III. Customary Framework for Women’s Land and Property Rights in Uganda

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Introduction

Protection of women’s land rights in the formal law currently has limited impact: traditional norms and practices commonly work to impede women from realizing their formal rights to property. The payment of bride price is frequently practiced, and women are often viewed as purchased property and are not eligible to own property of their own.[37]  While there have been many advances in formal protections for women’s land rights, implementation of these provisions has been uneven at best, and many challenges remain for women’s land rights under the formal laws to be realized in practice.


Customary tenure is the most common form of land tenure in Uganda, and is estimated to cover 80% of the total land area of the country.  The Constitution recognizes customary tenure, which the Land Act defines as land that is governed by customs, rules, and regulations of the community.  The rules governing land vary among Uganda’s 56 customary groups, though similar characteristics can be found among many of the contemporary tenure regimes today.  This section provides a brief introduction to customary tenure framework for women’s property rights within the Acholi customary system of Northern Uganda. It is important to note that there is often significant variation in how customary rules are conceived and applied even within the same customary group; this overview does not aim to provide a definitive analysis of Acholi custom, but outlines the Acholi framework for women’s land rights.


Customary tenure predominates in Northern Uganda, where an estimated 95% of all land is held under custom.[38]  Prolonged civil conflict in the region weakened the infrastructure and capacity of the administrative and judicial institutions under the formal systems, and seriously disrupted the customary institutions in northern Uganda. The displacement of the majority of the population of the region interfered with the implementation of the land administration provisions of the Land Act and Constitution, which assigned a strong role to customary institutions in land governance.[39]

Legitimacy of Customary Tenure under the Formal Law

The Land Act 1998 officially recognizes customary tenure, and defines it as a system “providing for communal ownership and use of land…in perpetuity,” but also recognizes that subdivisions of customary land may be recognized as belonging to a person, a family, or a traditional institution.[40]  Thus, customary tenure is defined in such a way to leave open the possibility of individualized property. This characterization is in line with the Acholi concept of land ownership, in which land is vested with the clan, and is held in trust for future generations.[41]  Use rights, ownership, control, and transfers are all subject to the superior right of the family, group, clan or community. The clan elders decide who should be allocated land and for what purposes, and the clan leadership must approve any transfers of clan land (i.e. through sale or lease). Under this system, both men and women have use rights to land, subject to the approval of and long-term well-being of the clan.


The Land Act provides for the formalization of customary land rights, and in section 6 lays out the procedures by which “any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land.”


Under customary law, all land is vested in the clan and is held in trust for future generations. Traditionally, clan leaders – elder members of the clan, and almost exclusively men – make decisions about how, to whom, and for what purposes clan land is allocated. This stewardship concept is gradually giving way to match a more western concept of ownership, with (male) household heads increasingly conceiving of and disposing of household land as their own individual property.[42]  This trend is reinforced by the growing commodification of land, perhaps encouraged by the growing prominence of the formal tenure system across Uganda.[43]


This shift away from the traditional conception of customary land as being vested in the clan has significant implications for the rights of women, formerly protected by the functioning of the traditional system. This weakened custom will also likely impede the application and enforcement of formal protections explicitly extended to women’s land rights in the customary setting by the Land Act 1998 and Constitution 1995.

Acholi Land Tenure Structure

The Ker Kwaro Acholi – the highest level of customary leaders among the Acholi people – are in the process of recording their rules governing customary tenure in the form of the Principles, Practices, Rights and Responsibilities (PPRR).[44]


Under Acholi tenure rules, Acholi clan land falls into three categories: (1) arable land, (2) communal clan land, and (3) unallocated or unused land.


Arable land is apportioned, or “individualized” by the clan to a household head, normally at the time of marriage. The head of the household is almost always male. The household head is responsible for managing and protecting the land, while other family members have the right to use and access the land by consent from the household head.  Clan elders oversee the family clan land and ensure that family heads manage the land well, protecting the rights of all users of the land and the interests of future generations of the clan.  Traditionally, transactions in land were not permitted without sanction of the clan. However, as custodians of the land, today the clan may be informed to witness the sale, and have the right to approve or object to a sale based on the grounds for the sale.


