Study on Women and Land
The Women and Land StudiesWomen’s Land Rights in Rwanda By Jennie E. Burnet and the Rwanda Initiative for Sustainable Development (RISD)
IntroductionWomen constitute the majority of the Rwandan population and labor force, particularly in agriculture, but have faced substantial constraints on their participation in the economy and society. The discriminatory laws and practices in education, employment, inheritance and finance have marginalized women. Consequently, the majority of women in Rwanda remain poor and vulnerable. (Rwanda Development Indicators, Ministry of Finance and Planning 1999) As in other Africa states, women in Rwanda face numerous cultural, customary, economic, legal and social constraints to their access to land and ownership of property in general. The quotation above summarises what is generally accepted to be the status of women’s rights in Rwanda. As for women’s rights to land, the discriminatory laws and practices have an even greater impact on women and on female-headed households due to the scarcity of land. Rwanda has an average population density of over 300 people per square kilometre and over 91 per cent of the population depends on agriculture for their livelihoods. Therefore, access to and control over land is crucial for all Rwandans, but especially for women since the number of women- and child-headed households (the majority of these children being girls) has greatly increased as a result of the war and genocide of 1994, the 1996-1999 insurgency in the northwest and the HIV/AIDS epidemic. The post-conflict and post-genocide context has thrown several cultural and legal assumptions previously controlling women’s access to land into conflict. Furthermore, Rwandan women have been forced into new roles in the family and society because many men were killed in the 1994 genocide and massacres and many others have been imprisoned. Other recent developments in Rwanda have transformed the ways in which decisions about land are made. For example, the Government of Rwanda (GOR) has implemented a new rural settlement policy that requires the population to build their homes in grouped settlements or villages (known as imidugudu in Kinyarwanda.) In the past, Rwandans lived scattered over the hills and not in villages as in other parts of Africa. The intent of the new policy is to increase the amount of land available for agricultural activities and encourage a shift towards large landholdings and commercial agriculture, but to date its negative impact on Rwandans and their ways of life has outweighed the positive developments. (Hilhorst and Leeuwen 1999; Musahara 1999; RISD 1999a; RISD 1999b) The Rwanda Initiative for Sustainable Development (RISD) carried out this research to establish what rights in practice Rwandan women have to access and own land. The study began from a broad notion of rights, considering what is due to a person according to culture, custom, Rwandan statutory law and international human rights law. The specific objectives of this RISD study were to establish the main forces influencing women’s access to and control over land, to understand how ordinary citizens as well as decision-makers (such as government authorities) at the local and national level conceive of women’s land rights and to delineate the vectors that protect or guarantee women’s control of land. Of particular interest were the influences of cultural values, customary norms and laws, religious institutions and norms, statutory law and national policies in relation to the actual reality on the ground. Particular attention was paid to cultural ideas regarding women and their capacity to control land, the two major customary systems (ubukonde and igikingi) controlling land tenure in Rwanda, statutory law controlling land tenure in Rwanda (in particular the new inheritance law promulgated in 1999), recent national policies impacting land tenure (in particular the villagisation policy implemented since 1994), the mechanisms by which disputes over land are resolved and the impact of women’s associations and cooperatives on women’s access to land.
Research design and methodologyThis RISD study was based on the complete model approach. The research design was developed to include as much field research and grassroots input as possible in addition to standard literature reviews and national policy analysis. To account for substantive regional differences in terms of cultural and family norms, customary land practices, economic activities based on different ecological zones and implementation of national policies influencing land distribution, research was carried out in communes in four regions of the country. The first region was Kinigi commune in Ruhengeri prefecture. Customary land tenure in north-western Rwanda (ubukonde) differs substantially from other regions. This region is also known for a traditional acceptance of polygamy due, in part, to intense cultivation of the especially fertile soil. Kinigi commune was in the thick of the insurgency crisis from 1996-1999 because it borders the Birunga National Park, which was the base of operations for rebel forces trying to destabilise the Rwandan government. Insecurity from the insurgency significantly influenced implementation of the villagisation policy here. The second region was Mugina commune in Gitarama prefecture. This commune was chosen because it falls in the central region of Rwanda, controlled by igikingi customary land tenure. In addition, Mugina has known two different national land policies, the paysannat system of the First Republic, and the villagis policy of the post-genocide government. Finally, RISD has a long-term sustainable development project in the commune and wanted to build its knowledge base of land issues there. The third region was Kahi commune in Umutara prefecture. Kahi is a new commune created following the 1994 genocide and war. It is a semi-arid region, largely settled by old-caseload refugees from Uganda and dominated by pastoral activities although there is also some agriculture. Prior to 1994, most of Kahi commune was part of the Akagera National Park. The fourth and final region was Kigarama commune in Kibungo prefecture. Kigarama commune reflects the particularities of Kibungo prefecture, which has been almost completely villagised according to the national villagisation policy. The installation of large numbers of old caseload refugees as well as the return of new caseload refugees required land sharing and redistribution that have affected virtually the entire population . Women’s rights in these different cultural, ecological and socio-economic settings were studied in the context of family and community norms with a view to establishing the nature of women’s rights to access and/or control land and how these rights have been influenced by custom, religion and statutory law. The study also focused on whether initiatives to raise awareness about family property laws have influenced opinions on these issues and what the level of women’s participation has been in land policy formulation and the land reform process. Primary data collection for the study was conducted at the grassroots level in the four communes using participatory rural appraisal (PRA) techniques. The field research teams used direct observation, open-ended interviews, semi-structured focus group sessions, mapping, diagramming and other PRA exercises to gather data from local residents, community elders, communal officials, elected grassroots structures, church members and leaders, agricultural cooperatives, members and leaders of local women’s associations and other organisations. Literature reviews were conducted to study the evolution of land law and land policy in Rwanda from pre-colonial days through the colonial and post-colonial periods. The literature reviews included published statutory law, government studies and reports, non-governmental and intergovernmental organisation reports and studies, academic research, National University of Rwanda student theses and other materials. At the national level, semi-structured interviews (SSI) were conducted with staff of relevant GOR ministries and other GOR institutions and commissions concerned with land, legal matters, women’s affairs and human rights. SSI were also carried out with representatives of international and national nongovernmental organisations, UN agencies, and other key informants knowledgeable about land, statutory law, customary practices, women’s affairs, human rights and advocacy on land issues.
