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Land issues in constitutions: Learning from experiences in South Africa and

Brazil to advance women’s right to land.

Presented at the African Women’s Land Rights Conference, 30th May 20111

Marc Wegerif

This is an initial exploration of some ideas from various constitutions, and experiences

of their implementation, that I hope will be relevant to our thinking on the possible new

constitutions in a number of African countries such as Tanzania and South Sudan that

are undergoing constitution writing processes.

I do not claim to be a legal or other expert, but do write the experience of being deeply

involved with the land reform process in South Africa, struggling with landless

communities to try and make it work as well as carrying out research an advocacy work

on land and agrarian reform. I have far less experience of Brazil, but have had the

privilege to visit the MST (Landless Rural Workers Movement of Brazil

www.mstbrazil.org) several times, going to some of their settlements and occupations

as well as to their national congress and other meetings. Given the excitement around

the new Kenyan Constitution it was appropriate to look at the land and other relevant

clauses to see how they compare with those in the constitutions of Brazil and South

Africa. It is from these experiences and with assistance from Teresa Yates, who is a

lawyer, that I share these thoughts.

The making of a new constitution is a rare and precious moment around which we can

mobilize a nation to discuss the fundamental rights that should be protected. It is a

moment of dialogue and shaping of a nation that should not be missed, especially if we

are interested in furthering such fundamental issues as land rights and women’s rights.

The constitution must create the space to challenge the power structures that keep

people in poverty, that develop class differences, that maintain gender discrimination,

that allow the massive accumulation by some, while others toil in poverty.

1

This was developed from a paper presented at Haki Ardhi, National Land Forum, Dar es Salaam,Tanzania, February 2011.

Land issues in constitutions. Marc Wegerif 1



The constitution needs to be a foundation and guide for us to move together towards

the kind of African nations we want. It needs to embody the best of our history and our

aspirations combined with the best of principles embodied at a pan African level by our

finest African leaders and the principles of human rights contained in conventions and

protocols of the African Union and the United Nations. We can also take from the best

of what other countries around the world have in their Constitutions. In particular there

are a newer wave of constitutions such as that of Brazil that was adopted in 1988 and

that of South Africa adopted in 1996 (It built on the interim constitution of 1994). These

are in historical constitutional terms new compared to say the constitution of the USA

that was adopted in 1787. The constantly evolving Indian Constitution is also a good

source of ideas and inspiration.

One of the trends we can see in the more recent conventions of international bodies

and more recent national constitutions is the increasing assertion of socio-economic

rights. It has been realized that fundamental rights such as the right to life, to freedom,

to free association, while essential are hard to fully enjoy, in all senses of the word, for

a person living in abject poverty. Freedom of association may mean little if you go to

bed hungry and without a bed or a roof over your head or chance of a better situation

tomorrow. Too many millions live in inter-generational poverty, where poor nutrition,

limited work and livelihood opportunities, little or no quality education and poor health

care condemn them to lives of what Brian Molefe2 once referred to as “a protracted

encounter with hopelessness”.

Our mission must be to end this situation, to create opportunities for all to become more

human to be “fighting not merely for freedom from hunger, but for …’freedom to create

and to construct, to wonder and to venture’” (Freire, 1996 - quoting Eric Fromm). It is

this essential process of people both reflecting and acting on the environment and the

society that Freire convincingly argues is at the heart of any truly liberating process of

people ending oppression and becoming more human (Freire 1996).

Among the oppressed are women who constitute a particular oppressed group due to

the gender discrimination they experience in almost all spheres of life. In particular the

discriminatory practices related to land and inheritance still prevalent in most African2 Brian Molefe is a friend, activist, and business leader from South Africa




countries that result in women being deprived of comparable rights to those of their

fellow citizens; men. In this we see the creation of what looks remarkably like a class

differentiation. Men as a class have greater rights and access to property enabling

them to benefit from the exploitation of the labour of women who work on that land with

limited rights to the products of their labour. I contend that if we effectively deal with

women’s rights we will be transforming power relations that keep people in poverty. If

women are effectively involved in their own liberation the oppressed of Africa will be. If

women are not leading their own process of liberation, if gender based power relations

are not transformed, we will not have a liberating process, truly challenge inequitable

power relations, or see the end of the material poverty of so many in Africa.

Constitutions such as the USA constitution are generally said to create negative duties

on the state; that is the state has an obligation to NOT interfere with the citizens’

exercise of their rights. These rights are largely political rights – free speech, voting,

private property, association, movement.

