WOMEN'S LAND-RELATED HUMAN RIGHTS IN MOZAMBIQUE: THE GAP BETWEEN COMMITMENTS DE JURE AND LOCAL PRACTICE.

• Author: Bicchieri, Marianna

1. Introduction 114 II. Background and Country Context 116 III. Mozambique's Approaches to Human Rights, Land Rights, Gender, AND Legal Pluralism 121 A. Mozambique's Accession to International Human Rights Instruments 121 B. Mozambique's Approach to Human Rights, Land Rights, and Gender 122 C. Mozambique's Approach to Legal Pluralism as Reflected in its Constitution 127 IV. The Domestic and International Law Relating to Gender Equality and Land Rights in Mozambique 129 V. An Assessment of the Alignment Between CEDAW and the Maputo Protocol and Mozambique's Domestic Laws on Gender and Human Rights 133 A. CEDAW 133 B. Maputo Protocol 134 VI. The Gap Between Commitment de Jure and Local Practice and Customary Norms 136 A. Contextual and Cultural Reasons Why Local Approaches May Fall Short 137 B. Reasons Why Local Approaches May Fall Short: Procedural Considerations 142 C. Challenges Associated with Mozambique's Approaches to Human Rights, Land Rights, Gender Issues, and Legal Pluralism 144 VII. Conclusion 148 I. INTRODUCTION

   This Article examines why the land-related human rights of women are still ignored and abused in countries which have passed ostensibly progressive gender legislation and are signatories to relevant international human rights instruments. (1) Using Mozambique as a case study, this Article identifies a gap between commitments de jure and local and customary practice. It also considers the reasons for this gap and its impacts.

   Legal pluralism is "a situation in which two or more legal systems coexist in the same social field." (2) This Article suggests that, in a context of legal pluralism, efforts to tackle gender inequality and promote women's land-related human rights have faltered due to Mozambique's inability to align statutory and customary law.

   Furthermore, while most of the population lives in rural areas, the great divide between urban and rural realities is frequently overlooked or disregarded by decision makers. Consequently, policy and legislation that could address gender issues and help shape more equitable relations between men and women are ineffective because they do not reach much of the population.

   The pages that follow show how local practice and customary law in rural areas--and the extent of gender inequality and women's rights violations--are frequently or nearly always ignored or disregarded by policymakers. As suggested earlier, this is because of a gap between commitments de jure, on the one hand, and local practice and customary norms, on the other hand, as well as the inability of urbanbased government and administrative institutions to effectively address these issues. Given this gap, simply passing legislation, strengthening the formal judicial system, or trying other solutions that disregard the realities and constraints experienced by rural women is insufficient in enabling them to fully enjoy their land-related human rights.

   Part 1 includes a brief overview of the remainder of the Article. Part II provides background information about Mozambique and human rights violations experienced by women related to land tenure insecurity. It also discusses the literature on customary practices (3) relating to women's access to and control over land and explores how certain customary practices are linked to human rights violations. Part III discusses Mozambique's accession to international human rights instruments, its approaches to human rights, land rights, and gender issues domestically, and how legal pluralism is reflected in its constitution. It aims to provide a clear picture of how Mozambique approaches its commitments to human rights and gender equality in the context of legal pluralism. It argues that, legally and ideologically, Mozambique seems committed to fulfilling its obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (4) and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (also known as the Maputo Protocol). (5) This Part ends by analyzing the reasons why, despite its progressive laws and accession to regional and international human rights instruments, Mozambique has failed to adequately protect women's land-related human rights. Part IV analyzes domestic and international legal frameworks on gender equality and women's land rights to assess whether current legislation is suitable to address land-related human rights violations experienced by women. It concludes that, despite some gaps, Mozambique's legislation is mostly supportive of women's land-related human rights. Part V discusses the alignment between CEDAW and the Maputo Protocol and Mozambique's gender and human rights laws, evaluating whether domestic legal frameworks are well-aligned with human rights principles and guidelines provided by international instruments. It concludes that, despite some limitations, Mozambique's legislation is aligned with these instruments. Part VI discusses the reasons why local approaches to protect women's land-related human rights fall short despite Mozambique's progressive legislation on gender issues, land rights, and human rights, illustrating the gap between commitments de jure and local practice and customary norms. Part VI elaborates on realities at the rural level that prevent women from enjoying their statutory rights, flagging that such realities are probably unknown or overlooked by the urban-focused government decision makers. In this context, approaches to address gender inequality and women's land rights arc mostly ineffective because they overlook the circumstances and needs of rural women. Part VII concludes that de jure commitments, especially in countries with a pluralistic legal environment, do not necessarily translate into social change. To foster implementation, statutory law needs to be coupled with concrete actions. This has not been the case in Mozambique. This Part also notes the great divide between urban and rural realities, which should be better recognized by the government and relevant stakeholders.

