EMPOWERING WOMEN THROUGH INCREASED ACCESS TO LAND … · Women’s Legal and Economic Empowerment...
Transcript of EMPOWERING WOMEN THROUGH INCREASED ACCESS TO LAND … · Women’s Legal and Economic Empowerment...
EMPOWERING WOMEN THROUGH
INCREASED ACCESS TO LAND AND
PROPERTY RIGHTS
11TH SEPTEMBER, 2013
Tazeen Hasan
PRMGE
Challenges – inadequate land rights 2
Vulnerability – Shelter, Food And Income
Impacts Access To Finance (Collateral) For Female
Entrepreneurs
Weak Land Rights Can Undermine Female Labor Force
Participation and Productivity
Challenges have roots in the legal system – what women’s
rights are, how they are enforced and how the broader
regulatory system works.
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DISCRIMINATORY LAWS ARE FOUND IN LAWS
USUALLY SHAPING THE PRIVATE SPACE
Family
Inheritance
Land
WHERE ARE DISCRIMINATORY LAWS FOUND?
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FAMILY LAWS
Constraints can trigger on marriage
Head of Household
Permission to initiate legal proceedings or register land e.g.
Democratic Republic of Congo
Marital Regimes
Division of marital property during and on divorce or death
of husband
Control of marital assets
WHAT LAWS MATTER
WHAT LAWS MATTER 5
INHERITANCE LAWS
Unequal inheritance rights for girls and women
Division of estate on death of husband – widow left with nothing or next to nothing
Interplay of customary and religious laws
e.g. Women in Iran were not entitled to inherit land until reforms of inheritance laws in the 1990’s
Exemption of customary land from statutory laws on inheritance e.g. Ghana
LAND LAWS
Joint titling - is it mandatory?
PLURAL LEGAL SYSTEMS 6
All Constitutions in Africa have non-discrimination clauses
Approximately 50% of these constitutions formally recognize customary law and 33% recognize religious law
A third of these constitutions specifically exempt customary law from principles of non-discrimination in family and inheritance laws
Over 80% of land in Zambia is customary law that falls outside scope of statutory inheritance laws.
Customary marriages generally do not benefit from beneficial statutory laws
CASE LAW – POSITIVE AND NEGATIVE 7
APHANE DOO (2010) Swaziland
Married women married in community of property can
register joint property in their name.
Discriminatory statute was unconstitutional
MOJEKWU (2004) Nigeria
Customary law favoring male heirs was upheld
Customary law could not be rejected just because it did
not recognise a role for women.
MARITAL REGIMES ARE IMPORTANT 8
Partial Community of Property Regime
All property and income earned by the spouses
after the date of marriage is joint marital
property. (Inheritance and/or specific gifts are
exempted)
Benefits women who have no independent assets or
income of their own and contribute to the household
by e.g. looking after children
Can only apply to monogamous marriages
DEFAULT COMMUNITY OF PROPERTY
50% OF ALL JOINT ASSETS ON DIVORCE
50% OF ALL JOINT ASSETS
DURING MARRIAGE
50% SHARE OF HOUSE
COLLATERAL TO ACCESS FINANCE
50% OF ALL JOINT ASSETS ON DEATTH
HUSBAND’S 50% DIVIDED
BETWEEN HEIRS INCLUDING
WIDOW
PARTIAL COMMUNITY REGIME
MARITAL REGIMES 10
SEPARATE PROPERTY REGIMES
All Property Before, During And After The Marriage
Owned By Each Spouse Separately,
Exception Is Where Specifically Agreed That A
Property Is To Be Owned Jointly
DEFERRED PROPERTY REGIME
Property Separately Owned During Marriage But
Jointly Divided On Divorce And Death
