Center for Economic, Social and Cultural Rights in Africa (CESCRA)
Global Initiative for Economic, Social, and Cultural Rights (GI-ESCR)
International Human Rights Clinic at Western New England University School of Law
and Uganda Land Alliance (ULA)
22 April 2015
Table of Contents
I. INTRODUCTION 1
II. ARTICLE 2(2) AND ARTICLE 3 – NON-DISCRIMINATION AND EQUALITY 2
III. ARTICLE 11(1) LAND GRABBING AND FORCED EVICTION 11
IV. ARTICLE 11(2) – THE RIGHT TO ADEQUATE FOOD AND FOOD SECURITY 16
V. RECOMMENDATIONS 19
In Uganda, unequal access to land is one of the most important forms of inequality between men and women. The Beijing Conference held in 1995 re-engineered the debate on women’s rights around the globe, and in Uganda, in particular. Over the last two decades, efforts have been made towards incorporating women’s rights into Uganda’s national Laws, policies and programs. As a result, the 1995 Constitution of Uganda, the Land Act Cap 227, and the National Land Policy provide very progressive laws and policies promoting women’s land rights and eliminating the discrimination against women.
Uganda is a party to several human rights conventions, including the International Covenant on Economic, Social, and Cultural Rights. The Covenant was ratified in Uganda on January 21, 1987.1 These international instruments guarantee women the right to own and inherit land, be treated as equals to men, and the adequate access to food. Women in Uganda are entitled to (land) rights stipulated in these international instruments as well as under the Constitutional and other statutory laws. However, since Uganda lacks an effective mechanism to implement these laws and policies and a method of monitoring to ensure that these laws and policies are being enforced and upheld, women are being denied fundamental human rights guaranteed to them by the laws and policies of Uganda and the Articles of the Covenant. Efforts at statutory reforms to increase legal protection of women’s rights, as enshrined in the Constitution, have encountered lack of political will and resistance from those who wield the religious and culturists’ cards, in contradiction to Constitutional provisions.
Section XXVIII(i)(b) of the Constitution requires Uganda to respect international law and treaty obligations.2 The general rules and principles of the Covenant shall conform to the laws and policies of Uganda. Chapter 19, Article 287 of the Uganda Constitution provides that any international treaty, agreement, or convention that the State was a party to before the implementation of the 1995 Constitution will not be affected and Uganda will continue to be a party to it.3 Therefore, the Articles of the Covenant may be applied by the courts, tribunals, administrative authorities, or any other competent authorities that are a part of the legal system of Uganda.
This report is a joint submission with the Center for Economic, Social and Cultural Rights in Africa (CESCRA), the Global Initiative for Economic, Social, and Cultural Rights (GI-ESCR), the International Human Rights Clinic at Western New England University School of Law, and the Uganda Land Alliance (ULA). It highlights the main issues in which currently affect women’s land rights in Uganda: negative customary practice, forced eviction, and food security. The laws and policies of Uganda are referenced in comparison to how these rights of women are actually respected. This report also discusses the concern of a lack of awareness of Ugandan women of the land rights, to which they are guaranteed, as well as the lack of implementation and an effective monitoring system of the laws and policies of Uganda.
II. ARTICLE 2(2) AND ARTICLE 3 – NON-DISCRIMINATION AND EQUALITY
Discrimination on the basis of sex is a major problem in many parts of the world, including Uganda4 The principles of non-discrimination and equality are prevalent throughout the ICESCR and are essential to exercise the enjoyment of economic, social and cultural rights.5 Article 2(2) of the ICESCR requires State parties to guarantee the rights of the Covenant be exercised with non-discrimination of any kind, including based on sex.6 Article 3 of the ICESCR requires State parties to ensure that men and women be treated equal in order to enjoy all of the economic, social, and cultural rights guaranteed by the Covenant.7 The 1995 Constitution explicitly treats men and women equally (Article 26(1), 31(1), 33). The Land Act further addresses the rights and role of women in Land matters (S. 27, 38A, 39). These provisions are aimed at protecting spouses on family land, giving them the right to access which includes use and security of occupancy, but not equal ownership and control. In Uganda, custom, tradition, and overt discrimination create a lesser status for women and prevent them from equally enjoying their human rights. Under customary practices, women are being discriminated against and being treated unequally to men in violation of both Article 2(2) and Article 3 of the ICESCR.
