The introduction of a new production regime has converted rural Madinka society into a contested social terrain; the primary struggle is a contest over gender and the conjugal contract in which property, or more accurately constellations of property rights, is at stake. By seeing economic life as, among other things, a realm of representations ... the struggles over meaning and the manufacture of symbolic and material dissent in central Gambia — a proliferation of intra-household conflicts, juridical battles over divorce in the local courts, renegotiations of the conjugal contract — are the idioms of ... production politics. (Carney and Watts 1990, p. 207)

Property, it has long been observed, is not a relation between people and things. It is a relation between people, concerning things. And if property is always a social relation, one can state as a corollary that property is always structured — always, everywhere, property is structured. (Ferguson 1994, p. 142)

To better understand the complex and dynamic relationship between land and people in terms of everyday lived experience, it is necessary to avoid perpetuating the problems inherent in simplistic neo-Malthusian explanations of soil degradation and conflicts over land as direct outcomes of population pressure and land scarcity (Williams 1995; Tiffen et al. 1994; Moore 1993). Instead, it is important to broaden the scope to include farmers' diverse struggles over land; how these struggles are contextualized within broader social, political-economic, and historical processes; and what these mean indigenously to local women and men (Moore 1993, p. 383).

The first step could be to consider land as a material resource. Land is a critical resource for sustaining livelihoods. As such, it is the focus of intense struggles between and among women and men. However, struggles over land are experienced differently by women and men, depending upon the complex interactions of gender, class, age, marital status, and life-cycle positioning. Women and men negotiate, access, and maintain control over land as a productive and material resource differently and inequitably within local relations of power.

Intense struggles over land highlight the importance of women's ability as farmers to secure long-term rights to and control over the land. This, in addition to insufficient land and other competing priorities, determines the extent to which women as farmers are willing to invest in labour-intensive strategies to sustain the soils. Put another way, farmers' ability to sustain the soils and their farms is compromised by lack of access to economic or other resources that affect their security in tenure (Mackenzie 1995; Leach 1991a). The co-existence of customary and statutory laws — a situation of legal plurality — provides an overlapping set of legal institutions, each characterized by its own sets of rules, principles, and accepted procedures. This plurality of legal structures results in a complex web of options, opportunities, and political spaces for women and men to maneuver, negotiate rights to land, and contest threats to security in tenure, but within real limits set by patriarchal ideology. Land is also an important symbolic resource. A focus on women's and men's struggles over land must also consider the symbolic and discursive contestations that constitute those struggles (Moore 1993; Schroeder 1996):

Attention to the complexities of resource politics in particular localities ... requires close examination of the myriad struggles over the cultural categories through which access to critical environmental resources are contested. An analysis of peasant politics needs to take peasant culture seriously, not simply as a quaint epiphenomenon of structural features of society, but as integral to resource conflicts themselves. (Moore 1993, p. 382)

Relations regarding land are complex issues that are influenced by the circumstances of individual farmers, including their positioning, identity, and reputation. These must be included in research and analysis. While the following two chapters illustrate that many patriarchal norms and idioms regarding gender relations have undergone transformation, this chapter demonstrates that the ones that continue to remain entrenched and pervasive centre on men's control over property and land, and, ultimately, power.

This chapter begins by situating contemporary struggles over land through a review of the historical and political processes that have shaped property rights and relations. It briefly reviews the history of politics over land from the pre-colonial to the early post-independence period in Maragoli. Drawing on women's and men's personal narratives and photographs, the rest of the chapter explores contemporary relationships between cultural idioms, norms, and meanings regarding land, and the way these are negotiated and contested at the household level through discursive politics and legal processes. First, gendered aspects of land inheritance and usufruct rights to land are examined. In particular, the links between soil fertility and the long-term access to and control over special micro-niches within the farm, such as banana plots and vegetable gardens, are explored. Following this, two situations in which women's and men's security in tenure is threatened are overviewed: when a woman becomes a widow, and when a son is born out of wedlock. Last, this chapter argues that women's ownership of land is fiercely contested in Maragoli. There are two situations that illustrate this fact: when a woman inherits land as an unmarried daughter, and when a woman attempt to purchase land under her own title deed.

Historical struggles over land

Pre-colonial Maragoli

Communal lands consisted of forests, grazing land, salt-licks, watering places, pathways, and reserves for building materials. Collective rights to these lands were important in people's livelihoods, as they held a diversity of material and productive resources that were critical to people's survival (Crowley and Carter 2000). Communal lands were used for grazing livestock and were important sites for cultural ceremonies and rites of passage, such as male circumcision. Access to natural resources from these lands was mediated by customary law and controlled by clan elders who allocated land, adjudicated conflicts over it, and regulated its use (Carter et al. 1998, p. 7).

On an individual basis, land was passed trans-generationally through patrilineal segmentary lineages of descent, succession, and inheritance in the late 19th century (Crowley and Carter 2000). A Logoli farmer in her 70s explains the pre-colonial situation in her own words:

No one owned their own plot. Land was free for everyone. Land allocation started recently. ... Most of it used to lie fallow. Wherever you marked your land was enough for you. (L041) ³⁷

The colonial period

Fundamental changes to communal lands, the customary laws that regulated them, and the role that clan elders played in administering them took place during this time. After 1926, the political and social functions of the clans as the primary official administrative, political, and judicial authority were superseded by the establishment of headman and Native Tribunals, and were thereafter gradually abolished (Wagner 1970, p.74, cited in Carter et al. 1998, p. 9). This led not only to the decline of the clan's sole authority in socioeconomic and agricultural activities but also to the decline of their custodianship of the land (Wagner 1970, p.74, cited in Carter et al. 1998, p. 9). Restrictions on Kenyan settlement imposed by the colonial administration, in combination with continual division of the land through inheritance, created new land constraints in Maragoli. This contributed to the diminishment of available communal lands, which acted as a reserve of undistributed lands set aside for the needs of future generations (Wagner 1970, p.74, cited in Carter et al. 1998, p. 9). These changes further diminished collective rights and entrenched individual rights. Male out-migration played a significant role in exacerbating the process of socioeconomic differentiation, which in turn became rooted in the ability of individuals to accumulate wealth in terms of money and land. A local class of wealthier peasants emerged, with substantial off-farm income and the ability to purchase land.

The Swynnerton Plan (1954) had far-reaching effects on land tenure by advocating for the abandonment of traditional land practices as defined by customary laws and encouraging Kenyan farmers to consolidate holdings under individual title deed (Okoth-Ogendo 1991, pp. 69-74; Davison 1988, p. 164). Based on 'trickle-down' policy, it was formulated on the assumption that "energetic or rich Africans will be able to acquire more land and bad or poor farmers less, creating a landed and a landless class" (Swynnerton 1954, p. 10, cited in Wangari et al. 1996, p. 133). In Maragoli, the Plan caused a large number of households to resettle in areas such as Kabras (Carter et al. 1998, p. 15; Crowley and Carter 2000). The drive towards private ownership entrenched land tenure policies that legitimized differential access to land and exacerbated social differentiation by class and gender (Abwunza 1997; Wangari et al. 1996; Davison 1988). It did not, however, lead to the abandonment of customary law. What emerged instead was the co-existence of legal structures and the entrenchment of patriarchal ideology.

