as men. However, in terms of housing rights, customary
law is not specifically referred to.141
Zambia has taken legislative and administrative steps that conform with the provisions
international instruments similar to the Protocol. In its Concluding Observations and
Comments published in 2002 on Zambia’s periodic report, the Committee on the Elimination
of Discrimination Against Women remarked positively
137 Article 2 of the Protocol. 138 Ebeku (note 136 above) 25. 139 Article 7(d) of the Protocol. 140 Ebeku (note 136 above) 26. 141 Oder (note 133 above) 14.
35
“the country’s efforts to strengthen the national machinery on women and the
introduction of gender mainstreaming; the adoption of several policies and programmes
to eliminate discrimination against women – for example, the National Gender Policy
and the establishment of the Gender in Development Division under the Office of the
President; efforts to review existing laws that discriminate against women including the
enactment of the Marriage Act and the Intestate Succession Act”.142
Zambian local court, in a landmark judgment held that women married under customary law
have an equal right to a share of marital property in the event of the divorce or death of her
husband, thus reversing the custom which denies women a share of property irrespective of
whether she had contributed to its acquisition.143
In analysing the Protocol, it is worth assessing whether women have indeed benefitted from
these provisions. Although Zambia and Zimbabwe have ratified the Protocol, there has not
been any domestic implementation regarding women’s access to land. The downfall of
conventions is that there are no sanctions or penalties that befall any ratifying country to hold
them accountable for their obligation. Even with the current wave of ‘democracy’ on the
African continent, customary laws continuously exacerbate the plight of human in terms of
equality. Although there was an African Court on Human and Peoples’ Rights that was
established as a result of the Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights in 1998, Zambia and
Zimbabwe have not recognised the competence of the Court to receive cases Non-
governmental organisations (NGOs) and individuals.144
Weaknesses of the Protocol
An important concern of the Protocol is that it does not provide guidance as to implementation
within the domestic courts of states. Furthermore, it does not create a distinction between
statutory, customary and living law, an important tenet for the purposes of this paper.145 This
142 Ebeku (note 136 above) 28. 143 Zambia: Landmark Judgment for Women in Customary Marriages’, IRIN, 21 December 2005, (accessed 14
July 2016) http://allafrica.com/stories/200512210499.html. 144 Ebeku (note 136 above) 30. 145 Davis K ‘Emperor is Still Naked: Why the Protocol on the Rights of Women in Africa Leaves Women
Exposed to More Discrimination’ (2009) Vol 42 Vanderbilt Journal of Transnational Law 963.
36
vagueness undoubtedly leads to broad leeway for states to interpret the provisions loosely and
ineffectively. Both Zambia and Zimbabwe have both constitutional and customary praxis’s;
the amalgamation of the two is problematic because they often exist at opposite ends of the
justice spectrum. Customary law is based on rules and norms that have been accepted into a
society over a long period of time. This includes cultural traditions that are usually established
along ethnic or tribal lines.146 As established throughout this paper, customary law is often in
conflict with statutory law. Where statutory law focuses on “obligations and privileges created
by the constitution and legislation, customary law represents traditions, rules and culture that
has evolved over time”.147 The Protocol addresses customary law in a generally negative
manner because most customary traditions perpetuate a culture of discrimination against
women. Although there are specifically prohibited practices, states may elect to have
reservations to certain articles in order to allow for harmful customs. On the other hand,
although the states may accept the prohibitions in writing, they may fail to enforce it
domestically.
The major weakness of the Protocol is that it does not contain substantive provisions; rather it
imposes obligations on states to take necessary measures to realise the stated rights. The
disadvantage with imposing obligations on states is that the content of the rights (at the
domestic level) is dependent on the economic position and capability of the particular states,
and this may be problematic to persons who want to bring an action before courts claiming
violations of their rights. Thus, there may be national government budgets that may inhibit the
Protocol for being enforced. Furthermore, the state may claim the sanctity of its cultural and
traditional beliefs. With women’s access to customary land, a state may state that traditions do
not necessarily discriminate against women because they are the views of society. The danger
here is that if ratification and implementation fail, there is a possibility that rights will be
ignored in future.
