Breathing life into dead theories about property rights : de Soto and land relations in rural Africa

Presumption of a direct causal link between formalisation of property rights and economic productivity is back on the international development agenda. Belief in such a direct causal relationship had been abandoned in the early 1990s, following four decades of land tenure reform experiments that failed to produce the anticipated efficiency results. The work of Hernando de Soto has provided the springboard for this revival. De Soto argues that formal property rights hold the key to poverty reduction by unlocking the capital potential of assets held informally by poor people. De Soto’s justifications of formal title do not differ much from justifications that were advanced for ambitious land tenure reforms in various sub-Saharan African countries, starting with Kenya in the 1950s. Introduction of formal title in the African areas was seen as the key to solving problems of land degradation and improving agriculture by providing farmers with security of tenure that would create incentives for further investment in the land. This paper argues that there are five shortcomings in both the old and contemporary arguments for formalisation of land title. First, legality is constructed narrowly to mean only formal legality. Therefore legal pluralism is equated with extra-legality. Second, there is an underlying social evolutionist bias that presumes inevitability of the transition to private (conflated with individual) ownership as the destiny of all societies. Third, the presumed link between formal title and access to credit facilities has not been borne out by empirical evidence. Fourth, markets in land are understood narrowly to refer only to ’formal markets’. Fifth, the arguments in favour of formulisation of title as the means to secure tenure ignore the fact that formal title could also generate insecurity. Keywords: property rights; land relations; agriculture; poverty reduction; land tenure; Africa

For or against gender equality? Evaluating the post-cold war 'Rule of Law' reforms in Sub-Saharan Africa

The central question explored in this paper is: has the post-Cold-War rule of law (ROL) reform agenda in sub-Saharan Africa enhanced or impeded gender equality? Rule of law (ROL) reforms are seen as indispensable to establishing a market economy and democratic rule, the two prongs of the neo-liberal project. In sub-Saharan Africa, legal and institutional reforms that originated with the 'second wave' of political reform in the immediate post-Cold-War era have been justified in terms of these twin goals. The overwhelming emphasis and investment has been in creating a suitable legal and institutional environment for the market. Some attention has been given to the democratic-rule prong, for instance through reform of electoral laws and of institutional structures such as courts and national human rights commissions. The bulk of substantive legal reforms have focused on areas such as commercial codes, bankruptcy, banking, tax and property laws (including intellectual property), corporate governance and freedom of information. In this same period, the region has seen a significant rise in the profile and impact of movements concerned with gender equality. Some of the concerns of the gender equality movement do overlap with the ROL agenda. Examples include ending the vicious effects of corruption, ineptitude and institutionalized bias (including gender bias) in the functioning of institutions that administer justice; and progressive constitutional reforms that have the potential to enhance legal protection from gender-based discrimination. However, a juxtaposition of the law reform priorities with the priorities articulated by gender equality advocates shows that ROL reforms have not automatically translated into reforms that enhance gender equality. The gains for gender equality have been limited and hard won. A large part of the gender equality agenda remains unaddressed by the legal and institutional reforms undertaken so far. The main gaps identified are: Constitutional guarantees of rights have only a limited reach, particularly where customary and religious laws are not only allowed to regulate family matters but to supersede anti-discrimination laws. Reforms to property law have at worst deepened gender inequality and at best left existing biases intact. Official discussion of gender and land tenure remains disconnected from broader processes of economic restructuring, such as those affecting the financial services industry. Financial sector reforms have not been co-ordinated with reform of land and family legislation and practice, yet land and family law are at the heart of women's ability to access financial services..

Kenyan civil society perspectives on rights, rights-based approaches to development, and participation

This paper goes beyond conceptual debates to explore country level practice around emergent rightsbased approaches to development, and their relationship with more established practices of participatory development. Drawing from the perspectives of a cross-section of Kenyan civil society groups, the paper examines the extent to which these approaches overlap, and evaluates the prospects for an integrated and sustained approach to civil society’s questioning of institutional arrangements that foster unequal relations. Current trends suggest a gradual closing of the chasm between the practice of participatory community development and the practice of rights advocacy: community development NGOs are taking more seriously the notion of people’s rights and entitlements as the starting point for their work, and the need for greater engagement with macro-level political institutions to build accountability; rights advocacy NGOs are responding to demands for active and meaningful participation of marginalised groups in shaping a rights advocacy agenda that is genuinely rooted in communities; and community-based networks are looking inward to ensure internal legitimacy, inclusiveness and non-discrimination. These trends hold promise for an integrated and sustained approach that is potentially more effective in Kenya’s new political climate characterised by stronger demands for accountability at different levels. The paper concludes with suggestions on how these emerging trends can be strengthened. Keywords: rights, participation, civil society, social movements

What is the "rights-based approach" all about? : perspectives from international development agencies

