3. Advocating for Women’s Rights to Land and other Productive Resources
With respect to women’s access to land and other productive resources, GI-ESCR’s work builds upon past successes and strives to continually advance women’s rights by strengthening the normative framework protecting these rights, with a particular focus on Africa. To this end, GI-ESCR work specifically on: (1) Utilising strategic spaces at international and regional levels to advance these rights, namely the human rights treaty bodies of the United Nations and the African Commission on Human and Peoples’ Rights (ACHPR); (2) Strengthening partnerships and networks working on these issues, particularly between international and national organisations, including by continuing ongoing strategic discussions and partnerships between key actors and organisations working on these issues; (3) Highlighting the relevance of women’s land rights in international discourse, particularly related to the rights of rural women, climate change, food and nutrition security, sustainable development and other relevant issues, and (4) Contributing to the creation of new human rights standards on these issues.
Advocacy before the UN Committee on the Elimination of Discrimination against Women (CEDAW)
In 2017, GI-ESCR submitted three parallel reports on African countries addressing issues related to women’s land and property rights. These were to the UN Committee on the Elimination of Discrimination against Women (CEDAW) on Kenya (with FIDA-Kenya); on Nigeria (with Women in Law and Development in Africa (WiLDAF) Nigeria and the Kebetkcache Women Development and Resource Center (Nigeria)); and on Rwanda (with ActionAid Rwanda and the Rwanda Initiative for Sustainable Development).
On Kenya, our Parallel Report addressed the following substantive issues:
· The Marriage Act 2014
The CEDAW Committee established in its General Recommendation No. 29 on the economic consequences of marriage, family relations and their dissolution, that “The State must protect the rights of women in such marriages, regardless of their registration status.” However, in Kenya, women who have not registered by the stipulated deadline risk losing entitlement to shared matrimonial property. Given that 75% of the total Kenyan population lives in rural areas which are difficult to reach, often with limited access to news/information, they are likely not to be aware of legislative changes affecting their property rights.
· The Matrimonial Property Act 2015
One of the outstanding gains of this act is the acknowledgement of both monetary and non-monetary contribution of women in acquisition of matrimonial property. However the Act has a claw back clause Section 7 that negates the gain of equality in marriage and calls on spouses to show distribution. This leaves the majority of women in a disadvantaged position since it is not practical to quantify domestic work and/or non-monetary contribution. It leaves the court with the discretion of deciding what woman deserve. Again, this runs counter to what the CEDAW Committee has said in General Recommendation No. 29, wherein it provides that “States parties are obligated to provide, upon divorce and/or separation, for equality between the parties in the division of all property accumulated during the marriage.”
· Land Act 2012
Upon the enactment of the Land Act spousal consent was required before approvals are made for any land transactions that involved matrimonial property. A key purpose for this provision was meant to protect spouses, mostly women, from arbitrary sale of matrimonial property leaving them destitute with their children. Parliament has since passed an amendment law that removed the requirement of spousal consent. Section 11 of the Land Laws Amendment Act amends section 28 of the Land Registration Act by deleting spousal consent, placing married women in a precarious legal position.
In its Concluding Observations on Kenya, the CEDAW Committee issued strong recommendations in line with our report. It asked that Kenya:
· Review the requirement for registration of all marriages in a manner that protects the rights of women, including through awareness-raising and facilitation of registration in rural areas and a progressive timeline for registration and by allowing one spouse to register the marriage, thereby placing the onus on the other spouse to contest its validity;
· Repeal section 7 of the Matrimonial Property Act and recognise the principle of equality in all areas of marriage, including property;
· Repeal section 11 of the Land Laws (Amendment) Act of 2016 and reinstate the requirement of spousal consent for any transactions relating to marital property as it was under the Land Registration Act of 2012;
· Repeal and replace the Law of Succession Act and ensure equal rights between women and men with regard to inheritance and property laws; and,
· Allow for the division of property during marriage in order to protect the property interests of women when their husbands take subsequent wives.
A second Parallel Report to the CEDAW Committee addressed the current situation for women’s land rights in Nigeria. The report highlights that in most parts of Nigeria, women still have limited or no access to land and property. Indeed, the State party report itself recognises that “[i]n rural areas, women’s right of access to land is still regarded as secondary to that of men and many customs suggest that women’s access to land is still mediated via patrilineal systems.”