There is a lack of implementation for three reasons. Firstly, the country does not sign or ratify
the Protocol. Secondly, the state ratifies but fails to include it domestically. Thirdly, a country
may ratify the Protocol and domesticate it, but fail to enforce the provisions. On these three
levels, there are far-reaching and damaging effects on women’s rights. In most countries, the
146 Davis (note 145 above) 970. 147 Davis (note 145 above) 971.
37
Protocol is viewed as a declaration rather than an instrument that is legally binding.148 When
a country fails to enforce the Protocol after ratification, it is highly likely that gender inequality.
In most cases, the consequences are worse when implementation is not done efficiently because
it is as if the Protocol was never signed to begin with. This is because ambiguous or vague
laws are open it abuse and misuse.
On a theoretical level, an instrument that targets a particular group acknowledges that that
group is in need of protection. The Protocol thus perpetuates the stereotype that women are
vulnerable and weaker.149 This may inhibit women from realising their potential in other
spaces.
3.2 The Southern African Development Community Protocol on Gender and
Development with regard to land
Regional economic communities (RECs) were originally created with an economic function,
but they have also included human rights protections under their mandate.150 SADC151 has
adopted a treaty that addresses gender and development. However, this has been under scrutiny
as it bears a close resemblance to the Protocol. The aim is to develop and implement 6 main
goals;
(i) eliminate discrimination and achieve gender equality;152
(ii) harmonise and co-ordinate the implementation of the various obligations imposed
by the instruments to which SADC member states have subscribed;153
(iii) address emerging gender issues and concerns and fill gaps where existing treaties
are inadequate or insufficient;154
(iv) set realistic, measurable targets, time frames and indicators for achieving gender
equality and equity;155
148 Davis (note 145 above) 975. 149 Davis (note 145 above) 964. 150 Forere M & Stone L ‘The SADC Protocol on Gender and Development: Duplication or complementarily of
the African Union Protocol on Women’s Rights (2009) 9 African Human Rights Law Journal 438. 151 The SADC Protocol on Gender and Development was signed in August 2008 but has yet to enter into force
as not a single SADC member state has ratified the Protocol. 152 SADC Gender art 3(a). 153 SADC Gender Protocol art 3(b). 154 SADC Gender Protocol art 3(c). 155 SADC Gender Protocol art 3(d).
38
(v) strengthen, monitor and evaluate the progress made by the member states towards
reaching the targets and goals set out in the Protocol;156 and
(vi) deepen regional integration, attain sustainable development.157
The SADC Gender Protocol provides for a review of policies to cater for access to, and control
of productive resources such as water, property and land.158 The implementation mechanism is
a reporting mechanism which is an individual complaints system. The SADC Tribunal is
established under the SADC Treaty to ensure adherence to and proper interpretation of the
provisions of the SADC Treaty and subsidiary instruments and to adjudicate upon such disputes
as may be referred to it.159 The Treaty provides that judges shall be appointed from nationals
of states who possess the qualifications required for appointment to the highest judicial offices
of their respective states or who are jurists of recognised competence.
The majority of the provisions in the Protocol have been repeated in the SADC Gender
Protocol, thus amounting to a redundancy of efforts and a misdirection of scarce resources
which could have been invested elsewhere. Ideally, the SADC should have adopted a plan of
action to effectively and uniformly implement the African Women’s Protocol.160 In addition,
given that the SADC has settled for weaker implementation mechanism in compared to those
of the AU, and has further increased the burden on states with regard to reporting, it was indeed
inappropriate to adopt a treaty which weakens the already existing treaties that are equally
binding on SADC member states.
4. Domestic law
4.1 The Constitution of Zambia
The Zambian Constitution in section 51 gives women and men the equal right to treatment an
opportunity as well as right to inherit won, administer and control property.161 At the same
time, however, the constitution explicitly excludes from this provision, personal law - such as
156 SADC Gender Protocol art 3(e). 157 SADC Gender Protocol art 3(f). 158 SADC Gender Protocol art 18. 159 SADC Gender Protocol art 16(1). 160 Forere and Stone (note 150 above) 458. 161 Section 51 of the Zambian Constitution.
