Tenure Security and Land Access

Landlessness is a global phenomenon that disproportionately affects women. The rights of women to own, use, access, control, transfer, inherit and otherwise take decisions about land are recognized within a wide body of national, regional and international legal frameworks. These frameworks also encompass women’s rights to secure land tenure and to meaningfully participate in all stages of the development of land law, policy and programs, including assessment and analysis, program planning and design, budgeting and financing, implementation and monitoring and evaluation UN Women, (2014).

In many communities, access to resources is governed by both written and customary laws. In instances when conflicts exist between traditional norms and national laws, as is often the case when women’s rights are considered, local norms generally prevail and are enforced by community members. Written national laws granting women equal access to productive resources are essential but for these rights to be legitimate and adhered to, it is necessary to secure the support of the local community. Thus "having a law" does not necessarily mean that women have equitable recourse to remedies should the law be broken FIG Publication, (no. 24).

According to FAO, Access to land is governed through land tenure systems. Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land FAO, (2002). In another report, FAO defines land access as opportunities for temporary or permanent use and occupation of land for purposes of shelter, productive activity or the enjoyment of recreation and rest. Land access is obtained by direct occupation, by exchange (purchase or rental), though membership of family and kin groups or by allocation by government, other land owners or management authorities FAO, (2011).

Not only do women have less access to land than men, but they are also often restricted to so call secondary land rights, meaning that they hold these rights through male family members, and thus risk losing these entitlements in case of divorce, widowhood or the migration of the male relative. Frequently, women have only user rights, mediated by men, and those rights remain highly precarious FAO, (2010).

Access is the right or opportunity to use, manage, or control land and its resources. It includes the ability to reach and make use of the resource FIG Publication, (no. 24). There is also evidence that even small incremental gains in secure access to land can have a significant impact in enhancing food security and increasing the resilience of poor rural people to external shocks.

Tenure security is not only important to agricultural production: it also provides poor people with the means to equitably negotiate the diversification of their livelihoods and build up their capacity to undertake viable, alternative off-farm activities by using their land as collateral, renting it out or realizing its true value through sale IFAD, (2008). Access to land is a cross-cutting issue that strongly influences efforts to achieve the Millennium Development Goals (MDGs). For instance, land ownership is closely tied to efforts to achieve Goal 1 on eradicating extreme poverty and hunger due to the link between food security and access to and utilization of land UN Women, (2014). When describing access to land, we can distinguish between quantitative parameters (such as the nature of tenure, the size of the parcel and its economic value) and qualitative parameters (for example, legal security, and documented or registered evidence of rights to land). These parameters play an important role in "measuring" access to land before, during and after development projects FIG Publication, (no. 24). In terms of achieving Goal 3 to promote gender equality and women’s empowerment, women's access to and use of land, property and inheritance rights are important indicators of women's empowerment and human development UN Women, (2014). Large-scale acquisitions of land by foreign and domestic investors have increased due to various factors such as the growing demand for food, flowers, biofuel, timber and other raw materials, the development of extractive industries, industrial development and tourism. Even apart from large-scale acquisitions of land, poor women in urban and rural areas often do not have reliable access to land; secure land tenure or customary land rights. Therefore, such land deals may exacerbate women’s low access to and ownership of land UN Women, (2014). FAO describes land tenure as the way land is held or owned by individuals and groups, or the set of relationships legally or customarily defined among people with respect to land. In other words, tenure reflects relationships between people and land directly, and between individuals and groups of people in their dealings in land FAO, (2011).

Considering that landlessness compromises food production and income at the household level, which limits access to food of good nutritious value and quality health care, access to land has a

direct impact on MDG 4 to reduce child mortality, MDG 5 to improve maternal health and MDG 6 to combat HIV, malaria and tuberculosis.

Land access and tenure security issues are linked, directly or indirectly, to all the strategic areas of IFAD’s interventions. Land issues are of particular concern, today, when population growth, high food prices, the impact of climate change, trade regimes, global consumer- and corporate-driven food systems and growing demand for agro fuels and feed are causing fierce competition for land and very high pressures on tenure systems IFAD, (2008). For this study, the FAO definition of Land Access and Land Tenure will be used interchangeably.

