Customary Framework for Women’s Property Rights in Northern Uganda
Generally, under most Northern Ugandan customary tenure systems, both the men and women have use rights to land. They can cultivate the land and produce crops for their livelihoods. However, the right to dispose of land by both women and men is subject to the approval the clan, even though a family may regard itself as “owners” of the land. Use rights, ownership, control, and transfers are all subject to the superior right of the family, group, clan or community. The transfer of land at death is done according to the customary laws of inheritance which are patrilineal.
Land is regarded as men’s property. Usually land rights are bequeathed to a male heir, and the heir has the right to decide the use of the land. Also, because husbands pay bride price, women are regarded as part of the man’s acquired property and cannot inherit land (thus the oft-cited Ugandan adage, “property cannot own property”). In the unlikely case that a female inherits from her father, it is only use rights that are inherited; such use lasts only for as long as they remain unmarried and it cannot devolve to her heirs. Generally, women do not have the right to sell land unless they purchased that land in their own names, which is a rarity.
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.
Under customary tenure, all land is traditionally regarded as clan land, and 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. A male is always the head of the household. The household head is given responsibility for managing and protecting the land, while other members of the family – wife and children – 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 today, the clan is simply informed of a pending transaction and, in the event of a sale, the clan has the right of first refusal.
Authority over communal clan land is vested in the clan as an institution. Communal land is used as communal hunting grounds, but also includes forest and grazing areas. Also, in times of need, parts of this communal clan land might be used to supplement individualized land.
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. The heir 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.
Unmarried female without children
An unmarried woman or girl who lives with her natal family can use access her family land. She uses this land mostly to assist with cultivation of food products. Her right to use this land lasts as long as she remains unmarried. The expectation is that a woman will marry at some time; if she never not marries, the head of the family will allocate some family land to her for her use.
However, an unmarried woman’s rights to land allocated by her birth family are often insecure. Because an unmarried woman is regarded as being in “transition” (on the way to being married), 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 she stays unmarried, the more pressure from her brothers to leave. And her control over the use of the land, and its proceeds, may be assumed by her brothers.
In addition, certain factors may mean that an unmarried woman will never be allocated land. In circumstances IDP return, where the perceived commercial value of land is high and a woman or girl has lost her parents to conflict, or was formerly abducted and thus considered unlikely to be married, it is also unlikely that she will be allocated land by her brothers. Indeed, she may not even seek land from her family simply to avoid the conflict and stress that it may cause.
Unmarried woman with children
If a woman or girl has a child out of wedlock she uses land allocated her by her natal family to care for her child. If the clan of the father of the child is known, his clan is expected to pay a “penalty” to her family in place of the bride price or the boy is expected to marry the girl and pay the bride price.
If a woman or girl has child with a man with whom she has co-habited but for whom a customary marriage ceremony was not performed, while her “husband” is alive, she may use his land. However, if her “husband” dies she is often sent away from the land, because the relationship was not sanctioned by custom. In this case, she may return to her birth family and seek land to use from them. In this case she may temporarily receive land from her birth family (her father or brother) but she is not expected to stay, her children will have no right to that land because they are not considered part of the clan, and she often has little control over the use of the land and or its proceeds.
If the child of the unmarried girl is from a rebel soldier she may face serious opposition to any support from her birth family. If she has escaped her abductor/father of the child there has been no bride price paid and little chance of remarriage since she had been “married” to the enemy. In other circumstances she would go the clan of the father of the child, since the child would be allocated land by that clan, but in this case the clan may be unknown or unsupportive.
In the case of orphans, a guardian – most often the uncle of the children – is appointed by the clan to manage the individualized land in “trust” for the children. Girl orphans are considered valuable to the family because she will fetch a bride price when she is married. However, if all the orphans are girls, then the clan will appoint a boy cousin as head of the family for the purpose of managing the land. In some cases, if there are not male children, the eldest girl may be asked not to marry and is appointed head.
As Internally Displaced Persons (IDP) returned to their family land, orphans are especially susceptible to border encroachment by other male clan members. Since the family has spent many years in IDP camps, the orphans may have never seen their family land; it is the orphans’ parents who know the boundaries of their land which often identified by hills, trees, and other natural demarcators which may have shifted or degraded over time. This means that the orphans must rely on the benevolence of their uncles and other family members to ensure their rights to their family land.
A married woman or girl is given clan land to use by her new husband’s father at the time of marriage. Her family has received bride price for her, and she is expected not to return to her natal family, otherwise they will have to pay back the bride price.
A woman who is married to a man who is orphaned, are given land to use by her new husband’s uncle. However, land given by an uncle is often subject to greater limits on control and use than land given by a father, and can sometimes be given only temporarily.
Widow, abandoned woman, or separated/divorced girl
Normally a widow whose marriage was sanctioned by custom, 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. Clan elders appoint an “inheritor” who is required to support her and protect her and the land from trespassers and for whom she is expected to be a wife. This is sometimes referred to as “bride inheritance” or “levirate.” She can choose to not accept the choice of inheritor and select one from the clan herself. If she does not choose one from the clan, she must return to her natal family and seek land from them. If she selects an inheritor from the clan, that inheritor does not gain rights to the land allocated to her children through her deceased husband. If she returns to her natal family she must rely on her father or other male family members to allocate her some land. Also, if she returns to her family, the husband’s clan is expected to pay a sum to keep the children who are over the age of seven years.
