Securing women’s customary rights in land: the fallacy of institutional recognition
Authors Wilmien Wicomb
Affiliations: Attorney, Constitutional Litigation Unit, Legal Resources Centre
Source: Acta Juridica, 2013, p. 49 – 72
The general wisdom of a decade ago that the privatisation of property rights and registration of individual titles on communal land would ensure the protection and promotion of women’s land rights in Africa, has all but successfully been dispelled. As an alternative, the strengthening of customary tenure systems and localised land administration as the panacea to ensuring equitable tenure security on the continent have received a lot of attention. This alternative is apparently facilitated by the move across the continent to afford customary law recognition as a source of law. This paper investigates both the alternative of strengthening customary law institutions in order to strengthen women’s customary tenure and the prior assumption that customary law is now properly recognised by domestic systems on the continent. Drawing on the South African experience that includes explicit constitutional recognition of custom and rigorous engagement from the Constitutional Court, the paper argues that the problem is no longer the recognition of customary law, but the manner in which such recognition occurs. Relying on the theory of complexity to understand empirical examples of women asserting stronger property rights under customary law, the paper attempts to unpack what proper recognition should entail in particular in order for it to be a tool for the protection of the rights of women. Finally, and in relation to the work of Christian Lund on the nature of property rights, it enquires into the potential role of the courts and the legislature in the proper recognition and development of customary law.