Following the field research, RISD conducted a focus group to seek input from representatives of selected government ministries and commissions, human rights and women’s organisations and key informants knowledgeable about customary and statutory law, life in rural Rwanda and Rwandan history. An initial version of this report was presented at a workshop on women and land Workshop held by RISD on from April 24-25, 2001. This final study includes pertinent information gathered during that workshop as well as the final recommendations and action plan endorsed by workshop participants. A final note should be made about the research methodology vis-vis gender. Some participants in the workshop on women and land took offence at the idea that the workshop discussed women’s access to and control over land to the exclusion of men. However, this study is based on a gender approach that neither privileges women over men nor excludes men from the picture. A gender approach looks at a person’s position in society, in the family, in the economy and so on, in relation to power. A gender approach includes the biological sex of a person (male versus female) combined with issues related to age, stage in life and even sexual orientation. For instance, with the division of labour in Rwandan society, children (abana) under the age of six years are assigned light tasks without much distinction between boys and girls. However, at a later stage in life, girls start doing household tasks like fetching water and boys start looking after livestock and other energy-demanding tasks. In Rwandan society, women (abategarugori) can be said to have a different gender position than widows (abapfakazi) although they share the same biological sex.
History of land tenure in RwandaPre-colonial period:ubukonde and igikingi
Upon the arrival of Europeans at the beginning of the twentieth century, two principle systems controlled land tenure in Rwanda: ubukonde in the north and northwest (current day Byumba, Gisenyi, and Ruhengeri prefectures) and igikingi in central, eastern, and southern Rwanda. (Andre 1998: 142; Cyiza 2000) These systems were different but shared notions of collective ownership of land among members of patrilineages (imiryango). In the ubukonde system, people gained rights to large tracts of land by being the first to clear and valorise the land (known as gukonda). In this system, a lineage held rights to land corporately and major decisions about managing land holdings were taken by the lineage chief (umutware w’umuryango or, in speaking of land specifically, umukonde). The abakonde lineages held economic and political power over their ubukonde and could grant rights to others to use land in their territory through a form of client ship known as ubugererwa. (Cyiza 2000) Clients were required to make payments to their patrons, most often in the form of a portion of the harvests or in manual labour in the patron’s fields or enclosure. (Newbury 1988: 79) There were three specific types of ubukonde, including ubukonde bw’inzogera (hunting grounds), ubukonde bw’inka (grazing lands) and ubukonde bw’isuka (agricultural lands). In all three types, the umukonde (ubukonde owner) allowed others access to these lands in exchange for gifts and/or labour. In the early nineteenth century under the reign of Mwami Yuhi Gahindiro, another form of land tenure was introduced called igikingi. (Newbury 1988: 81) When the colonialists arrived in Rwanda at the end of the nineteenth century, igikingi was the most common land tenure system in central and southern Rwanda. An igikingi was land distributed by the mwami or his chiefs (abatware b’umukenke) upon the approval of the mwami to either heroes (intwari) from war or other individuals commanding respect in society. Ibikingi were vast tracts of land designed for grazing cattle. During the pre-colonial period, these domains were especially under the control of important Tutsi pastoralists in the central and southern part of the Kingdom. If the holder of an igikingi lost favour with the chief or lost his cattle through disease, mismanagement, or raiding, the chief seized his igikingi from him and gave it to someone else who had cattle. (Cyiza 2000) The recipient of an igikingi was expected to make regular gifts to the chief or mwami who had bestowed the igikingi on him. If his igikingi was transferred to another region, he would go and introduce himself to the new leader (called gukeza) and bring gifts. He also gave the new chief a cow, called inka y’indabukirano, to show him respect. Seasonal gifts (like pots of honey, milk and so on) were maintained in this relationship between patron and client. These obligations were fulfilled to stay on good terms with the chief and included sending labourers to work at the home of the chief who had given the igikingi. The holders of ibikingi had full control over the land and thus could partition it and allot plots (amasambu) to others in order to cultivate. These cultivators became clients and owed seasonal gifts and servitude to continue benefiting from the land bestowed on them. Following the harvest, the igikingi owner had the right to graze his herds in the fields before his client, even if the client had cattle. (Cyiza 2000; Gasasira 1995: 38) In the regions controlled by the igikingi land tenure system, land reserved for hunting was known as ubukonde bw’inzogera, as in the ubukonde system. The right to hunt on this land was granted by the mwami or a chief under his authority.
