Back to Index

The land issue in Zimbabwe
Women's Land and Water Rights in Southern Africa
2003

The National Land Policy Framework paper summarises the land problem in Zimbabwe as follows:

• Unequal and inequitable land distribution
• Insecurity of land tenure
• Unsustainable and sub-optimal land use

This was as a result of the fact that the colonial regime expropriated the best quality land for 'white commercial farmers and restricted and resettled the black African peasant farmers into marginal areas' According to this paper this situation was a consequence of racial discrimination entrenched in legal and administrative frameworks.

Therefore the proposed National Land Policy seeks to address these issues. Its strategic objectives are to:

• Ensure equitable and socially just access to land
• Democratise land tenure systems and ensure security of tenure for all forms of holdings
• To provide for participatory processes of management in the use and of land
• To promote sustainable and efficient use and management of land.

Both the statement of the problem and the strategic objectives of the national land policy do not specifically highlight issues of gender in land matters. It can only be assumed that gender issues are subsumed in the unequal and inequitable dimension of the land problem. Yet it is an established fact that women's rights to ownership and control of and access to land are inferior to those of men especially in communal and customary land tenure systems. It is therefore proposed that the final land policy should recognise gender disparities in all matters relating to land.

LAND ADMINISTRATIVE REFORM
The document points out that the institutional and administrative framework responsible for land administration is too centralised and undemocratic thus calling for its reform based on the following democratic principles of equity, efficiency, accountability, transparency, legitimacy and participation.
To these principles should be added gender sensitivity, respect for human rights, gender equality and self-determination to the maximum extent possible. The added concepts are derived from human rights regional and international instruments that Zimbabwe has signed, acceded to and/or ratified. This will demonstrate the country's commitment to gender equality and equity and the promotion and protection of and respect for human rights and women's rights in particular.

Beneficiaries of Land Redistribution
The framework paper on national land policy recognises the gender disparities regarding the land reform programme. It states that the demand for land by women has hardly been catered for. Some provision for widows and other single women has been made under statutes dealing with intestate succession through the Administration of Deceased Estates Act, which allow for women and children to inherit from a deceased husband in the absence of a will. A few elite women have accessed land in their own right. This situation is not desirable and calls for serious gender considerations including the provision for a quota system that reflects the composition to the population in terms of gender. In Zimbabwe women constitute close to 52% of the total population and the national land policy and the land reform programme must take full cognisance of this. A 20%-30% quota provision for women to access land is not adequate considering the current situation where few women own land in their own right.

Therefore a clear and definitive policy statement backed by both legal and frameworks should be put in place to enhance women's opportunities to access and own land in their own right.

THE PROPOSED NATIONAL LAND POLICY

Basic Principles of national land policy

These principles do acknowledge the need to take " into account of the need to address the problems of gender inequity." Thus putting issues of gender on the pedestal.

LAND TENURE REGIMES

Customary Tenure
The proposed national land policy acknowledges the need to review customary tenure regimes in order to " fully recognise and protect the rights of women in equality with men". This is a welcome position as it recognises the inferior position of women in land matters, especially under customary tenure regimes where land rights are accorded to heads of households who are in the majority of cases males. Legal and administrative provisions must be made to strengthen this position.

CUSTOMARY TITLE
As is the case above it is important that women's rights with respect to customary land rights are protected at law according to the provision of the land policy to safeguard their rights and interests as these tend to be marginalized under customary land tenure regimes. The policy document in paragraph 166 states "villagers within the village will hold land of the VA under applicable customary. Every member claiming customary rights in the village will apply to the VLR for a Certificate of Customary Title (CCT. The rights of the applicant (male or female or head of household, married or single, divorced, widowed as the case may be) will be determined by the VLR in an opening hearing. Once the rights are determined, these shall be recorded in the CCT together with boundaries. A simple certificate of title shall be issued in the name of both spouses in the case of a married couple" In essence it is assumed under this provision that women's rights to land in villages are provided for. Yet customary land tenure regimes are known to discriminate against women. It is important to state explicitly, that "women's land rights under customary law are equal to those of men and are subject to the same restrictions and conditions" to eliminate any ambiguities in both the policy and legal, regulatory and administrative frameworks.

INHERITANCE
The proposed policy framework is applauded for not only acknowledging problems related to property inheritance for women but also for proposing that efforts must be made to "secure complete equality of access and control over customary lands by men and women in relation to inheritance of land rights. Its recommendation that the Certificate to Customary Title be granted in the name of both spouses to protect the interests of a surviving spouse is endorsed and legal provisions to that effect must be put in place. In fact women's rights to land in both statutory and customary laws should be enshrined in the constitution under the Bill of rights to guarantee its recognition in any laws, regulations and administrative systems.