Later constitutions, such as the Indian, Brazilian, Canadian, and South African (SA)

create socio-economic rights, what are often referred as ‘second generation’ rights -

education, health care, work, housing, food... - These rights exist alongside ‘first

generation’ rights and create duties on the state to act affirmatively to ensure realization

of the rights. The state has a responsibility beyond just not interfering with citizens’

rights. The state has to act affirmatively to ensure that all citizens are able to enjoy to

the extent possible these rights. This sometimes means, like in the SA constitution an

obligation placed on states to create programmes to promote the exercise of rights.

“As a modern document designed for the 21st century, the purpose of the South African

Constitution was the ‘creation of a non-racial and non-sexist egalitarian society

underpinned by human dignity, the rule of law, a democratic ethos and human rights.

From there emerges a conception of equality that goes beyond mere formal equality

and mere non-discrimination.’ [T]he South African Constitution ‘embodies social rights,

affirmative state duties, horizontality, participatory governance, multiculturalism, and

historical self consciousness.’ The notion of positive state duties implies that the

government must do more to remedy injustice than wait until a plaintiff sues upon facing




discrimination. The state must be proactive instead of reactive, realizing that inequality

is structural as well as individual in nature.” (Wing, 2008)

In South Africa, the justices are particularly attuned to the plight of people who have

faced multiple forms of discrimination, such as black women. Justice O’Regan noted

that they face “particularly acute” disadvantage. Justice Goldstone warned of the

complex relationship between identities and urged “neatly self-contained categories

should be resisted.” In National Coalition for Gay and Lesbian Equality v. Minister of

Justice, Justice Sachs noted that grounds may intersect, and thus discriminatory impact

could not be evaluated on one ground only. For example, African widows have

suffered as “blacks, as Africans, as women, as African women, as widows and usually,

as older people, intensified by the fact that they are frequently amongst the lowest paid

workers.” (Wing, 2008)

The content of any constitution and the process of its creation and its implementation

must be a basis for the oppressed and impoverished of the country, especially women,

to engage in their own liberation and overcome the material deprivations that afflict so

many. How can this be done and what can we learn from other constitutional

experiences?

Let us be clear that the courts, even ones as far sighted as the Constitutional Court in

South Africa, will not drive a liberation or transformation process. They can only

regulate it and rule on positions already established in law by political processes. Thus

we need to ensure that the positions in any constitution are progressive ones that set

out a far sighted vision for the country that we want to see. We have to mobilize for this

vision and it’s capturing in the constitution and to ensure that it is supported and

defended in the future.

The South African Constitution was drawn up through a very interesting process closely

linked with the negotiation of the end of Apartheid and the ushering in of a new,

liberated and democratic South Africa. It was a creative and widely consultative

process that involved many people’s whose voices had never been heard on such

national decision making before. It was also a highly contested process with differentgroups competing and trying to ensure that their interests were protected including the




white minority in South Africa that had so recently been ruling the country and still

maintains control over the largest part of the economy. This served to limit the potential

of the Constitution to set out far reaching changes. This is a limitation that does not

exist in countries like Tanzania and South Sudan today. There is the opportunity to

really come together around a new vision for countries like these. What is a challenge

are the increasing socio-economic divisions within countries like Tanzania. Interests

will be contested around the economic privileges of some versus the development

needs of others.

What the different competing interests did achieve in South Africa was a fine balancing

and protection of rights. Ironically the white minority groups having used state power to

oppress and deny the human rights of the majority for so long pushed hard for

constitutional provisions that would protect them from the abuse of power by a state

that in future would be controlled by the majority. There were also many from the

liberation movements who as a matter of principle and in line with the objectives of the

liberation struggle wanted and pushed for strong human rights provisions. This has

helped to leave the country with a legacy of strong human rights protections in the

Constitution. Many NGOs and human rights lawyers were deeply involved in the

consultations and the drafting processes. This was especially the case in the

discussions about land issues. There was mobilization of people provincially and

nationally with conferences and active lobbying. A process as least as rich and

engaging needs to be established in any country now drafting a new constitution to

ensure not just good content, but also a commitment of citizens to the constitution that

is finally agreed.

Any new constitution needs to create obligations on the state to ensure land rights and

land access for all. In particular for oppressed and marginalized groups within society.

We can and should all contribute, the private sector can play a role, perhaps NGOs and

even international organisations can play a role, but it is the state that is the ‘duty

bearer’ responsible for ensuring the well-being of the society and the advancement of

the rights of all in the society. We need to create obligations on the state to advance the

rights of women. More must be done than just defending existing rights as this will

mean defense of an existing unjust situation characterized by poverty and inequality.




The South African Constitution does well in section 25 to create obligations on the state

to address key land questions. Section 25 has sub clauses mandating important land

reforms:

(5) The state must take reasonable legislative and other measures, within its

available resources, to foster conditions which enable citizens to gain access to

land on an equitable basis.

(6) A person or community whose tenure 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.