While customary laws were based on a complex set of overlapping, reciprocal and elastic rights to land, in which position in kinship relations, gender, age, and life-cycle position were defining principles, colonial land policies were formulated on a Eurocentric ideology of outright or allodial male ownership, privatization, and exclusive rights (Abwunza 1997, p. 30; Wangari et al. 1996, pp. 130–131; Davison 1988, p. 163). The new form of land tenure recognized the 'head' of the household as male and, therefore, as the sole owner and bearer of the title deed and the means of production (Abwunza 1997, p. 30). This bias failed to recognize the complex, gendered, and reciprocal rights to land, responsibilities, and obligations under customary law, thereby exaggerating male authority and power, as well as privileging allocative rights over use rights. Women's rights to land became invisible within this Western-based legal order. Customary land tenure was transformed and men's power within the household was further entrenched.

The early post-Independence period

Hence, historical changes over time led to a complex situation in terms of land tenure in Maragoli. As the bulk of this chapter will later show, however, there is an intensity inherent in contemporary struggles over land that suggests that land has a significance and meaning not entirely captured by examining legal processes and struggles over land at the household level. Therefore, in order to deepen understandings of contemporary struggles over land — and of their significance for soil management and farming — it is useful to explore the multiple meanings of land in the context of contemporary Maragoli before focusing on people's everyday struggles over this important resource.

"Without land you are nobody": contemporary meanings of land

First and foremost, land is understood as "home." As one male farmer explains, "land is for habitation ... for a house and to keep some cows" (L042). Land meets day-to-day needs by providing a place for shelter, livestock, and agricultural production. But as Abwunza explains, the Avalogoli are "known for their attachment to 'home,' where birth gives them membership in a social group and their resting place in death" (1997, p. 14). Hence, land not only has an important significance in life, but also a strong meaning in death. These two meanings, as well as the significance of land as men's "property," are the context for the gendered dynamics relating to land and explain the intensity around gendered struggles over land.

Land as "home"

As I can see, I am staying here. I have a banana [plot] here, am planting vegetables, am getting some little maize; I have a cow and get some milk. ... I don't pay rent. ... [People who out-migrate] know one day they'll retire. After retiring from their jobs they will go back to their shamba. That is why in Kenya, we have houses and homes. You know in Nairobi you have a house, and in Maragoli you have home. (L001)

Another important meaning of "home" is based on the belief that long-term personal security is derived from owning or having access to land. As different political and economic policies have come and gone over time, one thing that has always remained steadfast in Maragoli is the knowledge and security that one can turn to the land as "home." This remains true as long as one remains within the constructs and norms of the changing yet pervasive patriarchal ideology. As I will demonstrate later in this chapter, deviating from these norms entails strong social stigmas and a strong sense of insecurity and alienation, both in the personal sense as well in terms of rights to land. A farmer, a 48-year-old woman, explains the importance of gaining access to a "home":

Each and every person needs a place to take care of herself ... to belong somewhere. And if you don't get [a home], you usually feel lonely and you will ask yourself what happened and won't stay happy in your life. (L026)

The significance of land in relation to death

Without land, you are nobody. And if you die, you need some piece of land to be buried on your own plot. (L042)

Photo 1: A 64-year-old farmer describes her photograph: "I was there, near the grave of my husband. This picture is for the future generation to see where their grandfather is buried" [in the front yard of her compound]. (L023)

Logoli women and men are buried in front of their houses. While married men are buried on their ancestoral shambas, married women are buried on their husband's shambas. Unmarried women are an 'exception' or an 'anomaly' within patriarchal norms. In the words of a Logoli farmer, "traditionally you will always be referred to as a girl until you get married." An unmarried woman is buried as a "girl" on her parents' land, and certain ceremonies that normally would have been performed had she been married are not performed at her funeral. The same applies to unmarried men, although social stigmas in life and death are not as fierce.

Having a "proper" funeral is centrally important in people's lives and has both immediate and long-term implications for soil management and agriculture. A funeral consists of a burial and a commemoration ceremony that takes place some time after a person's death, when enough money has been raised for it. Without a proper funeral, it is believed, the deceased do not rest peacefully and create difficulties for the living (Abwunza 1997, p. 115). Funerals are normally attended by everyone in the extended family and the village.

In the immediate term, having a proper Avalogoli funeral means that all agricultural and soil management work must be halted. Farmers believe that continuing to "dig,"³⁹will result in a curse on the living, and that the land worked on will not produce (Abwunza 1997, p. 53). Indeed, during the course of this research, agricultural, soil management, and research activities frequently came to a halt for these reasons.

In the long term, a commemoration ceremony is significant because it is here that a person's life history is told. How one is to be remembered in death is a crucial and powerful factor in people's lives. Women spoke about how they anticipated they would be remembered at their funerals and in death. Most women who "persevered" through the hardships of their lives explained that they looked forward to being remembered as "good" Logoli women — as examples for others. However, women who "deviated" from social norms such as marriage felt apprehensive that they would be remembered merely as "girls" in death. For instance, the feelings that were projected during interviews with adult unmarried women were those of immense fear and anxiety, as well as heavy all-encompassing sadness and regret.
 

Photo 2: "This picture was taken when mzee [my father-in-law] died ... These people had a table and were collecting money that would enable people to pay contributions [towards funeral expenses]." (L029)

Land as men's "property"

By exploring the multiple meanings of land — as a "home"; in relation to death; and as men's "property" — it is possible to gain new understandings of land as more than just a material resource. By investigating the symbolic meanings of land, it is possible to better understand the intense and complex struggles that take place over it. Land is not only crucial to people's very livelihoods; it is inextricably tied to their sense of status and Logoli identity.

The contemporary micropolitics of land

Before investigating the dynamics and struggles over land tenure, it is useful to contextualize two factors that affect access to and control over land: land size and the co-existence of two legal spheres.

Access, control, and struggles over land take place in a situation in which landholdings are both intensively farmed and often insufficient for livelihood requirements. As discussed earlier, Maragoli is predominantly made up of smallholdings varying between "a point" (less than one hectare) and three hectares. Increasing land pressure — caused by land alienation, social differentiation, continual subdivision of land through patrilineal descent, and, to some extent, population growth (which must be contextualized within the broader politics of land distribution and division at the national level, and further offset by the impact of permanent out-migration and the effects of AIDS-related deaths on the local population) — has meant that, in some extreme cases, shambas have been reduced to a small garden plot. This situation is best described in the words and photographs of the two Logoli farmers below.

A 66-year-old farmer who recently divided his less than two-acre shamba among seven sons, describes the situation on his land:

It is bad ... because of the congestion. I mean the cow is here with me. I can't take it anywhere else because the space does not allow me to move it anywhere else ... because of the small sizes of the plots. For example, I am here alone and I've given birth to seven boys, meaning seven houses are to be constructed on the same plot. ... The plot has been subdivided into small pieces and the owners want to till them. So grass can't be grown in the home, and this is how scarcity comes by. (L019)

Photo 3: This photograph was taken by the same farmer. He describes it in his own words: "This photograph shows how tiny the compound I live on is. I live with my cow, and my sons' houses are on the same compound too." (L019)

Photo 4: This photograph, taken by another farmer who is 27 years old, also illustrates the situation on some compounds. She explains: "I took this picture of these two houses squeezed together — meaning that the plot is so small that the houses have to be joined so that everyone gets a place to construct. It affects farming. The houses have been built where we were supposed to farm, so we end up with very tiny plots because the houses have covered most of the plot." (L019)

These photographs and accounts illustrate that when already small landholdings are subdivided for the purposes of passing land trans-generationally, there is sometimes limited space remaining for extensive farming or soil management. In these situations, long-standing practices such as fallowing, growing thatch grass, and grazing cows may no longer be an option. Despite diminished plot sizes, however, and the fact that fewer shambas produce enough food or income for sustaining livelihoods, land continues to be of central importance in people's lives (for the reasons described in the previous section) and is often the crux of legal struggles and heated gender politics.

