Anne Hellum

Women's Land Rights in Tanzania and South Africa: A Human Rights Based Perspective on Formalisation

Abstract One of the critical issues in current debates on land policies in Africa is how to balance equity considerations with the quest for potentially more effective and productive uses of land. In this article, we explore the strengths and weaknesses of a human rights based approach (HRBA) to development in securing womens land rights—using Tanzania and South Africa as examples. We analyse the relationship between gender-neutral laws and policies aiming to provide secure tenure through titling and registration and the highly gendered land uses and productive activities on the ground. An overall theme is how women may be effectively protected against the direct and indirect discrimination that is often a consequence of gender-insensitive land laws and policies. We conclude that HBRA offers a critical corrective and counterbalance to the neoliberal approaches that tend to dominate current policy formulation. It applies in contestations over formalisation of land rights. And as a policy tool it offers a set of binding standards that require the taking of measures preventing discrimination in relation to access and control of land and ensuring womens participation in registration processes. The article calls for a closer scrutiny of current fomalisation programmes and initiatives in the light of human rights standards.

Women's human rights and African customary laws: Between universalism and relativism ‐individualism and communitarianism

This contribution problematises the role of law in womens development in the light of universalist, culture relativist and pluralist perspectives on human rights. The management of procreative problems among different groups of women within the patrilineal Shona-speaking population in Zimbabwe demonstrates the dilemmas and conflicts that womens identities as individuals and as members of a family group are giving rise to in relation to law reform. A pluralist and processual position, which extends beyond the dichotomous perception of women as individuals versus women as members of a family group inherent in both the universalist and the relativist approach, is pointed out as the way forward. Rather than identifying the legal needs of women in general, the article demonstrates the importance of exploring both the general characteristics and unique features of social and legal relations.

Historical Justice and Socio-Economic Development: Tensions in South Africa's Land Resolution Programme

Abstract This study of the land restitution process and the return of, or compensation for, land taken for racial reasons since 1913, explores how the South African ANC government balances the search for economic growth and undoing historical and social injustices underpinned by efforts to balance universal citizenship with recognition of difference. Land restitution, the third leg of South Africas land reform, has entered a critical phase, with the planned restoration of hundreds of highly developed commercial farms in Limpopo Province to claimant communities in the face of substantial landowner resistance and government over-commitment. The combination of productive land, substantial export revenues, pervasive restitution claims and past disappointments has led the government to embrace a new model of restitution. Successful claimant communities will form a joint venture company with a private entrepreneur and with a small share reserved for farm workers. This new modified business model raises a series of fundamental questions about how the South African government balances its responsibility for providing economic and social development while achieving social justice. A related question is how it equalises the three sources of inequality: race, gender and class. The paper, based upon fieldwork in northern Limpopo Province, analyses these emerging tensions.

Norwegian Equality and Anti-discrimination Reform in an Individualist and Market-oriented Context

No country in the world has, so far, closed the gender gap. Inequality and disadvantage play out on all scales: globally, regionally, nationally, locally, and within social groups and families. The Nordic countries top the World Economic Forum’s Gender Gap Index, which measures economic participation and opportunity, education, political empowerment, and health and survival (World Economic Forum, 2016). The Norwegian Gender Equality Commission (NOU, 2012, p. 15), however, points to significant inequalities regarding the distribution of power and resources between women and men from the majority population, and between women belonging to majority and minority groups. Against this background, the Commission, headed by professor Hege Skjeie, called for a legal framework that would strengthen the protection against individual, structural, and intersectional gender discrimination. Above all, it emphasized the need to strengthen the existing anti-discrimination apparatus. The anti-discrimination authorities, it was argued, should be provided with tools to grant remedies for victims of discrimination and take action against discriminatory social, economic, and legal structures. In response to these recommendations and long-standing pressure from different women’s rights organizations, the conservative Norwegian government, led by Erna Solberg, on 16 June 2017 passed a gender-neutralized and unified Equality and Anti-discrimination Act (GEA) and a new Anti-discrimination Ombud and Anti-discrimination Tribunal Act (AOT).1 In sum these two acts represent an individualist and privatized equality and anti-discrimination structure. The reform weakens vulnerable individuals’ access to the new complaint mechanism and the Anti-discrimination Ombud’s power to address structural discrimination. The reform was strongly resisted by women’s organizations, the labour unions, and experts in the field of equality and anti-discrimination law. The debate provides a window into tensions and conflicts between an individualist and market-based approach to equality, and international law’s demand for substantive equality, which requires the availability of legal tools to take action against individual and structural discrimination. The American philosopher and political theorist Nancy Fraser (2008) has argued that the movement for women’s liberation has become entangled in a dangerous liaison with neoliberal efforts to build an increasingly individualized free-market society. According to Fraser, feminist ideas that once formed part of a radical worldview are increasingly expressed in individualist terms. To advance social gender justice she has set out a theoretical framework that combines three dimensions of justice—recognition, redistribution, and representation.

