Women and Land - Prof. Patricia Kameri-Mbote

Protecting Womens Land
Rights Through Land

Reforms
Prof. Patricia Kameri-Mbote
Building Consensus on Community Engagement within
Land Reforms and the Extractive Sectors in Kenya
Tuvuke
Panafric Hotel, 12th March 2015
University of Nairobi
http://www.uonbi.ac.ke
ISO 9001:2008
Certified
Key Points
Introduction
Why Land
Access , Control & Ownership
CoK & NLP
Importance of Law & Policy
Engendering Land Reforms
Conclusion
ISO 9001:2008
Certified
Introduction
Imbalance between economic contribution of
women and land ownership rights in Kenya
Centrality of land & consequences for
exclusion especially with EI entry
Gendered notions of ownership
A factor of social, legal, political, economic factors
Effective Policy & Law : Law in context; Living

Law
Land rights as complex web of relationships
gender is one
Gender identified as a land poliy chalenge in
Africa
ISO 9001:2008
Certified
Introduction- 2
Land hosts many resources renewable and
non-renewable
No land rights no resource rights
Terms and conditions under which rights to

land acquired, retained, used, disposed,
transmitted a site of major contest
Land reform seeks to alter laws, regulations
and customs regardinglandownership
Gender as social construct
Gender roles and realms of operation homestead,

clan, ethnic, group, nation
Division of labour
Femininity & Masculinity
Translation into powerful/powerless
ISO 9001:2008
Certified
Introduction- 3
Patriarchal norms exacerbate situation
In most cases, womens access to land is
through vicarious ownership/control by
men related to them
Husbands, Fathers, Uncles, Brothers, Sons
Few women own and/or control land

Limits of law in mediating between
contesting claims
Broader national context
Crisis of property institution no clarity of who holds
enforceable rights
Might is right how will the weak such as
women fare in a rule of the jungle context
Patriarchy
ISO 9001:2008
Certified
Why Land
Land as praxis for enjoyment of other rights
water and sanitation; housing; food; political
participation; voice etc
Exclusion from land leads to other exclusions
Land not just physical space - it has multiple
functions which need to be factored into law
& policy protecting womens rights:
1. Economic functions
Productive activities (farming, livestock rearing, ecobusiness)
Extractive Industry
Land sales and rentals
Benefits from land appreciation
Investment incentive effects
ISO 9001:2008
Certified
Why Land - 2
2. Food security
Source of food and income
Buffer against sudden price increases
3. Reduced vulnerability/shock mitigation

Source of food and employment
Collateral for credit
Income from land sales and rentals
4. Social functions
Social standing/bargaining position within household,

community, and nation
Membership in groups
Cultural identity
Religious functions
5. Conservation
Authority to make decisions, investments

Incentives for sustainable management
ISO 9001:2008
Certified
Interventions: Access,
Control & Ownership
Access to property in many cultural

settings predicated on
Membership to a given society Women???
Function relating to the property
Devaluation of womens functions
Performance of reciprocal obligations owed
to others in society
Control entails the power to distribute

& redistribute access rights to members
Ownership constitutes the overall right
to land
IS O 9001:2008
Certified
Control & Ownership -2
Access may be limited by the

owner/controller & this affects women
A,C & O influenced by diverse factors
Gender;Marital status
Citizenship national, local, ethnic
Control of land essential validation of social &

political autonomy
Land as identity
Way of women moving to productive realm Vs
reproduction
Reproductive role of women basis for their
subordination
Different Normative & Institutional Regimes

influencing O/ship, Control & Access
IS O 9001:2008
Certified
Control & Ownership -3
International
Geopolitical/political economic terrain implications
International institutions
MFIs; WTO; Bilateral donors
Regional Maputo Protocol on womens rights

National
Diverse juristic norms: Statute, Religion; Custom;

Intersections; Interactions with international & regional
Local norms; Domestic/household
Political, Social & Economic systems

allocation of resources
Different instruments used by polities at

different levels
Power; gender; generation factors influence

representation and input in decision-making process
IS O 9001:2008
10 Certified
Constitution
Gender anchorage in Constitution
National values and principles of governance

include equity, social justice, inclusiveness,
equality, human rights, non-discrimination and
protection of the marginalized
Bill of Rights Chapter 4 including civil & political
rights and socio-economic rights
CoK 2010 (Article 27)

Men & women have right to equal treatment &
opportunities - politics, economic, cultural & social
Grounds for non-discrimination much broader
Pregnancy, marital status, health status, disability and dress
Vertical & horizontal proscription of discrimination

IS O 9001:2008
11 Certified
Constitution - 2
Constitutional provision for principle of affirmative
action to redress past patterns of discrimination
Article 2 on the supremacy of the constitution

