Indigenous and rural women’s rights to the vital lands and resources, and their voices in the governance of these lands, have not earned significant attention in development circles, as per a recent report by the Right and Resources Initiative. The study titled Power and Potential: A comparative analysis of national laws and regulations concerning women’s rights to community forests, May 2017 provides a first-time assessment of this less recognised fact. All this notwithstanding the fact that women make up more than a half of the population in these lands that encompass over a half of the total global land-mass.
Legal framework related to forests, land, natural resources of thirty low-and middle-income countries from Africa, Asia, and Latin America were analyzed in the study. The primary point of analysis of the study was the formally recognized community-based tenure regimes.
The study adopts a rights-based approach to conceptualize the statutory rights of women in community-based tenure systems by addressing eight legal indicators essential for the protection of women’s forest tenure rights: 1) constitutional equal protection; 2) affirmation of women’s property rights; 3) membership; 4) inheritance in overarching laws; 5) inheritance in community-based tenure regimes-specific laws; 6) voting (governance); 7) leadership (governance); and 8) dispute resolution.
The first three are the overarching indicators while the rest are community-based tenure systems specific indicators. Community-based tenure regimes can be “understood as a distinguishable set of national, state-issued laws and regulations governing “all situations under which the right to own or manage terrestrial natural resources is held at the community level”. Eighty community-based tenure regimes were identified and examined as a part of the study.
The statutory recognition of women’s rights to community forests leaves a lot to be desired, the study finds. “Gender justice in land rights extends beyond the agricultural and private property arenas that have-to date-been the focus of development organizations, writes Andy White, Coordinator, Rights and Resources Initiative in the report’s foreword.
“Although gender norms and women’s forest tenure security vary widely across community-based tenure systems, this analysis concludes that national laws and regulations (referred to generally as “statutory laws”) on the rights of indigenous and rural women to inheritance, community membership, community-level governance, and community-level dispute resolution are consistently unjust, falling far below the requirements of international law and related standards”.
The study finds that “of the 30 low and middle income countries analyzed, 93 percent constitutionally prohibit gender-based discrimination and/or guarantee women equal protection under the law, and over half have overarching statutory laws that generally affirm women’s property rights. Of the 80 community-based tenure regimes analyzed, however, adequate gender-sensitive provisions exist for only 3 percent of community-based tenure regimes in regard to women’s voting rights, 5 percent in regard to leadership, 10 percent in regard to inheritance, 18 percent in regard to dispute resolution, and 29 percent in regard to membership”.
There are a lot of inconsistencies between constitutional protections and other overarching national laws addressing women’s inheritance rights. Though the constitutions of 28 countries recognize gender equality or prohibit gender-based discrimination, less than one third of these “legally mandate that all daughters, widows, and unmarried women in consensual unions have equal rights to inherit alongside their male counterparts,” the study says.
At the regional level the study’s findings at the regional level: “no region provides consistently stronger legal protections for women across all eight of the indicators assessed”.
Given the tremendous gap between the rights of indigenous and rural women under international law and the rights currently recognized by governments, legal reforms are urgently needed to support this deeply marginalized group, which comprises over a billion people worldwide. There is a particularly pressing need for statutory reforms regarding women’s governance rights, inheritance rights, and their rights in conservation- and use/exploitation-oriented community-based tenure regimes. Women need not—and should not be compelled to—choose between the recognition of their own tenure rights and those of their larger communities.
The study shows that the legal advancement of women and of their communities can, and often do, go hand in hand. Much is at stake, but growing awareness of the importance of women’s tenure rights, and increasingly collaborative efforts among governments, business actors, civil society, and the development community, suggest that protecting the tenure rights of indigenous and rural women is well within reach.
As per the study, “even when community-based tenure regimes do recognize women’s voting and leadership rights, they are unlikely to require a quorum of women voters or leaders before a governance body is permitted to take binding action. Only two CBTRs require a quorum of women with respect to voting – Zambia and India’s Forest Rights Act.
The key recommendation of the study is that governments should prioritise legislative reforms on “statutory provisions recognizing equal rights for all indigenous and rural women to inheritance and community-level governance”.
The full report can be downloaded here