A widow whose marriage was never sanctioned by custom, is often forced to leave the land with her children. In this case she may temporarily receive land from her birth family (her father or brother) but she is not expected to stay, her children will have no right to that land because they are not considered part of the clan, and she often has little control over the use of the land or its proceeds.
An abandoned or divorced woman may return to her family and be allocated land to use. However, she is regarded as being in transition and is regarded as a burden to the family. In the case of divorce, the bride price is expected to be returned to the family of her husband’s clan, which her natal family may be reluctant to do. If she returns with children, these children are regarded as members of her husband’s clan and are not allocated land by her natal family.
Customs in Transition
Customs change to accommodate differing circumstances; this is true in Acholiland where conflict meant that many people were displaced, some for up to 20 years. The displacement removed the Acholi clans from their land and they lived in camps for security and protection. The people in the camps suffered through bouts of violence, many deaths from the violence and disease, the abduction of their children, and a reliance on relief and handouts for food. With no land to cultivate, camp dwellers became idle and many developed significant problems of alcohol abuse. Sexual assault was common and the prevalence of HIVAIDs is high. Since clan influence is largely related to a perception of common land resources, camp life – where people live in make-shift huts in very close proximity to one another away from their land – impacted clan influence on daily life. In some cases, camp “commanders” had more sway in camps than did clan elders.
Furthermore, during displacement, the value of land as a commercial commodity increased. Acholi land before the war had cultural, familial, and also spiritual value; but as commercial interest in the vast areas of now uninhabited and uncultivated land increased, so too did the perceived value of land as an asset amongst some clan members. Moreover, during the years that the Acholi people lived in IDP camps, the Acholi land regenerated to a state which makes it a valuable ecological zone. In addition, governmental infrastructure broke down in northern Uganda because of the conflict, and many of the functions of government related to land are not functioning as anticipated. To some degree, conflict and camp realities have left a power and leadership vacuum on which some clan insiders and clan outsiders have sought to capitalize for their own personal gain.
All of these factors have altered the way land is perceived, managed, accessed, owned, and allocated during the return process. While there is some attempt to re-vitalize traditional clan structures, success is reliant on the relative ‘strength’ or ‘weakness’ of the clan leadership.
Women and girls, whose security of access and use of land has traditionally been contingent on these customs which have been weakened by the conflict and camp life, are among the most vulnerable to dispossession and landlessness or very insecure use rights.
Legal Framework for Women’s Property Rights in Uganda
Uganda’s legal and regulatory system for land and property rights is pluralist. That is, both the statutory and customary (and, in some places, Sharia) laws operate at the same time. The formal legal framework for property rights for girls in Uganda is based on the 1995 Constitution, the 1998 Land Act, the 2004 and 2010 Amendment to the Land Act and the Family and Succession laws. Uganda has recently undertaken an ambitious formulation of a new national land policy. As at September 14, 2013, it had been signed by Cabinet and gazetted, as yet it has not been implemented. Implementation will require the amendment or replacement of many of the laws and provisions discussed in this section.
The Constitution of Uganda (1995) is the supreme law of the land and is binding on all persons and authorities; however, it does not create directly enforceable rights. According to the Constitution, all land in Uganda is vested in the citizens in one of four tenure systems: customary, freehold, mailo and leasehold. The Constitution also sets out broad principles for both women and children; equal rights for women, no discrimination based on custom and special protection for women and orphans. It:
- Provides for the right of every person to own property.
- Guarantees women equal rights with men.
- Provides special help/protection for mothers and women because of previous historical discrimination against women.
- Prohibits any customary laws, traditions, or customs that discriminate against women.
- Gives children the right to know and be cared for by their parents or guardians
- Gives the right or special protection to orphans.
The Land Act of 1998 provides a legal framework for governing land tenure, land administration and the settlement of land disputes. The Land Act seeks to decentralise land administration and management, strengthen security of tenure within the pluralist tenure system and redress historical imbalances in relation to land ownership. The Land Act also provides for communal land ownership and tenancy by occupancy.
The Land Act contains some protections for the land rights of women and children. Section 28 requires the safeguarding of the rights of women, minors, and the disabled in decisions that relate to customary land. Section 40 contains a limited consent requirement from spouses and children before final transfer of rights to the land (e.g. sale, exchange, mortgage, lease, inter vivos gift). For spouses, this consent is only required for land on which the family resides and any plots attached to the residence that is used for sustenance by the consenting spouse. It is not required for plots that may be far from the residence. For children, consent is only required for the transfer of residential land.
