Tajikistan – Women’s Right to Land and the Family

Tajikistan –
Women’s Right to Land and the Family

Women’s right to land
and other property in Tajikistan is closely related to women’s status in the
family. In other words, a woman’s access to land is often tied to her role as a
daughter, sister, wife, or mother. Girls in Tajikistan often work on their
parents’ (father’s) land. When they marry, women usually are not given
land shares: generally, a woman loses the use of her parents’ land upon marriage
and moves to her husband’s house or village. Women almost never inherit land
from their fathers. Widows, on
the other hand, are entitled to a share of their husbands’ land and property
upon death under the civil code. Civil law provides that property is to be
divided among the surviving spouse, children, and parents of the
deceased.

The
reality, women told UNIFEM’s researchers, is quite different. Widows rarely
inherit their husband’s land. Instead, adult
sons, if there are any, receive the land (though occasionally daughters inherit
if there
are no sons), and when there are no children from the marriage, the land is
passed to the deceased’s brother(s). UNIFEM also found that village elders and
the local mullah generally make decisions about the division of household
property. Women rarely ask for land shares when these decisions are being made,
as they report feeling that such demands would reflect poorly on their
honor.
In addition, women are generally not aware of their rights under civil law,
making it difficult for even women who do not fear dishonor to claim their
share.

The number of
female-headed households is increasing in Tajikistan. The UNIFEM Needs
Assessment found that “in rural
Tajikistan, particularly in areas devastated by the conflict, the number of
female-headed households
have increased, in some regions up to 40% of the total households, and they are
among the poorest households in those areas.” [NA, 4] Further, “[f]emale-headed
households, including those headed by widows, are often very poor, with a lower
standard of living than other households and
inferior access to land.” [NA 22] In the UNIFEM study, 33% of households
reported absent husbands. The
reasons given for husbands’ absence were migration for work and widowhood
following the civil conflict of 1992-1997. UNIFEM found that:

The land tenure
situation of women-headed households is particularly precarious. Where they can
no longer rely on relatives, such women frequently become highly dependent on
land as their sole means of subsistence. They need land, which constitutes a
critical element in a diversified livelihood system including housing, farming
and non-farm activities. Land can have social benefits as well. For example,
land-owning widows are frequently better looked after by kin, than landless
ones. [NA 24]

UNIFEM reports that
divorce is rare in Tajikistan. According to the needs assessment, women usually
do not have the right to initiate divorce, though men do enjoy such a right.
Under shari’a law principles as understood and sometimes practiced in
Tajikistan², women with children have a right to some part of the
husband’s land and property, so long as they do not remarry. If a woman has been
married under civil law, she has the right to a share of the value of the
marital house, the household food plot, and the arable land. In practice, few
women know their civil or religious rights, and so do not assert
them. As a result, women rarely obtain the full complement of resources they
could
access under the law.

Although the
application of shari’a was feared to be detrimental to women’s rights in some
respects, in other instances observers felt the application of shari’a law would
improve women’s lot, including upon the death of a
husband. Some mullahs explained to UNIFEM that women always have the right to an
allowance upon the death of a husband, and that girls should inherit one share
to their brothers’ two shares. Both of these stipulations – while clearly
falling below human rights standards would be an improvement for many women in
Tajikistan. In many villages, according to UNIFEM’s research, neither shari’a
nor civil law is applied when dividing land and property, usually to the
detriment of widows
and surviving daughters.

Responding with
Human Rights Treaties

The Women’s
Convention, the International Covenant on Economic, Social and Cultural Rights,
and the
International Covenant on Civil and Political Rights, provide a strong framework
for protecting women’s right to land
within the family. CEDAW includes a clear provision requiring States parties to
ensure women have equal rights with respect to ownership and management of
property within marriage. The Committee has made clear that the Convention
requires equal rights upon the dissolution of a marriage and in terms of
inheritance. States parties also are clearly obligated to take measures to
modify the social and cultural patterns of conduct of men and women when they
are discriminatory; this provision applies to family and property matters. The
ICESCR requires States parties to recognize
the right of all – men and women – to an adequate standard of living; the CESCR
has
interpreted this provision to mean that States must ensure women in particular
are guaranteed full access to
economic resources, including ownership of land and full inheritance rights. The
ICCPR protects women’s rights to equality in marriage and at its dissolution,
and to be recognized as a person before the law. Both of these rights have been
interpreted by the Human Rights Committee to mean that women
must be able to own and administer property on a basis of equality with men
regardless of their marital status, and to enter into and enforce contracts on
their own.

Taken together, these
protections may require the government of Tajikistan to take a wide variety of
steps to ensure women’s rights to land and property are fully protected in the
family context. Among these steps include the following examples. To the extent
that civil law includes provisions protecting these rights, the State should
adopt measures to ensure it is being assiduously enforced. Provisions that are
discriminatory – either in content or in outcome – should be revised or
repealed. Special attention should be given to identifying laws and practices
that base a woman’s property rights on her marital status. Women should be
educated about their rights under the law, and given assistance in pursuing
these rights. Officials charged with implementing property, land, and family law
should be trained on women’s rights and how to protect them. Issues concerning
the application of shari’a law or principles and women’s rights under that
system should be addressed in this context as well. Finally, public education
campaigns aimed at changing discriminatory attitudes and customs may be
required.

