Women Rights and Food Security - Literature review Example

Women Rights and Food Security Background For a long time, women’s rights activists in most African countries have viewed the existing customary laws as a hindrance to their interests. In doing this, the women have been pointing out the rate and regularity with which the discussion on customary law is used to take away the power of women and augment patriarchal interests. Women activists point out that women are always the losers wherever men are allowed discussions on customs (Cousins). This has led numerous African governments to come up with policies that are geared towards securing the land rights of women. These strategies are in most cases based on formal legal initiatives and try as much as possible to avoid the customary law arena. Despite these efforts, the legal strategies have also proved to be a challenge. This research paper examines how the South African government through the Traditional Courts Bill (TCB) have been trying to secure the lands rights of women and how this bill has failed in this endeavour (Agarwal 185). In order to understand whether the TCB/Framework Act has done anything to improve the South African governments commitment to “traditional communities” or it is encouraging undemocratic practices and discrimination against women, it is first significant to understand the background in which these two acts were formed. The Traditional Courts Bill (TCB) was first enacted in 2008 and presented before the South African parliament by the Minister of Justice and Constitutional Development. The main intent of the Act was to ensure that the traditional justice system was recognized together with its values as well as to offer a structure and functioning of traditional courts to ensure that they were in tune with legal essentials and values. The law was also meant to augment the customary law as well as the traditions of communities observing a system of traditional law (Agarwal 186). The 2008 TCB law faced numerous objections to a point that it was withdrawn in 2011 due to pressure from human rights activists. The main issues raised by those opposing the act included among others the fact that the law did not take in to consideration the input of the people whom the law was supposed to benefit and the fact that the law did not endeavour to safeguard the rights of women to own land. The critics did also not take into consideration some aspects of the traditional court system and instead vested more authority on an individual without offering the local communities sufficient checks and balances. In 2012, an amended TCB Act was reintroduced into parliament but there have also been concerns that have been raised about its contents (Cousins). According to Claassens and Mnisi (84), the process of offering titles to women is usually captured by elites and used to augment the position of men with formal rights at the expense of overlapping less important entitlements that are accorded to women and especially those who are unmarried. In addition to this, approaches that are geared towards achieving individual ownership for women have been termed as only catering for a small majority especially those in the middle class. Such laws have also been criticized for failing to identify with the concerns of women whose only survival is pegged on a chain of mutual family and community associations for whom the safeguarding and preservation of the land rights resting in the family might be having precedence (Agarwal 185). Although the 2012 TCB Act tried to steer away from the customary arena, the thing that makes it questionable is the fact that the legal strategies that dwell extensively on the formation of a formal statutory property regime that is autonomous from the customary field in most cases fails to recognize that in South Africa. Majority of the critical land-related issues that confront women exist at the interface between hazy customs and the past colonial and segregation laws. In most cases, the customary entitlements to land vesting in women are usually hidden from the legal system even in circumstances where women reside in the land under question (Claassens and Mnisi 87). For majority of the women residing in rural places, the only means of dealing with the threatened evictions is founded on claiming use and occupation rights extracted from customary entitlements that are not consistent with the overlaid formal rights held by men. In most cases, the legal strategies that are meant to evade the customary arena may inadvertently create even more problems for the same women whose only help is the customary law. In addition to this, they fail to take into consideration that such women have rights that are recognized through a system of law that the country’s Constitution recognizes as legitimate and to insist that they have a voice in how this system of law is created (Traditional Leadership). The role of traditional leadership and customary law has a close relationship to the numerous disputes centred around the South African land rights and the land reform that have been set up to replace the Land Act of 1913. The government that replaced the apartheid rule came up with critical constitutional provisions and land reform programs that were intended to develop a fairer distribution of land ownership. Even without the TCB Act, the South African constitution itself endeavours to create a system where people can acquire land on an equitable basis. This objective is attained by ensuring that an individual who has a tenure that is insecure because of past discriminatory practices gets a tenure that matches the guidelines provided for in the Act of Parliament (Bennett 45). Beginning 2006, there have been significant reform programs that were set up by the government in a bid to ensure equitable distribution of land. These reforms were