Communal land is defined as “land over which more than one family has rights and which is managed by elected people chosen by the clan, on behalf of the clans.”[45]  Authority over communal clan land is vested in the clan or clans as an institution. Communal land is used as communal hunting grounds, but also includes forest and grazing areas, as well areas used for cultural practices and market places. Also, in times of need, parts of this communal clan land might be used to supplement individualized land. Decisions about who may use this land, and for what purposes, are made by the clan leadership.


Unallocated land is land that the head of the household keeps for his own personal use. When the household head dies, the land is managed by the customary heir who is appointed by the clan. The heir is in all cases a son, most often the eldest son who must have shown signs of responsibility. The heir is installed in a cultural ceremony by the clan, and is responsible for the management of this unallocated land. Unused land is land that cannot be used or inherited. This might be the case if, for example, there are no male children born to the household head. If this were to happen, the land is used by the relative with the next claim to the land, most often the brothers of the household head.

Enforcement of Customary Tenure

The customary institutions parallel the formal system of Local Council (LC) courts, created in 1988 to deal with land disputes by drawing on both formal and customary law. People can choose to bring their land disputes either to the LC courts or to the customary institutions (family head, with appeal through the clan structure to the district Jago (sub-County Chief) and on to the Rwot (Chief)), and can appeal from either forum to the District Land Tribunal.[46]  Currently, however, the District Land Tribunals are not functioning. According to the Land Act, decisions based on customary rules for each locality are to have the status of binding law as long as they are decided fairly, and are in accordance with formal and constitutional law.


There are no restrictions as to women’s right to access these parallel systems under the formal law. However, several barriers exist that can impede women’s access to these dispute resolution bodies in practice. Access to the formal system is costly and can be intimidating to women, who tend to be less educated than men. Additionally, cases before the formal system are costly to pursue due to court fees and legal fees for lawyers. The venues themselves may not be physically accessible to a woman if they are far away from her village and she lacks transport.


Decisions made by customary institutions are usually not upheld or used by the formal institutions, and any agreements made with respect to such decisions are not currently considered by the formal courts. The harmonization of the two systems would improve tenure security and improve land dispute resolution. Formal institutions should recognize decisions from customary institutions to assist in further court proceedings and improve the efficiency and fairness of land dispute resolution.


Though generally more accessible in terms of their location, customary dispute resolution bodies pose other challenges to women. Clan leaders often hear and settle disputes during regular clan meetings, at which male clan members are commonly the only ones allowed to be present or speak. To have her case heard, a woman may have to enlist the support of a male relative, who can then carry her cause to the clan on her behalf. Additionally, women’s protections under the formal law may not be realized at the local level if her customary leaders are unaware of or in opposition to women’s rights.

Women’s Land Rights under Custom

Under Acholi customary rules, women’s rights to land are limited use rights that depend on their relationships with male family members (usually the father or husband), while men tend to have rights to land by birthright. Women’s rights are secondary to those of men, and can change depending on the occurrence or non-occurrence of key events, such as marriage, separation, or the death of a spouse or family member. Compared to their male relatives, women generally have access to less land, have fewer rights to the land they can access, and their land rights are less secure. 

Marital Practices

Under the Acholi tenure system, everyone who is born or married into a family has land rights: men typically acquire land from their family when they marry, or through inheritance upon the death of their fathers or male relatives, while women gain access to land through their relationship to men – typically a father or spouse. Thus, as in much of Uganda, a woman or girl’s rights to property in Acholiland is determined by her relationship to a male.  At different stages in her life, or when life events occur, her property rights change. If that relationship is disrupted, damaged, informal, or tenuous, her access to land is jeopardized.


Unmarried women


Acholi custom provides that an unmarried girl living with her natal family, can access land through her father, who is normally the household head. Typically women will use such land to assist with cultivation of subsistence food crops. Her right to use this land lasts as long as she remains unmarried. However, whereas male family members are allocated land upon marriage, a female loses her right to natal land when she marries. This is the basis for the Acholi assumption that girls are “temporary” and are therefore not candidates for permanent rights to customary land. Instead, her rights to land are considered impermanent, and her continued presence on the individual family land can cause disputes with her brothers, who would otherwise be allocated the land she is using. The longer a woman stays unmarried, the more pressure her brothers are likely to exert on her to move off the land.


