Changing access to land by women in sub-Saharan Africa Michael Kevane Dept. of Economics Santa Clara University Santa Clara, CA 95053 mkevane@scu.edu 408-554-6888 Prepared for Handbook of Gender and Development Routledge Press Janet Momsen and Leslie Gray, editor This version: April 2, 2014 Abstract: Land tenure systems in Africa began to change rapidly in the 2000s due to three important and related trends. First, agricultural product prices have risen and land has become more valuable. Second, agri-business lobbyists have pushed for broad changes in national land legislation to facilitate establishment of large-scale schemes. Third, growing urbanization, migration, and remittance income has led to increasing differentiation in village economies, generating incentives for more secure private title. These forces have led to a variety of changes, from efforts to privatize and title land, to large-scale registration systems, to more formalization of customary tenure rules. World Bank-sponsored and other "top-down" policy changes have often been designed to favor women's access to land, while "bottom up" changes often apparently reduce women's access (in particular by limiting secondary use rights to tree and forest products). This paper reviews the recent literature on changing access to land, with focus on findings from recent randomized control trials involving land tenure.

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1. Introduction Although women work alongside men in farms across the breadth of Africa, they neither own nor control much land. Women work on fields owned by their fathers, their husbands, their brothers, and other males in their lineage. When they do control fields on their own, their ownership rights are limited. Even households headed by women are constrained by male lineage elders, and required to eventually pass on land to their sons rather than their daughters. There has been relatively little improvement in this discriminatory and marginal position of women in land tenure. This is curious, because there has been rapid movement toward gender equality in many other domains (World Bank, 2012). The halls of government have admitted more and more women in Africa. By early 2014, there were three female heads of state, and representation in legislative, executive and judicial branches of government was increasing. All African countries have ratified the Convention for the Elimination of Discrimination Against Women (CEDAW) and many countries have ministries and other bureaucracies charged with promoting gender equality. Government policies and programs have been revised to be more gender neutral, and often to favor women, offering subsidies, education, training, and access to state jobs. Reforms of family law codes have eroded the marital and divorce privileges of men. In this regards, most countries in African have differed little from other countries around the world. Gender inequality remains a significant limit on human development and economic growth, but there has been much progress toward formal, legal equality. Progress in economic, social and cultural inequality has been slow, but discrimination is changing in character and intensity. Land tenure appears to be an exception to this positive trend. The very slow movement towards gender equality in land tenure has perhaps been related to a context of comparatively broad change in land tenure generally. Change in land tenure appears to have accelerated in the 2000s due to three related trends. First, continued high population growth and increases in prices of agricultural product on international commodity markets pushed the value of land higher. Second, agribusiness firms, both national and international, successfully lobbied for broad changes in national land legislation and investment codes to expedite establishment of large-scale farms and plantations. Third, growing urbanization, migration, and remittance income led to increasing differentiation in village economies, raising incentives for more secure private title. These forces have induced individual efforts to privatize and secure title, and governments to attempt to establish or improve land management systems. Governments have also tried to formalize customary tenure rules and recognize village and traditional social groups as land-holding entities. These "induced" changes appear, by and large, to have reduced women's access to land. For example, the changes toward individual title and communal title, and the efforts of government to become more involved in land management, typically limit secondary use rights to tree and forest products. Partly as reaction to the induced institutional changes and the continued lack of progress toward gender equality in land tenure, policy initiatives of government and donors, such as the World Bank, have increasingly emphasized attention to gender-oriented reform of land tenure. One reform has been to legislate and enforce procedures of joint conjugal ownership over land upon marriage, with provisions for spousal consent over land use and transfer, and provisions for division of land upon the termination of marriage through death or divorce. Another reform has been to mandate that local tribunals that resolve land disputes include women. There has also been more attention to evaluating the effects of policy innovations, through the use of randomized control trials (RCT). In an RCT, one group or region is “treated” with the policy change, and another “control” group remains under previous tenure institutions. If treatment and control groups are randomly selected from an appropriate population, comparisons between the outcomes for the two groups enable estimation to the effects of the programs. Despite the methodological advances of randomized control trials and increasing prevalence of large-scale

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tenure reforms, the bulk of knowledge about changing land access still comes from anthropological-oriented small-scale studies of communities in rural Africa. These benefit from the researchers’ close knowledge of community dynamics, and enable the voices and interpretations of persons involved to be communicated to the larger academic and policy community. The plan of the chapter is as follows. Section 2 briefly introduces the prevalent male-biased land tenure systems prevalent across Africa. Section 3 summarizes anthropologically based understanding of how gender aspects of land tenure are evolving. Section 4 discusses results of recent RCT designed to measure impact of policy changes on gender equality. Section 5 offers some concluding thoughts. 2. Gendered land tenure in Africa A tenure system is a set of rules, processes and institutions that determine access and control over land and how to resolve disputes over land. Disputes must be arbitrated before they culminate in violence, and arbitrators rely on precedent and consistency in their decisions. Land tenure systems are often in flux and contradiction, however, with changing and competing precedents, jurisdictions and principles available to litigants. Moreover, litigants and their witnesses have interests in presenting different interpretations before an arbiter. There are, then, in most African societies, complex and varied discourses about land tenure. It is often hard to discern a “system” that fairly represents the ambiguity, intricacy, nuance and dynamic nature of tenure.

Some persistent and common elements can be parsed from land tenure discourses in Africa (Doss, Kovarik, Peterman, Quisumbing, & van den Bold, 2013; Kevane, 2014). First, land tenure is a complex, plural affair with multiple jurisdictional venues. The national state, regional and local government, traditional institutions such as chieftaincies, and ethnic and village traditions regulate land tenure. There are many arbiters of land tenure, and almost all are male. Second, most rural areas do not have government maintained cadastres of agricultural land, nor do they have government officials managing written records of land tenure. That is, land tenure is largely an oral affair, consisting of memories of transactions that are not notarized or submitted to government officials. The paperwork of transactions and disputes is haphazard and contested, and often has the same standing as people’s memories. Much of land tenure is local. Third, very little non-irrigated agricultural land is transacted through land markets, either as rental, sharecrop or through sales. There are few arms-length transactions. The bulk of non-irrigated land is allocated through a social process involving lineage elders and other local actors, and invokes discourses of community, ancestors, obligation, and responsibilities. Fourth, women are typically marginalized in the social processes of land allocation. A social process, by definition, involves a person’s identity (in contrast to a market transaction, where identity is largely irrelevant to the transaction). In much of rural Africa, a person’s identity as a woman rules out most of the “normal” processes for obtaining and keeping land. Women only have access through their husbands to small plots of land that they can farm on their own account, where they are socially-recognized as the farm manager. To the extent that women have access to land directly, it is usually in the form of secondary rights to tree products, wild plants, stubble and gleanings. This static picture masks change, and several broad trends are clearly visible on the African tenure landscape. First, property rights to land are becoming more individualized as markets for land rental and sales at the individual level are emerging in many regions. Individuals with lineage authority are severing land from social networks. This is often not in areas that have seen official centralized schemes to transform tenure through cadastres and title registers. Private landholding and individual transfer are more often a spontaneous emergence and the informal privatization of land may involve stark expropriation of marginal or secondary holders of land rights. Women may benefit from this privatization, though there are no large-scale surveys demonstrating any significant shifts in the gendering of land ownership.

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In most Africa countries, there has been perennial interest in reforming tenure to strengthen the institutions that secure individual and communal land rights (Jacoby & Minten, 2007; Joireman, 2008; Peters, 2009). Three arguments are offered for tenure reform. First, informal tenure may result in an excess of land disputes, and the constant contestation over rights reduces the incentives of farmers to invest in improving their farmland. Why invest a lot is a politically-connected neighbor can lay claim to your land? Tenure insecurity deters investments in land improvement, such as building terraces, planting trees, and applying manure. Second, banks may be reluctant to fund investments in land if the land cannot collateralize the loan. There may be too little lending for investment in agricultural because farmers do not have secure title. Third, tenure insecurity might lead farmers to continue farming extensively, instead of intensively, because they are reluctant to rent out land to others, for fear they might lose their rights as the person actually farming the land might be gaining ownership right. Despite these apparently strong arguments, it is widely acknowledged that state efforts to effectuate programs of individualized land title have rarely been successful. Instead, large amounts of money are spent on registration campaigns, but then little attention is devoted to institutionalizing the individualized land tenure system, and so informal, local tenure rules quickly reassert themselves. The changes happening in the 1990s and 2000s have been interesting because they have not generally been the result of a top-down policy change. Rather the changes have emerged from decentralized decisions and processes. Nevertheless, much evidence suggests that land titling programs have been and remain much more favorable to men(Widman, 2014). Land tenure insecurity often affects women more severely than men because women are typically already secondary rights holders. The insecurity and marginalization has direct effects on productivity and indirect effects by limiting opportunities to leverage assets. M. P. Goldstein and Udry (2008) showed that women were significantly less productive than men, in a large sample from rural Ghana, and that their lower productivity was due, in large part, to their insecure tenure. Because they had weak rights to land, women were reluctant to let land regenerate through fallow. Peterman (2011) estimated empowerment effects of women having title to land, using data from a sample of households from rural Tanzania. She observed the same women over a thirteen year period. Many of the women became formal co-title holders of land during the time period. The changes in women's title and also in inheritance rights were significantly associated with women's employment outside the home, self-employment and earnings. A second broad trend is partly a reaction to the pressures toward individualization of tenure. In many areas, local jural groups are reasserting and strengthening their rights to communal ownership of land. Lineage and ethnic groups across the continent lay claims to land, and the failures of individual titling have led many policymakers to explore granting of communal tenure certificates. Traditional chiefs and earth priests recognize their powerful positions as arbiters of land conflicts within and between groups. These arbiters of land tenure see that if land becomes individualized, their role becomes an anachronism. With their allies, they form an influential body of citizens interested in maintaining notions of collective ownership. The ostensible justification for formalizing their control is that corporate groups, with legitimate leaders, well-understood processes for resolving disputes, and clear and inclusive membership, would function like clubs. That is, they would share an interest in managing land effectively, and would be able to work out arrangements among members that would be mutually beneficial. They would reduce the likelihood and costs of tenure insecurity. The push to devolve authority to quasi-formal groups is attractive, not least because the simple devolution of powers has low costs for the national government. Corporate groups in Africa, as elsewhere, exhibit considerable variation in their willingness and ability to provide public goods. Some are authoritarian, with leaders using violence, threats of sorcery, and discourses of exclusion to maintain their power. Many are dysfunctional, with competition among interest groups within the corporate group undermining sentiments of

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legitimacy and solidarity. Corporate ownership of land has been a concern to social movements that promote gender equality, because virtually all customary institutions in Africa are dominated by men and promote discourses of women as subject to the authority of their husbands and male lineage elders. Nearly all patrilineal groups exclude women from leadership or even voice in corporate affairs. 3. Changing gendered land tenure in African societies Recent literature on changing access to land distinguishes between changes in rules and changes in the incidence of application of various rules of access. That is, sometimes some tenure rules change in ways that reduce access, but the incidence of women's access increases through use of other more favorable rules. There are two important processes of change that appear to be common to many African societies. The first process involves changing locally-understood definitions or meanings about what property can be controlled by what persons. That is, social identities related to land are changing. A second process involves changes in the incidence of what kind of person women are, moving from traditionally married wives to cohabiting wives. That is, social identities relating to husbands (or, more broadly, to men) are changing. Men and women negotiate definitions and meanings that are relevant to land tenure. These meanings are manipulated to favor one group over the other as the balance of power shifts from women to men. For example, sometimes particular crops are designated as male or female, or as individual or household crops, and control over land used for those crops shifts as control over the crop shifts. A number of studies the effect of irrigated rice cultivation on women’s access to land in Gambia drew attention to this process (Brautigam, 1992; Carney, 1988). Farmers recognized both common and individual land rights. Women had controlled rice fields that they had cleared with their own labor. Their rights were well defined: they controlled what they harvested, but more significantly they controlled the right to transfer land, which they generally did, to their daughters. State-initiated irrigation projects changed the landscape. Rice land was cleared and developed by male-centered development projects. Local men were able to claim land, partly because newly irrigated plots were categorized as household property that came under the control of male household heads. Moreover, inputs and mechanized services were allocated overwhelmingly to men. Women’s access to land was reshaped by redefining the meanings of the categories by which their access traditionally had been allocated. The new projects allocated some land to women, but that did not mean that women had the power to control the land. Irrigated crops turned out to be different kinds of crops, and control over land was linked to the crop cultivated, rather than to a spatial concept of ownership. Another example of changing meanings concerns the language and discourses of land tenure disputes. Sometimes women have been able to deploy notions of fairness, rather than equality, in pursuing land claims. That is, in local venues women argue that denying them land is unfair, or is contrary to fulfillment of their social roles as mothers. In other regions, rhetoric of rights and responsibilities emanating from labor on the fields has enabled women to assert control rights over land. As men move towards cities and migrate for work, women left behind on rural homesteads begin to adopt rhetoric that their work on the land entails communal recognition in the form of rights to the land. Some of this change happens as hitherto marginalized discourses in local land tenure mesh with national discourses that are increasingly moving towards more formalized equality of rights, impelled in part by ratification and dissemination of the CEDAW treaty. A second process that alters the terms of access to land rights is one in which the terms of marriage contracts change, and this affects the incidence of various kinds of marriage. In traditional marriages in many parts of rural Africa, the husband’s lineage is obliged to give the wife a small plot of land for her to farm on a personal basis. The land is compensation, in a sense, for her loss of freedom to pursue her own economic projects. Men are under considerable social pressure to honor this commitment. As rural economies differentiate, however, and women are increasingly

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able to operate as small entrepreneurs, many women no longer insist on access to a personal field. Those women who do want to marry under the old rules, and obtain a plot of land, find that potential husbands are less willing to commit. There are many women in the marriage market who will no longer insist on controlling part of the land. As the terms of marriage shift from the traditional marriage to less formal marriages, closer to cohabitation, the incidence of access to land by women falls dramatically. 3. Randomized control trials in land tenure policy Recent policy initiatives have emphasized large-scale low-cost implementation of tenure programs (such as certification programs, at both household and community level) and have included mechanisms to ensure more gender equity. These initiatives have responded to a perception that previous expensive and bureaucratic land titling efforts impeded, rather than facilitated, the emergence of individual property rights. The titling process often seemed to generate insecurity rather than tenure security, had perverse equity effects (especially for women), and had high implementation costs. Assessing the impact of policy and programs to reduce gender inequality has been facilitated by recent adoption of a methodology of randomized control trials (RCT) for land tenure interventions. In an RCT, some communities, households, or individuals, are randomly selected to participate in the intervention. Within this group, the nature or level of the intervention may vary (different programs, different costs). The non-selected group constitutes a proper control group for measuring the impact of the assessments. This methodology stands in contrast to the typical impact evaluations of the past: “pre and post” studies attributed all changes over time to the program, neglecting the often important effects of other factors that were changing over time; “participant vs. non- participant” studies neglected the importance of self-selection (by program designers or adopters). One of the virtues of RCT is that they permit estimation of the secondary effects of changes in land tenure. For instance, increased access to land by women might increase their bargaining power within the household, and enable more household resources to be directed towards children’s health and schooling. Observational studies have a very difficult time assessing these effects, because women with more bargaining power may have greater access to land, and so the causality runs from bargaining power to access and not from access to bargaining power. Moreover, other variables that are difficult to measure, such as inherent abilities, family background, and ethnic identity may be influencing both bargaining power and access to land. RCTs can experimentally manipulate access to land, and so permit estimation of the effects. One of the largest land tenure RCTs started in 2003 in Ethiopia. Communities were selected for a program to formalize land transactions. The program was not an official cadastre and titling program, but rather intended to improve recordkeeping and tracking of local land transactions. One of the key features of the program was that wives would be considered as equal legal actors in the land transactions. Under national law wives were co-owners with their husbands of marital property. The process was that a local committee for land use and administration was formed in each locality, supposedly by popular vote. The committee had to include at least one woman. The committee then issued certificates of land registration after public meetings. The certification program was envisaged as rapid and low-cost, in the sense that the goal was to deliver certificates to as many uncontested plots as possible. Indeed, over 20 million certificates were delivered in two years from 2003-05. A nationally-representative large-scale survey revealed that the program had a mixed impact (Deininger, Ayalew, Holden, & Zevenbergen, 2008). Many of the committees did not have women members and many apparently abnegated on their responsibility to issue certificates jointly to husbands and wives. In Oromia region, for example, where all titles were required to be issued jointly, 58% of certificates were issued only in the husband’s name. There was however some evidence of benefits to women. One analysis of the Ethiopia program suggested

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that female headed-households without access to family labor or cash to pay hired laborers benefitted by renting out their excess land holdings (Holden, Deininger, & Ghebru, 2011). A similar land tenure regularization program was undertaken by the government of Rwanda in the late 2000s. Legal changes provided for compulsory registration of property and of transfers of land, and customary law was no longer given legal standing. Reforms protected property rights of women in land held by their husbands, provided they were in a legally registered marriage. Ali, Deininger, and Goldstein (2011) evaluated a pilot program of land tenure regularization undertaken in 2007. The program intended to demarcate and adjudicate almost 15,000 parcels covering 3,500 hectares held by approximately 3,500 households. The pilot program chose to implement the program in areas where there were many former refugees, soldiers and female-headed households. The project identified plots on aerial photos. If a plot of land was not subject to any disputes, as verified by neighbors, then the program entered the plot in a registry book with the names of owners and the heirs who would have claims to the land. The program issued a land certificate upon payment of fee. In order to evaluate the program, the authors conducted a short survey with 3,500 households on both sides of four pilot area borders in 2010, two and a half years after the government implemented the pilot. They assumed that households close to boundary were similar, so those not in the pilot program constituted a valid control group. That is, the pilot project boundary was essentially arbitrary, just like a random selection, for households close to the boundary. The only difference between households on either side of the border was that on one side their plots were registered, and on the other side they were not. The authors estimated that the intervention led to a large increase of investment in soil and water conservation, with an even larger increase for female-headed households. Moreover, the likelihood that married women claimed to have ownership over land increased dramatically because of the registration program. Respondents in the pilot program zone were also much more likely to indicate that daughters would inherit land. Women in traditional marriages (such as polygamous marriages) did not enjoy the same benefits as women in the monogamous marriages formally registered. The authors observed that the fees for obtaining land certificates were probably too high. Since there were externalities from widespread access to title (reduced conflict, better land management, more transfers to efficient users of land), it made sense for the program to offer certificates at very low prices, or even for free. Another problem identified in the paper was that the program did not have a clear plan for managing the land registry as households conducted transactions and land transfers, and as household passed on land to the next generation through inheritance. Another form of land tenure project informs and empowers people about rights that they already have but do not exercise. Santos, Fletschner and Daconto (2012) evaluated a community awareness project undertaken in conjunction with Rwanda’s land regularization effort. The project delivered in 2011 a series of public dialogue and awareness raising programs in Musanze District in Northern Province. The target communities were both local officials and the residents affected by the legal changes. The researchers selected a random sample of 355 landowning households, including monogamous households under various forms of marriage, polygamous households, and households headed by widows. One third of the households were in villages outside of the program area, and constituted a control group. Overall, awareness of and participation in tenure regularization was extremely high, generally approaching 90% of the sample. The campaign was successful in changing men and women’s perceptions of tenure security, with these rising substantially compared with the control group. Socio-economic indicators of wealth, gender and ethnicity seem to have not been correlated with participation. The awareness campaign significantly affected responses to questions about whether sons and daughters were likely to inherit. However, wives in the awareness campaign area were less likely to be listed as having title, compared with the control group. The research further revealed a problematic ambiguity about the legal changes and their promulgation through awareness campaigns. Households were unclear

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about whether wives in polygamous households could share title with their husbands. Their marriages were not recognized by the state, which only recognized monogamous unions. Since husbands wanted to clarify inheritance for their children, in ways that would not lead to ambiguity about which children of which mothers would inherit, the husbands ended up in many cases having land registered in the name of their wife, rather than jointly. This outcome undermined, in local discourses, the land registration, since the local understanding was that the husband remained the owner, and the registration title was simply a document to satisfy the state. Down the road, one could imagine situations (divorce, death of the wife) where courts would likely have to make accommodation for local practice rather than strictly adhere to the letter of the land registration law. There have been two RCT studies of the impact of programs to promote community ownership of land. M. Goldstein, Houngbedji, Kondylis, O’Sullivan, and Selod (2013) presented preliminary results on the gendered effects of a randomized land tenure intervention in Benin that supported community ownership. The Plan Foncier Rural (PFR) program, funded by the United States’ Millennium Challenge Corporation, organized information campaigns about land rights, surveyed land, developed village use plans, adjudicated disputes and issued land use certificates. For an evaluation of the program, villages were randomly selected in 2008 from among those that applied. A survey of about 5,500 households in 2011, from 193 treatment villages and 98 control villages, measured a variety of agricultural and land use outcomes. Interestingly, the program appeared to have increased peoples’ fear that one of their fields might be used by someone else. Perhaps because of that, there was a small increase in trees planted (planting trees is a way of reducing insecurity) and decrease in land loaned out to others (people perhaps feared they might not recover a field loaned out). There were few other changes, and no increase in average productivity. There appeared to be, however, an increase in trust in the village land committee. When the data were disaggregated by gender, the authors found evidence that the program appeared to be reducing conflict (perhaps because of awareness that there was greater scrutiny surrounding land issues). Women were somewhat more likely after the program to obtain land, and increased their inputs, fertilizer in particular. Overall, then, the program seemed to be having more impact on women than men, though the results were very modest. Knight et al. (2012) reported on an important initiative to experiment with methods to protect community rights to land. The study selected 20 communities in Mozambique, 18 communities in Uganda, and 20 communities in Liberia to implement community demarcation and title processes that were established in each country’s land legislation. The communities were then randomly assigned to four different treatments. One group received monthly legal education sessions; a second group received the legal education and also regular visits by trained paralegals; a third group received regular assistance from lawyers; and a fourth group was the control group and simply received paper copies of relevant manuals and legislation. The communities were encouraged and supported in their efforts to establish a community land committee, demarcate community land, develop procedures for local adjudications, develop local land-use zoning plans, elect a legal local land authority, and proceed with steps to formalize community control vis-a-via the national government. Although the sample sizes of communities were too small to draw robust conclusions, the findings, after two years, were suggestive. First, the process for establishing formal community rights was very slow and drawn out. None of the communities had established legal rights by the end of the second year of the project. Nevertheless, the authors documented that the process, in Liberia and Uganda, but not Mozambique, had high levels of participation and numerous positive effects in improving local civic accountability. The authors found that the education sessions with paralegal support appeared to be more cost-effective than the other interventions. Finally, the report found considerable evidence that a participatory process, if explicit about the need to incorporate women’s land rights and supported by paralegals, could shift attitudes and community practices towards land tenure practices more favorable to women. The process in

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Mozambique, however, appeared to have had the opposite effect, undermining women’s rights. All in all, the results are mixed, in terms of gender outcomes, of these pioneering RCTs dealing with land tenure changes. The Rwanda trial found the largest effects for women; the other trials found small or non-significant effects, or even negative effects. It seems reasonable to conclude that there is still much to learn about what kinds of interventions will favor women’s access to land and consequently lead to improvements in productivity, incomes, bargaining power and well-being. A study on an RCT for urban land in Tanzania suggests that access to titling and subsidies to cover that cost of titling can have significant positive effects on co-titles that include wives (Ali et al., 2013). 5. Concluding thoughts Women’s ownership and control over land in African is limited and marginal. There are processes at change underway. Endogenous processes include changing patterns of marriage, and changing discourses concerning the gendering of agricultural crops. Exogenous processes include donor-funded land registration and awareness programs. National governments, pushed by narrow but sometimes effective women’s movements, have revised land legislation to be more gender neutral. There is little evidence from early randomized control trials indicating that recent female-friendly land tenure programs have significant positive effects on women. This may be because programs are implemented in ways different from intended, or that local processes of land tenure favorable to men are deeply embedded and marginal efforts at government intervention produce unintended consequences at the local level.

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