Author: Edith Mychalewicz
Email: edith.my@gmx.at Student number: S2813785
Home University: University of Groningen Supervisor: Antenor Hallo de Wolf
Host University: Ruhr-Universität Bochum Supervisor: Pierre Thielbörger
Does indigenous customary law secure women’s access to land, the
right to food and to non-discriminatory development? – A case study
conducted in Cala, Eastern Cape of South Africa
Concluded December 2015
2 Abstract
On the African continent, indigenous customary law plays an important role in the allocation of land. However, customary tenure systems are often considered as up- holding patriarchal structures, which are discriminatory to women. This will affect women especially in the realisation of their right to non-discriminatory development and the right to food, which are enshrined in several international human rights treaties and also in most African constitutions.
The South African Constitution is a very young one as it was only adopted in 1996. It guarantees that customary law is part of the South African legal system and it has to be regarded as a distinctive source of law. The right to equality, however, prevails over customary law, in contrast to some other African constitutions. Several decisions of the South African Constitutional Court have confirmed that customary law must be interpreted as a constantly changing and evolving system and hence, patriarchal versions of “official custom” have been “overwritten”. Yet, there is a strong alliance of traditional leaders who are contesting this reading of the Constitution and are undermining processes which would lead to the realisation of women’s right to non-discrimination under “living customary law”.
Since there has long been the assumption by different actors in the international community that customary law and women’s rights cannot be combined, it is important to reassess this assumption as customary law plays an important role in the allocation of land on the African continent.
This thesis reviews the different sources and elements of the right to non-discriminatory development and the right to food, which are then related to the right to land. Literature has been analysed in order to shed light on the nature of customary law systems. Insights into a specific customary system have been gained through qualitative interviews with a female and a male farmer, a headman, an NGO expert in Cala, Eastern Cape of South Africa, and a researcher from the Institute for Poverty, Land and Agrarian Studies at the University of Western Cape.
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4 Acknowledgements
I am very thankful for the valuable academic inputs from my supervisor Antenor Hallo de Wolf at the University of Groningen and my mentor Angelo Dube at the University of Western Cape.
I am also very grateful to Ruth Hall from the Institute for Poverty, Land and Agrarian Studies (PLAAS) at the University of Western Cape, Boyce Tom und Zukile Tom from the NGO Trust for Community Outreach and Education (TCOE) and to Fani Ncapayi and Sipho Tabo from the NGO Cala University Students Organisation (CALUSA) for their assistance during my research work in South Africa.
I owe a huge thank to my parents for proofreading my thesis.
5 Table of contents
1. Introduction………...7
2. The right to food and the right to non-discriminatory development in International Law……….12
2.1. The right to development………12
2.2. Art. 14 CEDAW and the right to non-discrimination………17
2.3. The right to food……….20
3. How do land rights relate to the right to food and the right to non-discriminatory development?...26
4. Land tenure in South Africa………30
4.1.The question of direct applicability of international treaties under the South African Constitution………..30
4.2. Different forms of land rights in South Africa………...32
4.3. Legal pluralism in South Africa……….…38
4.4. Interpretation of customary law by the legislator, courts and traditional leaders………..41
5. Women’s customary land rights in African legal pluralisms………..46
6. Case study: Customary land rights of women in Cala, Eastern Cape…...52
6.1. Review of the interviews……….………...52
6.2. Discussion………….………...………...57
7. Conclusion………....61
6 List of abbreviations
ACHPR - African Charter on Human and Peoples’ Rights AU – African Union
CALUSA - Cala University Students Organisation
CEDAW - Convention on the Elimination of all forms of Discrimination against Women/ Committee on the Elimination of all forms of Discrimination against Women CESCR - Committee on Economic, Social and Cultural Rights
CLRA - Communal Land Rights Act
CRC - Convention on the Right of the Child/ Committee on the Rights of the Child FAO - Food and Agriculture Organization of the United Nations
GDP - gross domestic product
HRC - United Nation Human Rights Council ICJ – International Court of Justice
ILO - International Labour Organization
ICCPR - International Covenant on Civil, and Political Rights
ICESCR - International Covenant on Economic, Social and Cultural Rights NGO – Non-governmental organization
OAU - Organization of African Unity
PLAAS - Institute for Poverty, Land and Agrarian Studies at the University of Western Cape
7 1. Introduction
On the 25th of September 2015 the General Assembly adopted the UN Sustainable Development Goals (Jones and Kweifio-Okai, 2015). These seventeen goals are modelled on the Millennium Development Goals. In the preamble there is an emphasis on the overarching goal of gender equality, which is then concretized by goal number five. Goal number two attempts to “end hunger, achieve food security and improved nutrition and promote sustainable agriculture” (UN General Assembly, 2015). The goals cannot be achieved independently, but must be seen interrelated. These goals are also reflected by international and regional human rights treaties, especially by the International Covenant on Economic, Social and Cultural Rights (ICESCR)1, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW)2 and the Convention on the Right of the Child (CRC)3. Moreover, there are legally binding regional frameworks, which strengthen these goals, such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereafter the African Women’s Protocol)4, the African Charter on Human and Peoples’ Rights (ACHPR)5 itself, the African Youth Charter6 and the Southern African Development Community’s (SADC) Declaration on Gender and Development 19977 and the Protocol on Gender and Development 2008.8
1 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3.
2 Convention on the Elimination of all forms of Discrimination against Women, 18 December 1979, United Nation, Treaty Series, vol. 1249, p. 13.
3 Convention on the Right of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p3. 4 Protocol to the African Charter on Human and Peoples’ Rights on the Right of the Women in Africa, 1 July 2003, African Union, http://www.au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa [accessed 7 February 2016].
