Commons and Women's Rights

Commons and Women's Rights

 

Introduction: the terms of the dispute

 

To introduce the topic and understand what we want to write about, it is useful to recall what De Cristoferi wrote: "when discussing collective propertỳ one must first consider the fact that it is a phenomenon that easily escapes rigid classifications, so each academic discipline has emphasized different aspects. Generally, common goods, civic uses or rights/propertỳ/collective resources indicate certain modes of ownership̀ and/or enjoyment of certain resources (but also immaterial goods, in some cases) for both individual and community purposes by an association of people with varying dimensions and characteristics of inclusiveness and exclusivity. [...] The very change in terminology in vogue in several scientific sectors, from collective property/civic uses to commons, is indicative of the alternation of different sensibilities in the study of this topic and its perception in the academic field: in short, we can emphasize how we have moved from a substantially legal approach, with a plurality of matrices and visions (German, French, Belgian, English), to a more economic and socio-economic approach, of clear Anglo-Saxon origin." (D. Cristoferi, Da usi civici a beni comuni: gli studi sulla proprietà collettiva nella medievistica e nella modernistica italiana e le principali tendenze internazionali, Studi Storici, vol. 57, no. 3, 2016, pp. 577-604.)  

 

The current debate (or rather, the dispute), is centered on the two opposing options regarding whether the "commons" should be privatized (as advocated by the World Bank and its associates) or should be protected as a "pool" of resources preserved, managed, improved by a set of people we generally call "group” or “community" (sedentary and / or nomadic).

 

The first to theorize the need to take away the control of these resources from the community that made a community/collective use of them, was G. Hardin with his famous article on the "Tragedy of the Commons" (Hardin, G. 1968. The tragedy of the commons. Science, 261: 1243-1248). Having become the intellectual base on which castles of neoliberal ideology were built, we had to wait for the studies of E. Ostrom to contrast a vision, articulated and well justified, that explained how the best possible management of these resources was exactly that made, in its various forms, by the communities that depended on these resources (Ostrom, E. 1986. Issues of definition and theory: some conclusions and hyphotheses In Panel on Common Property Resource Management, Board of Science and Technology for International Development, Office of International Affairs, National Research Council, eds. Proceedings of the Conference on Common Property Resource Management, 21-26 April 1986. Washington, DC, National Academy Press).

 

The vision defended by neo-liberals and neo-institutionalists considers exclusively the economic dimension of the land asset. From their point of view, it is a matter of "valuing" an (economic) good and this requires its transformation into a private, formal (with title) and individual good. The basic flaw in these analyses is that of forgetting, as Lambert and Sindzingre remind us, that in Africa people do not own land as individuals, but that the individual claim to a piece of land depends on inclusion within broader networks. Another mistake would be to consider these networks as static. If resources become scarce, agents realign their allegiances to other group levels (e.g., by moving from lineage to chiefdom or administration), thus playing on community rules and the variable possibilities of contesting them, according to a process that does not lead linearly from communitarianism to individualism. Rights refer to multiple strata (e.g., for shrub crops, individuals with rights to trees may be different from those with rights to land) and to equally multiple objects (Lambert, S., Sindzingre, A.. Droits de propriété et modes d’accès à la terre en Afrique, FAO Land Reform, Land Settlement and Cooperatives, 1995). 

 

What is meant by the notion of land as a commodity, or that of "group", does not always find its equivalent in Africa: agents simultaneously belong to multiple groupings, voluntary or otherwise (nuclear family, lineages, production units, consumption units, rank in a life cycle, age and gender categories, client networks, etc.), which define rights with different extensions (for example, rights to certain crops, to certain lands, such as flooded plots for women in some societies).

 

The other argument advanced in favor of transforming common goods into private, individual goods concerns the security of the rightful claimants. In the vision that we summarize as "Western" (World Bank, neoliberal economists ...) security for owners is given by registration and titling. In the case of the commons, particularly but not exclusively in Africa, as Lavigne-Delville reminds us (Lavigne-Delville, Ph., Sécurité, insécurités, et sécurisation foncières : Un cadre conceptuel, FAO Land Reform, Land Settlement and Cooperatives, 2006/2), we forget to take into account all the different issues of land: productive issues, but also issues of identity, social peace and citizenship. Indeed, the security of land tenure is also a factor of social peace: a lack of clarity about rights, contested rules, cause or foster conflicts, bona fide conflicts, manipulations or power struggles.