There has been an intensification of struggles over land and a correlating escalation of gender politics. However, this intensification must be contextualized within the broader historical and political-economic processes discussed in Chapter Three, including the inequitable distribution of land among various ethnoregional groups in Kenya, as well as the colonial imposition of land policies and acts, which entrenched men's authority and power in term of rights to and control over land and property relations.

Furthermore, struggles over land play out within and across two overlapping legal spheres: statutory laws and customary laws. Statutory laws have not preempted, replaced, or overridden customary laws; instead, there is a certain degree of fluidity in the use of land rights mediated by the two legal spheres. As Mackenzie notes in relation to Central Province, Kenya:

Customary law and statutory law are not two isolated and essential legal orders. Rather, they provide spaces within which people, differentiated ... by class and gender, contest rights to land. (1995a, p. 18)

Each legal sphere has different mechanisms for dispute resolution, sets of rules, decision-making bodies, hierarchical structures, and degrees of accessibility. People use one or the other to access and retain control over rights to land, depending on the costs and benefits associated with either system. Recognizing the existence of these two legal spheres is important in order to better understand the local dynamics of land tenure, as well as struggles over land resulting from threats to security of tenure and women's ownership.

The following discussion illustrates that, in Maragoli, land tenure in the 1990s is distinguished between rights of ownership and rights of use and access. In particular, the issue of access to and control over special micro-niches on the shamba is a distinct case that directly affects soil management and farming, and therefore warrants individual attention.

Land inheritance

Struggles over land have become intense, especially among economically poorer households. These struggles occur in a context where there is a great deal of spatial variability within landholdings in terms of crops grown and soil fertility. For instance, certain parts of the shamba may have better soil fertility or be planted with more economically valuable crops such as tea or French beans. Hence, the formal allocation of these lucrative parts of the shamba becomes a strategic decision. Farmers sometimes opt to hold off allocating these sections in order to continue generating income as long as they can. This decision varies among farmers and depends on plot size, cash crops grown, number of sons, number of migrant sons, and the intensity of struggles over land among sons for these sections of the shamba. While farmers may not immediately allocate all land to their sons upon marriage, many nonetheless do so while they are still alive to avoid conflicts that may arise after their death. An 80-year-old widow explains:

My son and the village elder [divided the land] ... I just decided it as early as this when I'm still alive to avoid [my sons from] attacking each other. ... There are many quarrels. And people would say it is their parents' mistakes. "Why didn't they divide the land when he was still alive?" Because usually [when] the land is already divided and boundary markers are in place, nobody will ever think of going beyond the boundaries. (L001)

If you have children, it is a must you divide the piece of land and give one portion to one and another portion to the other. ... Nowadays, it is the children who bring about all this noise. He says I want to dig here, and he says I want to dig here, this is how the noise is coming along. Then the difference comes. And long ago there wasn't difference. Children never refused. Those ones used to understand their father ... (L039)

Farmers' accounts indicate that struggles over land have intensified over time. However, these struggles must be placed within historical, political-economic, and environmental contexts rather than assuming a simplistic causal link between population growth, land pressure, and increased conflicts over land. In Maragoli, state policies, over time, have meant a drive towards a cash-based economy, which in turn has exacerbated struggles over the most economically lucrative sections of the shamba. The size and section of the shamba a person inherits has implications for that person's ability to continue to generate income, and to play a role in determining the intensity of struggles over land in terms of inheritance, as well as access and use rights. Moreover, as discussed earlier, state politics since independence have directly defined the way land has been inequitably distributed among different ethnoregional groups in Kenya. In other words, the high "congestion" in Maragoli is also a result of the way land has been distributed among different ethnoregional groups over time. It is, therefore, also a factor worth considering when investigating the intensification of struggles over land. But it must not be considered in isolation from the rising number of deaths from AIDS and other diseases, as well as the trend towards permanent out-migration, which also counteracts the trend in increased population.

Usufruct rights to land

When you first move to a new home, when you become a wife, you first stay until you give birth to three or sometimes even four children. Then they realize you need a place to till your own food for your own children. If your father in-law is there, he will allocate the plot. If he is dead, then your mother-in-law gets some men to allocate for you. If the mother-in-law cannot allocate the land, you have to go and get a brother [cousin] to your husband. That is how it is done in Maragoli. (L041)

In the case of polygamous marriages, in which each wife must be allocated her own house and shamba, the arrangement is slightly altered. The following account of a 44-year-old woman whose husband married a second wife after four years of marriage illustrates this situation:

When I came here we used to work hand in hand with my mother-in-law. ... I started working on my plot when my mother-in-law said she was growing weak and she didn't have the strength to work on the shamba anymore. So she asked us to work on. ... Then the day came when my co-wife was to join the family, and because both of us could not share everything with our mother-in-law when we belong to one man, our husband decided to buy another plot down here [pointing in a certain direction]. So I was supposed to start cooking in my house and the same [applies] to my co-wife. So she cooks her own meals and farms. ... And she's been shown where to farm. I am the one who has remained on this plot and I till on this one. This is my home and my co-wife is the one who is supposed to move where she tills. (L027)

While fathers-in-law and male elders are recognized as being in charge of allocating land, mothers-in-law may also play a role in the allocation of land insofar as they are able to negotiate the timing of allocation and control of productive land that generates income. Elizabeth, for example, awaits being allocated the most lucrative sections of the land to farm by her mother-in-law.⁴³
 

Elizabeth Elizabeth is a twenty-four year old newly wed woman who has been living in her marital home for two years. Her father-in-law is deceased and her husband is the only son in the family. He is living and working in Nairobi and she sees him rarely. He has not been allocated a plot and therefore cannot build a house (Elizabeth lives in the back room of the kitchen with her two children.) While her mother-in-law continues to control and farm the family tea plot, Elizabeth has been given use rights to a very small plot where she grows cabbage, sugar cane and bananas. The ultimate decision to allocate land to build a house and to control the tea plot lies in the hands of her mother-in-law, who finds the revenue from the tea plantation too lucrative to give it up. (L006)

In an increasingly stressful economic environment, mothers-in-law often find ways to delay the transfer of land to their daughters-in-law. They draw on elements of custom that call for the birth of three to four children, or call upon the patriarchal ideology itself to dictate that a daughter-in-law prove herself as a "good" Logoli wife through the provision of household and farm labour (a subject that will be developed in Chapter Five as Elizabeth's narrative is elaborated further). Older women draw on elements of custom to maintain control and power over a daughter-in-law's access and rights to use land in the short term. This situation emphasizes struggles over resources that take place between women in different positions in relation to power, authority, and life cycle. In the long term, the ability of older women and men to negotiate access to resources from their sons, daughters-in-law, and grandchildren depends on the types of personal relationships they have maintained with them. A focus on inter-generational relationships highlights the importance of age and changing life-cycle circumstances, and, hence, power relations, within the household in terms of land tenure. As discussed below, these relationships are especially pertinent in relation to land tenure pertaining to special micro-niches on the shamba.