5 African Charter on Human and Peoples’ Rights, 27 June 1981, United Nations, Treaty Series, vol. 1520, p. 217.
6 African Youth Charter, 2 July 2006, African Union, http://www.au.int/en/treaties/african-youth-charter http://www.sadc.int/documents-publications/show/Declaration_on_Gender__Development_1997.pdf 7 Southern African Development Community’s Declaration on Gender and Development, 8 September 1997, Southern African Development Community,
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One might assume that hunger is mostly the result of humanitarian crisis. We might think of pictures of refugees fleeing from war and starvation. These pictures show only one face of hunger in the world. However, eighty per cent of hunger is not due to war, unrests or natural catastrophes but due to structural reasons (Reisenberger, 2015). These may lead to war. Even if this is not the case, people are nevertheless suffering from hunger (Hauser, 2015). Hence the right to food must also be discussed in relation to a context where there is no obvious humanitarian crisis, but rather a structural problem, which might threaten the access to food, like cases where people depend highly on the access to land to secure their right to food. The right to land does not only relate to the right to food, but also the right to non-discriminatory development, especially for women.
This research paper will review the international legal frameworks that deal with goal number five of the Sustainable Development Goals, whose objective is to “[…] achieve gender equality and empower all women and girls”, and goal number two which aims to “[…] end hunger, achieve food security and improved nutrition and promote sustainable agriculture”, especially the social and economic rights protecting rural women as laid down in Article 14 CEDAW and the right to food. These rights strengthen the right of women to access land.
Different legal frameworks regulate land rights. Especially on the African continent, indigenous customary law plays an important role in the allocation of land (Cotula, 2007). This research will analyse the relation of different legal frameworks dealing with land rights in South Africa. The South African Constitution does not only recognize codified law but also indigenous customary law. Customary law is still in use and is constantly in change in many parts of South Africa and is especially relevant regarding tenure rights.
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accessibility of primary data for the researcher. Furthermore, there is a lack of literature that deals with customary tenure law from a human rights perspective. The literature which can be found on indigenous customary law has rather been written from an ethnographic perspective or from the perspective of political or historical science. One might wonder why this research paper does not deal with the rights of indigenous people if one of the key concepts of this research is indigenous customary law. The reason is that the anchor points are the human rights right to food and the right to non-discriminatory development, and how indigenous customary law relates to these two human rights. Hence the rights of indigenous people might play a role regarding the acceptance of customary law as a source of law within a legal system. The acceptance of indigenous customary law and its place within in the South African legal system will be discussed. However, this will not be a focus of this research.
The first objectives of this research is to assess the assumption that indigenous customary law is in contradiction with regional and international treaties guarding the right to non-discriminatory development and food security for women. The second objective is to research whether customary communal tenure rights can be in line with the right to food security and non-discriminatory development for women and the third objective is to examine the assumption that the patriarchal version of customary law is not “overwritten” by the current “living law” in Cala, in the Eastern Cape of South Africa.
The overall objective of this study is to test the compatibility of indigenous customary tenure law with international human rights law regarding the right to equal and non-discriminatory development and the right to food. The research question is, “does indigenous customary law secure women’s access to land, the right to food and to non-discriminatory development”.
To answer the research question a qualitative literature review was conducted. In addition to the literature the author of this paper already possessed, new sources were found through different electronic databases and search engines such as: SmartCat (WorldCat), Google Scholar and Google.
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sovereignty, South Africa, Southern Africa. These terms were used in different combinations. Furthermore, the lists of references from articles and books (found and used) were reviewed to identify further usable items.
In the end, source material including academic articles, books and information provided by UN bodies on their website, and International Treaty Law and official documents that indicate international customary law and provide a basis for interpreting treaty law, were used for literature research and for preparing the field research.
Part of the research process was also conducting qualitative interviews regarding customary tenure law in Cala, in the Eastern Cape of South Africa. I conducted my case study in Cala, in the Eastern Cape of South Africa. I interviewed experts and persons from the local community in Cala. The aim of my interviews was to compare and contrast the different interpretations of indigenous customary law regarding tenure rights in Cala of experts, the local community and a local leader. Furthermore the aim was to compare the objectives of international treaties regarding food security and the right to non-discriminatory development with the objectives of indigenous tenure systems in Cala and to do research on the differences between women’s and men’s access to land in Cala.
The interviews were conducted in English. Translation into IsiXhosa was provided for those respondents who could not understand or speak English. All interviewees gave their written consent to the recording of the interviews. Fani Ncapayi and Ruth Hall consented to have their names mentioned in my thesis. All interviews were transcribed. They were reviewed individually and answers relevant to the objectives of the case study were compared, such as answers regarding the differences between women’s and men’s access to land. The outcome of the interviews and the analysis was compared with the outcome of the literature research regarding indigenous customary tenure law in Africa, especially in South Africa, and the compatibility with the concepts of the right to non-discriminatory development and the right to food was analysed.
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tenure law in South Africa which are of relevance to the right to food and the right to equal development. The fifth chapter will give an overview of different constitutional approaches towards customary law in relation to human and peoples’ rights on the African continent. In the sixth chapter the interviews will be reviewed, providing insight into the customary law system in one specific place in the Eastern Cape of South Africa, namely in Cala. The results of the interviews will be discussed, compared with the literature research, and related to the concepts of the right to non-discriminatory development and the right to food. The final chapter summarises the research outcomes and presents the conclusions.
2. The right to food and the right to non-discriminatory development in International Law
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pointed out which are the most relevant for answering the research question. In regard to the right to non-discriminatory development, Article 14 CEDAW will be in the centre of the discussion as it deals with rural women. Therefore, the focus regarding the right to development will be on the aspect of gender equality for rural women. The right to food will also be analysed in relation to the concept of food sovereignty.
The aim of my research is not to deal in depth with the question of universalism of human rights. However, by analysing the different sources and interpretations of the two human rights mentioned above, this question will be touched, especially concerning the right to non-discriminatory development.
2.1. The right to development
In this chapter the right to development will be analysed and its special nature will be examined. The first part of the sub-chapter will deal with the right to development on the global level whereas the second part will focus on African legal mechanisms concerning this specific right. Since this thesis has a legal approach it is crucial to note that the following analysis does not aim to discuss the right to development in moral or political terms. Having said that, it is also worth stating that the context of this right and its origin is highly political and ethical.