Despite the protections provided under law, many women face challenges in realizing their rights. Due to a lack of education and cultural factors, many women are unaware of the rights they have. Government and different organizations have come up with plausible measures to create awareness through mobilization and sensitization however owing to the schedules these activities are given, women who need these activities the most benefit from it the least. Even those who know of their rights in a general sense do not know the details of the laws and policies protecting them, or where they can turn to vindicate those rights8 For example CESCRA has demonstrated in its work with grassroots women that women, in areas where the discovery of oil and gas has increased land related conflicts and violations, lack of knowledge of laws and general understanding of their rights. This situation has increased women’s vulnerability to unequal decisions in unprecedented land sales where their spouses have sold land and left their families landless, Government-driven compensations for compulsorily acquired lands for oil refinery ignore women’s specific inequalities and violations related to unequal compensations left women more prone to other violations.9 Article 2(2) and Article 3 are appropriately applied together since the principle of equality and the principle of non-discrimination are complimentary. Under international law, a State’s failure to act in good faith to comply with the Articles of the Covenant amounts to a violation.10 Uganda must eliminate both formal and substantive discrimination in order to guarantee that the Covenant rights are exercised appropriately.11 Eliminating formal discrimination requires a State to ensure that its Constitution, laws, and policies are not discriminatory.12 Eliminating substantive discrimination requires a State to pay attention to groups that are being discriminated against and adopt appropriate measures to prevent, diminish, and eliminate the conditions that cause discrimination, such as ensuring that all individuals have equal access to adequate food, housing, and land.13 Uganda’s laws and policies prohibit discrimination and therefore eliminate formal discrimination. However, Uganda lacks an effective mechanism and monitoring system to implement these laws and policies to ensure they are systematically respected. Exceptions still exists where Uganda has failed to repeal laws found unconstitutional on grounds that they fostered discrimination, such as the Succession Act which discriminated women on grounds of inheritance and distribution of property. Widows in Uganda continue to be deprived of property due to persistent disinheritance practices and lack of strong legal basis to protect them.14 In addition, Uganda has failed to date to pass the proposed Marriage and Divorce Bills which would rather increase legal protection of property rights of women in, during and after marriage. The Bill on Marriage also sought to protect property rights of women found in unrecognized forms of marriages (co-habiting). This was raised by the CEDAW concluding observations in 2010, but still Uganda has shown no will to pass the laws.
Discrimination can occur directly or indirectly. Direct discrimination occurs when a difference in treatment relies explicitly and directly on distinctions based exclusively on sex or other characteristics, which cannot be justified objectively.15 Indirect discrimination occurs when a law or policy appears to be non-discriminatory but has a discriminatory effect when implemented.16 Pre-existing inequalities can disadvantage women in enjoying a particular right, and enacting and applying a gender-neutral law may leave the inequality in place or worsen it.17 For example, discrimination can occur due to a conflict between the land rights as enshrined in the law and the manner in which land is transferred under a customary tenure regime. Women of Uganda also face indirect discrimination. Although the laws of Uganda are nondiscriminatory on their face and guarantee women equal rights to men, a failure in implementation makes the gender equality an unrealized ideal.
Uganda has legal obligations to respect, protect, and fulfill under the ICESCR to ensure that women are able to enjoy human rights equally to men.18 In applying Article 3 of the ICESCR, both de facto and de jure equality are essential in order for international human rights treaties to guarantee rights of non-discrimination and equality.19De jure (formal) equality expects that a law or policy treating men and women in a neutral manner will foster equality.20De facto (substantive) equality expects that the effects of laws and policies that alleviate rather than maintain the inherent disadvantage that particular groups, including women, experience.21 Simply enacting laws and policies that appear to be gender-neutral will not achieve substantive equality.
The 2013 Uganda National Land Policy states that the Government shall “by legislation protect the right to inheritance and ownership of land for women and children” and shall “ensure that both men and women enjoy equal rights to land before marriage and at succession without discrimination.”22 The Policy is however silent on measures to be taken so as to protect women’s land rights vis-à-vis cultural norms and practices. The 1995 Uganda Constitution ensures gender balance and fair representation of marginalized groups, such as women23 and that cultural values that promote and enhance the dignity and well being of Ugandans shall be preserved.24 All Ugandan citizens have the Constitutional guarantee to be free from discrimination.25 Women are also expressly guaranteed to be treated equal to men and Uganda is required to “provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement”, and “protect women and their rights.”26 The Ugandan Constitution upholds the customary land tenure system regime27, and on its face seems like a gender-neutral provision by stating that land belongs to “all citizens of Uganda.”