The micropolitics of banana: long-term access and control over special micro-niches

Banana plots are both a physical and a symbolic representation of the establishment of a new household on the family compound. They also carry other multiple meanings and significance, as they provide food, storage areas for cattle fodder, a place for fermenting sorghum, and secluded sites for child bearing, love trysts, ritual cleansing, and oath-taking ceremonies (Crowley and Carter 2000). It has further been argued that the banana and vegetable garden plot constitutes a special micro-niche on the farm, which by virtue of its proximity to the household and location in the lowest lying section of the land, receives more nutrients from household and on-farm refuse, as well as inputs such as chicken droppings, manure from nearby livestock enclosures, and waste and rainwater from the house. For these reasons, it is also higher in soil fertility and organic matter than any other part of the shamba (Carter et al. 1998, p. 26; Crowley and Carter 2000).
 

Photo 5: "This where I used to work when I was still strong ... I've [now] run short of strength. ... But I still use [the bananas and other products from the plot] when they are ready." (L032)

However, evidence gathered in Maragoli suggests that the special attention the banana and vegetable garden plot receives in terms of soil fertility and labour inputs is due not only to its proximity to the household as a "convenient place to dump refuse" (Carter et al. 1998, p. 26; Crowley and Carter 2000). It is also an important long-term strategy that has to do with women's security of tenure. Older women often continue to work on and control banana and vegetable garden plots, even in situations in which the rest of the shamba has been allocated among their sons and daughters-in-law. Therefore, the fact that this micro-niche receives such special attention is not only a mere function of geography. It is also a conscious and strategic decision that is a function of the relationship between land tenure, gender, age, and life-cycle position. Put another way, given women's long-term tenure of banana and vegetable garden plots, and their access to and control over products such as bananas, intercropped vegetables, and green manure, these plots constitute a special micro-niche of high soil fertility because it is in their livelihood interests to ensure that these plots receive ample amounts of organic matter and nutrients in order to maintain their long-term sustainability and productivity. The importance of these special micro-niches also influences women's decisions in terms of their labour inputs and priorities.
 

Photo 6: "This picture is showing something good. It is showing my banana plantation, tomatoes, pepper, vegetables, and many other things. It helps me. ... I can just go and sell it in order to buy a tin of maize for food. ... Without the things in the picture, I would be helpless. This trench, I dug it — I don't want moles that are there to enter it so that it can be good. If you leave it just like that, it will all fall down. The trench also prevents the water to not go to the bananas, because if it enters it, it will all fall down." (L030)

Understanding the importance given to these micro-niches is critical to understanding the local dynamics and variability of soil management practices, and is a key factor when considering and planning future soil management and agricultural initiatives.

The strategic decisions that women make within their shambas illustrate that long-term security of land is central to their livelihoods. These strategic decisions affect the manner in which women allocate their time and energies on the farm, and, in particular, determine the extent to which they invest in sustainable soil management and farming practices. When farmers have security of tenure, they also feel secure that their land will be inherited by their sons, and further feel that this security reflects their reputation and efforts as a "good" Logoli woman. Given this importance, women will engage in fierce material and symbolic struggles to defend their land rights when they are threatened, using both customary and statutory law as strategic 'weapons' of defence in varying circumstances.
 

Photo 7: "Because of their goodness, bananas are just seen good. The soil is good because of the manure. I use cow manure. I usually put all the rubbish from my compound, especially when I sweep my compound yard. The bananas give me sugar, I can sell them and buy sugar and also I can boil it at noon for grandchildren to eat as lunch after school." (L001)

Contemporary struggles over land and meaning

Threats to security in tenure

In particular, there are two situations in which people's security in tenure and symbolic and material struggles over land have become especially acute in Maragoli. The first pertains to different circumstances under which widows' rights to tenure are threatened by their husbands' families through the custom of "widow-inheritance." The second pertains to sons who are "out-grown" (i.e. born out-of-wedlock), and whose rights to land inheritance are made vulnerable or denied by their fathers and stepmothers. These two situations also emphasize that access to resources is a negotiated process, even within a plural legal structure involving written legal codes.

The many experiences of "widow-inheritance"

In the past, through the custom of widow-inheritance, a brother-in-law inherited all the "property" of his deceased brother, including the widow herself, her children, land, and any livestock present or owed through bridewealth payments. This not only ensured that land, wealth, and "property" were kept within the family and the sub-clan's control, but also secured the widow's long-term security in tenure, her status within the clan, and her sons' eventual inheritance of the shamba she had farmed. For example, an 80-year-old widow who was inherited by her brother-in-law after her husband's death explains both the custom of widow-inheritance and her own experiences:

It was a good thing. ... It depended on how you agreed with someone. During then, when someone inherited you, you respected him as your husband. [But] it was difficult because of the sorrow, the head of the household had left me young. My brother-in-law inherited me and we stayed together nicely. He never mistreated me. ... I continued to grow crops there [on my land]. Then when my elder son grew up, he went to construct his house there [he inherited the land]. (L003)

Today, widow-inheritance has taken on a different form and meaning. In a highly changed environment — where access to land is increasingly limited, costs of bringing up children are high (involving escalating costs of school fees, uniforms, etc. and the provision of land to all sons, including those "inherited" through the custom of widow-inheritance), and where AIDS is a very real health threat (especially where the cause of a husband's death is "unknown")⁴⁴— men invoke selective aspects of the custom of "widow-inheritance" that focuses on inheriting land. This practice silences other aspects of the custom that involve "inheriting" the widow and her children, as these aspects would entail taking on additional financial burdens and obligations. When invoked in this manner, "widow-inheritance" involves men "chasing" their deceased brother's widow from her shamba, a situation that may be facilitated if her reputation as a "bad" Logoli wife can be demonstrated. Widows who were new in their marital circumstances, or who have young children, are particularly vulnerable to being "chased," whereas those with adult sons are in a stronger position to defend their rights to the land. However, older widows are at a greater risk of having their land forcefully divided and appropriated by their brothers-in-law.

The reinterpretation of the custom of widow-inheritance by men has become a very real threat to women's long-term rights to land. Women have responded to this threat by invoking statutory laws in some cases and customary laws in others, depending on their individual situations and circumstances. Understanding the dynamics of this situation, the circumstances under which women's rights to land are threatened, and the resources necessary to defend these rights, is critical for soil management. This is especially pertinent because long-term security of tenure is a major motivating factor for sustaining the soils. Furthermore, maintaining the continuity of extensive agricultural knowledge is critical in a context in which there is a high degree of spatial variability. The following three personal narratives of Desi, Rebeka, and Jane describe the varied yet creative ways that women engage in fierce and complex struggles over land in response to the threat of widow-inheritance, despite the limited resources available to them.
 