Since the 1970s there have been discussions to combine the economic and the human rights based development discourse. The so-called developing countries, in particular, have been pushing for legally binding instruments, which aim at securing the right to development both for nations and individuals. In 1974 the General Assembly adopted the Declaration on the Establishment of a New Economic Order and the Charter of Economic Rights and Duties of States and in 1986 the Declaration on the right to development (Rehman, 2010, Reinisch, 2013). These documents are not binding on their own, however, they are building on binding instruments such as the United Nations Charter and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil, and Political Rights (ICCPR) (Sengubota, 2002, Qerimi, 2012). Moreover, General Assembly Resolutions “may sometimes have normative value. They can … provide evidence important for establishing the existence of a rule or the emergence of an opinion juris”.9 The possible
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normative value of General Assembly Resolutions is also expressed in the Nicaragua case in which it is argued that the support of a General Assembly resolution is an indication of states’ “opinion juris as to customary law on the question.”10 The support of a General Assembly Resolution may unite both elements of customary law as required by Article 38 of the ICJ Statute, namely “a general practise accepted by law”. The phrase “accepted by law” is the second element which is also called opinio juris. Whether supporting a resolution can be regarded as “a general practise”, is controversial (Klabbers, 2013). As a result, the discussion whether the right to development can be regarded as customary law is controversial as well.
Both Article 1 of the ICESCR and the ICCPR deal with the right to self-determination, which also includes the right for peoples to “freely determine their political status and freely pursue the economic, social and cultural development” and paragraph 2 of Article 1 of the covenants refers to the right to “freely dispose of their natural wealth and resources…and in no cases may a people by deprived of its own means”. Also Article 25 of the ICESCR mentions “the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources”.
Article 1 of the Declaration on the Right to Development defines the right to development as “[…] an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”. This article reflects the conceptualisation process of the right the development. By adopting this Declaration the unity and interdependence of economic, social and cultural and civil and political rights was confirmed and somehow also re-established. The Vienna Declaration of 1993 reaffirmed the right as it was established by the Declaration in 1986 (Sengubota, 2002). Saying this does not imply that the right to development has actually the status of positive law as discussed above. The African Charter of Human and Peoples’ Rights is the only international treaty which enshrines the right to development as such.
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Only few of the reports of the working groups of the Human Rights Council’s (HRC) Universal Periodic Reviews mention the right to development explicitly.11 But the ones that do give some indication how the international community interprets the right to development. During the 2009 reviewing process Singapore recommended that China should strengthen its human rights legislation. It was noted that the rapid economic growth, which also strengthens the realisation of the right to development, was only possible because of women’s empowerment (HRC, 2009).12 In the same reviewing process Sudan noted its appreciation of China’s approach towards indivisibility of human rights, which also include the right to development (HRC, 2009).13 During the reviewing process in 2008, Cuba recommended that Switzerland should increase its development assistance to 0.7 per cent of its gross domestic product (GDP) to contribute to the realisation of the right to development (HRC, 2008a). 14 It is contested whether the obligation of so-called industrialised nations to provide monetary development aid is immanent to the right to development (Okafor, 2013). In the reviewing process in 2010 the Islamic Republic of Iran expressed its appreciation that Eritrea strengthened its efforts to fully realise the social, economic and cultural rights, including the right to development and suggested that Eritrea should further continue these efforts (HRC, 2010a).15 As one can see by comparing those recommendations and reviews, there is not one uniform understanding of the right to development. Both the Islamic Republic of Iran and Eritrea regarded the realisation of the social, economic and cultural rights as the key to the right to development. Similarly, Cuba focused its recommendation on raising the monetary assistance to developing countries. In contrast to that approach, Singapore’s and Sudan’s comments emphasised the indivisibility of human rights concerning the realisation of the right to development.
11 This outcome is based on an online research by the author of this thesis using the search function of the UN webpage http://uhri.ohchr.org/search/results.
12 Report of the Working Group on the Universal Periodic Review – Swizerland, UN Human Rights Council, 2009, para 29.
13 Report of the Working Group on the Universal Periodic Review – Swizerland, UN Human Rights Council, 2009, para 45.
14 Report of the Working Group on the Universal Periodic Review – China, UN Human Rights Council, 2008, para 19.
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By reading and comparing the above mentioned documents, especially Article 1 of the Declaration to the Right to Development, it becomes obvious that the concept of the right to development is a human right of an individual and a collective right of a people. My research is focusing on rights of individuals, especially those of rural women. Sengubota (2002) stresses that human development as a human right also includes the process of how the individual rights are achieved. Sen (1999 cited in Sengubota, 2002, p. 851) describes the development process as “capabilities of persons to lead the kind of life they value and have reasons to value”. This also relates to Article 8 of the Declaration on the Right to Development, which says, “Effective measures should be undertaken to ensure that women have an active role in the development process.” This leads furthermore to the question of who are the duty-bearers. Under Article 3 of this Declaration “States have the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development”. Under Article 6 states are required to “eliminate obstacles to development resulting from failure to observe civil, political rights, as well as economic rights.” This means that states are only responsible for creating the conditions for groups or individuals to be able to realize development, but not to actually realize development (Sengubota, 2002).
As already mentioned the Declaration of the Right to Development itself is of non-binding nature. It is highly contested if the right to development has reached the status of customary law. The ACHPR, however, was the first binding legal document including the right to development (Reinisch, 2013). Article 22 of the Charter states:
1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
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Rights decided for the first time that a violation of Article 22 had occurred. The Commission stated that it would have been the government’s responsibility to involve the Endorois community in the process of developing a game reserve, since it was built on the land, which was used for grazing their animals and for performing religious ceremonies Okafor (2013). In para. 277 of the decision the Commission points out that
“[a] violation of either the procedural or substantive element constitutes a violation of the right to development… the right to development requires fulfilling five main criteria: it must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice as important, over-arching themes in the right to development.”
In paras. 269 to 298 the Commission elaborates the procedural element and the substantive element of the right to development. The procedural component refers to a states obligation to fully inform the representatives of a community prior to an agreement and to allow meaningful participation in the consultation process concerning projects and policies which effect the life of the community. The substantive element refers to a state’s obligation to share the benefits of resources that derive from indigenous territories. The state has “the obligation to create conditions which are favourable for peoples’ development” (para 298).
