December 7, 2018 Beth Roberts and Godfrey Massay Landesa

Law of the Land: Women Gain Ground in Courts Around the World

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As the world celebrates the 70th anniversary of the Universal Declaration of Human Rights, we take a look at the growing links between human rights and women’s rights to land.

Mary Rahube had lived in her family home in Mabopane, South Africa for four decades. But when her brother fought to evict her, she was forced to turn to human rights lawyers for help—she had no ownership rights over the property. She won the right to apply for these rights on October 30, when the South African Constitutional court struck down an apartheid era law that barred black women from owning property, and recognized the rights of all women to own land.

Mary’s struggle for her rights mirrors the struggle of countless women around the world. Customary or formal systems in over half of all countries hinder women’s ownership of or access to land and housing. These rights are a vital source of livelihood and security. But in addition to legal barriers, women often face insecurity in circumstances driven by social norms or economic need—divorce, a spouse’s death, migration, or childlessness can leave women destitute. But strong property rights for women can have powerful positive ripple effects, increasing their decision-making power within a household, protecting them when power dynamics or roles shift, and improving health, nutrition, and income for them and their families.

Mary’s victory through the court’s ruling also mirrors a growing trend that holds great promise: judicial decisions—from international to local—are recognizing that women’s rights to land are central to fulfilling women’s fundamental human rights. And courts are referencing human rights standards linked to land as they build the rule of law for women’s land rights. The South African Constitutional court itself referenced the United Nations Declaration on Human Rights as it announced its unanimous decision, reminding listeners that land is implicated under the umbrella of free and equal dignity, regardless of race or gender.

The African Commission on Human and Peoples’ Rights (ACHPR) recently adopted a resolution on women’s rights to land and property, acknowledging that “women’s access to, use of and control over land and other productive resources are essential to ensuring their right to equality and to an adequate standard of living.” As part of this resolution, the ACHPR also committed to drafting a General Comment on the Maputo Protocol (which establishes women’s rights on the African continent) in order to clarify women’s equal rights to property, including in the context of marriage and divorce.

And in May of this year, the ACHPR issued a landmark judgment against the government of Mali, ordering new legislation to protect the equal rights of women and girls to inheritance, and to eliminate cultural practices that violate gender equality under international law. This was the first time the Court had found a violation of the Maputo Protocol.

A growing number of strong statements from human rights bodies support and continue to call for the kind of action taken by the ACHPR. The Committee on the Elimination of Discrimination Against Women has called women’s rights to land and natural resources “fundamental human rights.” And the United Nations Working Group on the issue of discrimination against women in law and practice recently published a position paper on women’s land rights, citing the strong links between women’s rights to land and natural resources, human rights, and sustainable development.

But how successful will these decisions be in strengthening women’s rights in practice?

When it comes to women’s rights to land, the gap between law and implementation is a crucial and thorny problem. Ongoing efforts to secure women’s rights to land on the ground are needed for these and future judicial and human rights bodies’ decisions to gain full implementation. Commitments and activism on regional and local levels are already in place, combining institutional recognition of the need with the dedication and work of those on the ground. The Kilimanjaro Initiative brings together land rights activists from across the African Continent to claim African women’s rights to access and control over land and natural resources. This complements the African Union Land Policy Centre’s work with AU states to secure 30% of documented land in the names of women by 2025.

Global initiatives as well as national and local-level actors can create recognition and drive support for these efforts. The Sustainable Development Goals (SDG) include specific calls for governments to measure progress toward gender-equal land rights. Efforts to ensure women participate in SDG processes are innovative and linked to law and practice on the ground, helping the fight for gender equality in rural areas where women are most likely to be excluded and least able to access justice.

Landesa organization is supporting SDG implementation in Tanzania. Trainings with government officials and legislative advocacy complement these efforts and aim to see Tanzania’s laws (which protect women’s rights to land) implemented on the ground. The time is ripe: Tanzania is reviewing its National Land Policy, and has become one of the first countries in the world to start collecting data on the perception of tenure security to support SDG implementation.

Landesa is also working with several international partners to launch a global campaign for women’s land rights, to close the massive gap between law and practice. As courts continue to recognize the place of women’s land rights in law, these and other sustained efforts are needed to make sure these new rulings empower women and become the real law of the land.

Beth Roberts is Program Manager of the Landesa Center for Women’s Land Rights. Godfrey Massay is a Landesa Land Tenure Specialist.

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