Desi Desi is a widow in her mid-50s. After her husband passed away in 1969, her brother-in-law attempted to "chase" her from her shamba: My brother-in-law and I, both of us scrambled for the land. Him, he wanted to chase me away so he could occupy my soil. Then I went to the local elders because the shamba had already been subdivided and everybody had his own piece. ... He wanted to grab mine. So I reported to the sub-chief and they summoned him and asked why he is disturbing [me]. They asked him, "This woman, did you try to inherit her and she refused?" He said, "No, I just want her to go. Mother is there, she will take care of the children." Then they asked him, "How long will your mother be alive to take care of the children? And will you give this woman the food she cooks for her children which you will take to your mother to cook for them? And expense matters in helping the children?" Then he was defeated. ... It hurts a lot when your husband dies, leaves you a plot for you and someone else tries to claim it. He had no right, he was just a nuisance. He was just out to disturb me. Desi explains that she appealed to customary law to adjudicate the dispute as a first line of defense because "you just know that home affairs have to go through elders first. If they are defeated, then you can proceed to court." Desi defended her rights to her land by invoking a particular element of "widow-inheritance" that her brother-in-law attempted to ignore, namely all the responsibilities for "providing" resources. Knowing that her brother-in-law was not prepared to "inherit" her, customary law became the best avenue for her to defend her rights. Of course, all of this depended on her reputation as a "good" Logoli woman at the time of her widowhood, indicating the importance of reputation as a critical aspect of land tenure. Interestingly, Desi's situation changed after she defended her rights to land and had four children out-of-wedlock with a man outside her sub-clan: He was just a friend. And I had my home. I couldn't move from here, the reason being that my son wouldn't have got his share of land. My brother [in-law] wanted me to go. So I had to stick here and wait for my share. ... When there is a case like that, they [the clan] have to complain, "Where does this man come from? Messing our homesteads." Women are never interested in such things. The clansmen are the ones who get involved. But women and children, no. They know someone can have a friend. Desi did not marry this "friend," because to do so would have entailed losing her status as a first wife, as well as foregoing all claims to her shamba for a smaller piece of land and making her sons' rights to inherit insecure. While women in her sub-clan were more understanding and supportive of her circumstances, she was harassed by clansmen who were concerned about defending clan land from the claim of "outsiders," and also controlling her behaviour within the norms of the Avalogoli patriarchy: Widows face very unsettled lives. ... You find that people fear interfering with your home affairs when a husband is around. If not, they keep on disturbing you. There is gossip and trespasses on my shamba. ... You may have neighbours, can you see this is the boundary fence? You have to keep disagreeing, like maybe "your cow has eaten my maize, or my beans." The owner may make a lot of noise or even report you to the elders. "Your child cut a maize from my shamba" and it becomes a case that has to be settled. Or you quarrel between yourselves. So like her, there must be some lack of respect because that's a compound headed by one person. ... Because they know you are a woman and being alone there is nothing you can do ... (L024)

Photo 8: The "culprits" who trespassed on her neighbour's land are tied to a tree.

Desi's account illustrates three important points regarding gender property relations and land tenure.⁴⁵First, customary law is used by women to retain control over land when their rights are threatened.⁴⁶Economically poorer widows are more likely to go to elders first to resolve disputes, using "widow-inheritance" itself as a weapon of defence, because cultural norms require that a brother-in-law who "inherits" his brother's wife must also "provide" for that wife and her children. This norm has become difficult to fulfill in today's stressful economic environment, and therefore women use it to defend their rights to land.

The second point illustrated by Desi's case is that clan and sub-clan solidarity, kin ideology, and territoriality are strong forces in the manipulation of custom to control women's behaviour and therefore maintain local gender power relations. Customs of marriage and inheritance are invoked by clansmen to keep widows from remarrying, for fear of losing clan land to "outsiders." As Jefremovas has illustrated in the case of Rwanda, acting as a "virtuous" widow is powerfully sanctioned by the clan (1991, p. 229b), in order to control women's behaviour. Women with reputations as "virtuous" widows face less harassment and are less likely to be "chased," whereas those who act "bold" are more likely to have their rights threatened and are socially penalized through harassment. Moreover, a focus on these dynamics highlights that everyday conflicts involving boundaries and "trespasses" are not caused simply by land pressure. Rather, they are also culturally specific and related to a person's identity and reputation.

The third point illustrated by this case is that Desi could not defend her rights to land using the Law of Succession Act, Chapter 160 (operationalized in 1981), as it was not in effect in 1969 when she was struggling to retain rights to her land. Although the Act is operational today, it is difficult to invoke. As the following narratives illustrate, not only are there monetary costs associated with engaging and accessing the codes and institutions of statutory law, these laws cannot be separated from the wider practices of patriarchal ideology and men's control over "property," making them difficult for women to use effectively or equitably.

The destruction of a house on one of Rebeka's plots acted as a strong physical deterrent against her nephew taking up residence on the shamba. It was also a powerful symbolic gesture that halted her nephew from taking up residence and laying claim to the land — an overt act of resistance that spoke volumes about her determination to retain her rights to her land.
 

Photo 9: Rebeka stands outside her house. She took the photograph "to see how I looked in my own compound." (L003)

Rebeka's narrative illustrates how women may engage in material as well as symbolic struggles to protect their land rights, drawing on both statutory law and custom. However, women's ability to engage in these choices requires access to resources and is influenced by their class, as gaining title deeds requires money and influence. Further, a radical and overt act of resistance, such as destroying a house, can only be carried out if a woman has an alternative residence, an option that is not viable or desirable for an economically poor woman. It also illustrates women's disadvantaged political position in the practice of statutory law, as men's claims as 'heads' of household take powerful precedence (now matter how problematic) in the operationalization of legal structures that regulate land tenure.
 

Rebeka Rebeka, aged 52, is an elite and economically wealthy woman whose husband died eight years ago, leaving her three separate plots of land. Even though she changed all the title deeds to her name, her brother-in-law "grabbed" and sold one of her plots without her consent or knowledge: My husband had three brothers ... we used to stay well with them. But after his death, the brother whom my husband follows started saying that there was a plot that he bought with my late husband. But me, I denied. I asked him to bring what shows they bought [land] together [the title deed]. But he didn't produce anything. ... I had changed the title deeds in my name. I thought they [in-laws] might steal or do something on them. He had started [to try] but when I told him "me, I didn't see you buying this plot," he just kept quiet and that is when he went and sold that one in Kitale. ... And me without knowing he ... had gone and started selling. I just heard [from] someone telling me. From there is when I really knew the plot had already been sold. Rebeka believed that statutory law would defend her rights to land. Her brother-in-law, however, was able to subvert statutory law in his favour by gaining access to information about her title deed, thereby gaining control of her plot. She explains the situation: Nowadays, people are funny. Someone can know your title deed. Maybe he has gone to land office at Kakamega, asking, "just let me know someone's title deed number, or the number of this plot." And they cannot hide [from] him, [the title deed information] to see, and from there someone can do something without you knowing. Subsequently, there was another attempt at "grabbing" her land, which she managed to avert by taking drastic measures: [It was] the original home of my husband, so he had put up a house there before we came here. And that house used to just stay there. But it was one day I heard a son of my sister-in-law [nephew] ... saying he wants to go and stay in that house. So that made me destroy the house. ... Such a house you can't destroy by yourself, but my [other] brother-in-law with other men destroyed it. ... I am just digging the land. It's where I plant maize and beans. (L003)

Jane Jane is a 44-year-old middle-income woman whose husband passed away 11 years ago. After her husband's death, she heard of plans by her parents-in-law to appropriate part of her shamba. She "sued and took them to court": Now this plot, my parents in-law wanted to give it to their eldest grandson. They wanted to divide my plot. They had given each son his own share. Then my father-in-law asked my mother-in-law, "Can't you give a piece to your grandchild? He must get a share." That was after the burial of my husband. When I heard this I went to Kakamega to collect forms. I came and told my nephew to help me fill them. He refused. His father told him not to help me. I went back with the forms to Kakamega. Fortunately, I met the late chief. He is the one who told me how to go about it and he told me to take them to Vihiga. At Vihiga, they told me to be accompanied by my father-in-law. They gave me the date for the land board meeting. When I told my father in-law, he refused. Instead, he sent his eldest son to represent him, but the board turned him away. When I went home, I tricked the old man. This was a lie actually: [I told him] that "the board members said if you fail to turn up in the second meeting then you should pay 5000 shillings as a fine." That is when he attended it. They told him, "We've found this woman a job and when she goes, you remain with the rest of her family." That is when he said, "No, I will give her a shamba." But they had refused completely. It was very difficult; I had to bribe the board [laughs]. Don't joke, it wasn't easy! After attending the district land board meetings, Jane had to attend court hearings at the land registration office in Kakamega, the provincial capital. We continued like that until we went to court. The old man never showed up at Kakamega when we went. I asked someone to represent him [as a proxy] and the person said he was the brother to my late husband, and said, "Father is so sick he can't make it to court. But we've agreed with the Vihiga board to allocate her a plot." That is when they gave it to me. They wrote his identity card details and he swore that he was saying the truth, otherwise they had refused. (L004) Through creative "back-door" maneuvering, she discreetly initiated a process towards protecting her land rights: I didn't tell anyone. ... I would leave early in the morning [and be gone until] evening. No one would know. This went on until I was finished æ until I succeeded. No one helped me. ... Was I to tell anyone? When you are looking for something, you are not supposed to tell anyone. ... Some people will mock you, others will talk ill of you until you even can't succeed.

