Two - ‘Go Home & Clear the Conflict’: Human rights perspectives on gender & land in Tanzania

Summary

Introduction

This chapter discusses human rights perspectives on gender and privatization of land rights, drawing on examples from Tanzania. While a substantial segment of the donor community support a human rights-based approach to development (HRBA), neo-liberal discourse on economic development often determines the outcome of policy making (see Nyamu-Musembi in this volume). In the context of land reform, human rights norms may provide an additional source of arguments which can be used to balance proposals for law reform stemming from the neo-liberal economic approach and aimed at individualising and registering land rights. The dynamic relationship between the two approaches necessitates consideration of the implications of human rights obligations for state action around land reform and privatization of land rights. The human rights-based approach to development is a project still in the making, and no academic consensus has been established concerning the preconditions for and consequences of establishing an integrated human rights and development paradigm (Alston & Robinson 2005; Nyamu-Musembi & Cornwall 2004; Scheinin & Suksi 2005). I argue here that the rights-based approach provides an analytical framework with which to assess the impact of property rights reform, crucial for women's access to land. Of core importance is the prohibition of discrimination, the right to participation in decision making, and the rights to food and housing.

The primary focus of this chapter is on the normative content of human rights and the legal obligations incumbent on ratifying states. Some authors argue that these norms also have implications for the donor community and international financial institutions (Skogly 2003). Human rights are internationally binding norms, but they still leave room for the local in the implementation: for contextual considerations, for variations with respect to what constitutes ‘appropriate measures’, and for state discretion. Moving beyond a legal positivist approach, human rights scholarship is struggling to provide deeper and more contextualized analysis of how norms are appropriated and reinterpreted locally. I use examples from Tanzania's land legislation and its implementation to illustrate how the quest for equality, livelihood security, applicability and macro-economic development may play out in real life. The 1999 land tenure reform in Tanzania includes the elements of recognition and registration of existing land use and rights, facilitation of a market for land rights, and efforts to ensure nondiscrimination and protection of women's use. It also has international elements, through the engagement of both the World Bank and other donors.