 

Proponents of privatization and registration use this definition: "the right, felt by the owner of a parcel of land, to manage and use his parcel, to dispose of its proceeds, and to engage in transactions, including temporary or permanent transfers, without hindrance or interference from natural or legal persons" (Bruce, J.W. et Migot-Adholla, S.E. éds. 1994. Searching for land tenure security in Africa. Kendall/Hunt publishing company. 282 p.).  In fact, Lavigne-Delville reminds us again (Lavigne-Delville, Ph., Sécurisation foncière, formalisation des droits, institutions de régulation foncière et investissements - Pour un cadre conceptuel élargi, FAO Land Tenure Journal, 2010/1) that this is a definition of private property, not land security. In fact, exploitation rights obtained as indirect property can be perfectly secure if one has a clear contract (written or oral) and the certainty that this contract will be respected; one can be secure in one's rights, even with restrictions on the right to sell.

 

What governs the management of these resources has gradually been called a "web of interests" (Meinzen-Dick R. Mwangi E., 2008. Cutting the web of interests. Land use policy, 26(1), 36-43), or a "bundle of rights" (J. W. Bruce, African tenure models at the turn of the century: individual property models and common property models - FAO Land Reform, Land Settlement and Cooperatives, 2000-1), supported by various types of institutions, essentially informal but with social legitimacy, in charge of their respect. This is why customary systems are secure, flexible and better suited to respond to changing conditions imposed by factors such as climate change.

 

Commons and women's rights

 

Having clarified the terms of the current dispute, from my point of view this discussion needs to be broadened, so I propose an observation from a different angle, also making use of the field experiences that we have carried out in some African countries.

 

The race for rare resources has seen in recent decades more and more protagonists land and water. A large part of these resources, especially in Africa, are still under customary regimes, i.e., they are "commons", a tradition as old as history, also highly developed in our European countries (for the Italian case, I recommend reading Forni, N. Herders and Herders and water: Forni, N. Herders and common property in evolution: an example from Central Italy, FAO Land Reform, Land Settlement and Cooperatives, 2000-1) and even here in the village where I am writing, Anguillara Sabazia, until a few years ago. In short, these are multiple, flexible and adaptable rules that communities have developed over the centuries in order to access, manage, exploit and resolve any conflicts of use.  

 

Over time (i.e. with the invention of the nation-state) it was possible to pass the idea (totally western and the result of neoliberal thinking) that the resources thus managed were "res nullius" (without rights) and therefore property of the nascent states. A totally illegal expropriation that the international community has not only accepted but also promoted wherever it was possible and necessary (for their interests of course).

 

As these resources began to become rarer (for a variety of reasons, including demographics, drought and climate change, but also the hunger for land on the part of usurpers from outside these realities), the question of their status, from a simple local diatribe, became a war on many levels.

 

BOX

African women account for 70% of food production. They also represent almost half of the agricultural workforce and are responsible for 80-90% of food processing, storage and transport, as well as weeding and weeding.

 

But women often have no rights to land, notes Joan Kagwanja, head of food security and sustainable development at the United Nations Economic Commission for Africa (UNECA), based in Addis Ababa, Ethiopia. These rights are often held by men or male-controlled kinship groups, and women generally only have access to them through a male relative. Women were also often forced to turn over money from the sale of agricultural products to the male relative and could not decide how to use it.

 

This limited access to land is also very precarious. A study conducted in Zambia reveals that more than a third of widows are deprived of access to family land upon the death of their husbands. "It is this dependence on men that makes many African women vulnerable," Ms. Kagwanja told Afrique Renouveau.  (https://www.un.org/africarenewal/fr/magazine/april-2008/droits-fonciers-le-combat-des-femmes)

END BOX

 

 

As mentioned earlier, on the one hand we had and have the World Bank and the various supporters of economic liberalism, whose position is dominant in the circles of power, so that these resources must be placed on the market, which implies their cataloguing and registration, so that property titles can be issued as we Westerners like them. On the other hand, we find a composite set of social forces, peasant movements, academics, a few intermediate government officials and, at times, international development agencies, the UN or bilateral agencies that defend the principle that very ancient rights (ancestral and in any case prior to the invention of the nation-state) exist over these resources.