Jane was able to use the judicial system set up through statutory law to protect her land rights because her economic status allowed her to afford the associated costs of "influencing" officials, acquiring title deeds, and traveling to Kakamega. She did this on her own, however, without telling anyone of her plans, fearing that doing so might alert her in-laws and jeopardize the outcome. By keeping her plans as "back-door" decisions, she was able to manipulate the system and spring her defence on her in-laws without their foreknowledge. Jane's account demonstrates that widows may invoke statutory law to defend their rights to land when they are threatened. However, drawing on statutory law is not always straightforward, as it requires knowledge of its existence and access to its machinery and processes. Moreover, accessing it requires a great deal of creativity, as well as energy, time, money, and tenacity. Making these laws work in favour of women sometimes involves manipulation, "tricks," and bribes to influence officials. As Jane's account illustrates, statutory law can also be manipulated by men to control land, even if they do not have title deed — a situation that would not exist if land officials did not side with patriarchal norms to begin with, and if bribery was not an accepted fact of survival. A Logoli woman puts the situation into perspective:

Nowadays you have to bribe. They will keep telling you, go and come back tomorrow, yet you traveled all the way from up country and you are putting up in a relative's house so you become a burden. ... You go to court and you are told your file is missing so you have to bribe in order for it to be traced ... (L044)

Inevitably, the selective re-interpretation and invoking of "widow-inheritance" by men has important long-term consequences for sustainable soil management. Given that there is a great deal of spatial variability in terms of environment, land, soil fertility, and crops grown, women as farmers accumulate a great deal of valuable knowledge and expertise over time regarding the context-specific conditions and microenvironments of their shambas. Hence, when a widow is "chased" from her shamba, the wealth of her accumulated knowledge and expertise are lost. Because the sustainability of the land and soils depends on whether women can successfully pass along valuable agricultural and soils knowledge of particular micro-niches to one another, a break in this chain of knowledge has serious implications for sustaining the soils.

Research and 'development' initiatives must consider land tenure as an issue that is critical to sustainable soil management and farming. This is essential. Furthermore, the problems and constraints that women face in defending their rights to land are an important issue for women themselves — an issue that affects their very livelihoods. This is, therefore, an area where future policy and initiatives should focus attention and make efforts to collaborate with women who are vulnerable in terms of their security of tenure.

The case of "out-grown" sons

Stepmothers, on the other hand, wield a great deal of power as they influence the equitable distribution of land among sons and stepsons. In Benjamin's case, his stepmother regards her husband's children differentially, and fiercely defends her own sons' rights over further division of the small parcel of land by her stepson. The extent to which his mother-in-law was able to hold off the formal allocation of land to Benjamin while his father was alive has further rendered his security in tenure vulnerable, making his chances of inheriting a plot, and therefore of marrying, difficult.

The normal recourse when the father is deceased is to turn to the paternal uncles to ensure inheritance according to customary law. Since all of Benjamin's uncles have passed away, he has only one option left: calling upon the elders in the sub-clan to adjudicate his land claims. However, initiating these formal and ceremonial processes involves monetary costs, and is often an unaffordable option for economically poor farmers like Benjamin. Although men in general are in a more powerful position in terms of interpreting and drawing upon elements of customary law, this depends on their class and status — and in particular on their ability to incur the monetary costs associated with negotiating claims under customary law.

Without land, Benjamin is unable to marry and establish a home. Without land, he will not be recognized as an adult, and therefore cannot be buried as one. What this account demonstrates is that men can also be vulnerable in terms of security of tenure in certain circumstances. This is an important finding to consider when formulating research policy and initiatives. And, although women's role in land inheritance is not overt, it is nonetheless central in terms of influencing land inheritance. Women's roles as mothers, stepmothers, and grandmothers are important in influencing how, when, and to whom land is allocated among sons, daughters-in-law, and "out-grown" sons.

Women's ownership of land: deeply contested terrain

The case of unmarried daughters

Your share is not there. ... In Maragoli, girls are not supposed to get land, and even if they give you [land], you won't feel okay. ... People in the society won't respect you. ... Because even if you stay at your home, it won't be good because many people will start laughing at you. Because mostly people in Maragoli prefer girls to move from home and join their husbands, and if you stay at home without getting married, they bury you badly when you die. (L005)

As Melissa suggests, and Beatrice's account demonstrates below, this situation is made worse for unmarried daughters who remain in their parents' homes with children born out-of-wedlock.
 

Beatrice Beatrice is a 39-year-old single mother who lives with her widowed mother and sister. When she was young, she became pregnant, and, as she puts it, the biological father of her children "turned against me and said he cannot marry me." She later had several "friendships" with men and had two more children out-of-wedlock. Since her brothers are deceased, there are no sons to inherit the three-acre family farm, which is controlled by her mother. She describes her situation and explains that having four children out-of-wedlock makes issues of gaining income to meet monetary needs particularly difficult: My problem is how to bring up the children, yet I don't have a husband. ... It's hard to feed the children, hard to clothe them and take them to school. And that preoccupies my mind so much. That's what gets me down. The situation is made acutely worse by the extremely strong cultural taboos and stigmas that exist around single daughters with children out-of-wedlock who continue to remain in their parents' homes: When you give birth in your home it is difficult. Your dignity is lowered, they mock you, they don't respect you at all. You also lose respect for yourself. ... Here in Maragoli, there is a lot of taunting. ... Most of the words come from women, men just understand and know it's actually a problem. ... Neighbours sometimes look down upon me. They tell me that I have refused to get married, that I have stuck in my home, that I should have tasted marriage. ... The thought of marriage has faded away because whenever you find one and tell him about marriage they don't accept ... When you stay in your home you are referred to as a girl since you are not married. ... You are supposed to leave and make your own life. ... You can stay, but it really is a big problem. ... The shamba is there alright, but if you have no help for using the shamba, what use does it have for you? While Beatrice never brought up the subject in interviews, members of her group confirmed that she engages in informal sex work to make economic ends meet. This may also go a long way in explaining the particularly fierce social stigmas that she faces in her everyday life, especially from other women. Similar to Melissa, Beatrice feels that "girls" should leave their parents' homes. Even though her brothers are deceased, she feels no particular advantage in the knowledge that she may inherit a piece of the family's shamba. Despite the fact that married women often have no material advantage in residing with husbands who do not provide labour, income, and other important resources, according to Beatrice they are in a far better situation than those who are unmarried and live at home. She strongly believes that married women have better lives: You cannot compare the life of a woman who is at her [parent's] home [with] one who is married. The married woman has her own house, her own home. Even that married one doesn't have a lot of problems. ... The one who is in her home can discuss issues with her children and husband. ... So the woman who lives in her parent's home is really a burden. It is difficult ... there are no advantages, you just persevere. (L018) This contradiction between the reality most married women face and the way unmarried women imagine these realities may be addressed by turning attention to the extremely strong social stigmas and cultural norms that perpetuate men's ownership of land. They may also be better understood when we recognize the status given to having one's own "home" through marriage, all of which cause women such as Beatrice a great deal of anxiety and despair, as well as feelings of vulnerability and alienation.