(7) A person or community dispossessed of property after 19June 1913 as a result

of past racially discriminatory laws or practices is entitled, to the extent

provided by an act of Parliament, either to restitution of that property or

equitable redress

It is just as important that these specific rights to land are backed up by clarity on the

responsibility and obligations on the state. Again the South African Constitution does

this well. Section 7(2) states

The state must respect, protect, promote and fulfil the rights in the Bill of Rights

The current Tanzanian Constitution does not place an affirmative duty on the state to

promote and fulfil the rights contained under the “basic rights and duties” (part III) – this

is equivalent to the Bill of Rights under the SA Constitution. The Tanzanian state while

recognising certain rights of its citizens also maintains the power to curtail those rights

or to determine the extent of the rights.

While the current Tanzanian Constitution sets out a laudable set of objectives in part 2,

it removes any possibility of the state or anyone else being held accountable for the

achievement of these with the statement in section 7(2)

The provisions of this part of this chapter are not enforceable by any court. Nocourt shall be competent to determine the question whether or not any action or




omission by any person or any court, or any law or judgment complies with the

provisions of this part of this chapter

We must also then look at the limitations placed on the rights and obligations in the

Constitution. Almost all rights do have some limitations and for good reasons as we try

to balance competing rights and interests. It is essential however that the limitations on

rights are not so sweeping that they can be used to render meaningless the rights

espoused in the constitution. There needs to be some guidelines and parameters

within which any limitations must fit. This is essential for purposes of litigation where

one might contest the limitations placed on rights. The South African Constitution has a

good example in section 36 deals which while it does limit rights it sets some good

guiding principles to inform this.

“The rights in the Bill of Rights may be limited only in terms of law of general

application to the extent that the limitation is reasonable and justifiable in an

open and democratic society based on human dignity, equality and freedom,

taking into account all relevant factors, including

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose”

One can see how this would give lawyers some basis for arguing against limitations

that are too sweeping or go too far in undermining human rights and the democratic

functioning of the society. Section 24 of the new Kenyan Constitution clearly copied

much from the South African, but significantly removed the requirement that these

rights can only be limited by a law of “general application”, thus the Kenyan

Constitution, unlike the South African one, allows limitations of rights by a law that may

not have general application to all citizens or groups of citizens (Constitution of Kenya,

2010).




The limitations in the current Tanzanian constitution by contrast are scattered

throughout the constitution and are so sweeping as to enable limitations for almost any

reason. For example section 17 on freedom of movement allows for limiting “a person

from exercising his freedom of movement so as to…protect public interest in general or

preserve certain special interest or interests of a certain section of the public.” There

are no guidelines to this limitation that uses such broad language and undefined terms

like “public interest”. This makes it possible to limit such an essential right as freedom of

movement for almost any imaginable reason.

There are other clauses that can add a lot of value in encouraging the state to respect

rights and act to fulfill obligations. Section 34 of the South African Constitution on Just

Administrative Action is very useful in holding the state to account when it violates

rights or fails to act effectively in advancing rights. Access to information is also

important and the South African Constitution covers this in section 32.

(1) Everyone has the right of access to –

a. any information held by the state; and

b. any information that is held by another person and that is required for the

exercise or protection of any rights

This has led to the creation of the Promotion of Access to Information Act, Act 2 of

2000. This is the only such law in the world that gives rights to access to information

held by private as well as public bodies. This law has been used successfully to give

the public access to information such as on the multi-billion dollar arms deal that has

had such an impact in South African politics. This is a critical provision given the

increasing powers and influence of private sector companies in areas such as mineral

exploitation and land grabbing.

The land rights and other rights in the Constitution are also all informed by far reaching

equality rights. The Equality Clause - Section 9 of the South African Constitution states:

1. Everyone is equal before the law and has the right to equal protection and

benefit of the law.




2. Equality includes the full and equal enjoyment of all rights and freedoms. To

promote the achievement of equality, legislative and other measures designed to

protect or advance persons, or categories of persons, disadvantaged by unfair

discrimination may be taken.

3. The state may not unfairly discriminate directly or indirectly against anyone on

one or more grounds, including race, gender, sex, pregnancy, marital status,

ethnic or social origin, colour, sexual orientation, age, disability, religion,

conscience, belief, culture, language and birth.

4. No person may unfairly discriminate directly or indirectly against anyone on

one or more grounds in terms of subsection (3). National legislation must be

enacted to prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair

unless it is established that the discrimination is fair.

The right to equality is deemed to be non-derogable under the South African

constitution with regard to “race, colour, ethnic or social origin, sex, religion or

language.” Worryingly the new Kenyan Constitution does not make right to equal

treatment for women and men non-derogable (The Constitution of Kenya, 2010). This

combined with the possibility of limitation of rights by a law (not necessarily of “general

application”) conceivably allows for laws that may specifically discriminate against

women.

