The right to inherit in customary law: an obstacle to women’s emancipation in Ivory Coast

Pauline YAO, 2014

This article is part of the book Take Back the Land ! The Social Function of Land and Housing, Resistance and Alternatives, Passerelle, Ritimo/Aitec/Citego, March 2014

In Africa, there is a permanent conflict between two different legal spheres: customary law and modern or state law. State law is based on colonial legislation and different legal texts adopted after the country’s independence. Whether prior to independence or not, most of these texts reflect values which are foreign or even in contradiction with customary methods of managing land, water and forests. Customary rules still exist and are currently enforced. This leads to a genuine struggle between both legal rationales. When faced with the power of state regulation, traditional rules propose the centuries-old nature of customary law concerning land and other resources.

For rural women, cultural barriers and customary law are discriminating. A regional study1 carried out in 10 countries throughout the continent shows that because of statutory and customary law, most women in Sub-Saharan Africa, regardless of their marital status, cannot own or inherit land in their own capacity. On the contrary, when it comes to land, women wholly depend on their relationship to a man. In Africa and more specifically in Ivory Coast, the issue of women’s inheritance goes beyond the major challenge of establishing the necessary legal framework for women to be able to own and inherit land.

The fact that women cannot lease, rent, own or inherit land and housing is not just the outcome of sexist statutory laws, it also due to discriminating customary laws. Indeed, in most African traditions, only men can inherit from parents, since women are destined to get married and thus become part of another family. Therefore, women are barred from inheriting land because it might go to their husbands. When there are only girls in a family, the father’s possessions are usually passed on to his brothers upon his death.

Ignorance: the Heart of the Reproduction of Inequalities

Women’s right to land is a human right; women farm most of the household’s food and they should therefore have more control over the nourishing earth - alas, this is not the case. The bitter truth is that most women who grow food are unaware of their right to land. Even worse, they are unaware of the fact that they can claim their share of inheritance. In these conditions, they will always be dispossessed of their rights. In a nutshell, this explains why nowadays millions of rural women in the world have limited land tenure rights, i.e. very limited rights to own, control and use land. In most cases, their husbands could all of a sudden take the land away from them without a reason.

Women’s rights to land and to decent housing are part of the fundamental rights enshrined in numerous international legal instruments, namely the Universal Declaration of Human Rights. During the 1990s, awareness of women’s right to housing increased and since 1996 many governments have defined or revised their policies in order to account for the different aspects of women’s rights.

Legal Progress at the International Level

Women can turn to more and more international legal texts on human rights to claim their rights. One of the most interesting and recent developments is Resolution 2000/13 on “Women’s equal ownership of, access to and control over land and the equal rights to own property and to adequate housing”. This Resolution was adopted by the Human Rights Commission at its last session and is a watershed for women’s rights as it is the first international document which clearly links women’s property, housing and inheritance rights to the gender-based aspects of economic, social and cultural rights. There are other tools: Sub-commission Resolution 1998/15 dated August 21, 1998, on “Women and the right to land, property and adequate housing”.

These standards are particularly useful for women who live in situations of conflict or in states whose domestic legislation prevents them from enjoying land ownership, property ownership and the access to housing - indeed, these resolutions are tools which provide the means to demand that their respective governments comply with their legal obligations and be held accountable for them.

Land is at the Centre of the Crisis and Conflict in Ivory Coast

Physical confrontations between opposed parties and the frequent resort to customary courts or to administrative or judiciary courts are indicators of contentious situations and of the prevalence of customary rules regarding the status of land or other natural resources. Numerous examples from recent conflicts are the outcome of different phenomena.

As population growth skyrockets and production factors become scarce, natural resources are turning into a decisive element to be factored into the analysis and comprehension of the country’s socio-economic evolution and the social relations of production between different communities. Land, forestry and water are variables which have changed over time as a result of Man’s actions.

Ivory Coast is traditionally a country of farmers. Villagers’ rights over the bush, their living space, their farmland and hunting and fishing are based on initial migrations which granted lasting rights to the first inhabitants. This age-old right of native inhabitants or of the first inhabitants, combined with the control over resources it goes with, has changed over time with the overwhelming flow of migrants from neighbouring countries. All business sectors, rural as well as urban, are concerned by this magnetic pull.

Women are already at a disadvantage because of socio-cultural barriers and have been further marginalised in this difficult conquest. They are no longer able to access sufficient farm land to feed their families or to send their children to school and they are increasingly facing health problems - sending children to school is no longer a priority. The result has been more poverty for these women.

Despite Legal Progress, Women Still Do Not Have Access to Land

UN Resolutions are supranational legislative measures which are meant to prevail over the Ivorian Constitution, or the Burkinabe Constitution. Along with other UN legal provisions, they have pushed many states to adopt legislation which encourages women’s right to land ownership and to property in general. Hence, many African Constitutions have set forth land and property rights for African women. Nonetheless, it is sad to note that in rural areas it is still hard for women to participate in public discussions on sensitive topics such as rural land tenure, as they are not landowners.

In order to enforce women’s rights to land, to ownership, to inheritance and to housing, states should:

  • Review their laws in a holistic and participatory manner to ensure that all legislation adequately protects women’s rights to land and housing, namely inheritance rights, and if need be, adopt new laws and new policies to guarantee the full enforcement of these rights.

  • Design and implement awareness-raising and broader education programmes based on women’s right to equality and non-discrimination. States must verify that these programmes are based on a human-rights approach and include the right to decent housing, to land and to inheritance.

  • Design and implement legal education programmes specifically targeted at women of all social categories and geographical areas, namely rural areas, where awareness of rights is usually low. All women should be informed not only of their rights but also of how to demand and impose respect for them.

  • Establish law enforcement mechanisms, namely a special political and judiciary assistance unit to make sure women can effectively demand their rights without having to fear retaliation. These law enforcement mechanisms must be backed unsparingly by financial resources and any other necessary resources.

  • Create shelters for women whose property was seized and provide them with legal, financial and any other required support until their property claims have been settled. The main goal should be to guarantee that these women do not end up homeless once their housing, their land or their property has been seized.

  • Ensure that women can equally enjoy, like men, access to all legal proceedings and to land reform

  • Ensure that legal mechanisms are easily accessible to women, which requires establishing a non-discriminating legal system and an unbiased judicial system able to adequately defend women’s rights, as well as affordable or free of charge legal assistance for women who cannot afford an attorney’s services.

The State must enforce international human rights law and therefore respect women’s rights to land, to ownership and to housing. Women must fight for their own social wellbeing and fulfilment and recognize and echo militant claims on their own behalf, in order to enjoy their human rights. The government must protect women in rural areas: since all land belongs to the State, the State must devise the adequate means for women to be owners as well and for land to provide them with social wellbeing.

1 “Egalité à la maison: Promotion et protection des droits des femmes à l’héritage, enquête sur la loi et la pratique Afrique subsaharienne”

Références

This paper was presented at the Land Forum, organised by HLRN-HIC in Tunis in March 2013.