Despite the fact that they may inherit shambas in the future, daughters who continue to remain on their family's land face extremely strong social stigmas, especially if they have children out-of-wedlock and/or turn to sex work for economic survival. While they have an obligation to contribute labour on the shamba, they do not necessarily control the returns from that labour, and therefore are forced to engage in alternative means of income generation. Most single women attempt to find an alternative means of survival, normally through marriage as second wives, through employment in towns as "housegirls," or by taking on lovers or engaging in sex work to generate an income and gain access to resources. While they may have secure rights to land in the future, they themselves do not view this as an advantage, as social stigmas constructed within patriarchal ideology weigh heavily in their lives.
 

Rina Rina is a 50-year-old widow whose husband died eight years ago. She was "chased" from her first marriage because she was unable to bear children, and she re-married as a second wife. Rina has only one daughter. She would like to leave her shamba to this daughter, but has reservations based on her own experiences. She explains: It is said that a girl cannot stay in her home. Staying there usually means conflicts, so it is better to find a place for yourself. ... [Then], you become happy because now you are in your house, with your own husband. It's known that you are in your home. Rina has considered obtaining the title deed for her land in order to leave it to her daughter, but is also considering leaving her land to one of her stepsons, despite the fact that she has had a hostile relationship with her co-wife. She explains: If my daughter feels that the shamba should belong to her, then I will give to her. ... I am supposed to do that [obtain a title deed], but I don't have enough money for the whole process. ... [My land], it is usually supposed to be inherited by one of my stepsons, the one that I feel is good to me. ... If he takes good care of me he will get, but if he doesn't, he won't get. (L028)

Because Rina has no sons, she can legitimately leave land to her daughter under customary law. However, she is considering allocating her parcel of land to her stepson. Faced with an economically uncertain future herself, she is seriously considering this avenue because it would enable her to use the land as an important lever in exchange for care in her old age, as well as access to resources that she feels her stepson and wife would provide. Rina's account illustrates two points. First, decisions on land allocation are not always made by men. Women, as widows and heads of household, can make land-allocation decisions. Second, despite the fact that customary law allows for daughters to inherit land when there are no sons, in economically difficult circumstances this does not guarantee that the land will be inherited by daughter(s), even if the decision is made by women. Hence, women sometimes perpetuate the very system that undermines their position, because they have few resources available to them when they get older and because they consider in advance the heavy weight of cultural norms their daughters will have to face when they inherit family land.

The cultural significance given to women's ownership of land vis-à-vis norms and fierce social stigmas makes it extremely difficult for unmarried daughters to remain and inherit family land. As such, these social stigmas are not just "quaint" cultural ideology but are constitutive forces with real effects and far-reaching implications that weigh heavily in women's lives and influence the way women make decisions about land. Stigmas often manifest themselves as forms of harassment from families and community. Given these factors, it is not surprising that daughters in Maragoli rarely inherit land. Indeed, none of the women interviewed in this case study had inherited land from their fathers. Furthermore, as the preceding narratives have conveyed, women who face fierce social stigmas suffer acute emotional stress, which adversely affects their health and, consequently, their ability to carry out soil management and farming. In addition, not being able to control the proceeds of their labour, and in some cases not having secure knowledge that they will inherit family land, women prefer to engage in off-farm income-generating and coping strategies (as discussed in Chapters Seven and Eight). The withdrawal of women's knowledge, labour, and energies from the shamba — partially or completely — has less then positive implications for agricultural production and soil management.

When women purchase land

Women rarely purchase land, not only because of the high monetary costs involved but because when they do attempt such a purchase, these transactions are bitterly disputed by their husbands and by clansmen in the community. The following account of Jedda, an economically wealthy woman who purchased land in her own name, and the reaction of her husband, Lucas, demonstrates this situation.
 

Jedda Jedda is 56 years old. She is the chairperson of her women's group and is actively involved in community affairs. She explains, on a broad level, the types of constraints that women face with their husbands in attempting to acquire title deeds in their own names: It is just lack of money. But if you had your own plot, it could help you get a loan in the bank because you cannot manage to get a loan without security [collateral]. ... A lot of property is owned by men, and when you tell him to give you a plot as security, he refuses. Yet if you bought, he rushes to get the title deed in his name. Is that very fair, surely? It's so unfair. ... Men cannot give you a title deed, unless you talk to him so nicely, so that he can give you a letter with the title deed. So that he can introduce [you] to the manager of the bank to get a loan. Otherwise, if you don't talk nicely you won't be given a title deed. They're very difficult. Men are always difficult. Jedda bought a plot with her own money and had the title deed registered in her name, only to find out that her husband had gone to the land registration office without her knowledge and had it transferred to his name. She then proceeded to "talk to him so nicely" in order to convince him that both their names should appear on the deed. This allowed her to process an application for a loan at the local bank. After her own experiences, she reflects on the reasons why men feel the need to control title deeds: Men are afraid of putting the title deeds in our names because they are afraid we will run away. Women will say, "I can go and do something else, I can do without you." So, I think that men are afraid of this. That once they have given women something, that they will talk among themselves and exchange ideas with other women. ... Women will boast. But the man will feel very bad, because this will go to other men, and they will start talking about you, [saying] bad things about you. They'll feel that you are spoiling it for other men. Because this title deed was given to that woman and now she is talking like that, "I can't give it to my wife." (L014)

Jedda recognizes that men's control over title deed — both a material and a symbolic manifestation of land ownership — is a way of maintaining control over women. She believes that women's ownership of land and title deed instills fear in men. They fear that if the idea of women's ownership of land gains momentum as the "word spreads," they will lose all authority and control over women. For these reasons, men maintain control and scrutiny over this process within conjugal relations, as well as within patriarchal discourse, in order to restrict women's actions and ownership of land. They use patriarchal ideology to maintain their control, as Jedda's husband's account illustrates below.
 

Lucas Lucas, Jedda's 58-year-old husband, explains why only men can and should own land: ... Not the wife, it is always the husband [who owns land]. ... The reason is that you may have economic difficulties, and a wife is the weaker sex in being tempted to make the wrong decision — "that, after all, I can also find another man outside here." But a man would always want to keep the family [the clan]. But the woman can take the harsh decisions, maybe moving with the man next door (L013).

Men claim that women are incapable of owning land because of their "incapacity" as the "weaker sex," their "propensity" to make the "wrong" decisions in terms of maintaining clan solidarity. Within this discourse, women need to be "protected" against their "incapacities" and their "tendency to roam" with men outside their clan. This justification for maintaining control over land and the means of production uses the imported concept of men's ownership ideologically in a struggle for resources within the household (Kitching 1980, p. 143), while at the same time drawing on elements of custom that emphasize clan solidarity.

