Personal reflections on drafting laws to improve women's access to land: is there a magic wand?

Abstract

This article presents the author's personal reflections on his extensive experience of drafting land laws in Rwanda, Tanzania and Uganda over the past 14 years. It highlights key legal issues in efforts to improve women's access to land through the law, and provides a frank discussion of the author's involvement in translating constitutional, policy and legal provisions into detailed common law legislation that can be consistently implemented to achieve the goal of gender equality in land rights. The three cases discussed represent quite different situations: a relatively high degree of legal clarity and progressive policy and government support for gender equality in land rights in Rwanda; a highly politicised context in Tanzania, involving a struggle to even get women's land rights onto the agenda; and a more technically focused process in Uganda of trying to translate detailed pro-women provisions into practice, particularly with regard to mortgages. Common lessons emerge from all three cases, which are drawn together in the article's conclusion and which have wider application to the land reform processes that are now ongoing in other countries across the Eastern African region.

Keywords:

• Rwanda
• land policy
• Tanzania
• law reform
• gender equality
• Uganda

Notes

1. Commission on Human Rights, “Restitution in the Context of the Return of Refugees and Internally Displaced Persons”; Paglione, “Individual Property Restitution,” 391–405.

2. Since there is no equivalent provision for men, there seems nothing to stop “decision making organs” consisting 100% of women.

3. Ministry of Lands, National Land Policy, 16.

4. Ministry of Lands, National Land Policy, 16.

5. Art. 50, Law No 22/99 of 12/11/1999 to Supplement Book One of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions.

6. Ministry of Lands, National Land Policy, para. 3.5.

7. Ministry of Lands, National Land Policy, para. 5.10.2.

8. Organic Law No 08/2005 of 14/07/2005 Determining the Use and Management of Land in Rwanda [hereafter OLL]. Although the OLL does not expressly state that customary tenure is being replaced by statute, the clear implications of article 5 are that this is to be the case: “Any person or association with legal personality that owns land either through custom, or who acquired it from competent authorities or who purchased it are allowed to own it on long term lease in conformity with provisions of this organic law.” This seems to be saying that ownership of land under customary tenure is to be replaced by a lease of land under the OLL. See too article 201 of the Constitution which states “unwritten customary law remains applicable as long as it has not been replaced by written laws …” (emphasis added). Replacement does not have to be express. In practice, as with any other country in Africa that has tried to legislate the replacement of customary tenure with statutory tenure, this provision will be largely ignored on the ground but will lead over the course of time to confusion, hardship and injustice as customary “owners” are displaced by those more knowledgeable about and adept at using statutory systems to acquire land.

9. References to the OLL in this article are to the English version of it. The Kinyarwanda version of the law uses the terms “man” and “woman,” which are significantly different. Under article 5 of the Constitution, the national language is Kinyarwanda but the official languages are Kinyarwanda, French and English. There is no indication either in the Constitution or the OLL which official language takes precedence if there is a conflict of meaning between them. This would seem to imply that all official languages have the same status. On a matter such as this, this will cause difficulties in the future. For an example of how such matters could be resolved see article 240 of the Constitution of the Republic of South Africa: “In the event of an inconsistency between different texts of the Constitution, the English text prevails.” South Africa has 11 official languages.

10. Rose, “Women's Land Access,” 243; Ansoms and Holvoet, “Women and Land Arrangements,” 138–57 at 142–4.

11. Daley, Dore-Weeks, and Umuhoza, “Ahead of the Game.”

12. Migot-Adholla, Place, and Oluoch-Kosura, “Security of Tenure”; Kibwana, “Efficacy of State Intervention.”

13. I discussed my approach to drafting the land laws of Tanzania in McAuslan, Bringing the Law Back In, 245–74. The chapter was based on an article of the same name which appeared in Development and Change, 525–52. This section concentrates principally on the issue of women's rights and takes account of publications consequent to my book.

14. Tsikata, “Securing Women's Interests” is an excellent, thorough, even-handed and informative piece on the reform process. My main criticism of it is that it does not relate the criticisms of the contents of the statutes to the policies contained in the NLP: the statutes endeavoured to give effect to the policies of the NLP. Manji, Politics of Land Reform, especially 90–4, is not so accurate or even-handed.