In effect, however, these customary practices actually discriminate against women and create a vast inequality between women and men as well as violating other provisions of the Constitution. The National Land Policy recognized customary land tenure to be at per or same level with other tenure systems in Uganda. Paragraph 41 (iV) provides for joint ownership of family lands and Para. 42 ((iii) obligates traditional land management institutions to uphold gender equity. However, in practice Uganda has faulted in setting standards while compensating families whose land has been compulsorily acquired for development project, such as the oil refinery in Hoima District where monetary compensation was given to ‘heads of family’ who are largely male spouses, thereby facilitating discrimination against women. In addition, the Government also gave monetary compensation on production on lands to ‘heads of families,’ yet it is women who predominantly use land for agriculture.
The Land Act of 199828 defines customary tenure as “a system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons.”29 The Ugandan customary tenure regime is the most common, and therefore the most problematic. Under this regime, land is governed by rules generally accepted as binding and authoritative by the class of persons to which it applies and applicable to any persons acquiring land in that area in accordance with those rules.30 The Ugandan Constitution and the Land Act31 recognize four land-holding and tenure systems— freehold, mailo, leasehold and customary—each with its own rules and each bestowing different rights and responsibilities on concerned individuals.32 Customary tenure represents the vast majority of landholdings in Uganda - more than 80 percent of land is held under these systems that fail to document ownership33 and often prevent women from exercising their right to own and inherit land.34 As a result of inequalities entrenched in history, cultural practices and some laws, women have not been able to enjoy their rights to land at the same level as men. Indeed, women in Uganda face persistent and systemic violations of their land and property rights. The Uganda Land Alliance and the Uganda Media Women’s Association have reported that “the gender structure of land rights in Uganda varies across the country, but is highly unequal, as women’s land rights are generally restricted to access while men are likely to have ownership rights.”35 Substantial land rights issues occur in the rural communities of Uganda since this is where the majority of women reside.36 Land in rural communities “is not just a source of employment – it is money, food, home, and survival.”37 However, significant disparities between the rights of men and women arise from Ugandan customary practices and traditions because women are considered in an inferior position to men.38 For example, the right to land of women of the rural Buganda and Ankole societies is directly related to the institution of marriage.39 A married woman with children, preferably male children, has more security in her husband’s land than a married woman who has no children.40 Custom denies women the independent right to own land in the communities of the rural Banyankore and Baganda societies.41 The Ugandan women in the rural Acholi, Langi, and Ietso societies have significant land rights under customary tenure regimes, but few actually realize and benefit from these rights.42 Even though the land passes from father to son because the families are considered to own the land instead of clan individuals, any member of the clan born on inherited land has the right to use the land.43When a woman marries, she has the right to her husband’s land and cannot be denied access.44 Although women derive secondary rights through marriage, upon divorce they often lose these rights and are rendered landless. The recourse they have is in their family land which is subject to consent of the father and male brothers. Clan elders are responsible in ensuring that everyone has equal access to land but are failing at their duty to protect the rights of all its members.45 Yet the women in these communities face great challenges because the clan elders often fail to protect their rights.
Specifically on issues of inheritance, customary law dictates that women do not have the right to inherit property. While the Marriage Code grants widows the right to inherit 15 per cent of a deceased husband’s property, even this provision is often not enforced.46 While the Constitutional Court has declared discriminatory provisions of the Succession Act as unconstitutional, the Government is yet to amend the Act so as to bring it into full compliance with the Constitution and its international human rights obligations.47 As the State party report notes, the Constitution guarantees a woman’s equal rights within marriage and in the event of a divorce. However, the legal framework in Uganda currently does not enforce this right. Adoption of the Marriage and Divorce Bill in Uganda, which aims to reform and consolidate the law relating to marriage, separation and divorce, has yet to happen. The Bill in its various iterations has been waiting for parliamentary approval for approximately the last 40 years. If enacted, the Bill would benefit Ugandan women in many ways: it would outlaw a number of traditional practices (such as widow inheritance and brideprice), make asset sharing mandatory in divorce, give cohabiting partners property rights, and make marital rape a criminal offense.