The conflict of laws in Nigeria leaves many Nigerian women vulnerable to violations of land and property rights, both within and outside of marriage. While Nigerian women under Nigerian civil law have access to land, and while equal inheritance rights have likewise seen increased legal protection, the reality remains that certain customary laws continue to stipulate that only men have the right to inherit and own land. For most Nigerian women, namely for those without the independent financial means to purchase land for themselves, they are only able to access land through a male family member. Discriminatory customary laws, registration of land in spouse’s name, non-implementation of human rights’ laws and policies continue to pose as strong barriers for the Nigerian woman today as far as property rights and ownership are concerned.
In its Concluding Observations, the CEDAW Committee picked up the key recommendation, which was to encourage the State to “Review the Land Use Act, the Land Administration Act and related land laws and repeal any provisions that prevent women’s access to land in order to ensure rural women’s access to land.” The Concluding Observations also contain a series of recommendation on women’s/girls’ inheritance rights, including asking Nigeria to ensure that the draft model customary law and Islamic law marriages/divorce registration law complies with the provisions of the Convention and guarantee full legal capacity for all women with regard to marriage, custody and inheritance. It also asked that the State party review the legal regimes governing inheritance under customary law and Islamic personal law to ensure that women’s inheritance rights are in line with the Convention and effectively enforced and that women are fully informed about the changes in the law.
Lastly, on Rwanda, our Parallel Report highlighted that Rwanda should be encouraged to intensify efforts to raise awareness about women’s land rights under national law, as well as the benefits of ensuring equal land rights for women, particularly among rural women and men, traditional leaders and local authorities; take immediate steps to address and remedy negative customs and traditional practices, especially in rural areas, which affect full enjoyment of women’s land and property rights; and address and fill existing legal gaps so as to provide equal protection of property rights of women in informal/consensual and polygamous marriages, including by harmonising the law on Gender-Based Violence with the National Land Law. An oral submission was also presented during the review with the assistance of our partner IWRAW-AP (International Women’s Rights Action Watch - Asia & Pacific).
The CEDAW Committee’s Concluding Observations picked up on the issues that were raised in the written and oral submissions and echoed the recommendations made in the parallel report. The most relevant paragraphs are 50-51 (marriage and family relations), 12 (access to justice) and 42-43 (rural women). For example, the Committee highlighted that the State party should “Ensure that rural women as well as local authorities, mediation committee members (Abunzi), and judicial officers are sufficiently made aware of their rights under the Convention and the new legislation regarding women’s rights to land.”
Following the release of the Concluding Observations, ActionAid Rwanda and the Rwanda Initiative for Sustainable Development were able to utilise them in local awareness raising and media outreach on the occasion of International Women’s Day (8 March 2017).
Influencing CEDAW’s General Recommendation on Gender-related dimensions of disaster risk reduction in the context of climate change
CEDAW first held a day of discussion on Women’s Rights and Disaster Risk Reduction in a Changing Climate in 2016, and at that time, with our partners Landesa and APWLD (Asia Pacific Forum on Women, Law and Development), we submitted an original written submission to influence the draft. A draft of the General Recommendation was later released for comments and we had the opportunity in January 2017 to submit a second written submission responding directly to the draft text.
Through our written submissions we highlighted the importance of 1) addressing the multiple threats posed to women’s land rights by climate change; (2) ensuring climate change strategies do not undermine women’s land rights; (3) recognising and incorporating the positive impacts of women’s land rights into climate change mitigation and adaptation; and (4) promoting women’s participation and leadership in tackling climate change. The second written submission also strongly encouraged the CEDAW Committee to raise its voice more strongly and to affirm that urgent action to combat climate change, reduce greenhouse gas emissions, and minimise its disruptions is integral to the successful implementation of the Convention on the Elimination of all Forms of Discrimination against Women.
The final General Recommendation (CEDAW General recommendation No. 37 on Gender-related dimensions of disaster risk reduction in the context of climate change) as adopted by CEDAW reflects many of the inputs made, including around women’s land rights, and is available HERE.
CEDAW Updated General Recommendation in Violence against Women mentions land and housing
In 2016, GI-ESCR submitted a written submission to CEDAW urging them to reflect women’s economic, social and cultural rights concerns, and specifically land and housing issues, in their update of General Recommendation 19 on violence against women. The new General Recommendation No. 35 urges States to “Adopt and implement effective measures to protect and assist women complainants and witnesses of gender-based violence before, during and after legal proceedings, including through: … Ensuring access to financial aid and free or low-cost high quality legal aid, medical, psychosocial and counselling services, education, affordable housing, land, child care, training and employment opportunities for women victims/survivors and their family members” (emphasis added). The General Recommendation also addresses the issuance and monitoring of eviction of perpetrators of violence against women, which was another theme addressed in our written submission.
