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Gender and the Law: Women's Rights to Land and Resources

The papers I have looked at for this post are written or co-written by Patricia Kameri-Mbote, a female Professor of Law at the University of Nairobi. There is a large quantity of literature about Africa authored by white European researchers which can often be subjected to unconscious biases and prejudice. Thus, my aim here as a privileged white person, is to amplify the voices of African expertise.

Patricia Kameri-Mbote, source: https://alumni.uonbi.ac.ke/2019/07/22/watch-the-full-public-presentation-of-doctor-of-laws-lld-thesis-by-prof-patricia-kameri-mbote/ 

There are many legal issues concerning a women’s right to land and resources in Southern and Eastern Africa. State, customary and religious law all play a role in dictating these rights. Kameri-Mbote argues that all forms of law must be engaged if they are to successfully challenge the gender imbalances when it comes to access and ownership of property.

Women contribute over 80% of the farming workforce, Africa’s most dominant sector of the economy. They provide much of the day-to-day labour such as planting and harvesting yet among many farming communities, women’s access to land is determined by men due to the patriarchal cultural tradition. Laws can be used to mitigate this gender inequality but can also serve to reinforce it. Whilst women’s legal rights are sometimes recognised, achieving gender equality in practice depends greatly upon the willingness and capability of society to enforce these rules. A key characteristic of much of African customary law is that of female subordinance to older, male members concerning property. This imbalance was further consolidated following colonisation and privatisation as men felt the need to strengthen the one remaining area of their authority: customary law. Based upon social relations between men and women, and in particular husbands and wives, it has very few provisions for divorced and single women (Kameri-Mbote, 2008). 

The 2013 Water Resources Act and the 2013 Gender Equality Act in Malawi recognise the right to drinking water and the right to equal gender participation. In practice however, the state like many others, fails to live up to this obligation. Community-based customary water governance systems, local governance institutions, humanitarian agencies as well as NGOs also dictate a women’s right to water. In southern and eastern African countries, water is often drawn from common pool resources that are governed by community-based norms and institutions.

In Kenya, a furrow system has developed in many communities as their primary source of water. Men are responsible for the creation and upkeep of these furrows whilst women are responsible for childcare, chores and farming. Women are granted access to this water but as they do not participate in the maintenance of these furrows, they are not included in water governance. Due to the poor quality of water in these furrows and the lack of investment in infrastructure, women must walk long distances to access clean drinking water from public boreholes. However, customary norms are fluid and evolve in response to changes in society. Younger women are acquiring knowledge about the furrow system which has gradually allowed them to assume a role in water governance. Thus, whilst customary norms can ensure that women have equal access to water and water governance, they can also serve to disenfranchise them.

Kameri-Mbote argues that it is necessary to move beyond a state perception of law and governance and assume a ‘legal pluralist approach’ which takes account of these customary laws that dictate women’s access to, use of and control of water. Furthermore, she contends that there must be an ‘empowerment’ component when addressing the gender water imbalance as well as action to ensure that women can assert their rights to hold water providers accountable (Kameri-Mbote et al, 2015).

Therefore, without a more holistic perception of law and governance, Kameri-Mbote states that women will continue to be neglected in both local and national water governance. Their rights must be recognised at all levels, especially concerning customary law which is often the dominant discourse governing their access, use and control of water. 

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