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.

3

DISCRIMINATORY LAWS ARE FOUND IN LAWS

USUALLY SHAPING THE PRIVATE SPACE

Family

Inheritance

Land

WHERE ARE DISCRIMINATORY LAWS FOUND?

4

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

PRESUMPTION OF JOINT TITLING 16

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.

0%

25%

50%

75%

100%

Low

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com

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Mid

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e

Low

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e

Mid

dle

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e

Low

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Mid

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Low

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Mid

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e

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

18

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.

19

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