We are pleased to introduce our summer 2019 legal intern, Justin Loveland. A third-year student at Seattle University School of Law, Justin has helped us draft an international law practice guide, looked over translations of French and Spanish, and assisted in various research projects. He is currently based in Geneva, where he is working with the UN Office of the High Commissioner for Human Rights.
Land distribution is an issue innately tied to inequality throughout the region of Latin America and the Caribbean, which is considered the most unequal region in the world. This inequality ranges from wealth disparity and political corruption to gender discrimination in labor practices and the exploitation of natural resources.
Equality can only be achieved in the region through targeted efforts to secure the rights of the poorest and most historically marginalized groups to land and natural resources. Over the past 200 years, unequal land distribution has played a major role in the region’s 35 countries, driving regional wars, population displacement, social and political conflicts, and hunger.
A main driver of inequality has been the discrepancy between women’s rights to land under formal legal systems and their actual ownership of and access to land in practice. Although periodic waves of feminism throughout the 20th century helped to expand women’s property rights within the broader picture of civil and political rights, the gains were gradual and piecemeal, and did not always translate to actual increased land tenure.
The creation and expansion of such regional political and rights-based frameworks as the Organization of American States (OAS) and Inter-American human rights system over the past 75 years has played an increasingly important role in promoting and protecting women’s land rights.
The commitment of these systems to parity in land rights runs deep: the OAS Charter itself, in Article 34(d), contemplates the specific need for equitable and efficient land-tenure systems and an expanded use of land in order to achieve equality of opportunity and the elimination of extreme poverty. The OAS Charter establishes human rights standards for all OAS members, whether or not they are parties to the principal human rights treaty of the region, the American Convention on Human Rights, and can be referred to in individual complaints.
Below is a summary of ways in which the regional human rights instruments of the Americas can be used to enhance women’s access to land and tenure security.
One of the oldest human rights instruments – older than even the Universal Declaration on Human Rights – the American Declaration of the Rights and Duties of Man provides an important jumping-off point for the growth and protection of women’s land rights in the region.
Like the OAS Charter, the American Declaration is not a treaty and so is not legally binding. It can, however, be used and referenced as a framework enshrining important human rights and ideals. Of particular use in the context of women’s land rights are the equality and nondiscrimination provisions of Article 2, as well as Article 23’s right of every person to own private property as a fundamental aspect of human dignity.
The principal human rights treaty of the Americas, the American Convention on Human Rights (ACHR) is a key source of positive rights, enshrines important duties on the part of states parties, and establishes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. As of 2019, 23 states have ratified the Convention. Importantly, Article 1 of the ACHR bestows an obligation on states parties to respect the other rights without discrimination, and makes the rights within the ACHR actionable in a litigation or adjudicatory context.
Article 21 provides the right of everyone to the use and enjoyment of their property. Article 17 contains a provision that contemplates “equality of rights and the adequate balancing of responsibilities of the spouses as to marriage.” This right can be interpreted as providing access to land for women who do not own title to land but might use the land as part of their husband’s estate. Creative practitioners might also argue that Article 17 could be read to bear on inheritance rights and practices, which, due to their centrality in women’s access to land, may be valuable in the context of enhancing women’s land rights.
However, the Convention is otherwise ambiguous on the right to own property, conferring only the right to use and enjoyment without mentioning the right of ownership. The ACHR also permits the use and enjoyment of property to be subordinated in the “interest of society,” and allows deprivation of property in certain conditions such as receipt of just compensation.
In the case of a human rights violation(s), individuals, groups, or organizations can submit petitions (PDF in Spanish here) or requests for more immediate precautionary measures through a confidential system to the Inter-American Commission for investigation, adjudication, and relief on the merits. If the state against which the filing is made has ratified the American Convention, the Commission can find violations of the rights enshrined in that treaty. If the state has not ratified the Convention but is a member of the OAS, the Commission can only receive petitions alleging violations of the American Declaration or ancillary Inter-American treaties the state may have ratified.
After submission and investigation, there are a variety of reparative and compensatory measures the Commission can provide in the case that a violation is found, including through “friendly settlements” or issuing recommendations to the state. Although state compliance continues to be an issue spanning every forum in international law, regional compliance (or at least partial compliance) with the Commission’s recommendations is actually quite high. As such, it is hoped that this mechanism may provide one avenue among others for the protection and expansion of women’s land rights throughout the Americas.
If you think that you or someone you know in the region of the Americas has had their rights violated, faced discrimination in a land transaction, or been unlawfully denied access to land or natural resources, filing a complaint with the Inter-American Commission may be a way to obtain relief. In addition, the mere act of filing a complaint may garner significant media attention, which may help your cause, or the threat of filing may spur the state to engage in a negotiation process. Using the recommendations in this guide as a starting point, you can thus use international law to urge states to uphold their human rights commitments in the continuing quest to secure land rights for all women in the region.
La distribución de tierra es una cuestión vinculada de manera innata a la desigualdad que se vive en la región de América Latina y el Caribe, la cual es considerada como la región más desigual en el mundo. Dicha desigualdad incluye, entre otros temas, la disparidad de riqueza, la corrupción política y la discriminación de género tanto en la práctica laboral como en la explotación de recursos naturales.
La igualdad en la región sólo se puede alcanzar direccionando todos los esfuerzos a la protección de los derechos de los grupos más pobres e históricamente marginados quienes han sido despojados de su tierra y recursos naturales. A lo largo de los últimos 200 años, la distribución desigual de la tierra ha jugado un gran papel en los 35 países de la región, siendo ésta la causa de guerras regionales, desplazamiento de poblaciones, conflictos sociales y políticos y el hambre.