SEPARATE PROPERTY REGIME 11
LIMITED ASSETS FOR COLLATERAL
DURING MARRIAGE
SEPARATE PROPERTY REGIME
NO RECOGNITION OF NON-MONETARY
CONTRIBUTION
???LAW MANDATING
50/50 SPLIT ON INHERITANCE
RECOGNITION OF NON-MONETARY CONTRIBUTIONS
PROVE FINANCIAL CONTRIBUTION TO GET SHARE OF ASSETS ON
DIVORCE AND INHERITANCE
UNCERTAIN SHARE OF ASSETS ON DIVORCE
50% SHARE OF ASSETS INCLUDING HOUSE IN
INHERITANCE
UNCERTAIN SHARE OF
INHERITANCE
NO YES
YES
???RECOGNITION OF NON-
MONETARY CONTRIBUTIONS
50% SHARE OF ASSETS INCLUDING HOUSE ON DIVORCE
???LAW MANDATING
50/50 SPLIT ON DIVORCE
NONO YES
Hallward-Driemeier, Hasan and Rusu (forthcoming)
IMPLICATIONS FOR LAND TITLING 12
COMMUNITY OF PROPERTY REGIMES
PRESUMPTION OF JOINT TITLING DURING MARRIAGE
WIDOW ENTITLED TO 50% OF JOINT ESTATE ON DEATH OF HUSBAND
SEPARATE PROPERTY REGIMES AND DEFERRED PROPERTY REGIMES
PRESUMPTION OF SEPARATE TITLING DURING AND END OF MARRIAGE UNLESS SPECIFIC LEGISLATION MANDATING JOINT TITLING AND RECOGNITION OF NON-MONETARY CONTRIBUTION
FOR DEFERRED PROPERTY REGIMES PRESUMPTION OF SEPARATE TITLING DURING MARRIAGE
WORLD BANK RESOURCES MAPPING
GENDER LEGAL CONSTRAINTS 13
Empowering Women: Legal Rights And Economic Opportunities In Africa and Women LEED Africa database (Mary Hallward-Driemier and Tazeen Hasan)
Legal Constraints Including Plural Legal Systems Impacting Women Across All 47 Countries In sub-Saharan Africa With Links To Economic Outcomes
Women Business and the Law
Legal Constraints Including Family, Inheritance Laws And Joint Titling Across 143 Economies
50 Years of Expanding Legal Rights of Women Around the World
New World Bank Database (DECDP And Women Business And The Law)
Legal Constraints Across 100 Countries Over The Last 50 Years
The Number Of Legal Constraints Tracked Are Decreasing Over Time
Strong geographic patterns on where
women’s rights have been strengthened… 14
0%
10%
20%
30%
40%
50%
EAP ECA LAC MENA OECD SAR SSA
Initial (1960s)
Now
Percentage of actual constraints on the books out of
maximum potential number of constraints
Hallward-Driemeier, Hasan and Iqbal, 2013
PATTERNS OF COLONISATION SHAPE
PRESENT DAY LAWS 15
CIVIL TRADITION (FRANCOPHONE/SPANISH)
Community Of Property Regime Sometimes With Additional Controls e.g. Guinea-Bissau
CIVIL TRADITION (GERMAN/SWISS)
Deferred Community Of Property Regime e.g. Colombia and Honduras
COMMON LAW (ANGLOPHONE/RELIGIOUS/POLYGAMOUS SYSTEMS)
Separate Property Regime e.g. India and Senegal
MIXED CIVIL LAW/COMMON LAW TRADITION (NETHERLANDS)
Community of Property Regimes e.g. South Africa
DHS Data 2008 to 2012 – Voice and
Agency Report (forthcoming) 17
Housing Land
Does not
own
Alone
only
Jointly
only Both alone and jointly
Does not
own
Alone
only
Jointly
only Both alone and jointly
Nepal 92.5 6.4 0.6 0.5 89.6 9.7 0.4 0.3
Burundi 41.4 8.5 47.1 3.1 45.9 8.1 43.0 3.1
Cameroon 2.2 15.7 59.3 22.8 2.3 16.6 49.6 31.5
Ethiopia 42.7 11.1 44.6 1.5 50.0 10.3 38.0 1.6
Zimbabwe 62.6 9.2 26.5 1.8 64.0 8.9 25.4 1.7
Rwanda 47.8 8.9 43.1 0.3 46.3 11.4 41.0 1.3
Senegal 85.9 2.0 10.3 1.8 88.7 3.6 6.4 1.3
Uganda 56.4 8.9 29.1 5.5 61.3 10.0 24.7 4.1
Burkina
Faso 68.9 5.2 24.5 1.5 68.5 8.3 19.1 4.1
Armenia 28.5 4.0 58.1 9.4 61.0 1.4 33.5 4.2
min 2.2 2.0 0.6 0.3 2.3 1.4 0.4 0.3
max 92.5 15.7 59.3 22.8 89.6 16.6 49.6 31.5
Gender gaps in legal rights do not
necessarily close with income (SSA)
Women’s Legal and Economic Empowerment Database (Women LEED Africa), Hallward-Driemeier et al. World Bank 2013.