The consent provisions are only of limited usefulness to protecting women and children’s rights to land. For one matter the law only covers spouses who are legally married. Many rural women and girls may consider themselves married yet have not legalised the union, meaning their consent is not technically required. Second, few women know the law and the obligation that their consent be obtained before a transaction in land and thus the transactions take place without her consent. Moreover, even if a woman is aware of the obligation for her consent to a transaction, her ability to enforce the consent is limited because she would have to speak out against her husband or father, through whom her access to land was granted in the first place. Finally, “consent” is not a right held by the person who must give consent, but rather an obligation on the person making the transaction in land, leaving the decision to obtain consent to the male who already holds power in the relationship.
Inheritance and Division of Property
The succession laws recognize a women’s right to inherit from their husbands and fathers. The Succession Act and the Succession (Amendment) Decree, No. 22 of 1972 provides that if a man dies intestate, all of his property (except his residential holding) is distributed as follows:
- Lineal descendants receive 75%, shared equally.
- Wives receive 15% of the estate, shared equally.
- Dependant relative(s) receive 9%, shared equally.
- Customary heir receives 1%. (Sec. 28(1)(a))
If the deceased has no lineal descendants, the wives’ share rises to 50% and the dependent relatives to 49%. If no lineal descendants, and either a wife or a dependant relatives, the wife/dependant relatives receive 99%.
In some respects, the succession laws are progressive in that they do not distinguish between daughters and sons among the lineal descendants and dependent relative categories. Yet, directly and indirectly, women’s inheritance rights in the succession laws are not equal with those of men. For instance, the law has a stated male bias in certain circumstances; a “legal heir” is defined as a living relative nearest in degree to the intestate deceased, with a preference for males over females and elders over youth. In addition, by deferring to customs, the succession law indirectly bias in favor of males in the selection of the “customary heir.” The law defines the customary heir as the person recognized by the rights and customs of the tribe or community of the deceased as being the customary heir. The rights and customs of all Ugandan tribes would only choose a male as customary heir, thus, though it on its face the laws seem gender neutral, in practice it is not. Moreover, by using the term “wife” rather than “spouse,” the laws presuppose that a woman will not own property.
In addition, only certain women benefit from the succession law. Although the law permits wives to inherit from their husbands, the law’s definition of a “wife” limits its application to those who are legally married according to the laws in Uganda. In practice, many women in Uganda are not legally married, even under the broad provisions of the Customary Marriage Act, because it requires that the marriage be “registered” which involves an administrative process that is not feasible for the rural poor or the young. This means that those “informally” married wives share in the dependent relatives’ 9%, since a “dependent relative” is defined as, wife or husband, among others, who are dependant on the deceased.
Similarly, the seemingly positive provisions which permit the wife and children to remain in the residential home after the death of her spouse are also problematic. First, as above, these provisions only apply to legally married widows and thus the majority of women who are informally married are not protected by it. Second, even for those women who are legally married and may remain on the residential land, their ability to use the land as an asset is severely limited. For instance, a widow is not permitted to assign, lease, or build on the premises without consent of the owner. The occupancy terminates if the widow dies or remarries or if she fails to occupy the home for a period of six months and the widow does not have the right to sell the land.
An unsuccessful attempt was made for legislative redress for at least some of gender imbalance by permitting co-ownership of property between spouses. This would mean that all property acquired during the marriage would be co-owned by the spouses. However, opposition to such a law was so great that the prevailing view among scholars and practitioners is that a spousal co-ownership provision is a lost cause in Uganda.
The term husband is used in quotations here, since in local terms, people consider a couple who are co-habiting, especially if they have children, as husband and wife, even though they may have not undertaken the customary, religious, or legal formalities.
In accordance with the Constitution, there are four types of tenure: customary, freehold, leasehold, and mailo. Customary tenure is the most common. It applies to land that has not been registered and is regulated by local customary rules which must otherwise align with the Land Act. It provides for communal as well as individual occupation, use and ownership of land according to the customs and rules of the community. Customary tenure is held in perpetuity and maybe converted to freehold.
With freehold tenure the landholder is registered as the owner, and the title is absolute, in perpetuity. The owner may transfer any interest in the land at his/her discretion. Leasehold tenure is a land right that is created either by contract or by operation of law. The right is granted for a specific period of time, which is often renewable, and is free from disturbance from the owner. The lessee has exclusive possession of the land. Leasehold may involve the payment of rent or a premium. It may be given on mailo land and may be changed to freehold if certain conditions are met. The leaseholder may sub-let, mortgage, pledge or otherwise dispose of the right to the property, but only for as long as the right exists.
Mailo tenure is land that was formally acquired under the 1900 Buganda Agreement. This system is common in Buganda, Ankole and Toro areas. The mail owner is registered and in most cases has title. The land is owned in perpetuity, and the owner has the right to transfer any interest in the land, but has the obligation to respect the customary or statutory rights of the bona fide or lawful occupant of the land and his/her successors.
Five types of marriages are recognized in Uganda: civil, Christian, Hindu, Muslim and customary. Marriage must be monogamous if contracted under the Marriage Act of 1903 or under the Hindu Marriage and Divorce Act of 1962. However, the Customary Marriages Decree of 1972 and Islamic Law both permit polygamous marriages.