2. BACKGROUND AND COUNTRY CONTEXT

   Mozambique, located in Southeast Africa, is one of the poorest countries in the world. According to the 2020 UNDP Human Development Index, Mozambique was ranked 181 st out of 189 countries, figuring among the ten least-developed countries worldwide. (6) In 2014, the World Bank estimated that 46.1% of the country's population lives below the poverty line. (7) Most of the population--66.6% (8)--lives in rural areas and depends on land and agriculture for their livelihood, as the agriculture sector employs--formally and informally--around 74.4% of the population. (9)

   For most Mozambicans, land is not only an economic asset, but also a safety net in times of hardship and has considerable cultural and religious significance. (10) Land tenure security, "the certainty that a person's rights to land will be protected," (11) is closely linked to the enjoyment of a wide range of human rights, including the rights to food, work, shelter, culture, and an adequate standard of living.

   While secure access to land is crucial for most rural women, gender issues in the country are extremely complex. Women arc largely responsible for small-scale agricultural work and carry out most agricultural chores. (12) They are the main food producers and are responsible for feeding their households but do not enjoy tenure security over the land they depend upon." Although Mozambican legal and policy frameworks recognize women's land rights, women do not enjoy such rights within customary tenure systems. (14) Customary law and practices are legally accepted by the Mozambican Constitution as long as such practices do not conflict with constitutional principles. (15) However, as mechanisms to ensure alignment between customary and statutory law arc absent, customary law tends to prevail, especially in rural areas. (16) In this context, women continue to experience human rights violations linked to the lack of land tenure security. (17) As discussed later, land dispossession of widows, accusations of witchcraft, widow inheritance, cleansing rituals, and discrimination linked to the payment of bride price are all human rights violations linked to land tenure insecurity. In addition, these practices are closely related to the high incidence of HI V-AIDS among women in Mozambique.

   According to customary practices, women's access to land is mediated through male relatives." (18) This is because a deeply entrenched patriarchal system prevails in the country, and women are usually viewed as subordinate to men. (19)

   Furthermore, Mozambique has the seventh highest prevalence of HIV-AIDS in the world. (2) " HIV-AIDS has exacerbated women's land tenure insecurity, further exposing them to HIV-AIDS and aggravating their already limited enjoyment of fundamental human rights. Originally and according to customary practices, although women could not own or inherit land and property, male members of their extended families were responsible for taking care of widows and young children following the death of a husband/father. (21) However, in recent years, the solidarity duty that used to characterize customary practices associated with support for widows and children has been consistently disregarded. (22) Societal changes, like migration and urbanization, combined with extreme poverty and population growth may be among the causes for this phenomenon. (2) ' Furthermore, environmental degradation, climate change, land investment, and infrastructure development are contributing to land scarcity in Mozambique. (24) As land becomes scarcer, customary norms that used to protect widows and their children arc being reinterpreted in a discriminatory way to women's disadvantage. (25)

   Because men are dying earlier due to HIV-AIDS, some families use this to dispossess young widows and their children of their land and property. (26) After losing their...