Customary Law and access to resources

In customary law systems, access to resources is based on membership of a lineage, community, or household. These systems operate most effectively where land is relatively abundant and where most land users know one another and have regular and direct contact. Formal systems are mostly effective where land values are high and land transactions among strangers are frequent, requiring transparency and public records to reduce information asymmetries. Even in formal tenure systems, unwritten rights often coexist with the limited number of rights that are actually recorded in registries or titles. In practice, however, customary rights have often strengthened and concentrated the land rights of individual, senior, male household heads over multiple other interests. This results in only a small percentage of the population, and strikingly few women, holding land certificates or titles in developing countries. Joint titling appears promising, but its application is, as yet, too limited in time and scope to judge.

Despite their harmful nature and their violation of international and national human rights laws, such practices persist because they are not questioned and take on an aura of morality in the eyes of those practicing them. In many cases, socio-cultural factors limit women’s access to and rights over resources (Women’s land rights handbook, abridge version- Sierra Leone, pg.1). In

patriarchal cultures predominant in much of the world men as de facto heads of households have the largest role in decision making about resources at both the household and community levels, meaning women have disproportionately fewer rights to land and property FAO, (2011a), Doss, (2013). CEDAW is made binding on other domestic laws of the state on 11^th November, 1998.

Also, there is the optional protocol to the CEDAW that was signed on 21^st September in the year 2000. This condemns the unequal treatment of women in line with the sharing of land; that is African Charter on human and people’s rights on the rights or women in Africa (the African women’s protocol). This however was not domesticated in Sierra Leone as the other laws (African Charter on Human and People’s rights). Section 40 sub-sections 4(d) gives power to the president to make agreements in the name of Sierra Leone. For any international agreement or law to be made binding on domestic laws, it must have been accepted in Parliament after the signing of that agreement or law by the president. The laws of the country that deals with marriage, divorce inheritance or high status position in society did not make provision in the constitution for the protection angst bas judgements (Women’s land rights handbook, abridge version, Sierra Leone, pg.2). This is where some of the problems of owning property in the country began. The legal framework does not make provision for that under the 1991 Constitution which is the main book of laws of the land. Customary law is not uniform across Africa, but there are some common factors:

i. Customary law tends be the unwritten social rules and structures of a community derived from shared values and based on tradition.

ii. Customary law pertaining to women’s land tenure is based on social relations between men and women and, more specifically, husbands and wives.

iii. Customary law seems to have few provisions for divorced women and even fewer for single women.

The issue of customary law has arisen within the land reform debates not only because the majority of feminist scholars have held the view that customary land law has not favoured women, but because the reforms are taking place in a context of a positive re-evaluation of customary land tenure Sierra Leone Constitution, (1991).

The problems of customary settlement raise the question how customary processes actually work in Sierra Leone specifically and in Africa in general. Historically, there is an agreement that

customary laws are flexible and are constructed in local social relations. Conflicting claims are negotiated on the basis of series of principles and not on a series of rules, it is hard not to agree that not enough is known about customary land tenure institutions within the modern nation state Okoth-Ogendo, (2000). Statutory and customary law systems have been found to operate in more interconnected ways than is realised. Land claims are socially embedded not only in the sense that the network of social relations gives rise to interlinked claims and obligations, but also in the sense that the processes of allocation and adjudication are themselves socially embedded Mackenzie, (1993).

As sated above, and like many African countries, Sierra Leone has a dual land tenure system, with aspects from the colonial era and customary ownership varying in proportion, depending on location. This creates confusion regarding land rights for women, says Catherine Gatundu, natural resource rights coordinator at NGO Action Aid International Mackenzie, (1993).

The 2007 Devolution of Estate Act criminalizes depriving a woman from inheriting her husband's property after his death. It recognizes customary marriage, the rights of polygamous spouses, and imposes penalties for evicting a spouse or child from the marital home. The inheritance should be shared among surviving family, with 35 percent going to the spouse, 35 percent to the children, 15 percent to parents and 15 percent in line with any customary laws Sierra Leone Devolution of Estate Act, (2007). But the act only recognizes an individual's right to land, not a family's, and the vast majority of Sierra Leonean women live under traditional land tenure structures that do not recognize a woman's right to own property.

Customary law applies in thirteen (13) of Sierra Leone's fourteen (14) districts. As the government looks to reform land policy ahead of presidential elections in November, gender activists are pushing to make women's right to land a reality, calling the current set-up

"discriminatory". "The land tenure system in the rural areas actually affects women the most,"

The USAID report quoting to Gladys Brima, the founder of Women's Partnership for Justice and Peace, a local non-profit organization said; "Women use the land more. But when it comes to ownership, women do not own the land. "USAID, (2011). According to the US State Department's 2011 Investment Climate Statement, agriculture accounts for over half of Sierra

Leone's income, up to 80 percent of the country's agricultural workforce are women, and women farmers directly affect 40 percent of the national revenue USAID, (2011).

“Customary law governs land tenure throughout the rest of the country, and traditional paramount chiefs control land access. Conflict displaced rural populations in many areas (with more than a quarter of the population displaced at one time or another) and many local authorities were overruled by various factions in the conflict or simply killed. In the post-conflict period, donors supported government efforts to restore the authority of paramount chiefs in order to re-establish stability in the rural areas and hasten resumption of agricultural development and decentralization.

Some observers have noted that the restoration of the chieftaincy system potentially perpetuates abuses of power and exploitation of the local population, especially the rural youth” USAID, (2011).

Quisumbing and Pandolfelli, (2009) argue that women often are disadvantaged in both statutory and customary land tenure systems, which placed the women at a highly vulnerable position. The World Food Programme in Sierra Leone reported that, more than 20 percent of households are headed by women, and in over a third of these cases is due to the death of her husband. Sierra Leone's conflict was set off in part due to highly unequal distribution of natural resources, including land. During the Civil war, two thirds of the country’s population was displaced, and those who returned home mostly found their farmlands destroyed or occupied WFP, (2011).

In Sierra Leone, customary law regarding land is unwritten apart from reference to it, or to aspects of it within formal legislation. A significant legal issue is that customary law is enforceable in formal court, according to the Law Reform Commission Sierra Leone local Government Act, (2004). This is why a purchaser of land must contend with the ‘offense’ feature of any purchase, whereby the security of the purchase remains in effect as long as customary law, society, individuals and groups are not ‘offended’ with the definition of offended undefined and unwritten. Generally, when there is an issue that the formal legal structure does not deal with, then the procedure is to first look to customary law for guidance. If none is available, then the formal structure can attempt to pass legislation dealing with the issue. While the way ahead in Sierra Leone is with a merging of customary law with formal law, the governance issues regarding the former is of utmost importance. Governance in the customary sector needs to be seen as fair, reliable, and objective as priorities for this merging to be effectively realized.