a legislation assessment tool for gender-equitable land tenure the gender and land rights database...
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A Legislation Assessment ToolFor Gender-Equitable Land Tenure
The Gender and Land Rights Database
Social Protection DivisionThe Food and Agriculture Organization of the UN (FAO)
Overview of the Gender and Land Rights Database
81 Country Profiles
Data: Land tenure, total number of holders, female holders, GINI land concentration index
National legal framework: Rights entrenched in the Constitution Women’s tenure rights in personal laws and labour laws Inheritance Land legislation Policy measures and legal mechanisms promoting or preventing the realisation of gender-equitable land
tenure Information on the status of ratification of international treaties and conventions Information on customary law, land tenure and CSOs
Objectives of the Gender and Land Rights Database
Highlight the major political, legal and cultural factors that influence the realisation of women’s land rights
Provide up-to-date country level information on the legal developments and factors that promote or prevent the realisation of gender-equitable land tenure
Highlight gender disparities in land tenure
Mainstream international standards and best practices for gender-equitable land tenure
Support processes working towards the realisation of gender-equitable land tenure
Provide relevant statistics on women’s access to land
Legal framework for gender-equitable land tenure
International instruments and gender-equitable land tenure
Legally-binding instruments Non legally-binding instruments Pervasion of these instruments in national legal frameworks
Gender-equitable land tenure in the national legal framework
Different national legal systems Common law systems Civil law systems Religious (Sharia) legal systems
Different legal instruments Constitutions Statutes Regulations
Different normative systems Customary law Religious law
Purpose of the Legislation Assessment Tool (LAT)
Answer the question: to what extent does the legal framework foster gender-equitable land tenure?
Provide a global snapshot of the de jure situation of land tenure from a gender perspective
Help visualise the legal intricacies surrounding men and women’s access to land:
Through clusters of key elements
Through indicators that analyse the articulation between: statutory law and customary norms statutory law and religious norms
Monitor progress towards gender equity of land tenure in the legal framework
Help identify:
Strengths, weaknesses, opportunities and threats in the legal framework
The progress made towards gender equity in the legal framework
Areas where legal reform is needed
Theoretical Foundation
The LAT indicators draw from a range of international standards and good practices:
International standards (legally and non-legally binding): Developed in multilateral negotiations Have already built international consensus
Good practices: to fill in the gaps
• 8 Key elements Ratification of human rights instruments Elimination of gender-based discrimination in the constitution Recognition of women’s legal capacity Gender-equality of rights with respect to nationality Gender equality in property rights Gender equality in inheritance Gender-equitable implementation, dispute mechanisms and access to justice Women’s participation and leadership in national and local institutions enforcing land
legislation
• 30 indicators
Methodology and Scoring Mechanism
• The LAT promotes an integrated system of land tenure:
Promotes the incorporation of informal normative systems into the general legal system Therefore customary and religious sources of law are only covered insofar as they are
incorporated into the formal legal system
• The LAT assessment covers three sources of law: constitutions, statutes and regulations
Relies primarily on the information contained in the various sections of the GLRD Sources include FAOLEX, official journals, ministries of justice, ministries of agriculture, and
ministries for gender equality. Reliability and accuracy in the scoring mechanism: the scores have been assigned using the actual
text of the legislation, referencing all relevant legal provisions.
• The LAT assessment is limited to a de jure analysis of the legislation pertaining to gender and land Not a de facto evaluation of gender-equitable land tenure
Methodology and Scoring Mechanism
Each indicator has been given an equal weight of 4 points:
Breaks down the different stages of policy and law making processes
Rationale Score
Absence of a key legal element in the legal framework 0
A policy is in its early stages (negotiations) 1
A policy is being finalised, integrating the indicator or suppressing existing discriminatory provisions 1.5
A draft legislation is to be submitted for deliberations 2
Primary law reflects the key legal element 3
The key legal element has been mainstreamed across the implementing legislation 4
Not applicable N/A
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (1)
1 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is ratified. Yes Yes Yes
2 The African Charter on Human and Peoples' Rights (ACHPR) is ratified. Yes Yes No
3 The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) is ratified. No No No
Key element 1: Ratification of human rights instruments SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (2)
4 The constitution prohibits gender-based discrimination. 3 3 0
5The constitution recognises customary law but states that gender-based discrimination in customary law is superseded by the principle of non-discrimination in the constitution.
0 0 N/A
6The constitution recognises religious law but states that gender-based discrimination in religious law is superseded by the principle of non-discrimination in the constitution.
0 N/A 0
7 The constitution promotes the adoption of special measures for the advancement of women. 0 0 0
Key element 2: Elimination of gender-based discrimination in the constitution SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (3)
8 Men and women have the ability to conclude contracts under the same basic conditions, rights and obligations. 3 3 3
Key element 3: Recognition of women’s legal capacity SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (4)
9 Men and women are able to apply for identity documents under the same conditions. 3
No provisionlocated
4
10 A female national can confer citizenship to her non-national spouse under the same conditions as a male national. 0 0 0
11 Women can confer citizenship to their children under the same conditions as men. 3 0 3
Key element 4: Gender equality of rights with respect to nationality SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (5)
12 The law recognises gender-equality in the right to own or control property regardless of the type of marriage. 0 3 3
13 The law recognises full or partial community of property as the default marital property regime. 0 3 0
14 In community of property regimes, spousal consent is mandatory for any transaction involving matrimonial property. N/A 3 N/A
15 The law establishes a presumption of joint ownership of property in consensual unions. 0 0 0
16 The legal framework includes provisions for the promotion of women’s rights to land, property, and/or productive resources. 1 1.5 1.5
Key element 5: Gender equality in property rights SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (6)
17 The surviving spouse is granted user rights to the matrimonial house for life. 3 0 0
18 Under the law of succession, women are entitled to a minimum share of matrimonial property. 3 0 3
19 The law allows partners living in consensual union to inherit from each other. 3 0 0
20 Brothers and sisters have an equal right to inherit. 3 3 3
21 A right to compensation of other siblings giving up their claims on the family property exists. 0 3 0
Key element 6: Gender equality in inheritance SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (7)
22 Decentralisation of land administration services is effected through customary land institutions. 3 N/A N/A
23 Decentralisation of land administration services is effected through formal land institutions. N/A 4 4
24 The law guarantees gender equality before the law. 3 3 3
25The law guarantees gender-equal access to judicial systems and statutory or customary dispute resolution mechanisms to resolve disputes over tenure rights.
No restrictions
found
No restrictions
found
No restrictions
found
26 Men and women can opt out of customary processes and appeal to formal justice systems for redress. 0 N/A N/A
27 The law makes provision for legal support in civil procedures. 3 4 3
28 A human rights commission or gender-specific institution is in place. 3 0 2
Key element 7: Gender-equitable implementation, dispute mechanisms and access to justice SL MG MA
Application of the LAT – Country comparison Sierra Leone, Madagascar and Morocco (8)
29 The law sets quotas for the appointment of women in land management and administration committees. 2 1.5 1.5
30 The law sets quotas for the appointment of women in land dispute resolution committees. 0 0 0
Key element 8: Women’s participation and leadership in national and local institutions enforcing land legislation SL MG MA
Application of the LAT – Mapping Country Support
Sierra Leone
Madagascar
Morocco
Mainstreaming Gender in Land Governance: Linkages and Opportunities for Synergies
Contributing to the Implementation of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security
Opportunities for synergies with the Land Governance Assessment Framework
Increasing Data Availability on Women’s Rights: The Women’s Economic and Legal Empowerment Database for Africa, The Women, Business and the Law Project Landesa’s LandWise
