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Unearthing the dilemmas: Women land rights in Malawi

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By Albert Mtonga:

REQUIRES LAND —Agriculture

General overview of importance of land to women

Land  is one of the major productive resources in realising food security both at household and community level. Land is an indispensable means through which people produce food for their own consumption or as a source of income allowing them, in turn, to purchase food.

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According to the Food and Agricultural Organisation “If women had the same access to productive resources as men, they could increase yields on their farms by 20–30 percent.”

In 2010, UN Women, the joint United Nations Development Programme–United Nations Environment Programme Poverty-Environment Initiative, and the World Bank carried out a study to quantify the cost of the gender gap and the potential gains from closing that gap in Malawi, Tanzania and Uganda. It was estimated that the gender gap amounts to $100 million in Malawi, $105 million in Tanzania and $67 million in Uganda per year.

Throughout this study, monetary values were expressed in terms of 2010 prices. According to the study, closing the gender gap of 28 percent in Malawi, 16 percent in Tanzania and 13 percent in Uganda in agricultural productivity has the potential of lifting as many as 238,000 people out of poverty in Malawi, 80,000 people in Tanzania and 119,000 people in Uganda.

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There are plenty examples where women have increased agriculture productivity after being given land. Research findings among women granted land rights in Cameroon and Ghana concluded that there is positive relationship between granting women land rights and increasing agricultural productivity.

Granting women land rights is therefore considered a major requirement in increasing agricultural productivity, fighting hunger and consequently realizing the right to food.

Obstacles women face in accessing and controlling land

Despite huge gains which can be realised from granting women land rights, most women globally and in Malawi face difficulties in accessing and controlling land. For instance, it is reported that just one percent of the world’s women own land. Barriers which prevent women’s access to, control over and use of land often include inadequate legal standards and/or ineffective implementation at national and local levels.

Discriminatory cultural attitudes and practices are also major barriers which prevent women from owning and controlling land. Cultural beliefs in Africa and Malawi favours men in as far as land rights are concerned. Both patrilineal and matrilineal societies do not give a woman space and control over land. While it is thought that a woman has control over land in matrilineal systems, this is just cosmetic power since real power lies in the hand of the woman’s brother.

Brief overview of how women’s land rights are protected

In recent times, many countries and development agencies have stepped up efforts aimed at granting women land rights. Through the African Union’s Declaration on Land Issues and Challenges in Africa, African shave resolved to “strengthen security of land tenure for women [who] require special attention.”

Sustainable Development Goals (SDGs) 1, 2 and 5 hinge on recognition of women land rights in ending global poverty, achieving zero hunger and empowering women and girls. In Tanzania, the 1999 Land Act gives every woman the right to acquire, hold, use and deal with land just as men do. Furthermore, Uganda passed the Land Act in 1998 which guarantees women land rights. Mozambique’s Land law of 1997 recognises women as co-title holders of community-held land. The law calls for the election of community representative bodies—which must include women—to oversee and manage land.

Just like other African states, Malawi has legal foundation for women’s land rights. For instance, the country’s constitution calls for gender equality and prohibit discrimination on the basis of sex. Furthermore, the 2016 Land Act opened new channels for women to participate in community land management through their representation in Land Committees and Land Tribunals.

The joint land registration is another aspect which addresses challenges women face in accessing and controlling land. The Act together with the Wills and Inheritance Act of 2011 aim at promoting women’s economic empowerment and work towards full recognition and realisation of women’s economic rights as required by the Convention on the Elimination of All Forms of Discrimination Against Women.

Conflict between statutory rules and African traditions and culture

In many African states Malawi inclusive, the establishment of a legal regime that protects women’s land rights is rooted in the assumption that once there are laws for the protection of women’s land rights, women will be able to enjoy and realise their land rights. On the other side of the equation is that there is a general trend of condemning some of African traditions and culture which are responsible for thwarting women’s land rights.

Some African traditions and culture are deeply rooted in African societies. As such, African traditionalists continue to adhere to African tradition and culture. The requirement to comply with both statutory rules and African traditions and culture creates situations of dilemmas.

Despite having a legal framework which protects women’s land rights, the existence of dilemmas within the legal system itself and in the African traditions pose challenges which affect negatively women’s land rights. The existence of dilemmas makes the enjoyment and realisation of women’s land rights to be difficult and challenging in many African states.

For example, despite the legal reform in Tanzania, which took place in 1990s and early 2000s, women there are still struggling to enjoy, realise and exercise their land rights. The same fate has not spared Malawian women. Even though the Land Act was signed into law in 2016, women are yet to see the fruits of this Act.

A simple survey in Champhira under Traditional Authority Mzikubola in Mzimba District confirmed the deep ignorance of this law among women, four years after signing the Land Bill into law. It is an obvious fact that cultural norms still dominate the land transactions of most Malawians. This is despite that the law of the land is very clear by saying that in situations where the statutory law contradicts with cultural norms the statutory law should prevail.

Conclusion

Even though African states Malawi inclusive have made strides in coming up with legal instruments aimed at granting women their land rights, it is an open secret that most women are far from realising land rights. The existence of a legal framework for the protection of women’s land rights is not an end in itself; rather efforts should be made to eradicate or reduce the dilemmas, which compromise the enjoyment and realisation of women’s land rights.

More efforts should be channelled towards educating women and communities about women’s legal rights, challenging discriminatory customary rules and addressing cultural barriers to the implementation of gender-fair inheritance laws.

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