GENDER EQUALITY AND PROPERTY REGIME IN NAMIBIA

Introduction
For many years, many traditions have been ruled by men. Men had control over women, and they make decisions that affect both parties (men and women). Not only were they chiefs, or headmans but they also had marital powers over the woman. They were regarded as heads of houses, and in most African communities men had full control over the properties that belonged to the family. Yet despite this pattern, women were increasingly active in virtually every household chore. In addition to producing much of the households food, women hold primary responsibility for gathering the water and fuel used daily by their families. This brings us the topic of gender equality and for my assignment I will be talking about Gender Equality and Property regime in Namibia.

Definitions of Gender, Gender Equality and Property

Gender Gender is a range of characteristics distinguishing between male and female, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity. There have always been many arguments as to whether gender includes sex or it is one thing. Sexologist John Money introduced the terminological distinction between biological sex and gender as a role in 1955. Before his work, it was uncommon to use the word "gender" to refer to anything but grammatical categories.1 However, Money's meaning of the word did not become widespread until the 1970s, when feminist theory embraced the distinction between biological sex and the social construct of gender. Today, the distinction is strictly followed in some contexts, like feminist literature,2 and in documents written by organizations such as the World Health Organization (WHO),3 but in most contexts, even in some areas of social sciences, the meaning of gender has expanded to include "sex" or even to replace the latter word4.

Udry, J. Richard (November 1994). "The Nature of Gender". Demography 31 (4): 561 573.doi:10.2307/2061790. JSTOR 2061790. PMID 7890091.
2

For exampleS, the definition and use of the term See G. Argyrous and Frank Stilwell, Economics as a Social Science: Readings in Political Economy, 2nd ed., (Pluto Press, 2003), in the feminist economics section, pages 238 243, especially pages 233 and 234.
3 abc

"What do we mean by "sex" and "gender"?". World Health Organization. Retrieved 2009-09-29 at http://www.who.int/gender/whatisgender/en/index.html 4 Footnote 1 above

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Gender Equality Gender equality (also known as gender equity, gender egalitarianism, or sexual equality) is the goal of the equality of the genders or the sexes, stemming from a belief in the injustice of myriad forms of gender inequality5. Other authors define Gender Equality as a social order in which women and men share the same opportunities and the same constraints on full participation in both the economic and the domestic realm6." The definition and interpretation of gender equality will be dealt with more lately in this assignment. Property Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy it, or to exclude others from doing these things7. Important widely recognized types of property include real property (the combination of land and any improvements to or on the land),personal property (physical possessions belonging to a person), private property (property owned by legal persons or business entities), public property(state owned or publicly owned and available possessions) and intellectual property (exclusive rights over artistic creations, inventions, etc.), although the latter is not always as widely recognized or enforced8. A title, or a right of ownership, establishes the relation between the property and other persons, assuring the owner the right to dispose of the property as the owner sees fit. Some philosophers assert that property rights arise from social convention. Others find origins for them in morality or natural law. The definitions given are only to give a clear picture to the reader on the aspect of gender, gender equality and property. However, more concentration will be paid to the topic of Gender Equality and Property regime in Namibia.

Historical background on Gender Equality and Property regime in Namibia

The property regime in Namibia during the colonial error was something that many people will not forget. Although men had power to most of the property that belonged to the family, the colonial administration had full control of the property for most black Namibians. Black people were not allowed to own some certain types of property, and if they do, they are either dispossessed off their property or the property itself is destroyed. This however, did not only stop there. The white administration went further to limit the marital property rights of the native

Retrieved on 21/09/2011 from http://www.google.com.na/url?url=http://en.wikipedia.org/wiki/Gender_equality&rct=j&sa=X&ei=4DmETovSNcL2 mAXB87Ul&ved=0CCoQngkwAA&q=gender+equality&usg=AFQjCNGG1HS64f6kT1FXYKy8dBRPFOkazQ 6 Lotte Bailyn ; Bailyn, (2006). Breaking the mold: Redesigning work for productive and satisfying lives. Ithaca, NY: Cornell. (3)
7 8

Retrieved from http://www.businessdictionary.com/definition/property.html on the 16th September 2011 Anti-copyright advocates and other critics of intellectual property dispute the concept of intellectual property. See footnote 7 above.