Una de las principales claves de la desigualdad ha sido la discrepancia entre el derecho a la tierra de mujeres bajo sistemas jurídicos formales y sistemas consuetudinarios, es decir, el acceso de mujeres a la tierra en la práctica. Aunque ha habido olas de feminismo periódicas lo largo del siglo 20, las cuales ayudaron a expandir los derechos de propiedad de las mujeres dentro un marco más amplio de derechos políticos y civiles, las alzas fueron graduales y fragmentadas y no siempre se traducían en una posesión real de la tierra.
La creación y expansión de marcos políticos regionales fundamentados en los derechos humanos como la Organización de Estados Americanos (OEA) y el Sistema Interamericano de Derechos Humanos han jugado un papel cada vez más importante a lo largo de los últimos 75 en la promoción y protección del derecho a tierra de mujeres.
El compromiso de dichos sistemas jurídicos respecto con los derechos a la tierra está muy arraigado: la propia Carta de la OEA en el Artículo 34(d) considera la necesidad específica para sistemas de tenencia de tierra equitativos y eficientes y un uso aumentado de tierra para alcanzar igualdad de oportunidad y la eliminación de la pobreza extrema. La Carta de la OEA establece estándares de derechos humanos para todos los países miembros, sin importar si son estados partes de la Convención Americana de Derechos Humanos, el tratado principal de derechos humanos de la región, y se puede hacer referencia a la Carta en quejas individuales.
A continuación se muestra un resumen de los instrumentos regionales de derechos humanos de América que tienen como una de sus finalidades el mejoramiento del acceso a la tierra y la seguridad de tenencia para mujeres.
Uno de los instrumentos de derechos humanos más viejos, más viejo aún que la Declaración Universal de los Derechos Humanos, la Declaración Americana de los Derechos y Deberes del Hombre provee un punto de partida importante para el desarrollo y protección del derecho a la tierra para mujeres en la región.
De igual forma que la Carta de la OEA, la Declaración Americana no es un tratado y por eso no es jurídicamente vinculante. Sin embargo, puede ser referido y usado como un marco que reconoce derechos humanos e ideales importantes. En el contexto del derecho a la tierra para mujeres, se destacan las provisiones de igualdad y no discriminación en el Artículo 2, además del derecho de cada persona a poseer propiedad privada como aspecto fundamental de la dignidad humana, el cual se consagra en el Artículo 23.
El tratado principal de derechos humanos del sistema interamericano, la Convención Americana de Derechos Humanos (CADH) es una fuente clave de derechos positivos, consagra deberes importantes de parte de los estados partes y establece la Comisión Interamericana de Derechos Humanos y la Corte Interamericana de Derechos Humanos. A partir del año 2019, 23 estados han ratificado la Convención. Es importante destacar que en el Artículo 1 de la CADH se plasma el deber que tienen los estados partes de respetar todos los otros derechos en el tratado sin discriminación y hace que los derechos de la CADH sean justiciables en un contexto contencioso o consultivo.
El Artículo 21 provee el derecho de cada persona al uso y goce de su propiedad. El Artículo 17 contiene un precepto que contempla la “igualdad de derechos y la adecuada equivalencia de responsabilidades de los cónyuges en cuanto al matrimonio.” Este derecho puede ser interpretado para proveer acceso a la tierra para mujeres quienes no posean el título de propiedad pero usen la tierra que forma parte de la finca de su esposo. Es posible que a partir de una interpretación más amplia del artículo 17 se pueda postular que los derechos y las prácticas de herencia, los cuales, debido a su enfoque en el tema de acceso a la tierra para mujeres, son valiosos y esenciales para mejorar y contribuir con los derechos a la tierra para mujeres.
Sin embargo, por otra parte, la Convención puede ser ambigua en el tema del derecho a la propiedad, ya que confiere únicamente el derecho al uso y goce sin mencionar el derecho a poseerla. La CADH también permite la subordinación del uso y goce de propiedad “al interés social” y permite la privación de propiedad en ciertas circunstancias, por ejemplo, con la condición del pago de una indemnización justa.
En el caso de una o varias violaciones a los derechos humanos, cualquier individuo, grupo u organización pueden someter peticiones o solicitudes de medidas cautelares por un sistema confidencial a la Comisión Interamericana para la investigación, adjudicación y decisión del fondo del asunto planteado. Si el estado en cuestión ha ratificado la Convención Americana, la Comisión puede basarse en los derechos humanos consagrados en dicho tratado para argumentar cuales fueron violentados. Si el estado no ha ratificado la Convención pero es un estado miembro de la OEA, la Comisión sólo puede recibir peticiones que aleguen violaciones de la Declaración Americana u otros tratados interamericanos subordinados ratificados por el estado.
Después de la sumisión e investigación existe una variedad de medidas de reparación y compensación que la Comisión puede exigir en el caso de que el Estado haya cometido alguna violación a derechos humanos, incluso puede facilitar “soluciones amistosas” o expedir recomendaciones al estado. Aunque el cumplimiento estatal continúa siendo un problema de discusión en cada foro de derecho internacional, el cumplimiento regional (o por lo menos el cumplimiento parcial) de las recomendaciones de la Comisión representa en realidad un nivel alto. Por ende, se espera que este mecanismo provea un camino para la protección y expansión del derecho a la tierra para mujeres en América.