15. Manji, Politics of Land Reform, 90.

16. Professor Shivji, whom I met during my November 1995 visit to inform him of my impending mission, put it about that I was being paid by the World Bank to draft the land laws out of a loan made to Tanzania; i.e. that Tanzanians were ultimately having to pay for my work. He persists in this deliberate inaccuracy. In his preview of Manji's book printed on the backcover he writes “In this remarkable book Ambreena Manji demystifies the new land tenure laws drafted by international consultants sponsored by international financial institutions ….” I am the only “international consultant” who drafted a land tenure law whose work is discussed in Manji's book. Manji recognises that I was very open about my work and how I set about it; see footnote 14 for references.

17. United Republic of Tanzania, National Land Policy, para. 4.2.6.

18. United Republic of Tanzania, National Land Policy, para. 4.2.6.

19. There was a history of bad blood between the Commission and the Ministry. The Ministry's view was that it was the constitutionally mandated adviser to the President and Cabinet on land and the Report of the Presidential Commission would have to go through it to the President. The Commission thought otherwise; as it had been appointed by the President, it had to report direct to the President.

20. Shivji, Not Yet Democracy, 83–92.

21. Now the Executive Director, UN-Habitat.

22. Manji, Politics of Land Reform, 103–4.

23. Shivji, Not Yet Democracy, 86. The Presidential Commission was composed entirely of urban-based academics, party officials, MPs and civil servants. It seems fair to point out the clear implications of Shivji's comments: viz, that he and his male urban-based colleagues on the Commission had an insight into rural women's land rights which urban-based women did not. He gives no evidence to support that unlikely state of affairs. Perhaps the best comment to make about the Commission's position on women's land rights was that collectively they knew little about them, did not commission or take account of any existing research on the subject and that, had they done so, they would have discovered a wide variety of positions and views of women on land reflecting different economic and social circumstances in different parts of the country. See in particular, Ikdahl, “Go Home and Clear the Conflict,” 40–60.

24. Tsikata, “Securing Women's Interests,” 173–7. I was personally thanked in somewhat effusive terms for my efforts by the leader of one of the major women's rights groups in Tanzania when I met her by chance at a conference on housing rights in Geneva in 1999. I was also told by the then Commissioner of Lands – a woman – that women's groups told her that they had been seriously misled by an NGO about the content of the draft land laws and women's rights; when the correct situation was pointed out to them, they saw how far the Bills had gone towards their concerns and preferred to work to improve the Bills than issue “manifestoes of demands” (as Manji suggested they should have done, Politics of Land Reform, 105) that would likely be ignored by the government. A headline in a newspaper in Tanzania on September 24, 2009 stated: “Women say Village Land Act is their Saviour” after attending a workshop on the Act,

25. English law, which applies in Tanzania, has always held a relatively even hand between mortgagees (lenders) and mortgagors (borrowers) and has always been willing to intervene to protect borrowers from unfair terms imposed on them by lenders. The City of London firm kept most of the law that I had drafted but did limit the courts’ powers to reopen mortgages. A further reform in 2008 – Mortgage Finance (Special Provisions) Act – has further whittled down the protections of mortgagors.

26. McAuslan, Bringing the Law Back In, chs 12 and 13. The discussion in this section is developed from the issues raised in that work, as explained for the discussion of Tanzania in note 13 above.

27. MPs were kept in the chamber at nights and during the last weekend of June 1998 to ensure the passage of the Bill by the end of June, a time mandated by the Constitution, as I noted earlier in this article.

28. It is worth pointing out that one of the most fraught areas of land law in the UK which has given rise to countless cases going all the way to the House of Lords (the former “supreme” court in the UK) is the question of consent and undue influence with respect to loans taken out by one spouse either behind the back of the other spouse or with the other spouse allegedly pressured into consenting. Banks naturally resisted any attempt to impose obligations on them to ensure genuine spousal consent and the “solution” the courts in the UK have come up with is to impose such an obligation on solicitors to the parties and then for the most part avert their eyes from whether solicitors are providing genuinely independent and informed advice. In both the draft regulations to Tanzania's revised mortgage law and in the Mortgage Bill in Uganda I wrote in some provisions to try and ensure the consent had to be an informed consent and both spouses should take independent advice on the proposed loan.

29. Van Erp, “Comparative Analysis of Mortgage Law,” esp. 78–84. A code of civil law is designed and drafted to be comprehensive; judges do not have to look outside it for the “answers.” In common law countries, even a law designed to be comprehensive will be drafted on the basis that judges will interpret the law in the light of previously decided cases and their knowledge of the uncodified common law.

30. Coldham, “The Effect of Registration of Title”; Guyer, “Women and the State in Africa.”

31. Tsikata, “Securing Women's Interests,” 179–80.