Rights-Based Freshwater Governance for the Twenty-First Century: Beyond an Exclusionary Focus on Domestic Water Uses

The UN recognition of a human right to water for drinking, personal and other domestic uses and sanitation in 2010 was a political breakthrough in states’ commitments to adopt a human rights framework in carrying out part of their mandate. This chapter explores other domains of freshwater governance in which human rights frameworks provide a robust and widely accepted set of normative values to such governance. The basis is General Comment No. 15 of the Committee on Economic, Social and Cultural Rights in 2002, which states that water is needed to realise a range of indivisible human rights to non-starvation, food, health, work and an adequate standard of living and also procedural rights to participation and information in water interventions. On that basis, the chapter explores concrete implications of the Comment for states’ broader infrastructure-based water services implied in the recognised need to access to infrastructure, rights to non-discrimination in public service delivery and respect of people’s own prioritisation. This implies a right to water for livelihoods with core minimum service levels for water to homesteads that meet both domestic and small-scale productive uses, so at least 50–100 l per capita per day. Turning to the state’s mandates and authority in allocating water resources, the chapter identifies three forms of unfair treatment of small-scale users in current licence systems. As illustrated by the case of South Africa, the legal tool of “Priority General Authorisations” is proposed. This prioritises water allocation to small-scale water users while targeting and enforcing regulatory licences to the few high-impact users.

Land Rights, Human Rights and Development: Contestations in Land Restitution, Limpopo Province, South Africa

Worlds of Human Rights presents ethnographic studies from Sub Saharan Africa that highlight how individuals and groups use human rights to achieve greater justice. It shows how struggles concerning land, property, gender equality and legal identity are shaped by contexts of history, power structures and legal pluralism.

Worlds of Human Rights

Worlds of Human Rights presents ethnographic studies from Sub Saharan Africa that highlight how individuals and groups use human rights to achieve greater justice. It shows how struggles concerning land, property, gender equality and legal identity are shaped by contexts of history, power structures and legal pluralism.

Between Common Community Interest and Gender Difference: Women in South Africa's Land Restitution Process

Worlds of Human Rights presents ethnographic studies from Sub Saharan Africa that highlight how individuals and groups use human rights to achieve greater justice. It shows how struggles concerning land, property, gender equality and legal identity are shaped by contexts of history, power structures and legal pluralism.

Special Issue: Human Rights, Sexual Orientation, and Gender Identity

The articles presented in this Special Issue on Human Rights, Sexual Orientation, and Gender Identity are developed from papers presented at the international conference Sexual Freedom, Equality and the Right to Gender Identity as a Site of Legal and Political Struggles held in Oslo in December 2014. LGBTI persons, unlike people who are discriminated against on grounds like sex and gender, race and ethnicity, or disability, lack a particular international convention which obliges states to ensure that their right to equality and non-discrimination is respected, protected, and fulfilled. An overall aim of the Oslo conference was to discuss recent developments in the field of human rights protection on the right to sexual orientation and gender identity without discrimination. This Special Issue marks the 10th anniversary of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. The Principles were drafted by a group of high level international experts in Yogyakarta in Indonesia in 2006 to fill the existing human rights gap. This declaration, which today constitutes an authoritative interpretation of general human rights principles, has been characterised as one of the most influential human rights documents of our time. It is against this background that this Special Issue seeks to situate the Yogyakarta Principles in a broader international and national legal landscape. A key question is how international, regional, and national law have responded to the wide range of human rights violations addressed by the Yogyakarta Principles. As regards law’s growing recognition of the existing multiplicity of sexualities and gender identities a central query is whether, how, and to what extent the status quo of gender duality is reproduced. As pointed out by Michael O’ Flaherty in his article ‘The Yogyakarta Principles at Ten’, the drafters, through the Principles’ definition, sought to avoid ‘sexual orientation’ and ‘gender identity’ as rigid binary categorisations. This effort, as O’Flaherty’s article shows, has made its mark on the jurisprudence of a wide range of human rights treaty bodies, ranging from the Human Rights Committee, Council of Europe, the Court of Justice of the European Union, and the European Court of Human Rights, to domestic courts. The Yogyakarta Principles have, in many countries, along with other legal and political factors, led to a right to be assigned a legal gender in consonance with one’s identity. Countries such as Denmark, Germany, New Zealand, Malta, India, and Nepal recognise a third gender. These Principles have, however, not been strong enough to extend the human right to marry and found a family to same-sex couples. Yet, many states like

Ethnographic and Historical Perspectives on Rights Claiming on the African Continent

Worlds of Human Rights presents ethnographic studies from Sub Saharan Africa that highlight how individuals and groups use human rights to achieve greater justice. It shows how struggles concerning land, property, gender equality and legal identity are shaped by contexts of history, power structures and legal pluralism.