IV. Analyzing the Customary Law Framework
Page Contents
This page will highlight a few areas for analysis.
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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 the ethnic or tribal group matrilineal or patrilineal?
- Is the ethnic or tribal group matrilocal or patrilocal?
- *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?
- Does the age of marriage influence the dowry or brideprice amount?
- 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 her family have to return the brideprice?
- 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?