intended among other things to reinstate land to individuals who had been forced to vacate their land following the 1913 Black Land Act as well as to redistribute agricultural land to black people. Finally, to introduce fair tenures to those who had been subjected to insecure tenures because of segregation during the apartheid period (Traditional Leadership). However, like all the land reforms in South Africa, the government keeps dragging its feet as far as implementing the program is concerned as long as the unwillingness of those holding the land to release it voluntarily. This has created a scenario where a few whites hold 86% of the agricultural land in the country while small scale farmers hold only 14% of the remaining land (Patel 701). In 2004, the government through the Communal Land Rights Act 11 (CLRA) tried to ensure that all land was handed over from the state and offered to traditional communities. This meant that all the land and especially in rural areas would be transferred to the community. This commitment was meant following the agreement that land was supposed to be owned by the individuals who worked it. This Act also stipulated that the traditional council or tribal authority or traditional council was the only one with the right to administer land. In coming to its decision, the CLRA relied on the Framework Act jurisdictional boundaries to make the important decision on which land would be allocated to (Patel 701). In a way, this Act was already flawed since there was already a simmering disagreement on how and for whom the existing boundaries were defined. Given that traditional councils were solely responsible for managing the newly acquired communal land rights, this already worsened the already existing inequality in power structures (CGE Responds to Contralesa’s…). By looking at the TCB/Framework Act closely, one thing that emerges clearly is that these seemingly good laws do not seek to address the major problems of the poor and for that reason, the food security problem is still not solved. Under the TCB and all the past land reform programs before it, the people holding land are supposed to sell it to the community members but due to the high level of poverty, the people who are supposed to be the beneficiaries are locked out by the problem (Patel 701). From 2002 to 2003, there were consultative meetings held in all provinces to try and resolve the issue of allocating land to single mothers. The meeting tried to explain the rule that all residential land was supposed to be allocated to men and this only when they got married and established. What this law implied was that the only time that only families and not individuals have the right to establish themselves as autonomous units from the community. This law is widely recognized under customary law and it therefore core to understanding the components of the TCB Act, which is founded solely on the customary arena (Segooa 93). One thing that makes the TCB/Framework act unable to improve the traditional communities is due to its failure to recognize the changing constitution of the family. Majority of these failures are pegged on the traditional values. One thing that the TCB fails to recognize is that every member of the community is entitled to land due to their birthright. This land is necessary for them to be able to meet their needs and to help their children. This fact can be seen from the fact that men are only entitled to land once they marry and establish families. Given that the family structure has changed and more women have taken up the role of fending for their families in the absence of men, it is therefore only logical for them to be allocated land on the same basis as the men who have their own families to cater for. This is something that the TCB/Framework Act fails to take into consideration (Segooa 93). According to human rights activists, each individual is supposed to be treated equally irrespective of gender and in the new democratic dispensation, discrimination is no longer tolerated. However, basing the TCB Act on customary laws and appointing a customary leader who is a man to head this committee is akin to denying women claim to the customary land. The fact that women are not likely to be granted fair hearing in Act is best seen as from the fact that women are not allowed by the customary laws to sit in crucial committees meant to allocate land (Bennett 45). Although this trend has changed and women are now allowed to sit in such committees, the very poor are still not represented and this therefore means that the traditional repressive laws where land was only granted to the sons of the community are still existent. Although the TCB Act tries to change this, reverting all the land to the community and selecting an individual to head the land allocation committee is equivalent to denying women the right to own land since men have never been strong supporters of women rights as far as land allocation is concerned (Grant 17). TCB and Food Security There is no doubt that the proposed TCB Act has a great effect in as far as food security is concerned. Over the years, research has clearly shown that empowering women has a direct effect on food security. At the homestead, hunger is directly proportional to how much resources are set aside for food production as well as the amount of money that is set aside for purchasing food. In most parts of Sub-Saharan Africa, women have been found to be instrumental to food security and therefore removing the challenges and increasing the opportunities for women is critical to improving productivity (Grant 17). In South Africa, the food concerns are inherent to those in other parts of the world. South African women constitute 30% of the overall labour force in the agricultural sector and they play a significant role in food production constituting 60% of the people