The right to development under the African Charter is of immediate application, which is more than the duty of realizing it progressively. The realization does not always require resources and also implies in some cases negative obligations, as for example not to evict people without involving them in the process and providing fair compensation (Odinkalu, 2001, cited in Okafor, 2013) as it has been discussed in the Endorois case.
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states, since they are treaty parties. Regarding other actors, it is contested if and to what extent they have obligations under Article 22 (Okafor, 2013).
2.2. Art. 14 of the CEDAW and the right to non-discrimination
As described above, the right to development is an “umbrella right”, compiling social, economic and cultural rights as well as civil and political rights. In this sub-chapter aspects of the right to development which are specific for rural women and their access to land will be assessed. The sub-chapter will deal with Article 14 of the CEDAW, the African Women’s Protocol, Article 2 and 18 of the ACHPR itself, the African Youth Charter, the SADC Declaration on Gender and Development 1997 and the Protocol on Gender and Development 2008 and the International Labour Origination’s (ILO) Convention No. 169. The focus will be on the right to non-discrimination of rural women in relation to rural men but also in relation to urban women.
Article 14 of the CEDAW was established to address the specific position of rural women (Rehman, 2010). In this article issues regarding gender inequalities are focused on as they “intersect with rurality” (Freeman, 1993, cited in Pruitt, 2011). Apart from the United States, only so-called developing countries were involved in drafting and sponsoring the inclusion of Article 14 (Pruitt, 2011). Nevertheless, there are critical voices such as Escobar’s (1995, cited in Pruitt, 2011), which point out that this article is reinforcing an interpretation of development in line with the assumption that all rural communities want to produce for a market. However, Article 14 (2)(a) CEDAW strives for the engagement of women to “[p]articipate in the elaboration and implementation of development planning at all levels.” The Vienna Convention on the Law of Treaties16 requires considering - when interpreting treaties – the ordinary meaning of the words in the context and in the light of the treaty’s objective and purpose (Article 31). Concerning the CEDAW the aim of the treaty is according to its preamble - among other objectives - to foster the equality of women and men and to eradicate forms of colonialism and neo-colonialism. In the light of these objectives the previous paragraph can be read as a call for a process in which rural women are crafting their own concept of development. Pruitt (2011) regards Article 14 (2)(a) as the umbrella section for the
16 Vienna Convention on the Law of Treaties, 23 May 1969, United Nation, Treaty Series, vol. 1155, p.
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following sub-sections, which elaborate on different aspects of development. Hence only the ones related to land will be mentioned here.
Article 14 (2)(e) deals with the need to assist in organizing self-help groups and co-operatives to ensure equal access to economic opportunities. Article 14 (2)(f) ensures the right to participate in community activities. Pruitt (2011) explains that community activities are of particular importance in a rural setting as higher levels of public-sphere activities have less impact. Article 14 (2)(g) addresses the right for women to access agricultural loans and facilities and their right to equal treatment in land and agrarian reform and land resettlement regimes. This section acknowledges the high involvement of women in food production for direct consumption. However, notwithstanding their importance in food production, only two per cent of the land worldwide is owned by women, who also receive only ten per cent of the available loans (Pruitt 2009, cited in Pruitt 2011). Cotula (2007) relates those two aspects as he analyses that in some countries women are less likely to obtain loans as they own very little agricultural land. The Committee of the Elimination against all forms of Discrimination against Women (2011a) called in its Concluding Observation regarding South Africa for measures to increase the participation of women in processes regarding local development plans and to address discrimination regarding land ownership, inheritance and co-sharing. The Committee also claims that traditional practices and customs which hamper the right to property for women need to be tackled.17
The right to non-discrimination is the core right of modern human rights law. This is also the case in the ACHPR. The list of possible grounds enshrined in Article 2 of the Charter is not exhaustive. Yet certain sections of society and the community need special attention, women among them. The rights for women are further protected by the African Women’s Protocol, which came into force in 2005. Article 19 of the Protocol, the right to sustainable development, Article 20, the widow’s rights, and Article 21, the right to inheritance, are particularly relevant in the context of women’s rights to access land. Furthermore, the African Union has declared its commitment to
17 Concluding observations of the Committee on the Elimination of Discrimination against Women –
South Africa, Committee of the Elimination against all forms of Discrimination against Women, 2011,
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gender equality in its Constitutive Act in Article 4.18 Article 3 of the Charter also reinforces the right to non-discrimination as it emphasises the equality of all people before the law. Article 18(3) of the Charter is a comprehensive clause protecting against all forms of discrimination against women by referring to international treaties and conventions. Hence treaty parties to the Charter are also bound by treaties on women and children, no matter if they have signed and ratified those treaties (Banda, 2006 and Rehman, 2011).
The African Youth Charter was established to empower the African youth to drive the development process and development agenda. It is a legally binding document and has already been ratified by thirty-six member states of the African Union (AU, 2014). Article 9 calls member states to ensure equal rights to property for young men and women.
The SADC group has acknowledged the importance of the right to non-discrimination and has established the Declaration on Gender and Development in 1997 and the Protocol on Gender and Development in 2008. The Declaration is calling its member states to ensure women’s equal access to land and other productive resources (Banda, 2006 and SADC, 2012).
The Principle of Non-discrimination is also the underlying principle of the ILO’s Convention No. 169. This legally binding convention deals specifically with the rights of tribal and indigenous people. So far the convention has been ratified by twenty countries. South Africa has, however, not ratified the convention (ILO, 2015). In Article 7 the right to decide priorities for development is laid down. This can also be read in connection with Article 14 CEDAW as the emphasis is on the right to participate in all stages of development planning.
2.3. The right to food
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According to the UN (2015a), goal number 1.C. of the Millennium Development Goals has been reached as the number of people being malnourished has been halved since 1990. However, worldwide there are still about 795 million people undernourished. Goal number two of the newly adopted Sustainable Developments Goals is a road map to further lessen the number.
