Responsible governance of tenure must be gender sensitive

Thursday, November 16, 2017 - 22:00

The livelihoods of hundreds of millions of people, particularly the rural poor, are heavily dependent on secure and equitable access to and control over land and natural resources which are in turn the source of food and shelter, the basis for social, cultural and religious practices, and a central factor in economic growth.

While each country’s unique tenure system and challenges require tailored responses, there is a need common across most countries, for substantial investments in land governance, management and administration, as well as more focused work to address those sections of society whose tenure rights are the weakest. This particularly applies to marginalized communities- women, small-scale food producers and indigenous groups.

The Voluntary Guidelines on the responsible Governance of Tenure of land, forest and fisheries- VGGTs, together with the AU Framework and Guidelines for land policy in Africa- AU F&G, both provide progressive internationally accepted principles and norms for defining policies and practice for governance of tenure that particularly safeguard the interests of the poor and marginalized land dependent sections of society.  To give effect to these guidelines, ActionAid developed a Toolkit for assessing gender-sensitive implementation of the VGGTs and the AU F&G at country-level. The toolkit was piloted in four countries- Senegal, the Gambia, Netherlands and Australia, with key lessons emerging and captured in this report.

At ActionAid, we believe that strategies aimed at achieving the following principle are key to achieving the right governance of tenure that can be termed as responsible

1: Inclusive multi-stakeholder platforms

Multi-stakeholder platforms are encouraged in the VGGTs as the recommended approach to the implementation, monitoring and evaluation of the Guidelines, in order to ensure participation, collaboration, transparency and accountability in these efforts. Multi-stakeholder platforms may be established at multiple levels and should be gender-sensitive and particularly involve representatives of marginalized and vulnerable groups. The AU F&G recommends participatory process in the “design of land policy  formulation and implementation strategies”

2: Recognition of customary rights and informal tenure

One of the principal tenets of the VGGTs is the recognition of all existing legitimate forms of tenure, both formal and informal, very key for indigenous peoples and marginalized  communities. The VGGTs call on states to provide appropriate recognition and protection of the legitimate tenure rights of indigenous peoples and other communities with customary tenure systems and to adapt their policy, legal, and organizational frameworks to recognize such tenure systems. Similarly, the AU F&G advocates for the recognition of the “legitimacy of indigenous land rights’’ and calls for consultation and participation in policy processes, by those who have legitimate tenure rights that could be affected by policy decisions. 

3: Gender Equality

The VGGTs include Gender Equality as one of the principles essential to responsible governance of tenure, and calls on States to ensure that women and girls have equal tenure rights independent of their civil and marital status. The AU F&G recognizes that “gender discrimination” is pervasive in Africa and that there is need for women’s land rights to be strengthened, regardless of their marital status.

4: Protection from land grabs

The VGGTs offer several recommendations on measures that States can take to prevent loss of legitimate tenure rights resulting from large-scale land acquisitions, as per the human rights principles. State should provide safeguards to protect legitimate tenure rights, human rights, livelihoods, food security and the environment from risks associated with large-scale land acquisitions. Similarly, the AU F&G note that enhanced agricultural exports could lead to increased state revenue, implying a bias towards large-scale commercial agriculture. As a safeguard, the Guiding Principles for Large Scale Land Acquisition also adopted by the AU  stress the need for all land-based investment decisions to respect human rights, including customary rights and the rights of women.

5: Effective Land Administration

A continuing challenge in many countries is the absence of effective institutions, land registries and community action for land management. The VGGTs provide multiple recommendations about land administration to increase land tenure security of small-scale food producers. “States should provide systems… to record individual and collective tenure rights in order to improve security of tenure rights.” For effective land administration, both the VGGTs and the F&G advocate for policy implementing agencies to ensure that policies and laws are effective and gender sensitive manner.

6: Conflict resolution mechanisms

Independent, reliable and effective conflict resolution mechanisms are key to ensuring justice and land tenure security of the poor, particularly women. The VGGTs promote the development of appropriate and effective alternative forms of dispute resolution, while the F&G advocates for the “prevention of conflict” and “resolution through mutually acceptable dispute processing mechanisms” and strengthening conflict resolution methods.

We now have an excellent toolkit to help CSOs and communities assess how these key principles are being implemented at country and local levels. In this toolkit are 3 interrelated, yet independent tools focusing on:

  • Tool 1 looks at records the policy and legal framework currently in place. 
  • Tool 2 to assess how the legal and regulatory frameworks are operational and implemented at the local level; and
  • Tool 3 Assesses implementation of the VGGTs in foreign policy and donor relations for OECD countries

In piloting these tools, some interesting lessons emerged from Senegal, the Gambia, Netherlands and Australia. It emerged that prior training is really useful in helping the communities do the analysis and have an understanding of their rights to participate in land governance. The assessment provided communities with an opportunity to learn on the use of the tool at the same help them to understand tenure systems and how it affects them. For this, translation of the guidelines and the tools in languages appropriate for communities is key.

Similarly, the systems and institutions in place had problems implementing the two guidelines and the training and analysis helps these institutions to understand their duties (based on commitments they have made internationally towards these guidelines).  The Gambia Government for example recognized the challenges inherent in the traditional land tenure regimes, which does not give space for women to fully participate in decision making regarding land administration.  However, the tool provides great potential for women to engage government to demand for their rights.

Sharing findings with CSO appreciated as the tools can be used to enhance the relationship with the state and the communities in order to improve land governance.  

The policy level assessment helps to make concrete recommendations on what these policies should contain. As such, It was useful to engage with the government to clarify issues related to such policies, and respond to concerns for example why we are very particular about customary tenure as well as gender

The nexus between international trade and land rights also emerged . Trade has a potential effect on land laws, particularly where there are Investment State Dispute Settlement provisions in trade agreements.  Similarly, extractive activities have potential to lead to loss of tenure rights for women and communities,although, both guidelines do not cover the governance of mines and mineral.

It was also clear that we have to address the close link between land and natural resource rights (the complexity of it all).

Find the toolkit here, and the assessment report here.