Colonial periodIn the colonial period, statutory laws regarding land ownership were introduced to institute land titles, but these laws only applied to foreigners while the natives still relied on customary law. Titled properties (parcelles cadastres) were limited to the colonisers and the few Africans who could prove that they were civilized (civilis). No Rwandan, not even the mwami, met the standard of civilised and thus Rwandans remained governed by customary law and could not receive land titles. Furthermore, the mwami would not accept a title to land he already considered to be his. The majority of land owners according to statutory law during the colonial period were religious institutions, especially the Catholic and the Protestant churches, a few colonists and so-called Bahindi who had immigrated as traders from east Africa. Transformations occurred in the customary systems of land tenure due to shifts in political power under colonial rule. In the early part of the twentieth century with the added military backing of first German and then Belgian colonisers, the Mwami Yuhi Musinga consolidated the central court’s domination of the formerly independent chiefs in the northwest. The ubukonde system transformed because of the greater political control of chiefs (abatware b’abanyabutaka) under the authority of the mwami and the central kingdom. As political control increased, the means of gaining ubukonde rights changed. In the early part of this evolution, land was still gained through gukonda, but the meaning of the term changed. Chiefs began granting ubukonde based on how far the lineage chief could shoot an arrow (ubukonde bw’umuheto) or their capacity to clear the bush using a machete (ubukonde bw’umupanga) rather than on who cleared and claimed land independently. During this period, lineages began making gifts to political chiefs in the form of cattle and agricultural products in order to be considered for land allocation. Over time the ubukonde system continued to evolve. Eventually, chiefs partitioned (gukebera) the virgin land, which was often referred to as igisagara, and the beneficiaries of this scheme would then be called abakonde In the 1930s, the ubukonde system of the northwest was officially replaced by the igikingi system upon orders of Mwami Yuhi Musinga. (Andre 1998: 144) Yet, many former abakonde in the northwest did not recognize the new official owners of the land, all of whom were chiefs (abashefu n’abasusehfu or ibirongozi) sent from the central court to ensure the incorporation of the northwest into the central kingdom. Conflict between the former landowners and the new landowners was great, but people bided their time waiting for an opportunity to reclaim their lands. (Cyiza 2000) Under the igikingi system of land tenure, patrons became more and more demanding of clients, thanks to additional backing from the monarchical regime and the colonisers. With increasingly scarce land, people living under particularly stringent patrons could no longer vote with their feet, move to another region and become the client of a different patron. (Andre 1998; Uvin 1998; Newbury 1988) The consolidation of the mwami and central court’s power during the colonial period resulted in the loss of common lands, whether they were ubukonde or igikingi. In addition, it transformed notions away from corporate lineage groups to nuclear family units. By introducing the head tax (which was charged to male heads of household), reinforcing local indigenous authorities ability to require core labour for road building and land clearing and encouraging the cultivation of cash crops such as coffee and tea, the colonial government vested the responsibilities of the lineage group in individual adult men. Colonialism eroded the remaining institutions that gave women access to resources and intensified the development of institutions where women’s labour was appropriated by the rulers and by the state. By the end of the colonial period, the vast majority of Rwandans relied primarily on women’s labour and women’s activities to support households. (Jefremovas 1991: 382) Between 1952 and 1954 Mwami Mutara Rudahigwa abolished the ubukonde system of land tenure and required all abakonde (ubukonde owners) to share their land with the clients exploiting it. At the same time, the mwami abolished the ubuhake system of cattle clientship, but the igikingi system of land tenure and clientship remained more or less intact. (Newbury 1988: 145-6) In 1959, a movement against the monarchy and colonialism began. Up until the installation of the First Republic in 1962, Rwandan politics were punctuated by violence. In certain regions of the country, instances of ethnically-motivated violence broke out. In most cases, this violence took the form of threats, beatings and the burning of houses, but in some cases (such as Bugesera), there were massacres. During the period 1959-1962, many former abakonde in the northwest took advantage of the instability to evict the newer (and unrecognised) chiefs who had been installed by Mwami Yuhi Musinga. (Cyiza 2000) With the transformations in land systems throughout the colonial period and with the introduction of a monetary economy, Rwandan notions about family and land began to change as well. (Hoyweghen 1999: 358) Yet, the legal individualisation of land rights occurred late in the colonial period during the transition from colonial to indigenous rule. First in 1960, an administrative decree suspended the igikingi land tenure system and vested decisions over pasturelands first in the hands of the sous-chefferie and later in the hands of communal authorities. This suspension became a total suppression over time. (Gasasira 1995: 38) An edict of May 26, 1961 officially abolished the ubukonde land tenure system and gave clients ownership rights over their land. In practice, however, cliental relationships still existed between patron and client. The client was still expected to pay rent or dues on an annual basis to the patron, but the edict restricted the prerogatives of excessive patrons and protected the clients’ rights to remain on the land. (Gasasira 1995: 37-38) The long-term result of these two laws was the parceling out of lands held corporately into individually held agricultural plots. With the end of colonialism, there was an attempt to register land with communal authorities through ministerial instructions (Number 66/ORG of April 26, 1961) from the Interior Ministry. This attempt failed because the circular was never published. Thus, these instructions were unknown by local authorities or the citizens. (Gasasira 1995: 6)
First and second republicsFrom about 1960 onwards, the colonial administration and then the independent Rwandan government introduced the paysannat system in some areas. This system had first been attempted in the early 1950s, when the government called on people to live in insisiro, which were agglomerations of people originating from one ancestor. This system did not become popular as there were no financial or other incentives for people to move. Under the paysannat system, the government distributed plots of land to nuclear families. In most instances, recipients were young men who did not have sufficient land of their own to establish households. In the paysannat, houses were built in rows along a road and were surrounded by the family’s fields. Families received a certificate guaranteeing their rights to use the land as long as they met certain requirements, which varied from region to region. These paysannats usually had individual agricultural holdings as well as communal fields where cash crops were cultivated by the entire settlement. (Olson 1994) The paysannat system was limited to regions where the population was not dense and to uninhabited tracts of land. For example, the majority of Mugina commune was a royal hunting ground (ubukonde bw’inzogera) until the end of colonialism and thus uninhabited. In the 1960s, land in Mugina commune was distributed to peasants in the paysannat system. Each household was required to cultivate a certain number of hectares of coffee, and they were required to keep the land intact as a single parcel. In the Mugina paysannats, unmarried daughters and widows were allowed to inherit the house and land, but married daughters were required to live from their husbands’ land. Today, in Mugina commune, recipients of paysannat land holdings still retain the rights to use and exploit this land. Many people even have the original certificates they received to guarantee their rights to exploit the land. Yet, in contravention of these original agreements, many paysannat recipients have divided the land among children or sold portions of their plots to others. The paysannat system was carried out as a pilot project financed by the Belgian government. For several reasons, the Rwandan government did not implement it in all regions of the country. First of all, it was politically difficult to implement in regions which had already been settled as this would require the redistribution of land. Second, the financing for paysannats eventually evaporated as other financiers were not interested. With increasing land scarcity due to the population explosion, the 1970s saw increased out migration from Gikongoro, Gisenyi, Kibuye and Ruhengeri to the east and central parts of Rwanda. In the 1980s, this migration from the highlands to the foothills continued and began spilling over into the savannah areas of the east. Because the soil quality and rainfall were lower in the savannah, agricultural productivity was lower. (Bart 1993; Olson 1994) Historically, the eastern savannah areas of Bugesera, Kibungo and Umutara have known numerous famines. Today these areas remain particularly vulnerable to food insecurity.
