DOES CUSTOMARY SYSTEM PROVIDE SPACE FOR WOMEN LAND RIGHTS?

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By Godfrey Eliseus Massay- LBI Coordinator-TNRF

November, 2015

In 1980s there was emergence of a popular theory to justify women land rights termed “the evolutionary theory of land rights”. The theory was propounded by number of property rights theorists and economists. According to the theory, the rapid population growth and commercialization of agriculture increases land scarcity and land values. This generates uncertainity about land rights within indigenous land tenure arrangements, leading to land disputes, litigation and a demand for more secure and individualized property rights in land.

The state is then expected to respond with administrative reforms including registration and titling procedures, following which conflicts will be solved.  Most land law reforms in Sub-Saharan Africa were guided by this theory in protecting women rights. Feminists across countries defended women rights by, among others, making their arguments in support of the theory.

Early in 2000, as the result of diverse impact of privatisation, commercialization and land titling to women claims, policy institutions, lawyers and academics were in favour of the move so-called “re-turn to the customary”. The proponents of this move were pointing to the resilience of customary land tenure and the advantages of a system that recognizes multiple claims to land, and which is also flexible, socially embedded and locally understood.  Institutions like the World Bank, which had favoured approaches of evolutionary theory, saw customary system as providing a useful framework. Dancer (2015) discusses these theories at length.  However, my intention is not to digress into these theories, rather it is to share my recent field experience in the light of these theories.

In September 2015, I trained village leaders on women land rights in three villages in Kwamtoro Division in Chemba District. These villages namely,Mialo, Ndoroboni and Kwamtorowere selected under “land tenure, gender and accountability program” implemented by the Tanzania Natural Resource Forum (TNRF) with the support from Welthaus Graz[1]. The training intends to enhance the knowledge of villagers and their leaders on women land rights, land administration and governance, and land dispute settlement as provided in the current Tanzanian land legal regime. The idea wasto ensure recognition and protection of women rights so that women claims on land can be achieved. This is particularly informed by the fact that most women and village leaders are unaware of the land laws and how they have safeguarded women rights. It is important to note that out of four topics trained during village leaders’ training, only one topic was on women land rights. Moreover, half of the participants in each village of the program were men. Therefore, the training was not specifically for women nor was it on women land rights only.

Geographically, Kwamtoro village is the center of newly declared Kwamtoro Planned Area, the area where business is on the raise as most of the land in the village is surveyed. As a matter of fact, it is unconventional in Tanzania to have a village in an area which is declared Planned Area. This is still a bone of contention between villagers, village leaders and the Chemba District Council. Ndoroboni Village is few Kilometers away from Kwamtoro Village and Mialo is a new village which was formed after sub-vision of Ndoroboni village. Villagers in three villages are composed of Sandawe, Rangi, Maasai, Barbaig, Nyiramba, Nyaturu, Gogo, Iraqw, Sukuma and Taturu tribes.However, the majority of them are Sandawe and Rangi.

Land survey and titling in Kwamtoro village has facilitated provision of title deeds to some women. However, the town planning process and infrastructure development such as expansion of roads has also rendered many lose their land. Since many women were depending on agriculture, their farmlands are now turned into plots as required by town planning processes and are available for sell in the land market. This has substantially affected women income such that some have started complaining that they cannot afford paying for land rent.  One woman in Kwamtoro had this to say “two years ago they asked me to pay the rent which was so high that I could not afford. I had to ask some of my relatives who assisted me. Last year the rent was higher and I am yet to finish paying, please advise me on how I can avoid paying such high rents, its tiring”

While in Kwamtoro, women did not face restriction in accessing land through village authorities, in Ndoroboni few women were allocated land in their own names. I noticed that village leaders and women inNdoroboni were not aware of women land rights.  An elder of Barbaig tribe had this to say “in my tribe land ownership is not a problem. For us land is a common good which provides pasture and water for our cattle. Traditionally, a woman is allowed to own cattle and has right on her father’s cattle.  She must be given a certain number of cattle during her wedding ceremony. However, in the recent years because of land scarcity and climate change, land ownership is becoming an issue. We did not know that women also have land rights. With this education i will make sure that my wife and daughters get a portion of my land”

Indeed, for Sandawe, Barbaig, Taturu and Maasai tribes, land is traditionally recognized as common good which is not individually owned. However with changing social, cultural and economic situation, land ownership is becoming a terrain of struggle. Similarly, other tribes such as Turu, Nyiramba, Gogo, Sukuma, and Ragi which are patrilineal, patriarchy have affected women claims in land. It is in this context that women land rights contribute toward customary systems which hinder women from enjoying their rights.

The Constitution of the United Republic of Tanzania of 1977 (as amended from time to time) has anti-discrimination provisions. Both the Village Land Act and the Land Act of 1999 provide equal rights between men and women to access, own and benefit from land. The Village Land Act is recognized by the FAO, as one of the most revolutionary legislations in respect to women rights in Sub-Saharan Africa. The Act has embodied both evolutionary and re-turn to customary theories. For instance, the Act allows the use of customary laws and traditional practices and declares repugnant all traditional laws that are against the land laws. At the same time, it allows land titling which recognizes customary practices.

It is the position of this analysis that customary system has space for women. The best practices of customary system need to be scaled up. However, changing bad customary practices takes time and requires more work to be done on the ground.The evolutionary theorists should not dismiss customary system in it’s entirely in the guise of protection of women rights. .