Since World Food Summit in 1996 the right to food has received significantly more attention. It also initiated a shift towards a rights-based approach to food security. In 2001 the former United Nations Commission on Human Rights (which has now been replaced by the UN Human Right’s Council) established the mandate for a UN Special Rapporteur on the right to food, who is in charge of the promotion and protection of the right to food. The Special Rapporteurs have adopted country reports and reports on special issues concerning State practices with regard to the right to food (Mechlem, 2004 and Rehman, 2010).
This sub-chapter will first focus on the right to food as it is enshrined in the ICESCR. This discussion will be followed by an overview of other sources granting the right to food namely regional treaties and the CEDAW, the Convention on the Right of the Child (CRC) and the Geneva Convention III. Further attention will be given to the country report on South African on the right to food19 and the report on the women’s rights and the right to food by the UN Special Rapporteur.20
The General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (CESCR) is an elaboration of the normative content of the right to food as it is enshrined in Article 11 (1) and (2) of the ICESCR, which constitutes an authoritative interpretation for the member states of the ICESCR (Eide, 1989, cited in Mechlem, 2004). Para. 6 of the General Comment points to the two aspects of the right to food, namely the right to be free from hunger at any time, also in times of disasters, and the right to adequate food. Para. 6 of the General Comment says “[t]he right to adequate
19 Report of the Special Rapporteur on the Right to Food, Addendum: Mission to South Africa, A/HRC/19/59/Add.3, 2012. Available at: http://www.refworld.org/docid/4f587be72.html [Accessed 11 November 2015].
20 Report of the Special Rapporteur on the Right to Food, Women’s rights and the right to food,
A/HRC/22/50, 2012. Available at:
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/AHRC2250_English. PDF [Accessed 11 November 2015].
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food is realized when every man, woman and child, alone or in community with others, has physical and economic access to adequate food or means of procurement,” and continues in para. 8 that the core of the right to adequate food is
“availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture [and] the accessibility of such food in ways that are sustainable and do not interfere with the enjoyment of other human rights.”
Para. 12 of the General Comment defines availability as
“possibility of either feeding oneself directly from productive land or other natural resources, or having means for the procurement of food through well-functioning distribution, processing, and market systems.”
Accessibility comprises both economic and physical accessibility.
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realise the right to adequate food, the concept of provision has to be regarded as a means of last resort to realise at least the right to be free from hunger in cases of disasters. One can argue that the right to be free from hunger is protecting dietary needs of individuals, but does not include aspects of cultural acceptance and sustainability. Article 11 para 2(a) states that the right to be free from hunger should be realised through “improving methods of production, conservation and distribution of food”, “dissemination knowledge of nutrition” and “developing or reforming agrarian systems…to achieve most efficient systems and utilization of natural resources”. The paragraph does not give any preference to facilitation of access to food or natural resources over provision of food and does also not refer to aspects of sustainability. In the concluding observation of the CESCR concerning Gambia, the committee recommended intensifying efforts fighting malnutrition among children. The committee referred to the General Comment No. 12, which deals with the right to adequate food by improving agricultural production, including targeting small-scale farmers.21 The committee’s recommendation can be read as in line with the concept of fulfilling preferably through means of facilitating availability and access instead of through means of distribution. In the concluding observation to the state report of Nepal the CESCR recommended addressing structural causes of malnutrition and hunger through a human rights based approach and strengthening the institutional capacity and the monitoring mechanism in order to deliver food aid in a non-discriminatory manner.22 The committee refers to aspects of the General Comment’s concepts of accessibility, especially to economic accessibility, but also to physical accessibility regarding food delivery. Both concluding observations provide recommendations on both aspects of the right to food, namely the right to adequate food and to right to be free from hunger. The previous UN Special Rapporteur on the right to food, Olivier De Schutter, compiled a report on the right to food on his mission to South Africa in 2011. By that time South Africa had not ratified the ICESCR, but its constitution included a progressive framework of social, economic and cultural rights. In this report he stressed the importance of strengthening small-scale farming, as this would foster sustainability in
21 Concluding observations of the initial report of Gambia, CESCR, 2015. Available at: http://uhri.ohchr.org/search [Accessed 23 Oct. 2015].
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terms of long-term food security and also from an ecological perspective. He regarded direct food distribution or the dependency of people on social grants to enjoy the right to food only as means of second choice (HRC, 2012a). Those recommendations are also in line with the General Comment No. 12.
In the Report of the Special Rapporteur on the Right to Food, Women’s rights and the right to food he also mentioned on several occasions the need to fight discrimination against women concerning their realisation of the right to food. The Special Rapporteur on the right to food regards the fight against discrimination against women as a key to strengthening the realisation of the right to food for women but also for their children and households in general (HCR, 2012b). The FAO concluded that if women had the same access to productive resources as men the agricultural output would rise by up to four per cent in developing countries. This would lower the number of hungry people by twelve to seventeen per cent globally (FAO, 2010 in 2012b). In the Rapporteur’s report on women’s rights and the right to food he also refers to one of his earlier reports and emphasises the strong interdependency of women’s access to land for small-scale agriculture, the right to food and the realization of development goals since access to land is a productive resource and also fosters empowerment, especially for women (HRC, 2012b, para 31).
Van Esterik (1999) points out that the right to food also includes values beyond the pure material value. She says for example that a woman’s sense of herself often depends on her ability to feed her children and family and hence one can argue that the right to food also includes the right to feed. She claims that the full realisation of the CEDAW can only be reached if the right to food also includes the concept of empowerment, especially of women. However, Article 12 (2) of the CEDAW speaks only about adequate nutrition during pregnancy and lactation, but does not mention a woman’s right to choose what and how to feed a child and her ability to provide food by her own means. Yet all of the three dimensions of the CEDAW, namely civil rights of women, human reproduction and the impact of cultural factors on gender relations have the agenda of empowering women.23 One can argue that the right to food needs to be read in connection with this empowerment aspect of the preamble of the CEWAD. This
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aspect is also stressed in the General Comment No. 12 and reflected by the reports of the UN Special Rapporteur on the right to food. In the Concluding Observation concerning Ethiopia the CEDAW urges the state to ensure that contracts with foreign companies do not lead to evictions from land and food insecurity of girls and women and to feminisation of poverty (CEDAW, 2011b).24 The same recommendation was provided to Togo (CEDAW, 2012).25 The committee acknowledges the strong link between access to land and the right to food and the prevention of poverty, especially concerning women.
Article 24 (2)(c) of the Convention on the Rights of the Children (CRC) comprises the obligation of states to provide adequate nutritious food. The Concluding Observation of the Committee of the Rights of the Child26 does not elaborate on the right to food as laid down in the CRC but refers to recommendations of the reports of the UN Special Rapporteur on the right to food (CRC, 2012). Hence no specific definition is provided by the Committee of the Rights of the Child concerning the concept of the right to food as enshrined in the CRC, but the Committee is applying the general concept of the right to food.
Amongst other legally binding sources for the right to food is the African Women’s Protocol. Right to food security is enshrined in Article 15, which obliges states to:
a) provide women with access to clean drinking water, sources of domestic fuel, land, and the means of producing nutritious food;
b) establish adequate systems of supply and storage to ensure food security. It clearly emphasises the facilitation of access for women to means to provide food for themselves.
24 Concluding observations of the Committee on the Elimination of Discrimination against Women –
Ethiopia. CEDAW, 2011, paras 36 and 37. Available at: http://uhri.ohchr.org/search [Accessed 23 Oct.
2015].
25 Concluding observations of the Committee sixth and seventh periodic reports of Togo, adopted by the
Committee at its fifty-third session (1–19 October 2012). CEDAW, 2012, para 37. Available at:
http://uhri.ohchr.org/search [Accessed 23 Oct. 2015].
26 Consideration of reports submitted by States parties under article 44 of the Convention - Concluding
observations: Madagascar. CRC, 2012, para 56. [online] Available at:
http://uhri.ohchr.org/en/search/results [Accessed 12 Nov. 2015]. Reserch on the site http://uhri.ohchr.org/en/search showed that only 3 Concluding observations made expicit
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Regarding the exact nature of the right to food one must differentiate between the two aspects of the right to food under ICESCR, namely the right to adequate food, and the right to be free from hunger. There are academics, such as Narula (2006) and Rehman (2010), who argue that the right to be free from hunger has the status of customary international law and is of absolute nature. It needs to be noted that the right to be free from hunger as enshrined in Article 11 para. 2 of the ICESCR is explicitly qualified as fundamental rather than linked to the state’s obligation to continually improve the realisation of the right. Moreover, one can argue that the nature of the right to be free from hunger must be in line with the absolute right to be free from torture and cruel, inhuman or degrading treatment or punishment as hunger can be qualified as a violation of the latter right.
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This chapter will discuss how the concepts of right to food and right to non-discriminatory development are linked to land rights and women’s land rights in particular. Some of the aspects have already been mentioned in the previous sub-chapter. Especially Article 14 of the CEDAW has a strong link between the right to development and land rights of rural women. The connection between land rights and the right to development is also emphasised in the Endorios case by the African Commission. The right to food can be realized through ensuring people’s access to natural resources, as also discussed in the General Comment. Land rights can be of a very different nature, mainly depending on the legal system. The aspects which are of most relevance to the both human and people’s rights will be elaborated on. At the end of the chapter the theory of food sovereignty will be briefly introduced as it links right to food, right to non-discriminatory development and land rights.
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human right as has been suggested by the former UN Special Rapporteur on the right to adequate housing.27
Various factors have led to a rapid decline in the size of the plots which are cultivated per capita and per household. There are strong tendencies which foster concentration of land in the hands of large-scale holders (UN General Assembly, 2010). This phenomenon is a particular problem in Eastern and Southern Africa (International Fund for Agricultural Development, 2008, cited in UN General Assembly, 2010). These developments cause a growing threat to the food security of small-scale holders. However, the UN Special Rapporteur is not only referring to the right to food, but also to the right of indigenous people to freely dispose of their natural wealth and resources. He argues that the General Assembly Resolution 61/295, of the Declaration on the Rights of Indigenous People contributes to the formation of international customary law regarding the prohibition of the dispossession of indigenous people of “their land territories or resources”. It is also a replication of Article 18 of the ILO Convention No. 169. In short, the report provides arguments for the need to secure tenure to ensure the right to food, especially for smallholders. This is also in line with the rights of indigenous people. The former UN Special Rapporteur argues that individual titling systems do not necessarily secure and strengthen the access to land, but that customary land tenure systems play a more effective role in that regard. He points out, however, that those systems might need to be amended in order to be in line with women’s rights (UN General Assembly, 2010). His argument is line with Hall’s statement (2015) and Budlender’s et. al report (2011) that women challenge patriarchal customary practices at a local level and in front of the South African constitutional court and base their arguments on human rights.
Women rely to an even higher percentage than men on food from their own production and the access to natural resources as a result of the fact that the rural population contains a higher percentage of women than the urban population (Pruitt, 2011). The report of the former UN Special Rapporteur on the right, which deals with the relation of women’s rights and the right to food, addresses the obligation of states to secure and strengthen women’s access to land in order to secure their right to food. At the centre of
27 Report of Special Rapporteur on adequate housing as a component of the right to adequat standard of
living, Miloon Kothari, A/HRC/4/18, 2007, para 31. Available at:
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all measures should be the empowerment of women, which is not only a right in itself, but also the most effective way to strengthen the right to food for women (HRC, 2012b). Article 14 (2)(g) CEDAW explicitly mentions the right of rural women to enjoy equal treatment regarding land reform and land resettlement regimes.
The relevant legal documents and the reports invariably stress the central role of access to land for realisation of the right to food and the enjoyment of the right to development for rural women. As mentioned above, the recommendation of the former UN Special Rapporteur on the right to food, De Schutter, is to strengthen the customary tenure system in order to strengthen the right to access land and to foster effective utilisation of natural resources. However, he stresses the importance of paying attention to and putting emphasis on non-discriminatory access to land for women under customary tenure systems. How and to what extent customary tenure systems are in line with the right to food and the right to development for women will be analysed in the following chapters. The focus will be on the situation in South Africa.
Linked to the above mentioned legal concepts is the political concept of food sovereignty, which itself is linking gender-equality, empowerment of women and their right to adequate food (Patel, 2012). There are several definitions of food sovereignty. However, there is one that has been agreed upon by NGO/CSO Forum for Food Sovereignty in 2007 (cited in Beuchelt and Virchow, 2012),
“Food sovereignty is the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems. It puts those who produce, distribute and consume food at the heart of food systems and policies rather than the demands of markets and corporations. … Food sovereignty implies new social relations free of oppression and inequality between men and women, peoples, racial groups, social classes and generations.”
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system is threatening food security and hence hinders the realisation of the right to adequate food as it promotes export-oriented industrial agriculture and leaves small-scale and family farming behind (HRC, 2008b, para 71). Some states grant their people the right to food sovereignty. Nevertheless, in the international arena the concept of food sovereignty has to be regarded as a political concept as it is not enshrined in any human rights treaties. But one might argue that it is a concept which helps realise the right to adequate food and the right to development. Critics, however, see the limitation of the concept regarding its ability to secure the right to adequate food for all human beings. As it focuses on small-scale producers in rural areas, it might hence not address the situation of non-producers and the urban population adequately. Nevertheless, both concepts, food sovereignty and the right to food, have major overlaps. Both concepts are striving for sustainability and reducing hunger. However, the right to adequate food does not reject the concept of a neo-liberal free-trade system, something the concept of food sovereignty does (Beuchelt and Virchow, 2012). Yet, the concept of the right to adequate food must have priority over trade agreements and structures as far as the right to food is jus cogens, which - as argued above - is the case at least regarding the right to be free from hunger.
30 4. Land tenure in South Africa
The following chapter will be divided in four sub-chapters, which will deal with different aspects of tenure law in South Africa which are of relevance to the right to food and the right to equal development. The first sub-chapter will deal with the direct applicability of international treaties in South Africa. The second sub-chapter will give an overview of different forms of tenure in South Africa. The next sub-chapter will provide an analysis of the relation between customary and statutory law in South Africa. The last sub-chapter will discuss the interpretation of indigenous customary law by courts and traditional leaders in South Africa.
4.1. The question of direct applicability of international treaties under the South African Constitution
Before specifically dealing with the status of international law under the South African constitution, the concept of direct applicability will be briefly explained. Other terms which are used for this concept and are quite interchangeable are ‘direct effect’ and ‘self-executing’ (Klabbers, 2013).
The term direct applicability of an international treaty or a provision of a treaty means that an individual can invoke a provision before the domestic courts. Yet a distinction must be made between a provision addressing individuals or contracting parties. Unfortunately, it might not always be clear who is addressed. In cases where the legislator is the addressed, a person can refer to a relevant provision of international law for his or her defence, for example a State’s prohibition to imprison ban on imprisoning a person “merely on grounds of inability to fulfil a contractual obligation” (Article 11 ICCPR). If a conflict between rules of international and domestic law arises, the outcome depends on the constitution of the state if one or the other prevails. It might depend on the fact which of the rules is the later one. So if international law is directly applicable and whether it prevails depends on the constitution of the individual states (Klabbers, 2013).
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courts directly without being incorporated into the domestic legal system according to the monist approach. The dualist approach requires a formal incorporation process for international law provisions to be enforceable before the national courts. However, many legal systems show elements of both approaches (Klabbers, 2013 and Ferreira and Ferreira-Snyman, 2015).
The relationship between public international law and domestic law is regulated in the Constitution of the Republic of South Africa, 1996. The South African approach towards public international law is as new as the constitution. Especially sections 231 and 233 of the constitution deal with the relationship between public international law and domestic law. On reading these sections it becomes obvious that the South African constitution is a mix of the dualist and the monist approach (Ferreira and Ferreira-Snyman, 2015). Section 231(2) binds South Africa to an international agreement only after it has been approved by a resolution in both the National Assembly and the National Council of Provinces. Section 231(3) regulates that some international agreements, such as those of a technical, administrative or executive nature, or those which do not require either ratification or accession, bind South Africa without approval by the National Assembly and the National Council of Provinces. Section 231(4) determines that any international agreement becomes law in South Africa when it is enacted into law by national legislation, excluding a so-called self-executing provision of an agreement, unless it is inconsistent with the Constitution or an Act of Parliament. Section 232 determines that customary international law is domestic law unless it contradicts the constitution. Section 233 regulates that when courts interpret legislation, the interpretation which is in accordance with international law prevails. Regarding the interpretation of the Bill of Rights, section 39 (1)(b) of the constitution orders that the tribunals, courts and forums must consider international law.
The literature and the Constitutional Court’s decisions suggest that there is no uniform understanding to what extent the South African legal system is of monist nature. The South African Constitutional Court followed an extensive interpretation of section 231(2) read in conjunction with section 7(2) in the majority judgment Glenister regarding the Bill of Rights28 (also cited in Ferreira and Ferreira-Snyman, 2015) as it
28Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC).para 194.
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rules that the maximum protection which is afforded by international law must apply to individuals in South Africa. As South Africa has the obligation to respect, protect and promote the Bill of Rights [section 7(2)], judicial bodies must apply public international law as an interpretation aid regarding the Bill of Rights according to section 39 (1)(b). Hence section 39 (1)(b) provides for far-reaching influence of international law principles on South African law (Cotula, 2007 and Ferreira and Ferreira-Snyman, 2015). Regarding customary law, which is regulated in section 232, Ferreira and Ferreira-Snyman (2015) consider the approach of the constitution as monist whereas Ngolele (2006) argues that the question whether international customary law is self-executing or not is superfluous since it is a long-standing principle of the South African legal system that international customary law is part if the domestic legal system. He argues that this principle is now enshrined in section 232 of the constitution. Section 231(4) clearly indicates that the doctrine of self-execution does not give supremacy to public international law, but adds legal provisions to the domestic legal system (Ngolele, 2006).