Post-conflict and post-genocide contextThe political crisis of 1959-1961 led to the flight of thousands of Rwandan refugees who left behind their property, including land. Subsequent political crises, especially in 1964 and 1973, forced other Rwandans to follow suit. The return of these refugees became an important political question for the Habyarimana regime in the 1980s. Negotiations for the return of these refugees failed, (Hilhorst and Leeuwen 1999: 6) and Habyarimana maintained the position that their return was impossible due to land scarcity. Beginning in October 1990, the Rwandan Patriotic Front (RPF) waged a war against the Habyarimana regime to unseat his government and to guarantee refugees’ right to return to Rwanda. Around the same time, a multi-party system was instituted inside Rwanda, allowing the political opposition to take to the public stage. In 1993, the Rwandan government, opposition political parties and the RPF reached a peace agreement and signed the Arusha Accords. The Arusha Accords were not implemented, as foreseen, because of stalling on the side of Habyarimana’s government and the increasing power of hardliners in the government who did not want to share power with the opposition or the RPF. This crisis culminated in the 1994 genocide and war. The genocide and war brought about the almost total destruction of Rwandan physical and administrative infrastructure. The genocide ended when the RPF took control of most Rwandan territory in July 1994. About two million Rwandans fled the RPF forces and went into exile, along with the genocide planners and killers. (Hilhorst and Leeuwen 1999: 6) These Rwandans stayed in refugee camps in Tanzania and Zaire. The new Rwandan government, known as the Government of National Unity, called all Rwandans to return from exile. Between 1994 -1996, there was an influx of approximately 800,000 Rwandan refugees from neighbouring countries. (Hilhorst and Leeuwen 1999: 6) Most of these Rwandans had spent many years in exile and some had never seen Rwanda. Upon return, most returnees were initially obliged to occupy properties abandoned by those who had fled in 1994. Eventually, many of these exiles were settled in imidugudu (villages) constructed by the United Nations High Commission for Refugees (UNHCR) and international non-governmental organisations (NGOs). In late 1996 and early 1997, the new caseload refugees returned en masse from the camps in Tanzania (an estimated 480,000) and Zaire (an estimated 720,000). (Hilhorst and Leeuwen 1999: 6) At the time, the GOR promised to respect these new returnees’ entitlements to property abandoned in 1994. This resulted in an immediate need for housing that was answered by the imidugudu settlement policy. (Hilhorst and Leeuwen 1999:6) The 1993 Arusha Accord had provided for the return of Rwandan exiles by creating a villagisation programme, known as imidugudu, as a means to resettle Rwandans who were willing to come back to Rwanda. This programme resembled the paysannat system and had some of the same intentions: to group the population in the hopes of intensifying and modernising traditional agriculture and to provide services more easily to a grouped population. An added intention was to reduce conflicts over land. The 1993 Arusha Accords stipulated in Article 4 of the chapter relative to the repatriation of refugees, that refugees returning after more than ten years should not reclaim their lost property but instead be resettled in unoccupied land with government assistance to do so. Following the end of the war in 1994, the new Rwandan government began to plan imidugudu sites with the support of UNHCR, (Hilhorst and Leeuwen 1999:8) but as there was no urgent housing need, progress was slow. Finally in December 1996, the Cabinet passed a resolution making imidugudu the only form of rural settlement allowed. The subsequent ministerial directive (MINITRAPE 01/97) explicitly stated that building on a plot other than MUDUGUDU is hereby prohibited. (as quoted in RISD 1999a: 4) While the original conception of imidugudu in the 1993 Arusha Accords created grouped settlements in uninhabited lands, in 1996 the aim of national policy became to regroup the entire population in villages over time. (Hilhorst and Leeuwen 1999: 8) This new goal required the redistribution of land, but no policy was in place to handle such redistribution. To date, the Rwandan government has not yet put into place a national land policy, although it is in the process of drafting one. The problems and controversies of the imidugudu policy are well documented elsewhere. (Hilhorst and Leeuwen 1999; Human Rights 2001; Laurent and Bugnion 2000; Musahara 1999; RISD 1999a; RISD 1999b) In the context of this study, RISD looked at this policy’s implications for women’s access to and control over land. Although RISD found problems with the policy in general, only the relevance of this policy to women’s access to and control over land shall be discussed. Beneficiaries of the imidugudu housing Programmes include shelter less people of all categories: old and new caseload returnees, genocide survivors afraid to return to the site of their homes before the war, those on whose land the imidugudu were constructed and young people seeking to set up homes apart from their parents. (RISD 1999a: 8) For the most part, imidugudu have provided housing to female-headed households without discrimination. In many cases, genocide survivors, single mothers, widows and female-headed households were given preferential treatment in housing assistance through imidugudu resettlement. In some imidugudu, female-headed households far outnumber male-headed households. Some respondents in all regions complained that not enough housing assistance was provided to vulnerable groups such as the disabled, the elderly and widows. In Kinigi commune, some respondents complained that they were still living in grass shelters or tents with sheeting because they were unable to build houses on their own. Widows find it particularly difficult to build houses when there are no Programmes for the provision of labour or metal roofing. Both those who have benefited from land redistribution and those who have given up land have objected at certain points. In certain instances, there has been injustice in land sharing, which has impacted women as well as men. Land belonging to influential people in the Rwandan government was not tampered with and some powerful individuals among the returnees got larger shares of land than others. RISD found that the imidugudu policy did not result in widespread discrimination against women in terms of allocation of land, but in certain instances (especially in Kinigi commune), the elderly, widows and child-headed households (most of which are headed by girls) did not have the means to construct adequate housing for themselves and have not yet received any assistance to do so.
