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CUSTOMARY TENURE AND WOMENS LAND RIGHTS. Introduction Land is a basic resource for development. Both International and national instruments on Human Rights provide for a right to own property, which includes land. Under Article 237 of the Constitution, citizens of Uganda are entitled to own land in accordance with the tenure systems of customary, freehold, Leasehold and Mailo. The 1995 Constitution for the first time recognized customary tenure as one of the tenure systems in Uganda Customary tenure is a system of land holding regulated by customary rules often administered by clan leaders. The customary tenure predominates in Uganda. In this system there can be individual, family and communal land ownership and under this system, the land is not titled. The 1998 Land Act reinstates the provision of the Constitution on citizens holding land according to the four tenures above. The Act, created a system of tenure, ownership and administration of land. In section 4, the Act provides for acquisition of a certificate of customary ownership in respect of customary land by an individual, a family or a community. Under section 27, the Act prohibits decisions pertaining to customary land that deny women access to, ownership of, or occupation of land. Section 39 also protects family land and security of occupancy during the subsistence of marriage. Family land being inclusive of land where there is ordinary residence, where the family derives sustenance. Challenge The Constitution allows the customs of the communities to be practiced, alongside the statutory law. The two systems run along each other. The Statutory law and the customary norms are applied in all aspects. Unfortunately, the gender sensitive laws on land rights guaranteed in the Constitution and the Land Act apply in the society which is still very much gendered context; hence limited possibilities for women to own land customarily, as the customs generally discriminate against women. The head of the family is not defined in the law. Uganda being a patriarchal society, head of the family is entrenched in the man either as a husband, a brother or elder son; hence he is the person to apply for certificate of customary ownership on family land. In patrilineal societies common in Uganda, women are denied to inherit land from either their fathers or their husbands. Their fathers often do not bequeath land to their daughters because daughters marry outside the clan and will therefore take the land to another clan. Husbands also do not bequeath land to their wives for the same reason, as they might re-marry, outside the clan. In some societies, land is communally owned and women are excluded from any formal decision making in the clan or community regarding property. Clan leaders are more protective of their land and are more reluctant to allow women access to land Under the customary norms, women who are childless, single, widowed, disabled, separated, divorced or with only girl children have no access to land. Land held customarily in most families, belong to the man, hence many women do not have security of tenure; her tenure is dependent on the male. In some communities women are regarded as property, being bought through payment of bride price. At the demise of the husband the clan does not allow the widow to get /marry another man outside the clan, thus keeping the clan property. Women’s land rights under customary tenure are limited to access and user rights. Women in cohabitation relations are in a precarious situation, because upon the death of the man, they can even lose the access rights to the land and more so, they are not protected under the law. Recommendations: Human rights, gender and women’s rights should be institutionalized within the traditional institutions. Ensure gender equality in access to and ownership of land Strengthen the capacity of women and women groups for effective participation in leadership and decision –making at the local government level. IEC strategy should specifically target women and address gender equality and women’s land rights /concerns. Strategy: Train traditional leaders on human rights and gender aspects Raise awareness and consciousness on gender equality and women’s land rights for traditional, Religious and community leaders. Support women’s organizations at the grass roots to access information Produce IEC materials for the general public on women’s land rights Government should hold clan heads accountable for the protection of land rights of women in order to reduce land grabbing. To train the local authorities at district and Sub county level in gender sensitive planning and budgeting Conclusion: The application of customary norms in the administration of customary land tenure system has negative effects on women, where patriarchy exacerbates the situation, since it is the male who are clan leaders or heads of households. Customary arrangements are not protecting women’s land rights. There is need to engage with the traditional leaders in various contexts to protect women’s land rights, since women are the most productive workers and are responsible for providing for the household’s entire welfare.
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