From objects to subjects of property: Reflecting on the gap between legal and social recognition of women’s rights to land ownership in Africa
"Women with Land Certificates" by usaid.ethiopia is licensed under Creative Commons BY-NC-SA 2.0.
“My wife is my property. Why should my property own property?”
Property, especially land ownership, has become increasingly coveted over the past decades – undoubtedly due to a capitalist society that equates success to the hoarding of capital. If one should want to survive in such a society, they would have no choice but to adopt Hegel’s approach to property, which is that everyone must have property.
I take this chance to point out that a capitalist society that prioritises the accumulation of private property by a few, runs the risk of digging its own grave in the pursuit of unrealistic greed of the oligarchs of said society. Yet, I also accept that the measure of ownership of private property in such society is ironically the most accurate way of measuring one’s advancement on the social ladder.
If one were to accept this premise, the status of women under the regime of property ownership should self-evidently reflect women’s progress in society. Indeed, women were in the past considered to be property objects, for example, under the legal doctrine of coverture where they would have no legal identity once married to men, and all the property in their name would pass to their husbands. On the face of it, the position of women under the institution of private property has changed, from objects to subjects – at least, legally. Women now have legal recognition and are free to own land (and property generally) in most countries.
Although the right to land and property is not extensively defined under international law, Article 17 of the Universal Declaration of Human Rights recognises the right of everyone to own property, and the corresponding right to not be arbitrarily deprived of property. While this was not followed by an express right to property in the International Covenant on Economic, Social and Cultural Rights (ICESCR), numerous other international human rights make reference to property-related rights, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the International Convention on the Elimination of All forms of Racial Discrimination (CERD), to name a few.
Regionally, the African Charter on Human and Peoples’ Rights (African Charter) entrenches the right to property under Article 14 which states that said right “may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate law.”
The right to property is also found in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol). Article 7(d) of the Maputo Protocol even entrenches women’s equal rights, in the event of separation, divorce or annulment of marriage, “to an equitable sharing of the joint property” deriving from the marital regime. More importantly, to address the systemic issue of the absence of women landowners, Article 19 of the Maputo Protocol obliges States to guarantee women’s rights to property and take appropriate measures to “promote women’s access to and control over productive resources such as land”.
In addition to the above international and regional recognition, the African Union also adopted the Framework and Guidelines on Land Policy in Africa which contains provisions on strengthening women’s rights to land, as well as the Declaration on Land Issues and Challenges in Africa, which commits member States to “strengthen security of land tenure for women [who] require special attention”.
“Women are often excluded from inheriting, evicted from their lands and homes by in-laws, stripped of their possessions, and have no choice but to engage in risky and non-consensual sexual practices in order to keep their property.”
The drive for improving women’s direct access to land ownership is precisely because women’s property rights are fundamental to women’s economic security, social and legal status, and often, their survival. Especially in post-conflict situations, women’s property rights are critical aspects of development and social stability. However, when one tries to measure the progress made by women, through the lens of property ownership, it is observed that although 70 to 90% of all wealth in Africa is generated through land, only 10% of the continent is owned by women. This is vexing, especially when one looks at the fact that women play a crucial role in agriculture, providing a high percentage of the labour in subsistence production.
If one accepts the Lockean theory of property rights which insists that one’s labour towards the land contributes to its ability to be owned by that who laboured, then more of the land in Africa should be owned by women. However, even accepting Locke’s premise, one is aware that there are many obstacles that stand in the way of women’s ownership on the continent; most of them being social. For example, Tanzania, Uganda and Kenya promote the equitable ownership of land, but socially and culturally “women are not considered to be the ‘rightful owners’ of such communal land”.
Women are often excluded from inheriting, evicted from their lands and homes by in-laws, stripped of their possessions, and have no choice but to engage in risky and non-consensual sexual practices in order to keep their property. Women who get divorced from their husbands are often expelled from their homes with only their clothing. This inhumane treatment, in a capitalist society that fetishises property accumulation, often comes as a result of women having no land to their name and consequently, no security of tenure, shelter or economic security.
Going back to our starting point, if one is to condemn oneself to accepting their fate in a capitalist society driven by the need for hoarding capital, then one ought to find ways to at least make marginalised people’s lives tolerable under such a system. In other words, women’s direct access to land ownership ought to be facilitated.
It becomes clear from an assessment of women’s land ownership patterns that the law is not the only answer – multi-faceted strategies that involve the work of activism and education are required to undo the social obstacles impeding women’s ability to own land. This is not an issue that will be solved overnight, but the walls of obstacles will be destroyed, brick by brick, day by day.