 

We, too, with our longer "Land" program, carried out in Mozambique from the signing of the 1992 peace accords until a few years ago, have intervened concretely in the political and ground realities where this struggle has manifested itself with great violence.

Mozambican women living in the countryside suffer the same problems as women in any other African country. Access to land is subject to the approval of the "regulo" (traditional authority, almost exclusively male) and to a series of customs and traditions all aimed at limiting their land rights to a minimum. As reported by Chale Chambe in her thesis, "in the event of divorce due to adultery, sterility, misbehavior and/or accusation of witchcraft, the woman loses the right to access and use the land and is returned to her parents who provide her with a space to produce".  (Chale Chambe, M.A., O accesso, posse e controle da terra das mulheres rurais nas comunidades do distrito de Inharrime, PhD Thesis, Brasilia University, 2016). 

The hypothesis that there is any difference between matrilineal and patrilineal societies is disproved by a study promoted by the Forum Mulher, a Mozambican non-governmental organization dedicated to these issues: "Group discussions in matrilineal societies have revealed that women are not involved in the decision-making process regarding land and other decisions that are quite important for the family. [...] In patrilineal regions as a whole, a woman has no right to land in her parents' house because she is a woman, one day she will marry and leave the land, the same woman when she marries has no right to register the land in her name because customary law requires that the land be registered in the name of the man who is head of the family. When a man dies, this woman is usually expelled by her husband's relatives because the land does not belong to her. This woman begins the new cycle again and goes to the Traditional Leader where a piece of land given on loan is given away. The woman's insecurity about access to and ownership of the land is continuous, it is a cycle of insecurity" (personal translation)  (Forum Mulher, 2018, Direitos Das Mulheres À Terra No Contexto Da Pluralidade De Direitos: O Caso De Moçambique).

One last consideration regarding community conflict resolution mechanisms: the same publication reminds us how "In general, the conflict resolution body in the community is not only composed mostly of men, but the few women who are in these bodies have no voice and are there to legitimize decisions made by men" (personal translation).

Similar conclusions have been reached by other authors, such as Kisambu et al. in the case of pastoralist communities in Tanzania: "Customary beliefs pose an ongoing challenge to the land rights of pastoralist women in Lahoda. Widows are generally not allowed to inherit in pastoralist society, and if divorced, women risk being sent back to their parents without even the crops they grew. Girls are not allowed to inherit because they are expected to marry and have the right to obtain land for their use from their husbands" (personal translation). Women's subordination in community-level decision-making mechanisms is also confirmed once again, as previously observed in Mozambique: "The limited presence of women, in particular, means that important resource management decisions are often made without their participation, and this perpetuates the male dominance of decision-making" (personal translation). Simply put, "The whole issue of gender equality and parity in decision-making is primarily male-centric - women are often the recipients of men's decisions and, in most cases, participate only in terms of numbers" (personal translation).  (Kisambu, N., Daley, E., Flintan, F., Pallas S., Pastoral Women’s Land Rights and Village Land Use Planning in Tanzania: Experiences from the Sustainable Rangeland Management Project – Document presented at the Conference of the International Association for the Study of the Commons, Utrecht, The Netherlands, 10-14  July 2017).

Looking at the case of Niger, often considered a positive example, FAO reminds us how "customary rules [...] have always excluded them from land inheritance" (personal translation) and paradoxically women manage to have even a minimal right to access land, especially in the south of the country, thanks to Muslim legislation (http://www.fao.org/gender-landrights-database/country-profiles/listcountries/customarylaw/inheritancesuccessiondefactopracticeschangedinoriginaltranslation/fr/?country_iso3=NER).

 

Faced with these realities, our strategy was as follows: first and foremost, to have the government recognize the legitimate right of every inhabitant of the country to the land of their country. This was consolidated with the new land policy in the drafting of which we were invited by the government to participate, approved in 1995. Second, that whoever had used or managed in good faith for a sufficiently long period and without interruption a certain portion of land, without this being contested by anyone else, had the right to have this right legally recognized, for which a new law had to be prepared, voted on and put into practice. Also in this case, the government entrusted the FAO with the task of facilitating the process, providing the specific personnel needed. The law, widely discussed and debated in the country and subsequently in Parliament, was approved in 1997. (Tanner, Ch. Law-making in an African context: the 1997 Mozambican Land Law, FAO Legal Papers, 2002). 