Use or ownership?The current Rwandan land tenure system is two-fold, consisting of customary and statutory land tenure systems. Gasasira (1995) links this duality of legal settlements to the discrimination established by the colonial authorities between native populations and foreigners. Foreigners’ lands were submitted to statute law whereas those belonging to natives were governed by customs (Gasasira 1995: 7) Gasasira’s accurate analysis leaves Rwanda with a difficult legacy to manage, especially in the post-genocide context. In the comprehension of most Rwandans, they own the land that they occupy and use. This is land that they have inherited, bought or taken possession of through government-sponsored land distribution (or re-distribution) such as the paysannat system or the newer imidugudu policy. Yet, according to the 1976 Decree Number 09/76, all land in Rwanda belongs to the State (aside from cadastral properties) and citizens retain only usufruct rights. This same decree prohibits any Rwandan from buying or selling customary rights to land without authorisation from the Ministry of Land. Yet, Rwandans have regularly sold and bought these rights without asking for such authorisation. Rwandans conceive of themselves as the owners of such land. The government-sponsored land distribution Programmes (the paysannat and imidugudu systems) are not governed by any specific Rwandan legislation but rather reside on government policy, general understanding and occasionally contracts between local government bodies and individual landholders. (Gasasira 1995) As will be demonstrated, the fundamental contradiction between popular conceptions and state practices is at the root of many land disputes today. Rwandans familiar with statutory laws and the court system and with economic means may exploit the current situation to take land away from someone with a customary or traditional claim to land. Women are particularly vulnerable in this situation, especially when they do not have a legal (civil) marriage to protect her rights. With the further complications arising from the 1994 genocide and war, the massive displacement of the population and the new villagisation policy, land conflicts arise more and more frequently because there are more legitimate disputes over property and because certain opportunists want to manipulate the situation in their favour. Neither colonial statutory law nor post-colonial statutory law specifically protected women’s rights to land. In virtually all instances, it was assumed that the men associated with women, whether fathers, brothers, or husbands, would protect their rights. In many instances, statutory law specifically limited women’s rights. The laws on commerce stated that women could not engage in commercial activities or in paid labour or enter into a contract without the express consent of their spouses. (Article 4 of Law Number 2/08/1913) In 1998, this law was modified slightly (Number 42/1998) to allow women to open a bank account without their husband’s consent, (United Nations Fund for Children 1988) but women still did not have the right to enter into contractual agreement or work without their husbands’ consent. While these statutory limitations to women’s rights to own property or control financial resources were technically eliminated by the 1999 inheritance law, (Number 22/99) it is unclear whether limitations still exist for married women in the community of property regime.
Women’s access to and control over land Gender and landAccording to Rwandan custom, women’s land rights are guaranteed by men because they are dependent upon the men in their families, managed but also protected by their fathers, then their husbands and finally their male children. In general, land was inherited patrilineally from father to sons. (Gasasira 1995) Although land was held commonly by the lineage, each male descendent was allocated a plot for constructing a house and fields for cultivation. Forests and grazing land remained the common holding of the lineage, and the lineage chief (umutware w’umuryango) managed this common holding. This practice maintained the family’s legacy intact, but also guaranteed the son’s rights to marry and procreate. In turn, women were guaranteed access to land through their husband’s family. When a woman was married, she automatically gained access to her husband’s fields to cultivate for her husband, their children and herself. If or when her husband died, a widow remained on the husband’s land, holding it in trust for her male children. If the widow was still within her reproductive years, levirate marriage (a brother of the deceased husband marrying the widow) was often practiced. Through levirate marriage, the brother-in-law became responsible for the two separate households, but he produced children in place of his brother (the sons he produced with his brother’s wife were considered his brother’s sons and not his own.) Yet, levirate marriage sometimes caused conflicts between the different children’s competing interests. If there were no children, a widow most often returned to her own family in the hopes of marrying again. Thus, according to Rwandan customary practices, a widow possessed usufruct rights over the land of the deceased husband until her sons were mature enough to manage the family property. These usufruct rights were conditional on a widow’s good conduct that is to say that they lasted as long as she remained faithful to her husband’s lineage either through sexual abstinence or through levirate marriage. There were other provisions through which women could gain access to land. In many regions of Rwanda, women could receive outright gifts of land from her father or use of land from her father’s family. For example, before the genocide, a woman, married or not, could at times receive land as a gift (urwibutso) from her elderly father. The gesture [was] denoted by the verb “kuraga.” (Pottier 1997: 17) In Ruhengeri, a newly wed girl could receive a gift of land known as “intekeshwa” from her parents when they came to help her get used to her new home (gutekesha) following her wedding ceremony. Similarly, a married woman in Ruhengeri would often receive a gift of land known as inkuri when she presented a newborn baby to her father’s family. Both of these land gifts remained the outright property of the woman and were inherited by her sons. In other regions of Rwanda, gifts made on these occasions were most often made in the form of cattle and thus did not have the same implications for land access and ownership as in the northwest. Other forms of access to land existed for women in the form of temporary user rights over land held by her father’s patrilineage. For example, a daughter rejected by her husband or his family (known as indushyi) could be given a portion of land (called ingarigari in the centre and south or ingaragaza in the northwest) from lands held in reserve by the patrilineage for such emergencie . (Andre 1998; de Lame 1996; Pottier 1997). Similarly, a woman who never married and did not bear children (uwagumiwe) could also receive an allocation of land from the lineage’s holdings. The ingarigari land was controlled by the lineage chief (umutware w’umuryango) who was supposed to permit access to it in the interests of the entire lineage. According to Pottier (1997), a woman would have access to it for as long as she was deemed in need, if necessary, for life. After her death however, the land would be reclaimed by her late husband’s nearest patrikin. (Pottier 1997: 17) Yet, according to RISD field research, the ingarigari land reverted to the woman’s brothers when she no longer needed it (in the case that she remarried or reconciled with the husband who had rejected her). Even before the genocide, these cultural protections for women’s access to land were under attack. In general, Rwandan customary norms and practices allocated plots to women and other secondary right holders only as long as this land was not needed by the household. If a man or his family found themselves in need of land, a woman’s field (allocated under the customary systems delineated above) could be taken from her for reallocation. Constraints on woman’s access to land were heightened when land became increasingly scarce, and men’s land holdings came under pressure.