Si usted considera que sus derechos o los de alguien conocido en la región de América han sido violentados, o siente que ha sufrido discriminación en alguna transacción de tierra o se le ha negado el acceso a la tierra o a los recursos naturales de manera ilegal, una vía para obtener una compensación y reparación es presentar una queja ante la Comisión Interamericana. Asimismo, el presentar una queja ante la CIDH puede atraer la atención de los medios de comunicación, lo cual es favorable en el caso concreto, además de que puede incitar al estado que participe en un proceso de negociación. Se pueden utilizar las recomendaciones en esta guía como punto de partida y de esta manera accionar el derecho internacional para exigir a los estados que sostengan sus compromisos en el ámbito de derechos humanos y así alcanzar la misión perpetua del reconocimiento, protección y respeto del derecho a la tierra para todas las mujeres en la región.
Over the past year, during my work in western Uganda, I have had the opportunity to get to know Paolyel Onencan. Paolyel is the Executive Director of Buliisa Initiative for Rural Development Organisation (BIRUDO). Paolyel and his BIRUDO colleagues are doing good work around Uganda’s oil and gas development in the Albertine Graben, by helping families get better deals on compensation from the oil companies (Total and China National Offshore Oil Company) working in the region. One of the most striking things I’ve seen from Paolyel and BIRUDO is an effective combination of advocacy and education that is helping pull the Government of Uganda and oil companies a bit closer to best practices in their compulsory acquisition of land.
BIRUDO’s advocacy work is about hearing from the families – from both women and men – that are displaced from their land by expropriation. BIRUDO listens to the stories of the people that are losing their land and homes. Then Paolyel and his team members tell these stories to the Government of Uganda and the oil companies. The stories are often about insufficient compensation and about their need to receive other land when they lose their land, their need to receive sufficient money to cover other losses and damages, and the need to have their livelihoods restored.
BIRUDO’s education work is aimed at all stakeholders – the families seeking new land, nearby families that have accepted only cash compensation from the companies, the other civil society organizations active in the area, the government, and the oil companies. The lessons being taught are about engagement and transparent, timely, and fair compensation called for by IFC Performance Standard 5 (IFC PS5).
IFC PS5 mandates that if displacement cannot be avoided, the risks to affected people should be mitigated through replacement land, compensation for other lost assets at replacement cost, resettlement support, and a range of other measures to, at a minimum, restore the livelihoods and living standards of affected persons. These measures are to be designed and implemented with appropriate disclosure of information, meaningful consultation, and informed participation of those affected.
The Performance Standards also call for a special focus on the rights and assets of women, including engagement and impact assessment that is aimed at their differences and the challenges facing them.
Paolyel and the BIRUDO team have also been educating the government and the oil companies on the value of CSOs, like BIRUDO, assisting with community capacity building, engagement, dialogue, and negotiations among affected families, the government, and the companies. Initially, the government and companies resisted this support, but it now seems there is a bigger role for BIRUDO to play. All the stakeholders are realizing that needed capacity building (such that affected families can meaningfully participate in the process), transparent and ongoing engagement, and real, good-faith negotiations are also best practices called for by IFC PS5.
The overall effect of BIRUDO’s work has been the prospect of better outcomes for displaced families. It is also pulling the government and the companies a bit closer to the best practices set out in IFC PS5 and elsewhere. The combination of advocacy and education has been important. The advocacy has helped to amplify the voices of the affected families, and it has created a seat at the table for both the families and BIRUDO. The education has been central to reminding the government and the companies about the IFC PS5 best practices that are supposed to govern their behavior. In combination, the advocacy and education has helped the families affected by the most recent compulsory land acquisition that is the cornerstone of the regional investment in oil exploration and production. It has also set the stage for better company performance on upcoming acquisitions.
CSOs in the Albertine Rift oil regions are well positioned to bring their unique combination of skills and expertise to the investment process. BIRUDO has helped chart the way. These civil society experts have the know-how and experience to help all the stakeholders (including women) and to assist the oil companies as they move closer to embracing the best investment practices that should be shaping all of their land acquisitions.
Resource Equity and Associates Research Trust – Uganda (ARTU) just wrapped up a pilot project in Karamoja, Uganda, with promising results for women and for communities.
The Starting With Women approach centers women in design and implementation. Its starting point is the belief that women’s land rights can be made more secure through an approach that starts with women. It is a pragmatic, adaptive framework and approach for understanding and taking action to strengthen women’s land tenure security.
From 2018-2019, Resource Equity and ARTU implemented the Starting With Women approach with three mining groups in one district in the Karamoja region in Uganda: the 20-member Seglochoro Marble Mining Association in Katikekile, the 28-member Lopusak Gold Mining Association in Rupa, and the 30-member Nachan Limestone Mining Association in Tapac.
The project began with an inventory of existing miner’s associations, meetings with district leaders, and the recruitment of a community-based facilitator. We conducted a needs assessment with intervention groups and then worked with the groups to co-create a curriculum that responded to those needs and aspirations. The facilitator then conducted weekly sessions with the groups to implement the curriculum from November 2018 until May 2019, when project activities ended with graduation ceremonies for all participants. A comprehensive evaluation including a baseline, midline, and endline was carried out, with some key findings:
By the end of the project, all 21 beneficiaries who had attended school could read and write, and 65 (97.01%) of 67 respondents could count, an increase from 38 (52.05%) who were able to count at the beginning of the project. For miners, these skills are very important. They mean that they can now count how many grams of gold or truckloads of stone they sell and, therefore, calculate how much they are owed from the people they sell to.
At the beginning of the project, only 13 of the 74 respondents said they knew their land rights. This increased to 65 (97.01%) of 67 interviewed beneficiaries by the end of the project. Respondents also changed their perception of land rights, from a narrative dominated by “land belongs to men” to an understanding that women have rights to land, both as wives and as individuals. Participants also learned that land can be protected through having marked boundaries and by having documents such as agreements or titles which can be obtained through processes involving local leaders like the local councils and the area land committee.
Beneficiaries plan to share their knowledge of women’s land rights with elders in their community, because they control the land and, as one respondent noted, “elders should allow women to own land.”