So with all these good, and I really think they are good, provisions in the Constitution of

South Africa what have been the results for land rights and in particular land rights for

women?

At liberation South Africa had extremely unequal access to land and rights to land. In

1993 there were only 57,980 commercial farming units in South Africa (Stats SA, 2005).

Around 58,000 white farmers owned over 80% of the agricultural land in the country.

While over 15 million black South African’s lived in overcrowded ‘homelands’ where

they had limited rights to the land and an estimated 3 million black south African’s lived

with even less rights on white-owned farms. It was in this context that the government

committed to the redistribution of 30% of agricultural land to black owners within fiveyears and set up a land reform programme, backed by various laws that corresponded




to the key clauses of the Constitution. This land reform programme had three parts to

it: Tenure reform; Restitution of land rights; and Redistribution (DLA 1997).

In short it is fair to say that this land reform programme has fallen far short of the

promises and expectations. Ten years after the beginning of the land reform

programme the amount of land redistributed, including through restitution of land rights

claims, amounted to only about 4% of agricultural land. This figure is also contested.

More detailed studies have found that even land listed as redistributed may well not

have been. For example in a study of all redistribution projects carried out in Limpopo

Province as part of the government’s Land Redistribution for Agricultural Development

Programme it was found that in fact over 95% of the land “redistributed” had already

been occupied by the “beneficiaries” prior to the project and 82% of the land involved

was state land that the apartheid government had bought more than 20 years before for

the very purpose of settling black farmers. Only two of the projects actually involved

transfer of land previously owned by white farmers. One of these had not at the time of

the study yet been implemented (it was a project on paper, not on the ground), and the

other involved one man who had considerable resources at his disposal. In all likelihood

he would have proceeded to purchase the land even without the $15,000 or so

assistance that he got from the government (Wegerif, 2004).

The study also found that women and poorer men who were beneficiaries were

organized in groups and got the smallest grants, paid higher prices for land, and ended

up with on average 8.24 hectares each. This was in stark contrast to individual

beneficiaries who were invariably quite wealthy (had well paid jobs, owned houses and

cars and such assets) received larger government grants (on average more than three

and half times larger), benefited from lower land prices, and ended up with an average

of 679 hectares of land each. There were slightly more male beneficiaries than women

and on average men received 91.5 hectares of land compared to 20.4 hectares per

women. The figure for women is skewed by one woman who on her own gained

ownership of 1,628 hectares, leaving her out the rest of the women got an average of

only 7.33 hectares each. Even in the implementation of the programme life was made

easier for the richer and for men. Department of Land Affairs (DLA) officials traveled to

where they stayed, brought them the forms and generally assisted to move the processforward more quickly. Many of the poorer groups on the other hand had to find




resources to travel by public transport to the offices of DLA in the main town of the

Province, Polokwane, and had to make repeated journeys before there was any

progress.

In tenure reform far from securing the rights to land for the most vulnerable the new

government presided over the continued eviction of black South African’s from the land

they lived on, many for generations (Wegerif et al, 2005). A study of evictions over a 21

year period from 1984 to 2004 found that close to 1.7 million people were evicted from

farms. The number of evictions did not slow down with the coming of political liberation

and the new constitution of South Africa and related legislation. It continued unabated

with a total of 940,000 people (almost all black) evicted from 1994 (Year of the first

democratic elections in South Africa) to 2004. More black South African households

were evicted from farms in this period than the total number that gained land from the

government’s land reform programme, that is even if we believe the figures of from the

government and do not investigate more closely (as the study referred to above did)

whether new land was actually gained.

The study of evictions further found that of the adult evictees 55% were women against

45% men. Almost half were children at the time of the eviction, highlighting both the

vulnerability and human tragedy as well as the fact that these were families being

evicted. Almost all the evictees were from low socio-economic conditions with low

incomes, few if any assets and low education levels. The socio-economic conditions

for the evictees almost always deteriorated even further after the eviction.

So not only were more households evicted than gained land from the land reform

programme, but the indications from some studies are that there is a class as well as

gender difference between those who benefit from government and those who loose

out. The poorest and women loose more and it is often the wealthier and better

connected men who benefit more. Despite what is in the Constitution the state has

through its inactions and its actions been systematically favoring the more privileged

and allowing the further deterioration of the socio-economic conditions of the oppressed

and marginalized in the society. This has included the continued marginalization of

women.




Despite the very positive structuring of the South African Constitution in terms of land

issues there has been little progress and a furthering, rather than addressing of both

gender and class differentiation. At the same time there has been a continued

concentration of land ownership into fewer and fewer still mostly white hands with a

small number of the black elite joining the land owning classes. By 2002 the number of

commercial farming units dropped from 57,980 to 45,818 (Stats SA, 2005).