Conceptions of women’s land rights todayCustom plays a major role in determining land claims today in rural Rwanda. Among rural respondents, both men and women held a strong conviction that the family land and property belong to the head of the family (umutware w’urugo) who is often a man, but in certain circumstances can be a woman. This is a significant shift from prior ideas that land belonged to the lineage and was controlled by the lineage chief. Today, in most regions, land is considered to be family property and is used by either men or women in the best interests of the family. In an ideal situation, decisions about land are made through mutual understanding between husband and wife. Yet, many male and female respondents declared that a woman could never be equal to a man in terms of knowing how to best manage family resources. They backed this argument by citing Genesis 2:18, 20-23: Kandi uwiteka Imana iravuga iti si byiza ko uyu muntu aba wenyine; reka muremere umufasha umukwiriye. Uwiteka Imana isinziriza uwo muntu ubuticura, arasinzira: imukuramo urubavu rumwe, ihasubiza inyama: urwo rubavu Uwiteka Imana yakuye mure uwo muntu, iruhindura umugore imushyira uwo muntu. Aravuga ati uyu ni igufwa ryo mu magufwa yanjye, N’akara ko mu mara yanjye. Azitwa Umugore kuko yakuwe mu mugabo. The Lord God said it is not good for the man to be alone; I will make a helper suitable for him. So the Lord caused the man to fall into a sleep; and while the man was sleeping, He took one of the man’s ribs and closed up the place with flesh. Then the Lord God made a woman from the rib He had taken out of the man. The man said this is now bone of my bone and flesh of my flesh; she shall be called woman for she was taken out of man. (Genesis 2:18, 20-23) Thus for many Rwandans, Christianity (and in particular Roman Catholicism) has been synthesised with traditional notions to justify the belief that women should act as a companion or a helper whose duty is to assist men in effecting their duties. Although many Rwandan women accept the notion that women should be less than equal partners in marriage, they insist that land and property are held in common by a husband and his wife and that decisions about it should be taken together. Yet, most male respondents argued that men have greater rights over land as land has always belonged to men. Men used several Rwandan proverbs to justify their arguments: Umugore abyara umuryango w’ahandi. A woman gives birth to an outside lineage (and thus cannot herself own land in that lineage). Umugore ntagira ubwoko, afata ubw’umugabo. A woman does not have an identity, she takes her husband’s. Nta mugore ugabana iz’iwabo, azihabwamo. A woman does not inherit from her family, it is given to her. In general, men believe that women cannot be landowners because women cannot go to war to become heroes (intwari). In men’s conception, women have no legitimate claims to land ownership or control; they only have access to land through their relationships to men. A few respondents did, however, cite two historical exceptions. In one case, a woman, Nyirakigwene, in Gitarama inherited cattle, igikingi and power upon the death of her husband. While her husband was still alive, Nyirakigwene had shown her capacity to be a man and exploit resources effectively. In the second case from Kibungo, Nyirakabuga had influence because she had once been the wife of Mwami Yuhi Musinga. In Kahi commune, Umutara prefecture, research respondents, especially men, were outspoken about women’s lesser rights to family property. They asserted that men and women could only have equal rights to land as brothers and sisters inheriting their father’s land. Yet in marriage, women could not hold equal claim over the home or land because it is men who toil to secure the needs of the home while women come and find everything in situ except for a few domestic utensils such as plates, saucepans and her clothing. Their conclusion was that men own everything and have the right to own it. The proverbs used by respondents, as well as their generalisations about women and land, point to the risk for Rwandan women visa-vis land: women’s access to land depends on their good relations with men, whether their fathers, their husbands, theirs husbands’ families or their brothers. While women accept that it is good enough to use their husbands’ lands, they recognise that their rights are guaranteed only if they have loving husbands who respect them. Furthermore, the former customs through which women gained land independently have largely passed away due to the problems of land scarcity and population pressures. Before the genocide, in the early 1990s, ingarigari land was still given to daughters, but their brothers were likely to pressure them into giving the land up early. (Pottier 1997: 17) Since the genocide, however, women and girls are unlikely to have access to their own lineage’s land except in cases where everyone else in the lineage was killed. Vulnerable populations A traditional notion in Rwanda is that of protecting vulnerable individuals including girls rejected by their husbands (indushyi), widows and orphans. Rwandan culture respected provisions to guarantee land and thus survival to these individuals. This notion still exists today. In ranking exercises performed in Kahi and Kinigi communes, respondents indicated that widows with children should have the highest priority in receiving land. Yet, the realities of the post-genocide context have challenged this notion in practice. Today, widows, orphans and women whose husbands are in prison constitute the vast majority of family heads of households. The intensity of need is such that families and communities are not capable of assisting all of those in need. Thus, in some cases, widows, orphans and other vulnerable individuals are denied their cultural and statutory rights to land and other resources. The GOR, the United Nations, other inter-governmental organisations and international NGOs have tried to take into account the special needs of vulnerable individuals. For example, in many instances, implementation of the umudugudu policy attempted to assist vulnerable individuals. In the communes involved in the study, women-headed households received equal consideration for land grants as male-headed households under the umudugudu policy. In Kigarama commune, Kibungo prefecture, certain vulnerable individuals were given special treatment in consideration for land grants. Single women considered too old for marriage, widows, genocide survivors and other female-headed households received land grants (between 4800 and 1,000 square metres) equal to those received by male-headed households. Despite this equal treatment visa-vis land redistribution in Kibungo, many former landholders in this region believe that their rights to land have been violated. The study was unable to establish whether women or other vulnerable individuals were unfairly treated in the redistribution of land they owned before implementation of the imidugudu policy. One ethnic group of the population historically vulnerable to landlessness is the Batwa. In most regions of Rwanda, Batwa historically lived on the edges of natural forests, which they exploited for their survival through hunting and gathering. Over time, the natural forests have been reduced and most Batwa do not have sufficient land to sustain themselves through agricultural activities. They make their living from menial day labour and, in some places, pottery making. Batwa suffer from social marginalisation. For example, most other Rwandans will not share food or drink with Batwa during festivities. Batwa also tend to live separate from others. Most of the land redistribution policies in Rwanda have ignored the Batwa to date. In Kinigi commune, RISD found that the Batwa have small plots with only enough space for a small grass shelter or house. They do not have land to cultivate. The study also found that women who had not had a legally recognised marriage were the most vulnerable to losing their access to or control over land. The difficulties of these women are discussed below.
