IV. Analyzing the Customary Law Framework
This page will highlight a few areas for analysis.
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Customary Land Tenure Structure
- Is land held by individual families, is it held communally, or both?
- Who is considered the “owner” of the land?
- Who makes decisions about how the land is allocated, managed, or used in the household? In the community?
- If land is owned communally but is allocated to individual households for their use, what is the nature and scope of the rights for the individual household?
- Can those rights be transferred by inheritance (or otherwise)?
- Are there different rights for people within the household? I.e. is the male household head presumed to be the manager of the land?
- If land is held communally, who is ultimately responsible for land distribution? Are women in that group?
- *Is polygamy practiced?
- *If yes, do wives live separately or together with their husbands? Does each wife live in her own house, or is there another arrangement?
- *Does each wife have her own piece of land allocated for her use or does she share with the others wives?
- *Are there any restrictions on polygamy (number of wives, etc.)?
- If yes, is this considered a daughter’s pre-mortem inheritance?
- If yes, who receives the marital gift? (Possible recipients include: daughter, son, parents of daughter, or parents of son.)
- If yes, who has control over the marital gift once it is received?
- If yes, does the family ever sell land to provide this marriage gift?
- Do widows remain on their deceased husbands’ land/ house?
- If yes, are there any limitations to this (e.g. widows can only remain on the land/house until the time she remarries or until her children are of the age of majority or are married)?
- If yes, is a portion of her land ever taken from her?
- Is the custom to reclaim unused land rather than let her lease the land?
- Does it matter what her husband died from?
- If yes, can she stay on the land until she dies?
- What if a woman does not have children? Does this change anything?
- What if she does not have sons?
- What if she is not the first wife?
- If wives do not remain on their husband’s property, where do they go?
- If polygamy is legal, how are the land and house(s) divided among the wives?
- Who decides who gets what if there is no will?
- Does the division of property depend on the number and gender of the wives' children?
- If polygamy is not legal, how are the land and house(s) divided among wives?
- Who is usually responsible for taking care of widows?
- If a specific child is responsible for taking care of a widow or widows, what does that child usually inherit?
- Does the husband’s land go directly to the caretaker child or other children?
- If a specific child is responsible for taking care of a widow or widows, but there is no child to fill that role, what happens?
- Example: If it’s usually the eldest son, what happens if a family only has daughters?
- Do widows have use rights to the land where they live until they die or re-marry?
- What status do widows have in the community?
- What ceremonies must be practiced when a husband dies?
- Is there wife inheritance? Are there other expectations for the widow?
- Do women know their rights?
- What is the basic system for resolving inheritance disputes?
- Formal court?
- Tribal or customary court?
- Are women able to access all enforcement institutions?
- What are the barriers women face in resolving disputes?
- Possible barriers include: costs associated with dispute resolution, location and hours of dispute resolution or enforcement bodies, comfort dealing with these systems, social barriers, complexity of paperwork requirements, etc.
- Where do women usually go when they have a inheritance land dispute? Why?
- Which dispute resolution actors know women’s rights? Which dispute resolution actors support women’s rights?
- How are inheritance disputes resolved by custom?
- Do both women and men bring inheritance complaints?
- Are there any customary barriers to women going to court, government offices, or informal dispute resolution bodies?
- Are daughters and sons both considered heirs? Do daughters and sons inherit land rights equally?
- If not, who usually inherits land—daughters or sons?
- Does birth order matter?
- For polygamous families, does order of marriage of the mothers affect inheritance?
- For those children who do not inherit land, do they inherit other property?
- Do unmarried women (single, divorced, or widowed) inherit land from their fathers if they are living at home?
- Does it matter if they are never married versus have had a relationship that ended?
- Does it matter if they are not living at home?