Women across Africa suffer from an asset gap – especially when it comes to shared marital possessions. Legal reforms and attitude changes are needed to close the gap, writes Priscilla Akua Vitoh.
Economically empowering women across Africa will require both legal reforms and a shift in societal awareness regarding property rights. This will be a formidable challenge that will involve navigating the intricate intersections of history, laws, and women’s roles in marriage.
International development initiatives have consistently underscored the importance of providing women with equitable access to land to address global gender equality, poverty reduction, and sustainable development. Across Africa, there are gender-based disparities in property ownership, particularly within marital relationships, that hold back women’s economic independence.
Colonial-era legal systems continue to cast a long shadow over the legal frameworks in former colonies. In particular, the notion that property acquired during marriage does not inherently belong to both spouses but instead defaults to the husband, thereby laying the foundation for inequalities in property ownership.
Post-colonialisation, nations including Ghana, Kenya, and Uganda have transitioned from Separate Property regimes to Partial Community of Property systems where there is a presumption that property acquired during marriage belongs to both spouses. These revised statutory frameworks recognise that property acquired during marriage should be shared between spouses. These countries have solidified this principle of equitable ownership within their national constitutions, allowing the judiciary to establish legal precedents for fair property distribution in divorce cases.
International development policies encourage States to adopt laws that protect women’s land rights. International legal frameworks such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Protocol to the African Charter on Human and Peoples Rights (Maputo Protocol) underscore the importance of rectifying unequal gender-based property ownership laws, particularly within the context of marriage. Hence, incorporating spousal property rights into constitutional frameworks represents a significant stride in the development landscape.
Nevertheless, this transformation is not uniform across Africa. Sierra Leone and Nigeria among others continue to uphold Separate Property regimes, which defer to customary law systems on issues of marital property rights and often result in preferential treatment for men.
Civil society organisations and grassroots movements play a pivotal role in emphasising the importance of legal frameworks to uphold women’s access to property as a fundamental human right. Their efforts often aim to highlight the cultural norms and traditions that discriminate against women’s land rights, and they advocate for closing the loopholes and gaps in laws at the community level.
Beyond the law
A rigid, one-size-fits-all framework for matrimonial property rights won’t uniformly advance women’s well-being and stimulate economic growth. Traditional property ownership norms often take precedence and are upheld within most African communities, even when they clash with national laws. To gain a more comprehensive perspective on how women interact with the legal system, we need to look beyond just examining laws and constitutional provisions.
Women’s lives are intricately woven into the fabric of social, economic, and political systems within. In the context of land rights, the legal framework frequently blends components of customary law, constitutional provisions, statutory regulations, and other elements. These legal elements intermingle in diverse contexts, jointly shaping and impacting women’s social, political, and economic roles.
Therefore, the endeavour to protect women’s rights to land acquired during marriage must not occur in isolation. It requires thoroughly comprehending the complex interplay of interconnected factors at play.
It is crucial to consider women’s active participation in decision-making. There can be a gap between property ownership and effective control. This goes beyond the theoretical acknowledgement of their rights. Effective control means women have the autonomy to manage and make choices about property, allowing them to sell, lease, or utilise assets. This approach recognises that legal rights alone do not guarantee women’s agency; instead, it underscores the need for supportive environments that enable women to exercise their rights in practice, bridging the gap between legal recognition and tangible empowerment.
It is essential to acknowledge that gender-related issues regarding matrimonial property rights vary substantially among distinct groups of women. Urban-based women entrepreneurs confront unique challenges distinct from those encountered by rural women engaged in collective subsistence farming or those forming associations for small-scale irrigated agriculture.
This diversity is particularly noticeable in polygamous marriages, where the absence of specific guidelines for applying legal interventions in these marital contexts can inadvertently place women at a disadvantage. There is, therefore, a crucial need to tailor reforms to suit a broad spectrum of circumstances and ensure equitable outcomes for all women, regardless of their marital situation.
This pursuit is both challenging and vital. Achieving a delicate balance between historical legacies, formal legal structures, and the complex dynamics of women’s roles within marriages presents a multifaceted challenge. While legal reforms are undoubtedly necessary, the path towards women’s economic advancement through property rights requires broader societal change. Acknowledging and raising awareness of the social spheres women inhabit is essential to this journey. Only by addressing these multifaceted aspects can we pave the way for a more equitable future for women in property ownership across Africa.
Photo credit: David Orgel used with permission CC BY-NC 2.0 DEED