39
that concerning inheritance of property - and the application of customary law. In the past,
customary law provided some safeguards to protect women’s access to (though not control
over) land. However, these safeguards rarely operate today.162 This illustrates that although
there are ethnic differences in bodies of customary law and these have changed through time,
an over-riding commonality is that women are treated as minors who are subordinate to men -
fathers, uncles, brothers and husbands.
The constitution defines discrimination as:
“affording different treatment to different persons attributable, wholly or mainly to their
respective descriptions by race, tribe, sex, place of origin, marital status, whereby
persons of one such description are subjected to disabilities or restrictions to which
persons of another such description are not made subject to or are accorded privileges
or advantages which are not accorded to persons of another such description”.163
Article 23(4)(c) exempts a number of laws from the provisions of article 23(1) and provides
that:
(a) Clause 1 shall not apply to any law so far as that law makes provision:
(c) with respect to adoption, marriage, divorce, burial, devolution or property on death
or other matters of personal law
(d) for the application in the case of members of a particular race or tribe of customary
law with respect to any matter to the exclusion of any law with respect to that matter
which is applicable in the case of other person; or
(e) whereby persons of any such description as is mentioned in clause (3) may be
subjected to any disability or restriction or may be accorded any privilege or advantage
which having regard to its nature and to special circumstances pertaining to those
persons or to persons of any such other description is reasonably justifiable in a
democratic society.
The laws exempted by article 23(4) are in issues that directly affect women in general and
widows in particular. It is evident therefore that women’s enjoyment of fundamental freedoms
including the right to access customary land guaranteed by the constitution is greatly restricted.
162 Machina (note 4 above) 9. 163 Article23 of the Zambian Constitution.
40
Article 23(4)(e) legitimizes the traditional position, which accorded widows fewer privileges
than men in matters concerning their families, marriage and succession. Thus although the
Intestate Succession Act seeks to give both men and women equal rights in matters of
succession, this would pose problems with the constitution.164 Therefore if women’s rights or
widows rights for that matter, were specifically protected by constitutional provisions,
legislation would follow suit and the status of widows would be ameliorated in relation to their
right to inherit and in turn have access to customary land.
A case involving a 79-year-old women in Monze, Zambia illustrates that widows are especially
vulnerable as a result of customary land tenure.165 Theresa Chilala’s husband died in 1990 and
she refused to be sexually cleansed according the Tonga traditional custom. As result, her in
laws drove her off her husband’s property and took away her livelihood, thus forcing her to
move to a new homestead. Moreover, after having moved, her in laws continued to bury bodies
of their relatives on her new property.166 To seek legal redress, Chilala approached the Law
and Development Association who referred her to Zambia’s Lands Tribunal. The Lands
Tribunal is a national court that focuses on customary and traditional law. The Tribunal ruled
against Chilala. The Justice for Widows and Orphans Organisation organised a meeting with
Chieftainess Nkomesha as well as the chiefs from the southern provinces. In 2006, the chiefs
banned Chilala’s in laws from entering onto her new property and burying any more people
there.167Therefore, even though Zambia is party to CEDAW, Zambian customary law
continues to be discriminatory as it forcibly evicts widows and orphans.
4.2 The Constitution of Zimbabwe
National constitutions represent an important framework that links international and domestic
human rights standards. Before the amendment of the current constitution, the Zimbabwean
Supreme Court in Rattigan and Others v Chief Immigration Officer and Others168 dealt with
164 Machina (note 4 above) 9. 165 Hambuba, C (2006) ‘Zambian Widow Defies Custom and Life Amid Graves’
http://womensenews.org/2006/11/zambian-widow-defies-custom-and-life-amid-graves/ (accessed 10 August
2016). 166 Ibid. 167 Ibid 168 1994 (2) ZLR 54 (SC).
41
section 23 and it was argued that this section did not specifically mention sex as a prohibited
basis for discrimination although section 11 stated that all persons were entitled to all
fundamental rights.