So what has gone wrong?

There is clearly in South Africa a lack of political will to drive far reaching change in land

rights that would broaden opportunities especially for women and the poorest. From a

constitutional perspective I believe we can also see weaknesses. The one fundamental

weakness being to rely on the state, even with constitutional obligations placed on it, to

ensure a change in power relations and patterns of ownership. If we look again at the

land clauses in the constitution the strongest right is the protection of existing property.

Section 25

(1) No one may be deprived of property except in terms of a law of general

application, and no law may permit arbitrary deprivation of property.

In this the right is there unless limited in terms of “a law of general application” which

again cannot allow “arbitrary deprivation”. In the context of South Africa this was a

strong protection to existing land owners, mostly white. It has in practice protected

registered property rights and not been effective in protecting customary and other

informal rights to land that have not been deemed to amount to “property”.

On the other hand if we look at the sections mandating land redistribution we see a

different approach.

(5) The state must take reasonable legislative and other measures, within its available

resources, to foster conditions which enable citizens to gain access to land on an

equitable basis.




Here it is up to the state to take “reasonable measures” of course “within available

resources”

(6) A person or community whose tenure 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.

Here a person is only entitled to tenure security “to the extent provided by an Act of

Parliament”. It is not an absolute right, it is up to the State to define the extent of the

right and the extent of resources it might put behind the fulfillment of that right.

(7) A person or community dispossessed of property after 19 June 1913 as a result of

past racially discriminatory laws or practices is entitled, to the extent provided by

an act of Parliament, either to restitution of that property or equitable redress

Again even when it comes to redress for direct taking of land for racist reasons the right

to redress is only to be to “the extent provided by an act of Parliament”.

When it comes to recognition of the rights of landless people, poorer people, and

people without land titles it is left to Parliament and the state to define the extent of the

rights and the redress. There is no specific requirement written into the land laws to

address the land rights of women.

The new Kenyan Constitution has a range of interesting sections on land and

environment in Chapter Five, however, it is only a much shorter section 40 headed

“Protection of right to property” that is actually part of Chapter Two that deals with

“Rights and fundamental freedoms” (The Constitution of Kenya, 2010). It remains to be

seen how this will impact on efforts to advance land rights for women, the landless,

pastoralists and other small scale food producers in Kenya.

In practice it has proved very difficult to push the South African government to fulfill its

obligations effectively. It is easy for the state to continually under perform even in the

face of court rulings. They can argue that they are trying, that they are working on it,complain of lack of resources, and raise questions about the powers of the courts to




interfere in the executive sphere of government. Meanwhile the outcomes continue to

further marginalize the already disadvantaged. The rich are also far better equipped to

utilize the courts in their own interests. Despite court rulings residents threatened with

eviction and other denial of rights on other people’s land continue to struggle to get

legal assistance to defend their homes and often their source of livelihoods. The

Constitutional Court and laws such as the Access to Information Act are more often

used by the rich to defend or assert their rights than by the poor.

I suggest the solution to this, at least in as far as the constitution is concerned, is to as

far as possible create ‘real rights’. Rights that enable and encourage people to act

directly in the defense and assertion of their rights. Let it always be the State or

another who has to put in place legislation or take other initiatives to limit the rights of

the citizens rather than the citizen who has to wait for the state or others to define the

space they have to act.

A tenure security clause like section 25(6) should read more like “Women, men, or

communities whose tenure is legally insecure as a result of past racially discriminatory

laws or practices are recognized as owners of the land they live on and use in

perpetuity and with full rights of succession to her or his inheritors (female and male).

Such rights can only be limited by a law of general application, and no law may permit

arbitrary deprivation of these rights to property.”

In a country like Tanzanian it will be critical to have such a clause asserting the rights of

women and men to the existing land that they use whether through customary or other

informal and more formal usufruct arrangements.

“Women, men, or communities who occupy and or use land in terms of customary or

other established practices are recognized as owners of such land in perpetuity and

with full rights of succession to her or his inheritors (female and male). Such rights can

only be limited by a law of general application, and no law may permit arbitrary

deprivation of these rights to property”.




In post conflict situation like South Sudan it will be more complicated as the constitution

will have to take into account people returning to land having been driven from the land

by conflict in some cases for decades.

We need to create specific real land rights for women. How about:

“The recognition of women’s rights to land and other property are equal to that of men

in all circumstances, unless specifically limited and then only within the parameters that

respect the equality of all and other fundamental human rights”

Given the importance of participation in decision making where land is held communally

or by groups the equal right to participation in decision making, to be reflected in

outcomes as well as opportunities, is also an essential clause.