In the last few years, there has been growing talk amongst development actors and agencies about a “rights-based approach” to development. Yet what exactly this consists of remains unclear. For some, its grounding in human rights legislation makes such an approach distinctive, lending it the promise of repoliticising areas of development work that have become domesticated as they have been “mainstreamed” by powerful institutions like the World Bank. Others complain that like other fashions it has become the latest designer item to be seen to be wearing and has been used to dress up the same old development. This paper seeks to unravel some of the tangled threads of contemporary rights talk. Where is today’s rights-based discourse coming from? Why rights and why now? What are the differences between versions and emphases articulated by different international development actors? What are their shortcomings, and what do these imply for the practice and politics of development? Reflecting on these questions, we explore some of the implications of the range of different ways of relating human rights to development. We argue that ultimately, however it is operationalised, a rights-based approach would mean little if it has no potential to achieve a positive transformation of power relations among the various development actors. Thus, however any agency articulates its vision for a rights-based approach, it must be interrogated for the extent to which it enables those whose lives are affected the most to articulate their priorities and claim genuine accountability from development agencies, and also the extent to which the agencies become critically self-aware and address inherent power inequalities in their interaction with those people. Keywords: rights, donors, rights-based approaches

Marriage by Affidavit: Developing Alternative Laws on Cohabitation in Kenya

A ZLRev. article on alternative marriage arrangements as well as their impact on family law in Kenya.Cohabitation unions are on the increase in Kenya more so due to the breakdown of the family unit as a result of increased urbanization and rural-urban migration. More often than not, those entering into cohabitation unions have no intention of regularizing the union. In justifying the relationship, many sign affidavits which are renewable once a year. This practice has become so widespread that it needs to be officially acknowledged as an official form of marriage. This emergent form of marriage is "neither custom or law" (to borrow the term from Martin Chanock), and we refer to it in this paper as "marriage by affidavit". The use of affidavits to validate a cohabitation union stemmed from nonrecognition of customary law marriages by statutory law. This has been taken up by other couples who cohabit as man and wife, but do not want to undergo either a customary or civil ceremony, but at the same time want to enjoy the same "benefits" as those who have undergone either of the ceremonies. This paper analyses the increased incidence of marriage by affidavit as an alternative way of getting married and the implication of these types of unions on Kenya's family law. In so doing the paper focuses on the situation of cohabitation outside marriage; the judicial interpretation of cohabitation unions for purposes of determining the existence of a marriage. It is in the process of determining the existence of a marriage that courts are faced with the issue of the validity of affidavits sworn by the parties stating that they are married. For purposes of this paper, reported cases and complaints were collected from the High Court of Kenya, FIDA(K) and university libraries. The purpose of this exercise was to investigate the magnitude of the incidence of cohabitation marriages, the attempts at legalizing the unions and at what stage these attempts were made. The paper concludes that cohabitation unions or marriages by affidavit can no longer be ignored by family law systems as more and more couples are preferring to enter into this type of union. Thus the available court cases are only a tip of the iceberg. The Marriage Bill should therefore enact specific law to regulate the unions

Decentralisation, Land Rights and the Construction of Women's Citizenship in Sub-Saharan Africa : a Comparative Study of Uganda, Kenya and Tanzania; first project evaluation report

The evaluation report reviews a methodology workshop and project proposal, held in Nairobi, Kenya. At the workshop it was recommended that team members should be grounded in a shared understanding of the conceptual literature on citizenship generally, and social citizenship in particular, as well as literature on the broader question of whether decentralization necessarily improves service delivery. Some other determinants of research were analyzed, such as clarification of objectives, identification of themes, preparation of a work schedule, and aspects that would further focus the design of research

Painful tradeoffs : intimate-partner violence and sexual and reproductive health rights in Kenya

Intimate-partner violence involves multiple violations of sexual and reproductive rights, with devastating impacts on the health and wellbeing of those affected. This paper is the result of an action-research collaboration between a Kenyan gender-based violence rehabilitation NGO and a research programme. Qualitative and descriptive quantitative analysis of seven years of client records were carried out to investigate women’s experiences of intimate-partner violence and their responses to it. The paper departs from the observation that international human rights, while profoundly conceptually relevant to Kenyan women, are frequently practically irrelevant to their lives. Instead, various and often contradictory forms of rights, or legitimate claims, co-exist and interact in personal beliefs, in social relationships and in national legal and judicial systems. We therefore seek to contextualise rights in the lives of women affected by intimate-partner violence, to understand how they are articulated and constrained in each of these dimensions. We find that physical and sexual abuse within relationships often leads to repeated exposure to sexual and reproductive health risks, and abused women lack knowledge about these impacts, experience feelings of hopelessness about their health, and are unable to access the health services they need. Economic factors lead many women to subordinate their sexual and reproductive rights to their material needs and those of their children. There are limitations to the recognition of rights in both social attitudes and in the national legal framework. Social networks and justice institutions sometimes support individuals in exercising their rights and sometimes obstruct them. Legal reform, and strengthened services and referral systems are needed if the barriers to women’s rights are to be overcome. Measures to facilitate access to sexual and reproductive health services and to address forms of vulnerability in ongoing abusive relationships are needed to help those affected to end the violence and mitigate its impacts. Keywords: intimate-partner violence; sexual and reproductive health; rights; service delivery; Kenya