Know your land rights

One of the national objectives as stipulated in the constitution includes women’s rights to access land. “Land as a fixed natural resource is the basis of all human activity. While it is possible for mankind to survive without other forms of property, it is not possible for human race to survive without land. Land must therefore be treated as a special form of property.” The Zimbabwean Constitution of 2013 now specifically provides for the right to land.

Constitutional provisions focusing on women’s land access

Women’s access to agricultural land in Zimbabwe is enshrined in the provisions of 2013 Constitution though in reality access remains shrouded in complexities. The constitution stipulates that every person, thus including women, has a broad range of fundamental (basic) land rights, subject to a law on land reform. Specifically, it states that “Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.”(Section 71 [2]).

The Constitution provides multiple provisions that are intended to improve women’s rights to land in Zimbabwe. Some of these provisions speak directly to women’s access to agricultural land. For example Section 17 1(c) of the Constitution states that “the state and all institutions and agencies of Government at every level must take practical measures to ensure that women have access to resources, including land and on the basis of equality with men.” This is further outlined in Section 289 that sets aside the following principles for agricultural land such as: “(f) no person may be deprived arbitrarily of their right to use and occupy agricultural land.

Section 26(d) of the new Constitution provides for the protection of spouses in the event of the dissolution of a marriage. It can be argued that this protection extends to women in unregistered customary law unions because the definition of spouse in this context.

Section 80(3) provides that all laws, customs, traditions and cultural practices that infringe the rights of women conferred by the Constitution are void to the extent of the infringement. The Constitution is the supreme law of the nation and “all laws and any law, practice, custom or conduct inconsistent with it is invalid to the extent of that inconsistency…” This is a starting point of advocacy work especially on combating the continued customary law practices as they relate to land in Zimbabwe.

Section 296 talks about the appointment of Zimbabwe Land Commission, whilst 297 gives a rundown of their function.

 

Types of marriages

Our experience of working with women has shown that due to some cultural norms and practices that perpetuate women’s subordination, women’s access to land, in marriages, after divorce or after the death of the husband is still a challenge.

Some families still prefer to have the land inherited by the sons of the deceased at the exclusion of the widow. The other challenge has been that despite being awarded the land, relatives of the husband sometimes make living conditions for the woman a living hell to such an extent that she may just give up in the end.

Some women that are brave may end up resorting to obtaining a protection order so as to protect themselves. We are here to discuss women’s right to land in particular the land that was acquired under the land reform programme.( Resettlement).

One of the national objectives as stipulated in the Constitution includes women’s rights to access land. Section 17 1(c) of the Constitution states that “ the state and all institutions and agencies of Government at every level must take practical measures to ensure that women have access to resources, including land and on the basis of equality with men.”

Statutory instrument 53/ 2014 on Agricultural Land Settlement (Permit Terms and Conditions) Regulations, gives effect to the provisions of the Constitution by defining spouse rights when it comes to land acquired under the resettlement programme. SI 53 of 2014 protects women’s right to land by making provision for joint ownership.

Section 10 of the SI stipulates that married people shall have joint and equal undivided ownership of land. Similarly wives in a polygamous marriage are registered as joint owners and shall have an equal share.

In the event that a man has one wife and marries another one after acquiring the land, he has an option to add the new wife as a joint owner of the land subject to the first wife’s consent.

It is important to note that this provision applies to those that are in potentially polygamous marriages or unions. Those in monogamous marriages are not allowed to add their small houses or girlfriends as joint owners of the land because the type of marriage they enter does not recognise multiple spouses.

Can a spouse inherit land acquired under the redistribution programme?

Section 13

In the case of death, the surviving spouse has the right to inherit the share of the deceased and assume full ownership of the land. That surviving spouse succeeds to become a primary permit holder in the event that she is not a signatory to the land in the first place. She then assumes the responsibility of fulfilling all the conditions of the permit.

In the event that a man who was in a polygamous relationship passes on, the surviving spouses inherit the land.

The number of equal joint and undivided shares that the parties have is reduced by one. In simpler terms what this means if Mr X had two wives, during his lifetime each wife and him would be having a third of the land because it’s divided in equal shares amongst Mr X and his two wives. After death because his third share is reduced, it means the wives have a half share each. It is important to note that the definition of spouse under this law is not limited to spouses in registered marriages but is inclusive of those in unregistered customary law union. This is very progressive considering that the majority of the people in Zimbabwe have not registered their marriages and are living in customary law unions.

