The ideology of patriarchy, which conditions land and soil rights in Africa has is
its roots in the historical Greek philosophy. Historicizing patriarchy, Napikoski &
Lewis aver:
[A ]patriarchy, from the ancient Greek patriarches, was a society where power was held by
and passed down through the elder males. When modern historians and sociologists describe
a ‘patriarchal society’, they mean that men hold the positions of power and have more
privilege: head of the family unit, leaders of social groups, boss in the workplace, and heads
of government.
10
Much as the ideology of patriarchy is the foundation for most land tenure systems
in Africa, African land tenure systems are varied, and may not necessarily have the
same impact on women and men and citizens and non-citizen’s land and soil
rights.
11 The varied nature of land tenure systems in Africa, therefore, makes it
unrealistic to talk of an African land tenure system that regulates access to soil
rights.
12 Moreover, the typology of African soils, which also determines how soils
are utilized, varies from region to region and country to country on the African
continent. Land use patterns are equally diverse on the continent. Much as it may not
be possible to generalize land tenure systems in Africa, and hence come up with a
harmonized position about continental land and soil rights, land tenure systems on
the continent can conveniently be categorized as private, communal, open access
and State owned tenures.
13 Under the communal setting, access to soil rights, are
constructed by, and specifically intended to serve the rights of the patriarch—male
heads within the stratified socio-legal communal set up at the expense of women.
The situation may not be so different under the private, open access and state owned
land tenure systems. Each of these systems is either supported by custom or laws
constructed and enacted within a male oriented patriarchal society. On its part,
custom is society specific and excludes non-societal members, in the same way as
citizenship excludes non-citizens from automatically accessing land and soil rights
in a particular country.
The foregoing analysis makes it possible to understand that the norms embedded
in custom and the law, which define how individual women and men, citizens and
non-citizens acquire land and soil rights suffer from the inherent constraints in the
ideology of patriarchy, upon which they are constructed and interpreted.
14 The
patriarchal society is stratified and does not benefit every member of the sociolegal class equally, women and men.
15
10 Napikoski and Lewis (2018).
11 For example, Chad, Lesotho and the United Republic of Tanzania, which have unrestricted jus
soli, cannot be said to have the same problems associated with soil access rights like the majority of
other African states which rely on the principle of jus sanguinius.
12 FAO (2010).
13 Wily (2011).
14 Muinde (2013).
15 Saunders (1990).
136
G. Busingye
its roots in the historical Greek philosophy. Historicizing patriarchy, Napikoski &
Lewis aver:
[A ]patriarchy, from the ancient Greek patriarches, was a society where power was held by
and passed down through the elder males. When modern historians and sociologists describe
a ‘patriarchal society’, they mean that men hold the positions of power and have more
privilege: head of the family unit, leaders of social groups, boss in the workplace, and heads
of government.
10
Much as the ideology of patriarchy is the foundation for most land tenure systems
in Africa, African land tenure systems are varied, and may not necessarily have the
same impact on women and men and citizens and non-citizen’s land and soil
rights.
11 The varied nature of land tenure systems in Africa, therefore, makes it
unrealistic to talk of an African land tenure system that regulates access to soil
rights.
12 Moreover, the typology of African soils, which also determines how soils
are utilized, varies from region to region and country to country on the African
continent. Land use patterns are equally diverse on the continent. Much as it may not
be possible to generalize land tenure systems in Africa, and hence come up with a
harmonized position about continental land and soil rights, land tenure systems on
the continent can conveniently be categorized as private, communal, open access
and State owned tenures.
13 Under the communal setting, access to soil rights, are
constructed by, and specifically intended to serve the rights of the patriarch—male
heads within the stratified socio-legal communal set up at the expense of women.
The situation may not be so different under the private, open access and state owned
land tenure systems. Each of these systems is either supported by custom or laws
constructed and enacted within a male oriented patriarchal society. On its part,
custom is society specific and excludes non-societal members, in the same way as
citizenship excludes non-citizens from automatically accessing land and soil rights
in a particular country.
The foregoing analysis makes it possible to understand that the norms embedded
in custom and the law, which define how individual women and men, citizens and
non-citizens acquire land and soil rights suffer from the inherent constraints in the
ideology of patriarchy, upon which they are constructed and interpreted.
14 The
patriarchal society is stratified and does not benefit every member of the sociolegal class equally, women and men.
15
10 Napikoski and Lewis (2018).
11 For example, Chad, Lesotho and the United Republic of Tanzania, which have unrestricted jus
soli, cannot be said to have the same problems associated with soil access rights like the majority of
other African states which rely on the principle of jus sanguinius.
12 FAO (2010).
13 Wily (2011).
14 Muinde (2013).
15 Saunders (1990).
136
G. Busingye