The marriage problemToday, marriage is a multi-step process requiring three different ceremonies: customary marriage ceremonies, civil marriage ceremonies and religious marriage ceremony. To be considered a real marriage by most Rwandans, any of these three steps can be followed. Yet, Rwandan law only gives legal recognition to civil marriages held before government authorities. Few marriages in the countryside today receive legal recognition as little of the population goes through the legal marriage process. Before the Rwandan Constitution of 1979, all three forms of marriage were legally recognised and protected. A customary marriage ceremony consists of a set of rituals culminating in the transfer of a cow or other property from the husband’s family to the bride’s family. Often, this part of the marriage ceremony is respected by Rwandans either in the regular exchange of bride wealth before other stages of the marriage ceremony or, in instances of forced marriage, the exchange of cattle or other goods after the fact. The majority of marriages in the countryside today meet this minimum requirement of marriage in the social sense. Yet, marriages based on this exchange of bride wealth are not recognised by the Rwandan State. Thus in the event of divorce or other rupture, women’s rights to land and property are not protected by the law. Children born in such an arrangement have legal rights over their father’s land or property only if they can prove their paternity or the father or his family accept paternity. In such marriage arrangements, women gain usufruct rights to their husband’s land. These rights depend upon the goodwill of her husband or his family or eventually on her children’s inheritance rights to such property. A civil marriage ceremony consists of going to the commune office and taking an oath on the Rwandan national flag before local government officials. The marriage documents require the reporting of the amount of bride wealth paid by the husband’s family to the woman’s family. In Rwanda today, few newly married couples are legally married. For example, in Kigarama commune, Kibungo prefecture, fewer than 60 per cent of women are legally married according to communal authorities. Numerous reasons were cited for the low number of legal marriages. The most frequently cited reason was the expense involved in a legal marriage. A legal marriage requires not only the bride wealth of the traditional marriage, but also commune fees for marriage certificates and other identity papers required. Although not regularly enforced today, in the pre-genocide period, young men had to prove that they had a house and plot in order to marry legally. In addition, married couples have the social obligation of throwing parties for both the customary and civil marriage ceremonies. This sort of money is out of the reach of the vast majority of rural Rwandans today. Other reasons cited were cultural or social. For example, in the case of recently repatriated Rwandans (old-caseload refugees) living in Kahi commune, Umutara prefecture, and legal marriage was felt to be too legalistic. Respondents said that going to the commune and swearing on the national flag did not have any relevance to marriage. The vast majority of these returnees came from Uganda, where common law and traditional marriages are legally recognised. Polygamous marriage exists to a limited extent. In the northwest, polygamous marriage was fairly common and traditionally accepted. The fertile land and need for agricultural labour made polygamous marriage useful for men with large tracts of land or enough wealth to procure additional land. In other regions of the country, polygamous marriage was less common, but not unknown. Prior to the genocide, each wife in a polygamous marriage generally had a house and fields for her and her children. Polygamous marriage was limited to wealthy men, as other men could not afford to buy sufficient land to maintain several households. Rwandan law does not allow for polygamous marriage and requires all legal marriages to be monogamous arrangements. This requires that all additional wives remain in informal marriage arrangements that are not legally recognised. Second and third wives, as well as their children, are particularly vulnerable to losing access to land in cases of rupture with or death of the husband. In many instances, legal wives take advantage of their situation and attempt to take property and land away from additional wives. The only legal recourse in this instance is for the children of additional wives to secure legal recognition of their paternity. The new inheritance law has complicated this issue because the legal wife must also agree to the paternity of these other children. Even if these illegitimate children of polygamous marriages manage to secure legal paternity ties with their fathers, their claims to his property in inheritance disputes are much more limited than the children of legally recognised marriages. Two cases from Kigarama commune in Kibungo prefecture illustrate the difficulties of polygamous marriages and the inconsistency in adjudicating conflicts over land arising from such marriage. In one case, decided by the canton court, Mukandoli was legally married to her husband and had children with him. Later, her husband married a second woman, Uwamahoro, who shared the family property with Mukandoli. Upon the husband’s death, Mukandoli attempted to take all of the husband’s land and property, leaving nothing for the second wife and her child. The canton decided that the two women must share the land, holding it in trust for their children, who were the rightful heirs with equal rights. In a second case Munyangoga and his wife, Mukankusi migrated from another region to settle in Kigarama commune. Upon their arrival, they secured a piece of land and began exploiting it. Later, Munyangoga married a second wife and brought her to occupy the same land as his first wife. The first wife, Mukankusi, filed a complaint and brought the case before the canton court. This time the court ruled in favour of the first wife and forced the second woman to leave and find another property, whether or not her husband could help her. Rwandan law does not allow for common law marriage nor does it protect women’s rights in cohabitation or informal marriage arrangements. Yet, the majority of Rwandan women are now or have in the past been married in a social sense. They do not receive the legal protections afforded by a civil (and thus legal) marriage. Thus, the majority of Rwandan women are left vulnerable to the goodwill of their husbands and their husband’s families to ensure their access to land. Numerous conflicts over land adjudicated by the courts and local government officials concern women or children who have lost their usufruct rights to land in informal marriage situations. According to the president of the Canton Court in Kinigi commune, so far 200 cases have been received by the court, among which 190 cases are related to land and 30 per cent of these cases involve women claiming their rights over land. In a recent case heard by the Butare Court of First Instance, a woman had been married and cohabitating with a man for eighteen years but they had never legalised the marriage at the commune office at the time of their marriage. The woman had already had a child from a previous liaison with another man. This girl lived with her mother, her mother’s husband and their children. The man died in exile in Zaire in 1996. Upon return to Rwanda with their children, the woman returned to their house and land. In 1998, her husband’s brothers forced her and the children to leave the fields and asked the woman to leave the house along with the girl who was not from the same father. The brothers-in-law said that they would take their brother’s children and raise them, but they no longer wanted the woman to use the house or fields. The woman first went to local officials who adjudicated the case through gacaca. Gacaca found in favour of the woman and children and ordered the brothers to allow them to return to the fields and stay in the house. The brothers never complied with the decision so the woman took her case to the legal court system. So far, the Tribunal has not yet decided the case. Women living in informal marriages are particularly vulnerable to losing their access to land.
