Land rights for women, the formal system, customary practices and the struggle for change in Budondo, Uganda
In Uganda, land is the primary source of income and livelihood for people, especially in rural areas. In the last couple of decades, the country has struggled with high poverty rates, which have been strongly affected by conflict and the HIV/Aids epidemic. This and the fact that many people migrated to cities in order to find work have caused many social changes and have made the struggle to overcome poverty more difficult in rural areas.
Many different land tenure systems have been introduced, none of them had a lasting impact. The latest attempt by the Ugandan government was the introduction of the formalization process through the Land Act of 1998, in order to boost development and tackle poverty. This process entails tenure privatization, where land is transferred from the state to citizens, and the introduction of land titling. In other words, it entails the formal designation of a particular piece of land to a specific individual, and its official registration. This approach is advocated by many Western scholars like De Soto. He sees formally registered property rights as a way to open the collateralization of land assets and provide the basis for the creation of capital and economic progress (De Soto, 2000). On the other hand, he perceives customary tenure as an obstacle to the success of the formal system, since most assets are not adequately documented and cannot readily be turned into capital or traded easily. In order for development to take place, he deems it necessary to integrate these resources into an orderly and hegemonic framework.
It has not, however, had the desired effect so far. It is very difficult to implement this formal system in a country where customary practices are formally acknowledged and have a central role to play in day to day life. This recognition has created a duality of regulation which has made the situation more complex and less transparent, and does not benefit development. One of the most vulnerable groups in regard to land rights are women. They are responsible for the vast majority of food production: between sixty and eighty percent. But most women do not have direct access to land. Their access to land is tied primarily by customary practices in which women have limited user’s rights through their lineage or status as a family member and through their contribution to the welfare of the family.
In order to find a way to stimulate development and help women claim their rights (which go hand in hand) it is necessary to find out how the duality between the formal system and customary practices takes shape, what problems have arisen because of it and how these problems can be overcome. It is a complex situation with a great number of interconnected issues, which includes gender and power relations as well. Something else which has to be kept in mind is the fact that we need to look at the responsiveness and involvement of the people themselves. As Birgit Englert and Elizabeth Daley say: “there are no easy, painless, single solutions. The issues are complex because they operate and require responses on many different levels” (2008: xi). In my thesis I have divided the problems into several different categories.
The first category: contradictions between the formal system and customary practices. Customary practices emphasize group rights, while the formal system puts the emphasis on individual rights. The fact that cultural diversity is formally recognized makes implementation of the land reforms very difficult. In a context where survival is linked with reciprocity and social cohesion however, it is very difficult to implement a system which emphasizes the individual (rights). The dualism between the two forms of tenure brings about a situation in which women’s rights have been recognized, but equal distribution is still lacking. Next to that, in customary practices women can claim their rights based on their contribution to the family, while in the formal system they derive their claim from human rights. For many women in rural areas this highly analytical perception is beyond their comprehension since their empirical world is limited to day-to-day life. Furthermore, having their rights based on their contribution seems more logical to them, since they are responsible for the majority of the food production and it is in line with customary practice. Another issue is the fact that challenging one’s husband in public can come at a high social cost. Many women try to resolve their issues in private, but this leaves them in a disadvantaged position.
A number of analytical problems also impede implementation. De Soto mentions the fact that the commoditization of crops help women become aware of their position, but this actually emphasizes contribution over human rights as a basis on which to claim rights, where it is the latter he wishes to promote. Next to this is the fact that helping women in their pursuit of rights is seen as a way to stimulate development. The stimulation of development however should be seen as a positive side effect, not as a goal in itself. Besides that, the collective emphasis is, first and foremost, an aspect of the customary practices, and not so much one of the formal system.
The second category: enforcement. Contradictions do not constitute the whole problem. The formal system also enforces customary practices in a way: it enhances the position of the men because the right to allocate land is translated into definite ownership when formalized and it dissolves the women’s usage rights. So it gives men a stronger position instead of giving everyone equal opportunities. Power relations have an immense influence on the way proceedings take place, especially in case of a dispute. These power relations are found at several different levels; within a family, within the community and within in the formal system. Even though the government has tried to introduce ways to give women more equality, the customary distribution of power is still prevailing. In the formal system for example this is due to the fact that the women are underrepresented and the men who hold the positions in it are imbedded into the social fabric of the community, which influences the way they do their work; whether or not deliberately.
The third category: the contextual problems in which the processes take place. These contextual problems are overlooked. They are comprised of changing social relations. The HIV/Aids epidemic affected a lot of families in Budondo economically as well as socially. The social cohesion of many families broke down and poverty rates went up. Migration of men to urban areas has left a lot of women to fend for themselves, which has heightened their independence and has caused friction within the traditional division of power. On the other hand, the lack of awareness and involvement of the grassroots level, especially of women, still have a great influence on the capacity of women to address their issues, especially when a marriage breaks down or when a husband dies. Most women do not know what they are entitled to and how to pursue their rights. There have been some attempts to set up a protocol to stimulate the formalization process. There is however a high degree of fragmentation of the regulation, which leaves (local) governments a lot of liberty in the implementation, which in turn lends room for manoeuvre and consequently misuse of power.
It is not all negative however. There have been individual as well as more organized attempts to address issues and to find a way to get past the problems. There are women who take their husbands to court in case of a divorce to pursue their claim to part of the land. Others try to do so through the intervention of family or LOC councilors. Some women in Budondo have been assisted by an NGO. They are being helped with drawing up deeds, and when there is a case that has to go to court, they get legal assistance. Another example is the meeting that was organized during my fieldwork by one of the women in Budondo in order to stimulate the dialogue.
In order to find a more structural and sensible solution it is important to get the full picture of the situation and to include people at the grassroots level. Tom Zwart’s receptor approach (2012) offers a strategy to overcome the dual situation between customary practices and the formal system. A balance between the individual focus and the collective interest is an importance aspect in this process since individual rights exist within the context of the group. The receptor approach assumes that the culture and the existing social institutions can actually contribute to meeting human rights as well as stimulate development. Since cultural barriers cannot be removed by simply papering over them with top-down legislation. In other words; involving all the players in the process can be of great value in finding a solution for problems in regard to women’s land rights. The receptor approach starts from the premise that, by relying on local socio-cultural arrangements during the implementation stage, human rights protection will be enhanced and reinforced rather than diminished.
The first step is to identify these social institutions and requires a detailed research at a local level, because research can help both to challenge the status quo and to demonstrate that another world is possible. The second step focuses on identifying the shortcomings of the already existing social arrangements. In other words: what improvements or reforms need to be made in order to stimulate women’s tenure rights. Bottom-up involvement is very important for it to being successful. During the identifying process people at grassroots level are the ones who know what is needed and what institutions can help. Later on, during the implementation, discretionary authority can enhance success as well, because it can tackle potential hick-ups which may arise more quickly and more effectively.
Doing in-depth qualitative studies at the local level can offer a deeper understanding of existing complexities and a more accurate picture of the realities on the ground. Anthropology and, more specifically, ethnography can be of great help in finding a way in which the formal system and customary practices are integrated, which ensures more equality and creates a basis on which everyone can thrive, women as well as men.
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