The continuing practice of men paying a bride price to a woman’s family in exchange for the right to marry makes a girl child ‘valuable’ to the family to the extent that she will someday get married and her family will receive a bride price.  But because she will move away and settle on her husband’s land, when land is allocated to other family members, the unmarried girl does not receive any, or receives a smaller or inferior plot, as it is assumed she will eventually marry and receive land rights from her husband.[47]


Widows


Normally a widow becomes the head of the household on the death of her husband. She then has the responsibility of managing the land and allocating it to male children when they become adults and get married. After her husband’s death, a widow may choose to continue to live in her marital home without remarrying, return to her maiden home, or pick an inheritor within her husband’s family or from outside the family. Traditionally, Acholi custom protects widows through the practice of widow inheritance, or levirate. The inheritor – usually a brother or uncle of the deceased – is supposed to help the widow by providing work, protection, and support for her children.


A widow will most often choose not to return to her maiden home. Acholi tenure rules provide that her rights to land are in the marital home; they do not provide a right of return for widows, who are expected to remain on their husbands’ land. Traditionally, it was assumed that men and women would live to old age on the husband’s family land, and a upon her husband’s death, a widow would remain on the land where she had spent her adult life. However, women’s rights to remain on the marital property are increasingly challenged in practice. A key driver of this trend may be the large number of young widows due to HIV and the conflict. The widow’s right to remain on their husband’s land thus has vastly different implications for the future use of that land. Family members of the deceased husband may not respect a woman’s right to remain on the matrimonial land. This abuse of customary rules is today increasingly common, and the traditional structures for enforcing customary rules are often ineffective to stop it. In addition, where a woman’s husband died of HIV, or if the man interested in “inheriting her” has HIV, a widow is vulnerable to being pushed off the land. Although customary laws allow a widow to choose an inheritor from outside the clan, such a move may turn the clan against the widow and weaken her land rights.


Divorced women


The practice of paying bride price contributes to women’s vulnerability upon divorce, since women are regarded as part of the man’s acquired property. A divorced woman is expected to return to her natal land, and in order to be able to remarry, she must repay the bride price to her ex-husband’s family. Unlike widows, a divorced woman is instead expected to return home and get land allocation from her father or mother if still alive, or from the brother if her parents are deceased. Traditionally, this allocation would come from unallocated land set aside for such events. Customary rules require that a divorced woman or her family repay the bride price to the husband’s family in order to formalize the divorce. These factors contribute to the fact that many women are not welcomed home in the event that they divorce, particularly if they bring their children with them.


Cohabitating women


A cohabitating woman is especially vulnerable under customary rules, under which a cohabitating woman is not allocated any rights to her partner’s land. If her relationship falls apart, a cohabitating woman will be forced to return to her natal home with her children, where she may find that her rights to natal land are denied (albeit wrongly) by her brothers or other family members. Cohabitation is an increasingly common practice in Uganda, and presents a serious challenge to women’s land tenure security.


Women in Polygamous Unions


A married woman may also become vulnerable if her husband takes a second wife. To provide land for the new wife, a husband will generally take land from his first wife’s parcel.[48]

Under Islamic law, widows are allocated one-eighth of their deceased husband’s property. In the case of polygamous marriages, all widows will share this one-eighth allocation with their co-wives. Thus, in a situation where there are two wives, each wife will be able to claim a right to one-sixteenth of the property.[49]

Similarly, under the Succession Amendment Decree 22/72, where a customary husband dies intestate, all surviving wives are to divide amongst themselves the allocation for his surviving spouses.[50]  Under section 27 of the Succession (Amendment) Act, upon the death of an intestate husband, “each wife will inherit his share in the matrimonial home that they shared together, and the household property therein, and the surrounding residential land.” The remaining property is to be divided among the surviving wives according to when the property in question was acquired, such that the first wife inherits the intestate’s share of any property that becomes matrimonial property prior to the intestate’s second marriage, and so on for each subsequent marriage.[51]