The founding values of the amended Constitution declares that the state must promote must
promote the full participation of women in every sphere of Zimbabwean society. Section 56
guarantees equality and non-discrimination;
“(1) all persons are equal before the law and has the right to equal protection and benefit
of the law
(2) Women and men have the right to equal treatment, including the right to equal
opportunities in political, economic, cultural and social spheres.
(3) Everyone has the right not to be treated in an unfairly discriminatory manner on
such grounds as their nationality, race, colour tribe, birth or place of birth, ethnic or
social origin, language, class, religious belief, political or other opinion, custom,
culture, sex, gender, marital status, age, disability or natural difference or condition or
economic, social or other status.”
Furthermore, Section 80 states that customs and cultural practices that infringe on the rights of
women conferred by the constitution are void to the extent of the infringement. 169 The
Constitution also establishes and sets out functions of Gender Commission
“There is a Gender Commission which has the following functions-
(a) to monitor issues concerning gender equality to ensure gender equality as provided
in this Constitution;
(b) to investigate possible violations of rights relating to gender;
(c) to conduct research into issues relating to gender and social justice, and to
recommend changes to laws and practices which lead to discrimination based on
gender.
(d) to advise public and private institutions on steps to be taken to ensure gender
equality;
(e) to recommend affirmative action programmes achieve gender equality;
169 Section 80 of Zimbabwean Constitution.
42
(f) to do everything necessary to promote gender equality and to prevent gender
discrimination”.
The lack of access to land for the bulk of Zimbabwean women is based in the laws regulating
access to matrimonial property. Although men and women have the same capacity to acquire
freehold tenure, there is inequality in access to education and employment which makes them
unable to realise their rights fully.170 In terms of the Communal Land, this is allocated by the
District Council in terms of customary law. This results in women not having equal access to
customary land and has to leave the house and land after divorce.171 It is clear that the law
regarding the access to communal land is discriminatory against married women.
4.3 The Case of Magaya v Magaya
This case addressed the issue of inheritance and was presided over the Deed Act. Veneria
Magaya was denied inheritance over her father’s deceased estate on the grounds that she was
a woman.172 The Supreme Court of Zimbabwe stated that “a lady cannot be appointed heir to
her father’s estate when there is a man in the family who is entitled to it”.173 The court
proceeded to rule in father of Veneria’s step-brother younger brother from a second marriage.
This case illustrates that an unmarried woman does not have protection against land
discrimination. Despite the fact that land is essential to the survival of women, Zimbabwean
women still face inequality with regard land rights. 174
The “second-class” status reflected in the Magaya is evident and discriminatory. As suggested
by the court's understanding on constitutional interpretation to justify ongoing socio-legal
repression towards women, the inconsistencies in the application of gender rights and
protections in the constitution itself may demonstrate a broader social and legal uncertainty
about the status of women despite political promises of equality.175
170 Ncube W‘Defending and Protecting Gender Equality and the Family Law Under a Decidedly Undecided
Constitution in Zimbabwe’ (1997) Vol 14 Zimbabwe Law Review 15. 171 Ncube (note 167 above) 15. 172 Magaya v. Magaya, (1999) 3 L.R.C 35, 40 (SC) (hereafter Magaya) 173 Ibid. 174 Shumba (note 114 above) 240. 175 Knobelsdorf (note 74 above) 7.
43
The legal implications included the right against discrimination. Magaya argued that the court
should “exercise its discretionary law-making role to ensure that women were not excluded
from being appointed heiresses at customary law.”176 The court, by denying this discretionary
judicial approach, threw the status of Zimbabwean women into question, essentially
determining that “even unmarried women are more likely to be property than to own it ... [and]
holding that the ‘nature of African society’ dictates that women are not equal to men, especially
in family relationships.” 177 Perhaps even more legally troubling, the court's favouring of a right
to the application of discriminatory customary law sets a strong legal precedent. The Magaya
decision clearly established a precedent that supports the constitutional legality of
discrimination on the basis of sex, and subsequent amendments to the constitution of
Zimbabwe have maintained these “blanket exceptions to gender discrimination”.178 The right
to economic opportunity of women is also a factor in this case because it shows that gender
inequality hinders economic development of women.