Any law, including customary law, ...inconsistent
with this Constitution is void to the extent of the
inconsistency...
Chapter 5- land to be held, used & managed

in an equitable, efficient, productive and
sustainable manner that is and in accordance
with LPPs
Equitable access to land
Security of land rights
IS O 9001:2008
12 Certified
Constitution -3
Elimination of gender discrimination in law,
customs and practices related to land and property
in land
Encouragement of communities to settle land
disputes through recognised local community
initiatives
Public, private, community land

Article 68 (c) (iii) - enactment of laws
recognizing and protecting the matrimonial
property especially the matrimonial home.
Response to womens pleas that their interest in
the matrimonial home be secured from abuse by
spouses who may be the title holders.
IS O 9001:2008
13 Certified
Constitution -4
Article 68 (c) (vi) - protection of dependants in actual
occupation of land in the event of the death of the
owner of land.
Protects widows & children with un-registered interests in
land from eviction from their homes e.g. where the deceased
succumbs to HIV and AIDS related ailments
The principle of at least a third representation of

women in elective and appointive bodies
Womens representation in land administration bodies from
the National Land Commission to the county and lower levels
of land administration.
IS O 9001:2008
14 Certified
National Land Policy

NLP also has provisions that promote womens rights
to land and resources
Equitable access to land and the protection of rights of women,
minorities & children in matters of access to and ownership of land
Recognition, protection and registration of community rights

to land and land based resources taking into account
multiple interests of all land users, including women
Ensuring that the rights of women in pastoral areas are
recognized and protected
Putting in place appropriate legislation to ensure effective
protection of womens rights to land and related resources
IS O 9001:2008
15 Certified
National Land Policy -2

Repealing existing laws and outlawing regulations,
customs and practices that discriminate against
women in relation to land
Enforcing existing laws & establishing a clear
framework to protect inheritance rights of women
Making provision for joint spousal registration &
documentation & joint spousal consent to disposal
Securing inheritance rights of unmarried daughters
Facilitating public awareness campaigns on the
need to write wills
Carrying out public education campaigns for
abandonment of cultural practices barring women
from inheriting family land
IS O 9001:2008
16 Certified
National Land Policy -3

Ensuring proportionate representation of women in institutions dealing with
land at all levels
Review of succession, matrimonial property and other related laws to ensure
gender equity
Protection of the rights of widows, widowers and divorcees through
enactment of law on co-ownership of matrimonial property
Appropriate legal measures to ensure that men and women are entitled to
equal rights to land and land-based resources during marriage, upon
dissolution of marriage and after the death of the
Mechanisms to curb selling and mortgaging of family land without the
involvement of the spouses
IS O 9001:2008
17 Certified
Importance of Law
& Policy
Law can empower or disempower

Provide robust mechanisms for assaulting
inequality
Reinforce social injustices
1. Legal Rules: De jure equality, De facto discrimination
2. Patriarchal social ordering
3. Intention and rationale of law Vs consequences of law
Our Constitution & NLP are empowering

Law however affects men and women
differently
Need to eliminate legal barriers beyond
provisions
ISO 9001:2008
18 Certified
Importance of Law
& Policy - 2
Remove injustice behind faade of rights

& privileges guaranteed to all
Discrimination in enforcement
Unfair decisions of court & administrative authorities

Social & econ barriers to fulfilment of rights and
privileges
Different sexes living different lives & substance of
rules rarely just for persons of a particular sex
Interplay between life and law
Equality & equality of treatment
Law can lag behind societys view of

what law ought to be
Reality, opinion
Law can be captured by interest groups

such as status quo beneficiaries
ISO 9001:2008
19 Certified
Engendering Land
Reforms
Goes beyond policy & legal prescriptions

Need to get into implementation
Law allows women to own land but many
women do not own land
Most land titles are held by men
Many women have access to land but that

access is not well anchored in law
Based on relationship with owner/controller
Most labour on farms is provided by women

but this does not guarantee their
access/interests when relationship with male
benefactor ceases
Dissolution of marriage
Death
ISO 9001:2008
20 Certified
Engendering Land
Reforms -2
Womens access to land needs to be secured

quite apart from ownership & control
Laws that seek to deal with gender
discriminatory practices do not go far enough
New wine in old wineskins
Laws implementing Constitution have not

allowed for continuum of rights which
would accommodate access rights
Spousal consent requirement not useful without
addressing invisible power dynamics in the
household
Matrimonial property protection with requirement
to establish contribution
ISO 9001:2008
21 Certified
Engendering Land
Reforms -3
Idea of womens land rights not yet firmly

anchored in minds despite womens
contribution to land productivity and in
other spheres.
Not a one off activity it is for the long

haul and takes all of us
Very easy to lose gender equal provisions
in the constitution
Need to lobby and advocate as well as

identify critical allies
ISO 9001:2008
22 Certified
The Promise of Law

& Policy
Land reforms have the potential to protect
and guarantee womens rights through:
1. Confronting culture through policy charting a

path to deal with gendered aspects of culture that
overpower even well-meaning laws
This calls for interrogation of culture
2. Through law Promulgation and Implementation