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population by enacting the Native Administration Proclamation Act 15 of 1928. According to section 17(6) of the Native Administration Proclamation: A marriage between Natives, contracted after the commencement of this Proclamation, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate, native commissioner or marriage officer (who is hereby authorized to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage. This provision applies to all black people north of the so-called red line (outside the colonial Police Zone)9. Even this was a violation of Human Rights in terms of Article 1010; the proclamation is still in force. It has not been amended or repealed, although th government is reportedly in the process of preparing a new Marriage Act which is expected to apply a single set of legal rules to all persons in Namibia. Based on the issue of Gender Equality, men were given marital power when the parties were married Out of community of property. This rule was governed by the section 22 (6) of the Black Administration Act11 which came in force before the Native Administration Act. This Act however, did not have any legal consequences in Namibia since it was introduced from South Africa12 but it was still applied in most cases in Namibia behind doors. At the formal political level, the promotion of gender equality has been a guiding principle in policy development. Article 95(a) of Namibias Constitution commits the state to enact legislation that will ensure equality of opportunity for women, to enable them to participate fully in all spheres of Namibian society. Article 23 on Apartheid and Affirmative Action recognizes the fact that women in Namibia have traditionally suffered special discrimination and need to be encouraged and enabled to play a full, equal and effective role in the political, social, economic and cultural life of the nation. In enacting legislation promoting the advancement of people who were previously disadvantaged socially, economically or educationally, special regard should be had to women. In accordance with these constitutional principles, a number of
9

See Proclamation 67 of 1954 (Application of Certain Provisions in Chapter IV of Proclamation 15 of 1928 to the Area Outside the Police Zone). The Police Zone is defined in the First Schedule to the Prohibited Areas Proclamation 26 of 1928.
10

Article 10 [Equality and Freedom from Discrimination] (1) All persons shall be equal before the law. (2) No persons may be discriminated against on the grounds of sex, race, colour {color}, ethnic origin, religion, creed or social or economic status. 11 Act 38 of 1927 12 This Act is however repealed by the Matrimonial Property Act 88 of 1984 which placed both husband and wife equal control of the joint estate.

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policies and laws have been passed since Independence to promote gender equality. These include the Married Persons Equality Act13, the Affirmative Action (Employment) Act14, the Combating of Rape Act15, the Communal Land Reform Act16, the Combating of Domestic Violence Act17 and the Maintenance Act18 (Committee on CEDAW 2007: 1)19.

Gender Equality in Civil marriages

Gender Equality was an aspect that was missing in civil marriages until 1996 when The Married Persons Equality Act 1 of 1996 was passed. This Act was seen as an instrumental in abolishing the unconstitutional marital powers of the husband and placing husbands and wives in Namibia on equal footing. Men and women who are married in civil marriages in community of property must now consult each other on all important financial transactions, as equal partners. The Married Persons Equality Act20 The purpose of the Married Persons Equality Act (MPEA) is to abolish the marital power between the married people. Marital power was the legal power a husband had over his wife and her property in a civil marriage. The husband controlled all of the property, whether it was property that the couple owned together or the separate property of the husband or the wife. The MPEA got rid of marital power. Husbands and wives now have equal power. In the eyes of the law, the husband is not the automatic head of the household. A husband can still be the leader and decision maker in daily life if that is what the couple wants. But if they go to court because of a dispute, the court will not automatically decide in favour of the husband21. The Act also aims to amend the matrimonial property law of marriages in community of property. The position was that the husband was given marital power over the joint estate of spouses married In community of property. This position has however now been amended by section 5 of the Act22. Now that the Act is in place, consent of the other spouse is necessary
13 14

