As part of his call for gender equality during Women’s Month, President Cyril Ramaphosa said that it was imperative that women have ‘access to productive assets such as land’. For this reason, he said, women needed to benefit from the ‘accelerated land reform’ programme.
The president is correct here, at least to an extent. A key measure of the ability of women to take their rightful place in a society is whether or not they can participate fully in its economic life. Little else exemplifies this (and its opposite, their exclusion) as much as property rights – and, unfortunately, it remains a reminder that progress is incomplete.
It’s an issue that extends beyond South Africa’s borders. The World Bank’s Women, Business and Law is compiled by assessing the formal legal position with respect to gender across several themes (assets, marriage, mobility and so forth), and then producing an overall rating for each theme for each of the countries assessed. The themes together assess the overall legal status of gender equality.
Women, Business and Law finds that some 40% of economies across the world discriminate in some way against women with regard to property rights (as recorded in its ‘assets’ theme). Across the 48 countries in Sub-Saharan Africa, the proportion is fully two thirds. This encompasses – differing from country to country – discrimination in male and female rights to immovable property, distinctions between sons and daughters in inheritance, as well as in the rights of males and females to inherit property on the death of their spouses, legal differences between husbands and wives in the control of family property and whether the law recognizes non-monetary contributions in determining property divisions.
Most common issue
The most common issue is a failure to recognise non-monetary contributions. This would include such activities as child care or other notional ‘woman’s work’. This is lacking in 19 countries.
Ten countries have discriminatory property ownership regimes, while 13 discriminate in inheritance rights for children, and 13 in respect of spouses. Eight countries grant differential rights to spouses in respect of control of family property.
In many instances, a combination of these factors coexist. In eight of them – Comoros, Mauritania, Niger, Senegal, Somalia, South Sudan, Sudan and Uganda – three or more exist simultaneously. In Mauritania, each of the five are found, giving it the lowest score for women’s property rights on earth.
Incidentally, each of the five North African countries included – Algeria, Egypt, Libya, Morocco and Tunisia – showed discrimination on three of the five measures.
More concerning, though, is that the index tracks only the formal legal position; it does not consider the state of actual implementation, nor the impact of authority systems outside countries’ constitutional and legal orders. The realities for women’s property ownership are far more restrictive.
Formal systems are typically weak
Across the continent, even where women are nominally afforded equality, this is contradicted by prevailing informal and semi-formal authority, not least in the field of religious or customary law. This is no small matter for a continent in which more than half the population remains rural, in which subsistence agriculture provides a livelihood, in which ties of lineage and clan are strong, and in which those formal systems are typically weak.
Structures and arrangements constructed by practice and tradition – sometimes manipulated for political or economic purposes – still count strongly.
The African Union’s African Peer Review Mechanism has identified this as a recurring issue in the countries it has studied. Indeed, some of its reports have pointed out that many women are not aware of the legal rights they might claim. As a United Nations report (2009 World Survey on the Role of Women in Development) put it: ‘Experience shows that legislative change does not necessarily translate into “real rights”, given the resilience of long-standing social norms favouring men’s rights in land. Enforcement of legislation is lacking in many countries. Even where women’s rights are recognised by law, customs often prevent them from taking de facto control of land and other productive assets. The central importance of land in long-established rural hierarchies means that women can be prevented from claiming their rights. Their secondary status, illiteracy, fears about disrupting relationships within the family and cultural norms which associate men with ownership of land combine to make the process a difficult and costly one.’
This is even so in a country like Rwanda. Here, the government has put a great deal of emphasis on advancing the position of women, along with genuine and muscular economic reform. But the hangover of traditional assumptions and institutions has dogged its efforts.
Tragic deprivation
Nor is this something unfamiliar to South Africa. Millions of South Africans live under customary authority, dependent on land to which they are denied formal property rights. In one poignant example, a 2018 study by University of KwaZulu-Natal Master’s candidate Bongi Owusu highlighted the tragic deprivation that may be visited upon widows in particular. The promise of South Africa’s much-vaunted Constitution remained unfulfilled.
Speaking at a conference earlier this year, she noted: ‘It is as if the traditional leaders are unaware the Constitution exists. While some do know of anti-discrimination laws, for political reasons they choose not to implement them amongst their subjects. I learnt that some traditional leaders choose to ignore the Constitution because they say they were not consulted when it was drafted and that their leadership was therefore ignored and undermined.’
And indeed, for political reasons, the government has shown little appetite to challenge this. When the president speaks of ‘accelerated land reform’, it is an endeavour that has skirted dealing with land under the control of traditional leaders. (In 2018, assurances were given that their interests would not be interfered with). Legislation on customary administration has rightly been criticised for forcing rural African communities into the control of parallel systems that would effectively deprive them – women most of all – of their full rights as citizens. Hence the derisive description of these as the ‘Bantustan Bills’.
Change is under way
Fortunately, across the continent, progress in women’s property rights is being made. From the revision of marriage laws in Côte d’Ivoire, to court victories for women dispossessed of their property in Malawi and Botswana, change is under way, even if slowly and haltingly and limited in scope, for the arms of tradition and political expediency are long indeed.
So it is in South Africa, and the president will need to decide whether his government will champion the property rights of women, or seek refuge in the expediency of the status quo.
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