New inheritance lawAfter a long battle by children’s and women’s rights groups and the Ministry of Gender and Women in Development, the Rwandan Transitional National Assembly promulgated a new law to give equal inheritance rights to male and female children with respect to inheriting their parent’s land and property. The law to supplement the civil code was published in the Official Gazette of the Republic of Rwanda in November 1999, thus becoming law. (Rwanda 1999) This new law created three different property regimes within legal marriage to replace the prior system. In the prior system, all property was held as community property within marriage. In this system, both spouses were meant to take decisions about resources in the interest of the family. But, in many cases, the husband alone managed the financial resources and property of the family. In general, women were happy with the situation, relieved that they did not have the responsibility and believing that their husbands acted in their and their children’s best interests. In some instances, however, men abused this right and used family resources to maintain mistresses or second wives or tried to take over resources gained through the wife’s commercial ventures for other purposes. (Jefremovas 1991) The 1999 inheritance law established three different property regimes in marriage: community property, separation of property and limited community property. A couple must choose a property regime at the time of their civil marriage ceremony before communal authorities. In community property, all property of either spouse becomes the community property of the household. In separation of property, each spouse manages his/her property separately and contributes to the household proportionally according to his/her means. In the limited community property regime, each spouse inventories his/her contribution to the community property of the marriage. This community property falls under the laws for community property regime while other assets remain as individual property adjudicated according to the laws for separation of property. The major change in this law comes in the areas of inheritance, where male and female children are given equal rights to inherit property. According to Rwandan customary practice, only male children inherit as female children are expected to benefit from their husband’s land and property. The equality between the sexes guaranteed by the new law includes bequests made prior to the death of the parents (Article 42) and the division of property upon the death of a parent (Article 50). The law attempts to preserve an important aspect of Rwandan tradition visa-vis inheritance of land. According to customary practice, a father divides his property before his death and allocates land to each of his sons so that each son can build his house and marry. The father retains a portion of the legacy to maintain himself, his wife and minor children. This portion of the land is then divided upon his death and the sons are expected to support their mother. Article 43 of the new law preserves this practice, but includes girl children in the division of property. Article 43 states that all children, without distinction between girls and boys, alive or deceased, before parents their descendants, excluding those banished due to misconduct or ingratitude, have a right to the partition made by their descendants. A major weakness of the new law is that it only governs instances of legal marriage, whereas a significant majority of marriages in Rwanda today are not legal. A second weakness is that it only guarantees the inheritance rights of legitimate children, as stated in Article 50: all legitimate children of the de cujus, in accordance with civil laws, inherit in equal parts without any discrimination between male and female children. In instances where a man had more than one wife, with only one legal wife, the rights of the illegitimate children (the children of the non-legal marriages), do not have legally protected inheritance rights. The study’s field research found that Rwandans, particularly rural Rwandans, were confused by the new inheritance law and its motivations. Most respondents had heard about the new inheritance law on the radio, but they had no detailed information about it. Their general understanding was that it gave male and female children equal rights to inherit the family property, but they did not know about the three different marriage regimes or other details of the law. Ownership and inheritance of land is not treated under the new inheritance law as Rwandan law states that all land is the property of the Rwandan State. Although rural Rwandans’ main concern is land, the new inheritance law does not address this issue. Because of these problems, most rural respondents felt that the new inheritance law is only applicable to urban Rwandans. There are many cultural and customary impediments to implementation of this law because most rural Rwandans do not understand its underlying motivations. While both women and men believe that children should be treated equally in matters concerning the sharing of family property, they worry about the problems caused by land scarcity and small landholdings within a family. If a family has small landholdings and must include female children in the division of these properties, the resulting portions of land will be too small to sustain families. In general, men believe that the law should not be applied because there is not enough land to be distributed among all children. Furthermore, they believe that the law is unfair because women will have two different shares of land (one from her parents and one through her husband) while a man will have only the share inherited from his parents. Significantly, men generally do not believe that women, on their own, have the capacity to exploit land and property effectively. One case in Kigarama commune illustrates that men do not believe that their male children should inherit equally, much less their female children. Aloys Nyiringabo, 76 years old, has been married to Agnace Uzamukunda for over 44 years and they have nine children (four boys and five girls). Nyiringabo had already distributed plots to each of his sons so that they could build their houses and marry. He recently made a will giving all his remaining property (his own house and fields) to his first-born son. He made this bequest because he expects his son to take care of his sisters and mother. If he and his wife are legally married, they fall within the community property regime, the only property regime which existed prior to the 1999 inheritance law. As long has Nyiringabo’s will meets the requirements set forth in the 1999 inheritance law, his bequest should be respected by the courts. In general, women agree that girls should use their husbands’ lands and should not inherit from their own families’ lands. Female respondents explained that only women who fail to marry or rejected women (indushyi) should claim their customary portions of family lands. Most female respondents believe women should not have equal shares of family lands as long as they are still married. However, women emphasised that they have a right to claim and use family lands if they do not have husbands or are rejected by their husbands. Male respondents, on the other hand, did not mention this customary right in the context of the new inheritance law. Rural women said that the inheritance law can only work in urban areas where both men and women work or for wealthy families with large land holdings. RISD found virtually no cases where the new inheritance law has played a role in adjudicating disputes over land. One case in Kinigi commune, Ruhengeri prefecture involved the new inheritance law. The canton court made a judgment attempting to apply the new law, but it is unclear whether the law was appropriately applied since the law is not retroactive. In the case, a man had two wives, one who produced only girls and the second who produced one son. Upon the death of the parents, the son inherited all the family land without giving any portion to the half-sisters. After the introduction of the new inheritance law, one of the half-sisters claimed her mother’s share of the land, arguing that she was the rightful heir to her mother’s land, even after a period of 20 years. Although local officials and the family elders decided that the girl should not have a portion of the land, the canton court gave a small portion of the land to the half-sister and left the rest for the brother with the provision that he would have to share more of it if his sister was in need. It is unclear why the new inheritance law had any bearing on the decision of the case as the death of the parents occurred well before the new law was in effect. In general, the new inheritance law faces resistance due to its collision with prevailing customs in terms of conceptions of marriage and inheritance. The question of the three property regimes poses problems for young couples planning to marry. In most cases, men do not bring the question up with their fiancés and assume that women will accept the community property regime as that is the custom. Women often assume that the men will manage the family’s financial resources in the best interests of everyone and so they do not bring up the question before marriage. If women do have concerns about the property regime, they are often afraid to bring it up because they feel lucky that they have fiancés and do not want to anger them. Even where fiancés receive pre-marital counseling (for example, in the Catholic church), they are reluctant to discuss the issue of property regimes because either they are afraid of creating conflict before the wedding eremonies or they assume that they will never have conflicts or problems over financial resources. Researchers found that the vast majority of respondents were ill-informed about the new inheritance laws and the three different property regimes available. Girls and women in particular are ignorant of the rights guaranteed them by the new inheritance law. The law does not address the problems of women who are not in legalised marriages nor does it protect the rights of women involved in or children born of polygamous marriages.