Conclusion
African women have undergone human rights abuses and gender-based discrimination of
various kinds. For instance, they suffer violence in the private arena, and in the public arena
they have been virtually denied participation in governance and decision-making bodies in their
countries. This situation has persisted for decades, in spite of the existence of international and
regional human rights, which are binding on most, if not all, African states. The ratification of
instruments existence of those instruments has not positively changed the status of African
women. International, regional and domestic laws ought to work simultaneously to achieve the
goal of gender equality and non-discrimination. States are therefore under an obligation to
ensure that all aspects of substantive and procedural law relating to the legal status of women,
family and succession are compatible with the human rights norms and standards contained in
the treaties she has ratified. The application by the courts of the principles of international law,
such as those affecting the equality of spouses in various areas of family law, is therefore not
only expected but justified and appropriate.
176 Magaya para 41 177 Magaya Para 51. 178 Knobelsdorf (note 74 above) 9.
44
The constitution, as the supreme law is obligated to advance women and entrench their rights
in the country’s laws. Any constitution should acknowledge the fact that men and women are
different but that gender equality should denote equal opportunities. Neutral positions may
work for the benefit of one group at the expense of another. There is need for the constitution
to articulate women's rights to the extent that sex and marital status are also provided for in the
constitution. On the domestic front, states have failed women by not affording them rights that
are guaranteed in the constitution. The failure of the constitution means that there is a
systematic discrimination and inequitable laws in customary law. Such laws exist in the
regulation of access to customary land which excludes women from having direct secure access
to land in these tenure systems
45
Chapter 5: Conclusion and Recommendations
Conclusion
This paper has established that the status of women in Zambia and Zimbabwe has been
secondary to men from before colonial times. The ideology of patriarchy is the underlying
problem that has led to the plight of women. It is important that a restructuring of societal
systems be embarked on to illustrate the lived realities of the relationship between men and
women. The complexity of customary law and its tenure of land have to be shifted in manner
that equality of access to land is realised. Furthermore, it is important to acknowledge the link
between women and land, and the amount of labour women exude in contribution to the family,
and the nation as a whole.
The allocation of land in Zambia and Zimbabwe has been discriminatory throughout history.
A timeline of the history of land tenure systems in both countries show that women always
have a starting point that is based on inequality. This paper has illustrated that the allocation of
customary land is done through customary law, administered by leader such as chiefs and
headmen. Inheritance of land is the most prevalent way that women have been excluded from
accessing customary land, and it is discriminatory and unequal.
International, regional and domestic legal frameworks shape the discourse on human rights.
Issues regarding ratification, implementation and enforcement hamper progress in the
realisation of women’s right to access land. The various bodies must establish strict
mechanisms to hold states accountable in order for women’s status to be elevated to point of
equality in all spheres of life, to uphold their dignity.
46
Recommendations
The recommendations made pertain to the recognition of the fact that women need to gain
access to customary land but also go beyond access and strive for control and ownership.
Women’s land rights should be an inalienable human right;
A. Joint access to land.
The title deed to land should include names of both spouses under customary
law over customary land. This allows for security of tenure that when a husband
dies, the wife can still have a claim to the land.
B. Head of the household
There must be a complete debunking of the genderisation of household heads.
This includes a change in mindset that a man has a higher status than a woman.
This can be done through education in rural areas, where people such as chiefs
and headmen are also included in the discourse.
Women have to be taught about customary practices from a young age,
conscientising the positive and negative aspects of customary law on their
womanhood.
C. Inheritance laws
On the death of a spouse. A woman should be able to inherit her spouses land.
D. Implementation and enforcement of international and regional instruments
States must be held accountable for ratifying instruments mechanisms must be
set in place to penalise states that continue do not adhere to the treaties.
Economic sanctions can be administered against states that continue practising
customary law that is discriminatory to against women.