Act 1 of 1996 Act 29 of 1998 15 Act 8 of 2000 16 Act 5 of 2002 17 Act 4 of 2003 18 Act 9 of 2003 19 This article was taken from the work Convention on the Elimination of All Forms of Discrimination Against Women in Namibia downloadable from http://www.cedaw.com/nambia 20 Act 1 of 1996 21 Pocket Guide Married Persons Equality Act Gender Research and Advocacy Project LEGAL ASSISTANCE CENTRE Windhoek, Namibia, 2008 22 Equal powers of spouses married in community of property 5. Subject to this Part, a husband and wife married in community of property have equal capacity (a) to dispose of the assets of the joint estate; (b) to contract debts for which the joint estate is liable; and (c) to administer the joint estate.

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before the other spouse does any juristic act. However, there is an exception to the instances not included in section 7 of the Act23. The MPEA also sets out consequences to juristic acts that are done without the consent of the other spouse. These consequences are set out in Section 8 (1) of the MPEA, and they read as follows:
8. (1) If a spouse married in community of property enters into a transaction with another person without the consent required by the provisions of section 7, or without leave granted by a competent court in terms of section 10 or contrary to an order of a court in terms of section 11, and (a) that other person does not know and cannot reasonably know that the transaction is being entered into without such consent or leave or in contravention of that order, as the case may be, such transaction shall be deemed to have been entered into with the required consent or leave or while the power concerned of the spouse has not been suspended, as the case may be; (b) that spouse knows or ought reasonably to know that he or she will probably not obtain such consent or leave or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall effected in favour of the other spouse (i) (ii) upon division of the joint estate; or upon demand of the other spouse at any time during the subsistence of the marriage.

These provisions are set out so that it can be easier for the spouse to know (a) The consequences he/she faces if he/she contravenes section 7 of the Act. (b) The remedies available for the spouse who has been defrauded by the other spouse. These remedies are set out in section 8(2) to (6) of the Act. Apart from the abolition of the marital power that was given to the husband and the amendment to matrimonial property in civil marriages, the Act also had some other functions such to provide for domicile of married women; to provide for domicile and guardianship of minor children. The Act further provided the regulation of household necessaries of spouses married out of community of property. Section 15(1) of the Act provides that spouses married out of community of property are jointly and severally liable to third parties for all debts incurred by either of them in respect of necessaries for the joint household. This means that, in the case where a child of the married spouses interferes or uses household necessaries of a third party, the married spouses have equal duties to pay the debts of the third party. This puts an equal liability on both spouses to contribute or make available households necessaries for the house. This is however done on the basis of the financial position of the spouse24. If one spouse earns more or has a better income than the other one, he is expected to contribute more than the other spouse who earns less. Section 2 also repeals section 3 of the Matrimonial Affairs Ordinance, 1955 (Ordinance 25 of 1955) which was in force before the MPEA came into force. Important points are also mentioned in the remaining subsections of 15. These points are outlined below:
23

Section 6 of the MPEA. Subject to section 7, a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse.
24

Section 15(2) of the MPEA

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(3) A spouse married out of community of property has a right of recourse against the other spouse in so far as he or she has contributed more in respect of necessaries for the joint household than for which he or she is liable in terms of subsection (2), and, in the case of a marriage subsisting at the date of commencement of this Act, such right of recourse is enforceable also with respect to the period of the marriage before the commencement of this Act, but without prejudice to the provisions of subsection (4). (4) In any action commenced by the issue of process on or before the date of commencement of this Act, a claim based on the right of recourse conferred by the proviso to section 3 of the Matrimonial Affairs Ordinance, 1955, shall, notwithstanding the repeal of that section by this Act, not be affected by any provision of this section, and such claim shall be justifiable as if this Act had not been passed. (5) This section shall not be construed as conferring on the husband a right to reclaim anything that he had already paid at the date of commencement of this Act in satisfaction of a right of recourse exercised by his wife by virtue of section 3 of the Matrimonial Affairs Ordinance25, 1955, before the repeal of that Ordinance by this Act.

