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Rally for women’s right to land ownership in India. (Photo: Food for Life Vrindavan)
The history of change, particularly economic change, is one that is quickly forgotten. Add to that the almost universal tendency of historical records to view the world from a male-centric perspective, and it’s easy to see why the story of women’s economic rights is not very well known or appreciated for its power to transform societies.
In 1848, a Married Women’s Property Act was passed in New York, eventually becoming a standard for similar laws in other parts of America. The act introduced significant changes to the property rights system, most importantly allowing women to retain property ownership in marriage and exercise their rights over that property. From the human rights (as well as from the economic development) perspective, this was quite significant – how can you be an independent and self-reliant citizen without the right to own property?
Before the 1848 Act and a number of similar laws in the years prior, when it came to property rights, women were hardly equal to men. In some instances husbands could dispose of property without their wife’s permission and women could not execute wills. Laws providing women with same property rights as men were useful but not sufficient, as their success in breaking down barriers rested in the efficiency of the court system to enforce those laws, men’s willingness to subscribe to those new laws, as well as general access to education by women to ensure that they actually know what their rights are and can demand their enforcement.
Look around the world today: many women remain excluded and are denied property ownership – a right enshrined in the UN Universal Declaration of Human Rights. This happens both through legal barriers and cultural practices.
Take Kenya for example. According to a recent study by the International Women’s Human Rights Clinic at the Georgetown University Law Center Kenyan women rarely own property, either on their own or jointly with their husbands. While the legal system itself presents a number of challenges, the greater problem is the customary law. For instance, in adjudication of land rights, women are often excluded from the decision-making process – which heavily influences the outcome. They are not viewed as able to make decisions regarding property use and, in fact, customary law makes it clear that women can’t own or control land. The only permission the customary law extends is to cultivate land, and even that with the permission of men.
This situation is not unique to Kenya. Across the continent and in other countries around the world, legal and customary barriers keep women on the margins of the economy. In Uganda, for instance, the fact that women move with their husbands upon getting married restricts their ability to own property because they are seen as outsiders.
In the same Uganda, however, customary law itself provides greater property rights protections to women than the State law does. Despite this, interestingly enough, there has been a strong movement in the country to move away from customary law and develop a more effective rights-based framework. The reason is that perceptions and actual practices on the local level don’t always correspond to what the customary law says – sometimes clan leaders don’t know their rights and responsibilities, sometimes the decision-making processes are convoluted, and sometimes outright corruption is an issue. The bottom line is that complex institutional gaps in Uganda create a system where both the customary law and the national law fail to ensure women’s right to own property.
Wherever one goes, it has been well-documented that the inability of women to own property often locks them into poverty, especially when their husbands die and they are left to care for the children on their own, without any right to claim or inherit assets. It detracts from their independence and puts them in vulnerable social positions.
When it comes to changing practices, two routes are necessary. Legal changes to ensure that women’s rights are recognized and enforced are essential, whether on the national or local level. Making enforcement and decision-making processes more transparent, clear, and inclusive is also key.
Yet, the greatest challenge, it seems, still lies in the perceptions of women’s role in society. It is still far too common across the developing world to see misguided perceptions and notions of a limited role for women in society. At the end of the day, any change in legal structures or practices must correspond to changes in behavior and understanding. In Kenya, for instance, with the new Constitution passed last year some of the key human rights, such as the right to inheritance of property, are now guaranteed for women. Much remains to be done, however, to change cultural perception on the local level and ensure that communities actually follow the spirit of the constitution.
Go back to 1848 New York. The Married Women’s Property Act was passed only after a long and sustained campaign to get people to rethink the role of women in society and realize the fundamental importance of extending to them the rights that were available to men. The passing of the act was a culmination of a long advocacy campaign that engaged women and changed the popular notions of what was right.
The need for such an advocacy campaign and the need to change perceptions are still pressing in too many countries. To get people to realize that everyone will benefit from allowing women the right to own property; that full property rights don’t threaten but strengthen societies and communities; and that engaging 50% of your population is necessary for sustainable growth and poverty alleviation, is one of the greatest challenges of the 21st century.
Published Date: February 10, 2011