Indicator 5.a.2 Proportion of countries where the legal framework (including customary law) guarantees women’s equal rights to land ownership and/or control

Indicator 5.a.2: Proportion of countries where the legal framework (including customary law) guarantees women’s equal rights to land ownership and/or control

Target 5.a: Undertake reforms to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance and natural resources, in accordance with national laws

Food and Agriculture Organization of the United Nations (FAO)

Definition:

Indicator 5.a.2 assesses the extent to which the national legal frameworks (including customary law) guarantee women’s equal rights to land ownership and/or control.

The indicator “measures” the level to which a country’s legal framework supports women’s land rights, by testing that framework against six proxies drawn from international law and internationally accepted good practices , in particular the Convention on the Elimination of Discrimination Against Women (CEDAW) ratified by 189 countries, and the Voluntary Guidelines for the Responsible Governance of the Tenure of Land Fisheries and Forestry (VGGT) endorsed unanimously by Committee of Food Security (CFS) members in 2012.

The six proxies through which indicator 5.a.2 is monitored are the following:

Proxy A: Joint registration of land is compulsory or encouraged through economic incentives

Proxy B: Compulsory spousal consent for land transactions

Proxy C: Women’s and girls’ equal inheritance rights

Proxy D: Allocation of financial resources to increase women’s ownership and control over land

Proxy E: In legal systems that recognize customary land tenure, the existence of explicit protection of the land rights of women

Proxy F: Mandatory quotas for women’s participation in land management and administration institutions

Concepts:

The indicator tracks progress on legal reforms that guarantee women’s land rights (including customary law) in terms of ownership and/or control.

The customary dimension of the indicator is very important because in many contexts in which customary law prevails, women’s land rights tend to be denied or insecure. However, the enormous diversity of customs and social norms that govern customary land among and within countries and their unwritten nature, create a significant challenge for assessing whether the proxies are present in these systems. Therefore, the customary dimension will only be considered in the case it has been incorporated the legal system.

Finally, the indicator refers to ownership and/or control of land which are two critical but different dimensions of women’s land rights. Land ownership refers to the legally recognized right to acquire, use and transfer land property, while control over land is associated with the ability to make decisions over land.

Key definitions are the following:

Land

Land is defined as all immovable property – for instance the house, the land upon which a house is built and land which is used for other purposes, such as agricultural production. It also encompasses any other structures built on land to meet permanent purposes. Legal frameworks commonly use the terms ‘immovable property’ or ‘real property’ when referring to land.

Land ownership

Land ownership is a legally recognized right to acquire, use and transfer land. In private property systems, this is a right akin to freehold tenure. In systems where land is owned by the state, the term “land ownership” refers to possession of the rights most akin to ownership in a private property system – for instance, long-term leases, occupancy, tenancy or use rights granted by the state that are transferrable and are granted to users for several decades (for instance 99 years).

Control over land

Control over land is the ability to make decisions over land. It may include rights to make decisions about how the land should be used, including what crops should be planted, and to benefit financially from the sale of crops.

Customary land tenure

Customary land tenure is defined as the bodies of rules and institutions governing the way land and natural resources are held, managed, used and transacted within customary legal systems.

Customary legal systems

Customary legal systems are systems that exist at the local or community level, that have not been set up by the state, and that derive their legitimacy from the values and traditions of the indigenous or local group. Customary legal systems may or may not be recognized by national law.

Legal and policy framework

The legal and policy framework comprises a set of publicly available legal and policy instruments governing land and family matters in force when conducting the assessment, including the Constitution, primary - and secondary legislation and policies. It includes customary legal systems where they have been recognized by statutory law.

Personal laws

Personal law is defined as a set of codified rules and norms applying to a group of people sharing a common religious faith about personal matters. These laws usually cover family relations, marriage, and inheritance. The term can be used interchangeably with ‘religious laws’.

Primary legislation

Primary legislation refers to (i) acts or statutes that have been formally adopted at the national level following the official parliamentary procedure for the passage of laws (in parliamentary systems); (ii) other acts at the national level with the force of law, such as decree-laws and legislative decrees and otherwise (in parliamentary systems); (iii) other legal instruments that have been formally endorsed by a law-making body, for instance presidential and royal orders or presidential and royal decrees (in non-parliamentary systems or systems where law-making power lies in an additional institution to the parliament). In all cases, primary legislation must have the force of law, be binding. For this assessment primary legislation includes the Constitution.

Secondary legislation

Secondary legislation includes subsidiary, delegated or subordinate legal instruments that have the force of law, are binding, and shall not be in contradiction with primary legislation. They are usually passed by the executive, such as national regulations, rules, by-laws, determinations, directions, circulars, orders, and implementing decrees.

Joint registration

Joint registration is where the names of both spouses or both partners in an unmarried couple, are entered into the land registry as the owners or principal users of the land being registered. Joint registration signifies a form of shared tenure over the land – usually either a joint tenancy/occupancy or a tenancy in common). In legal systems which include a framework for land titling, joint registration is commonly referred to as joint titling.

Unmarried couples

Unmarried couples are defined as couples who live together (cohabit) in an intimate relationship, but who are not married following the marriage law of the country. It refers to couples who were married under custom or religious laws, where such marriages are not recognized or do not comply with the requirements of the formal law. It may also refer to relationships that are recognized by the state but that are not considered a marriage – for instance a civil partnership and a de facto relationship that is registered with the state. The term ‘unmarried couples’ is often used interchangeably with ‘de facto unions’, ‘consensual unions’ or ‘irregular unions’. The members of an unmarried couple are referred to as ‘partners’.

Land transactions

Land transactions for the methodology are major land transactions, specifically the sale and encumbrance (mortgage) of land.

Inheritance

Inheritance is defined as property passing at the owner's death to the heir or those entitled to succeed.

Deceased’s estate

The deceased’s estate encompasses the legal rights, interests and entitlements, to property of any kind (not only land) which the deceased spouse or partner enjoyed at the time of death, less any liabilities. Depending on the legal system, marital property may be excluded fully from the calculation of deceased’s estate, or the deceased’s 50% share in the marital property will be included.

Equal inheritance rights for sons and daughters

Equal inheritance rights for sons and daughters require the law on intestate inheritance to either be gender-neutral or provide for both an equal rank and equal shares in the inheritance for brothers and sisters (or daughters and sons).

The proportion of countries where the legal framework (including customary law) guarantees women’s equal rights to land ownership and/or control is the unit for measuring progress at the global and/or regional level.

At the national level, it ‘measures’ the extent to which the legal and policy framework protects women’s land rights against the 6 proxies defined for monitoring SDG indicator 5.a.2. According to the number of proxies identified countries are classified in a band system ranging from 1=No evidence to 6=Highest levels of guarantees.

Sources of data for measuring Indicator 5.a.2 are the official versions of national policies, primary law and secondary legislation which must be publicly available. More specifically, the relevant laws include the following: land, family, marriage, inheritance, land registration, gender equality laws, constitution, agrarian reform. Relevant policies include land, agriculture and gender policies.

Governments should nominate a national entity responsible for the process of monitoring and reporting on indicator 5.a.2. The designation of the responsible institution should be guided by nature of the information required in particular relevant provisions from land and family laws. In view of this, the most adequate national institutions that could be designated for having this responsibility are land related institutions (i.e. Ministries of Land or the national institution governing land matters), and/or the national gender institution (i.e. Gender Equality Commissions, Women´s Affairs or Gender Ministries).

Customary law

Since customary law is not a homogenous system of law, assessing whether it establishes equal rights to land ownership and/or control for women and men is very challenging. Therefore, the methodology determines that customary law will only be considered to the extent that it has been recognized in the legal framework. However, this also means that reporting data does not cover the legal systems where customary law has not been formalized but continues to govern family and land matters, possibly constituting a major factor of discrimination against women. Further, given that customary law does not exist in all countries, it is not universally applicable. The methodology has addressed this issue by creating a dual system of computation of the results, which is explained below in section 4.

Geographical scope.

The data collected for the SDG indicator 5.a.2 is collected at the national level to ensure that it adequately represents the national legal system. This means that the 5.a.2 assessment to determine the existence of the proxies should focus on legal and policy instruments that have nationwide authority. In countries where law-making power for land or gender matters does not reside with the central authority (or is shared between the national government and a sub-national government), the assessment may require analysing laws at state, provincial or county level. However, any research at sub-national level can only be undertaken after mapping and analysing the relevant provisions in the overarching legal framework at constitutional and federal level for a focused and efficient data collection process.

In case the assessment requires data collection and data analysis at the sub-national level, a sample of the states, provinces or counties will be established, including the most populous states up until reaching 50 percent of the total country’s population. Since the results must have nationwide authority, the proxy should be located in the laws of each state, province or county that is part of the sample. If it is not the case, the proxy is not present.

The qualitative and legal nature of this indicator required the development of a nuanced and articulated methodology that could be feasible, universally relevant and meaningful.

The computation of results under Indicator 5.a.2 involves two steps: (1) classification of the country according to the number of proxies located in primary or primary and secondary legislation and (2) consolidation of all country results for global reporting.

Step 1: Classification categories of country

The country will be classified according to the total number of proxies found in primary legislation or primary and secondary legislation. Given that not all countries recognize customary land tenure or customary law (related to proxy E), a dual approach for computing national results has been developed:

• For countries where customary land tenure is NOT recognized in the legal framework (either via statute or the constitution), regardless of whether it exists de facto or not, Proxy E is marked non-applicable and the country will be assessed out of the five remaining proxies.
• For countries where customary land tenure is recognized in the legal framework, the country will be assessed against all six proxies,

The table below describes the dual approach for computing results and the classification bands. As is shown below, in countries where customary law is applicable (Proxy E) the presence of five or six proxies are included in the same band (band 6 - very high levels of guarantees). This is due to the necessity of making universal the calculation of the component of customary law, which is not universal and not always formalized in the legal system.

Table 1: Classification Band System

Under the methodology all proxies have an equal weight. This implies that no dimension is more important than another in terms of supporting gender equality in land ownership and/or control.

2024-07-29

Food and Agriculture Organization of the United Nations (FAO)

Goal 1, specifically indicator 1.4.2, and Goal 5, specifically 5.a.1 and 5.1.1.

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