What the
Conventions Say

Convention on the
Elimination of All Forms of Discrimination Against Women

•     Article 5 requires
States parties to take all appropriate measures to modify the social and
cultural patterns
of conduct of men and women, with a view to
achieving the elimination of prejudices and
customary and all other practices which are based on the inferiority or the
superiority of either
of the sexes or on stereotyped roles for men and women.

•      Article 16 of the
Women’s Convention provides that States parties must take all appropriate
measures to eliminate discrimination against women in all matters relating to
marriage and family life. In particular, States must ensure, on a basis of
equality of men and women, the same rights for
both spouses in respect of the ownership, acquisition, management,
administration,
enjoyment and disposition of property, whether free of
charge or for a valuable
consideration.

•       In its
General Recommendation on equality in marriage and family relations, the CEDAW
Committee called on
countries that are undergoing a programme of agrarian reform or redistribution of
land to ensure the right of women, regardless of marital status, to share
such
redistributed land on equal terms with men.

•     In the same General
Recommendation, the Committee noted that when a woman cannot
enter into a
contract at all, or have access to financial credit, or can do so only with
her husband’s or a
male relative’s concurrence or guarantee, she is denied legal
autonomy.
Any
such restriction prevents her from holding property as the sole owner and
precludes her from the legal management of her own business or from entering
into any other form of contract. Such restrictions seriously limit the woman’s
ability to provide for herself and her
dependants.

•     The Committee also
emphasized that the right to own, manage, enjoy and dispose of property
is
central to a woman’s right to enjoy financial independence, and in many
countries will be critical to her
ability to earn a livelihood and to provide adequate housing and nutrition for
herself and for her family.

•       The
Committee makes clear that any law or custom that grants men a right to a
greater share of property
at the end of a marriage or de facto relationship, or on the death
of a relative, is
discriminatory and will have a
serious impact on a woman’s practical ability to divorce her husband, to support
herself or her family and to live in dignity as an independent person.

•      Concerning
inheritance, the Committee is very clear. There are many countries where the law
and practice concerning inheritance and property result in serious
discrimination against women. As a result of this uneven treatment, women may
receive a smaller share of the husband’s or father’s property at his death than
would widowers and sons. In some instances, women are granted limited and
controlled rights and receive income only from the deceased’s property.
Often inheritance
rights for widows do not reflect the principles of equal ownership of property
acquired during marriage. Such provisions contravene the Convention
and should be
abolished.

International
Covenant on Economic, Social and Cultural Rights

•      
Article 11 requires
States parties to recognize the right of all persons to an adequate standard
of
living for themselves and their families, including adequate food, clothing
and housing, and to the continuous
improvement of living conditions.

•       In its
General Comment on the right to adequate food, the Committee has called on
States parties to ensure women have guarantees of full and equal access to
economic resources, including the
right to inheritance and the ownership of land and other property,
credit, natural resources and
appropriate technology.

•       In its
General Comment on forced evictions, the Committee expressed concern about the
impact on women
of statutory and other forms of discrimination which often apply
in relation to
property rights (including home
ownership) or rights of access to property or accommodation.12

International
Covenant on Civil and Political Rights

•      
Article 16
guarantees everyone the right to recognition everywhere as a person before
the law.

•     Article 23(4) requires
States Parties to take appropriate steps to ensure equality of rights and
responsibilities
of spouses during marriage and at its dissolution.

•       In its
General Comment on the equality of men and women, the Human Rights Committee
stressed that the right of everyone under article 16 to be recognized everywhere
as a person before the law is
particularly pertinent for women, and implies that the capacity of women
to own property,
to enter into a contract or to exercise other civil rights may not be
restricted on the
basis of marital status or any other
discriminatory ground.

•     In the same General
Comment, the Committee stressed that to fulfil their obligations under article
23(4), States parties must ensure that the matrimonial regime contains equal
rights and obligations
for both spouses with regard to the ownership or administration of
property,
whether common
property or property in the sole ownership of either spouse. The Committee directed
States parties to review their legislation to ensure that married women have
equal rights in regard to the ownership and administration of such property,
where necessary.

•       Again in
the same General Comment, the Committee emphasized that States parties must
guarantee equality in
regard to the dissolution of marriage, which includes ensuring that the
grounds for
decisions with regard to property distribution upon divorce are the same
for men and for
women.

Relevant
Concluding Comments

•       The CEDAW
Committee has
recommended that States “ensure that women have equal enjoyment of land
rights independent of their marital status.” (China 1999)

•       The CEDAW
Committee has
expressed concern about the “existence of laws that are not in accordance with
the provisions of the Convention. It notes that discrimination against women
exists in laws regarding . . . [e]conomic rights, including ownership and
inheritance of land. . .” (Indonesia
1998)

•       The CEDAW
Committee has stated
that “the law on inheritance also needed urgent review to ensure that a woman’s
right to inherit was equal to that of a man.” (Madagascar 1994)

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