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)