LAND TENURE IN RESETTLEMENT AREAS

Prescribed tenures-leasehold and Group Title
The position for both single and married women is provided for in the proposed policy. As in the customary tenure regime legal and administrative provisions need to be made to enforce this policy provision.

LAND ALLOCATION TO BENEFICIARIES
Women have been identified as a vulnerable group who require special consideration in the redistribution and allocation of land together with orphans, etc. as part of a strategy to enhance greater " gender sensitivity in the design of land demand criteria" again this a welcome feature of the proposed land policy.

COMPONENTS OF A NEW INSTITUTIONAL FRAMEWORK FOR LAND
Although the aims of the proposed institutional framework embrace equity and justice principles they do not provide for gender mainstreaming and sensitive. It is important that issues of gender disparities on land matters are dealt with even at institutional levels, as women are conspicuous by their absence in decision-making levels. Their limited participation in decision-making levels continues to foster gender disparities in this important economic sector. Affirmative action needs to be taken to ensure the presence of women in decision -making positions in land matters.

LEGAL FRAMEWORK

Constitutional Matters
It is imperative that a legal framework anchored on a constitution that fully confers the right to equality before the law and the right to equal protection and benefit of the law is put in place to protect both men and women but especially women's rights to land and immovable property. Equality must include the full and equal enjoyment of all rights and freedoms to protect women against customary, cultural and traditional values and practices that impinge on their enjoyment of rights. In this regard therefore another principle must be added to those in Item 5.6.1(260) as follows:

'The principle of land redistribution as a means of correcting and rectifying the historical and current gender based injustices of present land ownership and control patterns.

In order to give gender disparities in land matters prominence.

The constitutional provisions for gender equality in land policy and reform is premised on the fact that Zimbabwe has abolished discrimination on the basis of gender in the Bill of Rights of its current constitution. It has also sighed the SADC Gender Declaration of 1997. It signed and ratified the Convention the Elimination of All Forms of Discrimination Against Women whose Articles 14 and 15 emphasise the need to promote and protect women's rights in land and other economic resources. It has agreed to implement the Beijing Platform of Action, which requires governments to undertake measures to enhance women's economic empowerment. All of these testify to the need for the principle of gender equality and equity in land issues to be enshrined in the constitution to give absolute protection of women and men's rights in land matters.

The current constitution of Zimbabwe in section 23(1) and (2) prohibits discrimination on the grounds of gender among others. This is a welcome provision in that it provides for gender equality and equity between men and women before the law. Therefore with respect to land distribution and allocation women and men must have equal and equitable access to, ownership and control of land and immovable property in any tenure regime. However, this position is contradicted by the provisions of section 23(3) (a) (b) and (f), which sanctions discriminatory customary law and practices in relation to:

• Adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.
• The application of customary law between Africans or an African and a non-African if the parties have agreed
• Laws, which accord rights and privileges relating to communal land to tribes people, to the exclusion of others.

In effect the constitution of Zimbabwe does not protect more than 50% of its population against customary law discrimination because customary law relegates women's rights in general and women's rights to land and property in communal areas in particular to an inferior position to that of men. The national land policy framework recognises women's weak position regarding land rights in customary land tenure regimes and calls for the modernisation of customary law to provide for equality and equity in land rights between men and women. This therefore calls for an amendment of section 23 of the constitution in order to create synergy and consistency between the constitution and other laws that have been passed by Parliament over the years to protect women's rights. The constitution as the supreme law of the country must be seen to uphold the principle of equality and equity between women and men in order to create legal, administrative, regulatory frameworks that eliminate gender discrimination.

In essence section 23(3) (a) (b) and (f) must be abolished and replaced by a section that explicitly provides for the protection of women's rights under both statutory and customary law regimes including matters of personal law. Women's rights under customary law tenure must also be guaranteed by requiring that CCT are issued in women's names in the case of single, divorced and widowed women. In the case of married people the CCT must be issued in both names of the spouses. This is recommended in the national land policy framework paper and endorsed by this review.

CONCLUSION
Although the proposed national land policy has made some provision for gender equality and equity, it is recommended in this review that the entire national land policy be premised and anchored on gender equality and equity to ensure that every aspect of the land distribution land tenure and land use plans and programmes ensuing from such policy address current gender disparities and injustices by enhancing women's capacity to access, own and control land. Further both the institutional and legal frameworks must be reviewed in such a way that issues of gender equality and equity permeate every aspect of the land reform policy and programmes. Women's position on land matters requires a commitment by government to the promotion and protection of women's rights through its institutions and legal frameworks.

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP