Phillan Zamchiya
Policies, laws, and constitutions – written and unwritten – play the biggest role in many parts of the western world in governing land tenure relations given the dominant forms of individualised forms of property. However, my brief field visit to Damali village, an African Muslim community, in Senegal on 8 October 2024 confirmed a different conundrum of statutory, customary and religious systems that shape the way men and women gain access to, use of and control over land. The co-existence of legal systems is called legal pluralism and it is common in Muslim and non-Muslim communities in Africa, mainly as a result of colonialism and apartheid. From the onset, it is important to highlight that Senegal is formally a secular State meaning that it does not consider any religion as the official religion even though 95% of its population is Muslim.
There are three main sources of authority and governance over land in rural Senegal. First is Sharia law, based mainly on the Quran (Islam’s holy book) and the Sunna, referring to practices and sayings of Prophet Muhammad. Sharia law has a significant influence on land rights for men and women living not just in Damali but in many Muslim societies in Africa and the Arab world.
Second is customary law, which refers to a system of usually unwritten rules, practices, and customs of local communities. Across Africa and in the Global South, customary law plays a significant role in defining the relationship between people and land, especially in rural areas. Third is statutory law, which refers to a set of written laws usually enacted by a legislative body.
The Senegalese people navigate across customary, Sharia, and statutory laws. But how do the locals characterise their land rights?
As I heard it from the field, there was no single narrative that referred to land rights as individually owned. Speaker after speaker referred to family and collective land rights. One of the elders made it clear when he said: “Here [in this village] we have family and village land rights, and the idea of individual land rights is foreign.” They spoke of metruke and musha, which is common land. These observations are consistent with our findings from Southern Africa, where despite policy interventions that leaned towards individualisation, village land continued to be considered for the collective good. This demonstrates the resilience of African social tenure systems as argued by Okoth-Ogendo. The spirit of sharing rather than individualisation is reflected in many aspects of the Damali people’s social life. Even lunch was eaten as a group out of the same dish with no individual plates.
The practice of sharing customary land rights is now well reflected in a new decree – no. 2022-2307. The decree enables the establishment of collective land use rights in the national domain. According to the village elders, this was a positive development because modern law aligned with local practices, rather than sole foreign principles of exclusive individualisation of land rights.
Under the new decree, all family members can now register their land rights. Claasens and Ngubane have consistently criticised tenure reforms in Africa that failed to understand the collective nature of land rights and as a result imposed an alien system of exclusive individual rights on a pre-existing system of family rights. The community elders were clear that they would only regard statutory law as socially legitimate if it aligned with their understanding of Shariah law and customs. This is also why they did not implement Senegal’s Family Code. According to them, it was hostile to Islamic and African values by abolishing unilateral dissolution of marriage and making court divorce mandatory.
A civil society activist on land rights in Damali village told me that according to the law, rural land is a national domain. He was making reference to the Law No. 64-46 of 17 June 1964 on the national domain. Elected rural councils/communes have the sole legal mandate to grant land use rights to their members that are neither transferable nor transmissible. These allocations, at law, he emphasised, “can-not be sold or bought”. This was similar to the outcomes of PLAAS’s study on women’s land rights, which showed that in Mozambique, South Africa, Zambia, and Zimbabwe it is illegal to buy or sell customary land, though informal and vernacular land markets exist. This might have its origins in a particular version of African socialism. The civil society activist also emphasised that any other allocations by traditional leaders are strictly speaking illegal in rural Senegal.
As a result, civil society organisations supported the allocation of land through municipalities to strengthen land rights, especially for women. They preferred this system because the new state decree – no. 2022-2307 – provided for all family members to sign the application form for registration of land rights. According to a civil society activist, “Until 2022, a single person could be listed on an allocation title and it was usually a man but women can now be recognised as co-owners of their family land.” The inclusion of all family members was much more expansive than our experiences in Mozambique, where the 1997 land law, considered one of the most progressive in Africa, allows for joint registration of land rights for the husband and wife.
The registration was done through employing land agents and planning officers paid by donors to help with the registration of land rights. The officers surveyed, zoned, and mapped the village so that the land could become legible and easily parcelled, a reflection of Scott’s simplification of complex tenure regimes. Family members could approach the municipality directly and have their claimed land rights registered subject to local verification processes. However, the uptake was slow. On the other hand, the sustainability of the land officers to allocate land was also in question.
I visited the local land agent’s office and it was equipped with a computer, desk, stationery and all the things were bought by a donor. However, the donor-funded project was coming to an end in 2024. It seemed there was no clear plan to ensure sustainability of the programme. It waits to be seen whether the land register can be maintained and updated in the absence of donor funds.
As Ben Cousins, a former PLAAS director, has consistently observed, land registers are recurrent costs, and are almost always out of date in Africa. In our study in Nyimba district, Zambia, once the project to fund para-surveyors and paralegals who helped with registration of land rights came to an end, the programme drastically slowed down and the computer register was out of date.
Nevertheless, in practice, the majority of land use rights were still allocated by customary authorities and in some cases using Islamic principles. An independent national study showed that more than 60% of rural land was allocated “illegally” in Senegal, meaning outside the law-mandated rural councils. To the chagrin of modernists, customary allocation of land in Damali was considered socially legitimate by the locals, as was the case in many Southern African contexts mentioned above.
How have women’s land rights fared under these conditions?