The clearer rights to land need to be backed by the constitutional protection of other

key rights such as freedom of movement, freedom of association, freedom of

information, freedom of speech. These must create the space for action by citizens to

assert their rights.

Ideally rights to land should be enforceable by citizens through direct action. If we can

create a right to land that the citizens can enforce we open up space for action to gain

rights to land compared to the more common situation, prevalent under even

progressive constitutions like that of South Africa where citizens have to try and push

the state to fulfill its duties; something that is proving very difficult in many African

countries. In the regard the Brazilian Constitution has some good ideas that can be

learnt from.

In Article 186 of Chapter 3 the Brazilian Constitution creates a concept of a ‘social

function’ for rural land that to be met requires land to be adequately used in a way that

preserves the environment, respects labour laws, and benefits the owner and laborers

(Federative Republic of Brazil, Constitution, 1988). Other articles of the same chapter

(see Annex 1 for more details) give the government powers to expropriate land not

performing its ‘social function’ and further gives ownership of land to a landless person

(a person not owning any other rural or urban property) who occupies and makesproductive use of rural land, up to a maximum size of 50 hectares, for a period of five




years. These articles have been important to the land occupation strategies of

movements such as the MST (Landless Rural Workers Movement) that have settled

hundreds of thousands of families on close to five million hectares of previously unused

rural land in Brazil (Branford and Rocha, 2002). Such provisions in the South African

Constitution, or that of any other country, could give a right to poor and landless people

and those who were dispossessed in the past to occupy and use unused or underused

land, thereby affirming that the land is a national resource that is there for those who

can work it (Federative Republic of Brazil, Constitution, 1988. Wegerif, 2010).

These clauses of the constitution create a space for direct action by people to assert

their right to land and to directly challenge the holding of land without it fulfilling its

‘social function’. Clause 191 provides enormous scope for people to gain rights to land

and encourages land use. It reads

The individual who, not being the owner of rural or urban property,

holds as his own, for five uninterrupted years, without opposition, an area of

land in the rural zone, not exceeding fifty hectares, making it productive with

his labour or that of his family, and having his dwelling thereon, shall acquire

ownership of the land.

What is needed, especially given nationalized land holding in countries like Tanzania is

to remove the exclusion of state land that is exempted in the Brazilian Constitution with

the clause that reads “The public real estate shall not be acquired by prescription.”

The Brazilian Constitution has further interesting clauses such as for the protection of

people from the loss of small rural property due to indebtedness. Clause XXVI reads:

The small rural property, as defined by law, provided that it is exploited by the

family, shall not be subject to attachment for the payment of debts incurred by

reason of its productive activities, and the law shall establish the means to

finance its development;

An interesting thing about some of the clauses in the Brazilian Constitution, such as theone above is that they set out to provide additional opportunities and protections for




certain categories of people. They specifically favor for example the landless person

and the small scale land owner. An existing land owner cannot “acquire ownership of

the land” through occupying and using it. A large property is not protected from being

attached for payment of debts, only the “small rural property” has this protection. The

Constitution takes a bold step, it goes beyond creating a right to equality and creates

certain stronger rights and protections for particular groups. This is an essential idea

that has obvious applications for the advancement of women’s rights in the context of

prevailing patriarchy that turn supposedly equal procedures into opportunities for men,

especially rich men, to further their hold on property and privilege.

The importance of clauses like the ‘social function’ of land clause in the Brazilian

Constitution and the Right to Restitution of Land Rights clause in the South African

Constitution is not just the legal space created, but also the message it sends to

people about their rights. These can be a powerful mobilizing opportunities. I

argue in the paper “The right to land restitution as inspiration for mobilisation” that

people having this sense of a right, even when not easily defended legally does

and can mobilise people for direct action (Wegerif, 2010). The people involved in

the land occupation at Mahlahluvani that I write about were not elites, but the

ordinary masses of people excluded from opportunity and hope in the society. This

ability to mobilise the oppressed to take action to create new lives for themselves

and shape the broader society is one of the most impressive things in my

experience of MST. Such direct actions by the oppressed can change the objective

conditions of land access and use and very importantly involve people in action to

bring change and create solutions, fulfilling Freire’s ideal of people becoming more

human (Freire 1996). . This action if combined with reflection and deepening of

awareness can be a truly liberating process of people becoming more human or in

popular terminology of today ‘active citizens’. Having acted to change one set of

circumstances people are both more able and more likely to act on others, to be

able to continue to defend and assert their rights. This is a very different process

from that involved in receiving from a state.