Regional Advocacy before the African Commission on Human and Peoples’ Rights
General Comment to the Maputo Protocol on women’s property rights within the context of marriage and divorce
In May 2017, GI-ESCR and our partners had an opportunity to formally present a draft General Comment to the Maputo Protocol on Art. 7(d) to the African Commission on Human and Peoples' Rights during its private session, something that had not been done before. IGED-Africa (Initiative for Gender Equality and Development in Africa) and KHRC (Kenya Human Rights Commission) were there in Niamey, Niger to make the presentation and field the comments and questions from the Commissioners. The General Comment was discussed in detail and some Commissioners suggested further refinement.
In July, GI-ESCR secured a small grant through RRI (Rights and Resources Initiative) to convene a meeting in Accra, Ghana to finalise the draft text of the General Comment. On 2 September, the meeting to review and revise the General Comment was held in Accra, and attended by Commissioner Asuagbor, as well as representatives of IGED-Africa, ISLA (Initiative for Strategic Litigation in Africa), KHRC, and FIDA-Kenya, the main organisations in Africa with whom we have worked on this effort.
The General Comment has been scheduled for its final consideration and hopeful adoption in Spring 2019.
Strengthening Partnerships and Networks
2017 Strategic Meeting to Advance Women’s Land and Property Rights in Africa (17 March 2017)
GI-ESCR held its annual “Strategic Meeting to Advance Women’s Land and Property Rights in Africa,” bringing together approximately 25 participants from organisations throughout Africa, as well as international organisations working on issues related to women’s land and property rights. 2017 marked the 10th year that the meeting has taken place.
The objectives of the meeting included discussing strategies to advance women’s land rights as well as identifying future advocacy opportunities. Issues that were highlighted include an update on the status of the General Comment to the Maputo Protocol (please see above). In discussing the status of this draft, IGED-Africa and ISLA explained the range of issues that have been raised during the drafting process. They also led a discussion about how to strengthen the use of the General Comment as an advocacy tool as well as ways in which civil society can contribute to the workings of the African Commission on Human and People’s Rights, particularly to protect and advance women’s rights.
Other topics addressed during the meeting include: litigation strategies and the role of amicus interventions to the African Court on Human and Peoples’ Rights; the impacts on women of large scale land deals in Zambia; strengthening the role of women as stakeholders in commercial land investments; gender and land investments in Tanzania and Mozambique; good practices and lessons learned about collectively held land; and a reflection on progress towards Sustainable Development Goals (SDGs) relevant to women’s land rights.
The meeting concluded with a discussion about shared strategies for 2017.
ESCR-Net Women and ESCR Steering Committee
In August, GI-ESCR was also elected to the newly appointed ESCR-Net Women and ESCR Steering Committee. The Steering Committee members will serve a two-year term (2017-2019).
Publications and Statements
Publication Final Release: The International Covenant on Economic, Social and
Cultural Rights at 50: The Significance from a Women’s Rights Perspective
GI-ESCR finished the final design of our publication with ESCR-Net ‘The International Covenant on Economic, Social and Cultural Rights at 50: The Significance from a Women’s Rights Perspective.’
This publication celebrates the significance of the International Covenant on Economic, Social and Cultural Rights (ICESCR) from the perspective of advancing and ensuring gender equality and simultaneously points to ways in which the treaty can be utilised even more strategically and effectively to ensure that women’s ESC rights are fully respected, protected and fulfilled towards the goal of achieving gender equality. It seeks to overview the content of normative statements which CESCR has made over the years on various issues relevant to women’s ESC rights, and to highlight cases in which advocates have engaged with CESCR successfully to raise these issues and seek redress for violations of women’s ESC rights. While it does not address the issue of implementation by States, the publication highlights CESCR’s commentary within the context of many specific country reviews.
For more information please see: Int’l Covenant on Economic, Social and Cultural Rights at 50: The Significance from a Women’s Rights Perspective
Landesa Statement for International Rural Women’s Day
Together with our partner Landesa, GI-ESCR drafted and circulated a sign on statement for international rural women’s day, lauding the United Nations Working Group on Discrimination Against Women in Law and Practice for it recent adoption of a position paper on women’s land rights, available on the Working Group’s website. This joint statement was issued in support of this position paper in honor of International Day of Rural Women (15 October). It was signed by over 70 organisations. Together, we urged that this position paper be widely disseminated and implemented, including compliance by governments.