involved in subsistence farming. Given that white settlers hold 83% of the total agricultural land, granting women more land is obviously an ideal way to bolster food security (CGE Responds to Contralesa’s…). This is because if more farming land is allocated to women, then the number of subsistence farmers will go up and this will boost food security. However, the TCB Act has failed to ensure that more agricultural land goes to women and hence the main reason behind the continual food insecurity in South Africa. This problem has been made worse by the fact that female-headed households have lower incomes and since the TCB Act does not permit them to own the customary land, there is every chance that food security will continue to be experienced in most parts of rural South Africa (Segooa 95). As seen from the earlier discussion, the TCB Act inadvertently locks out women from land ownership in South Africa. However, since the Act is meant to ensure that more people own customary land, there is very high possibility that a particular group is benefitting from this Act. In the eastern parts where most of the poor are concentrated and where two-thirds of the residents are women, the land is still under customary law. Although the constitutional rule is being used to govern these areas after the apartheid, the customary law is still being applied since the customary law must to some level be entrenched into the constitution in order to ensure that the cultural norms and rites of the rural communities. In its totality, the TCB Act seeks to formalize the role of traditional leaders and traditional courts to allocate land. However, given that women who are the majority are not included in the customary court system, then it means that they are usually not likely beneficiaries of this Act. Instead, the Act is most likely to benefit only the men given that traditional leaders are less likely to favour women in making decisions about land (Segooa 97). The people who are most likely to benefit from this law are the well off in the society since they are capable of buying the land from those currently owning it since the process of reverting it to the community is based on a willing buyer-willing seller. The biggest losers in this proposal are the poor who lack sufficient to participate in the land buying process. The other losers under this Act are women who lack sufficient representation in the crucial committees meant to allocate customary law. In most cases, customary land is only available to male primogeniture and this means that women are not likely to benefit in this new proposal (Patel 665). If this act is to benefit the people it is intended to benefit, then there is need to delink it from the customary law since women will always be losers under customary law that recognizes the input of men more than that of women. However, in its current structure, the TCB Act does not in any way address the main land concerns and as such, it cannot be relied upon to bring the much needed land reform in South Africa (Schafer). By looking at the TCB/Framework Act, there is no doubt that it is being driven by certain political dynamics. To begin with, the TCB has in a large used the word “communal” in a flawed way. Although this term is supposed to denote the cooperative input and collective gains that are derived from the land, this is usually not the case. By looking at the current structure of the TCB Act, it is obvious that insisting that a customary leader have the prerogative of making major decisions concerning customary land are motivated by political ambitions (Segooa).This is especially the case considering that the Act fails to specify who the right leader is to take this position. This means that the ability to get land under this scheme will in most cases be based upon the social or family relations that one has with the decision maker. Given the selfish political processes in South Africa, it is highly likely that the people who will be chosen as decision makers under this Act will be tied to the political system. For this to be avoided there is need to do away with the current Traditional Courts Bill which literary gives traditional leaders the power to deny all those who challenge top-down decisions of the customary law. There is also need to create a land Act that is autonomous from the customary arena since there is a minimal chance of women getting fair representation under such a system (Traditional Leadership). Works Cited Agarwal, Bina. Gender and land rights revisited: Exploring new prospects via the state, family, and market. Journal of Agrarian Change 3(1): 2003. 184-224. Bennett, Thomas W. Customary Law in South Africa. Ndabeni, Cape Town: Juta & Company Ltd., 2004. Print. CGE Responds to Contralesa’s Statement in the Eastern Cape. Commission for Gender Equality. Web. 2012. 11 Feb 2014 Cousins, Ben. Agricultural Policy and the Right to Food in South Africa. PLAAS - Institute for Poverty Land, and Agrarian Studies. 2012. Web. February 10, 2014. Claassens, Aninka and Mnisi, Sindiso. Rural Women Redefining Land Rights in the Context of Living Customary Law. 2012. Web. February 11, 2014. Grant, Evadne. Human Rights, Cultural Diversity, and Customary Law in South Africa. Journal of African Law 50 (1): 2006. 2-23. Patel, Rajeev. Grassroots Voices: Food Sovereignty. Journal of Peasant Studies Vol. 36(3): 2009. 663-706. Segooa, Masefako. Weaknesses in South Africa’s progress with women’s equality and the Millennium Development Goals. Agenda: Empowering women for gender equity. 26 (1): 2012. 91-103. Retrieved July 30, 2012 Schafer, Debbie. South Africa: Traditional Courts Bill – ANC Bowing to Pressure from Traditional Leaders. 2012. Web. February 11, 2014. < http://allafrica.com/stories/201208260322.html> Traditional Leadership. South African Government Information. 2011.Web. February 10, 2014. Read More