Most important is the message, the message that women and men have rights to land

and the right to act to defend and assert their rights to land, especially when they areusing that land for the improvement of their lives and those of their families and their




communities. This will as well as creating the legal rights give impetus to the

generation of the political will so important to improving the land rights of the oppressed

and marginalized. A common response I have heard, even from supposedly radical

proponents of agrarian reform, to this argument is one rooted in the fear of chaos if

people should act without the regulation and guiding hand of the state. First there are

very few recent examples of states driving pro-poor far reaching agrarian reforms and

even less that have done so in a way that really prioritizes women. Secondly those

living in poverty time and again show how responsible they are. The careful financial

management including the high repayment rates of borrowers in credit schemes like the

Grameen Bank demonstrate how those in poverty are often far more responsible than

the better-off (Collins et al, 2009). The people of Mahlahluvani who are seen as illegal

land invaders do not operate in chaos in fact they are organized, show high levels of

cooperation and find ways of dealing with potential conflicts that the government

institutions are failing to resolve (Wegerif, 2010). The last argument on this I will point

to is the fact the these clauses in the Brazilian Constitution and the large scale land

occupations organized by MST and others have not stopped Brazil from rising over the

last decades to becoming a major economic power, nor has it stopped Brazil almost

halving the number of people who go hungry in the 15 years from 1992 to 2007 (Oxfam,

2011).

Conclusion

We can learn and use a lot from the examples of the South African and Brazilian

Constitutions, but should realize they both have limitations. The new Kenyan

Constitution is a regressive step in terms of women’s and land rights in comparison to

the South African Constitution so should be treated with caution if being looked at as an

example.

The constitution making process is one of the most important opportunities to mobilize

people around socio-economic rights like the right to land and the right to gender

equity.

Notions of creating equality, especially procedural equality, are not good enough.

These continue to be used by the powerful to further their positions of privilege. Themuch lauded South African Constitution has done little to ensure the transformation of




land rights and ownership that remain extremely unequal in terms of race and sex. A

Constitution can and should favor the more marginalized in order to overcome

discrimination, such as gender discrimination that is still so prevalent. It is only with

clauses that specifically favor currently marginalized groups that we will achieve

equitable and developmental outcomes.

A good constitution can greatly enhance the advancement of land rights for women if it

creates clear obligations on the state including affirmative duties supported by other

enabling clauses such as just administrative action, equality, and right to information.

More importantly though a constitution could advance the rights of women to land if it:

o Creates real rights - as opposed to procedural rights or rights still to be defined by

parliament or the executive - to land for women that women can assert through their

own direct actions.

o Creates provisions that go beyond providing procedural equality to specifically favor

women, landless people and small scale food producers in the acquisition of and

protection of rights to land. There has to be a constitutional mandate for equitable

outcomes, not just supposed equality in processes.

o Sends a clear message to women and landless people that they have a right to land

and they have a right to assert and demand this.




References

Collins Daryl, Morduch Jonathon, Rutherford Stuart, and Ruthven Orlanda, 2009.

“Portfolios of the Poor: How the World’s Poor Live on $2 a Day”, Princetown UniversityPress, New Jersey.

Constitution of the United States of America, Library of Congress, Washington.

DLA (Department of Land Affairs of South Africa), 1997. White Paper on South AfricanLand Policy. Pretoria.

Federative Republic of Brazil, Constitution, 1988. Constitutional text of October 5, 1988,with the alterations introduced by the Constitutional Amendments No. 1/92 through

18/98 and by the Revision Constitutional Amendments No. 1/94 through 6/94.Translated and revised by: Istvan Vajda, Patrícia de Queiroz Carvalho Zimbres, VaniraTavares de Souza.

Freire Paulo, 1996, “Pedagogy of the Oppressed”, Penguin

Oxfam, 2011. Growing a Better Future: Food justice in a resource constrained world.

Stats SA (Statistics South Africa), 2005 Census of Commercial Agriculture. Pretoria

The Constitution of Kenya, 2010. Kenya Gazette Supplement No. 55. GovernmentPrinter, Nairobi.

The Constitution of the Republic of South Africa, Act 108 of 1996. Government Printer,

Pretoria.

The Constitution of the United Republic of Tanzania of 1977, (1998). Government

Printer, Dar es Salaam.

Wegerif Marc, 2004, “A critical appraisal of South Africa’s market-based land reform

policy: the case of the Land Redistribution for Agricultural Development (LRAD)

programme in Limpopo”. Research Report 19. PLAAS, School of Government,

University of Western Cape.

Wegerif Marc, Bev Russell and Irma Grundling. “Still Searching for Security: The reality

of farm dwellers evictions in South Africa”, 2005. Nkuzi Development Association and

Social Surveys, Polokwane.




Wegerif, 2010, “The Right to Land Restitution as Inspiration for Mobilization”, in Walker

et al, 2010,”Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims

in South Africa”. Ohio University Press, Athens, Ohio.