The last provision of the MPEEA deals with the amendment of certain laws to give effect to the abolition of marital power; and to provide for matters incidental thereto. For the purpose of this assignment, the last two provisions will not be discussed. Overview of the Married Persons Equality Act26 The MPEA has brought many changes to the culture of marriages, ownership of property and gender equality in Namibia. Firstly, women have been given equal power to decision concerning marriages, and the marital power that was placed on man to control assets and liabilities of the joint estate has been removed. Secondly, the Act has set out consequences for the violation of concerning the consent needed when one of the spouses has the will to utilize the resources of the joint estate. Thirdly, the Act has emphasized on the issue of liability of spouses married out of community of property for household necessaries. Lastly, the Act was not silent on the issue of divorce and inheritance in marriages. If spouses are divorced while they are married In community of property, they divide the joint estate equally between themselves. If they are married Out of community of property, each partner keeps their own property27. In the case of divorce, the following principles apply: When a couple is married in community of property, the joint estate is divided in half when one person dies. If the deceased left a will, the property in the deceaseds half of the estate is given to the people named in the will28. When couples are married out of community of property, the property which belonged to the deceased is given to the people named in the will. The other spouse keeps his or her own property29. The issue on inheritance will be discussed in details in the following section and how gender equality and the consequences gender equality have on inheritance.

25 26

Ordinance 25 of 1955 Supra 27 See Footnote 14 for the reference of this statement 28 Supra 14 29 Supra 14

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Gender Equality and the Inheritance Rights (Inheritance of Properties from the Marriage) Gender in-equality also arises in the inheritance process. In practical examples, when the husbands dies in the family, his family would usually inherit all property that belonged to the family, and some even end up taking the children together. This practice has not died out, since it is still practiced in many African communities30. Apart from the drama of inheritance disputes at the interpersonal level however, inheritance has a major impact on the structural societal level. Economists and historians, whether radical or conservative, agree that inheritance practices are a major factor in promoting inequality in society31. Since the definition of gender equality has already been given, I would first try to give a short meaning on the word inheritance. The Concise Oxford Dictionary32 defines inherit as receive (property, rank, title) by legal descent or succession; derive (quality, character) from ones progenitors; (abs) succeed as heir. The term is derived from the Latin heres, which is also the root for the term heir, defined as person receiving or entitled to receive property or rank as lega representative of former owner; one to whom something (joy, punishment, etc.) is morally due. In short, inheritance concerns the transfer of rights to use property, typically in the first instance, between people who are related in a certain way to each other, i.e. through certain kinship ties. The most valuable question in this part is whether the way people get married does affect inheritance? Many informants say that the way in which the couple is married has an impact on what is thought to belong to the widow/widower. As stated earlier, if the couple were married In community of property than half of the property belongs to the widow/widower, while the other half of the property can be divided by the deceaseds relatives or if a Will is made, then the Will will be followed in such instance. If the couple were married Out of community of property, then it is thought that the deceased mans family has a right to most of the property because it is believed that he was the primary person who had amassed the communal property33. This principle is however, not correct in legal terms. If couples are married In community of property, every spouse will get his/her own shares, and deceased estate will be inherited by his/her heir in the Will. At present, marriages in the north of Namibia (beyond the Red Line) are assumed to be out of community of property unless otherwise stipulated at the before the marriage. This opened the way for customary laws of inheritance to be applied to all of the marital assets, because under customary law it is assumed that all property belonged to the deceased man and therefore it could be distributed according to the customs of the people involved34. In this situation, the widow will not inherit in a matrilineal or bifurcated descent system. Urban and/or educated women have now become aware of the importance of marrying in community of property, because they will then have a share of massed communal assets upon death or divorce. This marital regime at least protects half of the communal assets from marauding relatives when a widow and children are in
30 31

Retrieved from www.namibia-realestate.com/index.php?option=com on 23 September 2011 The Meaning of Inheritance: Perspective on Namibian Practice at page 13 32 2009 edition 33 See footnote 25 on the reference of this article 34 2004: (23-26) LeBeau, D., Iipinge, E. & Conteh, M. [2003]. Womens property and inheritance rights in Namibia