However, Brasselles and others states that, the primary constraint on making lands available for cultivation is the tenure insecurity of the customary landowning families not the insecurity of tenants or strangers, although the latter is connected to the former. Secure land tenure has been argued to increase investment incentives for three main reasons Brasselle et Al, (2002). The first is the assurance effect, which is when a farmer feels more secure in maintaining the long-term use of the land and in the returns on long-term land improvements says Brasselle et Al, (2002).

The second is the realisation effect, or tradability, which is the ability to convert land into liquid assets through land sales or land rentals. This makes land available to more efficient users. The third is collateralisation effects, which are the ability to use land as collateral to access credit.

Many studies have looked at the empirical evidence of the former but have found inconsistent results. Studies on the second effect have been hampered mostly by the lack of land markets in most customary land tenure systems Barrow and Roth, (1989). Women, the elderly, minorities and other sometimes marginalized groups can be at risk in land reform and land administration projects. Very often, when land values increase as a result of external investments, women get marginalized in the process, and risk losing former benefits and accommodating situations.

Women can be at risk even if it is intended that they share the benefits FAO, (2002). There is also broad recognition that women’s rights to inheritance and property are crucial factors in reducing women’s vulnerability to violence and HIV, as well as for empowering women to cope with the social and economic impact of the HIV/AIDS epidemic at the household level UNDP, (2008).

The centrality of land in all dimensions of rural life in the context of Africa means that, the analysis of land tenure issues should be broadened from its traditional links with issues such as

land-use, agricultural production efficiency, and access to credit, conflict management mechanisms, fragmentation of landholdings and so on, to include all aspects of power/ politics and social position ECA, (2009). Land tenure may also have both spatial and temporal dimensions and are typically defined through statutory or customary law USAID, (2010). There has been an ongoing argument, that land tenure security is necessary, but it is not sufficient for sustainable rural poverty reduction and improved livelihoods. Measures to strengthen land tenure security must be complemented by pro-poor policies, services and investments that reduce vulnerability and enable people to make the best use of their access to land. Furthermore, enabling policies are needed beyond the national level to address issues such as migration, pastoralism and conflicts that cut across national boundaries and even regions, and require multi-country or regional approaches IFAD, (2008).

In societies following customary rules, women’s direct access to land through purchase or inheritance is often limited. Since women are the major producers of household food supply there are usually customary provisions for indirect access to land in terms of use rights as community members, wives, mothers, sisters, or daughters. These use rights, however, do not grant enough security for women when traditional family structures dissolve. The economic and social well-being of women and their children are at increased risk when women face widowhood and divorce, or when the male head of household does not or cannot exercise his traditional responsibilities to his family FIG Publication, (no. 24). Statutory law often does not provide for women’s independent rights and when such legislation does exist, mechanisms to enforce it are often absent. In traditional or “customary” societies, women’s direct access to land through purchase or inheritance is often limited, yet they may have greater management and use rights than men FAO, (2002).

In many communities, access to land resources is governed by both statutory and customary laws. Conflicts can exist between traditional norms and national laws, as is often the case when land rights are considered. Local norms as enforced by community members are most likely to prevail, particularly in rural areas. National constitutions and laws granting equal access to productive resources are essential for gender equity FAO, (2002). Understanding the local situation, as well as the national legal structure, is therefore essential in land-related programs.

Land tenure security and women’s access and control over land have also been associated with

production efficiency Fuentes and Wiig, (2009). However, for these rights to appear legitimate and be enforced, they need to be accepted by the local community. Such acceptance is primarily enhanced through local community involvement in the process of the design and implementation, as well as the approach used during information and education campaigns FAO, (2002).

Tenure insecurity by landowning families’ results in an extreme reluctance to allocate lands to others in a secure way, due to a fear that ‘others’ may make claims. Insecurity also results in a reluctance to disconnect improvements made to land by tenants or strangers including even occupation of the same land for a number of years with the perception that these improvements are forms of claim, and therefore represent a real threat to customary ownership D. Unruh and H.

Turray, (2006).

There are many ongoing land disputes in the rural areas, a post-war socio-political environment where a degree of social capital involving trust has been compromised and fear of government taking land GoSL, (2005); also see Renner-Thomas, (2004); Gbamanga, (2004) for further descriptions of land disputes). Land tenure security and women’s access and control over land have also been associated with production efficiency Fuentes and Wiig, (2009).