Wegerif, 2011, “Experiencing Landless Rural Workers Movement”

http://udadisi.blogspot.com/2011/02/experiencing-landless-rural-workers.html

Wing Adrien Katherine, 2008, “The South African Constitution as a Role Model for the

United States” Harvard Blackletter Law Journal, Vol. 24, 2008.

http://www.southafrica.info/services/rights/information-030305.htm

www.mstbrazil.org




http://www.mstbrazil.org/



http://www.mstbrazil.org/



Annex 1

Key Provisions of the Brazilian Constitution

XXII - the right of property is guaranteed;

XXIII - property shall observe its social function;

XXIV - the law shall establish the procedure for expropriation for public

necessity or use, or for social interest, with fair and previous pecuniary

compensation, except for the cases provided in this Constitution;

XXVI - the small rural property, as defined by law, provided that it is

exploited by the family, shall not be subject to attachment for the payment of

debts incurred by reason of its productive activities, and the law shall establish

the means to finance its development;

XXX - the right to inheritance is guaranteed;

AGRICULTURAL AND LAND POLICY AND AGRARIAN REFORM

Article 184. It is within the power of the Union to expropriate on account of

social interest, for purposes of agrarian reform, the rural property which is not

performing its social function, against prior and fair compensation in agrarian

debt bonds with a clause providing for maintenance of the real value, redeemable

within a period of up to twenty years computed as from the second year of

issue, and the use of which shall be defined in the law.

Paragraph 1 - Useful and necessary improvements shall be compensated in

cash.

Paragraph 2 - The decree declaring the property as being of social interest

for agrarian reform purposes empowers the Union to start expropriation action.

Paragraph 3 - It is incumbent upon a supplementary law to establish special

summary adversary proceeding for expropriation action.

Paragraph 4 - The budget shall determine each year the total volume of

agrarian debt bonds, as well as the total amount of funds to meet the agrarian

reform programme in the fiscal year.

Paragraph 5 - The transactions of transfer of property expropriated for agrarian reform purposes are exempt from federal, state and municipal taxes.




Article 185. Expropriation of the following for agrarian reform purposes is

not permitted:

I - small and medium-size rural property, as defined by law, provided

its owner does not own other property;

II - productive property.

Sole paragraph - The law shall guarantee special treatment for the productive

property and shall establish rules for the fulfillment of the requirements

regarding its social function.

Article 186. The social function is met when the rural property complies

simultaneously with, according to the criteria and standards prescribed by law,

the following requirements:

I - rational and adequate use;

II - adequate use of available natural resources and preservation of the

environment;

III - compliance with the provisions that regulate labour relations;

IV - exploitation that favours the well-being of the owners and labourers.

Article 187. The agricultural policy shall be planned and carried out as

established by law, with the effective participation of the production sector,

comprising producers and rural workers, as well as the marketing, storage and

transportation sectors, with especial consideration for:

I - the credit and fiscal mechanisms;

II - prices compatible with production costs and the guarantee of

marketing;

III - research and technology incentives;

IV - technical assistance and rural extension;

V - agricultural insurance;

VI - cooperative activity;

VII - rural electricity and irrigation systems;

VIII - housing for the rural workers.

Paragraph 1 - Agricultural planning includes agro industrial, stock raising,

fishing and forestry activities.Paragraph 2 - Agricultural policy and agrarian reform actions shall be




made compatible.

Article 188. The destination given to public and unoccupied lands shall be

made compatible with the agricultural policy and the national agrarian reform

plan.

Paragraph 1 - The alienation or concession in any way of public lands with

an area of more than two thousand and five hundred hectares to an individual

or legal entity, even if through an intermediary, shall depend on the prior

approval of the National Congress.

Paragraph 2 - Alienations or concessions of public lands for agrarian reform

purposes are excluded from the provisions of the preceding paragraph.

Article 189. The beneficiaries of distribution of rural land through agrarian

reform shall receive title-deeds or concession of use which may not be transacted

for a period of ten years.

Sole paragraph - The title-deed and the concession of use shall be granted

to the man or the woman, or to both, irrespective of their marital status,

according to the terms and conditions set forth by law.

Article 190. The law shall regulate and limit the acquisition or lease of rural

property by a foreign individual or legal entity, and shall establish the cases

that shall depend on authorization by the National Congress.

Article 191. The individual who, not being the owner of rural or urban property,

holds as his own, for five uninterrupted years, without opposition, an area of

land in the rural zone, not exceeding fifty hectares, making it productive with

his labour or that of his family, and having his dwelling thereon, shall acquire

ownership of the land.

Sole paragraph - The public real estate shall not be acquired by prescription.

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