 

As there was a big difference between theory and practice, it also needed to be clarified how these clearly specified rights in the law should be identified on the ground, with participatory methods and avoiding future conflicts with neighbors (individuals or communities) over possible boundary claims. More years of work were needed to develop a consensual methodological proposal, tested and piloted in various regions of the country with government officials, peasant communities, NGOs, universities and, in our case, FAO leadership. The final product was a Technical Annex to the 1997 law, drafted and approved in 2000.  (Tanner, C., S. Baleira, S. Norfolk, B. Cau and J. Assulai (2006) Making Rights a Reality: Participation in Practice and Lessons Learned in Mozambique, FAO).

 

However, all of this in turn had to be translated into daily practices on the part of government officials, in order to avoid (or at least reduce) traditional corruptive possibilities, as well as in the knowledge of this set of measures on the part of the country's ethnically diverse communities, whose common denominator was their poor knowledge of the official spoken language (Portuguese). For these reasons, in parallel with previous work, an intensive training/education effort was carried out with the categories mentioned above, through formal courses at the Center for Juridical and Judicial Training (CFJJ), as well as through simpler practices such as the use of theater in local languages, in partnership with local NGOs and government institutions. 

 

This educational effort was to serve another purpose as well: to strengthen a climate of mutual trust between commanders (institutions of the single governing party) and governed (the citizens), so that the principle of recognizing ancestral rights would become common, customary practice. A necessary effort, as foreign investors approached to request large areas of land for their businesses, through the usual practices induced by the current capitalist system, namely corruption, use of force and disrespect for rights.

 

There were limits that had to be respected, to avoid going into direct confrontation with the government, which was not always possible, so that at times, our staff found themselves in a position of being considered PNG (Persona Non Grata in the UN jargon) (particularly when we took this same approach in Angola), resulting in a slowdown in work. But globally, and despite the World Bank's refusal to collaborate with their political clout to strengthen our work, we can say that there has been an evolution over the years that has led communities to not only know and understand how existing legislation works, but also to strengthen their own capacities for resistance in the face of state and foreign company abuse. The natural increase in conflict, something that worried my hierarchical superiors so much, who were more interested in their chairs and careers than in improving the living conditions of the local populations, was a result we had hoped for, because it showed that the balance of power was starting being challenged.

 

The obvious difficulties on the part of the "donor" community in continuing to support this group of "revolutionaries" represented by our team, who were too independent and out of step with the useless traditional cooperation, meant that gradually the source of support for our work was running out.

 

But before that happened, we had time to open up the central issue, the one that led me to write this little article: women's rights within communities!

 

Ground practice in various African, Asian and Latin American countries had led us to see evidence of a strong asymmetry of power even within community customs and traditions. This was nothing new, because this was also a reality in our European history, where women were always the last wheels of the cart when it came to rights, but always the first when it came to duties.

 

So, the problem was how to deal with this issue, with traditional authorities almost exclusively male, who defended their power in the name of the antiquity of the practices (customs and traditions), exactly the same argument that we used to help these communities in the face of prevarication coming from state and/or international institutions.

 

A strategy was proposed to us by a Scandinavian donor country, which considers itself as very progressive in terms of gender equality. They proposed to us to prepare a new project, within which we would have to realize a certain amount of individual titling of portions of community lands in the exclusive name of women belonging to those same communities. The idea was to force the traditional authorities and put them in front of the evidence that women could have parcels of land, identified and registered, so that it would no longer be possible to expel them in case of death of relatives (which was very common in those years due to HIV). Apart from the obvious consideration of why promote individual titles only for women of the community, excluding males (even young males, for whom access to land was not particularly easy), we were faced with a complex problem which was the necessary authorization of the traditional authorities to separate pieces of community land and register them in the proper name of individuals. This mechanism was foreseen in the new law, precisely in order to ensure that the communal control of land would not be perceived as too strong a straitjacket for those people who wanted to leave and monetize their rights by selling "their" portion of land.