E. Women’s rights activists, NGO’s, the church and traditional healers.
Creation of programmes to deal with land administration and access to justice
F. Role of civil society
Set up campaigns to change the attitudes of both men and women towards
women. This is done through information gathering and sharing lived
experiences through dialogue.
G. Role of government
47
Programmes must be initiated to in from members of parliament, local
authorities and law enforcement on the negative effects of customary practices.
This is done to ensure that rights are protected.
48
Bibliography
Books
Armstrong A and Ncube WK (eds) Women and Law in Southern Africa (1987)
Zimbabwe Publishing House.
Bennett TM A Sourcebook of African Customary Law for Southern Africa 1991) Cape
Town: Juta and Co.
Donzwa B, Ncube W & Stewart J “What law? What law? Playing with the rules” in
Cube W &Stewart (eds) Widowhood, Inheritance Law, Customs and Practices in
Southern Africa (1995) WLSA Harare.
Griffiths, A ‘Networking resources: a gendered perspective on Kwena Women’s
property rights’ in H, Lim & A, Bottomley (2007) Feminist Perspectives on Land Law.
Higgins T,& Fenrich J ‘Customary Law, Gender Equality, and the Family: The Promise
and limits of a Choice Paradigm’ in J Fenrich, P Galizzi & T Higgins (2011) The Future
of African Customary Law .
Kameri-Mbote P (2005) ‘The land has its owners: gender issues in land tenure under
customary law in Kenya. International Environmental Law Research Centre.
Kameri-Mbote P, Hellum A, & Nyamweya P ‘Pathways to real access to land-related
resources for women in in A Tsanga & J Steward, Women in Law: innovative
approaches to teaching, research and analysis.
Scoones, I., Marongwe, M., Mavengedze, N., Murimbarimba, F., Mahenehene, J. &
Sukume, C, (2011) Zimbabwe’s Land Reform: A summary of findings. Brighton.
Shiva, V (2005) Earth Democracy.
Journals and presented papers
Albertyn C ‘The stubborn persistence of patriarchy? Gender and cultural diversity in
South Africa’ (2009) 2 Constitutional Court Review 171.
Bennett TW “The compatibility of African customary law and human rights” (1991)
Acta Juridica 23.
Bhatasara, S ‘Women’s Land and Poverty in Zimbabwe: Deconstructing the Impacts of
the Fast Track Land Reform Program’ (2011) Vol 13(1) Journal of Sustainable
Development in Africa 324.
49
Chabu D ‘A critical analysis of the efficacy of the Intestate Succession Act chapter 59
of the Laws of Zambia protecting the right of widows (2005) University of Zimbabwe.4
Classens A & Mnisi S ‘Rural women redefining land rights in the context of the living
customary law’ (2009) 25 SAJHR 495.
Davis K ‘Emperor is Still Naked: Why the Protocol on the Rights of Women in Africa
Leaves Women Exposed to More Discrimination’ (2009) Vol 42 Vanderbilt Journal of
Transnational Law 963.
Ebeku K ‘Considering the Protocol on the Rights of Women in Africa’ (2006) Vol 36(1)
Africa Insight 25.
Gaidzwana R Women and Land in Zimbabwe,(2011) University of Zimbabwe. Paper
Presented at the Conference “Why women matter in agriculture”, Sweden.
Forere M & Stone L ‘The SADC Protocol on Gender and Development: Duplication or
complementarily of the African Union Protocol on Women’s Rights (2009) 9 African
Human Rights Law Journal 438.
Goredema, R ‘African feminism: the African woman’s struggle for identity’ (2010) Vol
1 African Yearbook of Rhetoric: Gender Rhetoric: North-South 34.
Hambuba, C (2006) ‘Zambian Widow Defies Custom and Life Amid Graves’
http://womensenews.org/2006/11/zambian-widow-defies-custom-and-life-amid-
graves/ (accessed 10 August 2016).
Hasungule M (2001)’The 1995 Land Act: An obstacle or instrument of development?
Briefing paper prepared for The Zambian Land Alliance.
