Wednesday, May 25, 2016

Land Rights for Zimbabwe Women
May 25, 2016
Opinion & Analysis
Zimbabwe Herald

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.” These words by Walubiri emphasise the importance of land as a form of property.The Zimbabwean Constitution of 2013 now specifically provides for the right to land. Despite this constitutional guarantee, women’s access to land rights is still a challenge, in particular the farms acquired under the land reform programme.

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 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. This article will discuss women’s right to land in particular the land that was acquired under the land reform programme.

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 land reform 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?

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?

In terms of section 14 (1) divorce shall not strip a woman of joint ownership in the land unless the parties have agreed as part of divorce settlement to buy out the other spouse’s share of the land in respect of developments done. Because the land belongs to the state, what is paid to the other party is contribution towards the developments made on the land and not the value of the land itself.

If both spouses are signatory permit holders, neither of the spouse has a unilateral right to compensate the other for his or her share under the permit in order to become sole permit holder. There has to be consensus between the divorcing parties.

If a dispute arises as to who will become the sole permit holder after divorce, such dispute shall be referred to an arbitrator and dealt with in terms of the Labour Act. If the dispute is centred on the values of compensation after one party obtains the right to buy out the other such right shall be referred to the Minister to resolve in terms of section 16 of the SI.

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.

For feedback, questions and comments please feel free to email or to send a whatsap message on 0777 828 201 and we will definitely address them. Look out for the next article in this column next week and the Kwayedza every Thursday. Let’s discuss the law. For a 24 hour response to Gender Based Violence Issues, call our toll free number 08080131: hotlines 0776736873 /0782900900

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