By the end of the project 66 (97.06%) of the 68 beneficiaries felt that the decision making process was inclusive of all members, an increase from the 43 (58.11%) of 74 beneficiaries who felt the decision-making process was inclusive at the beginning of the project. This may have been because of trainings on women’s rights and on public speaking. One woman said, “as women, we can now stand in front of men and talk.”
There was a substantial increase in beneficiaries who identified savings schemes as one of their group’s main activities, from 50 (67.57%) of the 74 beneficiaries at baseline to 66 (97.05%) of the 68 beneficiaries at endline.
People used the knowledge they gained about saving to save at home as well. One respondent said, “we want to use the knowledge by buying a savings box for a family to start savings in it because we have knowledge on management.”
At the start of the project, all three associations were unregistered, community-based organizations that had been initiated by past, unrelated projects. We prioritized ensuring the groups were registered with the Moroto District local government, by helping them write constitutions, connect with the government office, and pay the fees.
Registering gives the groups formal status, which helps them access government projects, connect with non-profits, and negotiate with companies. The Nachan Women’s Group said that their formal status helped them secure mining equipment from the company they work for, Tororo Cement Company, and resulted in a partnership with the Human Rights Network – Uganda (HURINET) to teach the local communities on their land rights. The Seglochoro Mining Association used their formal status to get bee keeping equipment from the local government. The Lopusak Association went on to register with the Uganda Cooperative Alliance, enabling it to have a stronger operational presence and leverage opportunities.
We are excited by these initial results. We previously implemented the SWW approach in another area in Uganda, focused specifically on land rights. We plan to build on this work, using the approach in different contexts to advance women’s rights to land and resources, and hope that others will use this toolkit as well!
Temos os prazer de apresentar a nossa blogger convidada, Joana Roque de Pinho. Para além de nos ajudar a traduzir o enquadramento conceitual, a Joana é uma antropóloga ambiental baseada em Lisboa, e investigadora no Centro de estudos Internacionais (CEI) no ISCTE – Instituto Universitário de Lisboa, onde investiga o conhecimentos local das alterações ambientais em comunidades rurais africanas.
O Research Consortium, da Resource Equity, publicou recentemente o artigo “Segurança fundiária das mulheres: um enquadramento conceitual”. Este enquadramento conceitual, com co-autoria de Cheryl Doss et Ruth Meinzen-Dick, é uma ferramenta que permite a análise sistemática dos factores que afetam a segurança fundiária das mulheres, ao mesmo tempo que esclarecendo definições e conceitos importantes. Os tipos de direitos que os indivíduos detêm sobre a terra, e o próprio conceito de “terra” e propriedade fundiária, variam globalmente e estão a sofrer alterações. Esta situação de desigualdade, e de alteração nos conceitos relativos à posse da terra, afetam as comunidades que dependem de recursos naturais, e têm particular impacto sobre determinados grupos, tais como as mulheres e as crianças.
Para alguns grupos de pastores no Quénia, a terra pertence a Deus, e são homens, os anciãos, que gerem o seu uso coletivo. Noutros contextos africanos, como no sul da Guiné-Bissau, os donos da terra (donos di tchon em kriol) são espíritos, sendo o acesso à terra controlado por membros das linhagens de determinados grupos étnicos que fazem a mediação entre os espíritos e os membros de outros grupos étnicos que vêm requerer terra para assentar e cultivar (Temudo, 2012). Sistemas consuetudinários como estes coexistem com leis estatutárias que definem a propriedade como sendo privada ou do Estado. Quando sistemas fundiários entram em conflito ou sofrem alterações rápidas, certos grupos têm mais a perder do que outros em termos do seu acesso à terra e aos recursos naturais. Geralmente, as mulheres têm direitos fundiários menos seguros que os homens, e esta desigualdade prejudica o bem-estar das suas famílias e comunidades. A segurança fundiária das mulheres ganhou portanto proeminência na agenda internacional e dois indicadores SDG incidem sobre os direitos fundiários das mulheres.
Casos de pluralismo jurídicos como estes, e as ameaças e oportunidades que eles representam para as mulheres e os seus direitos fundiários, são exemplos das complexidades empíricas para as quais Cheryl Doss e Ruth Meinzen-Dick chamam a nossa atenção no seu recentemente publicado “A Segurança fundiária das mulheres: um enquadramento conceitual”.
Neste importante documento, as autoras desenvolvem um enquadramento relativo à posse da terra e género, e caracterizam os factores culturais, políticos, jurídicos e socioeconómicos que influenciam a segurança fundiária das mulheres. Este enquadramento conceitual vem preencher uma lacuna em termos de definições e linguagem relativas aos problemas fundiários das mulheres. Serve também de ferramenta para a recolha sistemática de dados comparativos em que basear políticas e programas. Este documento é útil para cientistas, assim como para profissionais e agências que advogam os direitos fundiários em geral, e a segurança fundiária das mulheres, em particular.
As autoras começam por abordar o conceito de conjunto de direitos (bundle of rights), e realçam a importância de recolher dados precisos sobre quem, no seio do agregado familiar, detém diferentes direitos à terra e aos recursos naturais. Colocar este tipo de pergunta permite perceber melhor quais são as características associadas aos direitos fundiários que facilitam ou dificultam o acesso das mulheres à terra. Habitualmente, os inquéritos focam exclusivamente os direitos fundiários do agregado familiar como um todo, o que não permite a recolha de informação mais precisa. Para avaliar o grau de segurança fundiária das mulheres, temos de examinar quatro dimensões do conjunto de direitos: 1) a sua totalidade; 2) a sua duração; 3) a sua robustez; e 4) se as mulheres detêm esses direitos de forma individual ou conjunta. Medir estas dimensões permite fazer comparações mais precisas e retirar conclusões dos estudos de caso e resultados de projetos.