To conclude, international treaties are either ratified - if needed according to the treaty - through approval by a resolution in both the National Assembly and the National Council of Provinces or they are incorporated into domestic law through legislative means. Yet, if a treaty is un-incorporated and non-self-executing, one might refer to a right based on international customary law, which is, depending on the view, regarded as part of the domestic law or as directly applicable. Concerning the Bill of Rights, there is especially high influence of international law through interpreting national law in the light of international law.
4.2. Different forms of land tenure in South Africa
This subchapter will give an overview on the current tenure systems in South Africa. However, in order to understand how these systems have been developed and relate to each other, one needs to have an understanding of the historical background. Hence, this subchapter will first provide an elaboration of the roots of the different land tenure forms and will then provide a description of the different forms and of how they exist alongside in the South African legal system.
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thirteen per cent of the area of South Africa was allocated to the black African majority as so-called “homelands” or “reserves” and was administered by traditional authorities, which were appointed by the apartheid government. Those areas are today called “communal areas” and are still administered by traditional authorities (Ikdahl et al., 2005). In these areas communal land tenure is widely practised. This form of land tenure is embedded in social relationships. Land rights are considered to be inclusive and are derived from the membership to a social unit (Pienaar, 2006). This form of land tenure is mainly dominated by indigenous-law principles. Alongside this form of communal land rights individual land rights exist, which have their roots in common-law practises and principles. They have been introduced to South Africa by English colonial power. This system of land tenure is mixed with Roman-Dutch civil law principles and procedures (Pienaar, 2011 and Pope, 2011). However, recent South African history has seen the introduction of other forms of land tenure, which have their roots in apartheid time.
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The colonial period influenced and changed indigenous customary law. One reason for that was increasing land scarcity. Furthermore, new dispute mechanisms emerged through the colonial governments and also new economic possibilities. However, the degree of the influence varied a lot, and the concept of socially embedded tenure remained (Biebuyck, 1963 cited in Cousins, 2007).
In South Africa attempts were made to introduce individual titling systems to the “native reserves” together with demarcating some areas for communal grazing through the Natives Location and Commonage Act 1879. The individual titles were so-called “quitrent” titles, which gave certain rights regarding arable or residential plots in exchange for paying an annual quitrent (Delius et al., 1997 cited in Cousins, 2007). This title was registered in the Deeds Office and had many similarities to freehold titles, but had restrictions regarding the right to sell and the right to subdivide the land. Freehold titles have always been titles of private ownership (Budlender et al., 2011). Land is acquired by an individual through purchase and registered at the Deeds Office. Traditional authorities do not play a role in this form of tenure. However, the system of quitrent was not well received, one of the reasons being that one had to pay an annual rent whereas communal tenure did not require any payment (Delius et al., 1997 cited in Cousins, 2007; Budlender et al., 2011).
The rising scarcity of land during the colonial period was caused by the fact that African people had to live in the reserves and the increase in population. This situation strengthened the power of chiefs and headmen in their role in the process of allocation of land and restricting families to a defined area. (Mamdani, 1996 and Sansom, 1974 both cited in Cousins, 2007). The feudalist way of ruling by chiefs and headmen suited the colonial apparatus of indirect rule and individual titling was not further enhanced (Chanock, 1991 cited in Cousins, 2007). However, if conflicts arose over land between African people and were solved by colonial authorities, common law was applied instead of indigenous customary law (Bennett, 2004 cited in Du Plessis, 2011).
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rights to land a redefinition took place and women’s rights were seen as ‘secondary’ rights derived from the rights of men. The changes are to some extent also contradictory. Chiefs and headmen gained decision-making power over land at the expense of the peasantry. However, their power and rights were limited as they were accountable to the state. Despite all these change and power shifts, a lot of decisions concerning land were still made at a low hierarchical level (Cousins, 2007).
The introduction of freehold and quitrent titles occurred alongside the development and change of customary tenure law during the colonial area, as it has been mentioned above. Another attempt to formalise land tenure and to facilitate the supply of migrant workers was the allocation of one arable plot to married men under the Glen Grey Act 1894. However, the formalisation was diluted as inheritances were often not registered and the boundaries with commonage land became blurred (Cousins, 2007).
Commonage has its roots in the mid 1800s. It was an area for white town residents to keep their transport animals, milking cows and animals for slaughter or to let their stock graze temporarily. The initial practice was to transfer a right to access, a so-called ‘servitude’, to the commonage together with the transfer of an ownership right in the residential area. However, as the villages grew, the access was further limited. In the early 1900s municipal by-law determined the content and nature of user rights further and regulated allocation, administration and services regarding the commonage (Anderson and Pienaar, 2003).
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required land tenure concerning African people to be governed by a distinct version of ‘custom’ and the authoritarian rule of traditional leaders. Moreover, there was strict control by the government. The betterment process, which meant forced removal of rural black farmers to demarked residential areas with separate blocks of arable land and fenced grazing land, put further strain on communal land tenure. Labour tenancy was another form of land tenure common in apartheid time, which meant the access to and the permit to use land of white farmers in return for labour on their farms (Delius et al. 1997 cited in Cousins, 2007, Cousins, 2007 and Budlender et al., 2011).
As already mentioned above, there were severe limitations on land tenure, which were especially laid down in the Native Administration Act and the Land Tenure Act 1936. Examples of these regulations were the principle of ‘one man - one plot’ and a rigid system of male primogeniture regarding inheritance and, as a result, non-recognition of women’s land rights. Nevertheless, the ethics of indigenous customary law were upheld to various degrees in the different areas and regions of South Africa (Cousins, 2007). The current systems of land tenure are a consequence of historical events and are politically highly debated. From a legal perspective, the fundament of land tenure systems is the South African Constitution, 1996. Communal land tenure still plays an important role. About one third of the South African population is practising this form of land tenure (Adams, Cousins and Manona, 2000 cited in Pienaar, 2006). The South African Constitution aims at securing land tenure (Du Plessis, 2011). Section 25 of the Constitution deals with the right to property. Subsection (6) addresses the need to secure land tenure:
“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”