Human Rights Commission ‘Right to adequate housing with a perspective from
selected areas in Zambia. (2009). State of Human Rights Report in Zambia.
Knobelsdorf V “Zimbabwe’s Magaya Decision Revisited: Women’s Rights and Land
Succession in the International Context” (2006) 15 Columbia Journal of Gender and
Law 749.
Odeny M ‘Improving Access to Land and strengthening Women’s land rights in Africa’
Presentation at the Annual World Bank Conference on Land and Poverty (2013) The
World Bank- Washington DC, April 8-11, 2013 p 6.
Oder J ’Reclaiming women’s social and economic rights in Africa’ (2004) Vol 5(4)
ESR Review 14.
50
Machina R Women’s Land Rights in Zambia: Policy Provisions, Legal Framework and
Constraints (2002), Presented at The Regional Conference on Women’s Land Rights
from 26 May t0 30 May, 2002 in Harare, Zimbabwe.
Mbatha “Reforming the Customary Law of Succession” (2002) 18 South African
Journal of Human Rights 259.
Moyo, C ‘Rural Women and Land, the Inseparable Twins: A Case of South Africa’
(2013) 11(2) Gender and Behavior 5396.
Meinzen-Dick R, Kameri-Mbote P and MarkelovaH, (2009)” Property Rights for
poverty reduction” in J Von Braun, RV Hill and Pandya-Lorch (eds) The Poorest and
Hungry: Assessments, Analyses and Actions, An IFPRI 2020 Book. Washington: IFPRI.
Mushunje, M Women’s Land Rights in Zimbabwe (2001), University of Zimbabwe.
Ncube W‘Defending and Protecting Gender Equality and the Family Law Under a
Decidedly Undecided Constitution in Zimbabwe’ (1997) Vol 14 Zimbabwe Law Review
15.
Richardson, AB, ‘Women’s Inheritance Rights in Africa: The Need to Integrate
Cultural Understanding and Legal Reform’ (2004) Vol 11(2) Article 6 Human Rights
Brief 19.
Rugege S ‘The right of access to land and its implications in Southern Africa: A
comparative study of South Africa and Zimbabwe land reform laws and programmes’
(2004) 14 Law, Democracy and Development Law Journal 236.
Shumba D ‘Women and Land: A Study of Zimbabwe’ (2011) Vol 13(7) Journal of
Sustainable Development in Africa 239.
Tagliarino N ‘Zambia; Conversions of Customary Lands to Leasehold Titles’.
Walker C ‘Elusive equality: women, property rights and land reform in South Africa’
(2009) 25 SAJHR 469.
Whitehead A & Tsikata D ‘Policy Discourses on Women’s Land Rights in Sub-Saharan
Africa: The implications of the Re-turn to the Customary’(2003) Vol 3(1&2) Journal
for Agrarian Change 68.
Zimbabwe Women’s Resource Centre and Network (1994) The Gender Dimensions of
Access and Land Use Rights in Zimbabwe. Evidence to the Land Commission.
51
Legislation
Administration of Estates Amendment Act of 1997.
Communal Lands Act of 1981.
Convention on the Elimination of All Forms of Discrimination against Women of 1981
adopted by the General Assembly resolution 34/180 of 18 December 1979.
Declaration on the Right to Development adopted by the United Nations General
Assembly in Resolution 41/128 of4December 1986: Art 1.
Deeds Registries Act of 1996.
International Covenant on Economic Social and Cultural Rights of 16 December 1966,
Art 11.
Intestate Succession Act 5 of 1989.
Lands Act 1995 of Zambia
The SADC Protocol on Gender and Development was signed in August 2008 but has
yet to enter into force as not a single SADC member state has ratified the Protocol.
The Constitution of Zambia of 1996
The Constitution of Zimbabwe of 2013
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Woman in Africa of 2005 (The Protocol).
Universal Declaration of Human Rights of 1948.
Cases
Magaya v. Magaya, (1999) 3 L.R.C 35, 40 (SC)
Rattigan and Others v Chief Immigration Officer and Others 1994 (2) ZLR 54 (SC)
Sarah Longwe v Intercontinental