O enquadramento conceitual apresenta quatro áreas a considerar na avaliação do grau de segurança fundiária das mulheres. Em primeiro lugar, está o contexto em que as mulheres exercem os seus direitos à terra. Para uma compreensão mais aprofundada, os inquéritos devem averiguar, por um lado, quais são as características individuais das mulheres, e quais as suas relações com os outros membros da comunidade; e, por outro lado, quais são as características dos terrenos considerados, os sistemas fundiários em questão, e de que maneira estes estão a mudar. Finalmente, convém também perguntar quais são as diferentes normas sociais e culturais que afetam a posse da terra num determinado contexto, e como a estrutura familiar influencia a posse individual da terra. O enquadramento conceitual apresenta também uma tipologia das ameaças e oportunidades que fazem a mediação entre o contexto, e os intervenientes e os recursos ao seu dispor. Estes catalisadores da mudança, que tanto podem aumentar como diminuir o grau de segurança fundiária das mulheres, incluem as reformas jurídicas e políticas (e.g., programas de redistribuição e titulação das terras; reformas do direito da família e sucessório); alterações nas políticas agrícolas; iniciativas de literacia jurídica; a capacidade do Estado para fazer respeitar os direitos fundiários e a existência de guerras e conflitos; e alterações mais amplas nas economias rurais, causadas por processos de urbanização e migração. A terceira área que deve ser examinada é o campo de intervenção. O enquadramento leva-nos a identificar os intervenientes cujas ações afetam a segurança fundiária, i.e., as mulheres, os seus familiares, os sistemas de afinidade, as autoridades consuetudinárias e religiosas, as agências governamentais e não-governamentais, os programas internacionais de ajuda ao desenvolvimento e as instituições globais; assim como os seus recursos. Este passo analítico crucial permite esclarecer quais são as áreas em que as políticas e programas devem concentrar os seus esforços para que estes resultem em direitos fundiários mais fortes das mulheres (i.e., a quarta área do enquadramento). Estes, por sua vez, irão afetar o contexto dos futuros direitos fundiários. Juntamente com uma lista pormenorizada de perguntas que deveriam aparecer em qualquer inquérito sobre segurança fundiária das mulheres (ver anexo do artigo), este enquadramento conceitual orienta a recolha e análise sistemáticas de dados sobre a segurança fundiária das mulheres, contribuindo assim para os objectivos mais amplos de igualdade de género e desenvolvimento económico.
Para ler o enquadramento conceitual, clique aqui.
Temudo, M. P. (2012). “The White Men Bought the Forests”: Conservation and Contestation in Guinea-Bissau, Western Africa. Conservation and Society, 10(4), 354–366.
We are pleased to introduce our guest blogger, Joana Roque de Pinho. In addition to helping us translate the Conceptual Framework, she is a Portuguese environmental anthropologist based in Lisbon, and a Researcher at the Centro de Estudos Internacionais (CEI) at ISCTE-Instituto Universitário de Lisboa, where she investigates local knowledge of environmental changes among natural resource-reliant communities in rural Africa.
The Research Consortium, by Resource Equity, has recently published “Women’s Land Tenure Security: A Conceptual Framework” in Portuguese. This tool, co-authored by Cheryl Doss and Ruth Meinzen-Dick, the first of its kind, allows for the systematic analysis of the factors that affect women’s land tenure security and provides clarification about definitions and concepts. Such clarity is needed as, around the world, the kinds of rights that people have to land, and the concept of land itself, vary widely. Changes in these notions and their practical implications are affecting natural resource-reliant communities and impacting specific groups within local communities, such as women and their families.
To some Kenyan pastoralists, land belongs to God and male elders control its communal management and use. In some West African contexts, such as in Southern Guinea-Bissau, it is forest spirits who own the land, while the male heads of certain lineages within the ethnic group that first settled in the area govern access to land by mediating between the spirits and “guests”, i.e., members of other ethnic groups who request land for settling and farming (Temudo, 2012). Such customary systems coexist with statutory laws that define land tenure as private or State property. When land tenure systems conflict or change rapidly, certain groups stand to lose more than others in terms of their access to land and resources. Women, in general, have less secure land rights than men, and their unequal access to land is bad news for the wellbeing of their families and communities. Women’s secure tenure security has thus become a prominent concern on the international agenda and two SDG indicators concern women’s land rights.
Such cases of legal pluralism as described above, and the threats and opportunities they present to women and their rights to land, illustrate some of the empirical complexities underlying women’s land tenure security to which Cheryl Doss and Ruth Meinzen-Dick call our attention in their recently published “Women’s Land Tenure Security: A Conceptual Framework”.
In this important document, the authors develop a framework around gender and land tenure security, and characterize the multiple and simultaneous cultural, political, legal, and socioeconomic factors that influence the land tenure security of women. This timely framework fills a need for shared definitions and language on women’s land issues and provides a tool for the systematic collection of comparative data on which to base policies and programs. This document is useful to scientists, practitioners, and advocates who are concerned with land tenure rights in general, and women’s land tenure security, in particular.
Starting with the notion of bundle of rights, the authors stress the need to collect precise data on who within households possess which type of rights to land and resources. Asking this type of question allows further understanding of the complexities related to local land rights that facilitate or hamper women’s access to land and that are not captured by surveys that only explore households’ rights to land. To assess the degree to which women’s land tenure is secure, we need to examine four dimensions of the bundle of rights: 1) its completeness; 2) the duration of the rights; 3) their robustness; and 4) whether women hold these rights individually or jointly. Measuring these dimensions, in any context, allows for better comparisons and lessons to be learned from case studies and project outcomes.