I left with an impression that both women and men have insecure land rights but women were more disadvantaged. The customary authorities who allocated land were patriarchal in many ways. Customary authorities appointed a man – usually a father or eldest son – to manage family land. I asked one of the village elders if a woman could be appointed as a manager of the land. He unequivocally responded: “No, it always has to be a man”. This is despite Article 15 of the 2001 Constitution, which states that “men and women shall have equal access to the possession and ownership of land under the conditions determined by law”. In Damali, women family members were not given the same status as envisaged by the modern law. As we discussed land issues at a village meeting, the community elders in charge of land administration who sat at the high table were all men. From my observation, other women in the group were not free to talk about the state of their land rights. In this regard, custom discriminated against women and girls because of their gender. It was therefore not surprising that despite state laws, only 15% of plots are estimated to be owned by women in Senegal.
Senegal is not an exception because gendered, unequal access to land is a global issue. Globally, less than 15% of all landholders are women across Muslim and non-Muslim communities, according to FAO. The problem is certainly not confined to but is more present in Muslim communities where ownership rates are lower. The distribution of women landholders is estimated at 4% in the Muslim-predominant Middle East and North Africa, according to the Organisation for Economic Co-operation and Development. Independent studies by the UN Habitat suggest that in Afghanistan only 2% of women are agricultural land holders, in Egypt 4%, Saudi Arabia 1.4%, Sudan 6%, Niger 6.6%, and Oman 7.7%.
My conversations with Ombretta Tempra, a land specialist at UN Habitat on 25 September in Rabat, Morocco, indicated that it would take the world 142 years to close the gender gap in some Muslim communities. Nevertheless, gender transformation and development cannot just be reduced to how many land certificates have been issued to women. Our study in Mozambique and Zambia showed that ownership expressed through a name on the certificate was not necessarily reflected in the actual power relations on the ground, governing who controlled the land, and it did not necessarily lead to transformation of these patriarchal relations.
It is also important to note that inheritance was a major avenue through which women could gain access to land use rights. This is common in most Muslim communities. In the Middle East and North Africa, Muslim majority communities more than 90% of women gain land through inheritance. However, in Damali, Muslim girls and women had to get half the share of male family members in line with the local understanding of Islamic rules. This was also reflected in Senegal’s Family Code introduced in 1972. Even in countries like Malaysia with progressive constitutions and laws that advocate for equal rights to inheritance, Muslim women and girls’ rights are still regulated by the Sharia law. As Fatou Kiné Camara has argued, “when legitimate heirs are not all of the same gender, females receive only half of what the males get, for no other reason than that they are females”. This was discriminatory when measured against international declarations and conventions promoting human rights and gender equality.
However, some of the locals defended the practise, arguing that it was equitable because men were in turn expected to provide for the family. However, a UN Habitat study has shown that “in most Muslim families, women are equal or majority contributors to the family economy with either in kind or in-cash contributions”. In addition, I was told that women were in some cases “volunteering” to cede their inheritance rights from their original families in order to preserve and protect the family. Women feared to be ostracised from their original families if they accepted to inherit their land rights. A study by the Arab Land Initiative showed that 60% of women do not claim their land rights due to fear of family reprisal in Muslim communities. However, there have been rising cases across the world, where women are forced to renounce their inheritance rights and are convinced that Islam forbid them from doing so. This could either be a result of misinterpretation of the Islamic rules or a deliberate assault on women’s rights to inherit land.
On the other end, if a woman marries she loses her land use rights from her original family. She is expected to acquire new land use rights through her husband. However, in the case of divorce or widowhood, she can return to her family of origin to be under her father or brother’s guardianship. Single, married or divorced, in Damali village, a woman’s access to land rights is determined through her relationship with men. These practises contrast a better view that, “all key Islamic legal sources, particularly the Quran and Sunna, support women’s full property rights, irrespective of marital status. Muslim women have absolute rights to acquire property and land throughout their life course and, whether married or not, have historically enjoyed autonomous legal identity and separate property rights”, as articulated by articulated by Annelies Moore in her book Women, Property and Islam: Palestinian experiences 1920-1990. One of the local guys explained to me that the traditional leaders and religious leaders often exclude women from inheriting land and property based on discriminatory practices, wrongly believing these are Islamic principles. Siraj Sait and Hilary Lim Sait in their seminal book Land, Law and Islam explained that Muslim women from as early as the seventh century, whether married or not, have enjoyed independent legal property rights. This is profound because a UN Habitat study on Women and Land in the Muslim World observed that until the end of the 19th century women living under common law in England had their identity and property rights merged into those of their husbands. UN Habitat further noted that France also did not recognise women’s land rights until 1930. Part of the problem in Damali village like in many parts of the Muslim world is the misinterpretation of Islamic principles and the fusion with discriminatory customary practises.
Senegal is not an exception because gendered unequal access to land is a global issue. The way forward is not as simple as dreaming that the statutory law will one day miraculously trump custom and Islam in the day-to-day governance of land use rights. As history has shown, these are resilient and adaptive systems that will continue to shape land relations in general and between men and women. It is therefore important to use the progressive aspects of the law, custom and religion to secure and protect women’s land use rights. On the other hand, the discriminatory and patriarchal practices and laws need to be eliminated. Gender transformative land laws, Islamic and customary practices can all provide important direct and indirect multiple entry points to secure women and girls’ land rights but one needs to understand the opportunities and risks. The problem is that the local religious and customary leaders enforce gender discriminatory practices under the misunderstanding that they are Islamic or African customary practices. The discriminatory practises are partly a product of distorted versions of customary law due to colonialism. On the other end, there are modern state laws that are not considered socially legitimate and disconnected from everyday tenure relations. Building collective agency among religious leaders, community leaders, traditional chiefs, judges, civil society, communities, families, women and men will be key to securing women’s land rights in legal pluralistic societies.