Education on substance of rights and procedure for
enforcement to enable access to rights availed
Legal aid test cases to illustrate how law might be
applied innovatively
Lobbying for non-gendered application of law
3. Changing dominant discourse over land control

and ownership
Policy & Law have sought to give women what men have
Interrogate this position
ISO 9001:2008
23 Certified
The Promise of Law

& Policy - 2
Stop backing the wrong horse in light of finite land resources

and struggle over resources & need for sustainable use of land
Shift focus from ownership/control to access based on need
and capacity to use & actual use
Reconsider land ownership and/or control by any one
person/group and consider subjecting land rights to greater
public good resident in trusteeship over land for posterity
(identify trustee and duties)
4. Innovation & pro-activity
Devise land rights system based on use

Align land rights to responsibilities
Link land rights to resource rights
Forests, wildlife, genetic resources
Tax idle land to discourage absentee landholders

Link land rights to rights to knowledge associated with the
land and resources
Use images: Life stories of propertied women to debunk
myth that women do not/cannot be loci for land rights
holding
ISO 9001:2008
24 Certified
The Promise of Law

& Policy - 3
5. Social engineering
Educate society on benefits of gender equality
and equity in land holding
Diffuse tensions among genders related to land
Womens right to land one contested issue in draft
constitution
6. Examine and promote the role of

womens groups in guaranteeing women
rights to land
Acceptability of role of womens groups in
community can be used as pathway to
popularising womens rights over land
ISO 9001:2008
25 Certified
Conclusion
The role of land reforms in promoting and
protecting womens rights to land widely
accepted
Many African countries flag this as an issue
AU Land Policy Initiative has identified it as a critical
issue
Tractable issue is how to deliver the lofty

policy and legal provisions in a context
where acceptance of womens rights to own
land is contested
Law has limitations in engendering social
transformation processes
ISO 9001:2008
26 Certified
Conclusion - 2
People go to law; law does not go to people
Law operates in a context which nuances its effects
Judicial interpretation of law can limit/enhance laws
effectiveness
Need to capture and build on enhancements and discard
limitations
Centrality of the law ensures legal sanctions to

dictates for equality in land rights delivery
Need for extra legal interventions alongside law
To translate dictates into reality

To transform societies views on womens rights to land
Need to recognise and deal with diversity

among women
Too much emphasis on women in marriage
relationships
ISO 9001:2008
27 Certified

Women and Land - Prof. Patricia Kameri-Mbote

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Protecting Womens Land

Rights Through Land

Effective Policy & Law : Law in context; Living

Terms and conditions under which rights to

Gender roles and realms of operation homestead,

Few women own and/or control land

Crisis of property institution no clarity of who holds

Buffer against sudden price increases

3. Reduced vulnerability/shock mitigation

Social standing/bargaining position within household,

Authority to make decisions, investments

Access to property in many cultural

Control entails the power to distribute

Access may be limited by the

Control of land essential validation of social &

Different Normative & Institutional Regimes

Geopolitical/political economic terrain implications

Regional Maputo Protocol on womens rights

Diverse juristic norms: Statute, Religion; Custom;

Political, Social & Economic systems

Different instruments used by polities at

Power; gender; generation factors influence

National values and principles of governance

CoK 2010 (Article 27)

Vertical & horizontal proscription of discrimination

Article 2 on the supremacy of the constitution

Chapter 5- land to be held, used & managed

Public, private, community land

The principle of at least a third representation of

National Land Policy

Recognition, protection and registration of community rights

National Land Policy -2

National Land Policy -3

Law can empower or disempower

Our Constitution & NLP are empowering

Remove injustice behind faade of rights

Unfair decisions of court & administrative authorities

Law can lag behind societys view of

Law can be captured by interest groups

Goes beyond policy & legal prescriptions

Many women have access to land but that

Most labour on farms is provided by women

Womens access to land needs to be secured

Laws implementing Constitution have not

Idea of womens land rights not yet firmly

Not a one off activity it is for the long

Need to lobby and advocate as well as

The Promise of Law

1. Confronting culture through policy charting a

2. Through law Promulgation and Implementation

3. Changing dominant discourse over land control

The Promise of Law

Stop backing the wrong horse in light of finite land resources

4. Innovation & pro-activity

Devise land rights system based on use

Tax idle land to discourage absentee landholders

The Promise of Law

6. Examine and promote the role of

Tractable issue is how to deliver the lofty

Centrality of the law ensures legal sanctions to

To translate dictates into reality

Need to recognise and deal with diversity

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