 

A democratic mechanism in its essence, but one that had no hope of working in the case and in the way the donor had in mind. Moreover, perhaps unwittingly, promoting the fragmentation of community lands into individual plots was exactly what the World Bank wanted to be done. Those plots would then be put on the market (either for sale or as bank guarantees), and gradually the same fate would befall the remaining community lands. As a result, all the political and legal work done to safeguard community rights as a "common good" was in danger of falling apart.

 

Consistent with our work of many years, we opposed the donor's wishes and made a counter-proposal: to work on building a climate of trust with the traditional authorities, those whom we had helped to have their territorial rights recognized, so as to convince them that the same democratic method should be applied within the communities, and this in the name of the supreme law, the Mozambican Constitution, which established equal rights for men and women.

 

This was a difficult and, above all, lengthy task. Our hypothesis was that without the consent of the traditional authorities, the simple questioning of customs and traditions promoted by external entities would have caused more problems than it would have solved. The method of dialogue and negotiation was our main road, a road that, however, was fraught with obstacles and, above all, could not guarantee a positive outcome a priori.

 

Once we had convinced the donor and approved the project, we began to strengthen the ties of collaboration not only with state institutions, at central and local level, but also with organizations that defended women's rights in particular. In this way, the ground activities aimed at raising awareness about land policy and legislation were slightly modified to include a specific component devoted to the issue of women's rights in the communities. The theatrical mode was obviously the one that gave the best results, because it was easier to understand and provoked intense debates among the participants, a key objective of our work.

 

At the same time, particularly with the training courses at CFJJ, we accentuated the reflection on this aspect, so that future judges would have not only knowledge of legislative texts but also of the dynamics taking place in the country (Tanner, Ch., Bicchieri, M., When the law is not enough, FAO Legislative Study 110, 2014). 

 

The duration of the project was not eternal, but in the five years of work, it was possible to carry out an intense program of awareness and training and to ensure that in some initial cases, the first results were finally achieved: women from other communities, married to males native to the community, died of HIV, instead of seeing their lands - the ones they had been working for years - confiscated by the family as original members of the community, these allochthonous women saw their rights recognized by the traditional authorities, and could continue to manage them on their own (Bicchieri, M., Legal Pluralism, Women’s Land Rights and Gender Equality in Mozambique, FAO, 2017). 

 

Conclusions

 

A drop in the ocean, one might say. And it would be true. Moreover, this work does not ensure that at the time of inheritance these same plots of land can be passed on by those allochthonous women to their descendants, male and female. Nor does it solve the problem of access to land for young women who wish to engage in agriculture outside of the marriage bond. Not to mention the more fundamental questioning of the respective roles of men and women in customary societies.

 

So, we are well aware of all these limitations. But the initial question remains. The vast majority of customary systems do not protect women's rights, do not promote their political subjectivity, and always tend to marginalize them in male-dominated roles. This is why there is now a problem that all organizations claiming to defend community rights in the name of the common good should address: how to ensure that the group being defended, prevaricated by larger forces that would like to privatize their lands in the name of the market economy, does not in turn become a prevaricating group against its own members, simply because of gender difference.

 

The path of the systemic approach based on the principles of trust and credibility building, dialogue and negotiation, seems to us a useful way forward. In many cases the state and its institutions are seen as the first danger by community members regarding their land rights. A state that opens its doors, or rather opens them wide to foreign capital interested in the best land for purposes that have nothing to do with the interests of local communities. Often there has been talk of interventions to promote national food security, as happened in the famous case of ProSavana, with Brazilian businessmen, supported by the Lula Foundation and the Mozambican government, interested in reality only in expropriating the best lands of the Nacala corridor to produce transgenic corn and soy to send to Japan and China. The strong international campaign that has developed has managed to slow down, at least until today, this umpteenth monstrous attempt to grab resources belonging to local communities. (https://www.africarivista.it/mozambico-le-mani-sulla-terra/179112/).

 

But when we move down from the macro level to a more local level, the resistance of traditional authorities and the male population is just as strong against any proposal aimed at advancing equal rights both in terms of natural resources and in terms of family relations and the respective roles of men and women within the family sphere. Suffice it to recall the case of Niger, where attempts to draft a Family Code have always run aground on the question of the legal status of women. (http://www.fao.org/gender-landrights-database/country-profiles/listcountries/nationallegalframework/womenspropertyanduserightsinpersonallaws/fr/?country_iso3=NER). 

