ROSE NAKAYIFACULTY OF LAW

MAKERERE UNIVERSITY

PAPER PRESENTED AT THE WOMEN’S LAND RIGHTS CONFERENCE, SPEKE RESORT MUNYONYO,

OCTOBER 4-6TH 2010.

IS MORE LESS? ENHANCING WOMEN’S ACCESS TO JUSTICE IN

UGANDA

INTRODUCTION

Mapping the “MORE”; the post 1986 era. The growth of the women’s movement. Participation in the Constitution making process and Land

Act. Participation in politics. Good provisions in the Land Act Cap 227. A number of land justice institutions - BUTThe “LESS” is glaringly visible. Land justice remains elusive in practical terms; the problem

of implementation. Yet women’s survival is so attached to land.

Mapping the “MORE”; the post 1986 era. The growth of the women’s movement. Participation in the Constitution making process and Land

Act. Participation in politics. Good provisions in the Land Act Cap 227. A number of land justice institutions - BUTThe “LESS” is glaringly visible. Land justice remains elusive in practical terms; the problem

of implementation. Yet women’s survival is so attached to land.

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PAPER OVER VIEW

This paper does the following:1.Un packs the key concepts; justice and

women.2.Conceptualizes the predicament of women’s

access to land justice.3.Analysis the impediments to access to justice.4.The land justice institutions.5.Makes recommendations.

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JUSTICE

No single definition.Attributes: fairness

and impartiality.“Justice is not a

cloistered virtue. It a tree under whose spreading branches whoever seeks shelter should find it.” (Newbold .p. Musa and others v. Republic)

Some issues:Should justice mean

the same in all cases? (conflict situations and peaceful societies?

Is the language of justice congruent with the role of traditional institutions (Clan Courts)?

Ultimately, Justice should be accessible & Achievable (Newbold. P.)

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JUSTICE CONT’D.

SECURE LAND RIGHTS IN LAWS

SECURE LAND RIGHTS IN LAWS

TRADITIONAL INSTITIONS &

LOCAL COUNCILS?

FORMAL JUSTICE INSTITUTIONSWOMEN

AccessAccess

LAND JUSTICE

LAND JUSTICE

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WOMEN; A HOMOGENOUS CATEGORY?

Land justice needs of women differ: Women in urban areas v. Rural women. Women in stable areas v. those in conflict or post

conflict settings.( smaller categories for post conflict women)

Women on customary land v. those on freehold, leasehold, mailo.

Registered title holders, it matters how they acquired the land.

The literate woman v. the illiterate. A one-size -fits -all approach in search for solutions

can’t work, but well crafted approaches that target specific categories.

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CONCEPTUALIZING THE PREDICAMENT

A. Predominance of customary land Progressive provisions in Constitution & Land

Act (Articles: 21 (1) – (3) on equality of men and women in all spheres, 28 decisions that deny women rights to land are null and void, 31(1)(b) equality at all stages of marriage, Land Act Article 39).

Written law is a trump card against bad customary practices, BUT; wide gap between law and practice, bad practices still continue unchecked.

Poor perception of the traditional institutions: insufficient state backup.

Structural problem; colonial time polarization between formal and informal law and institutions shapes current perceptions.

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THE PREDICAMENT CONT’D

Traditional Institutions v. formal institutions. Has neglect of customary law perpetrated

land injustices for women?B. Capitalism Commercialization of Land Increased value of land, more need to sale,

increased demands for land justice for women.Preference for private rights; “replacement” v.

“adaptation” paradigms of the World Bank. The cost of justice.

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IMPEDIMENTS TO WOMEN’S ACCESS TO LAND JUSTICE

Institutional operational deficiencies and inadequacies (small budgets, delayed funds, etc).

Insufficient knowledge about justice (illiteracy).Non functional institutions: brilliant on paper. Over legalization of justice in some instances. poverty /insufficient resources.Cynicism and hypocrisy on matters of women.Delays ( “Justice is sweetest when it is freshest;

it becomes sour when delayed.” Justice Benjamin Odoki.

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The justice institutions: Crisis or Confusion?

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A variety of options (High court thru Supreme Court; magistrates and Local Council Courts(LCC), other institutions like the Clan Courts ).

The good and evils of LCC.District Land Tribunals.Traditional authority and disputes over

customary land( s.88 Land Act; BUT, implementation dilemma, s. 92 (6) L/A).

Magistrate courts mean time option where Land Tribunals not yet in place (s.95 L/A).

INSTITUTIONS CONT’D.

Many institutions, no information, forum searching eternal, justice delayed.

Structural crisis in need of correction, or mere confusion requiring information?

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MAKING THE “LESS” “MORE”

More information and training for women about access to justice.

Address underlying causes of inaccessibility ( poverty, illiteracy).Tenure security and implementation of good

provisions. Recognition of traditional institutions and

support. From a confrontational to a dialogue

strategy with men in the justice delivery sector; target change of perception and mind set, etc.

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“LESS” TO “MORE” CONT’D.

National discussions about the future of customary law, it’s position in the legal system, relationship with statutory law etc.

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CONCLUSSION

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