In rural Uganda, customary marriage - a practice that is guided by the traditions and practices of the community - is typically unregulated by the national legal statutes and is still the norm.48 The Customary Registration Act of 1973 governs customary marriages, but is silent on the issue of inheritance and property rights.49 Though unmarried women have the same rights of inheritance as their brothers, there is no event that will trigger the allocation of land to an unmarried woman.50Women also face challenges, especially with respect to divorce or abandonment, when they return to their natal families to access land. Under customary law, a divorced woman must return to her maiden home.51 A woman must rely on receiving land allocation either from her parents if they are still alive and have any remaining land to give, or from her brother(s), and also faces the challenge of her brother(s) forcing her off any land that is allocated to her.52 The Succession Act of 1972 governs inheritance rights in Uganda, but is quite vague on the issue of women’s rights. Although customary law allows a widow to remain on her husband’s land, her rights to remain there are often contested by her in-laws, resulting in the threat (or occurrence) of a widow being forced off the land to which she is rightfully entitled.53 When customary land is bought and sold in Uganda, the Government does not require the sale to be registered or documented in any way.54 This creates a disadvantage for women because their rights over land and natural resources are subordinate to those of men. For example, daughters typically do not inherit land or inherit much less than sons.55 The land women are “gifted” by their parents is often given over to their brothers when daughters marry because they are seen to be “leaving their natal family and transferring to the community of their husbands.”56 However, once they are married, women are not considered full citizens of their husband’s community and married women can only typically access land through their husbands.57 CESCRA found out that when families decide buy customary unregistered land, male spouses refuse to include the names of their spouses (wives) on the informal agreements and if they do they confine their spouses to only as witnesses which stems from the role legally relegated to female spouses under the Consent clause in the land Act 1998. For example, then the husband of Ms. Atwijukire Harriet of Kyangwali in Hoima District refused to include her in his agreement of purchase of land, she also informed elders that she would work hard and purchase her own piece of land in her name of which they agreed and she now owns her own land over which she has control, and her husband is fine with the arrangement. Very few women have negotiation power like that, even where they can also work hard to get the funds to buy land. CESCRA also received cases where women would buy land from their own saving, but their spouses force them to make agreements in their names as heads of the family. Ms. Kyalikunda Jovia also in Kyangwali in Hoima district told CESCRA that when she got married, her father in-law gave her a piece of land to own in her name. However, her brother claimed the land, sighting that it was part of bride wealth paid to her natal family. Ms. Stella Kokunda inherited a piece of land from her mother, but her father has since claimed it on grounds that she had no right to continue owning the land after she got married. Such practice demonstrates how women in face of negative cultural practices are powerless to claim their land rights. The Ugandan Government has not done enough to increase legal and social knowledge on women’s land and property rights especially among the rural communities.
Even if a woman is given a plot of land to farm on, she tends to have limited decision-making authority, if any, over the land.58 Losing access to land causes women to live lives of destitution and social isolation, a threat that causes many women to accept subordinate status to their husbands or in-laws.59 Approximately 23 percent of all households in Uganda are headed by women who are at risk of being denied access to land by their relatives who are trying to lay claim to the land.60 When challenged by people of higher status, such as husbands or in-laws, women are often unable to protect their land rights because clan elders are unable to uphold their duty under traditional customary law to protect women.61 Felitus Kures, a widow living in Kapchorwa, relied on the small piece of land on which her and her husband farmed together in order to meet the essential needs of providing for her and her children.62 Within months after her husband’s death, Kures’ in-laws sold the piece of land without her knowledge.63 Fortunately, she was able to regain access to the land with the assistance of the Uganda Land Alliance, but this is not the case for most Ugandan women.64 After the divorce or death of a spouse, the majority of women never regain access to their matrimonial land.65 Another widow, Beatrice, was forced to leave their rented home she shared with her husband after his death.66 She then attempted to return to the village where her husband had previously owned a home, but was devastated to learn that her in-laws had already sold the home and property and kept the profits for themselves.67 When Beatrice tried to regain ownership of the land, she was denied access because she had no rights as a widow under the customary tenure regime.68 Similarly, Santa was a widow who lost her land after the death of her husband. Her brother in law divided land, leaving Santa with no garden to dig. After several years of suffering one radio program focusing on widows land rights by Uganda Land Alliance totally changed her life after her land that had been grabbed was handed back to her.
Another major concern is that many men in Uganda sell family land without informing their wives or obtaining their consent, and use the proceeds from the sale for their own personal benefit.69 The Land Act provides that no person shall “sell, exchange, transfer, pledge, mortgage or lease any land on which the person ordinarily resides with his or her spouse and from which they derive their sustenance, except with the prior written consent of the spouse.”70 The “consent clause” is designed to protect the rights of family members from abuse.71 As a result, the sale of land by a husband without the written consent of his wife is legally invalid. However, no authority in central or local Government has the explicit responsibility to verify written spousal consent of land sales, resulting in considerable land sold without spousal consent, including customary land.72 In implementing Article 2(2) and Article 3, Uganda must consider that their laws and policies may fail to address, or may even create, inequality amongst men and women because the existing economic, social, and cultural inequalities experienced by women are not being taken into account.73 Property status is a prohibited ground of discrimination under Article 2(2) of the ICESCR.74 Article 3 requires Uganda to respect the principle of equality “in and before the law”, which means that it must be respected when enacting laws and adopting policies.75 Failure to ensure formal and substantive equality in enjoying human rights between men and women and allowing discrimination against women to occur are blatant violations of Article 2(2) and Article 3.