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25%
50%
75%
100%
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Man as Head ofHousehold
Choice of matrimonialhome by husband
Need Husband'sPermission to open an
account
Husband can opposewife's exercise of
trade or profession
Head of Household Rules
Not Found
Yes
No
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Gender gaps in legal rights do not necessarily close
with income (SSA) con’t
Women’s Legal and Economic Empowerment Database (Women LEED Africa), Hallward-Driemeier et al. World Bank 2013.
0%
20%
40%
60%
80%
100%
Low_Income Middle_Income
Constitutional recognition of customary law
Not recognize CustomaryLaw
Recognize Customary Law- and EXEMPT it from non-discriminate based ongender
Recognize Customary Law- and limit its ability todiscriminate based ongender
Among the countries that
recognize customary law as
prevailing in areas of
marriage, property and
inheritance – and exempt
customary law from non-
discrimination provisions are:
• Botswana
• Lesotho
• The Gambia
• Ghana
• Mauritius
• Zambia
• Zimbabwe
Kenya came off the list with its
new constitution.
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How Does Reform Happen? 20
Collective campaigns by women’s networks
e.g. Kenya, Botswana, Ethiopia
Shadow reports to CEDAW committee
Impact Litigation
e.g Unity Dow (1995)and Mmusi (2013) in Botswana
Pressure by international donor community
Membership of regional treaties
POLICY SUGGESTIONS FOR REFORM 21
REFORM OF LAWS ON THE BOOKS INCLUDING
FAMILY LAWS AND INHERITANCE LAWS
IMPROVING IMPLEMENTATION OF LAWS
INCREASING KNOWLEDGE THROUGH DATA
IMPROVE LAWS ON THE BOOKS 22
CHANGE DEFAULT MARITAL REGIME TO COMMUNITY OF PROPERTY
Turkey (2001) and introduced option in Morocco (2004)
MANDATORY JOINT TITLING ESPECIALLY FOR COUNTRIES WITH DEFAULT SEPARATE PROPERTY REGIMES
Rwanda(Community Of Property) (1999) and Tanzania (Separate Property Regime) (1971)
EXTEND JOINT PROPERTY TITLING TO CUSTOMARY MARRIAGES
South Africa (1998)
REMOVE HUSBAND’S CONTROL OVER WIFE’S PROPERTY
France (1985)
REFORM INHERITANCE LAWS TO IMPROVE WIDOW’S AND DAUGHTER’S RIGHTS TO LAND
Korea (1990)
INTRODUCE CONSTITUTIONAL OVERSIGHT OF ALL DISCRIMINATORY LAWS INCLUDING CUSTOMARY LAWS
Kenya (2010)
IMPLEMENTATION OF LAWS IS
ESSENTIAL 23
Linking Marriage And Land Registries
Improving Implementation (photos, space on forms, gender training for land officials)
State Incentives
Reduction Of Stamp Duty/Property Taxes for Inclusion Of Women on Land titles
Awareness Building
Benefits Of Formalising Marriages And Civil Unions, Choosing Good Marital Regime, Joint Titling And Will-writing – venues such as marriage registries, health clinics and schools
Access to and Participation in Justice system
e.g. provision of legal services, reduced legal fees
Dissemination Of Positive Laws And Cases
FINALLY, DATA IS IMPORTANT 24
Centralize Existing Gender Data In Titling Projects and Gender Assessments And Systemize Data Collection in new Projects
Gender Disaggregated Land Data Helps To Identify Gaps And Formulate Policy
July 2013 Jordan Country Gender Assessment shows that joint titling for women is only 12% for land and 7% for apartments. Female land owners total 17% in 2012
Data Can Help To Link Legal Reform To Positive Economic Outcomes For Women