To understand what the real power relations are, it should also be remembered that according to the Niger Civil Code "the woman's property is managed and administered by her husband" (personal translation) (http://www.fao.org/gender-landrights-database/country-profiles/listcountries/nationallegalframework/womenspropertyanduserightsinpersonallaws/fr/?country_iso3=NER). 

 

Some authors try to see the glass half-full at all costs, pointing out how women, in Niger, can access land through the modality of "loan" (a parcel of land of the family domain is given to them to cultivate it and dispose of the production). This modality, informal, is described as non-precarious. However, when one analyzes the situation in more detail, one realizes that this modality can be called into question for a variety of reasons: death of the head of the family, marriage or divorce-let's remember how in the case cited in Mozambique the husband can divorce for a whole series of incredible reasons: bad behavior, accusations of witchcraft, infertility of the woman). The same authors are then forced to admit that this "non-precarious" modality is not conducive to investment, such as foraging for a well, which would mean putting a mark on the woman's appropriation. The predictions of these same experts say that this mode will be less and less likely to be used given the increasing pressures on land ( https://reca-niger.org/IMG/pdf/2016-01_Droit_foncier_des_femmes.pdf). 

 

The FAO has also analyzed these issues in other countries. For example, in the case of Senegal here is what is reported: "The reality on the ground shows that traditional lands are currently managed mostly according to customary law, which rarely recognizes women's land rights. Women represent 26% of plot managers in agriculture, but hold only 13% of the land in rainfed agriculture and the situation is worse in irrigated agriculture" (personal translation) (http://www.fao.org/3/ap532f/ap532f.pdf). The same happens in the case of Burkina where, according to the FAO study, "the exclusion of women from control and management of land is one of the main features of customary rights" (personal translation) (Françoise Ki-Zerbo. 2004. Les femmes rurales et l’accès à l’information et aux institutions pour la sécurisation des droits fonciers. Etude de cas au Burkina Faso) (statement confirmed by another specialist on the subject, Françoise B. Yoda: "The land has a sacred character, which excludes women from its management" (personal translation) (http://www.fao.org/3/ak159f/ak159f32.pdf).

 

The conclusion that imposes itself is therefore quite clear: despite efforts to make people believe that women have secure access to land in customary regimes, reality tells us otherwise.

Being able to change policies and legislation is certainly an important initial step (at least as seems evidenced in the work cited above in pastoralist communities in Tanzania, and as verified by us in the Mozambican case). But this is not enough. The path we tested was intended to create a climate of trust in the traditional authorities with whom we had been working for years, so that they would be open to listening and accepting those changes that can foster, even in the loss of some of their power, a better balance within the communities for which they are responsible. 

 

Transforming traditional authorities into agents of change clearly requires a sustained effort on the part of credible institutions, both governmental and non-governmental, and this is where peasant movements can play a very important role. Prolonged sensitizations, concerted workshops, and gender manuals adapted to local languages and cultures thus become necessary tools to provoke and accompany these necessary changes, as confirmed by both Françoise B. Yoda and another specialist, Cristiano Lozano (Formalizzare i diritti, riconciliarsi con la legittimità. Sicurezza fondiaria e partecipazione delle donne in Burkina Faso, in Donne, terre e mercati – Ripensare lo sviluppo rurale in Africa sub-sahariana, a cura di R. Pellizzoli e G. Rossetti, IAO, 2013).

 

The proximity of these organizations to ground realities, their credibility built up over years of work on behalf of peasants, herders and fishermen is a lever for change that the state authorities have not and will not have for a long time, being identified, due to their corrupt practices and abuses, as part of the problem and not the solution.

 

Field experiences lead us to think that it is not possible to separate the question of rights over common lands from the question of profound change in male-female relations even within the reproductive sphere and family life. As long as women can be thrown out through the mechanism of divorce for causes of witchcraft, misbehavior, or infertility, little use will be made of an awareness limited to land issues. That this is a long struggle there is no doubt, but the sooner our colleagues in the land movements begin to put these issues at the center of their battles, the sooner we can begin to hope for a better tomorrow.

 

Original language: Italian. English personal translation supported by DeepL