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the process of grieving for a lost family member. However, enforcing such legal protections in the rural areas is more difficult. Gender Equality and the Communal Land Reform Act35 Land and property rights are not an end in themselves, but a means for a better livelihood for women and their families. If women are not economically capable of sustaining their livelihoods, they will not be able to maintain their land and property.36 The development of Namibias land policy and legislation on communal land was characterised by a number of consultative conferences in which a large cross-section of stakeholders participated. It is reasonable to say that the interests of organized farming communities and Traditional Leaders were strongly represented at these conferences. The same cannot be said about the representation of womens rights. While individual women attended and provided inputs to these conferences, attendance registers do not show any organized womens group articulating gender issues. This might explain why the Draft Communal Land Bill circulated at the Consultative Conference on Communal Land Administration in 1996 did not contain any reference to gender aspects 37, and why none of the conferences came up with recommendations going beyond the assertion of equal rights for women in obtaining and retaining land rights. In 1998 Cabinet approved a revised Draft Communal Land Reform Bill which was forwarded to the Council of Traditional Leaders for further input38. In August 1999 the Draft Bill was sent to the Regional Governors with a request that they distribute it in the regions. Despite the Minister of Justice stating that several workshops were held to familiarize the general public, especially in the communal areas, with the contents of the Bill39, the Parliamentary Standing Committee on Natural Resources found after 29 public hearings on the Draft Bill in all regions that very few people were in fact aware of the contents of the Bill. The greater majority, especially in the rural areas, indicated that they had never been informed about the Bill and very little input was received from stakeholders and the public at large on the new Bill40. It recommended that the Bill be withdrawn and introduced at a later stage. This recommendation was rejected and the National Assembly approved the Bill in February 2000 before it was passed to the National Council for debate. Despite this, the Bill was approved in 2002 and the Communal Land Reform Act came into force in March 2003. When the Act was passed, did not have any impact of the registration of land rights on womens land rights cannot be assessed yet, as the Communal Land Reform Act will take some time to permeate customary tenure regimes. However, it may be instructive to briefly summarize
35 36

Act 5 of 2002 Report on the Proceedings of the National Conference on Womens Land and Property Rights and Livelihood in Namibia with a Special Focus on HIV/AIDS, Ministry of Gender Equality and Child Welfare, 2006, p. 17 37 Becker 1997: 58 Women and land rights, in Malan, J. & Hinz, M. (eds) (1997), Communal Land Administration: Second National Traditional Authority Conference Proceedings. 38 The Namibian (09.February.2000) 39 Die Republikein (17.January.2000) 40 Republic of Namibia (2000a). Report on the Communal Land Reform Bill [B.10-99] by the Parliamentary Standing Committee on Natural Resources. Windhoek: Parliamen at page 2

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experience with land privatization and registration in other parts of the continent. Hilhorst41 draws attention to some possible effects of the individualization of land rights by way of titling or registration. She argues that secondary rights holders such as women may run the risk that their customary rights to land and natural resources will be denied, and cites possible reasons: Land rights holders usually men may fear that land rights will be registered in the name of the tiller usually women. Registration programmes usually collapse a number of secondary claims to natural resources such as trees, fuel wood and fruits into one single category of rights. Registration of land rights may also maintain and reinforce traditional male control over land. Registration of land rights in the name of individuals may weaken local institutions and mechanisms that provide economic security to all members of village communities and hold economic differentiation in check.