The framework incorporates four areas to consider when evaluating the land tenure security of women. First, the context in which women exercise their rights to land needs to be understood in depth. We should thus ask who are the women concerned, both in terms of their individual characteristics and their relationships with other community members. Also, what are the characteristics of the land, of the local land tenure systems; and are they changing? If yes, how so? Finally, we should enquire about both the different sources of law and the social and cultural norms that affect land tenure in that context; and how family structure, at both household and community levels, affects individual land tenure.
Next, the framework offers a typology of threats and opportunities that drive changes in land tenure security by mediating between the context and the actors and the resources at their disposal for enacting change in women’s land tenure status. These catalysts of change, which may both ameliorate or reduce women’s land tenure security, include legal and policy reforms, such as land redistribution and titling programs, and family and inheritance law reforms; changes in agricultural policies; legal education and literacy initiatives; the capacity of the State to enforce land rights and the existence of conflict and wars; and broader changes in rural economies caused by urbanization and migration.
The third area to be examined is the action arena. The framework enjoins us to identify the players whose actions affect land tenure security (i.e., the women, their family members and kinship systems, the customary and religious authorities, governmental and non-governmental state agencies, international development programs, and global institutions), and their resources. This crucial step suggests where policies and programs should concentrate their efforts to produce the desired outcome of stronger women’s land tenure security. This, in turn, will affect the context for future land rights.
Together with a detailed list of questions that need to be included in any survey of women’s land tenure security (Appendix), this framework offers a road map for collecting and analyzing data and theorizing about how to improve women’s land tenure security across diverse cultural, socioeconomic, and legal contexts, and thus contribute to the broader goals of gender equity and economic development.
Temudo, M. P. (2012). “The White Men Bought the Forests”: Conservation and Contestation in Guinea-Bissau, Western Africa. Conservation and Society, 10(4), 354–366.
For the past six months, Resource Equity has been working with our partner Associates Research Trust to implement our Starting With Women approach with subsistence mining associations in Karamoja, Uganda. Karamoja is the poorest region in Uganda and has a history of armed conflict, which largely ended in 2011. Although traditionally pastoralist, a large percentage of people, both women and men, are now engaged in small-scale mining. This mining is largely managed outside of the formal system, and underlying rights to land are often unclear or are managed by the customary land tenure system.
The Starting With Women approach ensures that women’s needs and desires are the drivers of a project throughout its life. It begins by talking with women and their communities about the rights they currently have to land and resources, and then working with them to strengthen and secure those rights. We targeted three mining groups in one district in the region, and worked with them to co-create a six-month curriculum. This included sessions on how the government functions; on the Constitution, mining laws, land laws, and environmental laws; on women’s land rights; on public speaking; and on livelihoods and financial management. We included functional literacy training throughout the training, and provided compensation for their time in the form of maize flour and beans.
Beneficiaries saw many benefits from the training. One said that she now knows “that land on which mining is done belongs to us and the investor should be compensating us for mining on our land.”
All three mining groups graduated from the program in May, at three different ceremonies attended by local government officials and representatives from Associates Research Trust – Uganda and Resource Equity. The graduations involved the graduates’ families, and included performances by the groups.
We are currently conducting an endline study and will share those results. The midline showed promising results, including increased literacy which allows group members to understand how much they earn, reduced domestic violence, and increased knowledge of the importance of women’s rights.
During the first week of June we held our very first Research Consortium Women’s Land Rights Grantee Workshop. Held in Geelong, in the state of Victoria in Australia, a representative from each grantee group, the submission reviewers, and representatives from Resource Equity met for three days to share, learn, and challenge each other on the draft research papers that have been produced under this grant. It was a rare opportunity to dive deeply into substantive questions of what works to improve land rights for women, and what kinds of research can help us answer those questions.
Although not every author was able to attend in person, we were fortunate enough to have several that called in to join our inaugural event. The grantee groups and authors are:
The workshop centered on the authors presenting their preliminary findings in detail and then answering questions from the entire group. The interventions analyzed in the research papers were diverse:
Each draft research report relies on existing data sets from a range of sources including NGOs, government, and project reports. Each of these reports provides a valuable piece in the puzzle of what works to achieve land tenure security for women.
And each report met with some interesting challenges that will no doubt help those faced with similar challenges in the future:
But perhaps the most important piece of the workshop is that we had the time and the occasion to really dig deep and to critically explore our own work and our own assumptions and biases. The workshop presented us with the rare chance to scrutinize our methods and approaches to the work, and to see our own work through each other’s eyes.
At the Research Consortium one of the main objectives is to start to fill in some of the gaps in evidence so that policy-makers, programmers, donors, and practitioners can rely on evidence-backed information to make the most informed decisions possible. The hope is that this evidence will help make the case that secure land and resource rights for women are achievable and will help to show what strategies can work to achieve stronger land rights for women in practice. These grants and this workshop are some of the ways we hope to accomplish this objective.
In the months to come we will be publishing the completed reports and findings made by each of the grantee groups.
We are excited to announce that Dr. Margaret Rugadya, Ph.D. is joining the Resource Equity team. Dr Rugadya comes to us from the Ford Foundation, and we are thrilled to welcome her.
“Margaret brings a wealth of knowledge and experience with her. As a researcher, she will contribute a new perspective to Resource Equity.” – Renée Giovarelli
With more than two decades of experience as a development practitioner, grant-maker, and development and academic researcher, she is a leader in the area of land policy and gender equity with original contributions to the economics of gender, land, and resource tenure. Her focus is on women, pastoralists, forest dwellers, indigenous persons, and urban dwellers across Africa.