What happens to the land if the parties divorce?

Understanding the provisions of SI53/14

Statutory Instrument 53 of 2014 deals with Agricultural Land Settlement (Permit Terms and Conditions) Regulations, 2014. The SI speaks directly to the issuance of permits to resettled A1 farmers. It outlines the rights and responsibilities of permit holders noting clearly in Section 6 (1) that:

Every permit holder has the following rights with respect to the occupation, holding and use of the allocated land –

  1. To occupy, hold and use the allocated land for agricultural, pastoral and personal residential purposes; and
  2. To develop the land and erect any infrastructure and other improvements thereon related to the purposes specified in paragraph (a)

Section 6 (2) is however critical to foreground the discussion of women’s land rights in the context of the SI 53/14. This is because the question of tenure security is central to protecting women’s claims to land as will be discussed later in this paper. Section 6 (2) notes:

For the avoidance of doubt, it is declared that a permit holder does not have title over the allocated land, that is to say, he or she may not sell the allocated land, but may, however, transfer, lease, hypothecate, bequeath or otherwise encumber the allocated land in the manner provided under section 7.

The inability to sell the land becomes a contentious issue when discussing sharing and disposal of property in case of divorce. Section 14 (1) reads:

If the marriage or in the case of polygamous marriage, any of the marriages between a permit holder who is the sole signatory of the permit and his or her spouse is dissolved, the non signatory divorced spouse shall retain his or her rights as a joint permit holder and a joint head of household unless the signatory permit holder compensates the divorced spouse for his or her assessed share under the permit.

This in essence means that anyone who does not become joint signatories (through section 10 (3)) they will essentially get a raw deal in case of divorce. This is because the assessed value determined by an arbitrator chosen by the Minister will only be for the improvements on the land but not for the land itself. The land in effective remains state land and according to the permit it cannot be sold or dissolved so that the divorcing parties get an equal share. One party retains control and use of the land whilst the other party is compensated based on the value outlined by the arbitrator. This essentially means that equal registration is not enough to guarantee women’s land rights in case of divorce. Even where women are joint signatories it is the arbitrator who has the power to award in favour of the signatory permit holder who is deemed to be the most responsible for the development of the plot.

Statutory Instrument 53 of 2014 has indeed increased women’s security to access land in particular after divorce and death. However, the greatest challenge is the practicality of co-existence when parties divorce, especially in circumstances where the divorce is acrimonious. This challenge may at the end of the day leave one with no option but to get a share of the contributions towards the development of the land leaving the other party with sole ownership

Advantages of SI 53/2014

  • Women now have the right to have permits in their own names.
  • Equality between women and when it comes to owing land, explaining different situations
  • It touches on married people, Registered and nonregistered
  • Inheritance
  • Single people
  • Divorce

Communal land

Governed by Traditional Leaders Act and Communal Lands Act

S28 : Rights of the communal land dwellers

S 5 their role

  1. a) to promote and uphold cultural values of their communities and, in particular, to promote sound family values;
  2. b) to take measures to preserve the culture, traditions, history and heritage of their communities, including sacred shrines;
  3. c) to facilitate development;
  4. d) in accordance with an Act of Parliament, to administer Communal Land and to protect the environment;
  5. e) to resolve disputes amongst people in their communities in accordance with customary law; and
  6. f) to exercise any other functions conferred or imposed on them by Act of Parliament

Traditional leaders in most parts of Africa always played a role in the allocation and management of communal land for residential, agricultural and grazing purposes. In Zimbabwe, for example, traditional leaders are generally regarded as the custodians of the land and other natural resources in their respective jurisdictions. This role has been recognized in the 2013 Constitution of Zimbabwe. The Constitution allocates the power to administer communal land to traditional leaders to be exercised subject to legislation. The Traditional Leaders Act provides that chiefs have the responsibility to prevent any unauthorized settlement or use of communal land and to approve the settlement of any new settlers in their areas.

In terms of the Communal Land Act, Communal land may be occupied or used for agricultural or residential purposes only with the consent of the elected rural local government established for the area concerned. When granting consent to the occupation and use of communal land rural local governments are required to consider customary law relating to the allocation, occupation and use of land in the area concerned. Further, these elected bodies must also “consult and co-operate” with the relevant chief appointed to preside over the community concerned.