Women’s rights on land

07 Mar, 2021 - 00:03 0 Views
Women’s rights on land The Government has established a quota system wherein women are entitled to get a share of all land identified for resettlement.

The Sunday Mail

Thammary Brenda Vhiriri

IT is important to understand the type of tenure titles regulated by relevant laws. Statutory Instrument 53 of 2014 regulates A1 farmers who are permit holders. The Government of Zimbabwe decided to decongest rural areas by creating the A1 permit tenure system, wherein resettled people could treat their newly allocated plots as homes primarily for subsistence upkeep.

Secondly the Government allocated A2 farm models on a commercial basis, as a business contract with the expectation that A2 farmers will produce at a larger scale to feed the nation and for export purposes. It is the expectation that over time, offer letter holders will eventually graduate to become 99-year lease holders. This is why the Government is reluctant to sub-divide farms upon divorce and death of title holders as this will affect the viability of the farm hence interfering with the expected outcomes.

Milestones have been made to protect the property rights of women and the instruments are being analysed. Women can apply for land in their own right. Further, the Government has established a quota system wherein women are entitled to get a share of all land identified for resettlement.

It remains to be seen how effective this quota system has been followed by the allocating authority, as the statistics cut across other considerations such as war veterans and youths. It is my submission that women war veterans be honoured as such by right, so as to create more space for other ordinary women. Women also own land through relations such as marriage or inheritance. However, most women who own land through marriage are reluctant to have their names on the tenure document, and this has a strong bearing on their rights as I shall indicate below.

Statutory Instrument 53 of 2014 provides that, if a permit holder is married to one or more spouses at the time, the permit is signed, his or her spouse (s) shall be deemed to hold an equal joint and undivided share in the allocated land. On the other hand, if both spouses are signatories to the permit, they both automatically hold equal joint and undivided shares in the allocated land.

The consequences of failing to have one’s name on the tenure document are felt upon divorce, as the spouse who holds the tenure document is given superior rights of buying the other party out with very limited or no recourse for the other spouse.

However, if both parties have their names on the tenure document and if neither of them is willing to be bought out, their case has to go for arbitration as provided by the Arbitration Act (Chapter 7:15). According to the instrument the party who is most likely to develop the plot further will get the right to buy out the other.

Unfortunately most women do not insist on having their names on the tenure documents in order to enhance their protection under the law. Be that as it may, the women might have their names on the tenure document, but might not be the financiers.

In most cases the women are the ones in occupation of the farm ensuring production and maintenance of the farm as such, the predetermination by Section 14 (3) of the Statutory Instrument that the arbitrator should award in favour of the party responsible for development is largely biased against the non-financial contribution by women.

Both scenarios are unfortunate as in some instances the male partner may refuse to apply for the inclusion of the wife’s name on the tenure document, while the set standards for evaluating contribution upon divorce continuously reinforce patriarchy by disregarding the importance of non-financial contributions by women.

The law recognises polygamous marriages, but does not give the right to undivided shares to the subsequent spouses married after the signing of the tenure document. Section 15 (a) (ii) of Statutory Instrument 53 of 2014 ensures that these women have the right to occupy and use the farm through the leave of the husband but cannot claim an equal share upon divorce or death of spouse. Thus a subsequent woman under a polygamous marriage may spend part of her lifetime on the farm but upon the death of the husband or divorce, she is left vulnerable.

The Government is reluctant to subdivide the farm between divorcing parties, but in practice some farms have been divided between divorcing parties at the discretion of the Ministry of Lands. This position gives too much discretionary powers in the hands of a few individuals. A set standard should be provided as to when and how many times a farm can be subdivided upon divorce, so that the process is transparent and should benefit everyone and not a selected few.

Further the Ministry of Lands, Agriculture, Fisheries, Water and Rural Resettlement — although it is an administrative body — is left to deal with divorce and inheritance of the farms, which in certain instances have complex legal implications. Also, the plot/farm is distributed in isolation of the other properties shared by the parties. It would make better sense if the court is tasked to do the dissolution of all properties including the farms, after being privy to the rest of the properties shared between the parties. If the process of subdividing farms is made transparent, the Ministry of Lands could submit to the court a technical recommendation of whether or not it will be viable for the farm in question to be subdivided and the court makes an informed and holistic decision.

Where a party is to be bought out, it is provided that the valuation is valid for 12 months and looking at the hyperinflationary rate in Zimbabwe, this position may result in the non-signatory party walking empty handed yet the remaining spouse stands to benefit from future activities such as private investors or increase in property value.

It would appear that there is no time limit within which the compensating spouse should comply with the order to compensate save for the provision that the evaluation process is revised after every 12 months. In the meantime, the non-signatory party retains the right to undivided shares over the plot until they are compensated.

This is an ambiguous provision as this does not expressly entitle the ousted party the right to occupy and use the farm as she waits for the compensation. Instead, it simply protects her interests over the property. Thus the ousted party cannot make long or short term plans in respect of the plot as she waits for the logical conclusion of the matter, because there is no set time imposed on the other spouse.

Clause 7 of section 13 indicates that one cannot make a will in respect of a farm to nominate beneficiaries of choice outside the surviving spouse as has been determined by the recent court judgement in the Chigwada case. Thus, the signatory to the tenure document does not have the liberty to oust the other holders of joint and undivided shares in the allocated land on the basis that the property is in his name.

Taking into cognisance Government efforts in improving land administration after the land reform programme, and the progressiveness in protecting the property rights of women, the continued efforts of refining the structures and processes will go a long way in achieving the main objective of empowering Zimbabwean farmers.

Recommendations

l There is great need for the Ministry in charge of Lands to provide a clear formula for the subdivision of farms in the event of a divorce, just like there is a clear procedure for the down -sizing of farms.

l Make the process of including a spouse on the tenure document easier for the women or otherwise married spouses should be given an equal standing as that of the signatory.

l Consider free market between indigenous people in order for one to create real value of farm land and subsequently translating to fair value for compensation;

l Divorce and inheritance cases to be handled by the courts for a holistic approach, with the guidance of a technical report from the Ministry in charge of Lands;

l Provide a time limit within which a signatory to the permit should pay compensation to the other ousted party.

Disclaimer: The information set above is by way of guidance. Specific advice should be sought on merit for each case.

 

Thammary Brenda Vhiriri is a practising Attorney, Conveyancer and Notary Public at Zuze Law Chambers, registered with the Law Society of Zimbabwe with a wealth of experience in Land and Mining Law, She writes in her personal capacity and can be contacted on +263772979277 WhatsApp or +263715057007 or email [email protected]

 

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