Margaret will be involved across our work, bringing her experience and perspective. We look forward to her contributions to our research and evaluation projects, and to drawing on her deep knowledge of East Africa.
Dr. Rugadya holds a Ph.D. in Economics – Governance and Public Policy from Maastricht University, and a Masters of Arts – Sociology and Bachelor of Information Science from Makerere University. She also holds a Diploma in Management (UMI) and a Diploma in Legislative Drafting (ILI). She is trained in Leading Economic Growth (Harvard Kennedy School), Reform Communication (Annenberg School, University of Southern California), Extractives and Economic Development (CCSI-Columbia University), Urban Land Management and Settlement Regularization (IHS-Erasmus University, Rotterdam), Managing NGOs (Victoria University of Manchester), Financial Assessments for NGOs (MANGO), and has a Certified Trustee for Pension Programs (College of Insurance – Nairobi).
This article was originally published in PROPARCO magazine, PS&D (Private Sector and Development).
Developing agroindustry entails changes in land use and ownership. Best land-related practices can help investors avoid harmful impacts on individuals (both women and men), households, and communities. Best practices can give a voice to those often precluded – especially women – from being heard and participating meaningfully in land deals. Plus, when investors need land expertise to implement best practices, civil society can often collaboratively offer the needed talent and local knowledge.
Agro industrial development can involve transactions on vast tracts of land. Between 2000 and 2016, the Landmatrix database recorded more than 700 land deals in Africa and Asia covering 15 million hectares.1. In many of these deals, local communities were not included in negotiations, mostly due to a lack of formal titles and because informal and customary rights were either not identified or recognized. Many of these land investments adversely affected communities’ livelihoods and cultural landscapes, as well as sometimes igniting violent opposition to projects. The outcomes for investors can include reputational risks, operational problems, and decreasing investment returns.
Individuals and communities can be harmed when investments are not made according to best practices. Women and girls can bear a disproportionate share of the risks and negative impacts, and tend to be less likely to benefit from the economic and employment opportunities. The primary household impact is a loss of livelihood caused by displacement from the land, with the displaced population receiving no or insufficient compensation. Plus, investments can also drive changes to household land use when they prompt a shift to cash cropping from subsistence or local market crop production. This can lead to a general decline in household well-being when earnings are not spent, for example, on nutrition, health, and education.
Proper assessment and compensation of the social impact of land acquisition for agricultural projects involves identifying all land users and their rights to the land. Some local regulatory frameworks do not reflect traditional and informal rights. Even when customary norms and practices are recognized by national governance frameworks, some rights holders — especially women – can be excluded when land transactions occur.
Investments that focus on the community or the household when designing compensation for the loss of land and livelihood can wrongly cut women out of the picture. In many cases, they are excluded from owning land, with the rights being allocated to men as the heads of households.
Hearing from women – who often have little role in community governance – usually requires a more concentrated effort than just inviting them to meetings. Consultations on land deals must involve ongoing assessments of how women can access and participate in discussions and decision-making.
As women are often unrecognized as rights holders, a critical question should be: “Who uses this land and gains value from it?” Asking the right questions will ensure women’s work on the land and their use of it is made more visible, and therefore makes it more likely that their voices will be heard during decision-making processes.
Yet investors and industry have never before been better positioned to make socially responsible land investments. Best practices for equitable, transparent, mutually beneficial / multilateral benefit-sharing and less-risky deals are now better understood than ever. National governance frameworks and their implementation are improving as well. The FAO Voluntary Guidelines have served as an influential benchmark for over six years. Other international standards (e.g. IFC Performance Standards, UN Guiding Principles on Business and Human Rights), including commodity standards (e.g. RSPO for palm oil) and implementation guides (including those developed by the FAO, AFD & CTFD, the Interlaken Group, and others) are available and highly informative. The guides are remarkably consistent and comprehensive.
The standards and guidance describe the best practices needed for socially responsible investment in land. First, consultation and engagement between companies and local men, women, and communities (and government) should focus on including and hearing women’s voices when it comes to the use and rights of land and natural resources. Second, investors should identify and recognize statutory, customary, secondary, seasonal, and other uses and rights, with a particular and critical focus on women. Moreover, potential direct and indirect environmental, social, human rights, and gender impacts should be assessed and adverse impacts should be avoided or, at a minimum, mitigated. The value of foregone livelihoods and other compensation requirements, including resettlement where necessary, should be assessed, with the goal of providing full, fair and equitable compensation at the individual, household and community level. This entails careful consideration of all land uses and interests and a focus on equitable outcomes for women. A level playing field should be created, with transparent negotiations, and fair agreements between communities (including women, men and households), investors and governments. This means that projects should be designed, implemented, monitored, and evaluated to ensure that agreements are implemented and enforced, and that remedies for breach and non-performance are available. Dispute resolution systems provided by the state should be supplemented by investment-specific grievance mechanisms, which should be accessible, certain, sustainable, and effective in delivering remedies. These should be accessible to women and should facilitate their ability to articulate complaints and obtain redress. In support of these practices, community and individual capacity should be built to enable women, men, and communities, to understand and participate in a meaningful way. An emphasis on women is always required to reach and benefit them.
For some businesses and investors, implementing best practices can be challenging. Many national and regional companies are often unaware of them, and national government frameworks may not call for them. Another hurdle is the lack of available expertise and experience – grounded in emerging-market geographic experience – in legal, social, and livelihood issues linked to land and gender. Even lenders and companies that have committed to best land practices face challenges in filling the expertise gaps. Such services are rarely offered by traditional corporate service providers (accounting, legal, labour, health and safety, environmental).