The Act also does not lay down any criteria for land rights entitlement 42. In whose name should household land be registered, for example: husband or wife? This is an important consideration in a context where power relations are structured along gender lines. Households are generally assumed to be homogenous and egalitarian. However, this view ignores the power relationships in patriarchal households that place women in marginal and vulnerable positions. To address these issues, land policy and legislation should take the individual, not the household, as its unit of analysis. Land policy and legislation thus need to seek mechanisms to protect and extend the rights of women within households43. In the absence of such protection, the registration of land rights may further erode womens chances of obtaining more secure rights to land and natural resources. As yet there is no empirical evidence to suggest that this has occurred in Namibia. Research in other parts of Africa, however, points to some such dangers. Because many women continue to obtain rights to land and natural resources through men, these rights are generally referred to as secondary tenure rights. Hilhorst44 argues that, like the secondary rights of others such as migrants, these rights are often of short duration, not well defined and subject to change. Despite the progress made in promoting gender equality, it is still true to say that land rights of women are generally obtained through men, who could be husbands or fathers. Men are generally regarded as the owners of land45.

41

Hilhorst, T. 2000 (188-189) Womens land rights: Current developments in Sub-Saharan Africa, in Toulmin, C. & and Quan, J. (eds.), Evolving Land Rights, Policy and Tenure in Africa. 42 Wolfgang W 19:2008 Protection for women in Namibias communal land reform Act- Is it working Legal Assistance Center. 2008 43 Walker C, (2001: 100 ). Piety in the Sky? Gender Policy and Reform in South Africa, draft paper prepared for the United Nations Research Institute for Social Development (UNRISD) Project on Agrarian Change, Gender and Land Rights. 44 Hilhorst 2000 (181-182) 45 ibid.: 44-45

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Womens rights to land and other resources thus continue to be determined by their marital status, by the laws of inheritance and divorce and institutions that are themselves deeply embedded within local perceptions of the role that women should play in society46. An important implication of this is that a change in a womans marital status, be it through divorce or the death of her husband, could be catastrophic47. Traditionally, women were not supposed to live without a man. According to Williams48 usufructory rights to land were held mostly by men in pre-colonial times. They distributed their land among their wives where polygamy prevailed, or among their wives and married sons or cousins residing in their homesteads. Husbands claimed the largest and most fertile portions of the land. Women were required to cultivate their own plots as well as those of their husbands. In most cases the harvests of women sustained the household while the granary of their husbands served as a symbol of wealth, enabling them to buy cattle, among other things. To conclude on this topic of communal land, I would like to point out the aim of the Communal Land Reform Act. To provide for the allocation of rights in respect of communal land; To establish Communal Land Boards; To provide for the powers of Chiefs and Traditional Authorities and boards in relation to communal land; To make provision for incidental matters.

One would clearly see that this Act was not created with the aim of solving the issue of gender equality with regards to land. The Act aims more at allocation and registration of land without really specifying whether to create a balance between men and women. It is a common cause that most of the communal land has been owned and registered in the name of men, and having this in mind the legislators were supposed to make some exception just like they did in other Act49.

Conclusion
In conclusion, I would like to refer back to the sub-topics mentioned in this assignment. Firstly, its the Married Persons Equality Act. This Act has been emphasized clearly to illustrate how the Namibian government has taken a mile stone in solving the issue of marital power, and matrimonial property regime in Namibia. Secondly, its the issue of inheritance with regard to gender equality. This issue was clearly addressed by giving an overview of the
46 47

Hilhorst 2000 (182) Hubbard D & Cassidy E (2002: 356) Family Law Reform in Namibia: Work in Progress, in Andrew Bainham (ed.), The International Survey of Family Law 2002. 48 1991: 44-45 Precolonial Communities of Southwestern Africa: A history of Owambo kingdoms, 1600-1920 49 This includes the Married Persons Equality Act, the Affirmative Action (Employment) Act, the Combating of Rape Act, the Communal Land Reform Act, the Combating of Domestic Violence Act and the Maintenance Act and others that have not been mentioned here.

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inheritance rights in Namibia, and how this affected the widows and widowers. The last chapter dealt with the issue of gender equality and the communal land reform Act. The purpose of this Act was emphasized, and how the purpose of the Act fails to address the issue of gender equality with regard to land in Namibia. All this topics showed one purpose, that is Gender Equality and the Property Regime in Namibia.

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