IV. Analyzing the Customary Law Framework

Page Contents

This page will highlight a few areas for analysis.

To jump to one of the sections on this page use the below links:

Legitimacy

  • Does the customary land governance system recognize women’s rights to own land?
  • Under what circumstances? (What if a woman is married, single, divorced, widowed, remarried, has children out of wedlock or children from a former marriage?)
  • What is the nature and scope of this right? Is it different from the rights of similarly situated men?
  • Does the customary land governance system recognize women’s rights to make land-related decisions?
  • Under what circumstances? (What if a woman is married, single, divorced, widowed, remarried, has children out of wedlock or children from a former marriage?)
  • What is the nature and scope of this right? Is it different from the rights of similarly situated men?
  • Does the customary land governance system recognize women’s rights to use land?
  • Under what circumstances? (What if a woman is married, single, divorced, widowed, remarried, has children out of wedlock or children from a former marriage?)
  • What is the nature and scope of this right? Is it different from the rights of similarly situated men?
  • Does the customary land governance system recognize women’s rights to exercise decisions over land and income from the land?
  • Under what circumstances? (What if a woman is married, single, divorced, widowed, remarried, has children out of wedlock or children from a former marriage?)
  • What is the nature and scope of this right? Is it different from the rights of similarly situated men?
  • *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?
  • *Are there any restrictions on polygamy (e.g. number of wives, religion practiced, etc.)?
  • Who decides when and whom a person should marry?
  • Is dowry or brideprice practiced and what are the property rights related implications of those practices?
  • Who receives dowry/brideprice?
  • What is the common value of bride price? Does it ever include land?
  • Who determines the amount?
  • Do men bring land and/or housing or movable propertyto a new marriage? 
  • Are men allocated land by their families upon marriage?  Are women?
  • How are land rights allocated within marriage?
  • When a couple marries, do they keep separate control over the land they brought to the marriage?
  • If new land is purchased during marriage, who does it belong to?

Vulnerability

  • At what age do girls customarily marry?
  • Does it make a difference whether they are rich or poor?
  • What must occur for a marriage to be considered finalized under customary law? (i.e. brideprice must be paid, dowry must be given, etc.)
  • Are there marriages that are not solemnized by customary rights?  Are there property rights implications for these kinds of relationships?
  • What happens when marriage ends because of separation or divorce?
  • Can a women return to her parents’ home?  Can she remain on her husband's land?
  • Does it matter whether or not she has children?
  • Does it matter whether the children are girls or boys?
  • Their age?  Are the children still considered part of the husband's tribe/clan?
  • If she has to return to parent's home, is land allocated to her there?  By whom?
  • Do women who leave their husbands receive any land from his family?
  • Do they receive any other property or assets? 
  • Who decides this (e.g. husband, judge, tribal leader, etc.)?
  • Is this decision appealable?
  • What is the process a woman has to go through to receive land if she leaves her husband? What about with other property/assets?
  • Does this differ if she is the first wife, the second wife, or a later wife?
  • Does it change if she has children? Sons? Daughters only?
  • Do any answers change if the marriage was not solemnized under customary rites?

Enforcement

  • Do women know their rights under customary law?
  • Who do women go to first when they have a land related dispute on customary land?
  • What is the basic system for resolving disputes on customary land?
  • Formal court?  Which level?
  • Tribal or customary court?
  • Elders?
  • Are women able to access all enforcement institutions?
  • What are the barriers women face in resolving disputes on customary land? 
  • 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 first when they have a land dispute?  Are there informal steps that she might take first, even before going to local authorities or traditional dispute resolution actors?
  • Is it likely that a dispute will be resolved in favor of a woman?
  • What are some of the social costs that women may face in terms of seeking to enforce rights to customary land?
  • Which dispute resolution actors know and/or support women’s rights?