One path to obtaining this much-needed expertise is to collaborate with local civil society organizations (CSOs). Their existing missions and programs often make them good candidates to work with both private sector and government to identify and clarify women and men’s rights and interests, facilitate their meaningful input to land and resource investments and support increased accountability and parity in negotiations. They can also monitor and enforce the terms and conditions of agreements between businesses, land and natural resource rights holders.
Investors who embrace best practices in agricultural land acquisitions are more likely to earn and maintain their social license. They can do so by applying the practices in a way that reflects local realities and that makes the most of local talent – CSOs can be an important resource. Doing this will call for a significant ESG effort, all whilst maintaining a strong focus on women.
On March 27, 2019, the Research Consortium hosted a happy hour at the 2019 World Bank Land and Poverty Conference. The event attracted a mix of attendees from the conference, including leaders in the field of land rights and land tenure security. The happy hour reception was a chance for the attendees to learn more about how the Research Consortium fills in the gaps of knowledge for researchers and practitioners and was a chance for those who attended to deepen their ties to the Consortium.
Remarks were made by one of the Research Consortium’s steering committee members, Rick Gaynor. He said, in part, that he joined the Research Consortium because it fills a critical gap in the land sector that he sees as a practitioner: it helps to identify what works, and what doesn’t, in trying to advance women’s land rights. The Research Consortium helps the land rights community move past identifying problems to proven solutions that will make a difference.
Rick went on to say:
“The Consortium launched in March 2018. I’ve been impressed by the immense progress we’ve made in just a year. We have become known as a hub for the collection, sharing, and exchange of knowledge on how to advance women’s land rights. We have also become an important voice in setting the research agenda. The Research Consortium identifies gaps and helps to develop a shared research agenda to fill those gaps and foster the sharing of learnings on women’s land rights.”
“The core of the Research Consortium is about the creation of a community of researchers and practitioners to improve research with the goal, ultimately, of overcoming barriers to women’s secure land and resource rights around the world.”
He highlighted four features of the Consortium:
We were thrilled to see everyone there. If you’d like to learn more about the Research Consortium, please sign up for our mailing list. By signing up you will receive a monthly newsletter, invitations to special events and webinars, and access to unique updates related to women’s land rights.
This piece was originally written for and appeared on the blog From Poverty to Power, a conversational blog written and maintained by Duncan Green, strategic adviser for Oxfam GB.
A couple of weeks ago, writing on this blog, Duncan asked a question: How do we, in the international development community, recognize and work with (let alone measure) issues like love, shame, fear, solidarity?
As an advocate for women’s land rights, this question resonated with me. Whenever I hear from women about the fragility of those rights and their efforts to strengthen them – as I’ve done across 16 countries and two continents – these facets of the human condition are ever present.
Fear and hope – attitudes to the future – matter because they determine how we behave. They might inform decisions about investment in land, and about families: decisions which can shape lives, communities and economies.
As for measuring these qualities, I might have the beginnings of an answer, found in a report released this week by Prindex, a new international survey which asks men and women how they feel about the security of their rights to stay in their home and continue to work their land. It’s a joint initiative of the Overseas Development Institute and Global Land Alliance.
Prindex found that 1 in 4 people fear losing their homes or other land. That’s remarkable in itself.
What’s more, Prindex found that women were, on average, over 12 percentage points more likely than men to express fear for their right to retain their home in the event of divorce or the death of their spouse.
That matters for women, and for their societies.
It is so often women who remove rocks from land, plant, fertilize, weed, and harvest crops, care for children, care for the elderly, cook, clean, carry water and wood, and all the rest without earning any money.
Women are less likely to invest sweat equity in land that does not belong to them and over which they have no ultimate control. For example, one study found an increase in investment in soil quality when women’s land rights are more secure.
If their contribution is not valued in a divorce, they are likely to receive much less than their husband, who is usually the traditional money earner.
This affects many more women than those who actually divorce. It includes women that are toughing it out. How many women are in abusive or harmful relationships who cannot leave because if they leave, they leave with nothing—no land and no money?
In Uganda, the Prindex survey indicates that 40 percent of women are insecure about their rights to land in the case of a divorce. This tallies with one of my findings from years ago. In focus group discussions in Uganda, women openly talked about being beaten before the harvest so that they would return to their family for a while and their husbands could harvest and sell the crops before going to bring them home. In rural India, where Hindu women who divorce are regarded as a shame on their families and where women often receive nothing in a divorce, women talk about having to stay in extremely abusive situations because they have nowhere else to go.
So, where does this leave us? Prindex’s gender report shows that there is no one single solution, and that the long-term work of changing norms is key. But one finding in particular caught my eye.
Women who contemplate divorce in countries that take into account women’s nonmonetary contributions to the marriage – including unpaid work on the land and caring or “reproductive” labour – when dividing property at the time of divorce tend to be less fearful than women in countries that do count nonmonetary contributions.
Countries where women display relatively low rates of tenure insecurity in divorce scenarios (30 percent or below) are all countries in which the division of property benefits both spouses at the time a marriage is dissolved.
There are countries such as Liberia, Mozambique, and Burkina Faso in which divorce legislation is gender-equal but women anticipate more insecurity in divorce scenarios. This may reflect differences over whether women know of their legal right, and whether their personal and social circumstances along with the de facto operation of courts allow them to enforce that right.
That’s another reason why Prindex asks – and we should all ask – about perceptions: because they may reflect the reality more than the laws as written in statute books.
Asking about fear and hope becomes a way to recognize that what appears to be a land law issue is also a family law issue and an issue of norms, courts, and citizen awareness. If we don’t ask about perceptions, and if we don’t make sure that we collect data from women as well as traditional heads of household, we risk neglecting a large part of the picture, and at least half of the population.