Women's ownership and control of land is viewed as a threat to the patriarchal "order." What is at stake is the balance of power within local gender relations. As Jedda's account illustrates, outright purchase of land by a woman is considered an act of subversion to the "order" of things. In this case, men engage in both statutory law and customary idioms to "restore" the balance. For instance, the cases of Rebeka, Jedda, and Lucas illustrate how men can gain access to land to which women own title deed by manipulating the system of statutory law. As statutory law does not exist in a vacuum, its manipulation to suit the interests of men is most likely carried out by invoking patriarchal custom to land officials — who themselves might be sympathetic to men — in combination with bribery. This type of struggle is limited, however, to economically elite women and men, as status and money are involved in both registering title deed and bribing officials.

Another option available to women is that they may be able to purchase, rent, and control land through the collective idiom of gender-based work groups. While none of the women's groups interviewed in this case study owned land collectively, one group had had begun to rent church land to cultivate cash crops. If successful, this could be a potential avenue for gaining access to income from farming, allowing women to invest their energies in land and labour that they more freely control and benefit from. Although it should be noted that the success of this enterprise depends on several factors, including the size of plot available for rent. Purchasing land, however, is an option open only to economically wealthy women's groups, given the high cost of land and the limited availability of land for sale in Maragoli.

Conclusions

Norms, idioms, and taboos within customary law are continuously evolving. They constitute a set of shifting symbols that not only define society but also create strategies that serve economic and political interests (Glazier 1985, cited in Mackenzie 1990, p. 613). Faced with social disruption and major threats to their power and position within society, men use customary law selectively as an instrument to control resources and behaviour within conjugal relations, including the rigid rules around marriage, land tenure, the institution of "widow-inheritance," bridewealth, and divorce, and the stigmatization of "roaming" and having children out-of-wedlock.

Given these realities, the position of women in securing rights to land and defending threats to their security in tenure is far from being equitable. In addition, their ability to negotiate rights to land is mediated by class, age, marital status, and life-cycle positioning, as well as status, identity, and reputation. As such, who the farmer is has implications in terms of the types of struggles that take place and the farmer's ability to participate in different legal spheres and customs. Women have differential access to both legal spheres. Economically poor women, as well as those who are new to their marital life-circumstances and those who 'deviate' from customary norms such as marriage, may be the most vulnerable of all, having very few options to access and maintain rights to land. Moreover, it is important to note that the accounts in this chapter are based on the experiences of women who were able to succeed in maintaining rights to land. Chapter Eight discusses other stories that are often hidden from view when men are able to successfully "chase" women from their shambas. Such situations reveal what happens to women, their land, and their extensive agricultural knowledge when they are not able to defend their rights.

The results of women's struggles to secure rights to land are critical for sustainable soil management and farming. Struggles over threats to security of tenure highlight the importance of a woman's ability to secure long-term rights to and control over land, as both a material and symbolic resource. As the micropolitics of such microniches as the banana and garden vegetable plots demonstrate, when women have secure rights to land, they are more willing to invest in long-term strategies to sustain the soil. This critical factor determines the extent to which women, as the principal farmers and managers of the soil, are willing to invest in or withdraw from labour and strategies to sustain the soil and farming within real limits set by the patriarchal "order."

While the next two chapters illustrate that certain norms and idioms relating to labour roles and responsibilities have been transformed in the face of historical and political-economic changes — which have intensified women's labour in all aspects of life — this chapter has demonstrated that the norms and idioms that have remained entrenched, and are fiercely resisted by men, are those that pertain to the control over property and land, and, therefore, power within changing gender relations.

³⁷This and other accounts in this book are verbatim, unless otherwise specified. The account is represented in the participant's own words, based on responses to interview questions, discussions around photo appraisals, and more detailed accounts shared through personal narratives with the research assistant as part of this process. The account has been translated word for word from Maragoli into English. The coding "(L001)" is a system of coding designed to identify different participants while ensuring their anonymity.

³⁸More specifically, in 1894, the British Land Acquisition Act allowed for 'empty' land from the coast to the interior to be acquired for the construction of a railway (Davison 1988, p. 164). In 1897, the Crown Land Acts brought millions of acres of the most arable land under the British Protectorate. This was reinforced a number of times during the 20th century (Davison 1988, p. 164). Those whose land had been acquired were confined to native reserves or became laborers on the plantation of foreign settlers. In 1915, the Crown Lands Ordinance, which was subsequently altered and modified over the next 25 years, further formalized the establishment of native reserves to suit the needs of European settlers (Okoth-Ogendo 1991).

³⁹"Digging" refers to the labour-intensive work of clearing, breaking the soil, planting, and weeding.

⁴⁰As discussed later in this chapter, when women engage in overt acts of resistance, they do so knowing that such acts entail severe consequences in terms of foregoing rights and claims to "property" and status.

⁴¹A man's father designates the area where the house is to be built by placing the four posts of the house in the ground (Abwunza 1997, p. 196). Women are not allowed to build houses. Although they may help out in constructing parts of the dwelling, they are restricted from putting up the main frame or laying the foundation.

⁴²A hierarchy in the allocation of land to co-wives is followed, as the senior wife normally remains in the ancestral home while the junior wife is allocated a purchased or secondary plot. This seniority is maintained because when a man dies, he must be buried on the senior wife's shamba. As one woman explains, "According to Avalogoli tradition ... junior co-wives are regarded as daughters of the senior wife" (L032). This cultural norm is invoked by senior wives to defend their use rights to land, especially when faced with threats of land division, which would affect their livelihoods in the immediate term and reduce the amount of land inherited by their sons in the future. Moreover, in the past, when landholdings were larger, economically wealthy men married multiple wives, as this was an indicator of status and wealth, as well as a means of accessing labour. Today, men sometimes engage in extramarital affairs or have co-wives in town to whom they divert their resources, sometimes allocating land to "out-grown" sons borne from these relationships. In such circumstances, resources such as land become the focus of intra-household conflict among co-wives, husbands, and "out-grown" sons. Co-wives living at "home" complain bitterly about husbands who out-migrate and take other wives, effectively "forgetting" about them. In many instances, they receive no monetary remittances and assistance from their husbands, and are sometimes left caring for "out-grown" children in addition to their own. Men who cannot provide separate houses and shambas for their wives face heavy criticism from their wives, sons, and the community.

⁴³This account of Elizabeth's experiences as a farmer and young wife is presented here in my own words, based on our interviews. They are in the third person, as they are transcribed from my personal field notes.

⁴⁴In Maragoli, there is a stigmatization associated with deaths resulting from AIDS, which affects people not only when they are diagnosed, but also in death, when their histories are remembered. Because of this, farmers will often cite "malaria" or "unknown" as cause of death.

⁴⁵This narrative, consisting of Desi's experiences as a farmer and co-wife, is based on transcriptions of recordings of her personal narrative. The double-indented, single-spaced passages in this account are direct quotations of Desi's own words as expressed in this recording and as translated by research assistants from Maragoli. The passages that begin at the far left margin include other details conveyed during recorded interviews and personal narratives, but are best expressed in my words. This format applies to all subsequent narratives, unless otherwise specified.

⁴⁶While at the turn of the century, patrilineal elders played a central role in arbitrating land disputes and presiding over land allocation and demarcation, as well as the distribution of uncleared land, today, clan elders are sometimes still brought in to mediate household succession, as well as territorial land disputes pertaining to individual holdings.

⁴⁷Economically wealthy farmers normally own more than one plot. These are dispersed geographically and require access to transportation and hired labour in order to farm and maintain. They are often designated for different purposes and crops, although an increase in theft of crops has made it more difficult to manage geographically dispersed plots in the current economic climate.

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